UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
PCA INTERNATIONAL, INC.
-----------------------
(Name of Issuer)
Common Stock, par value $0.20 per share
---------------------------------------
(Title of Class of Securities)
69318A109
---------
(CUSIP Number)
RICHARD S. BORISOFF, ESQ.
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
(212) 373-3000
----------------------------------------
(Name, Address and Telephone Number of
Person Authorized to Receive Notices
and Communications)
August 25, 1998
----------------------------------------
(Date of Event which Requires Filing of
this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject to this Schedule 13D, and is filing this
schedule because of Rule 13d-(b)(3) or (4), check the following box [ ].
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2
CUSIP No. 69318A109
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Jupiter Partners II L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A) [ ]
(B) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF -0-
SHARES
BENEFICIALLY OWNED 8 SHARED VOTING POWER
BY EACH REPORTING
PERSON 1,957,812
WITH
9 SOLE DISPOSITIVE POWER
-0-
10 SHARED DISPOSITIVE POWER
1,957,812
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,957,812
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
83.1%
14 TYPE OF REPORTING PERSON
PN
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3
CUSIP No. 69318A109
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Terry J. Blumer
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A) [ ]
(B) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF,PF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
7 SOLE VOTING POWER
NUMBER OF -0-
SHARES
BENEFICIALLY OWNED 8 SHARED VOTING POWER
BY EACH REPORTING
PERSON 1,957,812
WITH
9 SOLE DISPOSITIVE POWER
-0-
10 SHARED DISPOSITIVE POWER
1,957,812
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,957,812
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
83.1%
14 TYPE OF REPORTING PERSON
IN
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4
CUSIP No. 69318A109
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
John A. Sprague
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A) [ ]
(B) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF,PF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
7 SOLE VOTING POWER
NUMBER OF -0-
SHARES
BENEFICIALLY OWNED 8 SHARED VOTING POWER
BY EACH REPORTING
PERSON 1,957,812
WITH
9 SOLE DISPOSITIVE POWER
-0-
10 SHARED DISPOSITIVE POWER
1,957,812
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,957,812
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES [ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
83.1%
14 TYPE OF REPORTING PERSON
IN
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5
ITEM 1. SECURITY AND ISSUER.
This statement relates to the Common Stock, par value $.20 per share
("Common Stock"), of PCA International, Inc., a North Carolina corporation (the
"Issuer"). The address of the Issuer's principal executive office is 815
Matthews-Mint Hill Road, Matthews, North Carolina 28105.
ITEM 2. IDENTITY AND BACKGROUND.
This statement is being filed by Jupiter Partners II L.P., a Delaware
limited partnership ("Jupiter II") , John A. Sprague ("Sprague") and Terry J.
Blumer ("Blumer"). Jupiter II, Sprague and Blumer are collectively referred to
herein as the "Reporting Persons".
The principal business address and office of Jupiter II are at 30
Rockefeller Plaza, Suite 4525, New York, New York 10112. The principal business
of Jupiter II is acting as a private investment firm to invest in management
buyouts, growth capital opportunities and industry consolidations.
The general partner of Jupiter II is Ganymede II LLC, a Delaware
limited liability company ("Ganymede II"), whose principal business address and
office are the same as that of Jupiter II. The principal business of Ganymede II
is to serve as general partner of Jupiter II.
The managing principals of Ganymede II are Sprague and Blumer each of
whose business address is the same as that of Jupiter II. The principal
occupation of each of Sprague and Blumer is acting as a managing principal of
Ganymede II and as a general partner of Europa L.P., a Delaware limited
partnership which is an
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6
affiliate of Jupiter II. Sprague and Blumer are both citizens of the United
States of America. To the knowledge of the Reporting Persons the response to
Items 2(d) and (e) of Schedule 13D is negative with respect to each of Jupiter
II, Ganymede II, Sprague and Blumer.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
On April 20, 1998, Jupiter Acquisition Corp. ("JAC"), a wholly-owned
subsidiary of Jupiter II, entered into an Agreement and Plan of Merger (the
"Merger Agreement") with the Issuer providing for the Merger of JAC with and
into the Issuer (the "Merger") with the Issuer continuing as the surviving
corporation.
Pursuant to the Merger each share of Common Stock issued and
outstanding immediately prior to the effective time of the Merger (other than
treasury shares and shares as to which appraisal rights have been exercised), at
the election of the holder thereof, either (i) was converted into the right to
receive $26.50 in cash or (ii) remained outstanding as one fully paid and
non-assessable share of common stock of the surviving corporation following the
Merger. A copy of the Merger Agreement is attached hereto as Exhibit 2 and is
incorporated herein by reference. The closing of the Merger took place on August
25, 1998 and shareholders elected to retain a continuing interest in the Issuer
consisting of 399,240 shares of Common Stock representing 16.9% of the
outstanding shares of Common Stock. As a result of the Merger, all outstanding
shares of Common Stock of the Issuer that holders did not
<PAGE>
7
elect to retain were automatically converted into a right to receive $26.50 a
share in cash without interest.
Jupiter II's equity investment of 1,957,812 shares was purchased for
$26.50 per share or a total of $51.9 million. The funds used by Jupiter II to
make its equity investment were obtained through capital contributions from the
limited partners of Jupiter II and from Ganymede II, the general partner of
Jupiter II. Ganymede II obtained its funds through capital contributions from
its members, including Sprague and Blumer. Sprague and Blumer used personal
funds for their capital contributions to Ganymede II.
The Merger included the refinancing of existing debt of the Issuer with
the proceeds of (i) a new $150 million bank facility led by NationsBank, N.A. of
which approximately $125 million was drawn at the closing of the Merger and (ii)
a new $100 million senior subordinated bridge facility led by NationsBridge,
L.L.C. In addition, as described above, Jupiter II purchased its equity for
$51.9 million in cash and approximately $10.6 million of equity was rolled over
by members of the management of the Issuer and by other existing shareholders
who retained their Common Stock.
ITEM 4. PURPOSE OF TRANSACTION.
Jupiter II acquired the Common Stock in order to obtain control of the
Issuer.
As a result of the Merger, the Issuer was informed by the National
Association of Securities Dealers, Inc. ("NASD") that its Common Stock no longer
met all of the requirements for continued listing on the NASDAQ National Market,
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8
and the Common Stock was delisted from the NASDAQ National Market. The Common
Stock currently trades in the over-the-counter market. Furthermore, the Issuer's
Common Stock is eligible for termination of its registration pursuant to Section
12(g)(4) of the Securities Exchange Act of 1934.
At the effective time of the Merger, the directors of JAC became
directors of the Issuer. In addition, four directors of the Issuer who were
directors prior to the effective time of the Merger remained on the board of
directors of the Issuer. There is no agreement as to how long such persons will
remain on the board and such persons may be removed at any time by Jupiter II,
with or without cause.
Other than as described elsewhere in this Schedule 13D, no Reporting
Person has any present plans or proposals that relate to or would result in: (a)
the acquisition by any person of additional securities of the Issuer, or the
disposition of securities of the Issuer; (b) an extraordinary corporate
transaction, such as a merger, reorganization or liquidation, involving the
Issuer or any of its subsidiaries; (c) a sale or transfer of a material amount
of assets of the Issuer or of any of its subsidiaries; (d) any change in the
present board of directors or management of the Issuer, including any plans or
proposals to change the number or term of such directors or to fill any existing
vacancies on such board; (e) any material change in the present capitalization
or dividend policy of the Issuer; (f) any other material change in the Issuer's
business or corporate structure; (g) changes in the Issuer's charter, by-laws or
instruments corresponding thereto or other actions that may impede the
acquisition of control of the Issuer by any person; (h) causing a class of
securities of the Issuer to be delisted from a national securities exchange or
to cease to be authorized to be
<PAGE>
9
quoted in an inter-dealer quotation system of a registered national securities
association; (i) a class of equity securities of the Issuer becoming eligible
for termination of registration pursuant to Section 12(g)(4) of the Securities
Exchange Act of 1934; or (j) any action similar to any of those enumerated
above.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a)-(c) On August 25, 1998, as a result of the closing of the Merger,
Jupiter II became the beneficial owner of 1,957,812 shares of Common Stock, or
approximately 83.1% of the shares of Common Stock outstanding on such date.
By virtue of their relationship with Jupiter II, each of Blumer and
Sprague may be deemed to own beneficially the shares of Common Stock
beneficially owned by Jupiter II. Except as set forth above, no Reporting Person
nor, to the best knowledge of each reporting person, any person identified in
Item 2 hereof, beneficially owns any shares of Common Stock or has effected any
transaction in shares of Common Stock during the past 60 days.
(d) No person other than the Reporting Persons has the right to receive
or the power to direct the receipt of dividends from, or the proceeds from the
sale of, the Common Stock beneficially owned by Jupiter II.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
Merger Agreement. See Item 2 above.
Stockholders Agreement. Jupiter II, the Issuer and certain stockholders
of the Issuer (the "Management Stockholders") have entered into a Stockholders
<PAGE>
10
Agreement substantially in the form attached hereto as Exhibit 3 (the
"Stockholders Agreement"). The Stockholders Agreement will provide for (i)
certain restrictions on the ability of Jupiter II and the Management
Stockholders to transfer their Common Stock, (ii) tag-along rights for Jupiter
II and the Management Stockholders, (iii) drag- along rights for Jupiter II,
(iv) certain transfers by Management Stockholders following certain public
offerings by the Issuer, (v) call option rights exercisable by the Issuer and
Jupiter II in the event of termination for cause, termination without cause or
resignation of, or breach of employment by, any of the Management Stockholders;
and (vi) registration rights for Jupiter II, the Management Stockholders and
their permitted transferees. The above description of the Stockholders Agreement
is qualified in its entirety by reference to the form of Stockholders Agreement
filed as Exhibit 3 hereto which is incorporated herein by reference.
New Option Plan. Jupiter II has agreed that at the effective time of
the Merger, the Issuer will establish a new stock option plan (the "New Option
Plan") under which shares of Common Stock equal to up to 12.5% of the
outstanding shares of Common Stock immediately following the effective time of
the Merger will be reserved for issuance upon exercise of options to be granted
to certain officers and employees. Of the options to be granted under the New
Option Plan, 50% will vest over time and 50% will vest only if the Issuer meets
certain performance goals.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 1. Joint Filing Agreement
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11
Exhibit 2. Agreement and Plan of Merger, as amended, by and between PCA
International, Inc. and Jupiter Acquisition Corp., dated as of April
20, 1998.
Exhibit 3. Form of Stockholders Agreement by and among PCA International, Inc.
and Certain of the Holders of its Common Stock.
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in the statement is true, complete and correct.
Date: September 3, 1998
JUPITER PARTNERS II L.P.
By: GANYMEDE II LLC General Partner
By: /s/ Terry J. Blumer
-----------------------
Terry J. Blumer,
Managing Principal
/s/ Terry J. Blumer
-------------------
Terry J. Blumer
/s/ John A. Sprague
-------------------
John A. Sprague
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13
EXHIBIT INDEX
Exhibit No.
Joint Filing Agreement 1
Agreement and Plan of Merger, as amended, by and between 2
PCA International, Inc. and Jupiter Acquisition Corp., dated as
of April 20, 1998.
Form of Stockholders Agreement by and among PCA 3
International, Inc. and Certain of the Holders of its Common
Stock.
14
EXHIBIT 1
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(f) under the Securities Exchange Act of
1934, as amended, the undersigned hereby agree to the joint filing with all
other Reporting Persons (as such term is defined in the Schedule 13D referred to
below) on behalf of each of them of a statement on Schedule 13D (including
amendments thereto) with respect to the Common Stock, par value $0.20 per share,
of PCA International, Inc. and that this Agreement be included as an Exhibit to
such joint filing. This Agreement may be executed in any number of counterparts
all of which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned hereby execute this Agreement this
3rd day of September, 1998.
JUPITER PARTNERS II L.P.
By: GANYMEDE II LLC
General Partner
By: /s/ John A. Sprague
-----------------------
Name: John A. Sprague
Title: Managing Principal
/s/ Terry J. Blumer
-------------------
Terry J. Blumer
/s/ John A. Sprague
-------------------
John A. Sprague
AGREEMENT AND PLAN OF MERGER, AS AMENDED
by and between
PCA INTERNATIONAL, INC.
AND
JUPITER ACQUISITION CORP.
dated as of
April 20, 1998
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I THE MERGER.................................................1
Section 1.1 The Merger.................................................1
Section 1.2 Effective Time.............................................2
Section 1.3 Closing....................................................2
Section 1.4 Directors and Officers of the Surviving Corporation........2
Section 1.5 Shareholders' Meeting......................................2
ARTICLE II CONVERSION OF SECURITIES...................................4
Section 2.1 Conversion of Capital Stock................................4
Section 2.2 Payment of Cash Merger Consideration.......................6
Section 2.3 Dissenters' Rights.........................................7
Section 2.4 Exchange of Stock Certificates.............................7
Section 2.5 Stock Options..............................................8
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE
COMPANY....................................................8
Section 3.1 Organization...............................................8
Section 3.2 Capitalization.............................................9
Section 3.3 Authorization; Validity of Agreement; Company Action......10
Section 3.4 Consents and Approvals; No Violations.....................10
Section 3.5 SEC Reports and Financial Statements......................11
Section 3.6 Absence of Certain Changes................................12
Section 3.7 No Undisclosed Liabilities................................12
Section 3.8 Litigation................................................12
Section 3.9 Employee Benefit Plans; ERISA.............................13
Section 3.10 Information in Proxy Statement............................14
Section 3.11 No Default; Compliance with Applicable Laws...............15
Section 3.12 Licenses; Intellectual Property...........................15
Section 3.13 Taxes.....................................................16
Section 3.14 Insurance.................................................19
Section 3.15 Contracts.................................................19
Section 3.16 Related Party Transactions................................20
Section 3.17 Real Property.............................................20
Section 3.18 Vote Required.............................................21
Section 3.19 Environmental Matters.....................................21
Section 3.20 Year 2000.................................................23
Section 3.21 Fairness Opinion..........................................23
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF
MERGERCO..................................................23
Section 4.1 Organization..............................................24
i
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Page
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Section 4.2 Capitalization............................................24
Section 4.3 Authorization; Validity of Agreement; Necessary Action....24
Section 4.4 Consents and Approvals: No Violation......................24
Section 4.5 Information in Proxy Statement............................25
Section 4.6 Litigation................................................25
Section 4.7 Financing Commitment......................................25
Section 4.8 Fraudulent Conveyance.....................................26
ARTICLE V COVENANTS.................................................26
Section 5.1 Interim Operations of the Company.........................26
Section 5.2 Access; Confidentiality...................................28
Section 5.3 Consents and Approvals....................................28
Section 5.4 No Solicitation...........................................29
Section 5.5 Brokers or Finders........................................30
Section 5.6 Additional Agreements.....................................30
Section 5.7 Publicity.................................................30
Section 5.8 Notification of Certain Matters...........................31
Section 5.9 Directors' and Officers' Insurance and Indemnification....31
Section 5.10 Tax Return Filing and Tax Elections.......................32
Section 5.11 Cooperation...............................................33
Section 5.12 Financing.................................................33
Section 5.13 NASDAQ Listing............................................33
Section 5.14 Fees......................................................33
Section 5.15 Consummation of the Merger................................33
ARTICLE VI CONDITIONS................................................34
Section 6.1 Conditions to Each Party's Obligation to Effect the Merger
Transaction...............................................34
Section 6.2 Conditions to Mergerco's Obligation to Effect the Merger..34
Section 6.3 Conditions to the Company's Obligation to Effect
the Merger................................................36
ARTICLE VII TERMINATION...............................................37
Section 7.1 Termination...............................................37
Section 7.2 Effect of Termination.....................................39
ARTICLE VIII MISCELLANEOUS.............................................39
Section 8.1 Fees and Expenses.........................................39
Section 8.2 Amendment and Modification................................40
Section 8.3 Nonsurvival of Representations and Warranties.............40
Section 8.4 Notices...................................................40
Section 8.5 Interpretation............................................41
Section 8.6 Counterparts..............................................42
ii
<PAGE>
Section 8.7 Entire Agreement; No Third Party Beneficiaries; Rights of
Ownership.................................................42
Section 8.8 Severability..............................................42
Section 8.9 Governing Law.............................................42
Section 8.10 Assignment................................................42
Index of Defined Terms
Defined Term Section No.
- ------------ -----------
Affiliate(s)........................................................ 8.5
Agreement........................................................... Recitals
Agreements.......................................................... 3.4
Acquisition Proposal................................................ 5.4
Alternative Financing............................................... 5.12
Benefit Plans....................................................... 3.9(a)
Cash Merger......................................................... 2.1(c)
Cash Merger Consideration........................................... 2.1(c)
Cash Merger Shares.................................................. 2.1(c)
Certificates........................................................ 2.2(b)
Closing............................................................. 1.3
Closing Date........................................................ 1.3
Code................................................................ 3.9(b)
Commitment Letter................................................... 4.7(b)
Common Stock........................................................ 2.1
Company............................................................. Recitals
Company SEC Documents............................................... 3.5
Company Shares...................................................... 3.2(a)
Continuing Share Election........................................... 2.1(d)
Continuing Shareholders............................................. 2.1(d)
Continuing Shares................................................... 2.1(d)
Disclosure Schedule................................................. 2.1(d)
Dissenting Shareholders............................................. 2.1(c)
Documents........................................................... 3.5
D&O Insurance....................................................... 5.9(b)
Effective Time...................................................... 1.2
Environment......................................................... 3.19(a)
Environment Claims.................................................. 3.19(b)
iii
<PAGE>
Defined Term Section No.
- ------------ -----------
Environmental Compliance Costs...................................... 3.19(c)
ERISA............................................................... 3.9(a)
ERISA Affiliate..................................................... 3.9(a)
Exchange Act........................................................ 1.5(a)
Fees and Expenses................................................... 8.1(b)
Financing........................................................... 4.7(b)
GAAP................................................................ 3.5
Governmental Entity................................................. 3.4
Hazardous Substances................................................ 2.2
HSR Act............................................................. 3.4
Indemnified Party................................................... 5.9(a)
Intellectual Property............................................... 3.12
Jupiter............................................................. 4.2
Licenses............................................................ 3.12
Material Adverse Effect............................................. 7.1(a)
Material Agreements................................................. 3.15
Maximum Continuing Number........................................... 2.1(d)
Maximum Continuing Percentage....................................... 2.1(d)
Merger.............................................................. Recitals
Mergerco............................................................ Recitals
Mergerco Common Stock............................................... 2.1
Minimum Continuing Number........................................... 2.1(d)
Minimum Continuing Percentage....................................... 2.1(d)
NationsBank Letter.................................................. 4.7(b)
NationsBridge Letter................................................ 4.7(b)
NCBCA............................................................... Recitals
1998 Financial Statements .......................................... 3.5
1998 Form 10-K ..................................................... 3.5
Options............................................................. 2.5
Option Consideration................................................ 2.5
Owned Real Property................................................. 3.17(a)
Paying Agent........................................................ 2.2(a)
Preferred Stock..................................................... 3.2(a)
Proxy Statement..................................................... 1.5(a)
Release............................................................. 3.19(e)
iv
<PAGE>
Defined Term Section No.
- ------------ -----------
Remedial Action..................................................... 3.19(f)
Rollover Letters.................................................... 2.1(d)
Safety and Environmental Claims..................................... 3.19(g)
Safety and Environmental Law........................................ 3.19(h)
Schedule 13E-3...................................................... 1.5(b)
SEC................................................................. 1.5(a)
SEC Documents....................................................... 3.5
Secretary of State.................................................. 1.2
Securities Act...................................................... 3.5
Service............................................................. 3.9(b)
Shares.............................................................. 2.1
Special Meeting..................................................... 1.5(a)
Stock Option Plans.................................................. 2.5
Subsidiary.......................................................... 3.1
Surviving Corporation............................................... 1.1
Taxes............................................................... 3.13(c)
Tax Return.......................................................... 3.13(c)
Termination Date ................................................... 7.1(b)
Title Defects....................................................... 3.17(a)
Trade Secrets....................................................... 3.12
Year 2000........................................................... 3.20
Voting Debt......................................................... 3.2(a)
v
<PAGE>
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (the "Agreement"), dated as of April 20,
1998, by and between PCA International, Inc., a North Carolina corporation (the
"Company") and Jupiter Acquisition Corp., a North Carolina corporation
("Mergerco").
RECITALS
The respective boards of directors of the Company and Mergerco deem it
advisable for the mutual benefit of the Company and Mergerco, and their
respective shareholders, that Mergerco be merged with and into the Company (the
"Merger") upon the terms and subject to the conditions set forth herein and in
accordance with the Business Corporation Act of the State of North Carolina (the
"NCBCA"). The Board of Directors and sole shareholder of Mergerco have approved
and adopted this Agreement. The Board of Directors of the Company has approved
this Agreement and has resolved to recommend to the shareholders of the Company
to vote to approve the principal terms of this Agreement in conjunction with
their approval of the principal terms of the Merger.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein the
parties hereto agree as follows:
ARTICLE I
THE MERGER
Section 1.1 The Merger. Subject to the terms and conditions of this
Agreement, at the Effective Time (as defined in Section 1.2 hereof), the Company
and Mergerco shall consummate the Merger pursuant to which (a) Mergerco shall be
merged with and into the Company and the separate corporate existence of
Mergerco shall thereupon cease, (b) the Company shall be the successor or
surviving corporation in the Merger (sometimes hereinafter referred to as the
"Surviving Corporation") and shall continue to be governed by the laws of the
State of North Carolina, and (c) the separate corporate existence of the Company
with all its rights, privileges, immunities, powers and franchises shall
continue unaffected by the Merger, except as set forth in this Section 1.1.
Pursuant to the Merger, (x) the Articles of Incorporation of the Company, as in
effect immediately prior to the Effective Time, shall be the articles of
incorporation of the Surviving Corporation until thereafter amended as provided
by law
<PAGE>
2
and such Articles of Incorporation, and (y) the Bylaws of Mergerco, as in effect
immediately prior to the Effective Time, shall be the Bylaws of the Surviving
Corporation until thereafter amended as provided by law, such Articles of
Incorporation and such Bylaws. The Merger shall have the effects specified in
the NCBCA.
Section 1.2 Effective Time. Mergerco and the Company will cause
Articles of Merger to be executed and filed on the date of the Closing (as
defined in Section 1.3) (or on such other date as Mergerco and the Company may
agree) with the Secretary of State of North Carolina (the "Secretary of State")
as provided in the NCBCA. The Merger shall become effective on the date on which
the Articles of Merger have been duly filed with the Secretary of State or such
time as is agreed upon by the parties and specified in the Articles of Merger,
and such time is hereinafter referred to as the "Effective Time."
Section 1.3 Closing. The closing of the Merger (the "Closing") shall
take place at 10:00 a.m. on a date to be specified by the parties, which shall
be no later than the third business day after satisfaction or waiver of all of
the conditions set forth in Article VI hereof (the "Closing Date"), at the
offices of Paul, Weiss, Rifkind, Wharton & Garrison, 1285 Avenue of the
Americas, New York, New York, unless another date or place is agreed to in
writing by the parties hereto.
Section 1.4 Directors and Officers of the Surviving Corporation. The
directors of Mergerco at the Effective Time shall, from and after the Effective
Time, be the directors of the Surviving Corporation until their successors shall
have been duly elected or appointed or qualified or until their earlier death,
resignation or removal in accordance with the Surviving Corporation's Articles
of Incorporation and Bylaws. Mergerco agrees that prior to the Effective Time,
it shall offer the following directors of the Company the opportunity to remain
as directors of the Company following the Effective Time until their successors
shall have been duly elected or appointed or qualified or until their earlier
death, resignation or removal: Donald P. Greenberg, Bridgette P. Heller and
Joseph H. Reich. The officers of the Company at the Effective Time shall, from
and after the Effective Time, remain as the officers of the Surviving
Corporation until their successors shall have been duly elected or appointed or
until their earlier death, resignation or removal in accordance with the
Surviving Corporation's Bylaws.
Section 1.5 Shareholders' Meeting.
(a) The Company, acting through its Board of Directors, shall,
in accordance with applicable law:
(i) duly call, give notice of, convene and hold a
special meeting (or the annual meeting) of its shareholders (the
"Special
<PAGE>
3
Meeting") as promptly as practicable for the purpose of considering and
taking action upon the approval of this Agreement and the Merger;
(ii) prepare and, after consultation with Mergerco,
file with the Securities and Exchange Commission (the "SEC") under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), a
preliminary proxy statement relating to the Merger and this Agreement
and use its best efforts (x) to obtain and furnish the information
required to be included by the SEC in the Proxy Statement (as
hereinafter defined) and, after consultation with Mergerco, to respond
promptly to any comments made by the SEC with respect to the
preliminary proxy statement and cause a definitive proxy statement,
including any amendment or supplement thereto (the "Proxy Statement"),
to be mailed to its shareholders, provided that no amendment or
supplement to the Proxy Statement will be made by the Company without
consultation with Mergerco and its counsel and (y) to obtain the
necessary approvals of the Merger and this Agreement by its
shareholders;
(iii) promptly notify Mergerco of the receipt of the
comments of the SEC and of any request from the SEC for amendments or
supplements to the preliminary proxy statement or the definitive Proxy
Statement or for additional information, and will promptly supply
Mergerco with copies of all correspondence between the Company or its
representatives, on the one hand, and the SEC or members of its staff,
on the other hand, with respect to the preliminary proxy statement, the
definitive Proxy Statement or the Merger;
(iv) promptly inform Mergerco if at any time prior to
the Special Meeting any event should occur which is required by
applicable law to be set forth in an amendment of, or a supplement to,
the Proxy Statement, in which case, the Company, with the cooperation
of Mergerco, will, upon learning of such event, promptly prepare and
mail such amendment or supplement; provided, that prior to such
mailing, the Company shall consult with Mergerco with respect to such
amendment or supplement and shall afford Mergerco reasonable
opportunity to comment thereon;
(v) notify Mergerco at least 24 hours prior to the
mailing of the Proxy Statement, or any amendment or supplement thereto,
to the shareholders of the Company; and
(vi) subject to the fiduciary obligations of the
Board of Directors under applicable law as advised by independent
counsel, include in the Proxy Statement the recommendation of the Board
of Directors that shareholders of the Company vote in favor of the
approval of this Agreement and the Merger.
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4
(b) The Company, if required, and Mergerco, if required, shall
prepare and file concurrently with the filing of the preliminary proxy
statement, a Statement on Schedule 13E-3 ("Schedule 13E-3") with the SEC. If at
any time prior to the Special Meeting any event should occur which is required
by applicable law to be set forth in an amendment of, or supplement to, the
Schedule 13E-3, the Company or Mergerco, as the case may be, shall file such
amendments or supplements.
ARTICLE II
CONVERSION OF SECURITIES
Section 2.1 Conversion of Capital Stock. As of the Effective Time, by
virtue of the Merger and without any action on the part of the holders of any
shares of common stock, par value $.20 per share, of the Company ("Common Stock"
or "Shares" and individually as "Share") or holders of any shares of common
stock, par value $.01 per share, of Mergerco (the "Mergerco Common Stock"):
(a) Mergerco Common Stock. Each issued and outstanding share
of Mergerco Common Stock shall be converted into and become one (1) fully paid
and nonassessable share of common stock of the Surviving Corporation.
(b) Cancellation of Treasury Stock and Parent-Owned Stock. All
Shares that are owned by the Company as treasury stock and any Shares owned by
Mergerco or any wholly owned Subsidiary (as defined in Section 3.1 hereof) of
Mergerco immediately prior to the Effective Time shall be canceled and retired
and shall cease to exist and no consideration shall be delivered in exchange
therefor.
(c) Exchange of Shares. Each issued and outstanding Share
(other than Shares to be canceled in accordance with Section 2.1(b), Shares to
remain outstanding pursuant to Section 2.1(d), and any Shares which are held by
shareholders exercising appraisal rights pursuant to Chapter 55-13 of the NCBCA
("Dissenting Shareholders")) shall, subject to Section 2.1(d) herein, be
converted into the right to receive $26.50 in cash without interest (the "Cash
Merger Consideration"), payable to the holder thereof. Such Cash Merger
Consideration shall be paid upon surrender of the certificate formerly
representing such Share in the manner provided in Section 2.2. The Shares
converted into the right to receive the Cash Merger Consideration are
hereinafter referred to as the "Cash Merger Shares." All such Cash Merger
Shares, when so converted, shall no longer be outstanding and shall
automatically be canceled and retired and shall cease to exist, and each holder
of a certificate representing any Cash Merger Shares shall cease to have any
rights with respect thereto, except the right to receive the Cash Merger
Consideration therefor upon the surrender of such certificate in accordance with
Section 2.2, without interest.
<PAGE>
5
(d) Continuing Shares. Notwithstanding the provisions of
Section 2.1(c), in connection with the Merger, each holder of Shares of Common
Stock shall have the right to elect to have any or all Shares held by such
holder to remain outstanding (any Shares which so remain outstanding are herein
referred to as "Continuing Shares") and not be converted into the right to
receive the Cash Merger Consideration (subject to the upward or downward
adjustment referred to below in this Section 2.1(d)). Such election may be
exercised by a holder of Shares completing and returning to the Company by 5:00
P.M., New York City time, on the last business day preceding the date of the
Special Meeting, a form of Continuing Share Election (the "Continuing Share
Election") which shall be mailed to holders together with the Proxy Statement
and proxy. Each holder of Shares (other than holders of Shares to be canceled as
set forth in Section 2.1(b) and Dissenting Shareholders) shall have the right to
specify in the Continuing Share Election (i) the number of Shares owned by such
holder that such holder desires to have converted into the right to receive the
Cash Merger Consideration and (ii) the number of Shares owned by such holder
that such holder desires to remain outstanding as Continuing Shares and not be
converted into the right to receive the Cash Merger Consideration. If holders of
Shares elect in the aggregate to retain Continuing Shares in excess of the
Maximum Continuing Number (as hereinafter defined), then the number of
Continuing Shares to be owned by all such electing holders will be prorated
based on the number of Continuing Shares each shareholder that made a Continuing
Share Election elected to retain (with fractional Shares rounded down to the
next whole number) so that only the Maximum Continuing Number of Shares shall
remain as Continuing Shares. With respect to Shares as to which Continuing Share
Elections are made but with respect to which no Continuing Shares will be issued
by reason of the preceding sentence, such Continuing Share Elections shall be
deemed revoked and relinquished and such Shares shall be converted into the
right to receive the Cash Merger Consideration. If holders of Shares elect in
the aggregate to retain less than the Minimum Continuing Number (as hereinafter
defined) of Shares, then (i) each shareholder that made a Continuing Share
Election shall retain the number of Continuing Shares set forth in such election
and (ii) each shareholder (whether or not such shareholder made a Continuing
Share Election) shall receive a prorated (based on the total number of Shares
owned by such Shareholder as to which a Continuing Share Election has not been
made) number of Continuing Shares (with fractional Shares rounded up to the next
whole number) so that the Minimum Continuing Number of Shares shall remain
outstanding as Continuing Shares. With respect to Shares as to which no
Continuing Share Election was made but which will remain outstanding as
Continuing Shares by reason of the preceding sentence, such a Continuing Share
Election shall be deemed to have been made. The Continuing Shares shall not be
converted or canceled as provided in Section 2.1(c), but the certificates
representing such Shares shall be exchanged as provided in Section 2.4(b). For
the purposes of this Agreement, "Maximum Continuing Number" shall mean 358,490
Shares (plus the number of Continuing Shares "beneficially owned" (as defined in
the Exchange Act) by the persons listed in Section 2.1(d) to the Disclosure
Schedule
<PAGE>
6
heretofore delivered to Mergerco (the "Disclosure Schedule")), and "Minimum
Continuing Number" shall mean 271,698 Shares (plus the number of Continuing
Shares "beneficially owned" by the persons listed in Section 2.1(d) to the
Disclosure Schedule).
(e) Adjustments. If, between the date of this Agreement and
the Effective Time, the number of outstanding Shares or the number of shares of
the Common Stock of the Company shall have been changed into a different number
of shares or a different class, by reason of any stock dividend, subdivision,
reclassification, recapitalization, split-up, combination, exchange of shares or
the like, the amount of the Cash Merger Consideration shall be correspondingly
adjusted.
Section 2.2 Payment of Cash Merger Consideration.
(a) Paying Agent. Mergerco shall designate a bank or trust
company to act as agent for the holders of the Cash Merger Shares in connection
with the Merger (the "Paying Agent") to receive the funds to which holders of
the Cash Merger Shares shall become entitled pursuant to Section 2.1(c). Such
funds shall be invested by the Paying Agent as directed by Mergerco or the
Surviving Corporation in direct obligations of the United States, obligations
for which the full faith and credit of the United States is pledged to provide
for the payments of principal and interest, commercial paper rated of the
highest quality by Moody's Investor Services or Standard & Poors Rating Group or
certificates of deposit, issued by commercial banks having at least $1 billion
in assets.
(b) Exchange Procedures. As soon as reasonably practicable
after the Effective Time, the Paying Agent shall mail to each holder of record
of a certificate or certificates, which immediately prior to the Effective Time
represented outstanding Cash Merger Shares (the "Certificates"), whose Shares
were converted pursuant to Section 2.1 into the right to receive the Cash Merger
Consideration (i) a letter of transmittal (which shall specify that delivery
shall be effected, and risk of loss and title to the Certificates shall pass,
only upon delivery of the Certificates to the Paying Agent and shall be in such
form and have such other provisions as Mergerco and the Company may reasonably
specify) and (ii) instructions for use in effecting the surrender of the
Certificates in exchange for payment of the Cash Merger Consideration. Upon
surrender of a Certificate for cancellation to the Paying Agent or to such other
agent or agents as may be appointed by Mergerco, together with such letter of
transmittal, duly executed, the holder of such Certificate shall be entitled to
receive in exchange therefor the Cash Merger Consideration for each Share
formerly represented by such Certificate and the Certificate so surrendered
shall forthwith be canceled. If payment of the Cash Merger Consideration is to
be made to a person other than the person in whose name the surrendered
Certificate is registered, it shall be a condition of payment that the
Certificate so surrendered shall be properly endorsed or
<PAGE>
7
shall be otherwise in proper form for transfer and that the person requesting
such payment shall have paid any transfer and other taxes required by reason of
the payment of the Cash Merger Consideration to a person other than the
registered holder of the Certificate surrendered or shall have established to
the satisfaction of the Surviving Corporation that such tax either has been paid
or is not applicable. Until surrendered as contemplated by this Section 2.2,
each Certificate shall be deemed at any time after the Effective Time to
represent only the right to receive the Cash Merger Consideration in cash as
contemplated by this Section 2.2.
(c) No Further Ownership Rights in the Shares. At the
Effective Time, there shall be no further registration of transfers of the Cash
Merger Shares on the records of the Company. From and after the Effective Time,
the holders of Certificates evidencing ownership of the Cash Merger Shares
outstanding immediately prior to the Effective Time shall cease to have any
rights with respect to such Shares, except as otherwise provided for herein or
by applicable law. If, after the Effective Time, Certificates are presented to
the Surviving Corporation for any reason, they shall be canceled and exchanged
as provided in this Article II.
(d) Termination of Fund; No Liability. At any time following
one year after the Effective Time, the Surviving Corporation shall be entitled
to require the Paying Agent to deliver to it any funds (including any interest
received with respect thereto) which had been made available to the Paying Agent
and which have not been disbursed to holders of Certificates, and thereafter
such holders shall be entitled to look to the Surviving Corporation (subject to
abandoned property, escheat or other similar laws) with respect to the Cash
Merger Consideration payable upon due surrender of their Certificates, without
any interest thereon. Notwithstanding the foregoing, neither the Surviving
Corporation nor the Paying Agent shall be liable to any holder of a Certificate
for Cash Merger Consideration delivered to a public official pursuant to any
applicable abandoned property, escheat or similar law.
Section 2.3 Dissenters' Rights. Any Dissenting Shareholder which
perfects its dissenter's rights pursuant to Chapter 55-13 of the NCGCA shall
have the rights to receive payment as provided in such Chapter for its Shares.
If any Dissenting Shareholder shall fail to perfect or shall have effectively
withdrawn or lost the right to dissent, the Shares held by such Dissenting
Stockholder shall thereupon be treated as though such Shares had been converted
into the Cash Merger Consideration pursuant to Section 2.1.
Section 2.4 Exchange of Stock Certificates. (a) Immediately after the
Effective Time, the Surviving Corporation shall deliver to the record holders of
the certificates which immediately prior to the Effective Time represented all
the outstanding shares of Mergerco Common Stock that were converted into the
right to receive Shares in accordance with Section 2.1(a), in exchange for such
certificates, duly
<PAGE>
8
endorsed in blank, Share certificates, registered in the names of such record
holders, representing the number of Shares to which such record holder are so
entitled by virtue of Section 2.1(a).
(b) As soon as reasonably practicable after the Effective
Time, the Paying Agent shall mail to each holder of record of Continuing Shares
a letter of instructions (which shall be in such form and have such other
provisions as Mergerco and the Company may reasonably specify) instructing such
holders to transmit their certificates representing Continuing Shares to the
Paying Agent in exchange for new certificates representing such Continuing
Shares. Although certificates representing Continuing Shares which are not so
exchanged will be deemed for all purposes to represent validly issued and
outstanding Continuing Shares, such certificates will not be transferable on the
books of the Company except for such new certificates. Any holder of a
certificate which represents some Shares entitled to receive the Cash Merger
Consideration and some Continuing Shares shall receive in exchange therefor the
Cash Merger Consideration for the Cash Merger Shares pursuant to Section 2.2(b)
and a new certificate for the Continuing Shares pursuant to this Section 2.4(b).
Section 2.5 Stock Options. With respect to the Company's Amended and
Restated 1996 Omnibus Long-Term Compensation Plan, the 1990 Non-Qualified Stock
Option Plan and the 1992 Non-Qualified Stock Option Plan (collectively, the
"Stock Option Plans"), the Company shall take such action as shall be required
to effectuate the cancellation of all options under the Stock Option Plans (the
"Options") (whether or not then exercisable and without regard to the exercise
price of such Options), to take effect immediately prior to the Effective Time.
Each holder of an Option shall receive from the Company, in respect of each
Option so canceled, as soon as practicable following the Effective Time, an
amount equal to the excess, if any, of the Cash Merger Consideration over the
exercise price of such Option, multiplied by the number of Shares subject to
such Option, without any interest thereon and after deducting taxes required to
be withheld (the "Option Consideration"). Notwithstanding the foregoing, payment
may be withheld in respect of any Option until any required consent of the
holder thereof to its cancellation as contemplated hereby is obtained. The
surrender of an Option to the Company shall be deemed a release of any and all
rights the holder had or may have had in such Option, other than the right to
receive the Option Consideration in respect thereof. Notwithstanding the
foregoing, Mergerco may, by separate agreements with holders of any Options,
agree with such holders on alternate treatment of such Options.
<PAGE>
9
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Mergerco as follows:
Section 3.1 Organization. Except as set forth in Section 3.1 of the
Company's disclosure schedule heretofore delivered to Mergerco (the "Disclosure
Schedule"), each of the Company and its Subsidiaries (as defined below) is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation or organization and has all requisite
corporate power and authority and all necessary governmental approvals to own,
lease and operate its properties and to carry on its business as now being
conducted, except where the failure to be so organized, existing and in good
standing or to have such power, authority, and governmental approvals would not
have a material adverse effect on the Company and its Subsidiaries, taken as a
whole. As used in this Agreement, the term "Subsidiary" shall mean all
corporations or other entities in which the Company or Mergerco, as the case may
be, owns a majority of the issued and outstanding capital stock or similar
interests. As used in this Agreement, any reference to any event, change or
effect being material or having a material adverse effect on or with respect to
any entity (or group of entities taken as a whole) means such event, change or
effect is materially adverse to the condition (financial or other), businesses,
assets or results of operations of such entity (or, if used with respect
thereto, of such group of entities taken as a whole). The Company and each of
its Subsidiaries is duly qualified or licensed to do business and in good
standing in each jurisdiction in which the property owned, leased or operated by
it or the nature of the business conducted by it makes such qualification or
licensing necessary, except where the failure to be so duly qualified or
licensed and in good standing would not in the aggregate have a material adverse
effect on the Company and its Subsidiaries, taken as a whole. The Company does
not own any equity interest in any corporation or other entity other than the
Subsidiaries. Section 3.1 of the Company's Disclosure Schedule sets forth a
complete list of the Company's Subsidiaries.
Section 3.2 Capitalization. (a) The authorized capital stock of the
Company consists of 20,000,000 shares of Common Stock (the "Company Shares"),
2,000,000 shares of preferred stock, par value $10.00 per share (the "$10.00
Preferred") and 69,790 shares of preferred stock, par value $8.00 per share (the
"$8.00 Preferred", and together with the $10.00 Preferred, the "Preferred
Stock"). As of the date hereof, (i) 7,941,379 Shares are issued and outstanding,
(ii) no Shares are issued and held in the treasury of the Company, (iii) no
shares of Preferred Stock are issued or outstanding, (iv) 1,511,000 Shares are
reserved for issuance upon exercise of outstanding Options granted under the
Stock Option Plans and (v) 150,000 Shares are reserved for issuance upon
exercise of outstanding warrants. Section 3.2 of the
<PAGE>
10
Company's Disclosure Schedule sets forth the exercise price, grant date and
expiration date for all outstanding Options. All the outstanding Shares of the
Company's capital stock are, and all Shares which may be issued pursuant to the
exercise of outstanding options will be, when issued in accordance with the
respective terms thereof, duly authorized, validly issued, fully paid and
non-assessable. Except as set forth in Section 3.2 of the Disclosure Schedule
there are no bonds, debentures, notes or other indebtedness having general
voting rights (or convertible into securities having such rights) ("Voting
Debt") of the Company or any of its Subsidiaries issued and outstanding. Except
as set forth above and except for the transactions contemplated by this
Agreement, as of the date hereof, (i) there are no shares of capital stock of
the Company or any of its Subsidiaries authorized, issued or outstanding, (ii)
there are no existing options, warrants, calls, preemptive rights, subscriptions
or other rights, agreements, arrangements or commitments of any character,
relating to the issued or unissued capital stock of the Company or any of its
Subsidiaries, obligating the Company or any of its Subsidiaries to issue,
transfer or sell or cause to be issued, transferred or sold any shares of
capital stock or Voting Debt of, or other equity interest in, the Company or any
of its Subsidiaries or securities convertible into or exchangeable for such
shares or equity interests, or obligating the Company or any of its Subsidiaries
to grant, extend or enter into any such option, warrant, call, subscription or
other right, agreement, arrangement or commitment, and (iii) there are no
outstanding contractual obligations of the Company or any of its Subsidiaries to
repurchase, redeem or otherwise acquire any Shares, or any capital stock of the
Company, or any Subsidiary or affiliate of the Company or to provide funds to
make any investment (in the form of a loan, capital contribution or otherwise)
in any Subsidiary or any other entity.
(b) All of the outstanding shares of capital stock of each of
the Subsidiaries of the Company are beneficially owned by the Company, directly
or indirectly, and all such shares have been validly issued and are fully paid
and nonassessable and are owned by either the Company or one of its Subsidiaries
free and clear of all liens, charges, claims or encumbrances.
(c) There are no voting trusts or other agreements or
understandings to which the Company or any of its Subsidiaries is a party with
respect to the voting of the capital stock of the Company or any of its
Subsidiaries.
(d) None of the Company or its Subsidiaries is required to
redeem, repurchase or otherwise acquire shares of capital stock of the Company,
or any of its Subsidiaries, respectively, as a result of the transactions
contemplated by this Agreement.
Section 3.3 Authorization; Validity of Agreement; Company Action. The
Company has full corporate power and authority to execute and deliver this
<PAGE>
11
Agreement and, subject to shareholder approval, to consummate the transactions
contemplated hereby. The execution, delivery and performance by the Company of
this Agreement, and the consummation by it of the transactions contemplated
hereby, have been duly authorized by its Board of Directors and, except for
obtaining the approval of its shareholders as contemplated by Section 1.5
hereof, no other corporate action on the part of the Company is necessary to
authorize the execution and delivery by the Company of this Agreement and the
consummation by it of the transactions contemplated hereby. This Agreement has
been duly executed and delivered by the Company and, assuming due and valid
authorization, execution and delivery hereof by Mergerco, is a valid and binding
obligation of the Company enforceable against the Company in accordance with its
terms.
Section 3.4 Consents and Approvals; No Violations. Except for the
filings, permits, authorizations, consents and approvals as may be required as
set forth in Section 3.4 of the Company's Disclosure Schedule, and other
applicable requirements of the Exchange Act, the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), state securities or blue
sky laws, and the NCBCA, neither the execution, delivery or performance of this
Agreement by the Company nor the consummation by the Company of the transactions
contemplated hereby nor compliance by the Company with any of the provisions
hereof will (i) conflict with or result in any breach of any provision of the
Articles of Incorporation or the Bylaws of the Company or of any of its
Subsidiaries, (ii) require any filing with, or permit, authorization, consent or
approval of, any court, arbitral tribunal, administrative agency or commission
or other governmental or other regulatory authority or agency (a "Governmental
Entity"), (iii) result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of payment, termination, amendment, cancellation or acceleration) under,
any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, lease, license, contract, agreement or other instrument or obligation
to which the Company or any of its Subsidiaries is a party or by which any of
them or any of their properties or assets may be bound (the "Agreements") or
(iv) violate any order, writ, injunction, decree, statute, rule or regulation
applicable to the Company, any of its Subsidiaries or any of their properties or
assets, excluding from the foregoing clause (iii) such violations, breaches or
defaults which would not, individually or in the aggregate, have a material
adverse effect on the Company and its Subsidiaries, taken as a whole and which
will not materially impair the ability of the Company to consummate the
transactions contemplated hereby. Except as set forth in Section 3.4 of the
Company's Disclosure Schedule, neither the Company nor any of its Subsidiaries
is a party to or otherwise bound by any contract or agreement (whether written
or oral) providing for any severance or other payment upon or following a change
of control of the Company. Section 3.4 of the Company's Disclosure Schedule
describes in reasonable detail the nature and amount of any such severance or
other payments.
<PAGE>
12
Section 3.5 SEC Reports and Financial Statements. The Company has filed
with the SEC, and has heretofore made available to Mergerco true and complete
copies of, all forms, reports, schedules, statements and other documents
required to be filed by it since January 1, 1995 under the Exchange Act or the
Securities Act of 1933, as amended (the "Securities Act") (as such documents
have been amended since the time of their filing, collectively, the "Company SEC
Documents"). As of their respective dates or, if amended, as of the date of the
last such amendment, the Company SEC Documents, including, without limitation,
any financial statements or schedules included therein (a) did not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading and (b) complied
in all material respects with the applicable requirements of the Exchange Act
and the Securities Act, as the case may be, and the applicable rules and
regulations of the SEC thereunder. None of the Subsidiaries is required to file
any forms, reports or other documents with the SEC. The financial statements of
the Company (the "1998 Financial Statements") included in the Company's Annual
Report on Form 10K for the fiscal year ended February 1, 1998 (the "1998 10-K")
have been prepared from, and are in accordance with, the books and records of
the Company and its consolidated Subsidiaries, comply in all material respects
with applicable accounting requirements and with the published rules and
regulations of the SEC with respect thereto, have been prepared in accordance
with United States generally accepted accounting principles ("GAAP") applied on
a consistent basis during the periods involved (except as may be indicated in
the notes thereto) and fairly present the consolidated financial position and
the consolidated results of operations and cash flows of the Company and its
consolidated Subsidiaries at the dates and for the periods covered thereby. The
historical financial information contained in the financial information attached
as Section 3.5 of the Disclosure Schedule is, to the best of the knowledge of
the Company, true and correct in all material respects.
Section 3.6 Absence of Certain Changes. Except as disclosed in Section
3.6 of the Company's Disclosure Schedule, since February 1, 1998, the Company
and its Subsidiaries have conducted their respective businesses only in the
ordinary and usual course and there has not occurred (i) any events or changes
(including the incurrence of any liabilities of any nature, whether or not
accrued, contingent or otherwise) having, individually or in the aggregate, a
material adverse effect on the Company and its Subsidiaries, taken as a whole;
(ii) any declaration, setting aside or payment of any dividend or other
distribution (whether in cash, stock or property) with respect to the equity
interests of the Company or of any of its Subsidiaries; or (iii) any change by
the Company or any of its Subsidiaries in accounting principles or methods,
except insofar as may be required by a change in GAAP.
<PAGE>
13
Section 3.7 No Undisclosed Liabilities. Except (a) as disclosed in the
Company SEC Documents and (b) for liabilities and obligations as set forth in
Section 3.7 of the Company Disclosure Schedule, since February 1, 1998, neither
the Company nor any of its Subsidiaries has incurred any liabilities or
obligations of any nature, whether or not accrued, contingent or otherwise, that
have, or would be reasonably likely to have, a material adverse effect on the
Company and its Subsidiaries, taken as a whole, or, subject to the foregoing
exceptions or for liabilities or obligations incurred in the ordinary course of
business and consistent with past practice, would be required by GAAP to be
reflected on a consolidated balance sheet of the Company and its Subsidiaries
(including the notes thereto).
Section 3.8 Litigation. Except as set forth in Section 3.8 of the
Company's Disclosure Schedule, none of the Company, any of its Subsidiaries and
any of their respective properties, assets, businesses, franchises, or
governmental approvals, is subject to any pending, or, to the knowledge of the
Company, threatened, legal action, suit, arbitration or other legal or
administrative proceeding or outstanding order, writ, injunction or decree
which, insofar as can be reasonably foreseen after due inquiry, in the future
would have, individually or in the aggregate, a material adverse effect on the
Company and its Subsidiaries, taken as a whole, or a material adverse effect on
the ability of the Company to consummate the transactions contemplated hereby.
Section 3.9 Employee Benefit Plans; ERISA.
(a) Section 3.9 of the Company's Disclosure Schedule sets
forth a list of all material employee benefit plans, arrangements, contracts or
agreements (including, but not limited to, employment agreements, severance
agreements, executive compensation arrangements, equity arrangements, incentive
plans, bonus plans, deferred compensation agreements, health, accident, vacation
or other fringe benefit plans) of any type (including but not limited to plans
described in section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA")), maintained by the Company, any of its Subsidiaries
or any trade or business, whether or not incorporated (an "ERISA Affiliate"),
which together with the Company would be under "common control" within the
meaning of section 4001(a)(14) of ERISA ("Benefit Plans"). Neither the Company
nor any ERISA Affiliate has any formal plan or commitment, whether legally
binding or not, to create any additional Benefit Plan or modify or change any
existing Benefit Plan that would affect any employee or terminated employee of
the Company or any Subsidiary.
(b) With respect to each Benefit Plan: (i) if intended to
qualify under section 401(a), 401(k) or 403(a) of the Internal Revenue Code of
1986, as amended, and the rules and regulations promulgated thereunder (the
"Code"), the United States Internal Revenue Service (the "Service") has issued a
favorable letter of
<PAGE>
14
determination on such qualified status and on the exempt status under section
501(a) of the Code and since such letter of determination no event has occurred
that would disqualify such plan; (ii) such plan has been administered in all
material respects in accordance with its terms and applicable law; (iii) no
breaches of fiduciary duty have occurred which might reasonably be expected to
give rise to material liability on the part of the Company; (iv) no disputes are
pending, or, to the knowledge of the Company, threatened that might reasonably
be expected to give rise to material liability on the part of the Company; (v)
no prohibited transaction (within the meaning of Section 406 of ERISA) has
occurred that might reasonably be expected to give rise to material liability on
the part of the Company; (vi) all contributions and premiums due as of the date
hereof (taking into account any extensions for such contributions and premiums)
have been made in full; and (vii) all reports required to be filed with respect
to such Benefit Plan have been properly, accurately and timely filed.
(c) Neither the Company nor any ERISA Affiliate (a) has
incurred, or reasonably expects to incur, an accumulated funding deficiency, as
defined in the Code and ERISA or (b) has any material liability under Title IV
of ERISA with respect to any Benefit Plan that is subject to Title IV of ERISA.
(d) With respect to each Benefit Plan that is a "welfare plan"
(as defined in section 3(1) of ERISA), no such plan provides medical or death
benefits with respect to current or former employees of the Company or any of
its Subsidiaries beyond their termination of employment, other than on an
employee-pay-all basis.
(e) Except as contemplated by Section 2.5, the consummation of
the transactions contemplated by this Agreement will not (i) entitle any
individual to severance pay or accelerate the time of payment or vesting, or
increase the amount, of compensation or benefits due to any individual, (ii)
constitute or result in a prohibited transaction under section 4975 of the Code
or section 406 or 407 of ERISA or (iii) subject the Company, any of its
Subsidiaries, any ERISA Affiliate, any of the Benefit Plans, any related trust,
any trustee or administrator of any thereof, or any party dealing with the
Benefit Plans or any such trust to either a civil penalty assessed pursuant to
section 409 or 502(i) of ERISA or a tax imposed pursuant to section 4976 or
4980B of the Code.
(f) There is no arrangement under any Benefit Plan that would
result in the payment of any amount that by operation of section 280G or 162(m)
of the Code would not be deductible by the Company or any of the Subsidiaries.
(g) There are no unfunded obligations under any Benefit Plan
except to the extent of reserves therefor shown in the Company SEC Documents.
<PAGE>
15
(h) No employees of the Company or any of its Subsidiaries who
earn annual compensation in 1998 in excess of $50,000 have threatened to
terminate or are reasonably expected to terminate, their employment prior to or
after the Effective Time.
(i) Neither the Company nor any ERISA Affiliate has at any
time within the preceding six years been obligated to contribute to any Benefit
Plan that is a "multiemployer plan," as such term is defined in section 3(37) of
ERISA.
(j) With respect to each Benefit Plan, the Company has made
available to Mergerco or its representatives accurate and complete copies of all
plan texts, summary plan descriptions, summary of material modifications, trust
agreements and other related agreements including all amendments to the
foregoing; the most recent annual report; the most recent annual and periodic
accounting of plan assets; the most recent determination letter received from
the Service; and the most recent actuarial valuation, to the extent any of the
foregoing may be applicable to a particular Benefit Plan.
Section 3.10 Information in Proxy Statement. The information contained
in the Proxy Statement and the Schedule 13E-3, any amendment or supplement
thereto or any other documents filed with the SEC by the Company in connection
with the Merger, when filed with the SEC and, in case of the Proxy Statement,
when mailed to Company shareholders and at the time of the Special Meeting
(except for information supplied by Mergerco specifically for inclusion or
incorporation by reference therein, as to which no representation by the Company
is made), will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they are
made, not misleading.
Section 3.11 No Default; Compliance with Applicable Laws. The business
of the Company and each of its Subsidiaries is not being conducted in default or
violation of any term, condition or provision of (i) its respective Articles of
Incorporation or Bylaws, or (ii) any federal, state, local or foreign statute,
law, ordinance, rule, regulation, judgment, decree, order, concession, grant,
franchise, permit or license or other governmental authorization or approval
applicable to the Company or any of its Subsidiaries, excluding from the
foregoing clause (ii), defaults or violations which would not, individually or
in the aggregate, have a material adverse effect on the Company and its
Subsidiaries, taken as a whole. Except as disclosed in Section 3.11 of the
Company's Disclosure Schedule, as of the date of this Agreement, no claim or, to
the best knowledge of the Company, investigation or review by any Governmental
Entity or other entity with respect to the Company or any of its Subsidiaries is
pending or, to the best knowledge of the Company, threatened nor to the best
knowledge of the Company has any Governmental Entity or other entity indicated
<PAGE>
16
an intention to assert or conduct the same, other than, in each case, those the
outcome of which, as far as reasonably can be foreseen after due inquiry, in the
future will not, individually or in the aggregate have a material adverse effect
on the Company and its Subsidiaries, taken as a whole.
Section 3.12 Licenses; Intellectual Property. Section 3.12 of the
Company's Disclosure Schedule sets forth a list of all registered and material
unregistered Intellectual Property (as defined below) owned by the Company and
used in the conduct of its business and all agreements granting any right to use
or practice any right relating to the Intellectual Property (as defined below)
currently used in the conduct of the Company's business (the "Licenses"). Except
as set forth in Section 3.12 of the Company's Disclosure Schedule, (i) the
Company or its Subsidiaries is the sole owner of all of its rights under the
Licenses free and clear of any liens, claims, encumbrances or interests; (ii)
the Company or its Subsidiaries is the sole owner of, or has a valid right to
use pursuant to a License, all patents and patent applications; registered and
unregistered trademarks, service marks, trade names, trade dress, logos, company
names and other source or business identifiers, including all goodwill
associated therewith; the names, likenesses and other attributes of individuals;
registered and unregistered copyrights, computer programs and databases; trade
secrets, inventions, discoveries, proprietary technology, know-how, industrial
designs, customer lists and other confidential information ("Trade Secrets");
any pending applications for any of the foregoing (collectively, the
"Intellectual Property") currently used in the conduct of the Company's
business, free and clear of any liens, claims, encumbrances or interests; (iii)
to the Company's best knowledge the present or past operations of the Company or
the Subsidiaries does not infringe upon, violate, interfere or conflict with the
rights of others with respect to any Intellectual Property and no claim is
pending or, to the Company's best knowledge, threatened, to this effect; (iv)
none of the Intellectual Property currently used is invalid or unenforceable, or
has not been used or enforced or has failed to be used or enforced in a manner
that would result in the abandonment, cancellation or unenforceability of any of
the Intellectual Property and no claim is pending or, to the Company's best
knowledge, threatened, to this effect; (v) no License provision or any other
contract, agreement or understanding to which the Company or any Subsidiary is a
party would prevent the continued use by the Company or the Subsidiaries (as
currently used by the Company or its Subsidiaries) of any Intellectual Property
following the consummation of the transactions contemplated hereby; (vi) to the
Company's best knowledge, no person is infringing upon or otherwise violating
any Intellectual Property or License; (vii) there are no claims pending or, to
the Company's best knowledge, threatened in connection with any License; and
(viii) to the Company's best knowledge, no Trade Secret has been disclosed by
the Company or its Subsidiaries to any third party except subject to an
appropriate confidentiality agreement or as required by a governmental
authority.
<PAGE>
17
Section 3.13 Taxes. (a) Except as set forth in Section 3.13 of the
Company's Disclosure Schedule:
(i) the Company and its Subsidiaries have (w) duly
filed (or there have been filed on their behalf) with the Service all
United States federal income Tax Returns (as hereinafter defined)
required to be filed by them on or prior to the date hereof, such Tax
Returns are true, correct and complete in all material respects (or the
financial statements contain an adequate charge, accrual or reserve for
taxes in respect of such tax returns), and all Taxes (as hereinafter
defined) shown on such Tax Returns have been duly paid, (x) duly filed
(or there have been filed on their behalf) with the appropriate
governmental authorities all other Tax Returns required to be filed by
them on or prior to the date hereof, other than any filings which the
failure to make in a timely manner would not, whether singly or in the
aggregate, have a material adverse effect on the Company and its
Subsidiaries taken as a whole, such Tax Returns are true, correct and
complete in all material respects (or the financial statements contain
an adequate charge, accrual or reserve for taxes in respect of such tax
returns), and all Taxes shown on such Tax Returns and all other Taxes
due or claimed to be due, whether by proposed assessment or otherwise,
by any governmental authority have been duly paid, except for such
Taxes, if any, as are being contested in good faith and as to which
adequate reserves have been provided in accordance with GAAP and (y)
duly made provision in accordance with GAAP for all Taxes for all
periods for which Tax Returns have not yet been filed or with respect
to which Taxes are not yet due;
(ii) there are no liens for Taxes upon any property
or assets of the Company or any Subsidiary thereof, except for liens
for Taxes not yet due;
(iii) neither the Company nor any of its Subsidiaries
has made any change in accounting methods, there is no application
pending with any taxing authority requesting permission for any change
in any accounting method of any of the Company or its Subsidiaries and
no taxing authority has proposed any adjustment or change in accounting
method, and neither the Company nor any of its Subsidiaries has
received a ruling from any taxing authority or signed an agreement
likely to have a material adverse effect on the Company and its
Subsidiaries, taken as a whole;
(iv) the Company and its Subsidiaries have complied
in all respects with all applicable laws, rules and regulations
relating to the payment and withholding of Taxes (including, without
limitation, withholding of Taxes pursuant to Sections 1441 and 1442 of
the Code or similar provisions under any foreign laws) and have, within
the time and the manner prescribed by
<PAGE>
18
law, withheld from employee wages and other compensation and paid over
to the proper governmental authorities all amounts required to be so
withheld and paid over under applicable laws;
(v) no federal, state, local or foreign audits or
other administrative proceedings or court proceedings are presently
pending with regard to any Taxes or Tax Returns of the Company or its
Subsidiaries and neither the Company nor its Subsidiaries has received
notice that such an audit or proceedings may be commenced;
(vi) the Federal Income Tax Returns of or with
respect to each of the Company and its Subsidiaries have been examined
by the Service (or the applicable statutes of limitation for the
assessment of Taxes for such periods have expired) for all periods
through and including January 31, 1994 (except for the returns of
American Studios, Inc., which have been examined through December 31,
1991), and no deficiencies were asserted as a result of such
examinations which have not been resolved and fully paid;
(vii) there are no outstanding requests, agreements,
consents or waivers to extend the statutory period of limitations
applicable to the assessment or collection of any Taxes or deficiencies
against the Company or any of its Subsidiaries, and no power of
attorney granted by either the Company or any of its Subsidiaries with
respect to any Taxes is currently in force;
(viii) neither the Company nor any of its
Subsidiaries is a party to, is bound by or has any obligation under any
agreement providing for the allocation or sharing of Taxes and neither
the Company nor any of its Subsidiaries has any liability for Taxes of
any person or entity other than the Company and its Subsidiaries;
(ix) neither the Company nor its Subsidiaries is a
party to any agreement, contract or arrangement that could result,
separately or in the aggregate, in the payment of any "excess parachute
payments" within the meaning of Section 280G of the Code, and none of
the actions contemplated or permitted by this Agreement will result in
any such payments;
(x) neither the Company nor any of its Subsidiaries
has, with regard to any assets or property held, acquired or to be
acquired by any of them, filed a consent to the application of Section
341(f) of the Code, or agreed to have Section 341(f)(2) of the Code
apply to any disposition of a subsection (f) asset (as such term is
defined in Section 341(f)(4) of the Code);
<PAGE>
19
(xi) the deductibility of compensation by the Company
and/or its Subsidiaries will not be limited by Section 162(m) of the
Code;
(xii) all transactions that could give rise to an
understatement of the federal income tax liability of the Company or
any of its Subsidiaries within the meaning of Section 6662(d) of the
Code are adequately disclosed on Tax Returns in accordance with Section
6662(d)(2)(B) of the Code if there is or was no substantial authority
for the treatment giving rise to such understatement;
(xiii) no closing agreement that could affect the
Taxes of the Company or any of its Subsidiaries for periods ending
after the Closing Date pursuant to Section 7121 of the Code or any
similar provision of any state, local or foreign law has been entered
into by or with respect to any of the Company or its Subsidiaries;
(xiv) no currently effective Federal Income Tax
elections have been made or filed by or with respect to the Company or
any of its Subsidiaries;
(xv) none of the assets of the Company or any of its
Subsidiaries are assets or property that are or will be required to be
treated as being: (a) owned by another person pursuant to the
provisions of Section 168(f)(8) of the Internal Revenue Code of 1954
(as in effect immediately before the enactment of the Tax Reform Act of
1986); (b) "tax-exempt use property" within the meaning of Section
168(h)(1) of the Code; (c) property used predominantly outside the
United States within the meaning of Proposed Treasury Regulation
Section 1.168-2(g)(5) or (d) "tax-exempt bond financed property" within
the meaning of Section 168(g)(5) of the Code; and
(xvi) all adjustments to Federal taxable income
required to have been reported to any state or local taxing authority
have been so reported.
(b) The net operating loss and credit carryovers available to
the Company and its Subsidiaries are set forth in Section 3.13 of the Company's
Disclosure Schedule. Except as set forth in Section 3.13 of the Company's
Disclosure Schedule, as of the date of this Agreement, the net loss and credit
carryovers are not subject to limitations imposed by Sections 382, 383 or 384 of
the Code (or any predecessor thereto), the consolidated return regulations or
otherwise.
<PAGE>
20
(c) "Taxes" shall mean any and all taxes, charges, fees,
levies or other assessments, including, without limitation, income, gross
receipts, estimated, excise, real or personal property, sales, withholding,
social security, occupation, use, service, license, net worth, payroll,
franchise, transfer and recording taxes, fees and charges, imposed by the
Service or any taxing authority (whether domestic or foreign including, without
limitation, any state, county, local or foreign government or any subdivision or
taxing agency thereof (including a United States possession)), whether computed
on a separate, consolidated, unitary, combined or any other basis; and such term
shall include any interest whether paid or received, fines, penalties or
additional amounts attributable to, or imposed upon, or with respect to, any
such taxes, charges, fees, levies or other assessments. "Tax Return" shall mean
any report, return, document, declaration or other information or filing
required to be supplied to any taxing authority or Jurisdiction (foreign or
domestic) with respect to Taxes, including, without limitation, information
returns, any documents with respect to or accompanying payments of estimated
Taxes, or with respect to or accompanying requests for the extension of time in
which to file any such report, return, document, declaration or other
information.
Section 3.14 Insurance. As of the date hereof, the Company and each of
its Subsidiaries are insured by insurers of recognized financial responsibility
and solvency, against such losses and risks and in such amounts as are customary
in the businesses in which they are engaged. All material policies of insurance
and fidelity or surety bonds insuring the Company or any of its Subsidiaries or
their respective businesses, assets, employees, officers and directors have
previously been made available for inspection by Mergerco and are in full force
and effect. Section 3.14 of the Company's Disclosure Schedule describes all
self-insurance arrangements affecting the Company or any Subsidiary and the
aggregate amount of all claims made under such arrangements since January 1,
1994. As of the date hereof, there are no material claims by the Company or any
Subsidiary under any such policy or instrument as to which any insurance company
is denying liability or defending under a reservation of rights clause. To the
Company's best knowledge, all necessary notifications of claims have been made
to insurance carriers other than those which will not have a material adverse
effect on the Company and its Subsidiaries, taken as a whole.
Section 3.15 Contracts. Each Agreement (as defined in Section 3.4) is
legally valid and binding against the Company or its Subsidiaries and, to the
Company's best knowledge, each other party thereto and in full force and effect,
except where failure to be legally valid and binding and in full force and
effect would not, individually or in the aggregate, have a material adverse
effect on the Company and its Subsidiaries, taken as a whole, and there are no
material defaults thereunder by the Company or its Subsidiaries and, to the
Company's best knowledge, any other party thereto, except those defaults that
would not have a material adverse effect on the Company and its Subsidiaries,
taken as a whole. The Company has previously made
<PAGE>
21
available for inspection by Mergerco or its representatives all material
Agreements. Each of the Agreements set forth on section 3.15 of the Company's
Disclosure Schedule (the "Material Agreements") is legally valid and binding
against the Company or its Subsidiaries and, to the Company's best knowledge,
each other party thereto and in full force and effect, and there are no material
defaults thereunder by the Company or its Subsidiaries and, to the Company's
best knowledge, any other party thereto. The Company has delivered to Mergerco
true and complete copies of all Material Agreements. (a) No party to any of the
Material Agreements within the last twelve months has threatened to modify,
cancel or otherwise terminate, or to the Company's best knowledge, intends to
modify, cancel or otherwise terminate, any of the Material Agreements or the
relationship evidenced thereby and (b) no such party has during the last twelve
months materially limited or, to the Company's best knowledge, intends to
materially limit the services or supplies provided by it to the Company or any
of its Subsidiaries, or by the Company or any of its Subsidiaries to it.
Section 3.16 Related Party Transactions. Except as set forth in Section
3.16 of the Company's Disclosure Schedule or in the Company SEC Reports, no
director, officer, partner, employee, "affiliate" or "associate" (as such terms
are defined in Rule 12b-2 under the Exchange Act) of the Company or any of its
Subsidiaries (i) has borrowed money from or has outstanding any indebtedness or
other similar obligations to the Company or any of its Subsidiaries; (ii) to the
best knowledge of the Company, owns any direct or indirect interest of any kind
in, or is a director, officer, employee, affiliate or associate of, or
consultant or lender to, or borrower from, or has the right to participate in
the management, operations or profits of, any person or entity which is (x) a
competitor, supplier, customer, distributor, lessor, tenant, creditor or debtor
of the Company or any of its Subsidiaries, (y) engaged in a business related to
the business of the Company or any of its Subsidiaries or (z) participating in
any transaction to which the Company or any of its Subsidiaries is a party or
(iii) is otherwise a party to any contract, arrangement or understanding with
the Company or any of its Subsidiaries.
Section 3.17 Real Property.
(a) The Company is the owner of good, marketable and insurable
fee title to the parcels of land described in Section 3.17 of the Company's
Disclosure Schedule and to all of the buildings and other improvements located
thereon (collectively, the "Owned Real Property") free and clear of all Title
Defects (as hereinafter defined) except for the matters listed in Section 3.17
of the Company's Disclosure Schedule or encumbrances that do not, individually
or in the aggregate (i) interfere in any material respect with the use and
occupancy of the Owned Real Property as currently used and occupied or (ii)
materially reduce the fair market value of the Owned Real Property below the
fair market value the Owned Real Property would have had but for such
encumbrances. The Owned Real Property constitutes all of
<PAGE>
22
the real property owned by the Company on the date hereof. As used in this
Agreement, "Title Defects" shall mean and include any mortgage, deed of trust,
lien, pledge, security interest, claim, lease, option, right of first refusal,
easement, restrictive covenant, encroachment or other survey defect, encumbrance
or other restriction or limitation whatsoever.
(b) The Company does not own or hold, and is not obligated
under or a party to, any option, right of first refusal or other contractual
right to purchase, acquire, sell or dispose of the Owned Real Property or any
portion thereof or any other real property, or interest therein.
(c) The Owned Real Property is in full compliance with all
applicable building, zoning, subdivision, environmental and other land use and
similar laws, codes, regulations and orders of governmental authorities, except
where the failure to be in such compliance will not have a material adverse
effect on the Company and its Subsidiaries, taken as a whole.
(d) The Company has not received notice and has no knowledge
of any pending, threatened or contemplated condemnation proceeding affecting the
Owned Real Property or any part thereof or of any sale or other disposi tion of
the Owned Real Property or any part thereof in lieu of condemnation.
Section 3.18 Vote Required. The affirmative vote of the holders of a
majority of the outstanding Shares is the only vote of the holders of any class
or series of the Company's capital stock necessary to approve the Merger, this
Agreement and the transactions contemplated thereby and hereby.
Section 3.19 Environmental Matters. Except as set forth on Section 3.19
of the Company's Disclosure Schedule, the Company (a) is and has been for the
past five years in compliance in all material respects with all applicable
Safety and Environmental Laws; (b) there is no Environmental Claim pending, or,
to the knowledge of the Company, threatened, against the Company, and there is
no civil, criminal or administrative judgment, order or notice of violation
extant against the Company pursuant to Safety and Environmental Laws or
principles of common law relating to pollution, protection of the Environment or
health and safety; and (c) there are no past or present events, conditions,
circumstances, activities, practices, incidents, agreements, actions or plans
which may prevent material compliance by the Company with Environmental Laws, or
which have given rise to, or which are reasonably likely to give rise to, an
Environmental Claim or to Environmental Compliance Costs in which the liability
to the Company is reasonably likely to exceed $100,000. For purposes of this
Section 3.19:
<PAGE>
23
(a) "Environment" means navigable waters, waters of the
contiguous zone, ocean waters, natural resources, surface waters, ground water,
drinking water supply, land surface, subsurface strata, ambient air, both inside
and outside of buildings and structures, man-made buildings and structures, and
plant and animal life on earth;
(b) "Environment Claims" means any notification, whether
direct or indirect, formal or informal, written or oral, pursuant to Safety and
Environmental Laws or principles of common law relating to pollution, protection
of the Environment or health and safety, that any of the current or past
operations of the Company or any of its Subsidiaries, or any by-product thereof,
or any of the property currently or formerly owned, leased or operated by the
Company or any of its Subsidiaries, or the operations or property of any
predecessor of the Company or any of its Subsidiaries is or may be implicated in
or subject to any claim, order, demand, hearing, notice, lawsuit, agreement or
evaluation by any Governmental Entity or any other person;
(c) "Environmental Compliance Costs" means any expenditures,
costs, assessments or expenses (including any expenditures, costs, assessments
or expenses in connection with the conduct of any Remedial Action, as well as
reasonable fees, disbursements and expenses of attorneys, experts, personnel and
consultants), whether direct or indirect, necessary to cause the operations,
real property, assets, equipment or facilities owned, leased, operated or used
by the Company or any of its Subsidiaries to be in compliance with any and all
requirements, as in effect at the Closing Date, of Safety and Environmental
Laws, principles of common law concerning pollution, protection of the
Environment or health and safety, or permits issued pursuant to Safety and
Environmental Laws; provided, however, that Environmental Compliance Costs do
not include expenditures, costs, assessments or expenses necessary in connection
with normal maintenance of such real property, assets, equipment or facilities
or the replacement of equipment in the normal course of events due to ordinary
wear and tear;
(d) "Hazardous Substance" means any toxic waste, pollutant,
contaminant, hazardous substance, toxic substance, hazardous waste, special
waste, industrial substance or waste, petroleum or petroleum-derived substance
or waste, radioactive substance or waste, or any constituent of any such
substance or waste, or any other substance regulated under or defined by any
Safety and Environmental Law;
(e) "Release" means any release, spill, emission, leaking,
pumping, injection, deposit, discharge, dispersal, leaching or migration into or
through the indoor or outdoor Environment or into, through or out of any
property, including the movement of Hazardous Substances through or in the air,
soil, surface water, ground water or property;
<PAGE>
24
(f) "Remedial Action" means all actions, whether voluntary or
involuntary, reasonably necessary to comply with, or discharge any obligation
under, Safety and Environmental Laws to (i) clean up, remove, treat, cover or in
any other way adjust Hazardous Substances in the indoor or outdoor Environment;
(ii) prevent or control the Release of Hazardous Substances so that they do not
migrate or endanger or threaten to endanger public health or welfare or the
Environment; or (iii) perform remedial studies, investigations, restoration and
post-remedial studies, investigations and monitoring on, about or in any real
property;
(g) "Safety and Environmental Claim" means any claims based
upon, arising out of or otherwise in respect of any inaccuracy in or any breach
of any representation or warranty of the Sellers contained in this Agreement or
in any Document delivered pursuant to this Agreement related to Safety and
Environmental Laws; and
(h) "Safety and Environmental Law" means all laws, statutes,
codes, ordinances, regulations or other requirements and orders, judgments,
awards, decrees or writs relating to pollution, protection of the Environment,
public or worker health and safety, or the emission, discharge, release or
threatened release of Hazardous Substances into the Environment or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Substances.
Section 3.20 Year 2000. The Company has developed and implemented a
program to address, on a timely basis, the "Year 2000 Problem" (that is, the
risk that computer applications used by the Company may be unable to recognize
and perform properly date-sensitive functions involving certain dates prior to
and any date after December 31, 1999) and reasonably anticipates that it will,
on a timely basis, successfully resolve the Year 2000 Problem for all material
computer applications used by the Company.
Section 3.21 Fairness Opinion. The Company has received a fairness
opinion from Needham & Company in the form attached as Section 3.21 to the
Disclosure Schedule.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF
MERGERCO
Mergerco represents and warrants to the Company as follows:
<PAGE>
25
Section 4.1 Organization. Mergerco is a corporation duly organized,
validly existing and in good standing under the laws of North Carolina and has
all requisite corporate or other power and authority and all necessary
governmental approvals to own, lease and operate its properties and to carry on
its business as now being conducted, except where the failure to be so
organized, existing and in good standing or to have such power, authority, and
governmental approvals would not have a material adverse effect on Mergerco.
Mergerco is duly qualified or licensed to do business and in good standing in
each jurisdiction in which the property owned, leased or operated by it or the
nature of the business conducted by it makes such qualification or licensing
necessary, except where the failure to be so duly qualified or licensed and in
good standing would not, in the aggregate, have a material adverse effect on
Mergerco.
Section 4.2 Capitalization. The authorized capital stock of Mergerco
will, immediately prior to the Effective Time, consist of (i) 10,000,000 shares
of Mergerco Common Stock, of which there will be 1,905,661 shares outstanding.
All outstanding shares of capital stock of Mergerco will at such time be duly
authorized and validly issued and fully paid and nonassessable. As soon as
practicable after the Effective Time, the Company shall issue to Jupiter
Partners II L.P. ("Jupiter"), and Jupiter shall purchase from the Company, for
cash consideration of $26.50 per share, a number of Shares of the Company equal
to (i) the amount, if any, of equity provided by Jupiter to Mergerco or the
Company pursuant to Section 4.7(a) in excess of $50,500,000, divided by (ii)
$26.50.
Section 4.3 Authorization; Validity of Agreement; Necessary Action.
Mergerco has full corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The execution,
delivery and performance by Mergerco of this Agreement, and the consummation of
the Merger and of the transactions contemplated hereby have been duly authorized
by the Board of Directors of Mergerco and by the sole stockholder of Mergerco
and no other corporate action on the part of Mergerco is necessary to authorize
the execution and delivery by Mergerco of this Agreement and the consummation of
the transactions contemplated hereby. This Agreement has been duly executed and
delivered by Mergerco, as the case may be, and, assuming due and valid
authorization, execution and delivery hereof by the Company, is a valid and
binding obligation of Mergerco, as the case may be, enforceable against it in
accordance with its terms.
Section 4.4 Consents and Approvals: No Violation. Except for filings,
permits, authorizations, consents and approvals as may be required under, and
other applicable requirements of, the Exchange Act, the HSR Act, state
securities or blue sky laws and the NCBCA, neither the execution, delivery or
performance of this Agreement by Mergerco nor the consummation by Mergerco of
the transactions contemplated hereby nor compliance by Mergerco with any of the
provisions hereof
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26
will (i) conflict with or result in any breach of any provision of the articles
of incorporation or by-laws of Mergerco, (ii) require any filing with, or
permit, authorization, consent or approval of, any Governmental Entity, (iii)
result in a violation or breach of, or constitute (with or without due notice or
lapse of time or both) a default (or give rise to any right of termination,
cancellation or acceleration) under, any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, lease, license, contract, agreement or
other instrument or obligation to which Mergerco is a party or by which it or
any of its properties or assets may be bound or (iv) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to Mergerco or any of
its properties or assets, excluding from the foregoing clause (iii) such
violations, breaches or defaults which would not, individually or in the
aggregate, have a material adverse effect on Mergerco and will not materially
impair the ability of Mergerco to consummate the transactions contemplated
hereby.
Section 4.5 Information in Proxy Statement. None of the information
supplied by Mergerco specifically for inclusion or incorporation by reference in
the Proxy Statement will, at the date mailed to shareholders and at the time of
the Special Meeting, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they are
made, not misleading.
Section 4.6 Litigation. Mergerco is not subject to any outstanding
order, writ, injunction or decree which, insofar as can be reasonably foreseen
after due inquiry, would have a material adverse effect on the ability of
Mergerco to consummate the transactions contemplated hereby.
Section 4.7 Financing Commitment. (a) Jupiter will provide to Mergerco
not less than $50.5 million and not more than $54.3 million (including the
amount to purchase additional Shares pursuant to Section 4.2 herein) in equity
to consummate the Merger, pay the Cash Merger Consideration and pay the related
transaction expenses.
(b) Jupiter has entered into commitment letters (the
"Commitment Letters") for $127 million in senior debt financing and for $100
million of senior subordinated debt financing (collectively, the "Financing").
Such Financing, together with the amount referred to in paragraph (a) above, is
adequate to pay in full in cash at closing the Cash Merger Consideration,
together with all fees and expenses of Mergerco associated with the transactions
contemplated hereby, and to make any other payments necessary to consummate the
transactions contemplated hereby, including refinancing any debt required to be
refinanced. True and correct copies of the Commitment Letters have been
furnished to the Company. Neither Mergerco, Jupiter nor their affiliates will
terminate, amend or modify in any respect the Commitment Letters or in a manner
which will adversely affect the probability that
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27
such financing will be actually funded, or the timing thereof, without the prior
written consent of the Company. Jupiter has fully paid any and all commitment
fees or other fees required by such Commitment Letters to be paid as of the date
hereof (and will duly pay any such fees due after the date hereof). The
Commitment Letters are valid and in full force and effect and no event has
occurred which (with or without notice, lapse of time or both) would constitute
a default on the part of Jupiter or Mergerco thereunder.
Section 4.8 Fraudulent Conveyance. Assuming the accuracy of the
representations and warranties of the Company in this Agreement, Mergerco has no
reason to believe that the financing to be provided to effect the Merger will
cause (i) the fair salable value of the Surviving Corporation's assets to be
less than the total amount of its existing liabilities, (ii) the fair salable
value of the assets of the Surviving Corporation to be less than the amount that
will be required to pay its probable liabilities on its existing debts as they
mature, (iii) the Surviving Corporation not to be able to pay its existing debts
as they mature or (iv) the Surviving Corporation to have an unreasonably small
capital with which to engage in its business.
ARTICLE V
COVENANTS
Section 5.1 Interim Operations of the Company. The Company covenants
and agrees that, except (i) as expressly contemplated by this Agreement, (ii) as
set forth in Section 5.1 of the Company's Disclosure Schedule or (iii) as agreed
in writing by Mergerco, after the date hereof, and prior to the Effective Time:
(a) the business of the Company and its Subsidiaries shall be
conducted only in the ordinary and usual course and, to the extent consistent
therewith, each of the Company and its Subsidiaries shall use its commercially
reasonable best efforts to preserve its business organization intact and
maintain its existing relations with material customers and suppliers, key
employees, material creditors and business partners (including, without
limitation, those party to the Material Agreements);
(b) the Company will not, directly or indirectly, (i) sell,
transfer or pledge or agree to sell, transfer or pledge any of the Shares,
Preferred Stock, or capital stock of it or of any of its Subsidiaries
beneficially owned by it; (ii) amend its Articles of Incorporation or Bylaws or
similar organizational documents; or (iii) split, combine or reclassify the
outstanding Shares or Preferred Stock, or any outstanding capital stock of any
of the Subsidiaries of the Company;
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28
(c) neither the Company nor any of its Subsidiaries shall: (i)
declare, set aside or pay any dividend or other distribution payable in cash,
stock or property with respect to its capital stock; (ii) issue, sell, pledge,
dispose of or encumber any additional shares of, or securities convertible into
or exchangeable for, or options, warrants, calls, commitments or rights of any
kind to acquire any shares of, capital stock of any class of the Company or its
Subsidiaries, other than shares reserved for issuance on the date hereof
pursuant to the exercise of Options outstanding on the date hereof; (iii)
transfer, lease, license, sell, mortgage, pledge, dispose of, or encumber any
material assets other than in the ordinary and usual course of business and
consistent with past practice, or incur or modify any material indebtedness or
other liability; or (iv) redeem, purchase or otherwise acquire directly or
indirectly any of its capital stock;
(d) neither the Company nor any of its Subsidiaries shall: (i)
grant any increase in the compensation payable or to become payable by the
Company or any of its Subsidiaries to any of its executive officers or key
employees; (ii) (A) adopt any new, or (B) amend or otherwise increase, or
accelerate the payment or vesting of the amounts payable or to become payable
under any existing, bonus, incentive compensation, deferred compensation,
severance, profit sharing, stock option, stock purchase, insurance, pension,
retirement or other employee benefit plan agreement or arrangement; or (iii)
enter into any employment or severance agreement with or, except in accordance
with the existing written policies of the Company, grant any severance or
termination pay to, any officer, director or employee of the Company or any its
Subsidiaries;
(e) neither the Company nor any of its Subsidiaries shall
modify, amend or terminate any of its material Agreements or waive, release or
assign any material rights or claims thereunder;
(f) neither the Company nor any of its Subsidiaries shall
permit any material insurance policy naming it as a beneficiary or a loss
payable payee to be canceled or terminated without notice to Mergerco, and the
Company shall use its reasonable commercial best efforts to maintain all such
policies;
(g) neither the Company nor any of its Subsidiaries shall: (i)
incur or assume any long-term debt or any short-term indebtedness other than
normal borrowings under the Company's existing revolving credit facility; (ii)
assume, guarantee, endorse or otherwise become liable or responsible (whether
directly, contingently or otherwise) for the obligations of any other person,
except in the ordinary course of business and consistent with past practice;
(iii) make any loans, advances or capital contributions to, or investments in,
any other person (other than to wholly owned Subsidiaries of the Company or
customary expense advances to employees in accordance with past practice); or
(iv) enter into any material commitment
<PAGE>
29
or transaction (including, but not limited to, any material borrowing, capital
expenditure or purchase, sale or lease of assets or real estate);
(h) neither the Company nor any of its Subsidiaries shall
change any of the accounting methods used by it unless required by GAAP;
(i) neither the Company nor any of its Subsidiaries shall pay,
discharge or satisfy any claims, liabilities or obligations (absolute, accrued,
asserted or unasserted, contingent or otherwise), other than the payment,
discharge or satisfaction of any such claims, liabilities or obligations
reflected or reserved against in, or contemplated by, the consolidated financial
statements (or the notes thereto) of the Company and its consolidated
Subsidiaries or those incurred in the ordinary course of business subsequent to
the date of such financial statements;
(j) neither the Company nor any of its Subsidiaries will adopt
a plan of complete or partial liquidation, dissolution, merger, consolidation,
restructuring, recapitalization or other reorganization of the Company or any of
its Subsidiaries (other than the Merger);
(k) neither the Company nor any of its Subsidiaries will take,
or agree to commit to take, any action that would make any representation or
warranty of the Company contained herein, in the case of any representation or
warranty not qualified by materiality, materially inaccurate or, in the case of
any other representation or warranty, inaccurate in any respect at, or as of any
time prior to, the Effective Time in each case without regard to any knowledge
qualification; and
(l) neither the Company nor any of its Subsidiaries will enter
into an agreement, contract, commitment or arrangement to do any of the
foregoing, or to authorize, recommend, propose or announce an intention to do
any of the foregoing.
Section 5.2 Access; Confidentiality. Upon reasonable notice, the
Company shall (and shall cause each of its Subsidiaries to) afford to the
officers, employees, accountants, counsel, financing sources and other
representatives of Mergerco, access, during normal business hours during the
period prior to the Effective Time, to all its properties, books, contracts,
commitments and records and, during such period, the Company shall (and shall
cause each of its Subsidiaries to) furnish promptly to Mergerco (a) a copy of
each report, schedule, registration statement and other document filed or
received by it during such period pursuant to the requirements of federal
securities laws, (b) all interim management reports, financial statements or
similar documents or information prepared by the Company, and (c) all other
information concerning its business, properties and personnel as Mergerco may
reasonably request. Unless otherwise required by law and until the Effective
Time, Mergerco will hold and will cause any Representative, as defined in the
Confidentiality
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30
Agreement, dated April 18, 1997 between the Company and Mergerco to hold any
such information which is nonpublic in confidence pursuant to the terms of such
Confidentiality Agreement.
Section 5.3 Consents and Approvals. (a) Each of the Company and
Mergerco will take all reasonable actions necessary to comply promptly with all
legal requirements which may be imposed on it with respect to this Agreement and
the transactions contemplated hereby (which actions shall include, without
limitation, furnishing all information required under the HSR Act and in
connection with approvals of or filings with any other Governmental Entity) and
will promptly cooperate with and furnish information (except that Mergerco shall
have no obligation to share any information filed by it under the HSR Act with
the Company other than information relating to its businesses in industries
within the same SIC codes as the Company) to each other in connection with any
such requirements imposed upon any of them or any of their Subsidiaries in
connection with this Agreement and the transactions contemplated hereby. Each of
the Company and Mergerco will, and will cause its Subsidiaries to, take all
reasonable actions necessary to obtain (and will cooperate with each other in
obtaining) any consent, authorization, order or approval of, or any exemption
by, any Governmental Entity or other public or private third party required to
be obtained or made by Mergerco, the Company or any of their Subsidiaries in
connection with the Merger or the taking of any action contemplated thereby or
by this Agreement.
(b) The Company and Mergerco shall take all reasonable actions
necessary to file as soon as practicable notifications under the HSR Act and to
respond as promptly as practicable to any inquiries received from the Federal
Trade Commission and the Antitrust Division of the Department of Justice for
additional information or documentation and to respond as promptly as
practicable to all inquiries and requests received from any State Attorney
General or other Governmental Entity in connection with antitrust matters.
Section 5.4 No Solicitation. Neither the Company nor any of its
Subsidiaries or affiliates shall (and the Company shall use its best efforts to
cause its officers, directors, employees, representatives and agents, including,
but not limited to, investment bankers, attorneys and accountants, not to),
directly or indirectly, encourage, solicit, participate in or initiate
discussions or negotiations with, or provide any information to, any
corporation, partnership, person or other entity or group (other than Mergerco,
any of its affiliates or representatives) concerning any merger, tender offer,
exchange offer, sale of assets, sale of shares of capital stock or debt
securities or similar transactions involving the Company or any Subsidiary,
division or operating or principal business unit of the Company (an "Acquisition
Proposal"). The Company will immediately cease any existing activities,
discussions or negotiations with any parties conducted heretofore with respect
to any of the foregoing. Notwithstanding the
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31
foregoing, the Company may furnish information concerning its business,
properties or assets to any corporation, partnership, person or other entity or
group pursuant to appropriate confidentiality agreements, and may negotiate and
participate in discussions and negotiations with such entity or group concerning
an Acquisition Proposal (x) if such entity or group has on an unsolicited basis
submitted a bona fide written proposal to the Board of Directors of the Company
relating to any such transaction which the Board of Directors determines (based
upon the advice of independent investment bankers for the Company) represents a
superior transaction to the Merger for the shareholders of the Company, and (y)
if the Board of Directors of the Company determines, only after receipt of
advice from independent legal counsel to the Company and firm, that the failure
to provide such information or access or to engage in such discussions or
negotiations would cause the Board of Directors to violate its fiduciary duties
to the Company's shareholders under applicable law. The Company shall
immediately (in any event within 24 hours) communicate to Mergerco the terms of
any proposal, discussion, negotiation or inquiry (and will disclose any written
materials received by the Company in connection with such proposal, discussion,
negotiation or inquiry) and the identity of the party making such proposal or
inquiry which it may receive in respect of any such transaction.
Section 5.5 Brokers or Finders. The Company represents, as to itself,
its Subsidiaries and its affiliates, that, except as set forth in Section 5.5 of
the Company's Disclosure Schedule, no agent, broker, investment banker,
financial advisor or other firm or person is or will be entitled to any broker's
or finder's fee or any other commission or similar fee in connection with any of
the transactions contemplated by this Agreement and the Company agrees to
indemnify and hold Mergerco harmless from and against any and all claims,
liabilities or obligations with respect to any other fees, commissions or
expenses asserted by any person on the. basis of any act or statement alleged to
have been made by the Company or its affiliates. The expenses of the Company in
connection with the transactions contemplated by this Agreement, including the
fees and expenses of attorneys, accountants, investment bankers, financial
advisors or similar agents or reasonable estimates thereof, are set forth in
Section 5.5 of the Company's Disclosure Schedule.
Section 5.6 Additional Agreements. Subject to the terms and conditions
herein provided, each of the parties hereto shall use all reasonable efforts to
take, or cause to be taken, all action and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations, or
to remove any injunctions or other impediments or delays, legal or otherwise, to
consummate and make effective the Merger and the other transactions contemplated
by this Agreement. In case at any time after the Effective Time any further
action is necessary or desirable to carry out the purposes of this Agreement the
proper officers and directors of Mergerco shall use all reasonable efforts to
take, or cause to be taken, all such necessary actions.
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32
Section 5.7 Publicity. The initial press release with respect to the
execution of this Agreement shall be a joint press release acceptable to
Mergerco and the Company. Thereafter, so long as this Agreement is in effect,
neither the Company, Mergerco nor any of their respective affiliates shall issue
or cause the publication of any press release or other announcement with respect
to the Merger, this Agreement or the other transactions contemplated hereby
without the prior consultation of the other party, except as may be required by
law or by any listing agreement with a national securities exchange or trading
market.
Section 5.8 Notification of Certain Matters. The Company shall give
prompt notice to Mergerco and Mergerco shall give prompt notice to the Company,
of (i) the occurrence or non-occurrence of any event the occurrence or
non-occurrence of which would cause any representation or warranty contained in
this Agreement to be untrue or inaccurate in any material respect at or prior to
the Effective Time and (ii) any material failure of the Company, or Mergerco, as
the case may be, to comply with or satisfy any covenant, condition or agreement
to be complied with or satisfied by it hereunder; provided, however, that the
delivery of any notice pursuant to this Section 5.8 shall not limit or otherwise
affect the remedies available hereunder to the party receiving such notice.
Section 5.9 Directors' and Officers' Insurance and Indemnification. (a)
After the Effective Time the Surviving Corporation (or any successor to the
Surviving Corporation) shall indemnify, defend and hold harmless the present and
former officers and directors of the Company and its Subsidiaries (each an
"Indemnified Party") against all losses, claims, damages, liabilities, fees and
expenses (including reasonable fees and disbursements of counsel and judgments,
fines, losses, claims, liabilities and amounts paid in settlement (provided that
any such settlement is effected with the written consent of the Surviving
Corporation, such consent not to be unreasonably withheld)) arising out of
actions or omissions occurring at or prior to the Effective Time to the full
extent permitted under North Carolina law, such right to include advancement of
expenses incurred in the defense of any action or suit; provided that any
determination required to be made with respect to whether such Indemnified Party
is entitled to indemnity hereunder (including without limitation whether, with
respect to the indemnification of such Indemnified Party by the Surviving
Corporation, an Indemnified Party's conduct complies with the standards set
forth under the NCBCA), shall be made at the Surviving Corporation's expense by
independent counsel mutually acceptable to the Surviving Corporation and the
Indemnified Party; provided further, that nothing herein shall impair any rights
or obligations of any present or former directors or officers of the Company.
(b) The Surviving Corporation shall maintain the Company's
existing officers' and directors' liability insurance covering claims arising
from facts or events which occurred before the Effective Time ("D&O Insurance"),
for a period of
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33
not less than six years after the Effective Date; provided, that the Surviving
Corporation may substitute therefor policies of substantially similar coverage
and amounts containing terms no less favorable to such former directors or
officers; provided, further, if the existing D&O Insurance expires, is
terminated or canceled during such period, the Surviving Corporation will obtain
substantially similar D&O Insurance; provided further, however, that in no event
shall the Surviving Corporation be required to pay aggregate annual premiums for
insurance under this Section in excess of 150% of the aggregate annual premiums
paid by the Company in 1998 on an annualized basis for such purpose and, in the
event that the annual premium for insurance required to be obtained hereunder
shall exceed such amount, the Surviving Corporation shall maintain as much of
such insurance as may be maintained for such amount.
(c) To the extent permitted by applicable law, the articles of
incorporation and the bylaws of the Surviving Corporation for so long as it
continues to exist shall contain the provisions with respect to advancement of
expenses, indemnification and exculpation from liability set forth in the
Articles of Incorporation and Bylaws of the Company on the date of this
Agreement, which provisions shall not be amended, repealed or otherwise modified
for a period of six years from the Effective Time in any manner that would
adversely affect the rights thereunder of individuals who on or prior to the
Effective Time were directors or officers of the Company, unless such
modification is required by law.
(d) In the event the Surviving Corporation or any of its
respective successors or assigns (i) consolidates with or merges into any other
person and shall not be the continuing or surviving corporation or entity in
such consolidation or merger or (ii) transfers all or substantially all its
properties and assets to any person, then, and in each case, proper provision
shall be made so that the successors and assigns of the Surviving Corporation
honor the indemnification obligations set forth in this Section 5.9. The
Surviving Corporation shall honor the indemnification provisions of Section 5.9
of the Agreement and Plan of Merger dated December 17, 1996, as amended, by and
among the Company, ASI Acquisition Corp. and American Studios, Inc.
(e) The obligations of the Surviving Corporation under this
Section 5.9 shall not be terminated, modified or assigned in such a manner as to
adversely affect any director or officer to whom this Section 5.9 applies
without the consent of such affected director or officer (it being expressly
agreed that the directors and officers to whom this Section 5.9 applies shall be
third-party beneficiaries of this Section 5.9).
Section 5.10 Tax Return Filing and Tax Elections. The Company shall,
and the Company shall cause each Subsidiary to, prepare, in a manner consistent
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34
with past practices, and timely file all Tax Returns required to be filed by the
Company and each Subsidiary the due date of which occurs on or before the
Closing Date and pay all Taxes due with respect to any such Tax Returns. The
Company shall, and the Company shall cause each Subsidiary to, deliver drafts of
such Tax Returns to Mergerco for its review no later than 10 business days prior
to the date, including extensions, on which such Tax Returns are required to be
filed and neither the Company nor any Subsidiary shall unreasonably fail to make
any changes to such Tax Returns as Mergerco may request sufficiently in advance
of the due date of such Tax Return to permit the making of such change. Except
upon the prior written consent of Mergerco, the Company shall not, and the
Company shall not permit any Subsidiary to, make any Tax elections on or prior
to the Closing Date.
Section 5.11 Cooperation. After the date hereof and prior to the
Effective Time, the Company shall, and shall cause its management to, cooperate
with Jupiter in connection with Jupiter's arranging the financing for the
Merger, including (a) providing to Jupiter's financing sources all information
reasonably requested by them to complete syndications of their loans, (b)
assisting such financing sources upon their reasonable request in the
preparation of information memoranda to be used in connection with such
syndications and (c) otherwise assisting such financing sources in their
syndication efforts, including by making reasonably available officers of the
Company and its subsidiaries, as appropriate, at meetings of prospective lenders
in various locations. In the event that the Merger is not consummated and
Mergerco is not entitled to reimbursement pursuant to Section 8.1 for its Fees
and Expenses, Mergerco shall bear the out-of-pocket costs the Company incurred
as a result of the cooperation required under this Section 5.11.
Section 5.12 Financing. Mergerco shall use commercially reasonable
efforts to consummate the Financing or alternative financing on terms similar to
the Financing and no more onerous than the terms of the Financing ("Alternative
Financing").
Section 5.13 NASDAQ Listing. Mergerco will not take any action, for at
least three years after the Effective Time of the Merger, to cause the Common
Stock to be de-listed from the NASDAQ; provided, however, that Mergerco may
cause or permit the Common Stock to be de-listed in connection with any
transaction (including the Merger) which results in the termination of
registration of such securities under Section 12 of the Exchange Act, and
provided, further, that nothing in this Section 5.13 shall require the Company
to take any affirmative action to prevent the Common Stock from being de-listed
by NASDAQ if the Common Stock ceases to meet the applicable listing standards.
Section 5.14 Fees. The Company shall take reasonable actions to insure
that all legal, investment banking, accounting, advisory, consulting, and other
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35
third party professional, printing and SEC fees and expenses incurred, paid or
accrued by the Company and its Subsidiaries in connection with the negotiation,
execution and delivery of this Agreement and the other documents contemplated
hereby and the special Meeting shall be reasonable and customary for such a
Merger and the contemplated transactions under this Agreement.
Section 5.15 Consummation of the Merger. The Company shall use its
commercially reasonable efforts to consummate the Merger and the other
transactions contemplated by this Agreement.
ARTICLE VI
CONDITIONS
Section 6.1 Conditions to Each Party's Obligation to Effect the Merger
Transaction. The respective obligation of each party to effect the Merger shall
be subject to the satisfaction on or prior to the Closing Date of each of the
following conditions, any and all of which may be waived in whole or in part by
the Company, or Mergerco, as the case may be, to the extent permitted by
applicable law:
(a) Stockholder Approval. This Agreement shall have been
approved and adopted by the requisite vote of the holders of the Shares.
(b) Statutes: Consents. No statute, rule, order, decree or
regulation shall have been enacted or promulgated by any government or any
governmental agency or authority of competent jurisdiction which prohibits the
consummation of the Merger and all governmental consents, orders and approvals
required for the consummation of the Merger and the transactions contemplated
hereby shall have been obtained and shall be in effect at the Effective Time;
(c) Injunctions. There shall be no order or injunction of a
court or other governmental authority of competent jurisdiction in effect
precluding, restraining, enjoining or prohibiting consummation of the Merger;
and
(d) HSR Approval. The applicable waiting period under the HSR
Act shall have expired or been terminated.
Section 6.2 Conditions to Mergerco's Obligation to Effect the Merger.
The obligation of Mergerco to effect the Merger shall be subject to the
satisfaction on or prior to the Closing Date of each of the following
conditions, any and all of which may be waived in whole or in part by Mergerco
to the extent permitted by applicable law:
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36
(a) Representations and Warranties. The representations and
warranties of the Company set forth in this Agreement (other than in Section 3.2
and considered without regard to any materiality or material adverse effect
qualification) shall be true and correct in all respects in each case when made
and on the Closing Date as though made on and as of the Closing Date except at
either time to the extent that the failure of such representations and
warranties to be true and correct would not have or be reasonably likely to have
a material adverse effect on the Company and its Subsidiaries taken as a whole
or on the consummation of the transactions contemplated hereby or the Company's
ability to perform its obligations hereunder in a timely manner. The
representations and warranties of the Company set forth in Section 3.2 shall be
true and correct in all material respects on and as of the date made and as of
the Closing Date. The Company shall have delivered to Mergerco a certificate,
dated the Closing Date and signed by the Chief Executive Officer or Chief
Operating Officer of the Company, to the foregoing effects.
(b) Covenants. The Company shall have performed or complied in
all material respects with all obligations, agreements or covenants required by
this Agreement to be performed or complied with by it. The Company shall have
delivered to Mergerco a certificate, dated the Closing Date and signed by the
Chief Executive Officer or Chief Operating Officer of the Company, to the
foregoing effect.
(c) No Material Adverse Change. Since the date of this
Agreement, there shall have been no material adverse change in the business,
assets, operations or condition (financial or otherwise) of the Company and its
Subsidiaries, taken as a whole. The Company shall have delivered to Mergerco a
certificate, dated the Closing Date and signed by the Chief Executive Officer or
Chief Financial Officer of the Company, to the foregoing effect.
(d) Litigation. There shall have been no action taken, or
statute, rule, regulation, judgment, order or injunction promulgated, entered,
enforced, enacted, issued or deemed applicable to the Merger by any Governmental
Entity which directly or indirectly (i) prohibits, or imposes any material
limitations on, the Company's ownership or operation (or that of its
Subsidiaries or affiliates) of all or a material portion of their businesses or
assets, or compels the Company to dispose of or hold separate any material
portion of the business or assets of the Company and its Subsidiaries, in each
case taken as a whole, (ii) prohibits or makes illegal the consummation of the
Merger or the other transactions contemplated by this Agreement, or (iii)
otherwise materially adversely affects the business, assets, operations or
condition (financial or otherwise) of the Company and its Subsidiaries, taken as
a whole; provided that Mergerco shall have used all reasonable efforts to cause
any such judgment, order or injunction to be vacated or lifted.
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37
(e) Financing. All conditions to the availability of the
Financing contemplated by the Commitment Letters shall have been met and such
Financing shall be available or Alternative Financing shall be available.
(f) Consents. All consents and waivers from third parties
necessary in connection with the consummation of the Merger shall have been
obtained, except to the extent that the failure to obtain such consents and
waivers would not, individually or in the aggregate, have a materially adverse
effect to the Company as a whole or a material adverse effect on the
consummation of the transactions contemplated hereby.
(g) Code Section 1445 Statement. The Company shall have
furnished Mergerco with a statement meeting the requirements of Treasury
Regulation Section 1.1445-2(c)(3).
(h) Option Consents. The Company shall have caused the
cancellation of all Options as contemplated by Section 2.5 hereof other than
Options which Mergerco and the holders thereof agree will remain outstanding and
other than Options covering not more than 10,000 Shares.
(i) Dissenting Shares. The number of Dissenting Shares shall
constitute no greater than 10% of the total number of Shares outstanding
immediately prior to the Effective Time.
Section 6.3 Conditions to the Company's Obligation to Effect the
Merger. The obligation of the Company to effect the Merger shall be subject to
the satisfaction on or prior to the Closing Date of each of the following
conditions, any and all of which may be waived in whole or in part by the
Company, to the extent permitted by applicable law:
(a) Representations and Warranties. The representations and
warranties of Mergerco set forth in this Agreement that are qualified as to
materiality shall be true, and the representations and warranties of Mergerco
set forth in this Agreement that are not so qualified shall be true in all
material respects, in either case when made and immediately prior to the Closing
Date as though made on or as of the Closing Date, and in each case without
giving effect to any knowledge qualifiers contained therein. Mergerco shall have
delivered to the Company a certificate, dated the Closing Date and signed by the
Chief Executive Officer or Chief Operating Officer of Mergerco, to the foregoing
effect.
(b) Covenants. Mergerco shall have performed or complied with
all obligations, agreements or covenant required by this Agreement to be
performed or complied with by it. Mergerco shall have delivered to the Company a
<PAGE>
38
certificate, dated the Closing Date and signed by the Chief Executive Officer or
Chief Financial Officer of Mergerco, to the foregoing effect.
(c) Litigation. There shall have been no action taken, or
statute, rule, regulation, judgment, order or injunction promulgated, entered,
enforced, enacted, issued or deemed applicable to the Merger by any Governmental
Entity which directly or indirectly prohibits or makes illegal the consummation
of the Merger or the other transactions contemplated by this Agreement; provided
that the Company shall have used all reasonable efforts to cause any such
judgment, order or injunction to be vacated or lifted.
ARTICLE VII
TERMINATION
Section 7.1 Termination. This Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time, whether before
or after stockholder approval thereof:
(a) By the mutual consent of the Board of Directors of
Mergerco and the Board of Directors of the Company.
(b) By either of the Board of Directors of the Company or the
Board of Directors of Mergerco:
(i) if the Merger shall not have been consummated
before October 31, 1998 (the "Termination Date"); provided, that a
party that has willfully and materially breached a representation,
warranty or covenant set forth in this Agreement shall not be entitled
to exercise its right to terminate under this Section 7.1(b)(i);
(ii) if, upon a vote at a duly held meeting of the
shareholders of the Company or any adjournment thereof, the
shareholders of the Company shall not approve the Merger or this
Agreement; or
(iii) if any Governmental Entity shall have issued an
order, decree or ruling or taken any other action (which order, decree,
ruling or other action the parties hereto shall use their reasonable
efforts to lift), in each case permanently restraining, enjoining or
otherwise prohibiting the transactions contemplated by this Agreement
and such order, decree, ruling or other action shall have become final
and non-appealable.
<PAGE>
39
(c) By the Board of Directors of the Company:
(i) if, prior to the Effective Time, the Board of
Directors of the Company shall have (A) withdrawn, or modified or
changed in a manner adverse to Mergerco its approval or recommendation
of this Agreement or the Merger in order to permit the Company to
execute an agreement in principle or a definitive agreement providing
for the acquisition of the Company by merger, consolidation or
otherwise, on terms (including the per share consideration) determined
by the Board of Directors of the Company (based upon the advice of
independent investment bankers for the Company), to be superior for the
shareholders of the Company as compared to the terms of the acquisition
of the Company contemplated by this Agreement, and (B) determined, only
after receipt of advice from independent legal counsel to the Company,
that the failure to take such action as set forth in the preceding
clause (A) could cause the Board of Directors to violate its fiduciary
duties to the Company's shareholders under applicable law; or
(ii) if, prior to the Effective Time, Mergerco
breaches or fails in any material respect to perform or comply with any
of its material covenants and agreements contained herein or breaches
its representations and warranties in any material respect, or if any
representation or warranty of Mergerco set forth in this Agreement
shall have become untrue such that any of the conditions set forth in
Section 6.1 or Section 6.3 is reasonably likely to be incapable of
being satisfied by the Termination Date (as such date may otherwise be
extended by agreement of the parties); provided, however, that the
Board of Directors of the Company may terminate this Agreement under
this Section 7.1(c)(ii) only if such breach, failure of compliance or
untruth, if it is capable of being cured, continues uncured for a
period of ten (10) days after receipt by Mergerco of notice thereof
from the Company.
(d) By the Board of Directors of Mergerco:
(i) if prior to the Effective Time, the Board of
Directors of the Company shall have withdrawn, failed to reaffirm or
modified or changed in a manner adverse to Mergerco its approval or
recommendation of this Agreement or the Merger or shall have
recommended an Acquisition Proposal or offer, or shall have executed an
agreement in principle (or similar agreement) or definitive agreement
providing for a tender offer or exchange offer for any shares of
capital stock of the Company, or a merger, consolidation or other
business combination with a person or entity other than Mergerco or its
affiliates (or the Board of Directors of the Company resolves to do any
of the foregoing); or
<PAGE>
40
(ii) if, prior to the Effective Time, the Company
breaches or fails to perform or comply with any of its covenants and
agreements contained herein or breaches any of its representations or
warranties contained herein, or if any representation or warranty of
the Company shall have become untrue such that any of the conditions
set forth in Section 6.1 and Section 6.2 is reasonably likely to be
incapable of being satisfied by the Termination Date (as such date may
otherwise be extended by the agreement of the parties); provided,
however, that the Board of Directors of Mergerco may terminate this
Agreement under this Section 7.1(d)(ii) only if the breach, failure of
compliance or untruth referred to herein would have or would be
reasonably likely to have a material adverse effect on the Company and
its Subsidiaries taken as a whole or on the consummation of the
transactions contemplated hereby or the Company's ability to perform
its obligations hereunder in a timely manner and, if such breach,
failure of compliance or untruth is capable of being cured, the same
continues uncured for a period of ten (10) days after receipt by the
Company of notice thereof from Mergerco.
Section 7.2 Effect of Termination. In the event of the termination of
this Agreement as provided in Section 7. 1, written notice thereof shall
forthwith be given to the other party specifying the provision hereof pursuant
to which such termination is made, and this Agreement, except for the last
sentence of Section 5.2 hereof shall forthwith become null and void, and there
shall be no liability on the part of Mergerco or the Company except (A) for
fraud and (B) as set forth in this Section 7.2 and Section 8.1.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Fees and Expenses. (a) Except as otherwise contemplated by
this Agreement, including Section 8.1(b) hereof, all costs and expenses incurred
in connection with this Agreement and the consummation of the transactions
contemplated hereby shall be paid by the party incurring such expenses.
(b) If (v) the Board of Directors of the Company shall
terminate this Agreement pursuant to Section 7.1(c)(i) hereof, (w) the Board of
Directors of Mergerco shall terminate this Agreement pursuant to Section
7.1(d)(i) hereof, (x) the Board of Directors of Mergerco shall terminate this
Agreement pursuant to Section 7.1(b)(i) hereof and the Company has breached the
covenant set forth in Section 5.15, or (y) this Agreement shall be terminated
pursuant to Section 7.1(b)(i) or Section 7.1(b)(ii) hereof and, in the case of
this subclause (y) only, at the time of such termination an Acquisition Proposal
or an intention to make an Acquisition Proposal
<PAGE>
41
(whether or not such Acquisition Proposal has been made subject to certain
contingencies) shall have been made to the Company (whether or not it is pending
at the time of such termination) or shall have been publicly announced by any
person and, if, in the case of this subclause (y) only, within one year of such
termination, the Company or any of its Subsidiaries enters into an agreement
relating to an Acquisition Proposal, the Company shall pay to or at the
direction of Mergerco (not later than two business days after termination of
this Agreement or the execution of the agreement referred to in subclause (y) in
the case of subclause (y) above) an amount equal to $6,000,000 and shall
promptly assume and pay, or reimburse Mergerco for, all reasonable out-of-pocket
fees and expenses (collectively "Fees and Expenses") incurred, or to be
incurred, by Mergerco and its affiliates (including the fees and expenses of
legal counsel, accountants, financial advisors, other consultants, financial
printers and financing sources) in connection with the Merger and the
consummation of the transactions contemplated by this Agreement. In the event of
any breach or failure set forth in subclause (x) above, such $6,000,000 amount
shall be paid by the Company to Mergerco as liquidated damages and not as a
penalty. In any such event recovery of such liquidated damages shall be the sole
right of Mergerco and payment of such amount shall be the sole liability of the
Company. Such amount is being fixed as liquidated damages in any such event by
reason of the fact that the actual damages to be suffered by Mergerco are by
their nature uncertain and unascertainable with exactness. In any such event,
Mergerco shall not seek any money or other judgment against the Company, or any
officer, director or shareholder of the Company or against the assets of the
Company, and the sole recourse of Mergerco shall be to recover liquidated
damages in the foregoing amount.
(c) If this Agreement is terminated pursuant to Section
7.1(d)(ii) or terminated by the Company at a time after Mergerco has given
notice to the Company that Mergerco is (or with notice or lapse of time or both,
would be) entitled to terminate this Agreement under Section 7.1(d)(ii), the
Company shall promptly assume and pay, or reimburse Mergerco for, all Fees and
Expenses.
(d) If this Agreement is terminated pursuant to Section
7.1(b)(i) or Section 7.1(b)(ii) and, at the time of such termination, any person
or group of persons (the "Acquiror") has acquired beneficial ownership (as
defined in Rule 13d-3 under the Exchange Act) of more than 20% (other than for
investment purposes only) (or, in the case of Centennial Partners L.P., 35%) in
the aggregate of the outstanding Common Stock of the Company and if, within one
year of such termination, the Company or any of its Subsidiaries enters into an
agreement relating to an Acquisition Proposal, then the Company shall pay to or
at the direction of Mergerco (not later than two business days after the
execution of such agreement), an amount equal to $6,000,000.
<PAGE>
42
Section 8.2 Amendment and Modification. Subject to applicable law, this
Agreement may be amended, modified and supplemented in any and all respects,
whether before or after any vote of the shareholders of the Company contemplated
hereby, by written agreement of the parties hereto, by action taken by their
respective boards of directors, at any time prior to the Closing Date with
respect to any of the terms contained herein; provided, however, that after the
approval of this Agreement by the shareholders of the Company, no such
amendment, modification or supplement shall reduce the amount or change the form
of the Merger consideration.
Section 8.3 Nonsurvival of Representations and Warranties. None of the
representations and warranties in this Agreement or in any schedule, instrument
or other document delivered pursuant to this Agreement shall survive the
Effective Time unless otherwise specified therein.
Section 8.4 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally,
telecopied (which is confirmed) or sent by an overnight courier service, such as
Federal Express, to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
(a) if to Mergerco or Jupiter, to:
Jupiter Partners II L.P.
30 Rockefeller Plaza, Suite 4525
New York, New York 10112
Attention: Mr. John A. Sprague
Telephone No.: (212) 332-2800
Fax No.: (212) 332-2828
and
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: Richard S. Borisoff, Esq.
Telephone No.: (212) 373-3000
Fax No.: (212) 757-3990
<PAGE>
43
(b) if to the Company, to:
PCA International, Inc.
815 Matthews-Mint Hill Road
Matthews, NC 28105
Attention: John Grosso
Telephone No.: (704) 847-8011
Fax No.: (704) 847-1548
with a copy to:
Schulte Roth & Zabel LLP
900 Third Avenue
New York, New York 10022
Attention: Marc Weingarten, Esq.
Telephone No.: (212) 756-2000
Fax No.: (212) 593-5955
Section 8.5 Interpretation. When a reference is made in this Agreement
to Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. Whenever the words "include," "includes" or "including" are
used in this Agreement they shall be deemed to be followed by the words "without
limitation." As used in this Agreement, the term "affiliate(s)" shall have the
meaning set forth in Rule 12b-2 of the Exchange Act.
Section 8.6 Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each of
the parties and delivered to the other parties.
Section 8.7 Entire Agreement; No Third Party Beneficiaries; Rights of
Ownership. This Agreement and the Confidentiality Agreement (including the
documents and the instruments referred to herein and therein): (a) constitute
the entire agreement and supersede all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof,
and (b) except as provided in Section 5.9 is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
Section 8.8 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void, unenforceable or against its regulatory
policy, the remainder of the terms, provisions, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
<PAGE>
44
Section 8.9 Governing Law. Except to the extent that the laws of the
State of North Carolina are mandatorily applicable, this Agreement shall be
governed by and construed in accordance with the laws of the State of New York
without giving effect to the principles of conflicts of law thereof.
Section 8.10 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties, except that Mergerco may assign, in its sole
discretion, any or all of its rights, interests and obligations hereunder to any
of its affiliates. Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors and assigns.
<PAGE>
45
IN WITNESS WHEREOF, Mergerco and the Company have caused this Agreement
to be signed by their respective officers thereunto duly authorized as of the
date first written above.
JUPITER ACQUISITION CORP.
By: /s/ John A. Sprague
-----------------------
Name: John A. Sprague
Title: President
PCA INTERNATIONAL, INC.
By: /s/ Joseph H. Reich
-----------------------
Name: Joseph H. Reich
Title: Chairman of the Board
STOCKHOLDERS AGREEMENT
by and among
PCA INTERNATIONAL, INC.
and
CERTAIN OF THE HOLDERS OF ITS COMMON STOCK
Dated as of August , 1998
<PAGE>
TABLE OF CONTENTS
Page
----
Section 1. Certain Definitions.................................................2
Section 2. Restrictions on Transfer...........................................11
2.1 Common Stock Subject To This Agreement.............................11
2.2 General Restriction................................................12
2.3 Transfers of Common Stock and Option Shares by Management
Stockholders.......................................................13
2.4 Tag-Along Right....................................................14
2.5 Drag-Along Right...................................................16
2.6 Transfers Following Initial Public Offering and Other Transfers....17
Section 3. Call Options.......................................................20
3.1 Call Options of the Company and the Principal Stockholder..........20
3.2 Closing............................................................25
3.3 Termination of Call Options........................................25
Section 4. Registration Rights................................................26
Section 5. Changes in Common Stock; Option Plan; Other........................26
5.1 Changes in Common Stock............................................26
5.2 Registration of Option Shares......................................26
Section 6. Transferees Subject to Agreement...................................27
Section 7. Legends............................................................27
Section 8. Miscellaneous......................................................28
8.1 Amendment..........................................................28
8.2 Governing Law......................................................28
8.3 Execution in Counterparts..........................................28
8.4 Notices............................................................29
8.5 Entire Agreement; Headings; Gender.................................29
8.6 Copy of Agreement with Company.....................................30
8.7 Specific Performance...............................................30
8.8 Assignment.........................................................30
8.9 Third Party Beneficiary............................................31
Exhibit A Parties
Exhibit B Repurchase Percentages
Exhibit C Form of Registration Rights Agreement
i
<PAGE>
STOCKHOLDERS AGREEMENT
----------------------
STOCKHOLDERS AGREEMENT (the "Agreement"), dated as of August , 1998, by
and among PCA INTERNATIONAL, INC., a North Carolina corporation (the "Company"),
JUPITER PARTNERS II L.P., a Delaware limited partnership ("Jupiter"), and the
other parties listed on Exhibit A hereto under the caption "Management
Stockholders" (Jupiter and the Management Stockholders are collectively referred
to herein as the "Stockholders," which term shall also include any Person who
hereafter becomes a party to this Agreement in accordance with the terms
hereof). Capitalized terms used herein and not otherwise defined shall have the
mean ings specified in Section 1.
W I T N E S S E T H :
WHEREAS, the Stockholders are the holders of a substantial portion of
the issued and outstanding shares of Common Stock of the Company;
WHEREAS, the Company has entered into employment and non-competition
agreements with each of the Management Stockholders (each, a "Employment
Agreement");
WHEREAS, concurrently with the execution of this Agreement, pursuant to
that certain Stock Option Plan of the Company (the "Option Plan") (i) the
Company is granting to the Management Stockholders options to purchase shares of
Common Stock ("Management Options") at a per share exercise price of $26.50 per
share, and (ii) the Management Stockholders are "rolling over" previously
outstanding options to
<PAGE>
2
purchase shares of Common Stock ("Management Roll-over Options"), subject to the
terms and conditions set forth in the Option Plan; and
WHEREAS, the parties hereto wish to provide for certain rights and
obligations of the Stockholders with respect to the transfer, purchase and other
rights affecting the Common Stock.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Certain Definitions. For the purposes of this Agreement, the
following terms and phrases have the following meanings:
"Affiliate" means, (i) with respect to any natural Person, the spouse
of such Person, either parent of such Person or of such Person's spouse, any
descendant of any such parent, or any relative of such Person who has the same
home as such Person, and (ii) with respect to any other Person, any other Person
directly or indirectly controlling, controlled by, or under common control with,
such Person. For purposes of this definition, the term "control" (including,
with correlative meanings, the terms "controlling," "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Affiliated Transferee," with respect to the Principal Stockholder,
means (i) any Affiliate of the Principal Stockholder, (ii) any employee or
partner of the
<PAGE>
3
Principal Stockholder or (iii) any employee or partner of any Affiliate of the
Principal Stockholder.
"Board" means the Board of Directors of the Company.
"business day" shall mean any day except a Saturday, Sunday or other
day on which commercial banks in New York, New York, are authorized by law to
close.
"Call for Breach" shall have the meaning specified in Section 3.1.4.
"Call for Cause" shall have the meaning specified in Section 3.1.1.
"Call for Resignation" shall have the meaning specified in Section
3.1.2.
"Call Option" shall mean any right of the Company or the Principal
Stockholder to purchase Call Shares from a Management Stockholder under Section
3.
"Call Shares" shall mean any Option Shares (or any outstanding
Management Options or Management Roll-over Options held by a Management
Stockholder but not yet exercised) with respect to which the Company or the
Principal Stockholder would have a purchase right if a Management Stockholder
ceased to be employed by the Company or any of its subsidiaries for any of the
reasons specified in Section 3.1.
"Call Without Cause" shall have the meaning specified in Section 3.1.3.
"Cause," with respect to any Management Stockholder, shall mean (i) a
reasonable good faith determination by the Board that the Management Stockholder
has, in any material respect, willfully failed to follow any of the Company's
written policies or any written directives of the Board (other than by reason of
a voluntary resignation or resignation for Good Reason) and, if such failure is
susceptible of being
<PAGE>
4
cured as determined by the Board in good faith, the failure of the Management
Stockholder to cure such failure within 10 business days after receiving written
notice (stating with specificity the nature of such failure) from the Board; or
(ii) any act of willful misconduct, fraud or personal dishonesty by the
Management Stockholder involving the assets of the Company or any of its
Affiliates resulting in material economic or material reputational harm to the
Company; or (iii) the conviction of, or a plea of guilty or nolo contendere by,
the Management Stockholder to a charge of any crime involving a felony; or (iv)
the breach by the Management Stockholder in any material respect of any contract
or other agreement between the Company or any of its Affiliates and the
Management Stockholder and, if such breach is susceptible of being cured as
determined by the Board in good faith, the failure of the Management Stockholder
to cure such breach within 10 business days after receiving written notice
(stating with specificity the nature of such failure) from the Board;
notwithstanding the foregoing, with respect to those Management Stockholders who
are parties to employment agreements with the Company, and such agreements
contain a definition of "Cause," the term "Cause" herein shall be deemed to have
the meaning set forth in such employment agreement.
"Change in Control" shall mean (i) such time as the Principal
Stockholder has disposed of at least one-half of the shares of Common Stock
owned by the Principal Stockholder as of the date of this Agreement (as set
forth on Exhibit A) and no longer owns at least a majority of the outstanding
Common Stock of the Company or (ii) the consummation of a sale of all or
substantially all of the assets of the Company and its subsidiaries (other than
to the Principal Stockholder or any
<PAGE>
5
Affiliate of the Company); provided, that a Change in Control shall only be
deemed to have occurred if after the event specified in clause (i) the Company
does not have any publicly-traded securities.
"Common Stock" means the common stock, par value $.20 per share, of the
Company and any other shares of capital stock of the Company classified as
common stock hereafter authorized.
"Company" means PCA International, Inc., a North Carolina corporation.
"Disability," with respect to a Management Stockholder, shall be
defined in the long-term disability plan maintained by the Company.
"Drag-Along Right" shall have the meaning specified in Section 2.5.
"Employment Agreement" shall have the meaning specified in the recitals to this
Agreement.
"Encumbrance" means any mortgage, lien, security interest, pledge,
claim, option, right of first refusal or other like encumbrance with respect to
any share of Common Stock, and "Encumber" shall have a correlative meaning.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Market Value" shall mean (A) after the Initial Public Offering,
the average of the last reported sales price of the Common Stock for the 30
consecutive trading days immediately preceding the date on which any such
determination is to be made, as reported by NASDAQ National Market System or a
national securities
<PAGE>
6
exchange, and (B) prior to the Initial Public Offering, the fair market value
per share of Common Stock as determined in good faith by the Board.
"50% Disposition Date" shall mean such time as the Principal
Stockholder has disposed of at least one-half of the shares of Common Stock
owned by the Principal Stockholder as of the date hereof (as set forth on
Exhibit A).
"Fully Diluted Shares" shall mean the total number of the Company's
outstanding shares of Common Stock on a fully diluted, fully converted basis
(assuming the exercise of all options and other securities convertible or
exchangeable into or exercisable for Common Stock).
"Good Reason," with respect to a Management Stockholder, means (i) a
material reduction of such Management Stockholder's base salary payable during
any fiscal year by the Company and its Subsidiaries or the requirement by the
Company that the Management Stockholder perform tasks which would be demeaning
or degrading to one in his position, (ii) the failure of the Company to pay such
Management Stockholder his base salary or any of his material benefits to which
he is entitled to be paid during any fiscal year, if such failure is not cured
within ten days of written notice thereof to the Company, or (iii) material
breach by the Company of any material contract or agreement between the Company
and such Management Stockholder.
"Initial Public Offering" means the first Public Offering after the
date of this Agreement which yields gross proceeds to the Company in excess of
$25,000,000 pursuant to an effective registration statement under the Securities
Act and which results in the listing or continual listing of such Common Stock
on a national securities
<PAGE>
7
exchange or the quotation of such Common Stock on the NASDAQ National Market
System.
"in-the-money," with respect to options or other securities convertible
into Common Stock, shall mean any options or other such securities the Fair
Market Value of whose underlying shares of Common Stock exceeds the then
applicable exercise price.
"Involuntary Transfer," with respect to any shares of Common Stock,
means any involuntary Transfer, proceeding or action (other than a Transfer on
the death of a Management Stockholder) by or in which a Stockholder (or his
Permitted Transferee) shall be deprived or divested of any right, title or
interest in or to any of its shares of Common Stock, including, without
limitation, any seizure under levy of attachment or execution, any Transfer in
connection with bankruptcy (whether pursuant to the filing of a voluntary or an
involuntary petition under any applicable bankruptcy law) or other court
proceeding to a debtor-in-possession, trustee in bankruptcy or receiver or other
officer or agency, any Transfer to a state or to a public officer or agency
pursuant to any statute pertaining to escheat or abandoned property, any
Transfer pursuant to a divorce action or any Transfer upon or occasioned by the
legal incompetence of any Stockholder (or his Permitted Transferee) or any
Transfer to a legal representative of any Stockholder (or his Permitted
Transferee).
"Management Options" shall have the meaning specified in the recitals
to this Agreement.
"Management Roll-over Options" shall have the meaning specified in the
recitals to this Agreement.
<PAGE>
8
"Management Stockholders" means the individuals listed on Exhibit A
under the caption "Management Stockholders," any Stockholder who acquires Common
Stock from a Management Stockholder and who becomes a party to this Agreement,
and any other Stockholder (including any Person who acquires Option Shares) who
hereafter becomes a party to this Agreement and is denominated as a "Management
Stockholder."
"Notice" shall have the meaning specified in Section 2.4.
"Option Plan" shall have the meaning specified in the recitals to this
Agreement.
"Option Shares" shall mean any shares of Common Stock issued pursuant
to the exercise of a Management Option or a Management Roll-over Option.
"Option Share Restriction Period" shall mean any time prior to August
21, 2006.
"Permitted Transferee" means, with respect to a Stockholder who is a
natural person, (a) the spouse, parents, parents-in-law or siblings (by blood or
adoption) of such Stockholder or the lineal descendants (by blood or adoption)
of such Stockholder or such Stockholder's spouse, parents or siblings, (b) a
trust, the beneficiaries of which include only such Stockholder or spouse,
parents, or siblings (by blood or adoption) of such Stockholder or the lineal
descendants (by blood or adoption) of such Stockholder, spouse, parents or
siblings, or a charitable trust that is an Affiliate of such Stockholder, or (c)
upon such Stockholder's death, executors, administrators, testamentary trustees,
legatees or beneficiaries of such Stockholder.
<PAGE>
9
"Person" shall mean an individual, firm, corporation, limited liability
company, partnership, trust, incorporated or unincorporated association, joint
venture, joint stock company, government (or an agency or political subdivision
thereof) or other entity of any kind.
"Potential Participant" shall have the meaning specified in Section
2.4.
"Principal Stockholder" shall mean Jupiter and, where the context
refers to the ownership by the Principal Stockholder of Common Stock, shall also
mean its Affiliated Transferees who own Common Stock.
"Prospective Seller" shall have the meaning specified in Section 2.4.
"Prospective Transferee" shall have the meaning specified in Section 6.
"Public Offering" means a public offering of Common Stock pursuant to
an effective registration statement under the Securities Act.
"Public Sale" means a Transfer of Common Stock pursuant to a Public
Offering or under Rule 144 (or any successor rule) under the Securities Act.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the date hereof, in the form of Exhibit C.
"Repurchase Price" shall mean, with respect to a share of Common Stock,
the Fair Market Value thereof; provided, that if at the time of any
determination of the Repurchase Price, the Company has not completed an Initial
Public Offering, then in determining the Repurchase Price for transactions
involving a Management Stockholder who owns Call Shares with a value in excess
of $500,000, if the Management Stockholder disagrees with the Board's
determination of Fair Market Value, such Fair Market Value shall be determined
by an independent appraiser
<PAGE>
10
selected jointly by the Company and such Management Stockholder, which appraiser
shall determine the fair market value per share of Common Stock (taking into
consideration the lack of liquidity and non-control nature of the Call Shares).
The Management Stockholder who disagrees with the Board's determination of Fair
Market Value will pay the cost of such appraisal unless it is determined by the
appraiser that the Board's determination was more than 10% lower than the
appraiser's determination, in which case the Company will pay such cost.
"Restricted Shares" means all shares of Common Stock other than (i)
shares that have been registered under a registration statement pursuant to the
Securities Act, (ii) shares with respect to which a sale has been made pursuant
to Rule 144 promulgated under the Securities Act (or any successor rule), (iii)
shares with respect to which a sale may be made pursuant to Rule 144(k)
promulgated under the Securities Act (or any successor rule), or (iv) shares
with respect to which the holder thereof shall have delivered to the Company an
opinion of counsel, in form and substance reasonably satisfactory to the
Company, to the effect that the Transfer of such shares may be effected without
registration under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Stockholders" shall have the meaning specified in the introductory
paragraph of this Agreement.
"Subsidiary," with respect to any Person, means any other Person of
which such Person owns or controls, directly or indirectly, more than 50% of the
outstanding voting shares or other voting interests or equity interests.
<PAGE>
11
"Substitute Purchase Offer" shall have the meaning specified in Section
2.4.
"Tag-Along Common Stock" shall have the meaning specified in Section
2.4.
"Tag-Along Notice" shall have the meaning specified in Section 2.4.
"Tag-Along Right" shall have the meaning specified in Section 2.4.
"Threshold Amount" shall mean the number of shares of Common Stock
which is equal to 20% of (i) the shares of Common Stock owned by the Principal
Stockholder on the date hereof, plus (to the extent not included in (i)) (ii)
any shares purchased by the Principal Stockholder after the date hereof pursuant
to Section 4.2 of the Agreement and Plan of Merger dated as of April 20, 1998 by
and among the Company and Jupiter Acquisition Corp.
"Transfer," with respect to any shares of Common Stock, means any
transfer, assignment, sale, gift, pledge, hypothecation or other disposition of
Common Stock or of all or part of the voting power (other than the granting of a
revocable proxy) associated with the Common Stock whatsoever, or any other
transfer of beneficial ownership of Common Stock, including, without limitation,
any Involuntary Transfer; and "Transferee" shall have a correlative meaning.
Section 2. Restrictions on Transfer.
2.1 Common Stock Subject To This Agreement. Unless otherwise provided
herein, all shares of Common Stock of the Company (including, without
limitation, any Option Shares or Call Shares) now owned or hereafter acquired by
any of the Stockholders or any Transferee thereof (including any Person who
acquires
<PAGE>
12
Common Stock by means of an Involuntary Transfer, but not including any Person
who acquires Common Stock pursuant to a Public Sale) shall be subject to the
terms of this Agreement.
2.2 General Restriction.
2.2.1 General. Each Stockholder agrees that he or it will not,
directly or indirectly, make any Transfer of any Common Stock, except in
compliance with the Securities Act. Each Management Stockholder further agrees
to the restrictions on Transfer set forth in Section 2.3. Each Stockholder
agrees (i) that any direct or indirect Transfer of Common Stock held by it will
be made only in compliance with Section 6 (Transferees Subject to Agreement), to
the extent applicable, and (ii) to be bound by the provisions of Section 2.4
(Tag-Along Right) with respect to its Common Stock. Any Transfer effected, or
purported or attempted to be effected, not in accordance with the terms and
conditions of this Agreement shall be void and of no effect. In connection with
any voided Transfer, the Company may hold and refuse to transfer any Common
Stock or certificate therefor tendered for transfer, in addition and without
prejudice to any and all other rights and remedies which may be available.
2.2.2 Involuntary Transfer. Any Person who acquires Common
Stock from a Stockholder by means of an Involuntary Transfer shall be deemed to
have become a party to this Agreement in the place and stead of the transferring
Stockholder and shall be bound by the terms hereof; provided, that prior to the
Company transferring such Common Stock on its books and records to such Person
and prior to the exercise by such Person of any rights hereunder, such Person
shall have delivered an appropriate document, in form and substance reasonably
satisfactory to the
<PAGE>
13
Company, confirming that such Person takes such shares subject to the terms and
conditions of this Agreement, and such Person thereupon shall be deemed to be a
Permitted Transferee of such Stockholder.
2.3 Transfers of Common Stock and Option Shares by Management
Stockholders.
2.3.1 Each Management Stockholder agrees that he will not,
directly or indirectly, Transfer any shares of Common Stock except, subject to
compliance with Section 6 (Transferees Subject to Agreement), (i) Transfers of
Common Stock pursuant to the procedures, and subject to the limitations, set
forth in Section 2.4 (Tag-Along Right), Section 2.5 (Drag-Along Right), Section
2.6 (Transfers Following Initial Public Offering and Other Transfers) or
transfers under the Registration Rights Agreement, or (ii) Transfers of Common
Stock to the Company or the Principal Stockholder pursuant to the provisions of
Section 3 (Call Options) or otherwise, or (iii) Transfers of Common Stock to any
Permitted Transferee of such Management Stockholder, or (iv) Transfers
consisting of pledges of Common Stock to the Company, or (v) Transfers of Common
Stock to any Person pursuant to an Involuntary Transfer or (vi) Transfers after
February 21, 2006 (which shall not require compliance with Section 6); provided
that, in the case of this clause (v), such Person shall have delivered an
appropriate document, in form and substance reasonably satisfactory to the
Company, confirming that such Person takes such shares subject to the terms and
conditions of this Agreement, and such Person thereupon shall be deemed to be a
Permitted Transferee of such Management Stockholder. Each Management Stockholder
further agrees that, notwithstanding the foregoing, he will
<PAGE>
14
not, directly or indirectly, Transfer any Option Shares or Call Shares during
the Option Share Restriction Period other than pursuant to Section 2.4
(Tag-Along Right), Section 2.5 (Drag-Along Right) or Section 2.6 (Transfers
Following Initial Public Offering and Other Transfers); thereafter, such Option
Shares and Call Shares will continue to be subject to the other provisions of
this Agreement.
2.4 Tag-Along Right. Other than in connection with the exercise of the
Drag-Along Right or a Call Option or pursuant to a Public Sale permitted here
under, in the event that any Stockholder (as used in this Section, a
"Prospective Seller") shall receive a bona fide offer to purchase shares of
Common Stock (a "Purchase Offer") from any Person (including, without
limitation, any offer by a Management Stockholder, but not including (a) an
offer by a Permitted Transferee of such Prospective Seller or (b) an offer by
the Principal Stockholder), the Prospective Seller shall either decline such
Purchase Offer or, if the Prospective Seller determines to accept such Purchase
Offer, then, prior to accepting any Purchase Offer, arrange for the proposed
purchaser to make, in lieu of the Purchase Offer, a substitute bona fide offer
to purchase the same number of shares of Common Stock that were the subject of
the Purchase Offer, and upon the same terms as the Purchase Offer, from the
Stockholders owning Common Stock as a group in the relative proportions and
otherwise as described in the second succeeding sentence (the "Substitute
Purchase Offer"). In the event a Substitute Purchase Offer is made, the
Prospective Seller shall give the other Stockholders written notice thereof (the
"Notice") specifying (i) the number of shares of Common Stock that is the
subject of such Substitute Purchase Offer, (ii) the terms (including the
proposed date of consummation thereof, which shall
<PAGE>
15
be not less than 30 days following the date of the Notice) of such Substitute
Purchase Offer, and (iii) the identity of the proposed purchaser. Upon receipt
of the Notice, each Stockholder (a "Potential Participant") shall have the right
(the "Tag-Along Right") to sell that number of shares of Common Stock equal to
the product of (a) the total number of shares of Common Stock proposed to be
purchased and (b) a fraction, the numerator of which shall be the number of
shares of Tag-Along Common Stock (as defined below) owned by such Potential
Participant and the denominator of which shall be the number of shares of
Tag-Along Common Stock owned by all Potential Participants (including the
Prospective Seller) electing to participate in such sale. For purposes of the
foregoing, "Tag-Along Common Stock" shall mean all shares of Common Stock,
including shares issuable pursuant to options which, at the time of the Notice,
are capable of being exercised in accordance with the terms of the Option Plan
or the related option agreement and are "in-the-money." The Tag-Along Right may
be exercised by a Potential Participant by delivery, not later than 15 days
after receipt of the Notice, of a written notice (the "Tag-Along Notice") to the
Prospective Seller, which shall state the number of shares of Common Stock that
such Potential Participant wishes to include in such sale to the purchaser. The
Prospective Seller, together with any electing Potential Participants, shall
participate in any purchase made by the purchaser specified in the Notice on the
terms set forth therein (or on terms no less favorable to the purchaser) and as
provided in the Tag-Along Notice during the 90-day period following the date of
the Notice. Any purchases by such purchaser following such 90-day period shall
require a new Notice. To the extent a Potential Participant does not participate
in such sale, the Prospective Seller and the other Potential
<PAGE>
16
Participants may sell that number of shares of Common Stock (in addition to the
shares of Common Stock otherwise permitted to be sold by them hereunder) equal
to their proportionate share of the number of shares with respect to which such
Potential Participant had the opportunity to sell hereunder. All Transfers made
pursuant to this Section 2.4 shall be subject to the provisions of Section 6
(Transferees Subject to Agreement). The provisions of this Section 2.4 shall
terminate when both of the following conditions have been satisfied: (i) an
Initial Public Offering has occurred; and (ii) the Principal Stockholder no
longer owns Common Stock in excess of the Threshold Amount.
2.5 Drag-Along Right. If the Principal Stockholder proposes to make a
bona fide sale of its shares of Common Stock to a third party un-Affiliated with
the Principal Stockholder (which may include another Stockholder) in an amount
equal to at least 10% of the Fully Diluted Shares (which amount shall be
calculated based on the transaction in question or a series of transactions
related thereto), the Principal Stockholder shall have the right (the
"Drag-Along Right"), exercisable upon 15 days' prior written notice, to require
the other Stockholders to sell a corresponding percentage (as the percentage
being sold by the Principal Stockholder) of the number of shares of Common Stock
held by such other Stockholders to such third party upon terms no less favorable
to the other Stockholders than those that apply to the Principal Stockholder
with respect to such third party sale. For purposes of calculating such
corresponding percentage, there shall be included in such calculation (without
duplication) (i) shares of Common Stock, (ii) shares issuable pursuant to the
exercise of Management Options and Management Roll-over Options that are
exercisable in
<PAGE>
17
accordance with the Option Plan or the related option agreement and are
in-the-money, even if such sale is during the Option Share Restriction Period,
and (iii) Call Shares. Each Stockholder hereby agrees to cooperate with the
Principal Stockholder and to take any and all action reasonably required in
connection with the consummation of such third party sale. Without limiting the
foregoing, at the closing of any sale under this Section 2.5, each Stockholder
shall deliver certificates representing the shares of Common Stock to be sold,
duly endorsed for transfer and accompanied by all requisite stock transfer
taxes, and each Stockholder shall represent and warrant that it is the
beneficial owner of such shares free and clear of any Encumbrances, with full
authority and power to transfer such shares. All Transfers made pursuant to this
Section 2.5 shall be subject to the provisions of Section 6 (Transferees Subject
to Agreement) unless the Principal Stockholder otherwise determines. The
provisions of this Section 2.5 shall terminate when both of the following
conditions have been satisfied: (i) an Initial Public Offering has occurred; and
(ii) the Principal Stockholder no longer owns Common Stock in excess of the
Threshold Amount.
2.6 Transfers Following Initial Public Offering and Other Transfers.
2.6.1 From and after the date of the Initial Public Offering,
and provided that at the time of the Transfer by a Management Stockholder
referred to below the Principal Stockholder continues to own Common Stock in
excess of the Threshold Amount, a Management Stockholder and his Permitted
Transferees may Transfer shares of Common Stock held by them (other than, until
the fifth anniversary of the date hereof, any Call Shares) (x) pursuant to the
exercise of their rights under the Registration Rights Agreement, (y) pursuant
to a sale under Rule 144 of the
<PAGE>
18
Securities Act which is subject to the volume limitations set forth in
subparagraph (e)(1) of such Rule; provided, that a Management Stockholder and
his Permitted Transferees as a group may only Transfer their Common Stock under
clauses (x) and (y) in an aggregate amount equal to the product of (i)(A) prior
to the 50% Disposition Date, one-half of, and (B) after the 50% Disposition
Date, 100% of, the total number of shares of Public Sale Stock (as defined
below) held by such Management Stockholder as of the date hereof (or, if such
Management Stockholder and his Permitted Transferees as a group have acquired
additional Common Stock after the date hereof in a manner that was not in
violation of this Agreement, such greater number) multiplied by (ii) a fraction,
the numerator of which shall be the aggregate number of shares of Common Stock
that have been Transferred by the Principal Stockholder prior to the date of the
proposed Transfer by such Management Stockholder, and the denominator of which
shall be the total number of shares of Common Stock held by the Principal
Stockholder as of the date hereof (or, if the Principal Stockholder has acquired
additional Common Stock after the date hereof in a manner that was not in
violation of this Agreement, such greater number), or (z) pursuant to an
exemption from the registration requirements of the Securities Act, but only if
at the time of such Transfer by such Management Stockholder the Principal
Stockholder is also Transferring Common Stock; provided that a Management
Stockholder and his Permitted Transferees as a group may only Transfer their
Common Stock under this clause (z) in an aggregate amount equal to the product
of (i)(A) prior to the 50% Disposition Date, one-half of, and (B) after the 50%
Disposition Date, 100% of, the total number of shares of Public Sale Stock held
by such Management Stockholder as
<PAGE>
19
of the date hereof (or, if such Management Stockholder and his Permitted
Transferees as a group have acquired additional Common Stock after the date
hereof in a manner that was not in violation of this Agreement, such greater
number) multiplied by (ii) a fraction, the numerator of which shall be the
aggregate number of shares of Common Stock then being Transferred by the
Principal Stockholder, and the denominator of which shall be the total number of
shares of Common Stock held by the Principal Stockholder as of the date hereof
(or, if the Principal Stockholder has acquired additional Common Stock after the
date hereof in a manner that was not in violation of this Agreement, such
greater number). For purposes of the foregoing, "Public Sale Stock" shall mean
all shares of Common Stock, plus all shares of Common Stock issuable pursuant to
Management Options and Management Roll-over Options, which at the time of such
proposed Transfer, are capable of being exercised in accordance with the terms
of the Option Plan or the related option agreement and are "in-the-money," but
until the fifth anniversary of the date hereof, Public Sale Stock shall not
include any Management Roll-over Options that are subject to a Call Option
pursuant to Section 3.1.3.
2.6.2 From and after the date of the Initial Public Offering,
and provided that at the time of the Transfer referred to below the Principal
Stockholder does not continue to own Common Stock in excess of the Threshold
Amount, a Management Stockholder and his Permitted Transferees may Transfer
shares of Common Stock held by them (other than, until the fifth anniversary of
the date hereof, any Call Shares) pursuant to the exercise of their rights under
the Registration Rights
<PAGE>
20
Agreement or pursuant to an applicable exemption from the registration
requirements of the Securities Act.
2.6.3 At any time after the Principal Stockholder does not
continue to own Common Stock in excess of the Threshold Amount, and there has
not occurred an Initial Public Offering, a Management Stockholder and his
Permitted Transferees may transfer shares of Common Stock held by them pursuant
to an applicable exemption from the registration requirements of the Securities
Act.
2.6.4 Any shares of Common Stock Transferred pursuant to a
Public Sale or pursuant to Section 2.6.3 shall no longer be subject to the
provisions of this Agreement.
Section 3. Call Options.
3.1 Call Options of the Company and the Principal Stockholder.
3.1.1 Termination for Cause. Subject to Section 3.3
(Termination of Call Options), if the employment by the Company of any
Management Stockholder shall be terminated by the Company or any of its
subsidiaries for Cause, then (A) all Management Options held by the applicable
Management Stockholder and his Permitted Transferees shall be cancelled without
consideration and (B) the Company and the Principal Stockholder shall have the
right, but not the obligation, to purchase (the "Call for Cause") from the
applicable Management Stockholder and his Permitted Transferees, and if the
Company and/or the Principal Stockholder exercises such right, such Management
Stockholder and his Permitted Transferees shall have the obligation to sell to
the Company and/or the Principal Stockholder, all or any portion of the Call
Shares held by such Management Stockholder and his Permitted Transferees (it
being
<PAGE>
21
agreed that the number of shares subject to the Call for Cause shall be the
maximum number of Call Shares that may be held by such Management Stockholder
and his Permitted Transferees during the 180-day period during which such Call
for Cause may be exercised), at a price per share (but not less than zero) equal
to the lower of (i) $26.50 per share (less, in the case of options, the exercise
price thereof) and (ii) the Repurchase Price (less, in the case of options, the
exercise price thereof). Notwithstanding the foregoing, following the fifth
anniversary of the date hereof, the Company's call rights under this Section
3.1.1 shall apply only to Call Shares representing Management Options or Option
Shares issued pursuant to the exercise of Management Options and shall not apply
to Call Shares representing Management Rollover Options or Option Shares issued
pursuant to the exercise of Management Rollover Options. For purposes of this
Section 3.1.1, a termination for Cause shall be deemed to have occurred with
respect to a Management Stockholder if such Management Stockholder resigns from
his employment with the Company after committing any act which, with notice or
lapse of time or both, would constitute an event of Cause under the definition
of "Cause."
3.1.2 Termination by Resignation. Subject to Section 3.3
(Termination of Call Options), if prior to the fifth anniversary of the date
hereof any Management Stockholder shall cease to be employed by the Company or
any of its subsidiaries as a result of his resignation (other than for Good
Reason and other than a resignation which occurs after committing any act which,
with notice or lapse of time or both, would constitute an event of Cause under
the definition of such term), then the Company and the Principal Stockholder
shall have the right, but not the obligation, to
<PAGE>
22
purchase (the "Call for Resignation") from the applicable Management Stockholder
and his Permitted Transferees, and if the Company and/or the Principal
Stockholder exercises such right, such Management Stockholder and his Permitted
Transferees shall have the obligation to sell to the Company and/or the
Principal Stockholder, all or any portion of the Call Shares held by such
Management Stockholder and his Permitted Transferees (it being agreed that the
number of shares referred to above shall be the maximum number of shares of Call
Shares that may be held by such Management Stockholder and his Permitted
Transferees during the 180-day period during which such Call for Resignation may
be exercised) multiplied by the percentage specified on Exhibit B opposite the
relevant period in which such resignation occurs, at a price per share (but not
less than zero) equal to the lower of (i) $26.50 per share (less, in the case of
options, the exercise price thereof) and (ii) the Repurchase Price (less, in the
case of options, the exercise price thereof).
3.1.3 Termination Without Cause. Subject to Section 3.3
(Termination of Call Options), if prior to the fifth anniversary of the date
hereof any Management Stockholder shall cease to be employed by the Company or
any of its subsidiaries for any reason whatsoever, except due to death,
Disability, termination for Cause or resignation (other than resignation for
Good Reason and resignation deemed to be a termination for Cause under Section
3.1.1), the Company and the Principal Shareholder shall have the right, but not
the obligation, to purchase (the "Call Without Cause") from the applicable
Management Stockholder and his Permitted Transferees, and if the Company and/or
the Principal Stockholder exercises such right, such Management Stockholder and
his Permitted Transferees shall have the obligation to sell
<PAGE>
23
to the Company and/or the Principal Stockholder, all or any portion of the Call
Shares held by such Management Stockholder and his Permitted Transferees (it
being agreed that the number of shares referred to above shall be the maximum
number of Call Shares that may be held by such Management Stockholder and his
Permitted Transferees during the 180-day period during which such Call Without
Cause may be exercised) multiplied by the percentage specified on Exhibit B
opposite the relevant period in which such cessation occurs, at a price per
share equal to the Repurchase Price (less, in the case of options, the exercise
price thereof).
3.1.4 Management Stockholder Breach of Employment Agreement.
Subject to Section 3.3 (Termination of Call Options), if any Management
Stockholder materially breaches any provision of Section 6 (Noncompetition,
Secrecy and Inventions) of his Employment Agreement (or any successor provision
of any successor agreement) and, if such breach is susceptible of being cured as
determined by the Board in good faith, such breach is not cured within ten
business days after receiving written notice (stating with specificity the
nature of the breach) from the Board, then (A) all Management Options held by
the applicable Management Stockholder and his Permitted Transferees shall be
cancelled without consideration and (B) the Company, among the other rights and
remedies set forth in the Employment Agreement, and the Principal Stockholder
shall have the right, but not the obligation, to purchase (the "Call for
Breach") from the applicable Management Stockholder and his Permitted
Transferees, and if the Company and/or the Principal Stockholder exercises such
right, the Management Stockholder and his Permitted Transferees shall have the
obligation to sell to the Company and/or the Principal Stockholder, all or any
<PAGE>
24
portion of the Call Shares held by such Management Stockholder and his Permitted
Transferees (it being agreed that the number of shares subject to the Call for
Breach shall be the maximum number of Call Shares held by such Management
Stockholder and his Permitted Transferees during the 180-day period during which
such Call for Breach may be exercised) at a price per share (but not less than
zero) equal to the lower of (i) $26.50 per share (less, in the case of options,
the exercise price thereof) and (ii) the Repurchase Price (less, in the case of
options, the exercise price thereof). Notwithstanding the foregoing, following
the fifth anniversary of the date hereof, the Company's call rights under this
Section 3.1.4 shall apply only to Call Shares representing Management Options or
Option Shares issued pursuant to the exercise of Management Options and shall
not apply to Call Shares representing Management Rollover Options or Option
Shares issued pursuant to the exercise of Management Rollover Options.
3.1.5 Procedure. The Company may exercise its rights pursuant
to this Section 3.1 by providing written notice to the relevant Management
Stockholder and the Principal Stockholder not later than 90 days after written
notice (the "Company Notice") from the Company to the Management Stockholder
(with a copy to the Principal Stockholder) of the event triggering such rights,
indicating the amount of Call Shares subject to the relevant Call Option. Any
portion of such Call Option not exercised within such 90-day period shall expire
with respect to the Company and be
<PAGE>
25
void and of no further force and effect. Provided that the Company has not
exercised its rights in full with respect to such relevant Call Option under
this Section 3.1, the Principal Stockholder may exercise the rights of the
Company (with respect to that portion of the Call Option not exercised by the
Company) under this Section 3.1 on its own behalf by providing written notice to
the relevant Management Stockholder not later than 180 days after the date of
the Company Notice. Any portion of the relevant Call Option not exercised within
such 180-day period shall expire with respect to the Principal Stockholder and
be void and of no further force and effect.
3.2 Closing. The closing of any purchase by the Company or the
Principal Stockholder under this Section 3 shall be held at the principal office
of the Company on the 45th day after the date on which a notice of exercise of a
Call Option is given hereunder or at such other time and place as the parties to
the transaction may agree upon. At the closing of any purchase under this
Section 3, the applicable Stockholder and his Permitted Transferees shall
deliver certificates representing the Call Shares to be sold, duly endorsed for
transfer and accompanied by all requisite stock transfer taxes, and the
Stockholder and his Permitted Transferees shall represent and warrant that each
is the beneficial owner of such shares free and clear of any Encumbrances, with
full authority and power to transfer such shares. Payment for any Call Shares
shall be made by the Company in cash or, in the event that the Company's Board
determines in good faith that it would not be advisable to make such payment in
cash because the Company is constrained by financing or other arrangements, by a
subordinated note (subordinated to all indebtedness of the Company for money
borrowed) with interest at the prime rate of NationsBank, N.A., and a maturity
of two
<PAGE>
26
years. At such closing, the parties shall execute and/or deliver such additional
documents as are otherwise reasonably necessary or appropriate to consummate the
transfers.
3.3 Termination of Call Options. Upon the occurrence of a Change in
Control, any theretofore unexercised Call Options shall terminate and be of no
further force or effect. Any shares of Common Stock Transferred in accordance
with the provisions of Section 2.4 (Tag-Along Right), Section 2.5 (Drag-Along
Right) or Section 2.6 (Transfers Following Initial Public Offering) (other than
to a Person who is a Management Stockholder on the date hereof or to any
Permitted Transferee of such Management Stockholder) shall no longer be subject
to the Call Options.
Section 4. Registration Rights. The Company hereby grants to the
Principal Stockholder, the Management Stockholders and each of their Permitted
Transferees, registration rights with respect to the Common Stock on the terms
and subject to the conditions set forth in the Registration Rights Agreement.
Section 5. Changes in Common Stock; Option Plan; Other.
5.1 Changes in Common Stock. If there is any change in the Common Stock
by way of stock split, reverse stock split, stock dividend, reclassifica tion,
merger, consolidation, reorganization, recapitalization or any similar means,
then all appropriate adjustments to the provisions hereof shall be made so that
the rights and obligations of the parties hereto under this Agreement shall
continue with respect to the Common Stock as so changed.
5.2 Registration of Option Shares. At all times during which the
Company is subject to the requirements to file reports pursuant to Section 13 or
15(d)
<PAGE>
27
of the Exchange Act, the Company shall cause all Option Shares, at any time when
the options with respect thereto are exercisable, to be registered under the
Securities Act on Form S-8 (or any successor form). Nothing in this Section 5.2
will provide any Management Stockholder the right to make any transfer unless
such transfer is otherwise expressly permitted by this Agreement.
Section 6. Transferees Subject to Agreement. Each Stockholder agrees
that it will not make any Transfer (including, without limitation, to a
Permitted Transferee but excluding a Transfer in a Public Sale) unless, prior to
the consummation of any such Transfer, the Person (other than any then current
Stockholder) to whom such Transfer will be made (a "Prospective Transferee")
executes and delivers to the Company an agreement, in form and substance
reasonably satisfactory to the Company, whereby such Prospective Transferee
confirms that it shall be deemed to be a Stockholder for the purposes of, and
shall be subject to, this Agreement.
Section 7. Legends.
7.1 Each certificate evidencing shares of Common Stock shall bear a
legend in substantially the following form:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NO REGISTRATION OF
TRANSFER OF SUCH SECURITIES WILL BE MADE ON THE BOOKS OF THE ISSUER
UNLESS SUCH TRANSFER IS MADE PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF SUCH ACT. THE
<PAGE>
28
SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER, ALL AS SET FORTH IN A STOCKHOLDERS AGREEMENT,
A COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE
ISSUER."
7.2 In the event that any shares of Common Stock shall cease to be
Restricted Shares, the Company shall, upon the written request of the holder
thereof, promptly issue to such holder a new certificate evidencing such shares
without the first two sentences of the legend required by Section 7.1. In the
event any shares of Common Stock shall cease to be subject to the restrictions
on transfer and repurchase set forth in this Agreement, the Company shall, upon
the written request of the holder thereof, promptly issue to such holder a new
certificate evidencing such shares without the third sentence of the legend
required by Section 7.1.
Section 8. Miscellaneous.
8.1 Amendment. This Agreement cannot be amended orally, but only by an
agreement in writing signed by the Company, the Principal Stockholder and the
holders of at least 50% of the shares of Common Stock held by all of the
Management Stockholders and their Permitted Transferees as a group, except that
the Company may amend Exhibit A of this Agreement to reflect changes made in
accordance with this Agreement.
8.2 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE,
AND TO BE PERFORMED ENTIRELY, IN NEW YORK.
<PAGE>
29
8.3 Execution in Counterparts. This Agreement may be signed in one or
more counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
8.4 Notices. All communications provided for herein shall be in writing
and,
(i) if addressed to a Stockholder, shall be delivered or
mailed or telecopied to such Stockholder at its address specified on Exhibit A
(or an annex thereto, if such Stockholder shall have become a party hereto
pursuant to Section 6), or to such other address as such Stockholder shall have
notified the Company in writing, or
(ii) if addressed to the Company, shall be delivered or mailed
or telecopied to it at PCA International, Inc., 815 Matthews-Mint Hill Road,
Matthews, NC 28105, Attention: John Grosso, Fax (704) 847-1548, with a copy to
the Principal Stockholder, c/o Jupiter Partners II L.P., 30 Rockefeller Plaza,
Suite 4525, New York, New York 10112, Attention: John A. Sprague, Fax: (212)
332-2829, or to such other address as the Company or the Principal Stockholder,
as the case may be, shall have notified all Stockholders in writing. Except as
otherwise expressly provided herein, any communication shall be deemed to have
been given when delivered (if delivered by hand or by reputable overnight
courier service), in the case of facsimile transmission, when telecopied with
confirmation of transmission, or if mailed, shall be deemed to have been given
three days after having been so mailed.
8.5 Entire Agreement; Headings; Gender. This Agreement (including the
Exhibits hereto) and the Agreements referred to herein embody the entire agree-
<PAGE>
30
ment and understanding among the parties and supersede all prior agreements and
understandings relating to the subject matter hereof. The headings in and date
of this Agreement are for purposes of reference only and shall not limit or
otherwise affect the meaning hereof. The term "its" is used in this Agreement
for convenience only and shall be deemed to include, where applicable, "her or
his," and vice versa. Similarly, the pronoun "it" when referring to a
Stockholder shall be deemed to include, where applicable, "her or she" or "him
or he," and vice versa.
8.6 Copy of Agreement with Company. A counterpart of this Agreement
shall be filed with the Company at its principal office.
8.7 Specific Performance. The parties recognize that the obligations
imposed on them in this Agreement are special, unique and of extraordinary
character, and that in the event of breach by any party, damages will be an
insufficient remedy; consequently, it is agreed that the parties hereto may have
specific performance (in addition to damages) as a remedy for the enforcement
hereof, without proving damages. No party shall raise any argument as to the
sufficiency of money damages.
8.8 Assignment. Except as otherwise provided herein, the terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the parties and their respective permitted successors and assigns; provided,
however, that this Agreement may not be assigned by the Company or any of the
Management Stockholders without the prior written consent of the Company, the
Principal Stockholder and the holders of at least 50% of the shares of Common
Stock held by all of the Management Stockholders and their Permitted Transferees
as a group, except that (i) the Company may assign its rights herein to any
successor to all or substantially
<PAGE>
31
all of its assets (by merger or otherwise); (ii) subject to Section 6
(Transferees Subject to Agreement), any Management Stockholder may assign its
rights under this Agreement to any Permitted Transferee of its shares of Common
Stock; and (iii) each Stockholder's rights under the Registration Rights
Agreement shall inure to the benefit of any holder of Registrable Securities (as
defined in the Registration Rights Agreement). Any purported assignment made in
violation of this Agreement shall be void and of no force and effect.
8.9 Third Party Beneficiary. Nothing in this Agreement, express or
implied, is intended or shall confer upon anyone other than the parties hereto
(and their respective permitted successors and assigns) any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
IN WITNESS WHEREOF, the parties hereto have hereunder signed their
names or have caused this Agreement to be duly executed by their officers
thereunder duly authorized as of the date first above written.
PCA INTERNATIONAL, INC.
By:________________________________
Authorized Officer
STOCKHOLDERS:
-----------------------------------
Name:
-----------------------------------
Name:
<PAGE>
32
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Name:
-----------------------------------
Name:
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Name:
-----------------------------------
Name:
-----------------------------------
Name:
-----------------------------------
Name:
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Name:
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Name:
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Name:
<PAGE>
33
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Name:
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Name:
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Name:
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Name:
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Name:
<PAGE>
EXHIBIT B
REPURCHASE PERCENTAGES
Anniversary from
Date of Agreement Repurchase Percentage
----------------- ---------------------
On or before 1st Anniversary 100%
Between 1st and on or before
2nd Anniversary 80%
Between 2nd and on or
before 3rd Anniversary 60%
Between 3rd and on or before
4th Anniversary 40%
Between 4th and on or before
5th Anniversary 20%
On or After 5th Anniversary 0%
<PAGE>
EXHIBIT C
================================================================================
REGISTRATION RIGHTS AGREEMENT
by and among
PCA INTERNATIONAL, INC.
and
CERTAIN OF THE HOLDERS OF ITS COMMON STOCK
Dated as of August , 1998
================================================================================
<PAGE>
TABLE OF CONTENTS
-----------------
PAGE
----
1. Demand Registrations..................................................1
2. Piggy-back Registration...............................................6
3. Registration Procedures...............................................8
4. Preparation; Reasonable Investigation................................14
5. Rule 144.............................................................15
6. Hold-Back............................................................15
7. Indemnification......................................................16
8. Participation in Underwritten Registrations..........................18
9. Registration Rights to Others........................................19
10. Definitions..........................................................19
<PAGE>
REGISTRATION RIGHTS AGREEMENT, dated as of August ___, 1998, by and
among PCA INTERNATIONAL, INC., a Delaware corporation (the "Company"), and each
of the other parties signatory hereto who own Common Stock of the Company and
are parties to that certain Stockholders Agreement, dated as of the date hereof,
among the Company and certain of the holders of the Common Stock of the Company
(the "Stockholders Agreement"). Capitalized terms used herein and not otherwise
defined shall have the meanings given them in Section 10.
The parties hereto agree as follows:
1. Demand Registrations.
(a) Request. Jupiter shall have the right from time to time to
make up to six written requests that the Company, subject to the provisions of
Sections 1(e) and (f), effect the registration under the 1933 Act of all or any
part of its Registrable Securities. Registrations requested pursuant to this
Section 1(a) are referred to herein as "Demand Registrations." Each request for
a Demand Registration shall specify the number of Registrable Securities
requested to be registered. Within 10 days after receipt of any such request,
the Company shall give written notice of the Demand Registration to all other
holders of Registrable Securities (such holders, together with Jupiter, are
referred to in this Section 1 as the "Selling Holders") and shall, subject to
Section 1(e), include in such registration all Registrable Securities with
respect to which the Company has received written requests for inclusion therein
within 15 days after the giving of the Company's notice; provided, that the
Company shall not be required to include in such registration any Registrable
Securities held by a Management Stockholder or any of his Permitted
<PAGE>
2
Transferees in excess of the Proportional Amount (as defined below). The term
"Proportional Amount," as of any date, shall mean an aggregate number of shares
of Common Stock equal to the product of (i) (A) prior to the 50% Disposition
Date, one-half of, and (B) after the 50% Disposition Date, 100% of, the total
number of shares of Registrable Securities held by such Management Stockholder
and his Permitted Transferees as of the date hereof (or, if such Management
Stockholder and his Permitted Transferees as a group have acquired additional
Registrable Securities after the date hereof in a manner that was not in
violation of the Stockholders Agreement, such greater number) multiplied by (ii)
a fraction, the numerator of which shall be the aggregate number of shares of
Registrable Securities requested to be included in such registration by Jupiter
and the denominator of which shall be the total number of shares of Registrable
Securities held by Jupiter as of the date hereof (or, if Jupiter has acquired
additional Registrable Securities after the date hereof in a manner that was not
in violation of the Stockholders Agreement, such greater number). For purposes
of the foregoing definition, there shall be included in the number of shares of
Registrable Securities all shares of Common Stock, including shares issued
pursuant to options that, as of the date of determination, are capable of being
exercised in accordance with the terms of the Option Plan or the related option
agreement and are "in-the-money," but, until the fifth anniversary of the date
hereof, shall not include any Management Roll-over Options that are subject to a
Call Option pursuant to Section 3.1.3 of the Stockholders Agreement.
<PAGE>
3
(b) Registration Statement Form. Registrations under this
Section 1 shall be on such appropriate registration form of the Commission as
shall be reasonably selected by the Company.
(c) Effective Registration Statement. A registration requested
pursuant to this Section 1 shall not be deemed to have been effected (i) unless
a registration statement with respect thereto has become effective and remained
effective in compliance with the provisions of the 1933 Act with respect to the
disposition of all Registrable Securities covered by such registration statement
until such time as all of such Registrable Securities have been disposed of in
accordance with the intended methods of disposition by the Selling Holders set
forth in such registration statement (unless the failure to so dispose of such
Registrable Securities shall be caused solely by reason of a failure on the part
of the Selling Holders); provided that such period need not exceed 180 days, or
(ii) if after it has become effective, such registration is interfered with by
any stop order, injunction or other order or requirement of the Commission or
other governmental agency or court for any reason not primarily attributable to
the Selling Holders and has not thereafter again become effective.
(d) Selection of Underwriters. If the Company or Jupiter
desires to engage an underwriter or underwriters with respect to an offering of
the Registrable Securities so to be registered, such underwriter shall be
selected by Jupiter and shall be reasonably acceptable to the Company.
(e) Priority in Demand Registration. If the managing
underwriter of any underwritten offering shall advise the Company (and the
Company
<PAGE>
4
shall so advise each Selling Holder of such advice) that, in its opinion, the
securities requested to be included in such registration exceeds the number
which can successfully be sold in such offering within a price range acceptable
to Jupiter, then the Company will include in such registration, to the extent of
the Registrable Securities which the Company is so advised can be sold in such
offering, first, all securities proposed to be registered by Jupiter and,
second, to the extent additional shares of Common Stock may be included in such
offering, all other shares proposed to be registered, pro rata among the other
Selling Holders of Registrable Securities participating in such registration
(relative to the number of Registrable Securities originally requested to be
registered by such Selling Holders) (subject, in the case of any Management
Stockholder or his Permitted Transferees, to the Proportional Amount
limitation); provided that if the number of Registrable Securities that such
managing underwriter advises can be sold in such offering is less than 75% of
all the Registrable Securities that Jupiter had requested be included, Jupiter
may withdraw its written request made pursuant to Section 1(a) (Demand
Registration) and such written request will not be considered a request for
registration for the purposes of Section 1(a).
(f) Limitations on Demand Registrations. Notwithstanding
anything in this Section 1 to the contrary, (i) in no event will the Company be
required to effect more than six registrations pursuant to this Section 1 upon
the request of Jupiter and (ii) the Company shall not be required to effect more
than one Demand Registration in any six-month period or within 90 days after a
previous offering of the Common Stock registered under the 1933 Act.
<PAGE>
5
(g) Company Delay. Notwithstanding anything herein to the
contrary, if, after Jupiter has given a written request under Section 1(a)
(Demand Registration), and prior to the effective date of the registration
statement filed in connection with such registration, the Board of Directors of
the Company shall deter mine in its good faith judgment that the filing of such
registration statement would be undesirable and would interfere with any
material financing, investment, acquisition or merger transaction then under
consideration or would reasonably in the judgment of the Board of Directors of
the Company adversely affect the interests of the Company and its stockholders,
the Company may decide to delay the registration of such Registrable Securities,
and if the Board of Directors of the Company makes such determination, the
Company shall give written notice of such determination to each Selling Holder.
Such delay shall be for the period the Company determines on the basis provided
above in good faith is necessary or desirable, but in no event greater than six
months. The Company shall notify Jupiter of the expiration of the period of
delay. Following such delay, the Company shall promptly cause the Registrable
Securities to be registered unless, within 15 days of receipt of notice from the
Company, Jupiter withdraws its written request made pursuant to Section 1
(Demand Registration), in which case, such written request will not be
considered a request for registration for the purposes of Section 1 (Demand
Registration) or 2 (Piggy-back Registration).
(h) Expenses. The Company will pay all Registration Expenses
(excluding any underwriting discounts or commissions with respect to the
<PAGE>
6
Registrable Securities) in connection with any registration requested pursuant
to this Section 1.
2. Piggy-back Registration.
(a) Right to Include Registrable Securities. If the Company
proposes to register any of its Common Stock under the 1933 Act by registration
on any form other than Forms S-4 or S-8 (or any successor form) for sale for its
own account, it will each such time give prompt written notice to all holders of
Registrable Securities of its intention to do so and of such holders' rights
under this Section 2 prior to the proposed registration. Upon the written
request of any such holder (a "Requesting Holder") made as promptly as
practicable and in any event within 15 days after the receipt of any such notice
(which request shall specify the Registrable Securities intended to be disposed
of by such Requesting Holder), the Company will file a registration statement
with respect to, and use all reasonable efforts to make effective at the
earliest possible date, the registration under the 1933 Act, subject to Section
2(b), of all Registrable Securities which the Company has been so requested to
register (provided that the Company shall not be required to include in such
registration any Registrable Securities held by any Management Stockholder or
his Permitted Transferees in excess of the Proportional Amount) by the
Requesting Holders thereof (each, a "Piggy-back Registration"); provided,
however, that if, at any time after giving written notice of its intention to
register any securities and prior to the effective date of the registration
statement filed in connection with such registration, the Company shall
determine for any reason not to register or to delay registration of such
securities, the Company may, at its election, give written notice
<PAGE>
7
of such determination to each Requesting Holder of Registrable Securities and
(i) in the case of a determination not to register, shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration (but not from any obligation of the Company to pay the Registration
Expenses in connection therewith), without prejudice, however, to the rights of
any holder or holders of Registrable Securities entitled to cause such
registration to be effected as a registration under Section 1 (Demand
Registration), and (ii) in the case of a determination to delay registering,
shall be permitted to delay registering any Registrable Securities for the same
period as the delay in registering such other securities. No registration
effected under this Section 2 shall relieve the Company of its obligation to
effect any Demand Registration under Section 1.
(b) Priority in Piggy-back Registrations. If the managing
underwriter of any underwritten offering shall inform the Company that the
Registrable Securities requested to be included in such registration exceeds the
number which can successfully be sold in such offering within a price range
acceptable to the Company, and the Company has so advised the Requesting Holders
in writing, then the Company will include in such registration, to the extent of
the Registrable Securities and other shares of Common Stock which the Company is
so advised can be sold in such offering, first, all securities proposed to be
registered by the Company for its own account, and second, to the extent
additional shares of Common Stock may be registered in such offering, all of the
Registrable Securities requested to be registered, pro rata (subject, in the
case of any Management Stockholder or his Permitted Transferees, to the
Proportional Amount limitation). In
<PAGE>
8
connection with any registration as to which this Section 2(b) applies, the
Requesting Holders shall have the right, upon written notice to the Company
within 10 days of receipt of notice from the Company, to withdraw from such
registration the Registrable Securities requested to be registered by such
Requesting Holders.
(c) Expenses. The Company will pay all Registration Expenses
(excluding any underwriting discounts or commissions with respect to the
Registrable Securities) in connection with any registration effected pursuant to
this Section 2.
3. Registration Procedures. If and whenever the Company is required to
use its reasonable efforts to make effective the registration of any Registrable
Securities under the 1933 Act as provided in Sections 1 (Demand Registration)
and 2 (Piggy-back Registration), the Company will, as expeditiously as possible:
(a) prepare and (within 90 days after the date a request for
registration is given to the Company but in any event as soon thereafter as
practicable) file with the Commission the requisite registration statement to
effect such registration and thereafter use all reasonable efforts to cause such
registration statement to become effective;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
to comply with the provisions of the 1933 Act and the rules and regulations of
the Commission thereunder with respect to the disposition of all Registrable
Securities
<PAGE>
9
covered by such registration statement, and furnish to each seller of
Registrable Securities, prior to the filing thereof a copy of any amendment or
supplement to such registration statement or prospectus;
(c) furnish to each seller of Registrable Securities covered
by such registration statement, such number of conformed copies of such
registration statement and of each such amendment and supplement thereto (in
each case including all exhibits), such number of copies of the prospectus
contained in such registration statement (including each preliminary prospectus
and any summary prospectus) and any other prospectus filed under Rule 424 under
the 1933 Act, and in each case, each amendment or supplement thereto, in
conformity with the requirements of the 1933 Act, such documents, if any,
incorporated by reference in such registration statement or prospectus, and such
other documents, as such seller may reasonably request;
(d) use all reasonable efforts (i) to register or qualify all
Registrable Securities and other securities covered by such registration
statement under such other securities or blue sky laws of such states of the
United States of America where an exemption is not available and as the sellers
of Registrable Securities covered by such registration statement shall
reasonably request, (ii) to keep such registration or qualification in effect
for so long as such registration statement remains in effect, and (iii) to take
any other action which may be reasonably necessary or advisable to enable such
sellers to consummate the disposition in such jurisdictions of the securities to
be sold by such sellers, except that the Company shall not for any such purpose
be required to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this
<PAGE>
10
Section 3(d) be obligated to be so qualified or to consent to general service of
process in any such jurisdiction or to subject itself to taxation in such
jurisdiction;
(e) use all reasonable efforts to cause all Registrable
Securities covered by such registration statement to be registered with or
approved by such other federal or state governmental agencies or authorities as
may be necessary in the opinion of counsel to the Company or counsel to the
seller or sellers of Registrable Securities to enable the seller or sellers
thereof to consummate the disposition of such Registrable Securities;
(f) furnish at the effective date of such registration
statement to each seller of Registrable Securities and each such seller's
underwriters, if any, a signed counterpart of an opinion of counsel for the
Company, addressed to such seller and underwriters, if any, dated the effective
date of such registration statement and, if applicable, the date of the closing
under the underwriting agreement, covering sub stantially the same matters with
respect to such registration statement (and the pros pectus included therein) as
are customarily covered in opinions of issuer's counsel delivered to the
underwriters in underwritten public offerings of securities and such other legal
matters as the underwriters may reasonably request;
(g) promptly notify each seller of Registrable Securities
covered by such registration statement at any time when a prospectus relating
thereto is required to be delivered under the 1933 Act, upon discovery that, or
upon the happening of any event as a result of which, the prospectus included in
such registration statement, as then in effect, includes an untrue statement of
a material fact or omits to state any material fact required to be stated
therein or necessary to make
<PAGE>
11
the statements therein not misleading, in the light of the circumstances under
which they were made, and promptly prepare and, at the request of any such
seller, furnish to it a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they were made;
(h) otherwise use all reasonable efforts to comply with all
applicable rules and regulations of the Commission, and make generally available
to its security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least 12 months, but not more than 18
months, beginning with the first full calendar month after the effective date of
such registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 promulgated thereunder,
and promptly furnish to each such seller of Regis trable Securities a copy of
any amendment or supplement to such registration state ment or prospectus;
(i) provide and cause to be maintained a transfer agent and
registrar (which, in each case, may be the Company) for all Registrable
Securities covered by such registration statement from and after a date not
later than the effective date of such registration;
(j) use all reasonable efforts to list all Registrable
Securities covered by such registration statement on any national securities
exchange on which
<PAGE>
12
Registrable Securities of the same class covered by such registration statement
are then listed (or, if other shares of Registrable Securities are so qualified,
qualify them for inclusion in the National Association of Securities Dealers
Automated Quotations National Market System, as the case may be);
(k) enter into such customary agreements (including an
underwriting agreement in customary form, including customary provisions
concerning indemnification of the underwriters by the Company) and take such
other actions as the sellers of Registrable Securities and the underwriters, if
any, reasonably request in order to expedite or facilitate the disposition of
such Registrable Securities;
(l) obtain a "cold comfort" letter or letters from the
Company's independent public accountants in customary form and covering matters
of the type customarily covered by "cold comfort" letters as the underwriters
may reasonably request;
(m) notify each seller of Registrable Securities and the
managing underwriter or agent, immediately, and confirm the notice in writing
(i) when the registration statement, or any post-effective amendment to the
registration statement, shall have become effective, or any supplement to the
prospectus or any amendment to the prospectus shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request of the
Commission to amend the registra tion statement or amend or supplement the
prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the registration
statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the
<PAGE>
13
Registrable Securities for sale in any jurisdiction, or of the institution or
threatening of any proceedings for any such purposes;
(n) use all reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of the registration statement at the earliest
possible time;
(o) cooperate with the sellers of Registrable Securities and
the managing underwriter or agent, if any, to facilitate the timely preparation
and delivery of certificates (not bearing any restrictive legends) representing
Registrable Securities to be sold, and enable such Registrable Securities to be
in such denomina tions and registered in such names as such sellers or the
managing underwriter or agent, if any, may reasonably request;
(p) cause its subsidiaries and affiliates to take all action
necessary or advisable to effect the registration of the Registrable Securities
contemplated hereby, including preparing and filing any required financial
informa tion;
(q) make its officers and employees available to participate
in presentations to potential purchasers of Registrable Securities; and
(r) use all reasonable efforts to take all other steps
necessary or advisable to effect the registration of the Registrable Securities
contemplated hereby.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish the Company such information
<PAGE>
14
regarding such seller and the distribution of such securities as the Company may
from time to time reasonably request in writing.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any written notice from the Company
of the happening of any event of the kind described in Section 3(g) (Company
Delay), such holder will forthwith discontinue such holder's disposition of
Registrable Securities pursuant to the registration statement relating to such
Registrable Securities until such holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 3(g) and, if so
directed by the Company, will deliver to the Company (at the Company's expense)
all copies, other than permanent file copies, then in such holder's possession
of the prospectus relating to such Registrable Securities current at the time of
receipt of such notice.
4. Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the 1933 Act
pursuant to this Agreement, the Company will give the holders of Registrable
Securities registered under such registration statement, the underwriters, if
any, and their respective counsel and accountants, the timely opportunity to
participate in the preparation of such registration statement, each prospectus
included therein or filed with the Commission, and each amendment thereof or
supplement thereto, and will give each of them such access to its books and
records and such opportunities to discuss the business of the Company with its
officers and the independent public accountants who have certified its financial
statements as shall be reasonably neces sary or advisable, in the opinion of
each of such holders and such underwriters'
<PAGE>
15
respective counsel, to conduct appropriate due diligence as contemplated by the
1933 Act.
5. Rule 144. So long as the Common Stock shall be registered pursuant
to the requirements of Section 12 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), the Company will file the reports required to be
filed by it under the Exchange Act and will take such further action as Jupiter
or the Management Stockholders, as the case may be, may reasonably request, all
to the extent required from time to time to enable Jupiter and the Management
Stockholders to sell Registrable Securities (to the extent permitted by the
Stockholders Agreement) without registration under the 1933 Act under the
exemptions provided by Rule 144, as such rule may be amended from time to time
("Rule 144"), or any similar rule or regulation hereafter adopted by the
Commission. Upon the request of Jupiter or any Management Stockholder, the
Company will deliver to Jupiter or such Management Stockholder, as the case may
be, a written statement as to whether it has complied with such requirements
and, if it has not so complied, stating that it will promptly do so.
6. Hold-Back. Each of the Company and each Stockholder holding
Registrable Securities, whether or not included in a registration statement
hereunder, agrees not to effect any public sale or distribution of shares of
Common Stock during the period specified by the managing underwriter or
underwriters of the underwritten offer being made pursuant to such registration
statement (which period shall not exceed seven days prior to and 180 days
following the effective date of such registra-
<PAGE>
16
tion statement), except as part of such registration, if and to the extent
reasonably requested by such managing underwriter or underwriters.
7. Indemnification.
(a) The Company agrees to indemnify, to the fullest extent
permitted by law, each holder of Registrable Securities, its partners, officers
and directors, agents and each person who controls such holder (within the
meaning of the 1933 Act) against all losses, claims, damages, liabilities and
expenses resulting from any untrue or alleged untrue statement of a material
fact contained in any registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, except insofar as the same are
caused by or contained in any information furnished in writing to the Company by
such holder expressly for use therein or by such holder's failure to deliver a
copy of the prospectus or any amendments or supplements thereto after the
Company has furnished such holder with a sufficient number of copies of the
same. In connection with an underwritten offering, the Company shall indemnify
such underwriters, their officers and directors and each person who controls
such underwriters (within the meaning of the 1933 Act) to the same extent as
provided above with respect to the indemnification of the holders of Registrable
Securities.
(b) In connection with any registration statement in which a
holder of Registrable Securities is participating, each such holder shall
furnish to the Company in writing such information and affidavits as the Company
reasonably requests for use in connection with any such registration statement
or prospectus and,
<PAGE>
17
to the extent permitted by law, shall indemnify the Company, its directors,
officers and agents and each person who controls the Company (within the meaning
of the 1933 Act) against any losses, claims, damages, liabilities and expenses
resulting from any untrue or alleged untrue statement of material fact contained
in the registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only to the extent that such untrue statement or
omission is contained in any information or affidavit so furnished in writing by
such holder; provided, that the obligation to indemnify shall be individual to
each holder and shall be limited to the net amount of proceeds received by such
holder from the sale of Registrable Securities pursuant to such registration
statement.
(c) Any person entitled to indemnification hereunder shall (i)
give prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification (provided that the failure to give prompt
notice shall not impair any person's right to indemnification hereunder to the
extent such failure has not prejudiced the indemnifying party) and (ii) unless
in such indemnified party's reasonable judgment a conflict of interest between
such indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemni fied party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not be
unreasonably withheld). An indemnifying party who is not
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entitled to, or elects not to, assume the defense of a claim shall not be
obligated to pay the fees and expenses of more than one counsel (and such local
counsel as may be necessary) for all parties indemnified by such indemnifying
party with respect to such claim, unless in the reasonable judgment of any
indemnified party a conflict of interest may exist between such indemnified
party and any other of such indemnified parties with respect to such claim.
(d) The indemnification provided for under this Agreement
shall remain in full force and effect regardless of any investigation made by or
on behalf of the indemnified party or any partner, officer, director or
controlling person of such indemnified party and shall survive the transfer of
securities. The Company also agrees to make such provisions, as are reasonably
requested by any indemnified party, for contribution to such party in the event
the Company's indemnification is unavailable for any reason.
8. Participation in Underwritten Registrations. Notwithstanding the
provisions of Sections 1 (Demand Registration) and 2 (Piggy-back Registration),
no person may participate in any registration hereunder which is underwritten
unless such person (i) agrees to sell such person's securities on the basis
provided in any under writing arrangements approved by the person or persons
entitled hereunder to approve such arrangements and (ii) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements;
provided that no holder of Registrable Securities included in any underwritten
registration shall be required to make any representations or warranties to the
Company or the underwriters other than
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representations and warranties regarding such holder and such holder's intended
method of distribution.
9. Registration Rights to Others. If the Company shall at any time
after the date hereof provide to any holder of any securities of the Company
rights with respect to the registration of such securities under the 1933 Act,
such rights shall not be in conflict with the rights provided to the holders of
Registrable Securities in this Agreement.
10. Definitions. As used in this Agreement, unless the context
otherwise requires, the following terms have the following respective meanings:
"Board" shall mean the Board of Directors of the Company.
"Call Shares" shall have the meaning specified in the Stockholders
Agreement.
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the 1933 Act. "Common Stock"
shall mean the authorized common stock of the Company, par value $.20 per share.
"50% Disposition Date" shall mean such time as the Principal
Stockholder has disposed of at least one-half of the shares of Common Stock
issued to the Principal Stockholder in connection with the merger of Jupiter
Acquisition Corp. with and into the Company.
"in-the-money" shall have the meaning specified in the Stockholders
Agreement.
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"Jupiter" shall mean the Principal Stockholder, as defined in the
Stockholders Agreement.
"Management Stockholders" shall have the meaning specified in the
Stockholders Agreement.
"1933 Act" shall mean the Securities Act of 1933, as amended.
"Proportional Amount" shall have the meaning specified in Section 1(a).
"Permitted Transferees" shall have the meaning specified in the
Stockholders Agreement.
"person" shall mean any individual, firm, corporation, limited
liability company, partnership, trust, incorporated or unincorporated
association, joint venture, joint stock company, government (or an agency or
political subdivision thereof) or other entity of any kind.
"Registrable Securities" shall mean any shares of Common Stock issued
or issuable to any of Jupiter, the Management Stockholders or any of their
transferees (but only if such transfer was made in compliance with the terms of
the Stockholders Agreement and such transferee became a party to the
Stockholders Agreement), but with respect to any particular share of Common
Stock, only until such time as such share (i) has been effectively registered
under the 1933 Act and disposed of in accordance with the registration statement
covering it, (ii) has been sold to the public pursuant to Rule 144 (or any
similar provision then in effect) under the 1933 Act, or (iii) has ceased to be
outstanding; provided that any shares of Common Stock issued or issuable to a
Management Stockholder whose employment
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21
with the Company and/or any of its subsidiaries has terminated shall only be
deemed to be Registrable Securities hereunder if such employment was terminated
Without Cause.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with Sections 1 (Demand Registration), 2
(Piggy-back Registration) or 3 (Registration Procedures), including, without
limitation, all registration and filing fees, all fees of the New York Stock
Exchange, Inc., other national securities exchanges or the National Association
of Securities Dealers, Inc., all fees and expenses of complying with federal
securities or blue sky laws, all word processing, duplicating and printing
expenses (including expenses of printing prospectuses and of certificates for
the Registrable Securities), messenger and delivery expenses, the fees and
disbursements of counsel for the Company and of its independent public
accountants, including the expenses of "cold comfort" letters required by or
incident to such performance and compliance, any fees and disburse ments of
underwriters customarily paid by issuers or sellers of securities (excluding any
underwriting discounts or commissions with respect to the Registrable
Securities), any fees and expenses associated with any road show, and the fees
and expenses of one counsel to the Selling Holders or the Requesting Holders, as
applicable (selected by Selling Holders or the Requesting Holders, as
applicable, representing at least 50% of the Registrable Securities covered by
such registration).
"Stockholders Agreement" shall have the meaning specified in the
introductory paragraph hereto and shall mean the Stockholders Agreement as in
effect on the date hereof.
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"Without Cause," with respect to a Management Stockholder, shall mean
the termination of such Management Stockholder's employment with the Company or
any of its subsidiaries for any reason (including due to death, Disability or
for Good Reason (as such terms are defined in the Stockholders Agreement)),
other than a termination for Cause (as defined in the Stockholders Agreement).
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
PCA INTERNATIONAL, INC.
By:________________________________
Name:
Title:
JUPITER PARTNERS II L.P.
By: GANYMEDE II LLC, its
General Partner
By:________________________________
Name:
MANAGEMENT STOCKHOLDERS:
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