EXHIBIT 99.8
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VOTING AND OPTION AGREEMENT
by and among
TECHNICAL SERVICES PARTNERS, L.P.,
WARBURG, PINCUS EQUITY PARTNERS, L.P.,
WARBURG, PINCUS NETHERLANDS EQUITY PARTNERS I, C.V.,
WARBURG, PINCUS NETHERLANDS EQUITY PARTNERS II, C.V.
and
WARBURG, PINCUS NETHERLANDS EQUITY PARTNERS III, C.V.
dated as of
January 18, 1999
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TABLE OF CONTENTS
Page
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ARTICLE I.
Section 1.1. Representations and Warranties of the Stockholder............. 2
Section 1.2. Representations and Warranties of Purchasers.................. 3
ARTICLE II.
Section 2.1. Transfer of the Shares........................................ 4
Section 2.2. Adjustments................................................... 5
ARTICLE III.
Section 3.1. Voting Agreement.............................................. 5
Section 3.2. No Solicitation............................................... 6
ARTICLE IV.
Section 4.1. Grant of Option............................................... 7
Section 4.2. Exercise of Option............................................ 7
Section 4.3. Termination of Option......................................... 8
Section 4.4. Conditions to Closing......................................... 9
Section 4.5. Closing....................................................... 9
Section 4.6. Registration Rights........................................... 9
ARTICLE V.
Section 5.1. Termination................................................... 10
Section 5.2. Expenses...................................................... 10
Section 5.3. Further Assurances............................................ 11
Section 5.4. Publicity..................................................... 11
Section 5.5. Enforcement of the Agreement.................................. 11
Section 5.6. Miscellaneous................................................. 11
(i)
TABLE OF DEFINED TERMS
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Agreement............................................................... 1
Closing................................................................. 6
Closing Date............................................................ 1
Common Stock............................................................ 1
Company Purchase Agreement.............................................. 1
Exercise Notice......................................................... 6
Exercise Price.......................................................... 6
HSR Act................................................................. 2
Lien.................................................................... 2
Manager................................................................. 8
Per Share Amount........................................................ 6
Permitted Offering...................................................... 8
Purchaser............................................................... 1
Purchaser Conflict...................................................... 3
Purchaser Option........................................................ 6
Purchaser Owned Shares.................................................. 8
Purchasers.............................................................. 1
Registrable Securities.................................................. 8
Registration Notice..................................................... 8
Securities Act.......................................................... 4
Shares.................................................................. 1
Stockholder............................................................. 1
Stockholder Conflict.................................................... 2
Stockholder Purchase Agreement.......................................... 1
Subject Shares.......................................................... 1
Trigger Event........................................................... 6
TSP..................................................................... 1
TSP/Walston Agreement................................................... 1
Walston Shares.......................................................... 1
(ii)
VOTING AND OPTION AGREEMENT, dated as of January 18, 1999 (this
"Agreement"), by and among Warburg, Pincus Equity Partners, L.P., a Delaware
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limited partnership, Warburg, Pincus Netherlands Equity Partners I, C.V., a
Dutch limited partnership, Warburg, Pincus Netherlands Equity Partners II, C.V.,
a Dutch limited partnership and Warburg, Pincus Netherlands Equity Partners III,
C.V., a Dutch limited partnership (each, a "Purchaser", and collectively,
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"Purchasers"), and Technical Services Partners, L.P., a Delaware limited
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partnership ("TSP") (the "Stockholder").
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WHEREAS, the Stockholder is the record and beneficial owner of
4,552,502 shares (the "Shares") of common stock, $.01 par value per share (the
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"Common Stock"), of Four Media Company, a Delaware corporation (the "Company");
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and
WHEREAS, pursuant to an agreement with Robert T. Walston (the
"TSP/Walston Agreement"), Mr. Walston is the beneficial owner of 1,432,875 of
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the Shares (the "Walston Shares"; the Shares excluding the Walston Shares are
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referred to herein as the "Subject Shares"); and
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WHEREAS, Purchasers and the Company have entered into a Securities
Purchase Agreement, dated as of the date hereof (the "Company Purchase
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Agreement"), which provides, among other things, that, upon the terms and
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subject to the conditions therein, Purchasers will purchase from the Company and
the Company will sell to Purchasers 6,582,607 shares of Common Stock and will
issue a warrant to purchase an additional 1,100,000 shares of Common Stock; and
WHEREAS, Purchasers and the Stockholder have entered into a Stock
Purchase Agreement, dated as of the date hereof (the "Stockholder Purchase
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Agreement"), which provides, among other things, that upon the terms and subject
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to the conditions therein, Purchasers will purchase from the Stockholder and the
Stockholder will sell to Purchasers the Subject Shares.
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and subject to the terms and conditions set forth herein,
the parties hereto hereby agree as follows:
ARTICLE I.
Section 1.1. Representations and Warranties of the Stockholder. The
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Stockholder represents and warrants to Purchasers, as of the date hereof and as
of the closing under the Company Purchase Agreement (the "Closing Date"), as
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follows:
(a) This Agreement has been duly executed and delivered by the
Stockholder and, assuming due authorization, execution and delivery of this
Agreement by Purchasers and the Company, is a valid and binding obligation of
the Stockholder enforceable against the Stockholder in accordance with its
terms, except that (i) the enforceability hereof may be subject to applicable
bankruptcy, insolvency or other similar laws, now or hereinafter in effect,
affecting creditors' rights generally, and (ii) the availability of the remedy
of specific performance or injunctive or other forms of equitable relief may be
subject to equitable defenses and would be subject to the discretion of the
court before which any proceeding therefor may be brought.
(b) Neither the execution and delivery of this Agreement nor the
performance by the Stockholder of its obligations hereunder will conflict with,
result in a violation or breach of, or constitute a default (or an event that,
with notice or lapse of time or both, would result in a default) or give rise to
any right of termination, amendment, cancellation, or acceleration or result in
the creation of any mortgage, pledge, hypothecation, rights of others, claim,
security interest, charge, encumbrance, title defect, title retention agreement,
voting trust agreement, interest, option, lien, charge or similar restriction or
limitation (each, a "Lien") on any Shares (collectively, a "Stockholder
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Conflict") under, (i) any contract, commitment, agreement, understanding,
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arrangement or restriction of any kind to which the Stockholder is a party or by
which the Stockholder is bound, to the extent such Stockholder Conflict would be
reasonably likely to affect the Stockholder's ability to consummate the
transactions contemplated hereby or (ii) any injunction, judgment, writ, decree,
order or ruling applicable to the Stockholder, to the extent such Stockholder
Conflict would be reasonably likely to affect the Stockholder's ability to
consummate the transactions contemplated hereby.
(c) To the knowledge of the Stockholder, neither the execution and
delivery of this Agreement nor the performance by the Stockholder of its
obligations hereunder will violate any law, decree, statute, rule or regulation
applicable to the Stockholder or require any order, consent, authorization or
approval of, filing or registration with, or declaration or
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notice to, any court, administrative agency or other governmental body or
authority, other than any required notices or filings pursuant to the Hart-
Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and
regulations promulgated thereunder (the "HSR Act") or the federal securities
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laws.
Section 1.2. Representations and Warranties of Purchasers. Each
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Purchaser jointly and severally represents and warrants to the Stockholder and
the Company, as of the date hereof and as of the Closing Date, as follows:
(a) Each Purchaser is a limited partnership duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, and each Purchaser has the requisite power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby, and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement.
(b) This Agreement and the other Transaction Documents to which it is
a party has been duly executed and delivered by each Purchaser and, assuming the
due execution and delivery of this Agreement by the Stockholder and of such
other Transaction Documents by the other parties thereto, are the valid and
binding obligations of each Purchaser, enforceable against each Purchaser in
accordance with their respective terms, except that (i) the enforceability
hereof and thereof may be subject to applicable bankruptcy, insolvency or other
similar laws, now or hereinafter in effect, affecting creditors' rights
generally, and (ii) the availability of the remedy of specific performance or
injunctive or other forms of equitable relief may be subject to equitable
defenses and would be subject to the discretion of the court before which any
proceeding therefor may be brought.
(c) Neither the execution and delivery of this Agreement nor the
performance by each Purchaser of its obligations hereunder will conflict with,
result in a violation or breach of, or constitute a default (or an event that,
with notice or lapse of time or both, would result in a default) or give rise to
any right of termination, amendment, cancellation, or acceleration under
(collectively, a "Purchaser Conflict"), (i) its certificate of limited
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partnership, partnership agreement or comparable instrument, (ii) any contract,
commitment, agreement, understanding, arrangement or restriction of any kind to
which such Purchaser is a party or by which such Purchaser is bound to the
extent such Purchaser Conflict would materially affect such Purchaser's ability
to consummate the transactions contemplated under this Agreement or the
Stockholder Purchase Agreement or
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(iii) any injunction, judgment, writ, decree, order or ruling applicable to such
Purchaser to the extent such Purchaser Conflict would materially affect such
Purchaser's ability to consummate the transactions contemplated under this
Agreement or the Stockholder Purchase Agreement.
(d) Neither the execution and delivery of this Agreement nor the
performance by each Purchaser of its obligations hereunder will violate any law,
decree, statute, rule or regulation applicable to such Purchaser or require any
order, consent, authorization or approval of, filing or registration with, or
declaration or notice to, any corporation, Person, firm, Governmental Entity (as
such term is defined in the Company Purchase Agreement) or public or judicial
authority, other than any required notices or filings with the Federal
Communications Commission or pursuant to the HSR Act or the federal securities
laws.
(e) Any Subject Shares acquired upon exercise of the Purchaser Option
(as defined in Section 4.1 of this Agreement) will be acquired for such
Purchaser's own account, for investment purposes only and will not be, and the
Purchaser Option is not being, acquired by such Purchaser with a view to public
distribution thereof in violation of any applicable provisions of the Securities
Act of 1933, as amended (the "Securities Act").
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ARTICLE II.
Section 2.1. Transfer of the Shares. During the term of this
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Agreement, except as otherwise provided herein or in the Stockholder Purchase
Agreement, the Stockholder will not (a) tender into any tender or exchange offer
or otherwise sell, transfer, pledge, assign, hypothecate or otherwise dispose
of, or encumber with any Lien, any of the Subject Shares, (b) acquire any shares
of Common Stock or other securities of the Company (otherwise than in connection
with a transaction of the type described in Section 2.2 of this Agreement), (c)
deposit the Subject Shares into a voting trust, enter into a voting agreement or
arrangement with respect to the Subject Shares or grant any proxy or power of
attorney with respect to the Subject Shares, (d) enter into any contract, option
or other arrangement or undertaking with respect to the direct or indirect
acquisition or sale, transfer, pledge, assignment, hypothecation or other
disposition of any interest in or the voting of any shares of Common Stock or
any other securities of the Company or (e) amend, modify or terminate or cause
any amendment, modification or termination of the TSP/Walston Agreement.
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Section 2.2. Adjustments.
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(a) In the event (i) of any stock dividend, stock split,
recapitalization, reclassification, combination or exchange of shares of capital
stock or other securities of the Company on, of or affecting the Subject Shares
or the like or any other action that would have the effect of changing the
Stockholder's ownership of the Company's capital stock or other securities or
(ii) the Stockholder becomes the beneficial owner of any additional shares of
Common Stock or other securities of the Company, then the terms of this
Agreement will apply to the shares of capital stock held by the Stockholder
immediately following the effectiveness of the events described in clause (i) or
the Stockholder becoming the beneficial owner thereof, as described in clause
(ii), as though they were Subject Shares hereunder.
(b) The Stockholder hereby agrees, while this Agreement is in effect,
promptly to notify Purchasers of the number of any new shares of the Common
Stock acquired by the Stockholder, if any, after the date hereof.
ARTICLE III.
Section 3.1. Voting Agreement. The Stockholder, by this Agreement,
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does hereby constitute and appoint Purchasers, or any nominee thereof, with full
power of substitution, during and for the term of this Agreement, as its true
and lawful attorney and proxy for and in its name, place and stead, to vote all
of the Shares and any other shares of Common Stock beneficially owned at the
time of such vote, at any annual, special or adjourned meeting of the
stockholders of the Company (and this appointment will include the right to sign
its name (as stockholder) to any consent, certificate or other document relating
to the Company that the laws of the State of Delaware may require or permit) (x)
in favor of approval and adoption of the Company Purchase Agreement, the Company
Voting Matters (as defined in the Company Purchase Agreement) and the other
transactions contemplated thereby and (y) against (a) any Takeover Proposal (as
defined in the Company Purchase Agreement), (b) any action or agreement that
would result in a breach in any respect of any covenant, agreement,
representation or warranty of the Company under the Company Purchase Agreement
and (c) the following actions (other than the other transactions contemplated by
the Company Purchase Agreement): (i) any extraordinary corporate transaction,
such as a merger, consolidation or other business combination involving the
Company or its subsidiaries; (ii) a sale, lease or transfer of a substantial
amount of assets
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of the Company or one of its subsidiaries, or a reorganization,
recapitalization, dissolution or liquidation of the Company or its subsidiaries;
(iii) (A) any change in a majority of the persons who constitute the Board of
Directors of the Company as of the date hereof; (B) any change in the present
capitalization of the Company or any amendment of the Certificate of
Incorporation and Bylaws of the Company, as amended through the date hereof; (C)
any other material change in the Company's corporate structure or business; or
(D) any other action that, in the case of each of the matters referred to in
clauses (iii)(A), (B) and (C) is intended, or could reasonably be expected, to
impede, interfere with, delay, postpone, or adversely affect the transactions
contemplated by this Agreement, the Stockholder Purchase Agreement and the
Company Purchase Agreement. This proxy and power of attorney is a proxy and
power coupled with an interest, and the Stockholder declares that it is
irrevocable during and for the term of this Agreement. The Stockholder hereby
revokes all and any other proxies with respect to the Shares that it may have
heretofore made or granted and agrees that no other writing or instrument shall
be required in order to grant the proxy and rights to Purchasers granted hereby.
Section 3.2. No Solicitation. The Stockholder will not, directly or
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indirectly, through any agent, financial advisor, attorney, accountant or other
representative or otherwise, (i) solicit, initiate or encourage submission of
proposals or offers from any Person relating to, or that could reasonably be
expected to lead to, a sale or transfer of any of the Shares or a Takeover
Proposal or (ii) participate in any negotiations or discussions regarding, or
furnish to any other Person any information with respect to, or otherwise
cooperate in any way with, or assist or participate in, facilitate or encourage,
any effort or attempt by any other Person to do or seek a sale or transfer of
any of the Shares or a Takeover Proposal. The Stockholder shall immediately
advise Purchasers in writing of the receipt of a request for information or any
inquiries or proposals relating to a sale or transfer of any of the Shares or a
Takeover Proposal. Notwithstanding the foregoing, this Section 3.2 shall not
restrict any designee of the Stockholder to the Company's Board of Directors
from fulfilling its fiduciary duties as such a director pursuant to Section 5 of
the Company Purchase Agreement.
ARTICLE IV.
Section 4.1. Grant of Option. The Stockholder hereby grants
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Purchasers an irrevocable option (the "Purchaser Option") to purchase for cash,
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in the manner set forth below, all but not
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less than all of the Subject Shares beneficially owned by the Stockholder at a
price (the "Exercise Price") per Share equal to $7.50 per Share (the "Per Share
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Amount"). In the event of any stock dividends, stock splits, recapitalizations,
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combinations, exchanges of shares or the like, the Per Share Amount and the
Exercise Price will be appropriately adjusted for the purpose of this Section
4.1.
Section 4.2. Exercise of Option.
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(a) Subject to the conditions set forth in Section 4.4 hereof, the
Purchaser Option may be exercised by Purchasers, in whole but not in part, at
any time after the occurrence of any Trigger Event (as defined below) until the
termination of the Purchaser Option set forth in Section 4.3. The Company shall
notify Purchasers and the Stockholder promptly in writing of the occurrence of
any Trigger Event, it being understood that the giving of such notice by the
Company is not a condition to the right of Purchasers to exercise the Purchaser
Option. In the event Purchasers wish to exercise the Purchaser Option,
Purchasers shall deliver to the Stockholder a written notice of such exercise
(the "Exercise Notice"). The closing of a purchase of Subject Shares (a
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"Closing") will occur at a place, on a date and at a time designated by
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Purchasers in the Exercise Notice delivered at least two and not more than five
Business Days (as defined in the Company Purchase Agreement) prior to the date
of the Closing.
(b) A "Trigger Event" means (provided Purchasers are not in material
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breach of their representations, warranties or covenants set forth in Section
1.3 hereof or in any Transaction Document) any one of the following: (a) the
Company Purchase Agreement is terminated under circumstances that could entitle
Purchasers to the Termination Fee/Expense Reimbursement (as defined in Section
10.2(b) of the Company Purchase Agreement), (b) a tender or exchange offer for
some or all of the shares of Common Stock shall have been publicly proposed to
be made or shall have been made by another person, or (c) it shall have been
publicly disclosed or Purchasers shall have otherwise learned that (i) any
person or "group" (as defined in Section 13(d)(3) of the Securities Exchange Act
of 1934, as amended), other than Purchasers, shall have acquired or proposed to
acquire beneficial ownership of more than 20% of any class or series of capital
stock of the Company (including the Common Stock), through the acquisition of
stock, the formation of a group or otherwise, or shall have been granted any
option, right or warrant, conditional or otherwise, to acquire beneficial
ownership of more than 20% of any class or series of capital stock of the
Company other than as
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disclosed in a Schedule 13D or 13G on file with the Securities and Exchange
Commission on December 31, 1998, (ii) any such person or group which, prior to
December 31, 1998, had filed a Schedule 13D or 13G with the Securities and
Exchange Commission shall have acquired or proposed to acquire beneficial
ownership of additional shares of any class or series of capital stock of the
Company, through the acquisition of stock, the formation of a group or
otherwise, constituting 5% or more of any such class or series, or shall have
been granted any option, right or warrant, conditional or otherwise, to acquire
beneficial ownership of additional shares of any class or series of capital
stock of the Company (including the Common Stock) constituting 5% or more of any
such class or series; (iii) any person (other than Purchasers) shall have filed
a Notification and Report Form under the HSR Act, or made a public announcement
reflecting an intent to acquire the Company or any assets or securities of the
Company; or (iv) any person or group (other than Purchasers) shall have entered
into or offered to enter into a definitive agreement or an agreement in
principle with respect to a merger, consolidation or other business combination
with the Company.
Section 4.3. Termination of Option. The Purchaser Option will
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terminate upon the earliest to occur of: (i) the consummation of the
transactions contemplated by the Company Purchase Agreement, (ii) the
termination of the Company Purchase Agreement other than upon or during the
continuance of a Trigger Event; or (iii) September 30, 1999 (or if, at the
expiration of such period the Purchaser Option cannot be exercised by reason of
any applicable judgment, decree, order, law or regulation, ten Business Days
after such impediment to exercise has been removed or has become final and not
subject to appeal but in no event later than December 31, 1999). Upon the
giving by Purchasers to the Stockholder of the Exercise Notice and the tender of
the aggregate Exercise Price, Purchasers will be deemed to be the holders of
record of the Subject Shares transferable upon such exercise, notwithstanding
that the stock transfer books of the Company are then closed or that
certificates representing such Subject Shares have not been actually delivered
to Purchasers.
Section 4.4. Conditions to Closing. The obligation of the
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Stockholder to sell the Subject Shares to Purchasers hereunder is subject to the
conditions that (i) all waiting periods, if any, under the HSR Act, applicable
to the sale of the Subject Shares or the acquisition of the Subject Shares by
Purchasers hereunder, have expired or have been terminated; (ii) all consents,
approvals, orders or authorizations of, or registrations, declarations or
filings with, any court, administrative agency or other governmental body or
authority, if
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any, required in connection with sale of the Subject Shares or the acquisition
of the Subject Shares by Purchasers hereunder have been obtained or made; and
(iii) no preliminary or permanent injunction or other order by any court of
competent jurisdiction prohibiting or otherwise restraining such sale or
acquisition is in effect.
Section 4.5. Closing. At any Closing, (a) the Stockholder will
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deliver to Purchasers or their designee a certificate or certificates in
definitive form representing the number of Subject Shares designated by
Purchasers in their Exercise Notice, such certificate or certificates with stock
powers endorsed in blank or to be registered in the name of Purchasers or their
designee and (b) Purchasers will deliver to the Stockholder by wire transfer of
immediately available funds the aggregate Exercise Price for the Subject Shares
being purchased. The Company will pay all expenses, and any and all United
States federal, state and local taxes and other charges that may be payable in
connection with the preparation, issue and delivery of stock certificates under
this Section 4.5 in the name of Purchasers or their designee.
Section 4.6. Registration Rights.
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(a) (i) Following termination of the Company Purchase Agreement,
Purchasers may by written notice (the "Registration Notice") to the Company,
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which Registration Notice the Purchasers shall concurrently send to the
Stockholder, request the Company to register under the Securities Act all or any
part of the shares of Common Stock acquired under the Purchaser Option (the
"Purchaser Owned Shares" and such Purchaser Owned Shares requested to be
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registered for sale, the "Registrable Securities") pursuant to a bona fide firm
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commitment underwritten public offering in which Purchasers and the underwriters
shall effect as wide a distribution of such Registrable Securities as is
reasonably practicable (a "Permitted Offering"). The Registration Notice will
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include a certificate executed by Purchasers and their proposed managing
underwriter, which underwriter will be an investment banking firm of nationally
recognized standing (the "Manager"), stating that (A) they have a good faith
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intention to commence promptly a Permitted Offering and (B) the Manager in good
faith believes that, based on the then prevailing market conditions, it will be
able to sell the Registrable Securities at a per share price equal to at least
85% of the then Fair Market Value of such shares.
(b) The Company shall use reasonable best efforts to effect, as
promptly as practicable, the registration under the
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Securities Act of the Registrable Securities pursuant to the terms of the
Registration Rights Agreement, dated the date hereof, between Purchasers and the
Company.
ARTICLE V.
Section 5.1. Termination. This Agreement will terminate, except for
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Article IV hereof which will only terminate as and when provided therein, on the
earliest to occur of (A) the termination of the Company Purchase Agreement, (B)
the consummation of the transactions contemplated by the Company Purchase
Agreement, (C) the mutual agreement of the Stockholder, the Company and
Purchasers to so terminate and (D) the Expiration Date (or, if applicable, the
Extended Expiration Date) (each as defined in the Company Purchase Agreement).
Section 5.2. Expenses. Except as otherwise expressly provided in
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the Company Purchase Agreement or in the Stockholder Purchase Agreement, all
costs and expenses incurred by any of the parties hereto will be borne by the
party incurring such costs and expenses. Purchasers, on the one hand, and the
Stockholder, on the other hand, will indemnify and hold harmless the other from
and against any and all claims or liabilities for finder's fees or brokerage
commissions or other like payments incurred by reason of action taken by it.
Section 5.3. Further Assurances. Each party hereto will execute and
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deliver all such further documents and instruments and take all such further
action as may be necessary in order to consummate the transactions contemplated
hereby.
Section 5.4. Publicity. Purchasers and the Stockholder shall
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consult with each other and the Company before issuing any press release or
otherwise making any public statements with respect to this Agreement or the
Company Purchase Agreement or the other transactions contemplated hereby or
thereby and shall not issue any such press release or make any such public
statement before such consultation, except as may be required by law or
applicable stock exchange rules. The Company shall be an express third party
beneficiary of this Section 5.4.
Section 5.5. Enforcement of the Agreement. The Stockholder and
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Purchasers each acknowledge 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. It is accordingly agreed
that each party hereto will be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to
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enforce specifically the terms and provisions hereof in any state or federal
court sitting in New York County, New York, this being in addition to any other
remedy to which they are entitled at law or in equity.
Section 5.6. Miscellaneous.
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(a) All representations and warranties contained herein will survive
for eighteen (18) months after the termination hereof. The covenants and
agreements made herein will survive the Closing Date in accordance with their
respective terms.
(b) Any provision of this Agreement may be waived at any time by the
party that is entitled to the benefits thereof. No such waiver, amendment or
supplement will be effective unless in writing and signed by the party or
parties sought to be bound thereby. Any waiver by any party of a breach of any
provision of this Agreement will not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any other provision of
this Agreement. The failure of a party to insist upon strict adherence to any
term of this Agreement or one or more sections hereof will not be considered a
waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
(c) This Agreement, the other Transaction Documents and the other
agreements attached as Exhibits to the Company Purchase Agreement constitute the
entire agreement among the parties hereto with respect to the subject matter
hereof, and supersede all prior agreements among such parties with respect to
such matters. This Agreement may not be amended, changed, supplemented, waived
or otherwise modified, except upon the delivery of a written agreement executed
by the parties hereto.
(d) This Agreement will be governed by and construed in accordance
with the laws of the State of New York, without regard to the conflicts of laws
principles thereof.
(e) With respect to any suit, action or proceeding initiated by a
party to this Agreement arising out of, under or in connection with this
Agreement or the Stockholder Purchase Agreement, the Stockholder and Purchasers
each hereby submit to the exclusive jurisdiction of any state or federal court
sitting in New York County, New York and irrevocably waive, to the fullest
extent permitted by law, any objection that they may now have or hereafter
obtain to the laying of venue in any such court in any such suit, action or
proceeding.
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(f) The descriptive headings contained herein are for convenience and
reference only and will not affect in any way the meaning or interpretation of
this Agreement.
(g) All notices and other communications hereunder will be in writing
and will be given (and will be deemed to have been duly given upon receipt) by
delivery in person, by telecopy, or by registered or certified mail, postage
prepaid, return receipt requested, addressed as follows:
If to any of Purchasers to:
Warburg, Pincus Equity Partners, L.P.
466 Lexington Avenue
New York, NY 10017
Attention: David E. Libowitz
Telecopier: (212) 878-9351
With a copy to:
Willkie Farr & Gallagher
787 Seventh Avenue
New York, New York 10019
Attention: Neil Novikoff, Esq.
Telecopier: (212) 728-8111
If to the Stockholder to:
Technical Services Partners, L.P.
c/o Steinhardt Partners
605 Third Avenue
New York, New York 10158
Attention: Shimon Topor
Telecopier:
With a copy to:
Schulte Roth & Zabel LLP
900 Third Avenue
New York, NY 10022
Attention: Stuart D. Freedman, Esq.
Telecopier: 212-593-5955
or to such other address as any party may have furnished to the other parties in
writing in accordance herewith.
(h) This Agreement may be executed in any number of counterparts, each
of which will be deemed to be an original, but all of which together will
constitute one agreement.
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(i) This Agreement and each of the other Transaction Documents (as
such term is defined in the Company Purchase Agreement) shall (i) be executed on
the Closing Date and at such time shall be valid and binding obligations of each
of the parties and signatories thereto and (ii) simultaneously be consummated at
the Closing.
(j) Neither this Agreement nor any of the rights or obligations of
any party hereto may be assigned without the prior written consent of the other
parties hereto, except that Purchasers may, without such consent, assign this
Agreement and any of such rights and obligations to one or more of their
affiliates unless such assignment causes any representation or warranty to be
untrue or incorrect in any material respect or unless such assignment shall
materially delay the Closing. Any such assignment shall not, however, act as a
release of the assigning Person. Subject to the foregoing, this Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties, and no other Person shall have any right, benefit or obligation
hereunder.
(k) If any term or provision of this Agreement is determined to be
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other terms and provisions of this Agreement will nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party hereto. Upon any such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto will
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated by this Agreement are consummated to the
extent possible.
(l) All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity will be cumulative and
not alternative, and the exercise of any thereof by either party will not
preclude the simultaneous or later exercise of any other such right, power or
remedy by such party.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the date first above written.
WARBURG, PINCUS EQUITY PARTNERS, L.P.
By: Warburg, Pincus & Co., its general partner
By: _______________________________________
Name:
Title:
WARBURG, PINCUS NETHERLANDS EQUITY PARTNERS I,
C.V.
By: Warburg, Pincus & Co., its general partner
By: _______________________________________
Name:
Title:
WARBURG, PINCUS NETHERLANDS EQUITY PARTNERS II,
C.V.
By: Warburg, Pincus & Co., its general partner
By: _______________________________________
Name:
Title:
WARBURG, PINCUS NETHERLANDS EQUITY PARTNERS III,
C.V.
By: Warburg, Pincus & Co., its general partner
By: _______________________________________
Name:
Title:
S-1
TECHNICAL SERVICES PARTNERS, L.P.
By: Technical Service Holding, its
general partner
By: _______________________________________
Name:
Title:
S-2