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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13E-3
Final Amendment
RULE 13E-3 TRANSACTION STATEMENT
(Pursuant to Section 13(e) of
the Securities Exchange Act of 1934)
AT&T CAPITAL CORPORATION
(Name of Issuer)
AT&T CAPITAL CORPORATION
ANTIGUA ACQUISITION CORPORATION
THOMAS C. WAJNERT
(Name of Person(s) Filing Statement)
Common Stock, $.01 par value per share
(Title of Class of Securities)
002 06 J 100
(CUSIP Number of Class of Securities)
Antigua Acquisition Corporation AT&T Capital Corporation
1209 Orange Street 44 Whippany Road
Wilmington, Delaware 19801 Morristown, New Jersey 07962
Attn: Managing Director Attn: G. Daniel McCarthy, Esq.
(302) 658-7581 (201) 397-3000
(Name, Address and Telephone Number of Persons Authorized to
Receive Notices and Communications on Behalf of Person(s)
Filing Statement)
Copies to:
William R. Dougherty, Esq. John P. Mead, Esq.
Simpson Thacher & Bartlett Sullivan & Cromwell
425 Lexington Avenue 125 Broad Street
New York, New York 10017 New York, New York 10004
(212) 455-2000 (212) 558-4000
Steven A. Rosenblum, Esq.
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
(212) 403-1000
This statement is filed in connection with (check the appropriate box):
a.[X] The filing of solicitation materials or an information statement subject
to Regulation 14A, Regulation 14C or Rule 13e-3(c) under the Securities
Exchange Act of 1934.
b.[ ] The filing of a registration statement under the Securities Act of 1933.
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c.[ ] A tender offer.
d.[ ] None of the above.
Check the following box if the soliciting materials or information
statement referred to in checking box (a) are preliminary copies: [ ]
CALCULATION OF FILING FEE
================================================================================
Transaction Valuation* Amount of Filing Fee
- --------------------------------------------------------------------------------
$2,158,140,237 $431,629
================================================================================
* The amount shown was estimated solely for purposes of calculation of the
filing fee, based upon an assumed (i) 46,992,783 shares of common stock of
AT&T Capital Corporation outstanding and a merger price of $45.00 per share
and (ii) 2,248,973 stock options being cashed out at a price of $45.00 per
share and assuming a weighted average exercise price for the stock options
being cashed out of $25.6734 per share of Common Stock).
[X] Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form or
Schedule and the date of its filing.
Amount Previously Paid: Filing Party: AT&T Capital
$431,629 Corporation
Form or Registration No.: Date Filed: June 28, 1996
Schedule 14C
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INTRODUCTION
This Final Amendment supplements and amends the Rule 13e-3
Transaction Statement, as previously amended and supplemented (the "Statement"),
which was filed jointly by AT&T Capital Corporation, a Delaware corporation (the
"Company"), Antigua Acquisition Corporation, a Delaware corporation ("Merger
Sub"), and Thomas C. Wajnert, relating to the merger (the "Merger") of Merger
Sub with and into the Company.
All information set forth below should be read in conjunction
with the information contained or incorporated by reference in the Statement as
previously amended.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS.
Item 3(a)(2) of the Statement is hereby amended and supplemented
as follows:
On October 1, 1996, the Company announced the completion of the
Merger of Merger Sub with and into the Company, with the Company as the
surviving corporation. As a result of the Merger, stockholders of record of
Company Common Stock at the Effective Time will receive $45 in cash, without
interest, for each outstanding share of Company Common Stock (other than shares
held by the Company or Hercules Limited ("Holdings") or any subsidiary of
Holdings, and shares held by dissenting stockholders, if any).
ITEM 5. PLANS OR PROPOSALS OF THE ISSUER OR AFFILIATE.
Item 5 of the Statement is hereby amended and supplemented as
follows:
(a) The Merger was consummated by the filing of a
certificate of merger with the Secretary of State
of the State of Delaware on October 1, 1996.
(f) A Certification and Notice of Termination of
Registration under Section 12(g) of the Securities
Exchange Act of 1934 on Form 15 was filed by the
Company with the Securities and Exchange Commission
on October 1, 1996.
ITEM 10. INTEREST IN SECURITIES OF THE ISSUER.
Item 10(a) of the Statement is hereby amended and supplemented as
follows:
As a result of the Merger and the transactions consummated in
connection therewith, all of the Company's
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outstanding common stock is currently directly or indirectly owned by (i)
certain members of the Company's management (the "Management Investors"),
including Thomas C. Wajnert, Chairman of the Board and Chief Executive Officer
of the Company, and 24 other members of the Company's Corporate Leadership Team,
and (ii) GRS Holding Company Limited, a private United Kingdom holding
corporation engaged in the U.K. rail leasing business ("GRSH"), which on a fully
diluted basis is approximately 85% beneficially owned by Nomura International
plc, a wholly owned subsidiary of The Nomura Securities Co., Ltd. The Management
Investors own approximately 3.2% of the Common Stock, and GRSH indirectly owns
approximately 96.8% of the Common Stock.
ITEM 13. OTHER PROVISIONS OF THE TRANSACTION.
Item 13(a) of the Statement is hereby amended and supplemented as
follows:
As noted in the notice sent with a Letter of Transmittal and
related documents to stockholders of record of Company Common Stock at the
Effective Time, any such stockholder who wishes to exercise its appraisal rights
must do so on or before October 24, 1996 by making a written demand to the
Company at the address included in such notice.
ITEM 17. MATERIAL TO BE FILED AS EXHIBITS.
Item 17 of the Statement is hereby amended and supplemented as
follows:
(c)(4) Form of Subscription Agreement between Merger
Sub and individual Management Investors.
(c)(5) Form of Stock Purchase Agreements among
Merger Sub, Nomura Europe and individual
Management Investors.
(c)(6) Form of Sales Participation Agreements
between Nomura Europe and individual
Management Investors.
(c)(7) Form of Registration Rights Agreement between
Merger Sub and Holdings.
(c)(8) Form of Voting Trust Agreement between Thomas
Wajnert and individual Management Investors.
(c)(9) Form of Stock Option Agreements between the
Surviving Corporation and individual
Management Investors
(d)(2) Text of Press Release, dated October 1, 1996.
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SIGNATURES*
After due inquiry and to the best knowledge and belief of the
undersigned, the undersigned certify that the information set forth in this
statement is true, complete and correct.
Date: October 4, 1996
AT&T CAPITAL CORPORATION
By:/s/ EDWARD M. DWYER
-----------------------------
Name: Edward M. Dwyer
Title: Senior Vice President
and Chief Financial
Officer
/s/ THOMAS C. WAJNERT
-----------------------------
Thomas C. Wajnert
* Amendment No. 2 to the Rule 13e-3 Transaction Statement was signed by the
Company, Merger Sub and Thomas C. Wajnert. Since the corporate existence of
Merger Sub terminated at the Effective Time, only the Company and Thomas C.
Wajnert are signing this Final Amendment.
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EXHIBIT INDEX
Exhibit
No. Description
------- -----------
(c)(4) Form of Subscription Agreement between Merger Sub
and individual Management Investors.
(c)(5) Form of Stock Purchase Agreement among Merger
Sub, Nomura Europe and individual Management
Investors.
(c)(6) Form of Sale Participation Agreement between
Nomura Europe and individual Management Investors.
(c)(7) Form of Registration Rights Agreement between
Merger Sub and Holdings.
(c)(8) Form of Voting Trust Agreement between Thomas
Wajnert and individual Management Investors.
(c)(9) Form of Stock Option Agreement between the
Surviving Corporation and individual Management
Investors
(d)(2) Text of Press Release, dated October 1, 1996.
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[FORM OF
SUBSCRIPTION AGREEMENT]
SUBSCRIPTION AGREEMENT (hereinafter called this "Agreement"),
dated as of September __, 1996, between Antigua Acquisition Corporation, a
Delaware corporation ("Merger Sub"), and _______________ (the "Purchaser").
RECITALS
WHEREAS, Merger Sub has entered into an Agreement and Plan of
Merger, dated as of June 5, 1996, as amended (the "Merger Agreement"), among
AT&T Capital Corporation, a Delaware corporation (the "Company"), AT&T Corp., a
New York corporation, Hercules Limited, a Cayman Islands company ("Holdings"),
and Merger Sub, which is a wholly-owned subsidiary of Holdings, providing for
the merger (the "Merger") of Merger Sub with and into the Company, after which
the Company will continue its corporate existence as the surviving corporation
(the "Surviving Corporation");
WHEREAS, Merger Sub was recently incorporated for the
purpose of merging with and into the Company;
WHEREAS, in connection with the Merger, Merger Sub proposes to
agree to sell to a limited number of management investors in accordance with the
terms hereof the following:
(i) immediately prior to the Merger, in exchange for certain
shares of the Company presently held by such management investors,
shares of its Common Stock, par value $.01 per share ("Merger Sub Common
Stock"), each of which will be converted at the effective time of the
Merger (the "Effective Time") pursuant to the Merger Agreement into one
share of Common Stock, par value $.01 per share, of the Surviving
Corporation ("Surviving Corporation Common Stock") and
(ii) following the Merger, for cash (which, upon consent, may be
withheld from certain payments otherwise due to such management
investors upon the cash-out of certain options to purchase Company stock
presently held by such management investors), additional shares of
Surviving Corporation Common Stock;
WHEREAS, Merger Sub also intends to grant following the Merger
certain options to purchase shares of Surviving Corporation Common Stock, upon
certain terms and subject to certain conditions, to such management investors;
and
WHEREAS, this Agreement is one of several agreements (such
agreements other than this Agreement being herein referred
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to collectively as "Other Purchasers' Agreements") which have been, or which in
the future will be, entered into between the Company and other individuals who
are or will be key employees of the Company or one of its subsidiaries
(collectively, the "Other Purchasers").
NOW, THEREFORE, to implement the foregoing and in consideration
of the premises and of the mutual agreements contained herein, the parties
hereto agree as follows:
1. Pre-Merger Exchange of Stock.
(a) Subject to the terms and conditions of this Agreement, the
Purchaser agrees to purchase from Merger Sub, and Merger Sub agrees to sell to
the Purchaser at the First Closing described in Section 1(b) hereof, ______
shares (the "Merger Sub Shares") (which number of shares equals the product of
4.5 and the number of Pre-Merger Shares set forth below) of Merger Sub Common
Stock, for a purchase price of $10.00 per share, payable by the delivery to
Merger Sub of [(i)] ______ shares (the "Pre-Merger Shares") of Common Stock, par
value $.01 per share, of the Company purchased by the Purchaser pursuant to the
AT&T Capital Corporation 1993 Leveraged Stock Purchase Plan and/or the AT&T
Capital Corporation 1993 Long Term Incentive Plan (the "Stock Purchase Plans")
[and (ii) $5.00 in cash]. [NOTE - THE ADDITIONAL $5 IN CASH WILL BE NECESSARY TO
ROUND UP TO THE NEXT WHOLE MERGER SUB SHARE IN THE CASE OF PURCHASERS WHO
CURRENTLY HOLD AN ODD NUMBER OF PRE-MERGER SHARES]
(b) The closing of the purchase and sale of the Merger Sub Shares
(the "First Closing") shall take place on the Closing Date (as defined in the
Merger Agreement) immediately prior to the Effective Time and in the same
location as the Closing (as defined under the Merger Agreement). At the First
Closing, (i) the Purchaser will deliver to Merger Sub [(1)] the certificate or
certificates representing the Pre-Merger Shares, duly endorsed in blank or
accompanied by stock powers executed in blank with the Purchaser's signature
guaranteed by a member of the Medallion Signature Guarantee Program, and with
all necessary stock transfer stamps affixed [and (2) $5.00 in cash or by
certified check, bank cashier's check or bank money order payable to the order
of Merger Sub], representing payment in full for the Merger Sub Shares and (ii)
Merger Sub will deliver to the Purchaser a duly executed and issued stock
certificate, registered in the Purchaser's name and representing the Merger Sub
Shares.
(c) Upon the First Closing, the Pre-Merger Shares exchanged
pursuant hereto shall be deemed to be owned by the Parent Companies (as defined
in the Merger Agreement) and, as contemplated by Section 4.1(c) of the Merger
Agreement, at the Effective Time shall cease to be outstanding, be cancelled and
retired without payment of any consideration therefor and shall cease to exist.
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(d) The shares of Surviving Corporation Common Stock into which
the Merger Sub Shares will be converted at the Effective Time pursuant to the
Merger Agreement [and the Optional Shares (as hereinafter defined)] are
sometimes hereinafter [collectively] referred to as the "Investment Shares."
2. Conditions to the Obligations of the Parties at the
First Closing.
The obligations of the parties hereto to consummate the purchase
and sale contemplated by Section 1 hereof shall be subject to the condition
that, at or prior to the First Closing:
(i) The Company and the Purchaser shall have, to the extent
necessary, amended the terms of the stock purchase agreement under the
applicable Stock Purchase Plan pursuant to which the Purchaser purchased
the Pre-Merger Shares from the Company to permit the transfer of the
Pre-Merger Shares contemplated by Section 1 hereof;
(ii) The Company and the Purchaser shall have amended the terms
of the pledge agreement providing for the pledge of the Pre-Merger
Shares substantially in the form of the amendment attached hereto as
Exhibit E, and have made mutually satisfactory arrangements, to permit
the release of the Pre-Merger Shares for the purpose of the exchange
contemplated by Section 1 hereof and to permit the substitution of the
Merger Sub Shares as "Pledged Property" under the terms of such pledge
agreement; and
(iii) To the extent necessary, the Company shall have agreed that
the release of the Pre-Merger Shares and the substitution of the Merger
Sub Shares as pledged property therefor shall not require any prepayment
under the Purchaser's promissory note issued pursuant to the relevant
Stock Purchase Plan (the "Promissory Note").
3. [Optional Purchase of Shares of Stock;] Issuance
of Options.
[NOTE - THE PROVISIONS REGARDING THE SECOND CLOSING ARE ONLY REQUIRED FOR THOSE
PURCHASERS WHO ALSO ELECT TO INVEST SOME OR ALL OF 55% OF THE PRE-TAX GROSS
PROCEEDS OF THE CASH-OUT OF THEIR OPTIONS]
[(a) Subject to the terms and conditions of this Agreement, the
Purchaser agrees to purchase from the Surviving Corporation, and Merger Sub
agrees to sell to the Purchaser at the Second Closing described in Section 3(b)
hereof, ______ shares (the "Optional Shares") of Surviving Corporation Common
Stock, for a purchase price of $10.00 per share (for an aggregate purchase price
of $_________), payable in cash.
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(b) The closing of the purchase and sale of the Optional Shares
(the "Second Closing") shall take place as promptly as practical following the
Effective Time. At the Second Closing, the Surviving Corporation will deliver to
the Purchaser a duly executed and issued stock certificate, registered in the
Purchaser's name and representing the Optional Shares, against payment of the
purchase price therefor, at the option of the Purchaser, either (i) in cash or
by certified check, bank cashier's check or bank money order payable to the
order of the Surviving Corporation, representing payment in full therefor or
(ii) by way of set-off against the right of the Purchaser to receive cash as a
result of the conversion of the Purchaser's stock options pursuant to Section
4.1(b) of the Merger Agreement.]
[(c)] Subject to the terms and conditions of this Agreement, as
promptly as practical following the Effective Time the Surviving Corporation
shall grant to the Purchaser an option or options to purchase Surviving
Corporation Common Stock (the "Options") at an exercise price of $10.00 per
share pursuant to, in accordance with, and subject to the terms and conditions
contained in, the AT&T Capital Corporation 1996 Long Term Incentive Plan (the
"LTIP") and the Stock Option Agreement attached hereto as Exhibit A (the "Stock
Option Agreement").
[(d)] The Surviving Corporation and the Purchaser shall execute
and deliver to each other copies of the Stock Option Agreement concurrently with
the issuance of the Options.
4. Restriction on Transfer.
(a) Except for transfers permitted by clauses (y) and (z) of
Section 5(a) hereof or a sale of shares of Stock (as hereinafter defined)
pursuant to an effective registration statement under the Act filed by the
Surviving Corporation or pursuant to the Stock Purchase Agreement or the Sale
Participation Agreement (each as hereinafter defined), the Purchaser agrees that
he or she will not transfer, sell, assign, pledge, hypothecate or otherwise
dispose of any shares of Stock at any time prior to the tenth anniversary of the
date of the Effective Time, other than in connection with a sale in the public
market (subject to the provisions of Rule 144 where applicable) from and after a
sale of shares of Surviving Corporation Common Stock to the public pursuant to a
registration statement under the Act that has been declared effective by the SEC
(other than a registration statement on Form S-4 or Form S-8, or any successor
or other forms promulgated for similar purposes, or a registration statement in
connection with an offering to employees of the Surviving Corporation and its
subsidiaries) that results in an active trading market in the Surviving
Corporation Common Stock (the "QPO"), provided that such sale in the public
market shall be subject to such black-out period and/or other restrictions on
such sale as shall be reasonably requested by any underwriters in offerings of
the securities of the Surviving
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Corporation in order to insure the success of such offerings and provided
further that the number of shares that may be sold in each one-year period
following the QPO will be limited to the greater of (i) 25% of the total number
of shares of Stock, on a fully diluted basis, held by the Purchaser immediately
following the initial QPO and (ii) that number of shares of Surviving
Corporation Common Stock underlying the Options or any other stock options
issued by the Surviving Corporation held by the Purchaser as to which (A)
pursuant to the terms of such options, the Purchaser's right to purchase such
stock would expire during such one-year period and (B) such options are actually
exercised by the Purchaser.
(b) In addition to the foregoing Section 4(a) and notwithstanding
the exceptions thereto, the Purchaser further agrees that he or she will not at
any time transfer, sell, assign, pledge, hypothecate or otherwise dispose of any
shares of Stock at any time, directly or indirectly, to any competitor or
prospective competitor of the Company or to any affiliate of such a person,
other than:
(i) in connection with a sale to a third party pursuant to the
Stock Purchase Agreement or the Sale Participation Agreement;
(ii) in an underwritten public offering upon the exercise of the
rights provided for under the Registration Rights Agreement (as
hereinafter defined); or
(iii) pursuant to a sale effected (when otherwise permitted under
this Agreement) through an open market, nondirected broker's transaction
in which the Purchaser as seller does not know the buyer is a competitor
or prospective competitor.
(c) No transfer of any such shares in violation hereof shall be
made or recorded on the books of the Company and any such attempted transfer
shall be void and of no effect.
(d) Notwithstanding the foregoing or the terms of the Stock
Purchase Agreement or the Sale Participation Agreement, if (i) at any time, the
Purchaser experiences an unexpected personal hardship or (ii) following the
fifth anniversary of the Effective Time, the Purchaser desires liquidity for his
or her Investment Shares for any personal reason, the Purchaser may deliver a
written request to the Compensation Committee of the Board of Directors of the
Surviving Corporation (directed to the attention of the Secretary of the
Corporation) that the Purchaser be permitted to sell some or all of his or her
Investment Shares. Although it is Merger Sub's present intention to make
reasonable efforts to provide liquidity to the Purchaser in such circumstances,
nothing contained in this Agreement should be construed as establishing any
obligation on the Surviving Corporation or any of its Affiliates to purchase any
Investment
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Shares from the Purchaser, other than the Purchaser's rights pursuant to the
Stock Purchase Agreement entered into with Nomura International plc, a public
limited company incorporated under the laws of England and Wales ("NIplc"). Any
decision to purchase, or to arrange a purchase of, Surviving Corporation Common
Stock from the Purchaser under such circumstances will be made in the sole
discretion of the Surviving Corporation and its Affiliates on a case-by-case
basis, based upon the facts and circumstances that exist at the time of the
Purchaser's request.
(e) If on or before the tenth anniversary of the Effective Time
there has been neither a Change of Control (as defined in the Stock Option
Agreement) nor sales to the public constituting a QPO (as defined in the Stock
Option Agreement) representing aggregate Offering Percentages (as defined in the
Stock Option Agreement) of at least 50%, the Surviving Corporation will use its
best efforts to arrange, at its election, either a Proposed Sale (as defined in
the Sale Participation Agreement) that will constitute a Change of Control (in
connection with which, under the Sale Participation Agreement, the Purchaser and
certain other persons will be entitled to certain sale participation rights with
respect to all Investment Shares then held) or an offering or offerings of
shares of Surviving Corporation Common Stock such that a QPO has occurred and
the aggregate Offering Percentages represented by sales to the public of
Surviving Corporation Common Stock is at least 50%, in either case within six
months of the tenth anniversary of the Effective Time. The six-month period set
forth in the preceding sentence may be extended by the Surviving Corporation,
with the consent of the holders of at least 60% of the aggregate of the
Investment Shares and the Investment Shares (as defined in the Other Purchasers'
Agreements) then outstanding (without regard to the ability of stockholders to
direct the vote of the trustee under the Voting Trust Agreement (as hereinafter
defined)); provided that any such extension or series of extensions shall not
exceed a period of two years in the aggregate.
5. Purchaser's Representations, Warranties and
Agreements.
(a) The Purchaser hereby represents and warrants that he is
acquiring the Merger Sub Shares [and the Optional Shares] and, at the time of
exercise, the Surviving Corporation Common Stock issuable upon exercise of the
Options (collectively, the "Stock") for investment for his or her own account
and not with a view to, or for resale in connection with, the distribution or
other disposition thereof. The Purchaser agrees and acknowledges that he or she
will not, directly or indirectly, offer, transfer, sell, assign, pledge,
hypothecate or otherwise dispose of ("Transfer") any shares of the Stock unless
such Transfer complies with Section 4 of this Agreement and (i) such Transfer is
pursuant to an effective registration statement under the Securities Act of
1933, as amended, or the rules and regulations
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in effect thereunder (the "Act") or (ii) counsel for the Purchaser (which shall
be reasonably satisfactory to the Company) shall have furnished the Company with
an opinion, satisfactory in form and substance to the Company, that no such
registration is required because of the availability of an exemption from
registration under the Act. Notwithstanding the foregoing, Merger Sub
acknowledges and agrees that any of the following transfers are deemed to be in
compliance with the Act and this Agreement and no opinion of counsel is required
in connection therewith: (x) a transfer made pursuant to Section 4 hereof, (y) a
transfer upon the death of the Purchaser to his or her executors,
administrators, testamentary trustees, legatees or beneficiaries (the
"Purchaser's Estate") or a transfer to the executors, administrators,
testamentary trustees, legatees or beneficiaries of a person who has become a
holder of Stock in accordance with the terms of this Agreement, provided that it
is expressly understood that any such transferee shall be bound by the
provisions of this Agreement and (z) a transfer made after the date of the
purchase of the Stock in compliance with the federal securities laws to a trust
or custodianship the beneficiaries of which may include only the Purchaser, his
or her spouse or the Purchaser's lineal descendants (a "Purchaser's Trust") or a
transfer made to such a trust by a person who has become a holder of Stock in
accordance with the terms of this Agreement, provided, in each such case under
clause (z), that such transfer is made expressly subject to this Agreement and
that the transferee agrees in writing to be bound by the terms and conditions
hereof.
(b) The certificate (or certificates) representing the
Stock shall bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE
DISPOSED OF UNLESS SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION COMPLIES WITH THE PROVISIONS
OF THE SUBSCRIPTION AGREEMENT DATED AS OF SEPTEMBER __, 1996
BETWEEN AT&T CAPITAL CORPORATION, AS SUCCESSOR BY MERGER TO
ANTIGUA ACQUISITION CORPORATION (THE "CORPORATION"), AND THE
PURCHASER NAMED ON THE FACE HEREOF (A COPY OF WHICH IS ON FILE
WITH THE SECRETARY OF THE CORPORATION). EXCEPT AS OTHERWISE
PROVIDED IN SUCH AGREEMENT, NO TRANSFER, SALE, ASSIGNMENT,
PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE SHARES
REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT (A) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"), OR (B) IF (I) THE CORPORATION
HAS BEEN FURNISHED WITH A SATISFACTORY OPINION OF COUNSEL FOR THE
HOLDER THAT SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT FROM THE PROVISIONS
OF
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SECTION 5 OF THE ACT OR THE RULES AND REGULATIONS IN EFFECT
THEREUNDER, AND IN COMPLIANCE WITH APPLICABLE PROVISIONS OF STATE
SECURITIES LAWS, AND (II) IF THE HOLDER IS A CITIZEN OR RESIDENT
OF ANY COUNTRY OTHER THAN THE UNITED STATES, OR THE HOLDER
DESIRES TO EFFECT ANY SUCH TRANSACTION IN ANY SUCH COUNTRY, THE
CORPORATION HAS BEEN FURNISHED WITH A SATISFACTORY OPINION OR
OTHER ADVICE OF COUNSEL FOR THE HOLDER THAT SUCH TRANSACTION WILL
NOT VIOLATE THE LAWS OF SUCH COUNTRY."
(c) The Purchaser acknowledges that he or she has been advised
that (i) the Stock has not been registered under the Act, (ii) except as set
forth herein and in the Stock Purchase Agreement and the Sale Participation
Agreement, the Stock must be held indefinitely and the Purchaser must continue
to bear the economic risk of the investment in the Stock unless it is
subsequently registered under the Act or an exemption from such registration is
available, (iii) it is not anticipated that there will be any public market for
the Stock, (iv) Rule 144 promulgated under the Act is not currently available
with respect to the sales of any securities of the Company, and the Company has
made no covenant to make such Rule available (except as provided in Section 7(b)
hereof), (v) when and if shares of the Stock may be disposed of without
registration in reliance on Rule 144, such disposition can be made only in
limited amounts in accordance with the terms and conditions of such Rule, (vi)
if the Rule 144 exemption is not available, public sale without registration
will require compliance with Regulation A or some other exemption under the Act,
(vii) a restrictive legend in the form heretofore set forth shall be placed on
the certificates representing the Stock and (viii) a notation shall be made in
the appropriate records of the Company indicating that the Stock is subject to
restriction on Transfer and, if the Company should at some time in the future
engage the services of a stock transfer agent, appropriate stop transfer
restrictions will be issued to such transfer agent with respect to the Stock.
(d) If any shares of the Stock are to be disposed of in
accordance with Rule 144 under the Act or otherwise, the Purchaser shall
promptly notify the Company of such intended disposition and shall deliver to
the Company at or prior to the time of such disposition such documentation as
the Company may reasonably request in connection with such sale and, in the case
of a disposition pursuant to Rule 144, shall deliver to the Company an executed
copy of any notice on Form 144 required to be filed with the Securities and
Exchange Commission (the "SEC").
(e) The Purchaser agrees that, if any shares of the capital stock
of the Company are offered to the public pursuant to an effective registration
statement under the Act, the Purchaser will not effect any public sale or
distribution of any shares of the Stock not covered by such registration
statement
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9
within 7 days prior to, or within 180 days after, the effective date of such
registration statement (or such lesser period as the managing underwriter of any
such offering may permit), unless otherwise agreed to in writing by the Company.
(f) The Purchaser represents and warrants that (i) he or she has
received and reviewed a Private Placement Memorandum (the "Private Placement
Memorandum") relating to the Stock and the documents referred to therein,
certain of which documents set forth the rights, preferences and restrictions
relating to the Stock, (ii) he or she has been given the opportunity to obtain
any additional information or documents, to consult with his or her legal,
financial and other advisors and to ask questions and receive answers about such
documents, Merger Sub, the Company and the business and prospects of the Company
and the Surviving Corporation that he or she deems necessary to evaluate the
merits and risks related to his or her investment in the Stock and to verify the
information contained in the Private Placement Memorandum, and he or she has
relied solely on the information contained in the Private Placement Memorandum
and (iii) he or she acknowledges and agrees that neither Merger Sub nor the
Company, nor any other person, makes any representation or warranty with respect
to any such information other than as, and solely to the extent, expressly set
forth in this Agreement.
(g) The Purchaser further represents and warrants that (i) his or
her financial condition is such that he or she can afford to bear the economic
risk of holding the Stock for an indefinite period of time and has adequate
means for providing for his or her current needs and personal contingencies,
(ii) he or she can afford to suffer a complete loss of his or her investment in
the Stock, (iii) all information which he or she has provided to Merger Sub or
the Company concerning himself or herself and his or her financial position is
correct and complete as of the date of this Agreement, (iv) he or she
understands and has taken cognizance of all risk factors related to the purchase
of the Stock, including those set forth in the Private Placement Memorandum
referred to above, and (v) his or her knowledge and experience in financial and
business matters are such that he or she is capable of evaluating the merits and
risks of his or her purchase of the Stock as contemplated by this Agreement.
6. Stock Issued to the Purchaser Upon Exercise of
Stock Options.
The Surviving Corporation may from time to time grant to the
Purchaser, in addition to the Options, options to purchase additional shares of
Surviving Corporation Common Stock at $10.00 per share or at a different option
exercise price under the LTIP or another stock option or incentive plan, or
shares of stock under the LTIP or another incentive plan or otherwise. The term
"Stock" as used in this Agreement shall include all shares of Surviving
Corporation Common Stock purchased by the Purchaser pursuant to this Agreement
or issued to the Purchaser by the
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10
Surviving Corporation upon exercise of the Options and of any other stock
options held by the Purchaser and any other Surviving Corporation Common Stock
otherwise acquired by the Purchaser at any time when this Agreement is in
effect.
7. Merger Sub's Representations, Warranties and
Agreements.
(a) Merger Sub represents and warrants to the Purchaser that (i)
this Agreement has been duly authorized, executed and delivered by Merger Sub
and (ii) the Stock, when issued and delivered in accordance with the terms
hereof, will be duly and validly issued, fully paid and nonassessable.
(b) If the Surviving Corporation shall have engaged in a QPO, (i)
the Surviving Corporation will file the reports required to be filed by it under
the Act and the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations adopted by the SEC thereunder, to the
extent required from time to time to enable the Purchaser to sell shares of
Stock, to the extent otherwise permitted under this Agreement, within the
limitations of the exemptions provided by (A) Rule 144 under the Act, as such
Rule may be amended from time to time, or (B) any similar rule or regulation
hereafter adopted by the SEC and (ii) the Surviving Corporation shall use
reasonable efforts to register such shares of Stock, to the extent not
previously registered under the Act and to the extent required from time to time
to enable the Purchaser to sell shares of Stock, to the extent otherwise
permitted under this Agreement, without being subject to any minimum holding
period for such Stock under (x) Rule 144 under the Act, as such Rule may be
amended from time to time, or (y) any similar rule or regulation hereafter
adopted by the SEC. Notwithstanding anything contained in this Section 7(b), the
Company may deregister Stock under Section 12 of the Exchange Act if it is then
permitted to do so pursuant to the Exchange Act and the rules and regulations
thereunder. Nothing in this Section 7(b) shall be deemed to limit in any manner
the restrictions on sales of Stock contained in this Agreement.
8. "Piggyback" Registration Rights.
(a) For so long as any of the shares of Stock held by the
Purchaser, the Purchaser's Trust or the Purchaser's Estate remain unregistered,
the Purchaser hereby agrees to be bound by all of the terms, conditions and
obligations of the Registration Rights Agreement of even date herewith (the
"Registration Rights Agreement") among the Company, Holdings and the other
persons who become parties thereto and, subject to the limitations set forth in
this Section 8, shall have all of the rights and privileges of the Registration
Rights Agreement, in each case as if the Purchaser were an original party (other
than Merger Sub); provided, however, that the Purchaser shall not have any
rights to request registration under Sections 3 or 4 of the Registration
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11
Rights Agreement; provided further, that the Purchaser shall have no rights to
request registration under the Registration Rights Agreement to the extent that
the Purchaser would be able to sell, to the extent otherwise permitted under
this Agreement, shares of Stock pursuant to Rule 144 under the Act or another
available exception to registration; and provided further, that the Purchaser
shall not be bound by any amendments to the Registration Rights Agreement unless
the Purchaser consents thereto. Notwithstanding anything to the contrary
contained in the Registration Rights Agreement, the Purchaser's rights and
obligations under the Registration Rights Agreement shall be subject to the
limitations and additional obligations set forth in this Section 8, including,
without limitation, the limitations on registration set forth in Section 8(c)
hereof. All shares of Stock held by the Purchaser, the Purchaser's Trust or the
Purchaser's Estate shall be deemed to be "Registrable Securities" as defined in
the Registration Rights Agreement.
(b) The Surviving Corporation will promptly notify the Purchaser
in writing (a "Notice") upon the Surviving Corporation's receipt of a written
request ("Holdings' Request") from Holdings requesting that the Surviving
Corporation effect the registration under the Act of all or part of Holdings'
Registrable Securities (as defined in the Registration Rights Agreement)
("Holdings' Requested Registration") pursuant to Section 4(a) of the
Registration Rights Agreement. If within 15 days of the receipt by the Purchaser
of such Notice, the Surviving Corporation receives from the Purchaser, the
Purchaser's Trust or the Purchaser's Estate a written request (a "Purchaser's
Request") (which request will be irrevocable unless otherwise mutually agreed to
in writing by the Purchaser and the Surviving Corporation) that the Surviving
Corporation effect the registration under the Act of all or part of the
Registrable Securities (as defined in the Registration Rights Agreement) held by
the Purchaser, the Purchaser's Trust or the Purchaser's Estate, as the case may
be, and specifying the amount and intended method of disposition thereof (the
"Purchaser's Requested Registration"), the Surviving Corporation will, as
expeditiously as possible, use reasonable efforts to effect the registration
under the Act of the Purchaser's Requested Registration so as to permit the
disposition (in accordance with the intended method thereof as aforesaid) of the
Purchaser's Registrable Securities so to be registered; provided, however, that
the Company shall have no obligation to register the Purchaser's Registrable
Securities pursuant to this Section 8(b) unless the Surviving Corporation has
effected Holdings' Requested Registration in response to the Holdings' Request
in accordance with Section 4(d) of the Registration Rights Agreement; and
provided further that for each such registration, only one Purchaser's Request,
which shall be executed by the Purchaser, the Purchaser's Trust or the
Purchaser's Estate, as the case may be, may be submitted for all of the
Purchaser's Registrable Securities.
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12
(c) The maximum number of the Purchaser's shares of Stock that
the Surviving Corporation will be required to register under the Act pursuant to
a Purchaser's Request will be the lowest of (i) that number of shares of Stock
equal to the product of the total number of all Investment Shares purchased by
the Purchaser under this Agreement multiplied by a fraction, the numerator of
which is the number of shares of Surviving Corporation Common Stock to be
registered in such registration on behalf of Holdings and the denominator of
which is the total number of shares of Surviving Corporation Common Stock held
by Holdings immediately following the Effective Time, (ii) 25% of the total
number of Investment Shares purchased by the Purchaser under this Agreement and
(iii) the Purchaser's share (pro rata based upon the aggregate number of
Registrable Securities which the Purchaser and all other persons having
registration rights under the Registration Rights Agreement (other than
Holdings) have requested to be registered) of the maximum number of Registrable
Securities which the Surviving Corporation can register pursuant to this Section
8 and Section 4 of the Registration Rights Agreement without, in the good faith
view of the underwriters, adverse effect on the offering. The maximum number of
shares of Stock that the Surviving Corporation will be required to register
under the Act pursuant to all Purchaser's Requests in the aggregate will be that
number that equals 25% of the total number of Investment Shares purchased by the
Purchaser under this Agreement.
(e) Upon delivering a Purchaser's Request the Purchaser will, if
requested by the Surviving Corporation, execute and deliver a custody agreement
and power of attorney in form and substance satisfactory to the Surviving
Corporation with respect to the shares of Stock to be registered pursuant to
this Section 8 (a "Custody Agreement and Power of Attorney"). The Custody
Agreement and Power of Attorney will provide, among other things, that the
Purchaser will deliver to and deposit in custody with the custodian and
attorney-in-fact named therein a certificate or certificates representing such
shares of Stock (duly endorsed in blank by the registered owner or owners
thereof or accompanied by duly executed stock powers in blank) and irrevocably
appoint said custodian and attorney-in-fact as the Purchaser's agent and
attorney-in-fact with full power and authority to act under the Custody
Agreement and Power of Attorney on the Purchaser's behalf with respect to the
matters specified therein.
(f) The Purchaser agrees that he will execute such other
agreements as the Surviving Corporation may reasonably request to further
evidence the provisions of this Section 8.
9. Rights to Negotiate Repurchase Price.
Nothing in this Agreement, the Stock Purchase Agreement or the
Sale Participation Agreement shall be deemed to restrict or prohibit the
Surviving Corporation from purchasing shares of
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13
Stock or options from the Purchaser, at any time, upon such terms and
conditions, and for such price, as may be mutually agreed upon between the
parties hereto, (i) whether or not at the time of such purchase circumstances
exist which specifically grant any persons the right to purchase, or the
Purchaser the right to sell, such shares and (ii) notwithstanding the fact that
none of this Agreement, the Stock Purchase Agreement or the Sale Participation
Agreement provide the Surviving Corporation or the Purchaser with any rights
with respect to the repurchase by the Surviving Corporation of options.
10. Covenant Regarding 83(b) Election.
Except as the Surviving Corporation may otherwise agree in
writing, the Purchaser hereby covenants and agrees that he or she will make an
election provided pursuant to Treasury Regulation 1.83-2 with respect to the
Investment Shares; and the Purchaser further covenants and agrees that he or she
will furnish the Surviving Corporation with copies of the forms of election the
Purchaser files within 30 days after the date hereof.
11. Notice of Change of Beneficiary.
Immediately prior to any Transfer of Stock to a Purchaser's
Trust, the Purchaser shall provide the Surviving Corporation with a copy of the
instruments creating the Purchaser's Trust and with the identity of the
beneficiaries of the Purchaser's Trust. The Purchaser shall notify the Surviving
Corporation immediately prior to any change in the identity of any beneficiary
of the Purchaser's Trust.
12. Recapitalizations, etc.
The provisions of this Agreement shall apply, to the full extent
set forth herein with respect to the Stock or the Options, to any and all shares
of capital stock of the Surviving Corporation or any capital stock, partnership
units or any other security evidencing ownership interests in any successor or
assign of the Surviving Corporation (whether by merger, consolidation, sale of
assets or otherwise) which may be issued in respect of, in exchange for, or
substitution of the Stock or the Options, by reason of any stock dividend,
split, reverse split, combination, recapitalization, liquidation,
reclassification, merger, consolidation or otherwise.
13. Purchaser's Employment by the Surviving
Corporation.
Nothing contained in this Agreement or in any other agreement
entered into by Merger Sub or any other person and the Purchaser
contemporaneously with the execution of this Agreement (i) obligates the
Surviving Corporation or any subsidiary of the Surviving Corporation to employ
the Purchaser in any capacity
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14
whatsoever or (ii) prohibits or restricts the Surviving Corporation (or any such
subsidiary) from terminating the employment, if any, of the Purchaser at any
time or for any reason whatsoever, with or without cause, and the Purchaser
hereby acknowledges and agrees that, except to the extent that certain
information, if any, with respect to his or her employment has been delivered to
the Purchaser in writing, neither Merger Sub nor the Company, nor any other
person, has made any representations or promises whatsoever to the Purchaser
concerning the Purchaser's employment or continued employment by the Surviving
Corporation or any of the terms and conditions of such employment.
14. State and Foreign Securities Laws.
Merger Sub hereby agrees to use its best efforts to comply with
all state securities or "blue sky" laws and all foreign securities laws which
might be applicable to the sale of the Stock and the issuance of the Options to
the Purchaser.
15. Agreement to Extend Promissory Notes of
the Purchaser.
Merger Sub and the Purchaser hereby agree that, as promptly as
practicable following, and effective as of, the Effective Time, the Surviving
Corporation and the Purchaser shall amend the Promissory Note substantially in
the form of the amendment attached hereto as Exhibit F. Merger Sub also agrees
to extend further the Maturity Date (as defined in the Promissory Note) to the
extent that, at the time that such Maturity Date would otherwise occur, the then
existing restrictions on transferability under this Agreement would not permit
the sale of that number of shares of Stock such that the proceeds from such sale
are an amount at least equal to the remaining principal balance and accrued
interest on the Promissory Note; provided that the Surviving Corporation shall
not be obligated to extend such Maturity Date at any time that there are no
restrictions on the number of shares of Stock that may be sold.
16. Other Agreements.
Contemporaneously with the execution of this Agreement, the
Purchaser is entering into (i) the Stock Purchase Agreement in the form attached
hereto as Exhibit B (the "Stock Purchase Agreement") with Merger Sub and NIplc,
(ii) the Sale Participation Agreement in the form attached hereto as Exhibit C
(the "Sale Participation Agreement") with NIplc and (iii) the Voting Trust
Agreement in the form attached hereto as Exhibit D (the "Voting Trust
Agreement") with Thomas C. Wajnert, not individually but solely in his capacity
as trustee under the Voting Trust Agreement, Merger Sub and the Other
Purchasers.
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15
17. Binding Effect.
The provisions of this Agreement shall be binding upon and accrue
to the benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns. In the case of a transferee permitted
under Section 5(a) hereof, such transferee shall be deemed the Purchaser
hereunder; provided, however, that no transferee (including without limitation,
transferees referred to in Section 5(a) hereof) shall derive any rights under
this Agreement unless and until such transferee has delivered to the Surviving
Corporation a valid undertaking and becomes bound by the terms of this
Agreement.
18. Amendment.
This Agreement may be amended only by a written instrument signed
by the parties hereto.
19. Applicable Law.
The laws of the State of Delaware shall govern the
interpretation, validity and performance of the terms of this Agreement,
regardless of the law that might be applied under principles of conflicts of
law. Any suit, action or proceeding against the Purchaser, with respect to this
Agreement, or any judgment entered by any court in respect of any thereof, may
be brought in any court of competent jurisdiction in the State of New Jersey, as
the Surviving Corporation may elect in its sole discretion, and the Purchaser
hereby submits to the non-exclusive jurisdiction of such courts for the purpose
of any such suit, action, proceeding or judgment. By the execution and delivery
of this Agreement, the Purchaser appoints the Secretary of the Surviving
Corporation, at the executive offices of the Surviving Corporation in
Morristown, New Jersey (or such other place within the State of New Jersey as
may be designated for such purpose), as his or her agent upon which process may
be served in any such suit, action or proceeding. Service of process upon such
agent, together with notice of such service given to the Purchaser in the manner
provided in Section 21 hereof, shall be deemed in every respect effective
service of process upon the Purchaser in any suit, action or proceeding. Nothing
herein shall in any way be deemed to limit the ability of the Surviving
Corporation to serve any such writs, process or summonses in any other manner
permitted by applicable law or to obtain jurisdiction over the Purchaser, in
such other jurisdictions and in such manner, as may be permitted by applicable
law. The Purchaser hereby irrevocably waives any objections which he or she may
now or hereafter have to the laying of the venue of any suit, action or
proceeding arising out of or relating to this Agreement brought in any court of
competent jurisdiction in the State of New Jersey, and hereby further
irrevocably waives any claim that any such suit, action or proceeding brought in
any such court has been brought in any inconvenient forum. No suit, action or
proceeding against the Surviving Corporation with respect to this Agreement may
be
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16
brought in any court, domestic or foreign, or before any similar domestic or
foreign authority other than in a court of competent jurisdiction in the State
of New Jersey, and the Purchaser hereby irrevocably waives any right which he or
she may otherwise have had to bring such an action in any other court, domestic
or foreign, or before any similar domestic or foreign authority. Merger Sub, on
behalf of itself and the Surviving Corporation, hereby submits to the
jurisdiction of such courts for the purpose of any such suit, action or
proceeding.
20. Miscellaneous.
In this Agreement (i) all references to "dollars" or "$" are to
United States dollars and (ii) the word "or" is not exclusive. If any provision
of this Agreement shall be declared illegal, void or unenforceable by any court
of competent jurisdiction, the other provisions shall not be affected, but shall
remain in full force and effect.
21. Notices.
All notices and other communications provided for herein shall be
in writing and shall be deemed to have been duly given if delivered by hand
(whether by overnight courier or otherwise) or sent by registered or certified
mail, return receipt requested, postage prepaid, to the party to whom it is
directed:
(i) If to Merger Sub or the Surviving Corporation, to it at the
following address:
Antigua Acquisition Corporation
c/o AT&T Capital Corporation
or
AT&T Capital Corporation
44 Whippany Road
Morristown, New Jersey 07960
Attention: Vice President - Human Resources
with a copy to:
AT&T Capital Corporation
44 Whippany Road
Morristown, New Jersey 07960
Attention: General Counsel
(ii) If to the Purchaser, to him at the address set forth below
under his signature;
or at such other address as either party shall have specified by notice
in writing to the other.
Any notice which is required to be given to the Purchaser shall, if the
Purchaser is then deceased, be given to the Purchaser's
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17
personal representative if such representative has previously informed the
Surviving Corporation of his or her status and address by written notice under
this Section 21.
22. Confidential Information.
(a) The Purchaser will not disclose or use at any time, any
Confidential Information (as hereinafter defined) of which the Purchaser is or
becomes aware, whether or not such information is developed by the Purchaser,
except to the extent that such disclosure or use is directly related to and
required by the Purchaser's performance of duties, if any, assigned to the
Purchaser by the Surviving Corporation. As used in this Agreement, the term
"Confidential Information" means information that is not generally known to the
public and that is used, developed or obtained by the Surviving Corporation or
its subsidiaries in connection with its business, including but not limited to
(i) products or services, (ii) fees, costs and pricing structures, (iii)
information regarding business and strategic plans, including, without
limitation, any potential corporate or business transactions or other corporate
developments, (iv) computer software, including operating systems, applications
and program listings, (v) flow charts, manuals and documentation, (vi) data
bases, (vii) accounting and business methods, (viii) inventions, devices, new
developments, methods and processes, whether patentable or unpatentable and
whether or not reduced to practice, (ix) customers and clients and customer or
client lists, (x) other copyrightable works, (xi) all technology and trade
secrets, and (xii) all similar and related information in whatever form.
Confidential Information will not include any information that has been
generally available to the public prior to the date the Purchaser discloses or
uses such information. The Purchaser acknowledges and agrees that all
copyrights, works, inventions, innovations, improvements, developments, patents,
trademarks and all similar or related rights and information which relate to the
actual or anticipated business of the Surviving Corporation and its subsidiaries
(including its predecessors) and conceived, developed or made by the Purchaser
while employed by the Company, the Surviving Corporation or their subsidiaries
belong to the Surviving Corporation. The Purchaser will perform all actions
reasonably requested by the Surviving Corporation (whether during or after the
Purchaser's employment by the Surviving Corporation or any of its subsidiaries)
to establish and confirm such ownership at the Surviving Corporation's expense
(including without limitation assignments, consents, powers of attorney and
other instruments).
(b) In the event that the Purchaser is requested or legally
required (by oral questions, interrogatories, requests for information or
documents in legal proceedings, subpoena, civil investigative demand or other
similar process) to disclose any of the Confidential Information, the Purchaser
shall provide the Surviving Corporation with prompt notice of any such request
or requirement so that the Surviving Corporation may seek a
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18
protective order or other appropriate remedy and/or waive compliance with the
provisions of Section 22(a) hereof. If, in the absence of a protective order or
other remedy or the receipt of a waiver by the Surviving Corporation, the
Purchaser is nonetheless, in the opinion of counsel, required to disclose
Confidential Information, the Purchaser may, without liability hereunder,
disclose only that portion of the Confidential Information that in the opinion
of his or her counsel is legally required to be disclosed; provided that the
Purchaser attempts to preserve the confidentiality of the Confidential
Information, including, without limitation, by cooperating with the Surviving
Corporation to obtain an appropriate protective order or other reliable
assurance that confidential treatment will be accorded the Confidential
Information.
(c) Notwithstanding Section 22(a) hereof, if at any time a court
holds that the restrictions stated in such Section 22(a) are unreasonable or
otherwise unenforceable under circumstances then existing, the parties hereto
agree that the maximum period or scope determined to be reasonable under such
circumstances by such court will be substituted for the stated period or scope.
Because the Purchaser's services are unique and because the Purchaser has had
access to Confidential Information, the parties hereto agree that money damages
will be an inadequate remedy for any breach of this Agreement. In the event of a
breach or threatened breach of this Agreement, the Surviving Corporation or its
successors or assigns may, in addition to other rights and remedies existing in
their favor, apply to any court of competent jurisdiction for specific
performance and/or injunctive relief in order to enforce, or prevent any
violations of, the provisions hereof (without the posting of a bond or other
security).
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
ANTIGUA ACQUISITION CORPORATION
By:
-----------------------------
Name:
Title:
-----------------------------
Purchaser
-----------------------------
-----------------------------
Address of Purchaser
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[FORM OF
STOCK PURCHASE AGREEMENT]
STOCK PURCHASE AGREEMENT (hereinafter called this "Agreement"),
dated as of September __, 1996, among Nomura International plc, a public limited
company incorporated under the laws of England and Wales ("NIplc"), Antigua
Acquisition Corporation, a Delaware corporation ("Merger Sub"), and
_______________ (the "Seller").
RECITALS
WHEREAS, Merger Sub has entered into an Agreement and Plan of
Merger, dated as of June 5, 1996, as amended (the "Merger Agreement"), among
AT&T Capital Corporation, a Delaware corporation (the "Company"), AT&T Corp., a
New York corporation, Hercules Limited, a Cayman Islands company ("Holdings")
and Merger Sub, which is a wholly-owned subsidiary of Holdings, providing for
the merger (the "Merger") of Merger Sub with and into the Company, after which
the Company will continue its corporate existence as the surviving corporation
(the "Surviving Corporation");
WHEREAS, in connection with the Merger, Merger Sub and the Seller
are contemporaneously herewith entering into a Subscription Agreement of even
date herewith (the "Subscription Agreement"), pursuant to which the Seller, as
one of a limited number of management investors, will purchase [(i)] immediately
prior to the Merger, shares of Common Stock, par value $.01 per share, of Merger
Sub (the "Merger Sub Common Stock"), each of which will be converted at the
effective time of the Merger (the "Effective Time") pursuant to the Merger
Agreement into one share of Common Stock, par value $.01 per share, of the
Surviving Corporation ("Surviving Corporation Common Stock") [and (ii) following
the Merger, additional shares of Surviving Corporation Common Stock in
accordance with the terms of the Subscription Agreement];
WHEREAS, in connection with the Seller's prospective ownership of
shares of Surviving Corporation Common Stock, NIplc, Merger Sub and the Seller
propose to agree to certain provisions with respect to the future purchase and
sale, upon certain terms and subject to certain conditions, of such shares; and
WHEREAS, this Agreement is one of several agreements (such
agreements other than this Agreement being herein referred to collectively as
"Other Sellers' Agreements") which have been, or which in the future will be,
entered into between the Surviving Corporation and other individuals who are or
will be certain officers or key employees of the Surviving Corporation or one of
its Subsidiaries (collectively, the "Other Sellers").
<PAGE>
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2
NOW, THEREFORE, to implement the foregoing and in consideration
of the premises and of the mutual agreements contained herein, the parties
hereto agree as follows:
1. Certain Definitions.
Whenever the following terms are used in this Agreement, they
shall have the meaning specified below unless the context clearly indicates to
the contrary.
"Affiliate" shall mean, with respect to any specified Person, any
other Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person. Solely for purposes of this Agreement, GRS Holding Company Limited and
Babcock & Brown, Inc. and their respective Affiliates shall be deemed to be
Affiliates of NIplc.
"Board of Directors" shall mean the Board of Directors
of the Surviving Corporation.
"Cause" shall mean (i) the Seller's willful and continued failure
to perform his or her duties with respect to the Surviving Corporation or any of
its Subsidiaries which continues beyond ten days after a written demand for
substantial performance is delivered to the Seller by the Surviving Corporation
or such Subsidiary or (ii) misconduct by the Seller involving (x) dishonesty or
breach of trust in connection with the Seller's employment or (y) conduct which
would be a reasonable basis for an indictment of the Seller for a felony or for
a misdemeanor involving moral turpitude.
"Change of Control" shall mean (i) any transaction (including,
without limitation, a merger, consolidation or reorganization, or a sale of
derivative securities that effectively transfers a beneficial ownership
interest) as a result of which either (a) (1) the combined beneficial ownership
interest of the Surviving Corporation by NIplc and its Affiliates falls below
40% on a fully diluted basis and (2) the combined beneficial ownership interest
of the Surviving Corporation by another Person and its Affiliates exceeds the
combined beneficial ownership interest of NIplc and its Affiliates or (b) the
combined beneficial ownership interest of the Surviving Corporation by NIplc and
its Affiliates falls below 20% on a fully diluted basis or (ii) a sale, or
series of sales, of all or substantially all of the assets of the Surviving
Corporation as a result of which either (A) (I) the combined beneficial
ownership interest by NIplc and its Affiliates of the assets of the business
conducted by the Surviving Corporation falls below 40% of the assets of the
business conducted by the Surviving Corporation immediately prior to such sale
or series of sales (measured on the basis of the net book value, on a
consolidated basis, thereof) and (II) the combined beneficial ownership interest
of another Person of former assets of the business as
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3
conducted by the Surviving Corporation immediately prior to such sale or series
of sales exceeds the combined beneficial ownership interest by NIplc and its
Affiliates of the assets of the business conducted by the Surviving Corporation
immediately prior to such sale or series of related sales (measured on the basis
of the net book value, on a consolidated basis, thereof) or (B) the combined
beneficial ownership interest by NIplc and its Affiliates of the assets of the
business conducted by the Surviving Corporation falls below 20% of the assets of
the business conducted by the Surviving Corporation immediately prior to such
sale or series of sales (measured on the basis of the net book value, on a
consolidated basis, thereof); provided that the provisions set forth in clause
(ii) shall be deemed not to apply in the case of any transfer, sale, assignment,
pledge, hypothecation or other disposition of assets in connection with, or
incident to, any borrowings, securitizations or other financing transactions or
in the case of the recapitalization, reclassification, liquidation or
dissolution of the Surviving Corporation.
"Compensation Committee" shall mean the Compensation Committee of
the Board of Directors.
"Disability" shall mean a determination by the Board of Directors
or a duly authorized committee thereof that the Seller has become (i)
permanently physically unable to do any job for which the Seller is qualified,
or may reasonably become qualified by training, education or experience, or (ii)
permanently mentally incompetent to perform the normal daily functions of
living, and in each case at all times during such disability the Seller is under
a physician's care and following the recommended course of treatment.
"Fair Market Value" shall mean, with respect to a share of
Surviving Corporation Common Stock, the amount established at the immediately
preceding determination, which determination will have been made no less than
annually, by an independent U.S.-based investment banker (or, in the sole
discretion of the Board of Directors, an independent U.S.-based appraisal firm)
selected by the Board of Directors as the fair market value of a share of
Surviving Corporation Common Stock without giving effect to any discount
attributable to the illiquidity of such shares or the fact that any such shares
may constitute a minority interest in the Surviving Corporation or any premium
attributable to any special rights of any holder with respect to shares of
Surviving Corporation Common Stock; provided that prior to the first such
determination (which shall occur not later than January 31, 1997), the Fair
Market Value of a share of Surviving Corporation Common Stock shall be the
purchase price per share paid by the Seller for his or her Investment Shares.
"Good Reason" shall mean (i) a reduction in the Seller's base
salary, (ii) a substantial reduction in the Seller's duties as an employee,
officer or director as they exist
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4
immediately after the Effective Time, (iii) the elimination or reduction of the
Seller's eligibility to participate in the Surviving Corporation's benefit
programs that is inconsistent with the eligibility of similarly situated
employees of the Surviving Corporation and its Subsidiaries to participate
therein or (iv) an obligation to relocate more than 50 miles from the Seller's
then current work location.
"Group" shall mean, with respect to a particular time, any of the
Surviving Corporation and its Subsidiaries as of such time. Any event that
results in an entity ceasing to be a Subsidiary of the Surviving Corporation
shall be deemed to constitute the cessation of employment with the Group of all
employees of such former Subsidiary, except for such employees of such former
Subsidiary who become employees of the Surviving Corporation or one of its then
Subsidiaries within 10 days of such event.
"Investment Price" shall mean the price per share paid by the
Seller for each of the Investment Shares pursuant to the Subscription Agreement.
"Investment Shares" shall have the meaning set forth in
the Subscription Agreement.
"Normal Retirement" shall mean the voluntary retirement of the
Seller on a date after the later of attaining age 60 or 5 years after the
Effective Time.
"Per Share Interest Amount" shall mean, with respect to a
relevant number of Rollover Shares being purchased pursuant to the provisions of
this Agreement, an amount per share equal to the cumulative amount of interest
at the Compensatory Interest Rate on the Investment Price of such Rollover
Shares from the Effective Time through, but not including, the date of the
Repurchase (as hereinafter defined), compounded annually. The "Compensatory
Interest Rate" equals the product of (i) the rate of interest set forth in the
Promissory Note multiplied by (ii) a fraction the numerator of which is the
principal amount of the Promissory Note on the date of Repurchase and the
denominator of which is the product of the total number of Rollover Shares
multiplied by the Investment Price of such Rollover Shares.
"Promissory Note" shall mean the Purchaser's promissory note
issued pursuant to the AT&T Capital Corporation 1993 Leveraged Stock Purchase
Plan or the AT&T Capital Corporation 1993 Long Term Incentive Plan, as the case
may be, as such note has been amended in accordance with the terms of the
Subscription
Agreement.
"QPO" shall mean a sale of shares of Surviving Corporation Common
Stock to the public pursuant to a registration statement under the Securities
Act of 1933, as amended (the "Securities Act"), that has been declared effective
by the
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<PAGE>
5
Securities and Exchange Commission (other than a registration statement on Form
S-4 or Form S-8, or any successor or other forms promulgated for similar
purposes, or a registration statement in connection with an offering to
employees of the Surviving Corporation and its Subsidiaries) that results in an
active trading market in the Surviving Corporation Common Stock.
"RIF Termination" shall mean (i) termination of the Seller's
employment by the Group as a result of a reduction in force, facility relocation
or closing, or other Surviving Corporation program for job elimination, in each
case that results in the termination of a significantly large number of
employees, or (ii) termination within 135 days prior to a Change of Control if
the Seller can demonstrate that such termination (a) was at the request of a
third party with which the Surviving Corporation had entered into negotiations
or was provided for in an agreement with regard to such Change of Control or (b)
otherwise occurred in connection with, or in anticipation of, such Change of
Control; provided further that, in the case of either clause (a) or (b), such
Change of Control actually occurs.
"Rollover Shares" shall mean those Investment Shares resulting
from the conversion at the Effective Time in the Merger pursuant to the Merger
Agreement of the Purchaser's Pre-Merger Shares (as defined in the Subscription
Agreement).
"Seller's Estate" and "Seller's Trust" shall have the respective
meanings set forth in the Subscription Agreement for the terms "Purchaser's
Estate" and "Purchaser's Trust," respectively.
"Subsidiary" shall mean any corporation other than the Surviving
Corporation in an unbroken chain of corporations beginning with the Surviving
Corporation if each of the corporations other than the last corporation in the
unbroken chain owns 50% or more of the voting stock in one of the other
corporations in such chain.
2. Seller's Option to Sell Stock to NIplc Upon
Certain Events.
(a) Except as otherwise provided herein, if, prior to
the occurrence of a QPO:
(i) The Seller is terminated by the Group without Cause (other
than a RIF Termination) or resigns for Good Reason, then the Seller, the
Seller's Estate or the Seller's Trust, as the case may be, shall have
the right, for 15 days following the date of such termination or
resignation, to give notice to the Surviving Corporation of his, her or
its election to sell to the Purchasing Entity (as defined in Section
2(b) hereof), and the Purchasing Entity shall be required to purchase,
on one occasion, except as otherwise provided herein, within 60 days of
the receipt of such
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6
notice, all or any portion (as determined by the Seller, the Seller's
Estate or the Seller's Trust, as the case may be, and set forth in such
notice) of the Investment Shares then held by the Seller, the Seller's
Estate or the Seller's Trust, as the case may be, at the Repurchase
Price determined in accordance with Sections 4(a) and 5 hereof;
(ii) The Seller is terminated by the Group for Cause or resigns
without Good Reason, then the Seller, the Seller's Estate or the
Seller's Trust, as the case may be, shall have the right, for 15 days
following the date of such termination or resignation, to give notice to
the Surviving Corporation of his, her or its election to sell to the
Purchasing Entity, and the Purchasing Entity shall be required to
purchase, on one occasion, except as otherwise provided herein, within
60 days of the receipt of such notice, all or any portion (as determined
by the Seller, the Seller's Estate or the Seller's Trust, as the case
may be, and set forth in such notice) of the Investment Shares then held
by the Seller, the Seller's Estate or the Seller's Trust, as the case
may be, at the Repurchase Price determined in accordance with Sections
4(b) and 5 hereof;
(iii) The Seller is terminated by the Group in a RIF Termination,
then the Seller, the Seller's Estate or the Seller's Trust, as the case
may be, shall have the right, for 15 days following the date of such
termination, to give notice to the Surviving Corporation of his, her or
its election to sell to the Purchasing Entity, and the Purchasing Entity
shall be required to purchase, on one occasion, except as otherwise
provided herein, within 60 days of the receipt of such notice, all or
any portion (as determined by the Seller, the Seller's Estate or the
Seller's Trust, as the case may be, and set forth in such notice) of the
Investment Shares then held by the Seller, the Seller's Estate or the
Seller's Trust, as the case may be, at the Repurchase Price determined
in accordance with Sections 4(c) and 5 hereof;
(iv) The Seller ceases employment with the Group due to death or
Disability, then the Seller, the Seller's Estate or the Seller's Trust,
as the case may be, shall have the right, for 60 days following the date
of such cessation of employment, to give notice to the Surviving
Corporation of his, her or its election to sell to the Purchasing
Entity, and the Purchasing Entity shall be required to purchase, on one
occasion, except as otherwise provided herein, within 60 days of the
receipt of such notice, all or any portion (as determined by the Seller,
the Seller's Estate or the Seller's Trust, as the case may be, and set
forth in such notice) of the Investment Shares then held by the Seller,
the Seller's Estate or the Seller's Trust, as the case may be, at the
Repurchase Price determined in accordance with Sections 4(d) and 5
hereof; and
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7
(v) The Seller ceases employment with the Group upon Normal
Retirement, then the Seller, the Seller's Estate or the Seller's Trust,
as the case may be, shall have the right, following the date of such
cessation of employment, to give notice to the Surviving Corporation of
his, her or its election to sell to the Purchasing Entity, and the
Purchasing Entity shall be required to purchase, on one occasion in each
one-year period following such cessation of employment, subject to the
limits set forth below, all or any portion (as determined by the Seller,
the Seller's Estate or the Seller's Trust, as the case may be, and set
forth in such notice) of the Investment Shares then held by the Seller,
the Seller's Estate or the Seller's Trust, as the case may be, at the
Repurchase Price determined in accordance with Sections 4(e) and 5
hereof. Notwithstanding anything to the contrary contained herein, the
number of shares that the Purchasing Entity shall be required to
purchase from the Seller, the Seller's Estate or the Seller's Trust, as
the case may be, in the event of Normal Retirement shall be limited to
the indicated percentage of the aggregate of the Investment Shares held
by the Seller, the Seller's Estate and the Seller's Trust on the date of
such cessation of employment (less in each case after the first
anniversary of such date the percentage of the shares so held on such
date that were previously purchased by a Purchasing Entity) in each of
the periods indicated in the following table:
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8
Period Percentage
- ------ ----------
From the date of cessation of 100%
employment through the first
anniversary of such date
From the day after the first 80%
anniversary of the cessation of
employment through the second
anniversary of such date
From the day after the second 60%
anniversary of the cessation of
employment through the third
anniversary of such date
From the day after the third 40%
anniversary of the cessation of
employment through the fourth
anniversary of such date
From the day after the fourth 20%
anniversary of the cessation of
employment through the fifth
anniversary of such date
Following the fifth anniversary 0%
of the cessation of employment
(b) If the Seller, the Seller's Estate and/or the Seller's Trust,
as the case may be, desire to sell any Investment Shares pursuant hereto, it or
they shall send notice (the "Redemption Notice") to the Surviving Corporation of
its or their intention to sell Investment Shares in exchange for the payment
(the "Repurchase Price") referred to in Section 2(a)(i) through (iv), as
applicable (which Redemption Notice shall be delivered by the Surviving
Corporation promptly to NIplc). Except as otherwise provided herein, the closing
of the purchase and sale of Investment Shares pursuant to this Section 2 shall
take place at the principal office of the Surviving Corporation on or before the
60th day following delivery of the Redemption Notice. On or prior to such
closing, NIplc shall notify the Seller, the Seller's Estate and/or the Seller's
Trust, as the case may be, of the date and time of such closing and whether, in
the absolute discretion of NIplc, NIplc or another person selected by NIplc
pursuant to Section 15 hereof shall be the purchaser of such Investment Shares
(the "Purchasing Entity"). The applicable Repurchase Price shall be paid by
delivery to the Seller, the Seller's Estate or the Seller's Trust, as the case
may be, of a certified or bank cashier's check or checks, or by wire transfer of
funds, in the appropriate amount payable to the order of the Seller, the
Seller's Estate or the Seller's Trust, as the case may be, against delivery of
certificates or other instruments representing the Investment Shares so
purchased, duly endorsed in blank or accompanied by stock powers executed in
blank with the signature of the Seller or his or her duly authorized
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<PAGE>
9
representative, or the appropriately authorized representative of the Seller's
Estate or the Seller's Trust, as the case may be, guaranteed by a member of the
Medallion Signature Guarantee Program, and with all necessary stock transfer
stamps affixed.
(c) This Agreement does not confer upon, and nothing contained
herein shall be interpreted as providing, the Seller any rights to require NIplc
or any of its Affiliates to purchase, in any circumstances, any stock options or
any shares of stock acquired or acquirable upon the exercise of any stock
options.
3. NIplc's Option to Purchase Stock Upon Certain
Events.
(a) Except as otherwise provided herein, if, prior to the later
of (i) the occurrence of a QPO and (ii) the tenth anniversary of the Effective
Time:
(i) The Seller is terminated by the Group without Cause (other
than a RIF Termination) or resigns for Good Reason, then the Purchasing
Entity shall have the right, for 15 days following the date of such
termination or resignation, to give notice to the Seller, the Seller's
Estate or the Seller's Trust, as the case may be, of its election to
purchase from the Seller, the Seller's Estate or the Seller's Trust, as
the case may be, and the Seller, the Seller's Estate or the Seller's
Trust, as the case may be, shall be required to sell, on one occasion,
except as otherwise provided herein, within 60 days of the receipt of
such notice, all or any portion (as determined by the Purchasing Entity
and set forth in such notice) of the Investment Shares then held by the
Seller, the Seller's Estate or the Seller's Trust, as the case may be,
at the Repurchase Price determined in accordance with Sections 4(a) and
5 hereof;
(ii) The Seller is terminated by the Group for Cause or resigns
without Good Reason, then the Purchasing Entity shall have the right,
for 15 days following the date of such termination or resignation, to
give notice to the Seller, the Seller's Estate or the Seller's Trust, as
the case may be, of its election to purchase from the Seller, the
Seller's Estate or the Seller's Trust, as the case may be, and the
Seller, the Seller's Estate or the Seller's Trust, as the case may be,
shall be required to sell, on one occasion, except as otherwise provided
herein, within 60 days of the receipt of such notice, all or any portion
(as determined by the Purchasing Entity and set forth in such notice) of
the Investment Shares then held by the Seller, the Seller's Estate or
the Seller's Trust, as the case may be, at the Repurchase Price
determined in accordance with Sections 4(b) and 5 hereof;
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10
(iii) The Seller is terminated by the Group in a RIF Termination,
then the Purchasing Entity shall have the right, for 15 days following
the date of such termination, to give notice to the Seller, the Seller's
Estate or the Seller's Trust, as the case may be, of its election to
purchase from the Seller, the Seller's Estate or the Seller's Trust, as
the case may be, and the Seller, the Seller's Estate or the Seller's
Trust, as the case may be, shall be required to sell, on one occasion,
except as otherwise provided herein, within 60 days of the receipt of
such notice, all or any portion (as determined by the Purchasing Entity
and set forth in such notice) of the Investment Shares then held by the
Seller, the Seller's Estate or the Seller's Trust, as the case may be,
at the Repurchase Price determined in accordance with Sections 4(c) and
5 hereof; and
(iv) The Seller ceases employment with the Group due to death or
Disability, then the Purchasing Entity shall have the right, for 60 days
following the date of such cessation of employment, to give notice to
the Seller, the Seller's Estate or the Seller's Trust, as the case may
be, of its election to purchase from the Seller, the Seller's Estate or
the Seller's Trust, as the case may be, and the Seller, the Seller's
Estate or the Seller's Trust, as the case may be, shall be required to
sell, on one occasion, except as otherwise provided herein, within 60
days of the receipt of such notice, all or any portion (as determined by
the Purchasing Entity and set forth in such notice) of the Investment
Shares then held by the Seller, the Seller's Estate or the Seller's
Trust, as the case may be, at the Repurchase Price determined in
accordance with Sections 4(d) and 5 hereof.
(b) The Purchasing Entity shall send the Redemption Notice to the
Seller, the Seller's Estate and/or the Seller's Trust, as the case may be,
setting forth the intention to purchase Investment Shares in exchange for the
Repurchase Price referred to in Section 2(a)(i) through (iv), as applicable.
Except as otherwise provided herein, the closing of the purchase and sale of
Investment Shares pursuant to this Section 3 shall take place at the principal
office of the Surviving Corporation on or before the 60th day following delivery
of the Redemption Notice. On or prior to such closing, the Purchasing Entity
shall notify the Seller, the Seller's Estate and/or the Seller's Trust, as the
case may be, of the date and time of such closing and whether, in the absolute
discretion of NIplc, NIplc or another person selected pursuant to Section 15
hereof shall be the Purchasing Entity. The applicable Repurchase Price shall be
paid by delivery to the Seller, the Seller's Estate or the Seller's Trust, as
the case may be, of a certified or bank cashier's check or checks, or by wire
transfer of funds, in the appropriate amount payable to the order of the Seller,
the Seller's Estate or the Seller's Trust, as the case may be, against delivery
of
<PAGE>
<PAGE>
11
certificates or other instruments representing the Investment Shares so
purchased, duly endorsed in blank or accompanied by stock powers executed in
blank with the signature of the Seller or his or her duly authorized
representative, or the appropriately authorized representative of the Seller's
Estate or the Seller's Trust, as the case may be, guaranteed by a member of the
Medallion Signature Guarantee Program, and with all necessary stock transfer
stamps affixed.
4. Determination of Repurchase Price.
(a) If the Seller is terminated by the Group without Cause (other
than a RIF Termination) or resigns for Good Reason, the Repurchase Price
applicable to repurchases (each a "Repurchase") pursuant to either Section 2 or
Section 3 shall be (i) if such termination or resignation occurs after the fifth
anniversary of the Effective Time, the Fair Market Value as of the date of such
termination or resignation or (ii) if such termination or resignation occurs on
or before the fifth anniversary of the Effective Time, the higher of (x) the
Investment Price plus, with respect to Rollover Shares only, the Per Share
Interest Amount or (y) the price per share set forth in the table below under
the heading "Alternate Price" for the periods indicated:
Alternate
Period Price
------ ---------
From the Effective Time
through the first [No alternative price]
anniversary thereof
From the day after the Investment Price plus 20%
first anniversary of the of the excess, if any, of
Effective Time through the Fair Market Value over
second anniversary thereof Investment Price
From the day after the Investment Price plus 40%
second anniversary of the of the excess, if any, of
Effective Time through the Fair Market Value over
third anniversary thereof Investment Price
From the day after the Investment Price plus 60%
third anniversary of the of the excess, if any, of
Effective Time through the Fair Market Value over
fourth anniversary thereof Investment Price
From the day after the Investment Price plus 80%
fourth anniversary of the of the excess, if any, of
Effective Time through the Fair Market Value over
fifth anniversary thereof Investment Price
(b) If the Seller is terminated by the Group for Cause or resigns
without Good Reason, the Repurchase Price applicable to Repurchases pursuant to
either Section 2 or Section 3 shall be
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<PAGE>
12
equal to the Investment Price plus, with respect to Rollover Shares only, the
Per Share Interest Amount.
(c) If the Seller is terminated by the Group in a RIF
Termination, the Repurchase Price applicable to Repurchases pursuant to either
Section 2 or Section 3 shall be equal to the higher of (x) the Fair Market Value
as of the date of such termination or (y) the Investment Price plus, with
respect to Rollover Shares only, the Per Share Interest Amount.
(d) If the Seller ceases employment with the Group due to death
or Disability, the Repurchase Price applicable to Repurchases pursuant to either
Section 2 or Section 3 shall be equal to the Fair Market Value as of the date of
cessation of employment; provided, however, that if such cessation of employment
occurs on or before December 31, 1997, such Repurchase Price shall not be less
than the Investment Price plus, with respect to Rollover Shares only, the Per
Share Interest Amount.
(e) If the Seller ceases employment upon Normal Retirement, the
Repurchase Price applicable to Repurchases pursuant to Section 2 shall be equal
to the Investment Price plus, with respect to Rollover Shares only, the Per
Share Interest Amount.
5. Repurchase Price Adjustments.
In determining the Repurchase Price, appropriate adjustments
shall be made for any future issuances to holders of Surviving Corporation
Common Stock of rights to acquire any securities convertible into Surviving
Corporation Common Stock and any stock dividends, splits, combinations,
recapitalizations or any other adjustment in the number of shares of outstanding
shares of Surviving Corporation Common Stock.
6. Rights to Negotiate Repurchase Price.
Nothing in this Agreement shall be deemed to restrict or prohibit
NIplc, the Surviving Corporation or any of their Affiliates from purchasing
shares of Surviving Corporation Common Stock or options to purchase shares of
Surviving Corporation Common Stock from the Seller, at any time, upon such terms
and conditions, and for such price, as may be mutually agreed upon between the
parties, (i) whether or not at the time of such purchase circumstances exist
which specifically grant NIplc the right to purchase, or the Seller the right to
sell, such shares and (ii) notwithstanding the fact that this Agreement does not
provide NIplc, the Surviving Corporation or the Seller with any rights with
respect to the repurchase by any person of stock options.
7. NIplc's Representations and Warranties.
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<PAGE>
13
NIplc represents and warrants to the Seller that (i) this
Agreement has been duly authorized, executed and delivered by NIplc and (ii) the
Purchasing Entity will be acquiring any Investment Shares pursuant to this
Agreement for investment for the account of itself and its Affiliates and not
with a view to, or for resale in connection with, the distribution or other
disposition thereof, without prejudice, however, to the Purchasing Entity's
right to sell or otherwise dispose of all or any part of said shares in
compliance with the Securities Act and all applicable state or foreign
securities laws..
8. Merger Sub's Representations, Warranties and Agreements.
(a) Merger Sub represents and warrants to NIplc and the Seller
that this Agreement has been duly authorized, executed and delivered by Merger
Sub.
(b) For so long as the provisions of Sections 2, 3 and 4 of this
Agreement remain in effect, Merger Sub agrees that the Surviving Corporation
shall (i) notify NIplc in the manner provided in Section 17 hereof of any
election by the Seller, the Seller's Estate or the Seller's Trust, as the case
may be, pursuant to Section 2(a) hereof to sell to the Purchasing Entity all or
any portion of the Investment Shares held by the Seller, the Seller's Estate or
the Seller's Trust, as the case may be, by delivering promptly to NIplc a copy
of the Redemption Notice sent to the Surviving Corporation by the Seller, the
Seller's Estate or the Seller's Trust, as the case may be, pursuant to Section
2(b) hereof and (ii) notify NIplc in the manner provided by Section 17 hereof
promptly (but in no event more than 5 days thereafter) in writing of any event
involving the Seller that would give rise to a right of the Purchasing Entity
pursuant to Section 3(a) hereof to purchase from the Seller, the Seller's Estate
or the Seller's Trust, as the case may be, all or any portion of the Investment
Shares held by the Seller, the Seller's Estate or the Seller's Trust, as the
case may be, provided; however, that any failure by the Surviving Corporation to
so notify NIplc shall not relieve the Purchasing Entity of its obligations
hereunder.
9. Expiration of Certain Provisions.
The provisions contained in Sections 2, 3 and 4 of this Agreement
and the portion of any other provision of this Agreement which incorporates the
provisions of Sections 2, 3 and 4, shall terminate and be of no further force or
effect with respect to any Investment Shares sold by the Seller (i) pursuant to
an effective registration statement filed by the Surviving Corporation pursuant
to the Registration Rights Agreement (as defined in the Subscription Agreement),
the Subscription Agreement or otherwise or (ii) pursuant to the terms of the
Sale Participation Agreement of even date herewith, among the Seller and NIplc.
<PAGE>
<PAGE>
14
10. Recapitalizations, Etc.
The provisions of this Agreement shall apply, to the full extent
set forth herein with respect to the Investment Shares, to any and all shares of
capital stock of the Surviving Corporation or any capital stock, partnership
units or any other security evidencing ownership interests in any successor or
assign of the Surviving Corporation (whether by merger, consolidation, sale of
assets or otherwise) which may be issued in respect of, in exchange for, or
substitution of the Investment Shares, by reason of any stock dividend, split,
reverse split, combination, recapitalization, liquidation, reclassification,
merger, consolidation or otherwise.
11. Seller's Employment by the Group.
Nothing contained in this Agreement (i) obligates the Surviving
Corporation or any Subsidiary to employ the Seller in any capacity whatsoever or
(ii) prohibits or restricts the Surviving Corporation (or any such Subsidiary)
from terminating the employment, if any, of the Seller at any time or for any
reason whatsoever, with or without cause, and the Seller hereby acknowledges and
agrees that, except to the extent that certain information, if any, with respect
to his or her employment has been delivered to the Seller in writing, neither
Merger Sub nor any other person has made any representations or promises
whatsoever to the Seller concerning the Seller's employment or continued
employment by the Group.
12. Binding Effect.
The provisions of this Agreement shall be binding upon and accrue
to the benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns. In the case of a transferee permitted
under Section 4(a) of the Subscription Agreement, such transferee shall be
deemed the Seller hereunder; provided, however, that no transferee (including
without limitation, transferees referred to in Section 4(a) of the Subscription
Agreement) shall derive any rights under this Agreement unless and until such
transferee has delivered to NIplc a valid undertaking and becomes bound by the
terms of this Agreement.
13. Amendment.
This Agreement may be amended only by a written instrument signed
by the parties hereto.
<PAGE>
<PAGE>
15
14. Applicable Law.
The laws of the State of Delaware shall govern the
interpretation, validity and performance of the terms of this Agreement,
regardless of the law that might be applied under principles of conflicts of
law. Any suit, action or proceeding against the Seller, with respect to this
Agreement, or any judgment entered by any court in respect of any thereof, may
be brought in any court of competent jurisdiction in the State of New Jersey, as
NIplc may elect in its sole discretion, and the Seller hereby submits to the
non-exclusive jurisdiction of such courts for the purpose of any such suit,
action, proceeding or judgment. By the execution and delivery of this Agreement,
the Seller appoints the Secretary of the Surviving Corporation, at the executive
offices of the Surviving Corporation in Morristown, New Jersey (or such other
place within the State of New Jersey as may be designated for such purpose), as
his or her agent upon which process may be served in any such suit, action or
proceeding. Service of process upon such agent, together with notice of such
service given to the Seller in the manner provided in Section 17 hereof, shall
be deemed in every respect effective service of process upon him or her in any
suit, action or proceeding. Nothing herein shall in any way be deemed to limit
the ability of NIplc to serve any such writs, process or summonses in any other
manner permitted by applicable law or to obtain jurisdiction over the Seller, in
such other jurisdictions and in such manner, as may be permitted by applicable
law. The Seller hereby irrevocably waives any objections which he or she may now
or hereafter have to the laying of the venue of any suit, action or proceeding
arising out of or relating to this Agreement brought in any court of competent
jurisdiction in the State of New Jersey, and hereby further irrevocably waives
any claim that any such suit, action or proceeding brought in any such court has
been brought in any inconvenient forum. No suit, action or proceeding against
NIplc with respect to this Agreement may be brought in any court, domestic or
foreign, or before any similar domestic or foreign authority other than in a
court of competent jurisdiction in the State of New Jersey, and the Seller
hereby irrevocably waives any right which he or she may otherwise have had to
bring such an action in any other court, domestic or foreign, or before any
similar domestic or foreign authority. NIplc hereby submits to the jurisdiction
of such courts for the purpose of any such suit, action or proceeding, and by
the execution and delivery of this Agreement, NIplc appoints the Secretary of
the Surviving Corporation, at the executive offices of the Surviving Corporation
in Morristown, New Jersey (or such other place within the State of New Jersey as
may be designated for such purpose), as its agent upon which process may be
served in any such suit, action or proceeding. Service of process upon such
agent, together with notice of such service given to NIplc in the manner
provided in Section 17 hereof, shall be deemed in every respect effective
service of process upon NIplc in any suit, action or proceeding. NIplc hereby
irrevocably waives any objections which it may now or hereafter have to the
laying of
<PAGE>
<PAGE>
16
the venue of any suit, action or proceeding arising out of or relating to this
Agreement brought in any court of competent jurisdiction in the State of New
Jersey, and hereby further irrevocably waives any claim that any such suit,
action or proceeding brought in any such court has been brought in any
inconvenient forum.
15. Assignability of Certain Rights by NIplc.
NIplc shall have the right to assign any or all of its rights or
obligations to purchase Investment Shares pursuant to Sections 2 or 3 hereof,
but any such assignment shall not, without the written consent of the Seller or
the Seller's Estate or Seller's Trust, as the case may be, relieve NIplc of its
obligations hereunder.
16. Miscellaneous.
In this Agreement (i) all references to "dollars" or "$" are to
United States dollars and (ii) the word "or" is not exclusive. If any provision
of this Agreement shall be declared illegal, void or unenforceable by any court
of competent jurisdiction, the other provisions shall not be affected, but shall
remain in full force and effect.
17. Notices.
All notices and other communications provided for herein shall be
in writing and shall be deemed to have been duly given if delivered by hand
(whether by overnight courier or otherwise) or sent by registered or certified
mail, return receipt requested, postage prepaid, to the party to whom it is
directed:
(i) If to NIplc, to it at the following address:
Nomura International plc
Nomura House
1 St. Martin's-le-Grand
London EC1A 4NP
Attention: Mr. Guy Hands
(ii) If to Merger Sub or the Surviving Corporation, to
it at the following address:
Antigua Acquisition Corporation
c/o AT&T Capital Corporation
or
AT&T Capital Corporation
44 Whippany Road
Morristown, New Jersey 07960
Attention: Vice President - Human Resources
<PAGE>
<PAGE>
17
with a copy to:
AT&T Capital Corporation
44 Whippany Road
Morristown, New Jersey 07960
Attention: General Counsel
(iii) If to the Seller, to him or her at the address set forth
below under his or her signature;
or at such other address as either party shall have specified by
notice in writing to the other.
Any notice which is required to be given to the Seller shall, if the Seller is
then deceased, be given to the Seller's personal representative if such
representative has previously informed NIplc and the Surviving Corporation of
his or her status and address by written notice under this Section 17.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
NOMURA INTERNATIONAL plc
By:
----------------------------
Name:
Title:
ANTIGUA ACQUISITION CORPORATION
By:
----------------------------
Name:
Title:
-----------------------------
Seller
-----------------------------
-----------------------------
Address of Seller
<PAGE>
<PAGE>
[FORM OF
SALE PARTICIPATION AGREEMENT]
SALE PARTICIPATION AGREEMENT (hereinafter called this
"Agreement"), dated as of September __, 1996, between Nomura International plc,
a public limited company incorporated under the laws of England and Wales
("NIplc"), and _______________ (the "Purchaser").
RECITALS
WHEREAS, Antigua Acquisition Corporation, a Delaware corporation
("Merger Sub"), has entered into an Agreement and Plan of Merger, dated as of
June 5, 1996, as amended (the "Merger Agreement"), among AT&T Capital
Corporation, a Delaware corporation (the "Company"), AT&T Corp., a New York
corporation, Hercules Limited, a Cayman Islands company ("Holdings"), and Merger
Sub, which is a wholly-owned subsidiary of Holdings, providing for the merger
(the "Merger") of Merger Sub with and into the Company, after which the Company
will continue its corporate existence as the surviving corporation (the
"Surviving Corporation");
WHEREAS, in connection with the Merger, Merger Sub and the
Purchaser are contemporaneously entering into a Subscription Agreement of even
date herewith (the "Subscription Agreement"), pursuant to which the Purchaser,
as one of a limited number of management investors, will purchase [(i)]
immediately prior to the Merger, shares of Common Stock, par value $.01 per
share, of Merger Sub (the "Merger Sub Common Stock"), each of which will be
converted at the effective time of the Merger (the "Effective Time") pursuant to
the Merger Agreement into one share of Common Stock, par value $.01 per share,
of the Surviving Corporation ("Surviving Corporation Common Stock") [and (ii)
following the Merger, additional shares of Surviving Corporation Common Stock],
in accordance with the terms of the Subscription Agreement;
WHEREAS, following the Merger, NIplc will also beneficially own
shares of Surviving Corporation Common Stock; and
WHEREAS, incident to the Purchaser's ownership of shares of
Surviving Corporation Common Stock, NIplc and the Purchaser propose to agree to
certain provisions with respect to the future sale, upon certain terms and
subject to certain conditions, of such shares.
<PAGE>
<PAGE>
2
NOW, THEREFORE, to implement the foregoing and in consideration
of the premises and of the mutual agreements contained herein, the parties
hereto agree as follows:
1. Take-Along Rights.
(a) In the event that at any time (i) NIplc or any of its
affiliates (including, without limitation, GRS Holding Company Limited ("GRSH")
and Hercules Limited, which also beneficially own, directly or indirectly, the
shares of Merger Sub Common Stock beneficially owned by NIplc, but, for the
avoidance of any doubt, excluding Babcock & Brown, Inc. or any of its
affiliates), as the case may be (each, a "Selling Entity"), proposes to sell for
cash or any other consideration, either directly or indirectly (by way of the
sale of beneficial ownership interest in any such affiliate or otherwise), any
shares of Surviving Corporation Common Stock owned by it, in any transaction
other than (x) a public offering of securities, (y) a sale or other transfer to
one of their affiliates or (z) a sale or other transfer of beneficial ownership
in (A) up to 9,000,000 shares of Surviving Corporation Common Stock to Babcock &
Brown, Inc. or any of its affiliates or (B) up to 12,000,000 shares of Surviving
Corporation Common Stock to GRSH (a "Proposed Sale") and (ii) such Proposed
Sale, when considered together with previous direct or indirect sales of
Surviving Corporation Common Stock by the Selling Entity and any of its
affiliates (other than (1) sales or other transfers to one of their affiliates
or (2) sales or other transfers of beneficial ownership in the shares of
Surviving Corporation Common Stock referred to in clause (z) above), would
constitute the sale of the direct or indirect beneficial ownership of more than
25% of the outstanding shares of Surviving Corporation Common Stock, then the
Selling Entity will notify the Purchaser or the Purchaser's Estate or
Purchaser's Trust (as such terms are defined in Section 4(a) of the Subscription
Agreement), as the case may be, in writing (a "Notice") of such proposed sale
and the material terms of the Proposed Sale as of the date of the Notice (the
"Material Terms") promptly, and in any event not less than 15 days prior to the
consummation of the Proposed Sale and not more than 5 days after the execution
of the definitive agreement relating to the Proposed Sale, if any (the "Sale
Agreement").
(b) If (i) within 10 days of the Purchaser's or the Purchaser's
Estate's or Purchaser's Trust's, as the case may be, receipt of such Notice the
Selling Entity receives from the Purchaser or the Purchaser's Estate or
Purchaser's Trust, as the case may be, a written request (a "Request") to
include shares of Surviving Corporation Common Stock held by the Purchaser or
the Purchaser's Estate or Purchaser's Trust, as the case may be, in the Proposed
Sale (which Request shall be irrevocable unless (x) there shall be a material
adverse change in the Material Terms (including, without limitation, a change in
the Material Terms that would result in the sale price being decreased by more
than 10% from that set forth in the Notice) or (y) if otherwise
<PAGE>
<PAGE>
3
mutually agreed to in writing by the Purchaser or the Purchaser's Estate or
Purchaser's Trust, as the case may be, and the Selling Entity) or (ii)
notwithstanding that the Purchaser, the Purchaser's Estate or the Purchaser's
Trust, as the case may be, may have declined to make a Request, the Selling
Entity so decides in its sole discretion, shares of Surviving Corporation Common
Stock held by the Purchaser, the Purchaser's Estate or the Purchaser's Trust, as
the case may be, will be included in the Proposed Sale as provided herein;
provided that, in the case of (i) above, only one Request, which shall be
executed by the Purchaser or the Purchaser's Estate or Purchaser's Trust, as the
case may be, may be delivered with respect to any Proposed Sale for all shares
of Surviving Corporation Common Stock held by the Purchaser or the Purchaser's
Estate or Purchaser's Trust. Promptly after the consummation of the transactions
contemplated thereby, the Selling Entity will furnish the Purchaser, the
Purchaser's Trust or the Purchaser's Estate with a copy of the Sale Agreement,
if any.
(c) The number of shares of Surviving Corporation Common Stock
that the Purchaser or the Purchaser's Estate or Purchaser's Trust, as the case
may be, will be permitted to include in a Proposed Sale pursuant to a Request,
or that the Selling Entity will be permitted to decide to include in a Proposed
Sale, will be in the aggregate that number of shares of Surviving Corporation
Common Stock owned collectively by the Purchaser, the Purchaser's Estate and the
Purchaser's Trust, as the case may be, that is equal to the pro rata portion of
the total number of shares proposed to be sold in the Proposed Sale, based upon
the product of (i) the sum of the number of shares of Surviving Corporation
Common Stock then owned by the Purchaser or the Purchaser's Estate or
Purchaser's Trust, as the case may be, plus all shares of Surviving Corporation
Common Stock that the Purchaser or the Purchaser's Estate or Purchaser's Trust,
as the case may be, are then entitled to acquire under an unexercised option to
purchase shares of Surviving Corporation Common Stock, to the extent such option
is then vested and exercisable or would become vested and exercisable as a
result of the consummation of the Proposed Sale (ii) multiplied by a percentage
calculated by dividing the aggregate number of shares of Surviving Corporation
Common Stock that the Selling Entity proposes to sell in the Proposed Sale by
the total number of shares of Surviving Corporation Common Stock owned by the
Selling Entity.
Notwithstanding the foregoing, in the case of any Proposed Sale
(i) the consummation of which is reasonably expected to occur on a date after
the tenth anniversary of the Effective Time and (ii) that would constitute a
"Change of Control" (as defined in the Stock Purchase Agreement of even date
herewith between NIplc and the Purchaser), the Purchaser or the Purchaser's
Estate or Purchaser's Trust, as the case may be, will be permitted to include in
such Proposed Sale pursuant to a Request all shares of Surviving Corporation
Common Stock then owned by the Purchaser or the Purchaser's Estate or
Purchaser's
<PAGE>
<PAGE>
4
Trust, as the case may be, plus all shares of Surviving Corporation Common Stock
that the Purchaser or the Purchaser's Estate or Purchaser's Trust, as the case
may be, are then entitled to acquire under an unexercised option to purchase
shares of Surviving Corporation Common Stock, to the extent such option is then
vested and exercisable or would become vested and exercisable as a result of the
consummation of the Proposed Sale.
(d) Except as may otherwise be provided herein, shares of
Surviving Corporation Common Stock subject to a Request, or that the Selling
Entity may decide will be so included, will be included in a Proposed Sale
pursuant hereto and in any agreements with purchasers relating thereto on the
same terms and subject to the same conditions applicable to the shares of
Surviving Corporation Common Stock which the Selling Entity proposes to sell in
the Proposed Sale. Such terms and conditions shall include, without limitation:
the sales price; the payment of fees, commissions and expenses; the provision
of, and representation and warranty as to, information requested by the Selling
Entity; and the provision of requisite indemnifications; provided that any
indemnification provided by the Purchaser, the Purchaser's Estate or the
Purchaser's Trust shall be pro rata in proportion with the number of shares of
Surviving Corporation Common Stock to be sold. In the case of indirect sales by
the Selling Entity of beneficial ownership of the Surviving Corporation Common
Stock, the sale price for the shares of the Purchaser or the Purchaser's Estate
or Purchaser's Trust, as the case may be, shall be determined by an independent
investment bank or appraisal firm on the basis of the proportion of any sale
price applicable to the Selling Entity that is deemed to be attributable to the
Surviving Corporation alone, and the other terms and conditions of the Proposed
Sale shall be appropriately adjusted to reflect, for purposes of the inclusion
of the Purchaser's, the Purchaser's Estate's or the Purchaser's Trust's shares
in such Proposed Sale, a sale of the Surviving Corporation Common Stock. In
connection with any such indirect sale for consideration other than cash, the
Purchaser, the Purchaser's Estate or the Purchaser's Trust, as the case may be,
will be entitled to receive a proportionate amount (determined as described in
the preceding sentence) of a like kind of non-cash compensation, or a
proportionate interest therein. Notwithstanding anything to the contrary
contained herein, in connection with any sale, whether direct or indirect, for
consideration other than cash, in the absolute discretion of the Selling Entity,
the shares of the Purchaser or the Purchaser's Estate or Purchaser's Trust, as
the case may be, subject to a Request may be purchased instead for an amount in
cash equal to the fair market value (determined by an independent investment
bank or appraisal firm) of any non-cash consideration that would otherwise be
receivable hereunder.
<PAGE>
<PAGE>
5
2. Custody Agreement and Power of Attorney.
Upon delivering a Request or upon notice that the Selling Entity
has decided to include shares held by the Purchaser, the Purchaser's Estate or
the Purchaser's Trust, as the case may be, in the Proposed Sale, the Purchaser
or the Purchaser's Estate or Purchaser's Trust, as the case may be, will, if
requested by the Selling Entity, execute and deliver a custody agreement and
power of attorney in form and substance satisfactory to the Selling Entity with
respect to the shares of Surviving Corporation Common Stock which are to be sold
by the Purchaser or the Purchaser's Estate or Purchaser's Trust, as the case may
be, pursuant hereto (a "Custody Agreement and Power of Attorney"). The Custody
Agreement and Power of Attorney will provide, among other things, that the
Purchaser or the Purchaser's Estate or Purchaser's Trust, as the case may be,
will deliver to and deposit in custody with the custodian and attorney-in-fact
named therein a certificate or certificates representing such shares of
Surviving Corporation Common Stock (duly endorsed in blank by the registered
owner or owners thereof) and irrevocably appoint said custodian and
attorney-in-fact as the Purchaser or the Purchaser's Estate's or Purchaser's
Trust's, as the case may be, agent and attorney-in-fact with full power and
authority to act under the Custody Agreement and Power of Attorney on the
Purchaser's or the Purchaser's Estate's or Purchaser's Trust's, as the case may
be, behalf with respect to the matters specified therein.
3. Obligations to Purchaser.
(a) The Purchaser or the Purchaser's Estate's or Purchaser's
Trust's, as the case may be, right pursuant hereto to participate in a Proposed
Sale shall be contingent on the Purchaser's or the Purchaser's Estate's or
Purchaser's Trust's, as the case may be, strict compliance with each of the
provisions hereof and the Purchaser's or the Purchaser's Estate's or Purchaser's
Trust's, as the case may be, willingness to execute such documents in connection
therewith as may be reasonably requested by the Selling Entity.
(b) The obligations of the Selling Entity hereunder shall extend
only to the Purchaser or the Purchaser's Estate or Purchaser's Trust, as the
case may be, and no other of the Purchaser's or the Purchaser's Estate's or
Purchaser's Trust's, as the case may be, successors or assigns shall have any
rights pursuant hereto.
4. Notices.
All notices and other communications provided for herein shall be
in writing and shall be deemed to have been duly given when delivered to the
party to whom it is directed:
<PAGE>
<PAGE>
6
(a) If to NIplc, to it at the following address:
Nomura International plc
Nomura House
1 St. Martin's-le-Grand
London EC1A 4NP
Attention: Mr. Guy Hands
(b) If to the Purchaser, to him or her at the address
set forth below under his or her signature;
(c) If to the Purchaser's Estate or Purchaser's Trust, at the
address provided to NIplc by such entity.
or at such other address as any of the above shall have specified by
notice in writing delivered to the others by certified mail.
Any notice which is required to be given to the Purchaser shall, if the
Purchaser is then deceased, be given to the Purchaser's personal representative
if such representative has previously informed NIplc of his or her status and
address by written notice under this Section 4.
5. Applicable Law.
The laws of the State of Delaware shall govern the
interpretation, validity and performance of the terms of this Agreement,
regardless of the law that might be applied under principles of conflicts of
law. Any suit, action or proceeding against the Seller, with respect to this
Agreement, or any judgment entered by any court in respect of any thereof, may
be brought in any court of competent jurisdiction in the State of New Jersey, as
NIplc may elect in its sole discretion, and the Seller hereby submits to the
non-exclusive jurisdiction of such courts for the purpose of any such suit,
action, proceeding or judgment. By the execution and delivery of this Agreement,
the Seller appoints the Secretary of the Surviving Corporation, at the executive
offices of the Surviving Corporation in Morristown, New Jersey (or such other
place within the State of New Jersey as may be designated for such purpose), as
his or her agent upon which process may be served in any such suit, action or
proceeding. Service of process upon such agent, together with notice of such
service given to the Seller in the manner provided in Section 4 hereof, shall be
deemed in every respect effective service of process upon him or her in any
suit, action or proceeding. Nothing herein shall in any way be deemed to limit
the ability of NIplc to serve any such writs, process or summonses in any other
manner permitted by applicable law or to obtain jurisdiction over the Seller, in
such other jurisdictions and in such manner, as may be permitted by applicable
law. The Seller hereby irrevocably waives any objections which he or she may now
or hereafter have to the laying of the venue of any suit, action or proceeding
arising out of or relating to this Agreement
<PAGE>
<PAGE>
7
brought in any court of competent jurisdiction in the State of New Jersey, and
hereby further irrevocably waives any claim that any such suit, action or
proceeding brought in any such court has been brought in any inconvenient forum.
No suit, action or proceeding against NIplc with respect to this Agreement may
be brought in any court, domestic or foreign, or before any similar domestic or
foreign authority other than in a court of competent jurisdiction in the State
of New Jersey, and the Seller hereby irrevocably waives any right which he or
she may otherwise have had to bring such an action in any other court, domestic
or foreign, or before any similar domestic or foreign authority. NIplc hereby
submits to the jurisdiction of such courts for the purpose of any such suit,
action or proceeding, and by the execution and delivery of this Agreement, the
Seller appoints the Secretary of the Surviving Corporation, at the executive
offices of the Surviving Corporation in Morristown, New Jersey (or such other
place within the State of New Jersey as may be designated for such purpose), as
his or her agent upon which process may be served in any such suit, action or
proceeding. Service of process upon such agent, together with notice of such
service given to NIplc in the manner provided in Section 4 hereof, shall be
deemed in every respect effective service of process upon NIplc in any suit,
action or proceeding. NIplc hereby irrevocably waives any objections which it
may now or hereafter have to the laying of the venue of any suit, action or
proceeding arising out of or relating to this Agreement brought in any court of
competent jurisdiction in the State of New Jersey, and hereby further
irrevocably waives any claim that any such suit, action or proceeding brought in
any such court has been brought in any inconvenient forum.
6. Assignability of Certain Rights by NIplc.
If the Selling Entity transfers its interest in the Surviving
Corporation to an affiliate, such affiliate shall assume the obligations
hereunder of the Selling Entity, but such assignment shall not, without the
written consent of the Purchaser or the Purchaser's Estate or Purchaser's Trust,
as the case may be, relieve NIplc of its obligations hereunder.
7. Binding Effect.
The provisions of this Agreement shall be binding on and inure to
the benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns, and shall also inure to the benefit of
each affiliate of NIplc that may become a Selling Entity.
8. Purchaser's Acknowledgement.
It is the understanding of the Purchaser that, and he or she
hereby acknowledges, that the Purchaser is aware that no Proposed Sale presently
is contemplated and that such a sale may never occur.
<PAGE>
<PAGE>
8
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
NOMURA INTERNATIONAL plc
By:
--------------------------------
Name:
Title:
----------------------------------
Purchaser
----------------------------------
----------------------------------
Address of Purchaser
<PAGE>
<PAGE>
[FORM OF
REGISTRATION RIGHTS AGREEMENT]
REGISTRATION RIGHTS AGREEMENT (hereinafter called this
"Agreement"), dated as of September __, 1996, between Antigua Acquisition
Corporation, a Delaware corporation ("Merger Sub"), and Hercules Limited, a
Cayman Islands company (the "Stockholder").
RECITALS
WHEREAS, Merger Sub has entered into an Agreement and Plan of
Merger, dated as of June 5, 1996, as amended (the "Merger Agreement"), among
AT&T Capital Corporation, a Delaware corporation (the "Company"), AT&T Corp., a
New York corporation, the Stockholder and Merger Sub, which is a wholly owned
subsidiary of the Stockholder, providing for the merger (the "Merger") of Merger
Sub with and into the Company, after which the Company will continue its
corporate existence as the surviving corporation (sometimes hereinafter referred
to as the "Surviving Corporation");
WHEREAS, Merger Sub was recently incorporated for the
purpose of merging with and into the Company;
WHEREAS, the Stockholder and Merger Sub have entered into a stock
subscription agreement, pursuant to which the Stockholder has agreed to purchase
from Merger Sub, and Merger Sub has agreed to sell to the Stockholder, shares of
Common Stock, par value $.01 per share, of Merger Sub, each of which will be
converted at the effective time of the Merger (the "Effective Time") pursuant to
the Merger Agreement in one share of Common Stock, par value $.01 per share, of
the Surviving Corporation (the "Common Stock"); and
WHEREAS, the parties hereto desire to enter into this Agreement,
which sets forth certain registration rights applicable to the Registrable
Securities (as hereinafter defined) held from time to time by the Stockholders.
NOW, THEREFORE, to implement the foregoing and in consideration
of the premises and of the mutual agreements contained herein, the parties
hereto agree as follows:
1. Definitions.
Whenever the following terms are used in this Agreement, they
shall have the meaning specified below:
"Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
<PAGE>
<PAGE>
2
"Holder" shall mean any Stockholder and any holder of Registrable
Securities who agrees in writing to be bound by the provisions of this
Agreement.
"Person" shall mean any individual, partnership, firm,
corporation, limited liability company, association, trust,
unincorporated organization or other entity.
"Registrable Securities" shall mean any Common Stock issued or
issuable to a Holder and any Common Stock which may be issued or
distributed in respect of such Common Stock by way of stock dividend or
stock split or other distribution, recapitalization or reclassification.
As to any particular Registrable Securities, once issued such securities
shall cease to be Registrable Securities when (i) a registration
statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have been
disposed of in accordance with such registration statement, (ii) they
shall have been distributed to the public pursuant to Rule 144 or 144A
(or any successor provisions) under the Securities Act, (iii) they shall
have been otherwise transferred, new certificates for them not bearing a
legend restricting further transfer shall have been delivered by the
Company and subsequent disposition of them shall not require
registration or qualification of them under the Securities Act or any
state securities or blue sky law then in force, or (iv) they shall have
ceased to be outstanding.
"Registration Expenses" shall mean any and all expenses incident
to performance of or compliance with this Agreement, including, without
limitation, (i) all SEC and stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees, (ii) all fees and
expenses of complying with securities or blue sky laws (including fees
and disbursements of counsel for the underwriters in connection with
blue sky qualifications of the Registrable Securities), (iii) all
printing, messenger and delivery expenses, (iv) all fees and expenses
incurred in connection with the listing of the Registrable Securities on
any securities exchange pursuant to clause (viii) of Section 4, (v) the
fees and disbursements of counsel for the Company and of its independent
public accountants, including the expenses of any special audits and/or
"cold comfort" letters required by or incident to such performance and
compliance, (vi) the reasonable fees and disbursements of counsel to the
Stockholder, and (vii) any fees and disbursements of underwriters
customarily paid by the issuers or sellers of securities, including
liability insurance if the Company so desires or if the underwriters so
require, and the reasonable fees and expenses of any special experts
retained in connection with the requested registration, but excluding
underwriting discounts and commissions and transfer taxes, if any.
<PAGE>
<PAGE>
3
"Securities Act" shall mean the Securities Act of 1933,
as amended.
"SEC" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act or the
Exchange Act.
"Seller" shall mean a Holder whose Registrable Securities are
included in a registration statement pursuant to any provision of this
Agreement.
2. Incidental Registrations.
(a) Right to Include Registrable Securities. If the Company at
any time after the Effective Time proposes to register its Common Stock under
the Securities Act (other than a registration on Form S-4 or S-8, or any
successor or other forms promulgated for similar purposes, or a registration
statement in connection with an offering to employees of the Surviving
Corporation and its subsidiaries or a registration of shares of Common Stock
pursuant to the terms of any Supplemental Agreement (as hereinafter defined)
other than any such registration resulting from any right of a party to such
Supplemental Agreement to have the Company effect registration under Section
7(a) of this Agreement), whether or not for sale for its own account, pursuant
to a registration statement on which it is permissible to register Registrable
Securities for sale to the public under the Securities Act, it will each such
time give prompt written notice to the Stockholder of its intention to do so and
of the Stockholder's rights under this Section 2. Upon the written request of
the Stockholder made within 15 days after the receipt of any such notice (which
request shall specify the Registrable Securities intended to be disposed of by
the Stockholder), the Company will use its best efforts to effect the
registration under the Securities Act of all Registrable Securities which the
Company has been so requested to register by the Stockholder; provided, that (i)
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 proceed with the proposed registration of the securities to be sold by
it, the Company may, at its election, give written notice of such determination
to the Stockholder and, thereupon, shall be relieved of its obligation to
register any Registrable Securities in connection with such registration (but
not from its obligation to pay the Registration Expenses in connection
therewith), and (ii) if such registration involves an underwritten offering, the
Stockholder must sell its Registrable Securities to the underwriters selected by
the Company on the same terms and conditions as apply to the Company, with such
differences, including any with respect to indemnification and liability
insurance, as may be customary or appropriate in combined primary and secondary
offerings. If a
<PAGE>
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4
registration requested pursuant to this Section 2(a) involves an underwritten
public offering, the Stockholder may elect, in writing prior to the effective
date of the registration statement filed in connection with such registration,
not to register such securities in connection with such registration.
(b) Expenses. The Company will pay all Registration Expenses in
connection with each registration of Registrable Securities requested pursuant
to this Section 2.
(c) Priority in Incidental Registrations. If a registration
pursuant to this Section 2 involves an underwritten offering and the managing
underwriter in good faith advises the Company in writing that, in its opinion,
the total amount of securities requested to be included in such registration
(including the Registrable Securities which the Stockholder has requested to be
included in such registration pursuant to Section 2(a) hereof) exceeds the
amount which can be sold in such offering without having an adverse effect on
such offering as contemplated by the Company (including the price at which the
Company proposes to sell such securities), then the Company will include in such
registration (i) first, 100% of the securities the Company proposes to sell and
(ii) second, to the extent of the number of securities requested to be included
in such registration that, in the opinion of such managing underwriter, can be
sold without having the adverse effect referred to above, the amount of
Registrable Securities that the Stockholder has requested to be included in such
registration (and, in the case of more than one Holder having the rights of the
Stockholder under this Section 2 and requesting pursuant to Section 2(a) hereof
to have Registrable Securities included in such registration, such amount to be
allocated pro rata among all requesting Holders on the basis of the relative
number of shares of Registrable Securities then held by each such Holder,
provided that any Registrable Securities thereby allocated to any such Holder
that exceed such Holder's request will be reallocated among the remaining
requesting Holders in like manner).
3. Registration on Request.
(a) Request by Stockholder. Upon the written request of the
Stockholder requesting that the Company effect the registration under the
Securities Act of all or part of the Stockholder's Registrable Securities and
specifying the amount and intended method of disposition thereof, the Company
will (i) promptly upon receipt thereof, give written notice of such request to
all other Holders and (ii) as expeditiously as possible, use its best efforts to
effect the registration under the Securities Act of the Registrable Securities
which the Company has been so requested to register by the Stockholder and,
subject to the limitations set forth in the Supplemental Agreements, any other
Holders so as to permit the disposition (in accordance with the intended method
thereof as aforesaid) of the Registrable Securities so to be registered.
Notwithstanding the
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5
foregoing, upon delivery to the requesting Stockholder of written notice and a
brief statement of the reason for the Company's action, the Company shall be
entitled to postpone filing of the registration statement otherwise properly
requested to be filed pursuant to this Section 3 for a period not to exceed 60
days if, in the reasonable judgment of the Board of Directors of the Company,
such registration would materially interfere with or materially adversely affect
any then existing negotiations for financing or any other arrangement, agreement
or plan then pending or being negotiated in good faith, provided that the
duration of such postponement does not exceed the number of days required to
avoid such material interference or material adverse effect.
(b) Registration Statement Form. Registration under this Section
3 shall be on such appropriate registration form prescribed by the SEC under the
Securities Act (i) as shall be selected by the Company and as shall be
reasonably acceptable to the Stockholder and (ii) as shall permit the
disposition of the Registrable Securities pursuant to the intended method of
disposition thereof specified in accordance with Section 3(a) hereof. The
Company agrees to include in such registration statement filed pursuant to this
Section 3 all information that the Stockholder, upon advice of counsel, shall
reasonably request. The Company may, if permitted by law, effect any
registration requested under this Section 3 by the filing of a registration
statement on Form S-3 (or any successor or similar short form registration
statement). If the managing underwriter shall advise the Company in writing
that, in its opinion, the use of a form of registration statement other than
Form S-3 is of material importance to the success of such proposed offering,
then such registration shall be effected on such other form.
(c) Expenses. The Company will pay all Registration Expenses in
connection with the registrations of Registrable Securities pursuant to this
Section 3 upon the written request of the Stockholder.
(d) Effective Registration Statement. A registration requested
pursuant to this Section 3 will not be deemed to have been effected unless it
has become effective; provided, that if, within 180 days after it has become
effective, the offering of Registrable Securities pursuant to such registration
is interfered with by any stop order, injunction or other order or requirement
of the SEC or other governmental agency or court, such registration will be
deemed not to have been effected.
(e) Selection of Underwriters. If a requested registration
pursuant to this Section 3 involves an underwritten offering, the Stockholder
shall have the right to select the investment banker or bankers and managers to
administer the offering; provided, however, that such investment banker or
bankers and managers shall be reasonably satisfactory to the Company.
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6
(f) Priority in Requested Registrations. If a requested
registration pursuant to this Section 3 involves an underwritten offering and
the managing underwriter in good faith advises the Company in writing that, in
its opinion, the number of securities requested to be included in such
registration (including any Registrable Securities which any other Holder has
requested to be included in such registration pursuant to Section 3(a) hereof)
exceeds the amount which can be sold in such offering without having an adverse
effect on such offering as contemplated by the Stockholder (including the price
at which the Stockholder proposes to sell such securities), then the Company
will include in such registration (i) first, 100% of the securities the
requesting Stockholder proposes to sell and (ii) second, to the extent of the
number of securities requested to be included in such registration that, in the
opinion of such managing underwriter, can be sold without having the adverse
effect referred to above, the amount of Registrable Securities that the other
Holders have requested to be included in such registration, such amount to be
allocated pro rata among all requesting Holders on the basis of the relative
number of shares of Registrable Securities then held by each such Holder,
provided that any Registrable Securities thereby allocated to any such Holder
that exceed such Holder's request will be reallocated among the remaining
requesting Holders in like manner). In the event that the number of Registrable
Securities requested to be included in such registration (consisting of the sum
of the number of Registrable Securities that the Stockholder has requested to be
included in such registration pursuant to Section 2(a) hereof and the number of
Registrable Securities which any other Holder has requested to be included in
such registration pursuant to Section 2(a)) is less than the amount of
Registrable Securities that, in the opinion of the managing underwriter, can be
sold without having the adverse effect referred to above, the Company may
include in such registration the securities the Company proposes to sell up to
the number of securities that, in the opinion of such managing underwriter, can
be so sold.
4. Registration Procedures. If and whenever the
Company is required to use its best efforts to effect or cause
the registration of any Registrable Securities under the
Securities Act as provided in this Agreement, the Company will,
as expeditiously as possible:
(i) prepare and, in any event within 120 days after the end
of the period within which a request for registration may be given to
the Company, file with the SEC a registration statement with respect to
such Registrable Securities and use its best efforts to cause such
registration statement to become effective; provided, however, that the
Company may discontinue any registration of its securities which is
being effected pursuant to Section 2 hereof at any time prior to the
effective date of the registration statement relating thereto;
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7
(ii) prepare and file with the SEC 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 for a period not in excess of 180 days (or such
period as may be permitted under the Securities Act) and to comply with
the provisions of the Securities Act with respect to the disposition of
all securities covered by such registration statement during such period
in accordance with the intended methods of disposition by the Seller or
Sellers thereof set forth in such registration statement; provided, that
before filing a registration statement or prospectus, or any amendments
or supplements thereto, the Company will furnish to counsel for the
Stockholder copies of all documents proposed to be filed, which
documents will be subject to the review of such counsel and no such
registration statement or prospectus, or any amendment or supplement
thereto, shall be filed to which such counsel shall have reasonably
objected on the grounds that such registration statement or prospectus,
or amendment or supplement (with respect to disclosures or omissions in
the case of a registration under Section 3 hereof relating to the
Holders of Registrable Securities), does not comply in all material
respects with the requirements of the Securities Act or the rules or
regulations thereunder and shall have specified the basis for such
objection in reasonable detail;
(iii) furnish to each Seller of such Registrable Securities
such number of copies of such registration statement and of each
amendment and supplement thereto (in each case including all exhibits),
such number of copies of the prospectus included in such registration
statement (including each preliminary prospectus and summary
prospectus), in conformity with the requirements of the Securities Act,
and such other documents as such Seller may reasonably request in order
to facilitate the disposition of the Registrable Securities by such
Seller;
(iv) use its best efforts to register or qualify such
Registrable Securities covered by such registration statement under such
other securities or blue sky laws of such jurisdictions as each Seller
shall reasonably request, and do any and all other acts and things which
may be reasonably necessary or advisable to enable such Seller to
consummate the disposition in such jurisdictions of the Registrable
Securities owned by such Seller, 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 where, but for the requirements
of this clause (iv), it would not be obligated to be so qualified, to
subject itself to taxation in any such jurisdiction, or to consent to
general service of process in any such jurisdiction;
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8
(v) use its best efforts to cause such Registrable
Securities covered by such registration statement to be registered with
or approved by such other governmental agencies or authorities as may be
necessary to enable the Seller or Sellers thereof to consummate the
disposition of such Registrable Securities;
(vi) notify each Seller of any such Registrable Securities
covered by such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act
within the appropriate period mentioned in clause (ii) of this Section
4, of the Company's becoming aware that the prospectus included in such
registration statement, as then in effect, includes an untrue statement
of a material fact or omits 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 then existing, and at the
request of any such Seller, prepare and furnish to such Seller a
reasonable number of copies of an amended or supplemental prospectus as
may be necessary so that, as thereafter delivered to the purchasers of
such Registrable 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 then existing;
(vii) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable (but not more than
18 months) after the effective date of the registration statement, an
earnings statement which shall satisfy the provisions of Section 11(a)
of the Securities Act and the rules and regulations promulgated
thereunder;
(viii) use its best efforts to list such Registrable Securities
on any securities exchange on which the Common Stock is then listed, if
such Registrable Securities are not already so listed and if such
listing is then permitted under the rules of such exchange, and to
provide a transfer agent and registrar for such Registrable Securities
covered by such registration statement not later than the effective date
of such registration statement;
(ix) enter into such customary agreements (including an
underwriting agreement in customary form) and take such other actions as
the Stockholder, the Seller or Sellers of a majority of the Registrable
Securities being sold by other Holders or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of
such Registrable Securities;
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9
(x) 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
Stockholder or the Seller or Sellers of a majority of the Registrable
Securities being sold by other Holders (provided that such Registrable
Securities constitute at least 25% of the securities covered by such
registration statement) shall reasonably request; and
(xi) make available for inspection by any Seller of such
Registrable Securities covered by such registration statement, by any
underwriter participating in any disposition to be effected pursuant to
such registration statement and by any attorney, accountant or other
agent retained by any such Seller or any such underwriter, all pertinent
financial and other records, pertinent corporate documents and
properties of the Company, and cause all of the Company's officers,
directors and employees to supply all information reasonably requested
by any such Seller, underwriter, attorney, accountant or agent in
connection with such registration statement.
The Company may require each Seller to furnish the Company with
such information regarding such Seller and pertinent to the disclosure
requirements relating to the registration and the distribution of such
securities as the Company may from time to time reasonably request in writing.
Each Seller agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in clause (vi) of
this Section 4, such Seller will forthwith discontinue disposition of
Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such Seller's receipt of the copies of the
supplemented or amended prospectus contemplated by clause (vi) of this Section
4, and, if so directed by the Company, such Seller will deliver to the Company
(at the Company's expense) all copies, other than permanent file copies then in
such Seller's possession, of the prospectus covering such Registrable Securities
current at the time of receipt of such notice. In the event the Company shall
give any such notice, the period mentioned in clause (ii) of this Section 4
shall be extended by the number of days during the period from and including the
date of the giving of such notice pursuant to clause (vi) of this Section 4 and
including the date when each Seller shall have received the copies of the
supplemented or amended prospectus contemplated by clause (vi) of this Section
4.
5. Indemnification.
(a) Indemnification by the Company. In the event of
any registration of any securities of the Company under the
Securities Act pursuant to Section 2 or 3, the Company will, and
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10
it hereby does, indemnify and hold harmless, to the extent permitted by law, the
Seller of any Registrable Securities covered by such registration statement,
each affiliate of such Seller and their respective directors and officers or
general and limited partners (and the directors, officers, affiliates and
controlling Persons thereof), each other Person who participates as an
underwriter in the offering or sale of such securities and each other Person, if
any, who controls such Seller or any such underwriter within the meaning of the
Securities Act (collectively, the "Indemnified Parties"), against any and all
losses, claims, damages or liabilities, joint or several, and expenses to which
such Seller, any such director or officer or general or limited partner or
affiliate or any such underwriter or controlling Person may become subject under
the Securities Act, common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof, whether or
not such Indemnified Party is a party thereto) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such securities were
registered under the Securities Act, any preliminary, final or summary
prospectus contained therein, or any amendment or supplement thereto, or (ii)
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing, and the Company will reimburse such
Indemnified Party for any legal or any other expenses reasonably incurred by it
in connection with investigating or defending any such loss, claim, liability,
action or proceeding; provided, that the Company shall not be liable to any
Indemnified Party in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises
out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement or amendment or
supplement thereto or in any such preliminary, final or summary prospectus in
reliance upon and in conformity with written information with respect to such
Seller furnished to the Company by such Seller for use in the preparation
thereof; and provided, further, that the Company will not be liable to any
Person who participates as an underwriter in the offering or sale of Registrable
Securities or any other Person, if any, who controls such underwriter within the
meaning of the Securities Act, under the indemnity agreement in this Section
5(a) with respect to any preliminary prospectus or the final prospectus or the
final prospectus as amended or supplemented, as the case may be, to the extent
that any such loss, claim, damage or liability of such underwriter or
controlling Person results from the fact that such underwriter sold Registrable
Securities to a Person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the final prospectus (including any
documents incorporated by reference therein) or of the final prospectus as then
amended or supplemented (including any documents incorporated by reference
therein), whichever is
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11
most recent, if the Company has previously furnished copies thereof to such
underwriter. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of such Seller or any Indemnified Party
and shall survive the transfer of such securities by such Seller.
(b) Indemnification by the Seller. The Company may require, as a
condition to including any Registrable Securities in any registration statement
filed in accordance with Section 4 herein, that the Company shall have received
an undertaking reasonably satisfactory to it from the prospective Seller of such
Registrable Securities or any underwriter to indemnify and hold harmless (in the
same manner and to the same extent as set forth in Section 5(a) hereof) the
Company and all other prospective Sellers or any underwriter, as the case may
be, with respect to any statement or alleged statement in or omission or alleged
omission from such registration statement, any preliminary, final or summary
prospectus contained therein, or any amendment or supplement, if such statement
or alleged statement or omission or alleged omission was made in reliance upon
and in conformity with written information with respect to such Seller or
underwriter furnished to the Company by such Seller or underwriter for use in
the preparation of such registration statement, preliminary, final or summary
prospectus or amendment or supplement, or a document incorporated by reference
into any of the foregoing. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Company or any of
the prospective Sellers, or any of their respective affiliates, directors,
officers or controlling Persons and shall survive the transfer of such
securities by such Seller.
(c) Notices of Claims, Etc. Promptly after receipt by an
Indemnified Party hereunder of written notice of the commencement of any action
or proceeding with respect to which a claim for indemnification may be made
pursuant to this Section 5, such Indemnified Party will, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to the
latter of the commencement of such action; provided, that the failure of the
Indemnified Party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subdivisions of this
Section 5, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. In case any such action is brought
against an Indemnified Party, unless in such Indemnified Party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist in respect of such claim, the indemnifying party will be
entitled to participate in and to assume the defense thereof, jointly with any
other indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such Indemnified Party, and after notice from
the indemnifying party to such Indemnified Party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
Indemnified Party for any legal or other expenses
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12
subsequently incurred by the latter in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party will consent to
entry of any judgment or enter into any settlement which does not include, as an
unconditional term thereof, the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation, without the prior written consent of the Indemnified Party.
(d) Other Indemnification. Indemnification similar to that
specified in the preceding subdivisions of this Section 5 (with appropriate
modifications) shall be given by the Company and each Seller with respect to any
required registration or other qualification of securities under any federal or
state law or regulation or governmental authority other than the Securities Act.
(e) Non-Exclusivity. The obligations of the parties under this
Section 5 shall be in addition to any liability which any party may otherwise
have to any other party.
6. Rule 144. If the Company shall have filed a registration
statement pursuant to the requirements of Section 12 of the Exchange Act or a
registration statement pursuant to the requirements of the Securities Act, the
Company covenants that it will file the reports required to be filed by it under
the Securities Act and the Exchange Act and the rules and regulations adopted by
the SEC thereunder (or, if the Company is not required to file such reports, it
will, upon the request of the Stockholder, make publicly available such
information), and it will take such further action as the Stockholder may
reasonably request, all to the extent required from time to time to enable the
Stockholder to sell shares of Registrable Securities without registration under
the Securities Act within the limitation of the exemptions provided by (i) Rule
144 under the Securities Act, as such Rule may be amended from time to time, or
(ii) any similar rule or regulation hereafter adopted by the SEC. Upon the
request of the Stockholder, the Company will deliver to the Stockholder a
written statement as to whether it has complied with such requirements.
Notwithstanding anything contained in this Section 6, the Company may deregister
under Section 12 of the Exchange Act if it then is permitted to do so pursuant
to the Exchange Act and the rules and regulations thereunder.
7. Miscellaneous.
(a) Other Investors. The Company may enter into agreements with
other purchasers of Common Stock who are then employees of the Company or any of
its subsidiaries making them parties hereto (and thereby giving them all of the
rights, preferences and privileges of an original party (other than the Company)
hereto) with respect to additional shares of Common Stock (collectively, the
"Supplemental Agreements"); provided that, pursuant to any such Supplemental
Agreement, such purchaser
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13
expressly agrees to be bound by all of the terms, conditions and obligations of
this Agreement as if such purchaser were an original party (other than the
Company) hereto; provided further that the rights of any such purchaser to have
the Company effect registration of his or her Registrable Securities hereunder
shall be limited to the extent set forth in such purchaser's Supplement
Agreement, and further provided that such purchaser shall not obtain any right
to request registration under Section 2 hereof or to initiate registration under
Section 3 hereof. All shares of Common Stock issued or issuable pursuant to such
Supplemental Agreements by such purchasers shall be deemed to be Registrable
Securities.
(b) Holdback Agreement. If any such registration shall be in
connection with an underwritten public offering, the Holders agree not to effect
any public sale or distribution, including any sale pursuant to Rule 144 under
the Securities Act, of any equity securities of the Company, or of any security
convertible into or exchangeable or exercisable for any equity security of the
Company (in each case, other than as part of such underwritten public offering),
within 7 days before or 180 days (or such lesser period as the managing
underwriters may permit) after the effective date of such registration if, and
to the extent, the Company or any managing underwriter of any such offering
determines such action is necessary or desirable in order to effect such
offering, and the Company hereby also so agrees and agrees to cause each other
holder of any equity security, or of any security convertible into or
exchangeable or exercisable for any equity security, of the Company purchased
from the Company (at any time other than in a public offering) to so agree.
(c) Amendments and Waivers. This Agreement may be amended and the
Company may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent to such amendment, action or omission to act, of the
Stockholder. Each Holder of any Registrable Securities at the time or thereafter
outstanding shall be bound by any consent authorized by this Section 7(c),
whether or not such Registrable Securities shall have been marked to indicate
such consent.
(d) Successors, Assigns and Transferees. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns. In addition, and whether or not any express
assignment shall have been made, the provisions of this Agreement which are for
the benefit of the parties hereto other than the Company shall also be for the
benefit of and enforceable by any subsequent Holder of any Registrable
Securities, subject to the provisions contained herein.
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14
(e) Notices. All notices and other communications provided for
hereunder shall be in writing and shall be sent by first class mail, telex,
facsimile or hand delivery:
(i) if to Merger Sub or the Company, to:
AT&T Capital Corporation
44 Whippany Road
Morristown, New Jersey 07960
Attention: Vice President - Human Resources
With a copy to:
AT&T Capital Corporation
44 Whippany Road
Morristown, New Jersey 07960
Attention: General Counsel
(ii) if to the Stockholder, to:
Hercules Limited
c/o Maples & Calder
P.O. Box 309
Ugland House
South Church Street
Grand Cayman
Cayman Islands, British West Indies
with a copy to:
AT&T Capital Corporation
44 Whippany Road
Morristown, New Jersey 07960
Attention: General Counsel
(iii) if to any other Holder, to the address of such other
holder as shown in the books and records of the Company,
or to such other address as any of the above shall have
designated in writing to all of the other above.
All such notices and communications shall be deemed to have been given or made
(1) when delivered by hand, (2) five business days after being deposited in the
mail, postage prepaid, (3) when telexed, answer-back received or (4) when sent
by facsimile, receipt acknowledged.
(f) Descriptive Headings. The headings in this
Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning of terms contained herein.
(g) Severability. In the event that any one or more
of the provisions, paragraphs, words, clauses, phrases or
sentences contained herein, or the application thereof in any
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15
circumstances, is held invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of any such provision,
paragraph, word, clause, phrase or sentence in every other respect and of the
remaining provisions, paragraphs, words, clauses, phrases or sentences hereof
shall not be in any way impaired, it being intended that all rights, powers and
privileges of the parties hereto shall be enforceable to the fullest extent
permitted by law.
(h) Counterparts. This Agreement may be executed in two or more
counterparts, and by different parties on separate counterparts, each of which
shall be deemed an original, but all such counterparts shall together constitute
one and the same instrument, and it shall not be necessary in making proof of
this Agreement to produce or account for more than one such counterpart.
(i) Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware
applicable to contracts made and to be performed therein. The parties to this
Agreement hereby agree to submit to the jurisdiction of the courts of the State
of New Jersey in any action or proceeding arising out of or relating to this
Agreement.
(j) Specific Performance. The parties hereto acknowledge and
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, it is agreed that they
shall be entitled to an injunction or injunctions to prevent breaches of the
provisions of this Agreement and to enforce specifically the terms and
provisions hereof in any court of competent jurisdiction in the United States or
any state thereof, in addition to any other remedy to which they may be entitled
at law or equity.
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16
IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement or caused this Agreement to be executed on its behalf as of the date
first written above.
ANTIGUA ACQUISITION CORPORATION
By:
----------------------------------------
Name:
Title:
HERCULES LIMITED
By:
----------------------------------------
Name:
Title:
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[FORM OF
VOTING TRUST AGREEMENT]
VOTING TRUST AGREEMENT (hereinafter called this "Agreement"),
dated as of October __, 1996, between the several stockholders of AT&T Capital
Corporation, a corporation organized and existing under the laws of the State of
Delaware (the "Corporation"), whose names are listed below and all other
stockholders of the Corporation who shall join in and become parties to this
agreement as hereinafter provided (each, a "Subscriber") and Thomas C. Wajnert
(the "Trustee").
RECITALS
WHEREAS, the Subscribers are respectively owners of shares of the
common stock (the "Stock") of the Corporation in the amount set forth opposite
their respective signature hereto;
WHEREAS, the combined holdings of Stock of the Subscribers
constitute a minority of the issued and outstanding Stock of the Corporation;
WHEREAS, the Subscribers desire to pool their Stock for a limited
period of time so as to make more effective their participation in the
management of the Corporation and to facilitate certain transactions involving
the Corporation;
WHEREAS, with a view to the safe and competent management of the
Corporation and the expeditious and efficient involvement of the Corporation in
certain transactions, in each case in the interests of all the stockholders
thereof, the Subscribers are desirous of creating a trust (the "Trust") in the
manner following; and
WHEREAS, the Trustee has agreed to act as trustee of the shares
of Stock to be assigned and delivered hereunder.
It is hereby agreed as follows:
1. TRANSFER OF STOCK TO TRUSTEES.
Each of the Subscribers agrees that he or she will assign and
deliver to the Trustee any certificate held by the Subscriber representing
shares of Stock owned by him or her at any time or from time to time by
depositing with the Trustee such certificate or certificates immediately after
the issuance thereof, together with proper and sufficient instruments duly
endorsed for the transfer thereof to the Trustee and with all necessary stock
transfer stamps affixed, and shall do all things necessary for the transfer of
the Subscriber's respective shares of Stock to the Trustees on the books of the
Corporation.
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2
2. OTHER STOCKHOLDERS MAY JOIN.
Every stockholder in the Corporation may become a party to this
Agreement by assigning and delivering to the Trustee the certificate or
certificates representing all shares of Stock owned by such stockholder in the
manner provided in the preceding paragraph and expressly agreeing in writing to
be bound by all of the terms, conditions and obligations of this Agreement as if
such stockholder were an original party (other than the Trustee) hereto.
3. TRUSTEE TO HOLD SUBJECT TO AGREEMENT.
The Trustee shall hold the shares of Stock so transferred to him
for the common benefit of the Subscribers, under the terms and conditions
hereinafter set forth.
4. ISSUANCE OF STOCK CERTIFICATES TO TRUSTEE.
(a) The Trustee shall surrender to the proper officers of the
Corporation for cancellation all certificates of Stock which shall be assigned
and delivered to him as herein provided, and in their stead shall procure new
certificates to be issued to him as Trustee under this Agreement. Such
certificates shall state that they are subject to this Agreement, and such fact
shall be noted also in the stock ledger of the Corporation.
(b) If any of the Stock transferred to the Trustee hereunder
represents property pledged by a Subscriber to secure any obligations of such
Subscriber and if, as a condition to permitting the transfer of such Stock to
the Trustee hereunder the pledgee requires the Trustee to pledge and deposit
such Stock with such pledgee, then the Trustee shall so pledge and deposit with
such pledgee such Stock, and assign and transfer to such pledgee all of the
Trustee's right, title and interest in and to such Stock, to be held by such
pledgee in accordance with the original pledge by such Subscriber to the same
extent as if the Trustee were such Subscriber.
5. VOTING TRUST CERTIFICATES.
(a) Upon the deposit with the Trustee by a Subscriber of a
certificate or certificate representing shares of Stock in the manner
hereinbefore set forth, the Trustee shall issue to such Subscriber a voting
trust certificate for the same number of shares as is represented by the
certificate or certificates representing shares of Stock transferred by the
Subscriber to the Trustee (each a "Voting Trust Certificate"). Each such Voting
Trust Certificate shall state that it is issued under this Agreement, and shall
set forth the nature and amount of the beneficial interest thereunder of the
person to whom it is issued.
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3
(b) The Voting Trust Certificate shall be
substantially in the following form:
"Number VTC ... .... Shares
AT&T CAPITAL CORPORATION
(a Delaware corporation)
VOTING TRUST CERTIFICATE
This is to certify that ___________________ (the "Holder") has
deposited with the undersigned as Trustee under the Voting Trust Agreement,
dated as of October __, 1996 (the "Voting Trust Agreement"), between certain
holders of common stock (the "Stock") of AT&T Capital Corporation, a Delaware
corporation (the "Corporation") and Thomas C. Wajnert (the "Trustee"), a
certificate or certificates representing the number of shares of Stock set forth
above and that, until the termination of the Voting Trust Agreement, the Holder
or his or her assign is entitled to all the benefits and interests specified in
the Voting Trust Agreement arising from the deposit of such shares of Stock, all
as provided in, and subject to the terms of, the Voting Trust Agreement. Until
the termination of the Voting Trust Agreement, the Holder or his or her assign
is entitled (i) to receive payments equal to the amount of dividends, if any,
received by the Trustee upon the shares of Stock represented by this
certificate, less any taxes imposed thereon that the Trustee may be required to
pay thereon or to withhold therefrom under any present or future law and also
less a proportionate share of the expenses of the Trustee and (ii) to vote with
respect to action to be taken by the Trustee pursuant to the procedures set
forth in the Voting Trust Agreement. Until the Trustee shall have actually
delivered a certificate or certificates representing the shares of Stock held by
him to the Holder as specified in the Voting Trust Agreement, and subject to the
terms thereof, the Trustee or his successor in the trust shall, as provided in
the Voting Trust Agreement, possess and be entitled to exercise all rights and
powers of every nature of absolute owner and holder of record of the Stock,
including, without limitation, the right to vote for every purpose and to
consent to or waive any corporate act of the Corporation of any kind, it being
understood that no voting right shall pass to the Holder by virtue of the
ownership of this certificate or by or under any agreement express or implied,
but it being further understood that the Trustee shall be required to vote, or
otherwise take action with respect to, the shares of Stock deposited hereunder
in the manner set forth in the Voting Trust Agreement.
Upon the termination of the Voting Trust Agreement, this
certificate shall be surrendered to the Trustee by the Holder against delivery
to the Holder of a certificate or certificates representing a like number of
shares of Stock.
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4
In the event of the dissolution or total or partial liquidation
of the Corporation the money and other property received by the Trustee in
respect of the Stock represented by this certificate shall be paid or delivered
to the Holder of record hereof, but only upon surrender of this certificate in
the case of dissolution or the presentation of this certificate for the notation
thereon of the distribution in case of a partial liquidation.
To the extent set forth in the Voting Trust Agreement, and
subject to the same restrictions and limitations upon transfer by the Holder of
the shares of Stock deposited hereunder whether pursuant to the terms of any
agreement to which the Holder is subject or otherwise, this certificate and the
right, title and interest in and to the shares of Stock in respect of which this
certificate is issued, are transferable on the books of the Trustee by the
registered Holder hereof in person or by attorney duly authorized, according to
the rules established for that purpose by the Trustee and on surrender hereof
properly assigned; and until so transferred the Trustee may treat the registered
Holder hereof as the owner for all purposes whatsoever except that no delivery
of stock certificates hereunder shall be made without the surrender hereof.
As a condition of making or permitting any transfer or delivery
of stock certificates or Voting Trust Certificates, the Trustee may require the
payment of a sum sufficient to pay or reimburse him for any stamp tax or other
governmental charge in connection therewith and for a proportionate part of his
expenses as Trustee.
The Holder takes this certificate subject to all the terms and
conditions of the Voting Trust Agreement and by acceptance of this certificate
acknowledges and warrants that receipt of the same is for investment purposes
only and not with a view to distribution.
A duplicate original of the Voting Trust Agreement is filed with
the Trustee and with the Corporation.
IN WITNESS WHEREOF, the undersigned Trustee has
executed this certificate as of the ____ day of ___________________,____.
________________________________
Trustee
(c) The Voting Trust Certificates shall be assignable, to the
extent set forth herein and subject to the restrictions and limitations on
transfer referred to below, and until so transferred the Trustee may treat the
registered holder of the Voting Trust Certificate as the owner thereof for all
purposes whatsoever. Upon any such permitted transfer, and surrender of
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5
the transferred Voting Trust Certificate to the Trustee, together with proper
and sufficient instruments duly endorsed for the transfer thereof to the
transferee and with all necessary stock transfer stamps affixed, the Trustee
shall deliver or cause to be delivered to the transferee a Voting Trust
Certificate or Certificate representing the same number of shares of Stock as
set forth in the Voting Trust Certificate so transferred and surrendered. The
Trustee shall keep a list of the shares of Stock transferred to him, and shall
also keep a record of all Voting Trust Certificates issued or transferred on his
books, which records shall contain the names and addresses of the holders of the
Voting Trust Certificates and the number of shares of Stock represented by each
such certificate. Such list and record shall be open at all reasonable times to
inspection by any Subscriber or by the Corporation. Every assignee or transferee
of a Voting Trust Certificate issued hereunder shall succeed to all the rights
hereunder of the transferor and, by acceptance of such Voting Trust Certificate,
become a party hereto with like effect as though an original Subscriber hereof.
6. RESTRICTIONS ON TRANSFER OF VOTING TRUST
CERTIFICATE.
Each of the Subscribers hereby agrees that during the term of
this Agreement, his or her Voting Trust Certificates will not be sold or
transferred except in accordance with the terms and conditions of this Agreement
and subject to the same restrictions and limitations upon transfer by any
Subscriber of the shares of Stock so deposited with the Trustee whether pursuant
to the terms of any agreement to which a Subscriber is subject, so long as such
agreement remains in effect, or otherwise. The Voting Trust Certificates shall
be regarded as stock of the Corporation, within the meaning of any provision of
the By-laws of the Corporation imposing conditions and restrictions upon the
sale of stock of the Corporation.
7. RIGHTS OF THE TRUSTEE.
Until the Trustee shall have actually delivered a certificate or
certificates representing the shares of Stock held by him to the Subscriber as
specified herein, and subject to the terms hereof, the Trustee or his successor
in the trust shall possess and be entitled to exercise all rights and powers of
every nature of absolute owner and holder of record of the Stock, including,
without limitation, the right to vote as described below, and the right, upon
the instructions of Subscribers representing a majority of the shares of Stock
subject to this Trust to sell or transfer all, but not less than all, of such
shares, subject to the same restrictions and limitations upon transfer to which
any Subscriber of the shares deposited with the Trustee hereunder is subject,
whether pursuant to the terms of any agreement to which a Subscriber is subject,
so long as such agreement remains in effect, or otherwise. It is expressly
acknowledged and agreed that the Trustee's rights hereunder
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6
expressly include, without limitation, the right to sell or transfer such shares
of Stock in connection with a sale of the Corporation.
8. TRUSTEE TO VOTE STOCK.
It shall be the duty of the Trustee, and he shall have full power
and authority, and he is hereby fully empowered and authorized, to represent the
holders of the Voting Trust Certificates and the Stock transferred to the
Trustee as aforesaid, and to vote upon the Stock, as directed by the vote of the
holders of Voting Trust Certificates representing a majority of the Stock
subject to this Trust voting with respect thereto in accordance with reasonable
procedures as may be established from time to time by the Trustee, at all
meetings of the stockholders of the Corporation, in the election of Directors
and upon any and all matters in question, which may be brought before such
meetings, as fully as any stockholder might do if personally present. It is
expressly acknowledged and agreed that the Trustee's right to vote shall
expressly include, without limitation, the right to vote on such fundamental
matters as a proposal of merger or consolidation, or a sale of all or
substantially all of the assets of the Corporation. The Trustee may vote stock
of the Corporation in person or by such person as he may select as his proxy.
9. TRUSTEE'S LIABILITY.
The Trustee shall use his best judgment in voting upon the Stock
transferred to him, but shall not be liable for any vote cast, or consent or
waiver given by him, in good faith, and in the absence of gross negligence or
wilful misconduct.
10. DIVIDENDS AND OTHER DISTRIBUTIONS.
(a) Except as provided in the next succeeding sentence, the
Trustee shall collect and receive all dividends that may accrue upon the shares
of Stock subject to this Trust, and, subject to deduction as provided below,
shall divide the same among the holders of the Voting Trust Certificates in
proportion to the number of shares respectively represented by their Voting
Trust Certificates. Notwithstanding the foregoing, the Trustee and the
Corporation may provide that the Corporation shall pay directly to the holders
of the Voting Trust Certificates any or all dividends that may accrue upon
shares of Stock subject to the Trust in proportion to the number of shares
respectively represented by their Voting Trust Certificates and subject to
deduction as provided below for the benefit of the Trustee.
(b) In the event of the dissolution or total or partial
liquidation of the Corporation, the Trustee shall collect and receive all money
and other property in respect of the shares of Stock subject to this Trust, and,
subject to deduction as
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7
provided below, shall divide the same among the holders of the Voting Trust
Certificates in proportion to the number of shares respectively represented by
their Voting Trust Certificates, but only upon surrender of such holders' Voting
Trust Certificates in the case of dissolution or the presentation of their
Voting Trust Certificates for the notation thereon of the distribution in case
of a partial liquidation.
(c) In the event of the merger or consolidation of the
Corporation, or a sale of the Corporation or of all or substantially all of its
assets, the Trustee may, in his sole discretion, elect to receive the moneys,
securities, rights or properties to which the holder of the shares of Stock
subject to this Trust is entitled, and, subject to deduction as provided below,
to divide the same among the holders of the Voting Trust Certificates in
proportion to the number of shares respectively represented by their Voting
Trust Certificates, but only upon surrender of such holders' Voting Trust
Certificates in the case of the merger or consolidation of the Corporation or
the sale of the Corporation, or the presentation of their Voting Trust
Certificates for the notation thereon of the distribution in case of a sale of
all or substantially all of the assets of the Corporation.
(d) Notwithstanding anything to the contrary contained herein,
the Trustee may deduct from any payment or distribution to any Subscribers
hereunder, or all of them, the amount of (i) any taxes imposed thereon that the
Trustee may be required to pay thereon or to withhold therefrom under any
present or future law, (ii) a sum sufficient to pay or reimburse him for any
stamp tax or other governmental charge in connection therewith any transfer or
delivery of any stock certificate or Voting Trust Certificate and (iii) a
proportionate share of the expenses of the Trustee.
11. TRUSTEE'S INDEMNITY.
The Trustee shall be entitled to be indemnified fully out of the
dividends coming to his hands against all costs, charges, expenses and other
liabilities properly incurred by him in the exercise of any power conferred upon
him by these presents; and the Subscribers, and each of them, hereby covenant
with the Trustee that in the event of the monies and securities in his hands
being insufficient for that purpose, the Subscribers, and each of them, will in
proportion to the amount of their respective shares and interests hold harmless
and keep indemnified the Trustee of and from all loss or damage which he may
sustain or be put to by reason of anything he may lawfully do in the execution
of this Trust.
12. APPOINTMENT OF SUBSTITUTE OR SUCCESSOR TRUSTEE.
In the event of the Trustee's dying or resigning or refusing or
becoming unable to act, the Trustee may designate, by written instrument duly
acknowledged, a substitute or successor
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8
Trustee, or if the Trustee cannot, or does not within 10 days of an event
described above, so designate a substitute or successor Trustee, then the
holders of the Voting Trust Certificates by the vote of the holders of Voting
Trust Certificates representing a majority of the Stock deposited hereunder
voting with respect thereto, shall appoint a substitute or successor Trustee,
and any person so designate or appointed shall thereupon be vested with all the
duties, powers and authority of a Trustee hereunder as if originally named
herein. Prior to the commencement of his duties, the Trustee and, so long as
such subscription agreement remain in effect, each Trustee subsequently
designated or appointed shall sign an agreement with the Corporation
substantially similar to the subscription agreements pursuant to which the
original Subscribers purchased their original shares of Stock and shall thus
signify his or her consent to be bound thereby and his or her agreement to
perform the terms thereof. All of the terms, provisions and conditions of such
subscription agreements shall apply to all Trustees hereof and hereunder with
the same force and effect as if such Trustees had originally signed such
agreements.
13. COMPENSATION.
The Trustee shall serve without compensation. The Trustee shall
have the right to incur and pay such reasonable expenses and charges and to
employ such counsel as he may deem necessary or desirable in the performance of
his duties hereunder. Any such expenses or charges incurred or paid may be
charged pro rata to the holders of the Voting Trust Certificates.
14. CONTINUANCE AND TERMINATION OF TRUST.
Unless the Trustee exercises his right, which is hereby expressly
granted to him, to terminate the Trust beforehand, the Trust hereby created
shall be continued until the date that this 21 years from the date of this
Agreement, and shall then terminate. Upon termination of the Trust, the Trustee
shall, upon the surrender of the Voting Trust Certificates by the respective
holders thereof assign and transfer to them the number of shares of Stock
thereby represented or may deposit with the Corporation the certificate or
certificates representing the Stock held by the Trustee, together with proper
and sufficient instruments duly endorsed for the transfer thereof and with all
necessary stock transfer stamps affixed, with instructions to distribute the
same to the registered holders of the Voting Trust Certificates in the manner
above provided, and the Trustee shall thereupon be relieved and discharged from
all further obligation and liability hereunder.
15. NOTICE.
Any notice to be given to the holders of Voting Trust
Certificates hereunder shall be sufficiently given if mailed to
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9
the registered holders of Voting Trust Certificates at the addresses furnished
respectively by such holders to the Trustee.
16. LOST TRUST CERTIFICATES.
In case any Voting Trust Certificate issued under this Agreement
shall become mutilated, destroyed, stolen or lost, the Trustee, in his sole
discretion, may authorize the issuance of a new Voting Trust Certificate and
thereupon issue a new Voting Trust Certificate in substitution therefor for a
like number of shares. The applicant for such substituted Voting Trust
Certificate shall furnish to the Trustee evidence to his satisfaction of the
mutilation, destruction, theft or loss of such Voting Trust Certificate,
together with such indemnity to the Trustee as he may require in his sole
discretion.
17. TRUSTEE AND THE CORPORATION.
Nothing herein contained shall disqualify the Trustee hereunder
from voting for himself to serve or from serving the Corporation or any of its
affiliates as an officer or director or in any other capacity or from voting for
himself to receive or receiving compensation for such services. The Trustee
shall not be disqualified from his office by dealing or contracting with the
Corporation nor shall any transaction or contract of the Corporation be void or
voidable by reason of the fact that the Trustee or any corporation, partnership,
association or other organization of which the Trustee is a director or officer,
or has a financial interest, is in any way interested in such transaction or
contract, nor shall the Trustee be liable to account to the Corporation or to
any stockholder thereof for any profits realized by, from or through any such
transaction or contract by reason of the fact that the Trustee or any
corporation, partnership, association or other organization of which the Trustee
is a director or officer, or has a financial interest, was in any way interested
in such transaction or contract.
18. MISCELLANEOUS.
(a) Successors and Assigns. This Agreement shall be binding on
and accrue to the benefit of the parties hereto and their respective executors,
administrators, legal representatives, heirs, assigns and successors.
(b) Counterparts. This Agreement may be executed in one or more
counterparts, and by different parties on separate counterparts, each of which
shall be deemed an original, but all such counterparts together constitute one
and the same Agreement, and it shall not be necessary in making proof of this
Agreement to produce or account for more than one such counterpart.
(c) Severability. In the event that any one or more
of the provisions, paragraphs, words, clauses, phrases or
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10
sentences contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision, paragraph, word,
clause, phrase or sentence in every other respect and of the remaining
provisions, paragraphs, words, clauses, phrases or sentences hereof shall not be
in any way impaired, it being intended that all rights, powers and privileges of
the parties hereto shall be enforceable to the fullest extent permitted by law.
(d) Descriptive Headings. The headings in this
Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning of terms contained herein.
(e) Deposit of Agreement. One fully conformed copy of this
Agreement shall be deposited by the Trustee at the Corporation's registered
office in the Sate of Delaware, and shall be subject to the same examination by
a stockholder of the Corporation as are the books and records of the
Corporation, and shall be subject to examination by any holder of a Voting Trust
Certificate, in person or by attorney or other agent, during normal business
hours. A fully conformed copy of this Agreement shall also retained by the
Trustee at his office, and shall be subject to examination by any holder of a
Voting Trust Certificate, in person or by attorney or other agent, during normal
business hours.
19. GOVERNING LAW.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware applicable to contracts made
and to be performed therein.
20. ACCEPTANCE OF TRUST BY TRUSTEE.
The Trustee hereby accepts the above Trust subject to all of the
terms, conditions and reservations herein contained, and agrees that he will
exercise his powers and perform his duties as Trustee as herein set forth;
provided, that nothing herein contained shall be construed to prevent the
Trustee from resigning and discharging himself from the Trust.
IN WITNESS WHEREOF, the Subscribers have hereunto set their hands
and seals and set opposite their respective signatures the number of shares held
by them respectively, and the Trustee, in token of his acceptance hereby
created, have hereunto set his hand and seal.
[SEAL]
________________________
Trustee
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[SEAL]
_______________________
[Subscriber]
<PAGE>
<PAGE>
[FORM OF
STOCK OPTION AGREEMENT]
THIS AGREEMENT, dated as of October 1, 1996 is made by and
between AT&T Capital Corporation, a Delaware corporation hereinafter referred to
as the "Company", and Ann P. Hesselink, an employee of the Company or a
Subsidiary (as defined below) of the Company, hereinafter referred to as
"Optionee".
WHEREAS, the Company wishes to afford the Optionee the
opportunity to purchase shares of its $.01 par value Common Stock ("Common
Stock");
WHEREAS, the Company wishes to carry out the Plan (as hereinafter
defined), the terms of which are hereby incorporated by reference and made a
part of this Agreement; and
WHEREAS, the Board of Directors of the Company or the Committee
(as hereinafter defined), appointed to administer the Plan, has determined that
it would be to the advantage and best interest of the Company and its
stockholders to grant the options provided for herein to the Optionee as an
incentive for increased efforts during his term of office with the Company or
its Subsidiaries, and has advised the Company thereof and instructed the
undersigned officer to issue said Options;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever the following terms are used in this Agreement, they
shall have the meaning specified in the Plan or below unless the context clearly
indicates to the contrary.
Section 1.1 - Act
"Act" shall mean the Securities Act of 1933, as
amended, or any successor law.
Section 1.2 - Affiliate
"Affiliate" shall mean, with respect to any specified Person, any
other Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person. Solely for purposes
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2
of this Agreement, GRS Holding Company Limited and Babcock & Brown, Inc. and
their respective Affiliates shall be deemed to be Affiliates of Nomura (as
defined below).
Section 1.3 - Board of Directors
"Board of Directors" means the Board of Directors of the Company.
Section 1.4 - Cause
"Cause" shall mean (i) the Optionee's willful and continued
failure to perform his or her duties with respect to the Company or any of its
Subsidiaries which continues beyond ten days after a written demand for
substantial performance is delivered to the Optionee by the Company or such
Subsidiary or (ii) misconduct by the Optionee involving (x) dishonesty or breach
of trust in connection with the Optionee's employment or (y) conduct which would
be a reasonable basis for an indictment of the Optionee for a felony or for a
misdemeanor involving moral turpitude.
Section 1.5 - Change of Control
"Change of Control" shall mean (i) any transaction (including,
without limitation, a merger, consolidation or reorganization, or a sale of
derivative securities that effectively transfers a beneficial ownership
interest) as a result of which either (a) (1) the combined beneficial ownership
interest of the Company by Nomura International plc ("Nomura") and its
Affiliates falls below 40% on a fully diluted basis and (2) the combined
beneficial ownership interest of the Company by another Person and its
Affiliates exceeds the combined beneficial ownership interest of Nomura and its
Affiliates or (b) the combined beneficial ownership interest of the Company by
Nomura and its Affiliates falls below 20% on a fully diluted basis or (ii) a
sale, or series of sales, of all or substantially all of the assets of the
Company as a result of which either (A) (I) the combined beneficial ownership
interest by Nomura and its Affiliates of the assets of the business conducted by
the Company falls below 40% of the assets of the business conducted by the
Company immediately prior to such sale or series of sales (measured on the basis
of the net book value, on a consolidated basis, thereof) and (II) the combined
beneficial ownership interest of another Person of former assets of the business
as conducted by the Company immediately prior to such sale or series of sales
exceeds the combined beneficial ownership interest by Nomura and its Affiliates
of the assets of the business conducted by the Company immediately prior to such
sale or series of sales (measured on the basis of the net book value, on a
consolidated basis, thereof) or (B) the combined beneficial ownership interest
by Nomura and its Affiliates of the assets of the business conducted by the
Company falls below 20% of the assets of the business conducted by the Company
immediately prior to such sale
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3
or series of sales (measured on the basis of the net book value, on a
consolidated basis, thereof); provided that the provisions set forth in clause
(ii) shall be deemed not to apply in the case of any transfer, sale, assignment,
pledge, hypothecation or other disposition of assets in connection with, or
incident to, any borrowings, securitizations or other financing transactions or
in the case of the recapitalization, reclassification, liquidation or
dissolution of the Company.
Section 1.6 - Code
"Code" shall mean the Internal Revenue Code of 1986, as amended.
Section 1.7 - Committee
"Committee" shall mean the Compensation Committee of the Board of
Directors.
Section 1.8 - Common Stock and Share
"Common Stock" or "Share" means common stock of the Company which
may be authorized but unissued, or issued and reacquired.
Section 1.9 - Disability
"Disability" shall mean a determination by the Board of Directors
or a duly authorized committee thereof that an Optionee has become (i)
permanently physically unable to do any job for which the Optionee is qualified,
or may reasonably become qualified by training, education or experience or (ii)
permanently mentally incompetent to perform the normal daily functions of
living, and in each case at all times during such disability the Optionee is
under a physician's care and following the recommended course of treatment.
Section 1.10 - Effective Time
"Effective Time" shall mean the date of the effective time of the
merger of Antigua Acquisition Corporation, a Delaware corporation ("Merger
Sub"), with and into the Company pursuant to the Agreement and Plan of Merger,
dated as of June 5, 1996, as amended, among the Company, AT&T Corp., a New York
corporation, Hercules Limited, a Cayman Islands company, and Merger Sub.
Section 1.11 - Fair Market Value
"Fair Market Value" shall mean, with respect to a share of Common
Stock, (i) prior to an IPO, the amount established at the immediately preceding
determination, which determination will have been made not less than annually,
by an independent U.S.- based investment banker (or, in the sole discretion of
the Board of Directors, an independent U.S.-based appraisal firm) selected
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4
by the Board of Directors as the fair market value of a Share without giving
effect to any discount attributable to the illiquidity of the Shares or the fact
that any such Shares may constitute a minority interest in the Company or any
premium attributable to any special rights of any holder with respect to its
Shares; provided that prior to the first such determination (which shall occur
not later than January 31, 1997), the Fair Market Value of a share of Common
Stock shall be the Exercise Price provided in Section 2.2(a) hereof and (ii)
after an IPO, the Market Price Per Share of the Shares.
Section 1.12 - Good Reason
"Good Reason" shall mean (i) a reduction in the Optionee's base
salary, (ii) a substantial reduction in the Optionee's duties as an employee,
officer or director as they exist on the Grant Date (or, if the Grant Date is on
or before the date of the Effective Time, as they exist immediately after the
Effective Time), (iii) the elimination or reduction of the Optionee's
eligibility to participate in the Company's benefit programs that is
inconsistent with the eligibility of similarly situated employees of the Company
and its Subsidiaries to participate therein or (iv) an obligation to relocate
more than 50 miles from the Optionee's then current work location.
Section 1.13 - Grant Date
"Grant Date" shall mean the date on which the Options provided
for in this Agreement were granted.
Section 1.14 - Group
"Group" shall mean, with respect to a particular time, any of the
Company and its Subsidiaries as of such time. Any event that results in an
entity ceasing to be a Subsidiary of the Company shall be deemed to constitute
the cessation of employment with the Group of all employees of such former
Subsidiary, except for such employees of such former Subsidiary who become
employees of the Company or one of its then Subsidiaries within 10 days of such
event.
Section 1.15 - IPO
"IPO" shall mean a sale of Shares to the public that results in
an active trading market in the Shares.
Section 1.16 - Market Price Per Share
"Market Price Per Share" at any date shall be deemed to be the
average of the daily closing prices for the 20 consecutive trading days
commencing on the 30th trading day prior to the date in question. The closing
price for each day shall be (x) if the Common Stock is listed or admitted to
trading on a national securities exchange, the closing price on the New York
Stock
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5
Exchange Consolidated Tape (or any successor composite tape reporting
transactions on national securities exchanges) or, if such a composite tape
shall not be in use or shall not report transactions in the Common Stock, the
last reported sales price regular way on the principal national securities
exchange on which the Common Stock is listed or admitted to trading (which shall
be the national securities exchange on which the greatest number of shares of
Common Stock has been traded during such 20 consecutive trading days), or, if
there is no transaction on any such day in any situation, the mean of the bid
and asked prices on such day or (y) if the Common Stock is not listed or
admitted to trading on any such exchange, the closing price, if reported, or, if
the closing price is not reported, the average of the closing bid and asked
prices as reported by the National Association of Securities Dealers Automated
Quotation System (NASDAQ) or a similar source selected from time to time by the
Company for the purpose. In the event such closing prices are unavailable, the
Market Price Per Share shall be deemed to be the fair market value as determined
in good faith by the Board of Directors, on the basis of such relevant factors
as it in good faith considers, in the reasonable judgment of the Board of
Directors, appropriate.
Section 1.17 - Normal Retirement
"Normal Retirement" shall mean the voluntary retirement of the
Optionee on a date after the later of attaining age 60 or 5 years after the
Effective Time.
Section 1.18 - Offering Percentage
"Offering Percentage" shall mean, with respect to any public
offering of Shares, that percentage of all outstanding stock of the Company
(determined as of the time after the relevant public offering) represented by
the Shares sold in such public offering.
Section 1.19 - Options
"Options" shall mean the options to purchase Common Stock granted
under this Agreement, which options have not been designated as "incentive stock
options" within the meaning of Section 422 of the Code.
Section 1.20 - Person
"Person" shall mean any individual, partnership, firm,
corporation, limited liability company, association, trust, unincorporated
organization or other entity.
Section 1.21 - Plan
"Plan" shall mean the AT&T Capital Corporation 1996 Long Term
Incentive Plan.
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6
Section 1.22 - Pronouns
The masculine pronoun shall include the feminine and neuter, and
the singular the plural, where the context so indicates.
Section 1.23 - QPO
"QPO" shall mean a sale of shares of Common Stock to the public
pursuant to a registration statement under the Act that has been declared
effective by the Securities and Exchange Commission (other than a registration
statement on Form S-4 or Form S-8, or any successor or other forms promulgated
for similar purposes, or a registration statement in connection with an offering
to employees of the Company and its Subsidiaries) that results in an active
trading market in the Common Stock.
Section 1.24 - RIF Termination
"RIF Termination" shall mean (i) termination of an Optionee's
employment by the Group as a result of a reduction in force, facility relocation
or closing, or other Company program for job elimination, in each case that
results in the termination of a significantly large number of employees, or (ii)
termination within 135 days prior to a Change of Control if the Optionee can
demonstrate that such termination (a) was at the request of a third party with
which the Company had entered into negotiations or provided for in an agreement
with regard to such Change of Control or (c) otherwise occurred in connection
with, or in anticipation of, such Change of Control; and provided further that,
in the case of either (i) or (ii) above, such Change of Control actually occurs.
Section 1.25 - Secretary
"Secretary" shall mean the Secretary of the Company.
Section 1.26 - Subsidiary
"Subsidiary" shall mean any corporation other than the Company in
an unbroken chain of corporations beginning with the Company if each of the
corporations, or group of commonly controlled corporations, other than the last
corporation in the unbroken chain then owns stock possessing 50% or more of the
voting stock in one of the other corporations in such chain.
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7
ARTICLE II
GRANT OF OPTIONS
Section 2.1 - Grant of Options
For good and valuable consideration, on and as of the date hereof
the Company irrevocably grants to the Optionee an Option to purchase any part or
all of an aggregate of the number of shares set forth with respect to each such
Option on the signature page hereof of its Common Stock, par value $.01 per
share, upon the terms and conditions set forth in this Agreement.
Section 2.2 - Exercise Price
(a) The exercise price of the Shares covered by the Options (the
"Exercise Price") shall be $10.00, without commission or other charge.
(b) Notwithstanding the foregoing, in the case of termination
without Cause (other than a RIF Termination) or resignation for Good Reason
prior to the time the Options become exercisable in full in accordance with
Section 3.2(a), the Exercise Price shall be increased by the amount, if any, of
the excess of the Fair Market Value of the Common Stock as of the date of
exercise of the Option over its Fair Market Value (x) as of the date of such
termination or resignation, if an IPO has previously occurred or (y) prior to an
IPO, at the next period determination of Fair Market Value following such
termination or resignation or as of the day following an IPO, whichever is
earlier.
Section 2.3 - Options Confer No Rights to Continued Employment
Nothing in this Agreement or in the Plan shall confer upon the
Optionee any right to continue in the employ of the Company or any Subsidiary or
shall interfere with or restrict in any way the rights of the Company and its
Subsidiaries, which are hereby expressly reserved, to terminate the employment
of the Optionee at any time for any reason whatsoever, with or without Cause.
Section 2.4 - Adjustments in Options
Subject to Paragraph 9 of the Plan, in the event that the
outstanding shares of the stock subject to an Option are, from time to time,
changed into or exchanged for a different number or kind of shares of the
Company or other securities of the Company by reason of a merger, consolidation,
recapitalization, reclassification, stock split, stock dividend, combination of
shares, or otherwise, the Committee shall make an appropriate and equitable
adjustment in the number and kind of shares or other consideration as to which
such Option, or portions thereof then unexercised, shall be exercisable and the
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8
exercise price therefor. Any such adjustments made by the Committee shall be
final and binding upon the Optionee, the Company and all other interested
Persons.
ARTICLE III
PERIOD OF EXERCISABILITY
Section 3.1 - Vesting
(a) Options shall become vested, thereby becoming eligible for
exercise in accordance with Section 3.2, in accordance with the schedule below:
<TABLE>
<CAPTION>
Vested
Percentage of
Underlying
Vesting Date Shares
------------ --------------
<S> <C>
Grant Date 0%
The first anniversary of
the Grant Date 20%
The second anniversary of
the Grant Date 40%
The third anniversary of
the Grant Date 60%
The fourth anniversary of
the Grant Date 80%
The fifth anniversary of
the Grant Date 100%
</TABLE>
Options which have become vested in accordance with this Section
3.1(a) are hereinafter referred to as "Vested Options".
(b) Notwithstanding the foregoing, upon any cessation of
employment by the Group of the Optionee for any reason or reasons, any Option or
portion of an Option that shall not have become vested in accordance with
provisions of Section 3.1(a) shall be immediately cancelled.
(c) Subject to Paragraph 10 of the Plan, in the event of a Change
of Control, the Options that have not yet become Vested Options at the time of
such Change of Control will not become immediately vested but will continue to
vest as provided in Section 3.1(a).
<PAGE>
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9
Section 3.2 - Exercisability
Options are not exercisable by the Optionee into Common Stock in
any circumstances except that Vested Options may be exercised into Common Stock
by the Optionee only following the event of (i) a Change of Control or (ii) a
QPO, provided that, prior to a Change of Control, the maximum number of Shares
for which Options may be so exercised by the Optionee shall be limited to a
number of Shares equal to the product of (x) 2 times (y) the Offering Percentage
times (z) the total number of Shares underlying all Options granted to Optionee
under the Plan or any other plans of the Corporation or any Subsidiary; provided
further that, in the case of either clause (i) or clause (ii), if the Optionee
is, or formerly was, a member of the Corporate Leadership Team of the Company
(or a member of any successor organization to the Corporate Leadership Team or,
there is no such successor organization, an executive officer of the Group in a
position substantially similar to a position of a member of the Corporate
Leadership Team as comprised currently or in the future) no Options may be
exercised unless on the date on which the Optionee proposes to exercise any
Options the Company has ratings on both its long term debt and short term debt
by both Moody's Investors Services, Inc. and Standard & Poor's Ratings Group
(or, if either or both of such organizations no longer rate such securities,
such other nationally recognized statistical rating organization or
organizations that have been selected by the Board of Directors in good faith)
in one of its generic rating categories that signifies investment grade and no
such organization has announced, either publicly or to the Company, that it
contemplates downgrading either or both of such ratings to one of its generic
rating categories that signifies less than investment grade, except to the
extent that the Board of Directors, having considered all of the alternatives
available to the Company (other than any capital contributions by, or sales of
equity securities to, any person, including, without limitation, the then
existing stockholders, or any of them), determines that it is not in the best
interests of the Company to continue to maintain any of such investment grade
ratings; provided further that if, on the tenth anniversary of the Effective
Time, any Vested Options held by the Optionee have not then previously been
exercisable for a period of at least 60 days, the restriction on exercisability
set forth in the immediately preceding proviso shall be of no further effect
with respect to such Vested Options.
Section 3.3 - Expiration of Options
The Options may not be exercised into Common Stock to any extent
by the Optionee after, and shall terminate upon, the first to occur of the
following events:
(i) the eleventh anniversary of the Grant Date (or, if any
Options are not then exercisable in accordance with Section 3.2, then,
with respect to such Options only, such
<PAGE>
<PAGE>
10
later date that is 60 days following the date on which such
Options shall become so exercisable);
(ii) the date of cessation of employment by the Group for any
reason other than Normal Retirement, death or Disability, termination
without Cause or resignation for Good Reason of the Optionee; or
(iii) 60 days after termination by the Group without Cause or
resignation for Good Reason of the Optionee (or if any Options are not
then exercisable in accordance with Section 3.2, then, with respect to
such Options only, 60 days after the first date that both (A) such
Options are exercisable and (B) there are no applicable restrictions on
the transferability of the Shares into which such Options are
exercisable pursuant to any agreement between the Optionee and the
Company).
ARTICLE IV
EXERCISE OF OPTION
Section 4.1 - Person Eligible to Exercise
During the lifetime of the Optionee, only the Optionee or his or
her duly appointed attorney-in-fact may exercise an Option or any portion
thereof. After the death of the Optionee, any exercisable portion of an Option
may, prior to the time when an Option becomes unexercisable under Section 3.3,
be exercised by his or her personal representative or by any Person empowered to
do so under the Optionee's will or under the then applicable laws of descent and
distribution.
Section 4.2 - Partial Exercise
Any exercisable portion of an Option or the entire Option, if
then wholly exercisable, may be exercised in whole or in part at any time prior
to the time when the Option or portion thereof becomes unexercisable under
Section 3.3; provided, however, that any partial exercise shall be for whole
shares of Common Stock only.
Section 4.3 - Manner of Exercise
An Option, or any exercisable portion thereof, may be exercised
solely by delivering to the Secretary or his office all of the following prior
to the time when the Option or such portion becomes unexercisable under Section
3.3:
(a) Notice in writing signed by the Optionee or the other Person
then entitled to exercise the Option or portion thereof, stating that
the Option or portion thereof is
<PAGE>
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11
thereby exercised, such notice complying with all applicable
rules established by the Committee;
(b) Full payment (in cash, by check or by a combination thereof)
for the shares with respect to which such Option or portion thereof is
exercised;
(c) A bona fide written representation and agreement, in a form
satisfactory to the Committee, signed by the Optionee or other Person
then entitled to exercise such Option or portion thereof, stating that
(i) the shares of stock are being acquired for the Optionee's or such
other Person's own account, for investment and without any present
intention of distributing or reselling said shares or any of them except
as may be permitted under the Act and then applicable rules and
regulations thereunder, (ii) except as provided below, the Optionee or
other Person then entitled to exercise such Option or portion thereof
will not transfer, sell, assign, pledge, hypothecate or otherwise
dispose of any of the shares (each, a "Transfer") at any time prior to
the tenth anniversary of the date of the Effective Time and (iii) the
Optionee or other Person then entitled to exercise such Option or
portion thereof will indemnify the Company against and hold it free and
harmless from any loss, damage, expense or liability resulting to the
Company if any sale or distribution of the shares by such Person is
contrary to the representation and agreement referred to above;
provided, however, that the Committee may, in its absolute discretion,
take whatever additional actions it deems appropriate to ensure the
observance and performance of such representation and agreement and to
effect compliance with the Act and any other federal or state securities
laws or regulations;
(d) Full payment to the Company of all amounts which, under
federal, state or local law, it is required to withhold upon exercise of
the Option; and
(e) In the event the Option or portion thereof shall be exercised
pursuant to Section 4.1 by any Person or Persons other than the
Optionee, appropriate proof of the right of such Person or Persons to
exercise the Option.
Without limiting the generality of the foregoing, the Committee may require an
opinion of counsel acceptable to it to the effect that any subsequent transfer
of shares acquired on exercise of an Option does not violate the Act, and may
issue stop-transfer orders covering such shares. Share certificates evidencing
stock issued on exercise of this Option shall bear an appropriate legend
referring to the provisions of subsection (c) above and the agreements herein.
The written representation and agreement referred to in clause (i) of subsection
(c) above shall, however, not be required if the shares to be issued pursuant to
such
<PAGE>
<PAGE>
12
exercise have been registered under the Act, and such registration is then
effective in respect of such shares.
The written agreement referred to in clause (ii) of subsection
(c) above will permit only the following Transfers prior to the tenth
anniversary of the Effective Time:
(w) A transfer upon the death of the Optionee or other Person
then entitled to exercise such Option or portion thereof to his or her
executors, administrators, testamentary trustees, legatees or
beneficiaries; provided that it is expressly understood that any such
transferee shall be bound by the provisions of the written agreement
referred to in clause (ii) of subsection (c) above;
(x) A transfer made after the date of exercise of the Option or
portion thereof in compliance with the federal securities laws to a
trust or custodianship the beneficiaries of which may include only the
Optionee or other Person then entitled to exercise such Option or
portion thereof, his or her spouse or the Optionee's or such other
Person's lineal descendants; provided, in each such case, that such
transfer is made expressly subject to the Agreement and that the
transferee agrees in writing to be bound by the provisions of the
written agreement referred to in clause (ii) of subsection (c) above;
(y) A sale of shares pursuant to an effective registration
statement under the Act filed by the Company or pursuant to a sale
participation agreement that has been entered into by the Optionee and
Nomura or an Affiliate or Affiliates of Nomura; and
(z) in connection with a sale in the public market (subject to
the provisions of Rule 144 under the Act where applicable) from and
after a QPO; provided that such sale shall be subject to such black-out
period and/or other restrictions on such sale as shall be reasonably
requested by any underwriters in offerings of the securities of the
Company in order to insure the success of such offerings; and provided
further that the number of shares that may be sold in each one-year
period following the QPO will be limited to the greater of (i) 25% of
the total number of shares of Common Stock, on a fully diluted basis,
held by the Optionee or such other Person immediately following the QPO
and (ii) that number of shares of Common Stock underlying the Options or
any other stock options issued by the Company held by the Optionee or
such other Person as to which (A) pursuant to the terms of such options,
the Optionee's right to purchase such stock would expire during such
one-year period and (B) such options are actually exercised by the
Optionee or other Person then entitled to exercise such options or
portions thereof.
<PAGE>
<PAGE>
13
Notwithstanding the foregoing permitted Transfers, the Optionee or other Person
then entitled to exercise such Option or portion thereof will further represent
and agree in the written agreement referred to in subsection (c) above that he
or she will not at any time transfer, sell, assign, pledge, hypothecate or
otherwise dispose of any shares at any time, directly or indirectly, to any
competitor or prospective competitor of the Company or to any affiliate of a
such a person, other than:
(A) in connection with a sale to a third party pursuant to a
stock purchase agreement or sale participation agreement that has been
entered into by the Optionee and Nomura or an Affiliate or Affiliates of
Nomura;
(B) in a widely distributed, underwritten public offering upon
the exercise of the rights provided for under a registration rights
agreement covering such shares; or
(C) pursuant to a sale effected (when otherwise permitted as
provided above) through an open market, nondirected broker's transaction
in which the Optionee or other Person then entitled to exercise such
Option as seller does not know the buyer is a competitor or prospective
competitor.
Section 4.4 - Conditions to Issuance of Stock Certificates
The shares of stock deliverable upon the exercise of an Option,
or any portion thereof, may be either previously authorized but unissued shares
or issued shares which have then been reacquired by the Company. Such shares
shall be fully paid and nonassessable. The Company shall not be required to
issue or deliver any certificate or certificates for shares of stock purchased
upon the exercise of an Option or portion thereof prior to fulfillment of all of
the following conditions:
(a) The obtaining of approval or other clearance from any state
or federal governmental agency which the Committee shall, in its
absolute discretion, determine to be necessary or advisable; and
(b) The lapse of such reasonable period of time (not to exceed 60
days) following the exercise of the Option as the Committee may from
time to time establish for reasons of administrative convenience.
Section 4.5 - Rights as Stockholder
The holder of an Option shall not be, nor have any of the rights
or privileges of, a stockholder of the Company in respect of any shares
purchasable upon the exercise of the Option or any portion thereof unless and
until certificates representing such shares shall have been issued by the
Company to such holder.
<PAGE>
<PAGE>
14
ARTICLE V
MISCELLANEOUS
Section 5.1 - Administration
The Committee shall have the power to interpret the Plan and this
Agreement and to adopt such rules for the administration, interpretation and
application of the Plan as are consistent therewith and to interpret or revoke
any such rules. All actions taken and all interpretations and determinations
made by the Committee shall be final and binding upon the Optionee, the Company
and all other interested Persons. No member of the Committee shall be personally
liable for any action, determination or interpretation made in good faith with
respect to the Plan or the Options. In its absolute discretion, the Board of
Directors may at any time and from time to time exercise any and all rights and
duties of the Committee under the Plan and this Agreement.
Section 5.2 - Options Not Transferable
Except as may be provided in any other agreement between the
Optionee and the Company, neither the Options nor any interest or right therein
or part thereof shall be liable for the debts, contracts or engagements of the
Optionee or his successors in interest or shall be subject to disposition by
transfer, alienation, anticipation, pledge, encumbrance, assignment or any other
means whether such disposition be voluntary or involuntary or by operation of
law by judgment, levy, attachment, garnishment or any other legal or equitable
proceedings (including bankruptcy), and any attempted disposition thereof shall
be null and void and of no effect; provided, however, that this Section 5.2
shall not prevent transfers by will or by the applicable laws of descent and
distribution.
Section 5.3 - Shares to Be Reserved
The Company shall at all times during the term of the Options
reserve and keep available, either in its treasury or out of its authorized but
unissued shares of stock, such number of shares of stock as will be sufficient
to satisfy the requirements of this Agreement.
Section 5.4 - Notices
Any notice to be given under the terms of this Agreement to the
Company shall be addressed to the Company in care of its Secretary, and any
notice to be given to the Optionee shall be addressed to him at the address
given beneath his signature hereto. By a notice given pursuant to this Section
5.4, either party may hereafter designate a different address for notices to be
given to him. Any notice which is required to be
<PAGE>
<PAGE>
15
given to the Optionee shall, if the Optionee is then deceased, be given to the
Optionee's personal representative if such representative has previously
informed the Company of his or her status and address by written notice under
this Section 5.4. Any notice shall have been deemed duly given when enclosed in
a properly sealed envelope or wrapper addressed as aforesaid, deposited (with
postage prepaid) in a post office or branch post office regularly maintained by
the United States Postal Service.
Section 5.5 - Titles
Titles are provided herein for convenience only and are not to
serve as a basis for interpretation or construction of this Agreement.
Section 5.6 - Applicability of Plan and Other Agreements
The Options and the shares of Common Stock issued to the Optionee
upon exercise of the Options shall be subject to all of the terms and provisions
of the Plan and any other agreements between the Optionee and the Company, to
the extent applicable to the Options and such Shares. In the event of any
conflict between this Agreement and the Plan, the terms of the Plan shall
control. In the event of any conflict between this Agreement or the Plan and any
other agreements between the Optionee and the Company, the terms of the other
agreements between the Optionee and the Company shall control.
Section 5.7 - Amendment
This Agreement may be amended or supplemented by the Company,
when authorized by a resolution of the Committee or of the Board of Directors,
to cure any ambiguity, defect or inconsistency, to comply with Section 2.4
hereof or to make any change that does not adversely affect the rights of the
Optionee. Any other amendment or supplement of this Agreement may be made only
by a writing executed by the parties hereto which specifically states that it is
amending this Agreement.
Section 5.8 - Governing Law
The laws of the State of Delaware shall govern the
interpretation, validity and performance of the terms of this Agreement
regardless of the law that might be applied under principles of conflicts of
laws.
Section 5.9 - Jurisdiction
Any suit, action or proceeding against the Optionee with respect
to this Agreement, or any judgment entered by any court in respect of any
thereof, may be brought in any court of competent jurisdiction in the State of
New Jersey, as the Company may elect in its sole discretion, and the Optionee
hereby submits to the non-exclusive jurisdiction of such courts for the purpose
<PAGE>
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16
of any such suit, action, proceeding or judgment. The Optionee hereby
irrevocably waives any objections which he may now or hereafter have to the
laying of the venue of any suit, action or proceeding arising out of or relating
to this Agreement brought in any court of competent jurisdiction in the State of
New Jersey, and hereby further irrevocably waives any claim that any such suit,
action or proceeding brought in any such court has been brought in any
inconvenient forum. No suit, action or proceeding against the Company with
respect to this Agreement may be brought in any court, domestic or foreign, or
before any similar domestic or foreign authority other than in a court of
competent jurisdiction in the State of New Jersey, and the Optionee hereby
irrevocably waives any right which he may otherwise have had to bring such an
action in any other court, domestic or foreign, or before any similar domestic
or foreign authority. The Company hereby submits to the jurisdiction of such
courts for the purpose of any such suit, action or proceeding.
IN WITNESS WHEREOF, this Agreement has been executed and
delivered by the parties hereto.
AT&T CAPITAL CORPORATION
By: _________________________
Name:
Title:
___________________________ Aggregate number of shares
Optionee of Common Stock for which
the Option hereunder is
___________________________ granted: 44,000
___________________________
Address
Optionee's Taxpayer
Identification Number:
___________________________
<PAGE>
<PAGE>
[AT&T CAPITAL CORPORATION LETTERHEAD]
NEWS RELEASE [LOGO]
- --------------------------------------------------------------------------------
For more information: 44 Whippany Road
David P. Caouette Morristown, NJ 07962-1983
201-397-8724 (office) 201 397-3000
201-435-3494 (home)
CONSORTIUM COMPLETES PURCHASE
OF AT&T CAPITAL
For Immediate Release: October 1, 1996
Morristown, N.J. -- AT&T Capital Corporation today announced the completion
of its merger with a majority-owned subsidiary of GRS Holding Company Ltd.
("GRSH"), owner of a U.K. rail leasing company. Following the merger, the
company is owned by a leasing consortium composed of certain members of AT&T
Capital's senior management, led by Chairman and CEO Tom Wajnert and GRSH.
As a result of the merger, stockholders of AT&T Capital will receive $45 in
cash for each outstanding share of the company's common stock. Instructions
concerning the exchange of shares for cash will be mailed shortly to the
company's stockholders of record by First Chicago Trust Company of New York, the
paying agent.
The company will continue under the name "AT&T Capital Corporation" and
will maintain its headquarters in Morristown, New Jersey.
<PAGE>
