[EXECUTION COPY]
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
THIS AMENDED AND RESTATED STOCKHOLDERS AGREEMENT is made as
of April 14, 1999, by and among Dade Behring Holdings, Inc., a
Delaware corporation ("Holdings"), Hoechst AG, a German corporation
("Hoechst"), each of the Persons listed on Schedule I attached hereto
(the "GS Group"), and each of the Persons listed on Schedule II
attached hereto (the "Bain Group," and, together with the GS Group,
the "Investors") (Hoechst, the GS Group, the Bain Group and each
other party from time to time a party thereto are collectively
referred to herein as the "Stockholders," and each as a
"Stockholder").
WHEREAS, Holdings, as of the date hereof, is authorized by
its Certificate of Incorporation to issue capital stock consisting of
1,300,000 shares of its Class L Common Stock, par value $.01 per
share (the "Class L Common"), 700,000 shares of its Class L Common,
Series B, par value $.01 per share (the "Class L Common, Series B"),
20,000,000 shares of its Common Stock, par value $.01 per share
("Common"), and 100,000 shares of its Preferred Stock, par value $.01
per share (the "Preferred Stock"). The Class L Common, Class L
Common, Series B, and the Common are collectively referred to herein
as "Common Stock".
WHEREAS, Hoechst, the Bain Group, the GS Group and Holdings
are parties to an Amended and Restated Stockholders Agreement, dated
October 1, 1997 (the "Old Agreement"), which Old Agreement amended
and restated a Stockholders Agreement dated December 20, 1994 among
the Bain Group, the GS Group and Holdings.
WHEREAS, Hoechst, the GS Group and the Bain Group own the
number of shares of Common Stock set forth opposite its name on
Schedule III attached hereto and, in the case of Hoechst, a warrant
to acquire the additional number of shares of Common and Class L
Common, Series B, set forth opposite its name on Schedule III
attached hereto.
WHEREAS, Hoechst, the Bain Group, the GS Group and Holdings
are parties to a Recapitalization Agreement of even date (the
"Recapitalization Agreement"), pursuant to which such Persons agreed
to recapitalize the Common Stock of Holdings as set forth therein.
WHEREAS, the parties hereto desire to amend and restate the
Old Agreement to establish the composition of Holdings' Board of
Directors (the "Board"), to restrict the sale, assignment, transfer,
encumbrance or other disposition of the Common Stock, to provide for
certain additional covenants and to provide for certain rights and
obligations in respect thereto as hereinafter provided. Unless
otherwise provided in this Agreement, capitalized terms used herein
shall have the meanings set forth in paragraph 12 hereof.
NOW, THEREFORE, the parties to this Agreement hereby agree
as follows:
1. Voting Agreement.
(a) Each holder of Stockholder Shares shall vote all of
such holder's Stockholder Shares and shall take all other necessary
or desirable actions within such holder's control (whether in such
holder's capacity as a stockholder, director or officer of Holdings
or otherwise, and including, without limitation, attendance at
meetings in person or by proxy for purposes of obtaining a quorum and
execution of written consents in lieu of meetings) and Holdings shall
take all necessary and desirable actions within its control
(including, without limitation, calling special board and stockholder
meetings) so that:
(i) the authorized number of directors on the Board
shall be established by the holders of a majority of the Bain
Shares ("Bain Holders"), but in no event be greater than 20
members;
(ii) a number of persons designated by the Bain
Holders (so lon as the shares held by the Bain Holders
constitute at least 5% of the outstanding Common Stock) shall be
members of the Board (the "Bain Directors"), such number being
equal to the difference between (x) the authorized number of
directors and (y) the number of directors that otherwise may be
filled pursuant to this paragraph 1(a) (i.e., the chief
executive officer and the number of directors that the Hoechst
Block Group and the GS Holders may designate);
(iii) two persons (or, in the event the authorized
number of directors on the Board is greater than 15, three
persons, or in the event the number is greater than 19, four
persons) designated by the Hoechst Block Group (so long as the
Hoechst Block Group own at least 50% of the Initial Hoechst
Shares) shall be members of the Board (the "Hoechst Directors");
(iv) in addition to the Hoechst Directors, the Hoechst
Block Group shall designate the Executive Chairman (the initial
Executive Chairman shall be Uwe Bicker);
(v) the Executive Chairman shall be a member of the
Board, shall report directly to the Board and be responsible for
providing oversight, advice and counsel concerning the strategic
direction of Holdings (including, without limitation, acting as
liaison with Hoechst, e.g., to identify future life science
opportunities for Holdings);
(vi) one person designated by the holders of a
majority of the GS Shares (the "GS Holders") (so long as such
shares constitute at least 5% of the outstanding Common Stock)
shall be a member of the Board (the "GS Director");
(vii) the holders of a majority of the Bain Shares
(so long as the shares held by the Bain Holders constitute at
least 5% of the outstanding Common Stock) shall designate the
President and Chief Executive Officer;
(viii) the President and Chief Executive Officer shall
be a member of the Board; and
(ix) management of Holdings shall prepare and present
to the Board for approval an annual business plan and budget (a
"Business Plan and Budget") setting forth the strategic,
operating and financial objectives of Holdings and its
subsidiaries for the upcoming fiscal year and the related budget
for capital expenditures, investments and other discretionary
payments expected to be made during such period. The Board
shall meet to consider the Business Plan and Budget. A Business
Plan and Budget shall be deemed approved by the Board upon an
affirmative vote of a majority of its members; provided that
such approval shall not be effective if a Hoechst Director shall
have voted against approval.
(b) So long as the relevant Stockholder or Stockholders
has the right to designate a director, each committee of the Board
shall have as a member at least one Hoechst Director (if requested by
the Hoechst Block Group), one Bain Director (if requested by the Bain
Holders) and one GS Director (if requested by the GS Holders). The
removal from the Board, any committee of the Board or any position
(in each case with or without cause) of any person designated under
paragraph 1(a) or 1(b) by the GS Holders, the Bain Holders or the
Hoechst Block Group shall be at the written request of the person or
group that at the time of such removal has the right pursuant to
paragraph 1(a) or 1(b) to designate such person and only upon such
written request and under no other circumstances (except as otherwise
required by law).
(c) In the event that any person designated under
paragraph 1(a) or 1(b) by the GS Holders, the Bain Holders or the
Hoechst Block Group, as the case may be, for any reason ceases to
serve as a member of the Board or any committee of the Board or in
any position for which such representative was designated during such
person's term of office, the resulting vacancy on the Board, the
committee of the Board or position shall be filled by a person
designated by the person or group that at the time of such vacancy
has the right pursuant to paragraph 1(a) or 1(b) to designate such
person.
(d) Nothing contained in this paragraph 1 will require any
such holder to violate any legal obligation such holder may have as a
director of Holdings.
(e) The parties hereto acknowledge that Uwe Bicker may
serve as a member of the board of directors of Hoechst Marrion
Roussel AG (or successor entity resulting from the Rhone-Poulenc
Combination) and, upon notice to and approval of the Board, other
Hoechst-affiliated or joint venture entities in order to facilitate
the activities contemplated by the Cooperation Agreement.
2. Provisions Concerning the Transfer of Stockholder
Shares.
(a) General. Subject to paragraph 2(b), no holder of
Stockholder Shares shall directly or indirectly sell, transfer,
assign, pledge, encumber or otherwise dispose of (including to
Holdings) (a "Transfer") any interest in any Stockholder Shares other
than in compliance with this paragraph 2.
(b) Permitted Transfers. The restrictions contained in
paragraphs 2(c) and 2(d) shall not apply to a Transfer of Investor
Shares by any holder thereof to its Affiliates or to any employee of
Holdings or its Subsidiaries, of Hoechst Shares by a holder thereof
to its Affiliates, pursuant to a Public Sale, pursuant to an
Approved Sale, of Stockholder Shares by any holder thereof pursuant
to the laws of descent and distribution or among such holder's Family
Group, by Hoechst, to the entity resulting from the Rhone-Poulenc
Combination, (vii) by Hoechst, pursuant to paragraph 2(e), or (viii)
by the Investors, to Holdings pursuant to the Recapitalization
Agreement; provided that the restrictions contained in this Agreement
will continue to be applicable to the Stockholder Shares after any
Transfer pursuant to clauses (i), (ii), (v) and (vi) and the
transferees of such Stockholder Shares shall agree, prior to any such
Transfer, in writing to be bound by the provisions of this Agreement
by executing and delivering to Holdings and the other Stockholders a
counterpart of this Agreement.
(c) At least 30 days prior to signing a definitive
agreement for the Transfer of Stockholder Shares, the transferring
Stockholder (the "Transferring Stockholder") shall deliver written
notice (the "Transfer Notice") to each other Stockholder (it being
understood that the Transfer Notice need not include any other
information, including any information concerning the identity of
prospective transaction parties, the number of shares being
transferred, timing, price or conditions). If within 5 days of
delivery of the Transfer Notice, the Transferring Stockholder
receives notice from one or more of the other Stockholders (the
"Potential Purchasing Stockholders") of any such Stockholder's
interest in purchasing Stockholder Shares, then, through the 30th day
following delivery of the Transfer Notice (the "PPS Discussion
Period"), the Transferring Stockholder (i) shall not conduct
negotiations or discussions concerning the contemplated Transfer with
any prospective transferees (other than a Potential Purchasing
Stockholder), and (ii) shall conduct good faith negotiations with the
Potential Purchasing Stockholders with the view to evaluating a
possible transaction (it being understood that the PPS Discussion
Period, and related discussions and negotiations, shall automatically
cease at the end of such 30-day period, unless the Transferring
Stockholder in its sole discretion agrees otherwise in writing). The
Transferring Stockholder, subject to the provisions of subparagraph
2(d) below, shall have the right to Transfer all or any portion of
its Stockholder Shares to any Person on such terms and conditions as
are acceptable to the Transferring Stockholder in its sole discretion
(including, without limitation, terms and conditions that may be less
favorable to the Transferring Stockholder than may have been offered
by, or discussed with, a Potential Purchasing Stockholder) at any
time from the expiration of the PPS Discussion Period through the
275th day following the expiration of the PPS Discussion Period;
provided that such 275-day period shall be extended to 365 days if at
the end of such 275-day period the Transferring Stockholder has
entered into a letter of intent, memorandum of understanding or
similar agreement with respect to a possible transaction and
otherwise is engaged in a transaction process (it being understood
that engagement shall include, without limitation, conducting
negotiations, raising financing or waiting for receipt of
governmental approvals). Nothing in this subparagraph 2(c) shall
obligate any Transferring Stockholder in any way to reach agreement
with a Potential Purchasing Stockholder concerning a possible
transaction.
(d) Participation Rights.
(i) At least 15 days prior to any Transfer of any
Stockholder Shares, the Transferring Stockholder will deliver to the
other Stockholders (collectively, the "Other Stockholders") a written
notice (a "Sale Notice") specifying in reasonable detail the identity
of the prospective transferee(s) and the terms and conditions of the
contemplated Transfer. The Other Stockholders may elect to
participate in the contemplated Transfer by delivering written notice
to the Transferring Stockholder within 15 days after delivery of the
Sale Notice. If any Other Stockholders have elected to participate
in such Transfer, each of the Transferring Stockholder and such Other
Stockholders will be entitled to sell in the contemplated Transfer,
at the same price and (subject to the following sentence) on the same
terms, a number of shares of each class of Common Stock being
transferred equal to the product of (A) the quotient determined by
dividing the number of shares of such class of Common Stock owned by
such person by the aggregate number of shares of such class of Common
Stock owned by all Persons participating in such sale by the
Transferring Stockholder and (B) the number of shares of such class
of Common Stock to be sold in the contemplated Transfer. A
Stockholder participating in a Transfer shall not be required to
agree to any noncompetition covenants arising in connection with the
Transfer (it being understood that such exception does not apply to a
noncompetition covenant to which a participating Stockholder may at
the time already be bound). Notwithstanding the foregoing, in the
event that the Transferring Stockholder intends to Transfer shares of
more than one class of Common Stock, the Other Stockholders
participating in such Transfer shall be required to sell in the
contemplated Transfer a pro rata portion of shares of all such
classes of Common Stock, which portion shall be determined in the
manner set forth immediately above.
(ii) The Transferring Stockholder will use reasonable
efforts to obtain the agreement of the prospective transferee(s) to
the participation of the Other Stockholders in any contemplated
Transfer, and the Transferring Stockholder will not Transfer any of
its shares of Common Stock to the prospective transferee(s) unless
(A) simultaneously with such Transfer, the prospective transferee(s)
purchases, at the same price and on the same terms, from the Other
Stockholders the shares of Common Stock which they are entitled to
sell to such prospective transferee pursuant to paragraph 2(d)(i) or
(B) simultaneously with such Transfer, the Transferring Stockholder
purchases, at the same price and on the same terms, the number of
shares of such class of Common Stock from the Other Stockholders
which the Other Stockholders would have been entitled to sell
pursuant to paragraph 2(d)(i) above.
(iii) If the Transfer contemplated by a Sale Notice is
not consummated within the 275-day (or, as applicable, 365-day)
period described in paragraph 2(c) above, such Sale Notice and all
elections by Other Stockholders (if any) shall be deemed to have been
rescinded (and any subsequent Transfer by a Transferring Stockholder
will continue to be governed by this paragraph 2).
(e) Bain Purchase Right. In the event that after three
consecutive meetings of the Board a Hoechst Director shall continue
to vote against approval of a Budget and Business Plan, Bain and
Goldman (and/or any person designated by Bain or Goldman) (pro rata
based on the number of shares of Common Stock then owned by each and
each of their respective Affiliates) will have the right upon written
notice to Hoechst to purchase any and all Hoechst Shares at a
purchase price per share equal to X divided by Y, multiplied by Z,
where "X" is the amount equal to 5 times the earnings before
interest, taxes, depreciation and amortization for the most recent
four-quarter period, less the amount of all indebtedness and other
liabilities as of the end of the most recent fiscal quarter, of
Holdings and its subsidiaries determined on a consolidated basis in
accordance with United States generally accepted accounting
principles, "Y" is the number of shares of Common Stock then
outstanding on a fully-diluted basis and "Z" is 0.60, being the
factor agreed by the parties as representing an appropriate discount
in light of the circumstances in which the repurchase right arises.
The closing(s) of any such purchase(s) shall take place as soon as
practicable. At such closing(s), the purchase price for the Hoechst
Shares shall be paid, at the option of the purchaser, by wire
transfer of immediately available funds or by delivery of each
purchaser's ten-year promissory note bearing interest at a rate per
annum of 10% payable quarterly (in cash or in kind), or any
combination of the foregoing.
(f) Limitation on Hoechst Sales to Holdings Competitor.
Other than pursuant to paragraph 2(d) or in connection with an
Approved Sale, no holder of Hoechst Shares shall Transfer any Hoechst
Shares to a Holdings Competitor. For purposes of this paragraph
"Holdings Competitor" means any Person (x) who, directly or
indirectly, derived more than $25 million of such Person's
consolidated revenues in the most recent fiscal year from an in vitro
diagnostics business, and (y) any affiliate of such Person.
(g) Limitation on Investor Sales to Hoechst Competitor.
Other than pursuant to paragraph 2(d), no holder of Investor Shares
shall, prior to June 30, 2000, Transfer any Investor Shares to a
Hoechst Competitor. For purposes of this Agreement, "Hoechst
Competitor" means any Person (x) who, directly or indirectly, derived
more than $25 million of such Person's consolidated revenues in the
most recent fiscal year from pharmaceutical, vaccine, in vitro
diagnostics and/or blood plasma derivative businesses competitive
with Holdings or Hoechst (or its Subsidiaries), and (y) any affiliate
of such Person.
(h) The provisions of subparagraphs 2(c) and 2(d) will
terminate and be of no further force or effect on such date as the
provisions of paragraph 3 terminate; provided that on the date on
which the Hoechst Block Group ceases to holds at least 50% of the
Initial Hoechst Shares, the holders of Hoechst Shares shall no longer
have the benefit of (i.e., shall not be entitled to exercise rights
under) subparagraphs 2(c) or 2(d).
3. Approved Sale.
(a) If the Bain Holders request a Transfer of all or
substantially all of Holdings' assets determined on a consolidated
basis or a Transfer of all or substantially all (i.e., greater than
80%) of Holdings' outstanding capital stock (whether by merger
(including one in which Holdings is the surviving corporation),
recapitalization, consolidation, reorganization, combination or
otherwise) to any Independent Third Party or group of Independent
Third Parties (collectively an "Approved Sale"), each holder of
Stockholder Shares will consent to and raise no objections against
such Approved Sale. If the Approved Sale is structured as (i) a
merger (including one in which Holdings is the surviving corporation)
or consolidation, each holder of Stockholder Shares will waive any
dissenter's rights, appraisal rights or similar rights in connection
with such merger or consolidation or (ii) Transfer of stock
(including by recapitalization, consolidation, reorganization,
combination or otherwise), each holder of Stockholder Shares will
agree to sell all of its Stockholder Shares and rights to acquire
Stockholder Shares on the terms (subject to the following sentence)
and conditions approved by the Bain Holders. A Stockholder
participating in an Approved Sale shall not be required to agree to
any noncompetition covenants arising in connection with the
transaction (it being understood that such exception does not apply
to a noncompetition covenant to which a participating Stockholder may
at the time already be bound). Each holder of Stockholder Shares
will take all reasonable actions in connection with the consummation
of the Approved Sale as requested by Holdings. Each holder of GS
Shares hereby agrees to vote all of its shares in connection with any
potential Approved Sale transaction in the same manner as the Bain
Holders. Nothing in this paragraph 3 shall preclude any party from
making an offer to Holdings or Holdings from accepting such offer for
the assets or stock of Holdings.
(b) The obligations of the holders of Common Stock with
respect to an Approved Sale are subject to the satisfaction of the
following conditions: (i) upon the consummation of the Approved Sale,
each holder of Common Stock will Transfer such Common Stock on the
same terms and will receive the same form of consideration and the
same portion of the aggregate consideration that such holders of
Common Stock would have received if such aggregate consideration had
been distributed by Holdings in complete liquidation pursuant to the
rights and preferences set forth in Holdings' Certificate of
Incorporation as in effect immediately prior to such Approved Sale;
(ii) each holder of shares of a class of Common Stock will be given
the same consideration with respect to each share of such class, and
if any holders of a class of Common Stock are given an option as to
the form and amount of consideration to be received, each holder of
such class of Common Stock will be given the same option with respect
to each share of such class; and (iii) each holder of then currently
exercisable rights to acquire shares of a class of Common Stock will
be given an opportunity to exercise such rights prior to the
consummation of the Approved Sale and participate in such sale as
holders of such class of Common Stock.
(c) If Holdings or the holders of Holdings' securities
enter into any negotiation or transaction for which Rule 506 (or any
similar rule then in effect) promulgated by the Securities and
Exchange Commission may be available with respect to such negotiation
or transaction (including a merger, consolidation or other
reorganization), the holders of Stockholder Shares will, at the
request of Holdings, appoint a purchaser representative (as such term
is defined in Rule 501) reasonably acceptable to Holdings. If any
holder of Stockholder Shares appoints a purchaser representative
designated by Holdings, Holdings will pay the fees of such purchaser
representative, but if any holder of Stockholder Shares declines to
appoint the purchaser representative designated by Holdings such
holder will appoint another purchaser representative, and such holder
will be responsible for the fees of the purchaser representative so
appointed. This paragraph 3(c) shall apply only to holders of
Stockholder Shares that are required to appoint a purchaser
representative under Regulation D (or any successor regulation then
in effect) promulgated by the Securities and Exchange Commission.
(d) Subject to paragraph 3(c), holders of Stockholder
Shares will bear their pro-rata share (based upon the proceeds to be
received by holders of Stockholder Shares) of the costs of any sale
of Stockholder Shares pursuant to an Approved Sale to the extent such
costs are incurred for the benefit of all holders of Common Stock and
are not otherwise paid by Holdings or the acquiring party. For
purposes of this paragraph 3(d), costs incurred in exercising
reasonable efforts to take all necessary actions for the consummation
of an Approved Sale in accordance with paragraph 3(a) shall be deemed
to be for the benefit of all holders of Common Stock. Costs incurred
by holders of Stockholder Shares on their own behalf will not be
considered costs of the transaction hereunder.
(e) Notwithstanding anything to the contrary, the
provisions of this paragraph 3 shall not apply to a holder of Hoechst
Shares with respect to any Approved Sale that is consummated on or
prior to June 30, 2000.
(f) At least 30 days prior to signing a definitive
agreement for an Approved Sale, the Bain Holders shall deliver
written notice (the "Approved Sale Notice") to each other Stockholder
(it being understood that the Approved Sale Notice need not include
any other information, including any information concerning the
identify of prospective transaction parties, the number of shares
being transferred, timing, price or conditions). If within 5 days of
delivery of the Approved Sale Notice, the Bain Holders receive notice
from one or more of the other Stockholders (the "Potential
Transaction Stockholders") of any such Stockholder's interest in
purchasing Stockholder Shares, then, through the 30th day following
delivery of the Approved Sale Notice (the "PTS Discussion Period"),
the Bain Holders (i) shall not conduct negotiations or discussions
concerning the contemplated Approved Sale with any prospective
transferees (other than a Potential Transaction Stockholder), and
(ii) shall conduct good faith negotiations with the Potential
Transaction Stockholders with the view to evaluating a possible
transaction (it being understood that the PTS Discussion Period, and
related discussions and negotiations, shall automatically cease at
the end of such 30-day period, unless the Bain Holders in their sole
discretion agrees otherwise in writing). Following the PTS
Discussion Period, and subject to the other provisions of this
paragraph 3, the Bain Holders shall have the right to request an
Approved Sale on such terms and conditions as are acceptable to the
Bain Holders in their sole discretion (including, without limitation,
terms and conditions that may be less favorable than may have been
offered by, or discussed with, a Potential Transaction Stockholder).
Subject to subparagraphs 3(a) and 3(b) above, nothing in this
subparagraph 3(c) shall obligate any Bain Holder in any way to reach
agreement with a Potential Transaction Stockholder concerning a
possible transaction.
(g) The provisions of this paragraph 3 will terminate and
be of no further force or effect on the date on which the Bain Block
Group ceases to hold at least 50% of the Initial Bain Shares.
4. Initial Public Offering.
(a) Subject to paragraph 6(a) of this Agreement, in the
event that the Board approves an Initial Public Offering or an
Initial Public Offering is consummated pursuant to the terms of the
Registration Agreement, the holders of Stockholder Shares will use
reasonable efforts to take all necessary actions in connection with
the consummation of the Initial Public Offering. In the event that
such Initial Public Offering is an underwritten offering and the
managing underwriters advise Holdings in writing that in their
opinion the Common Stock structure (other than the rights and
obligations under this Agreement) will adversely affect the
marketability of the offering, each holder of Stockholder Shares will
consent to and vote for a recapitalization, reorganization and/or
exchange of the Common Stock into securities that the managing
underwriters, the Board and holders of a majority of the shares of
Common Stock then outstanding find acceptable and will take all
necessary or desirable actions in connection with the consummation of
the recapitalization, reorganization and/or exchange; provided that
as a result of such recapitalization, reorganization and/or exchange
either (i) each share of Class L Common and Class L Common, Series B,
is converted or exchanged into (A) one share of Common and (B) shares
of nonparticipating preferred stock with a liquidation value equal to
the Unreturned Original Cost plus Unpaid Yield (as such terms are
defined in the Certificate of Incorporation) and a stated maturity of
5 years or less from date of issue and which, combined with the share
of Common, otherwise has the same economic rights (including yield)
and preferences as it possessed prior to such recapitalization,
reorganization and/or exchange, or a cash payment in an amount equal
to Unreturned Original Cost plus Unpaid Yield in lieu thereof or (ii)
each share of Class L Common and Class L Common, Series B, is
converted or exchanged into one share of Common plus a number of
shares of Common with a dollar value, based on the price to the
public, equal to such share's Unreturned Original Cost plus the
Unpaid Yield, as the case may be, thereon. The parties agree that
the rights and obligations specified in this Agreement shall survive
the consummation of the Initial Public Offering, except to the extent
expressly provided herein.
(b) Until the earlier of the date on which the Hoechst
Block Group owns less than 50% of the Initial Hoechst Shares and the
second anniversary of the effective date of the Initial Public
Offering, no Stockholder will purchase or otherwise acquire directly
or indirectly any shares of Common Stock in the open market without
the prior written consent of each of the Hoechst Block Group and the
Investor Holders.
5. Preemptive Rights.
(a) Except for the issuance of Common Stock (and/or
securities exercisable for or convertible into Common Stock) to
Holdings' or its Subsidiaries' directors or employees in their
capacity as such, in connection with an Approved Sale, subject to
the following sentence, in connection with any merger, consolidation,
acquisition of stock, acquisition of assets, business combination or
similar transaction, pursuant to the initial public offering of
Holdings' Common Stock registered under the Securities Act or upon
the conversion or exercise of securities convertible into or
containing options or rights to acquire Common Stock, Holdings shall
first offer to sell to each holder of Bain Shares, each holder of
GS Shares and the Hoechst Block Group a portion of such stock or
securities equal to the quotient determined by dividing (A) the
number of shares of Common Stock held by such holder of Stockholder
Shares (including any shares issuable upon exercise of the Warrant if
then exercisable) by (B) the total number of shares of outstanding
Common Stock (including any shares issuable upon exercise of the
Warrant if then exercisable). If on or prior to June 30, 2000,
Holdings issues Common Stock in connection with a transaction
described in clause (iii) above and, after giving effect to the
transaction, such issuance represents more than 50% of the
outstanding Common Stock, Holdings shall offer to sell to each holder
identified above a pro rata share (calculated as provided above) of
the portion of such issuance that exceeds 50% of the outstanding
Common Stock. Each such holder of Stockholder Shares shall be
entitled to purchase such stock or securities at the most favorable
price and on the most favorable terms as such stock or securities are
to be offered to any other Person. The purchase price for all stock
and securities offered to each such holder of Stockholder Shares
shall be payable in cash by wire transfer of immediately available
funds.
(b) In order to exercise its purchase rights hereunder,
each holder of Stockholder Shares must deliver a written notice to
Holdings describing its election hereunder within 30 days after
receipt of written notice from Holdings describing in reasonable
detail the stock or securities being offered, the purchase price
thereof, the payment terms and such holder's percentage allotment.
(c) Upon the expiration of the offering periods described
above, Holdings shall be entitled to sell such stock or securities
which the holders of Stockholder Shares have not elected to purchase
during the 90 days following such expiration on terms and conditions
no more favorable to the purchasers thereof than those offered to
holders of Stockholder Shares. Any stock or securities offered or
sold by Holdings to any Person after such 90 day period must be
reoffered to the holders of Stockholder Shares pursuant to the terms
of this paragraph.
(d) Termination. The provisions of this paragraph 5 will
terminate and be of no further force or effect upon the consummation
of the Initial Public Offering.
(6) Restrictive Covenants.
(a) GS Group. Until the first of (i) the GS Group holding
less than a majority of the Initial GS Shares, (ii) the GS Group not
having at least one designee on the Board, and (iii) December 20,
1999, Holdings shall not without the prior written consent of the GS
Group:
(i) authorize or enter into any agreement providing
for a sale of the company to an Independent Third Party or group
of Independent Third Parties pursuant to which such party or
parties acquire (i) capital stock of Holdings possessing the
voting power under normal circumstances to elect a majority of
the Board (whether by merger, consolidation or sale or transfer
of Holdings's capital stock) or (ii) all or substantially all
(as such phrase is described in the Official Comment to S 12.01
of the Revised Model Business Corporation Act (1984, as amended
as of the date hereof)) of Holdings's assets determined on a
consolidated basis;
(ii) sell its common equity securities, securities
convertible or exchangeable for common equity securities,
options or other rights to purchase common equity securities or
other common equity equivalents pursuant to its Initial Public
Offering;
(iii) sell, lease or otherwise dispose of, or permit
any Subsidiary to sell, lease or otherwise dispose of, all or
substantially all (as such phrase is described in the Official
Comment to S 12.01 of the Revised Model Business Corporation
Act (1984, as amended as of the date hereof)) to an Independent
Third Party or group of Independent Third Parties of any of the
product lines set forth on Exhibit A attached hereto in any
transaction or series of related transactions at any price below
those set forth on Exhibit A; or
(iv) permit Holdings to engage or permit any of its
subsidiaries to engage in any businesses which are not the same,
similar or related to the businesses in which Holdings and its
Subsidiaries are engaged on the date of this Agreement.
(b) Hoechst. Until the date on which the Hoechst Block
Group owns less than 50% of the Initial Hoechst Shares, the
affirmative vote of a majority of the members of the Board of
Directors, which shall include at least one Hoechst Director, will be
required for the approval of any of the following:
(i) entering by Holdings or any of its subsidiaries
into, amending any written agreement or engaging in any other
transaction with Goldman, Bain or any of their respective
Affiliates, other than on terms that are fair and reasonable and
no less favorable to Holdings or such subsidiary than it would
obtain in a comparable arm's length transaction with an
Independent Third Party;
(ii) changing the name or fundamental purpose or
nature of the business of Holdings;
(iii) the liquidation or winding up of Holdings;
(iv) any amendment to the Certificate of Incorporation
or By-Laws of Holdings if such amendment would adversely affect
the relative rights, privileges and preferences of the Hoechst
Shares with respect to any other shares of the same class of
Common Stock or if such amendment would otherwise adversely
affect Hoechst's rights, privileges and preferences in Holdings
as set forth in the Transaction Documents; and
(v) the appointment of any initial independent
directors in connection with the Initial Public Offering;
(vi) Holdings, on or prior to June 30, 2000, (A)
merging or consolidating with another Person, other than a
merger or consolidation pursuant to which Holdings is the
surviving corporation and as a result of which no Stockholder
Shares are exchanged, converted or canceled, or (B) sells all or
substantially all of its consolidated assets in one or a series
of related transactions.
(a) Termination. The provisions of this paragraph 6 will
terminate and be of no further force or effect upon the consummation
of the Initial Public Offering; provided, however, that the
provisions of paragraph 6(b)(vi) shall survive until June 30, 2000,
without regard to the consummation of the Initial Public Offering.
7. Affirmative Covenants.
(a) Financial Information. Holdings covenants and agrees
with each Stockholder that as long as such Stockholder holds any
Common Stock:
(i) Quarterly Information. Except for any quarter at
the end of which Holdings is a Public Company it shall deliver to
each Stockholder as soon as practicable after the end of each of the
first three quarterly fiscal periods in each fiscal year of Holdings,
and in any event within 45 days thereafter, a copy of (i) an
unaudited consolidated balance sheet of Holdings and its subsidiaries
as at the end of such quarter, and (ii) unaudited consolidated
statements of income, retained earnings and consolidated cash flows
of Holdings and its subsidiaries for such quarter and (in the case of
the second and third quarters) for the portion of the fiscal year
ending with such quarter, subject to normal year end audit
adjustments. Such statements shall be (i) prepared in accordance
with generally accepted accounting principles in the United States of
America as in effect from time to time ("GAAP"), consistently
applied, (ii) in reasonable detail and (iii) certified by the
principal financial or accounting officer of Holdings.
(ii) Annual Information. Except following any year at
the end of which Holdings is a Public Company, it shall deliver to
each Stockholder as soon as practicable after the end of each fiscal
year of Holdings, and in any event within 90 days thereafter, a copy
of (i) an audited consolidated balance sheet of Holdings and its
subsidiaries as at the end of such year, and (ii) audited
consolidated statements of income, retained earnings and consolidated
cash flows of Holdings and its subsidiaries for such year; setting
forth in each case in comparative form the figures for the previous
year. Such statements shall be (i) prepared in accordance with GAAP,
consistently applied, (ii) in reasonable detail and (iii) certified
by a firm of independent certified public accountants of recognized
national standing selected by Holdings.
(iii) Filings. Holdings shall deliver to each
Stockholder, promptly upon their becoming available, one copy of each
report, notice or proxy statement sent by Holdings to its
stockholders generally, and of each regular or periodic report
(pursuant to the Securities Exchange Act) and any registration
statement, prospectus or written communication (other than
transmittal letters) pursuant to the Securities Act of 1933 filed by
Holdings with (i) the Securities and Exchange Commission or (ii) any
securities exchange on which shares of Common Stock of Holdings are
listed.
(iv) Additional Information. With reasonable
promptness, Holdings shall deliver to (i) one Person designated from
time to time by holders of a majority of the Bain Shares (the "Bain
Designee") such additional information and data with respect to
Holdings as is reasonably requested by the Bain Designee, (ii) one
Person designated from time to time by holders of a majority of the
GS Shares (the "GS Designee") such additional information and data
with respect to Holdings as is reasonably requested by the GS
Designee and (iii) one Person designated from time to time by the
Hoechst Block Group such additional information and data with respect
to Holdings as is reasonably requested by Hoechst. Without limiting
the generality of the foregoing, Holdings agrees that it shall be
reasonable for any such Person to request such information as shall
be necessary for any such holders to comply with its obligations and
disclosure requirements under the U.S. securities laws and similar
requirements under applicable non-U.S. securities and accounting
laws.
8. Investment Banking Services. If at any time prior to
December 20, 1999, Holdings determines to retain an investment
banking firm to perform services in the areas of (i) public corporate
offerings or sale of equity securities or (ii) mergers and
acquisitions, Holdings agrees to (i) give Goldman a reasonable
opportunity to submit a proposal to provide such services, (ii)
consider any such proposal submitted by Goldman in good faith, and
(iii) subject to paragraph 6(b), to retain Goldman to provide such
services; provided that Holdings will have no obligation to retain
Goldman pursuant to (iii) hereof if the Board determines in the
reasonable exercise of its discretion that the retention of another
investment banking firm to render such services would provide a
material additional benefit to Holdings (based upon such other firms
proposal to Holdings, the terms and conditions of the engagement,
relevant experience and expertise, related services and support and
all other relevant factors).
9. Preferred Stock. In the event that the Bain Group
purchases any Preferred Stock pursuant to Section 7 of Part B of
Article IV of the Certificate of Incorporation or otherwise, the Bain
Group will give written notice of the purchase to the GS Group.
Within 30 days after receipt of such written notice, the GS Group may
purchase its Pro Rata Portion of such Preferred Stock from B at the
same price and on the same terms as B purchased such Preferred Stock.
The GS Group's "Pro Rata Portion" shall mean the quotient defined by
dividing (a) the number of Stockholder Shares held by the GS Group by
(b) the total number of Stockholder Shares collectively held by the
Bain Group and the GS Group. Any Preferred Stock acquired by the
Bain Group will be deemed to be Bain Shares and any Preferred Stock
acquired by the GS Group will be deemed to be GS Shares for purposes
of this Agreement. The GS Group hereby agrees that neither it nor
its Affiliates will acquire, or make an offer to acquire, any shares
of Preferred Stock other than pursuant to this paragraph 9. The GS
Group may assign its rights under this paragraph 9 to any of its
Affiliates.
10. Termination. Notwithstanding any provisions to the
contrary contained herein, this Agreement will terminate and be of no
further force and effect upon consummation of an Approved Sale.
11. Legend. Each certificate evidencing Stockholder
Shares and each certificate issued in exchange for or upon the
transfer of any Stockholder Shares (if such shares remain Stockholder
Shares as defined herein after such Transfer) shall be stamped or
otherwise imprinted with a legend in substantially the following
form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE
ARE SUBJECT TO CERTAIN TRANSFERS AND VOTING
RESTRICTIONS PURSUANT TO AN AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT DATED AS OF APRIL 14, 1999
AMONG THE ISSUER OF SUCH SECURITIES (THE
"COMPANY") AND CERTAIN OF THE COMPANY'S
STOCKHOLDERS, AS MAY BE AMENDED FROM TIME TO
TIME. A COPY OF SUCH STOCKHOLDERS AGREEMENT WILL
BE FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE
HOLDER HEREOF UPON WRITTEN REQUEST."
Holdings shall imprint such legend on certificates evidencing
Stockholder Shares outstanding prior to the date hereof. The legend
set forth above shall be removed from the certificates evidencing any
shares which cease to be Stockholder Shares in accordance with
paragraph 12 hereof. Any Stockholder Share bearing the legend
described in the Old Agreement need not bear the legend described
above.
12. Definitions.
"Affiliate" shall mean with respect to a Stockholder, any
other person, entity or investment fund controlling, controlled by or
under common control with the Stockholder and, in the case of a
Stockholder which is a partnership, any partner of the Stockholder.
"Approved Sale" has the meaning set forth in paragraph 3
hereof.
"Bain" means Bain Capital, Inc.
"Bain Block Group" means, collectively, the Bain Group, any
Affiliate of a member of the Bain Group and any Person (or group of
Persons acting together) who has acquired from the Bain Group and any
Affiliate of a member of the Bain Group in a single transaction or a
series of related transactions at least 75% of the Initial Bain
Shares, so long as such transaction(s) complied with the provisions
of paragraph 2.
"Bain Designee" has the meaning set forth in paragraph
7(iv) hereof.
"Bain Group" has the meaning set forth in the preamble.
"Bain Holders" has the meaning set forth in paragraph 1 of
this Agreement.
"Bain Shares" means any Common Stock acquired by the Bain
Group (or its Affiliates) pursuant to the Purchase Agreement or
otherwise and any equity securities issued or issuable directly or
indirectly with respect to such Common Stock by way of stock dividend
or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. Any
particular shares constituting Bain Shares that are transferred in
compliance with the provisions of this Agreement shall continue to
constitute Bain Shares in the hands of any such transferee; such
shares will cease to be Bain Shares only when they have been (x)
effectively registered under the Securities Act and disposed of in
accordance with the registration statement covering them, or (y) sold
to the public pursuant to Rule 144 (or by similar provision then in
force) under the Securities Act.
"Business Day" means any day that is not a Saturday, a
Sunday or any other day on which banks are required or authorized by
law to be closed in the State of New York, the City of New York or
the Federal Republic of Germany.
"Certificate of Incorporation" means Holdings' certificate
of incorporation in effect at the time as of which any determination
is being made.
"Combination Agreement" means the Agreement and Plan of
Combination, between Holdings and Hoechst, dated June 24, 1997, as
the same may be amended in accordance with its terms.
"Cooperation Agreement" has the meaning set forth in the
Combination Agreement, as the same may be amended in accordance with
its terms.
"Family Group" means a stockholder's spouse and descendants
(whether or not adopted) and any trust solely for the benefit of the
Stockholder and/or the Stockholder's spouse and/or descendants.
"Goldman" means Goldman, Sachs & Co.
"GS Designee" has the meaning set forth in paragraph 7(iv)
hereof.
"GS Directors" has the meaning set forth in paragraph 1
hereof.
"GS Group" has the meaning set forth in the preamble.
"GS Holders" has the meaning set forth in paragraph 1
hereof.
"GS Shares" means any Common Stock acquired by the GS Group
(or its Affiliates) pursuant to the Purchase Agreement or otherwise
and any equity securities issued or issuable directly or indirectly
with respect to such Common Stock by way of stock dividend or stock
split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. Any
particular shares constituting GS Shares that are transferred in
compliance with the provisions of this Agreement shall continue to
constitute GS Shares in the hands of any such transferee; such shares
will cease to be GS Shares only when they have been (x) effectively
registered under the Securities Act and disposed of in accordance
with the registration statement covering them, or (y) sold to the
public pursuant to Rule 144 (or by similar provision then in force)
under the Securities Act.
"Hoechst Directors" has the meaning set forth in paragraph
1 hereof.
"Hoechst Block Group" means, collectively, Hoechst, its
Affiliates and any Person (or group of Persons acting together) who
has acquired from Hoechst and its Affiliates in a single transaction
or a series of related transactions at least 75% of the Initial
Hoechst Shares, so long as such transaction(s) complied with the
provisions of paragraph 2.
"Hoechst Holder" means the holder of a majority of the
Hoechst Shares.
"Hoechst Shares" means any Common Stock acquired by Hoechst
(or its Affiliates) pursuant to the Combination Agreement, upon the
exercise of the Warrant or otherwise and any equity securities issued
or issuable directly or indirectly with respect to such Common Stock
by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or
other reorganization. Any particular shares constituting Hoechst
Shares that are transferred in compliance with the provisions of this
Agreement shall continue to constitute Hoechst Shares in the hands of
any such transferee; such shares will cease to be Hoechst Shares only
when they have been (x) effectively registered under the Securities
Act and disposed of in accordance with the registration statement
covering them or (y) sold to the public pursuant to Rule 144 (or by
similar provision then in force) under the Securities Act.
"Independent Third Party" means any Person who, immediately
prior to the contemplated transaction, does not own in excess of 5%
of Holdings' Common Stock on a fully-diluted basis (a "5% Owner"),
who is not controlling, controlled by or under common control with
any such 5% Owner and who is not the spouse or descendent (by birth
or adoption) of any such 5% Owner or a trust for the benefit of such
5% Owner and/or such other Persons.
"Initial Bain Shares" means the aggregate number of shares
of Common Stock set forth opposite the Bain Group's names on Schedule
III hereto (as adjusted for any subsequent stock splits, stock
dividends, combinations of shares and similar recapitalizations),
less the number of shares redeemed or redeemable by Holdings pursuant
to the Recapitalization Agreement.
"Initial GS Shares" means the aggregate number of shares of
Common Stock set forth opposite the GS Group's names on Schedule III
hereto (as adjusted for any subsequent stock splits, stock dividends,
combinations of shares and similar recapitalizations), less the
number of shares redeemed or redeemable by Holdings pursuant to the
Recapitalization Agreement.
"Initial Hoechst Shares" means the aggregate number of
shares of Common Stock issued to Hoechst (and its Affiliates)
pursuant to the Combination Agreement (excluding any shares of Common
acquired upon exercise of the Warrant) (as adjusted for any
subsequent stock splits, stock dividends, combinations of shares and
similar recapitalizations).
"Initial Public Offering" means a public offering and sale
of Holdings' common stock with aggregate proceeds (before discounts)
of at least $75 million pursuant to an effective registration
statement under the Securities Act of 1933, as amended, if
immediately thereafter Holdings has publicly held common stock listed
on a national securities exchange or the NASD automated quotation
system.
"Investor Shares" means the Bain Shares and the GS Shares.
"Investors" has the meaning set forth in the preamble
hereto.
"Person" means an individual, a partnership, a corporation,
limited liability company, an association, a joint stock company, a
trust, a joint venture, an unincorporated organization and a
governmental entity or any department, agency or political
subdivision thereof.
"Preferred Stock" has the meaning set forth in the recitals
hereto.
"Public Company" means a company (i) which is subject to
the reporting requirements of Section 15(d) of the Securities
Exchange Act or (ii) any of whose securities are registered pursuant
to Section 12(b) or 12(g) of the Securities Exchange Act.
"Public Sale" means any sale of Stockholder Shares to the
public pursuant to an offering registered under the Securities Act or
to the public pursuant to the provisions of Rule 144 adopted under
the Securities Act.
"Purchase Agreement" means the Stock Purchase Agreement,
dated December 20, 1994, by and among the Bain Group, the GS Group
and Holdings, as the same may be amended in accordance with its
terms.
"Recapitalization Agreement" has the meaning set forth in
the preamble, as the same may be amended in accordance with its
terms.
"Registration Agreement" has the meaning set forth in the
Combination Agreement, as the same may be amended in accordance with
its terms.
"Rhone-Poulenc Combination" means the business combination,
joint venture or similar combination between Hoechst and Rhone-
Poulenc; provided, however, that if (x) the entity resulting from
such transaction includes businesses other than businesses of Rhone-
Poulenc and Hoechst, or (y) a Person, other than Rhone-Poulenc,
Hoechst or any Person presently holding more than 5% of the voting
securities of Rhone-Poulenc or Hoechst, holds more than 5% of the
voting securities of the entity resulting from such transaction,
then, for purposes of this Agreement only, such Rhone-Poulenc
Combination shall be reasonably acceptable to the Bain Holders.
"Sale Notice" has the meaning set forth in paragraph 2(d)
hereof.
"Securities Act" means the Securities Act of 1933, as
amended from time to time.
"Stockholder Shares" means the Hoechst Shares, the Bain
Shares and the GS Shares.
"Subsidiary" means with respect to any Person, any
corporation, partnership, association or other business entity of
which (i) if a corporation, a majority of the total voting power of
shares of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors is at the time
owned or controlled, directly or indirectly, by that Person or one or
more of the other Subsidiaries of that Person or a combination
thereof, or (ii) if a partnership, association or other business
entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or
indirectly, by any Person or one or more Subsidiaries of that Person
or a combination thereof. For purposes hereof, a Person or Persons
shall be deemed to have a majority ownership interest in a
partnership, association or other business entity if such Person or
Persons shall be allocated a majority of partnership, association or
other business entity gains or losses or shall be or control the
managing director or general partner of such partnership, association
or other business entity.
"Transaction Documents" means this Agreement, the
Combination Agreement, the Registration Agreement and the Warrant.
"Warrant" has the meaning set forth in the Combination
Agreement, as the same may be amended in accordance with its terms.
13. Transfers in Violation of Agreement. Any Transfer or
attempted Transfer of any Stockholder Shares in violation of any
provision of this Agreement shall be void, and Holdings shall not
record such Transfer on its books or treat any purported transferee
of such Stockholder Shares as the owner of such shares for any
purpose.
14. Amendment and Waiver. Except as otherwise provided
herein, the provisions of this Agreement may be amended or waived
only upon the prior written consent of Holdings, the Bain Holders,
the GS Holders and the Hoechst Holders. The failure of any party to
enforce any of the provisions of this Agreement shall in no way be
construed as a waiver of such provisions and shall not affect the
right of such party thereafter to enforce each and every provision of
this Agreement in accordance with its terms.
15. Severability. Whenever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable in any
respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other
provision or the effectiveness or validity of any provision in any
other jurisdiction, and this Agreement shall be reformed, construed
and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained herein.
16. Entire Agreement. Except as otherwise expressly set
forth herein, this Agreement, the Recapitalization Agreement, the
Combination Agreement and the Registration Agreement embody the
complete agreement and understanding among the parties hereto with
respect to the subject matter hereof and supersede and preempt any
prior understandings, agreements (including, without limitation, the
Old Agreement and the Purchase Agreement) or representations by or
among the parties, written or oral, which may have related to the
subject matter hereof in any way.
17. Successors and Assigns. Except as otherwise provided
in this Agreement, this Agreement shall bind and inure to the benefit
of and be enforceable by Holdings and its successors and permitted
assigns and the Stockholders and any subsequent holders of
Stockholder Shares and the respective successors and permitted
assigns of each of them, so long as they hold Stockholder Shares.
Except as contemplated by the definition of Hoechst Block Group,
Hoechst's rights specified in paragraph 1 of this Agreement may not
be assigned by Hoechst.
18. Counterparts. This Agreement may be executed in
separate counterparts each of which shall be an original and all of
which taken together shall constitute one and the same agreement.
19. Remedies. The parties hereto agree and acknowledge
that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that Holdings and any
Stockholder shall have the right to injunctive relief, in addition to
all of its rights and remedies at law or in equity, to enforce the
provisions of this Agreement. Nothing contained in this Agreement
shall be construed to confer upon any Person who is not a signatory
hereto any rights or benefits, as a third party beneficiary or
otherwise; provided that Goldman is a beneficiary of paragraphs 2(e)
and 8 of this Agreement and Bain is a beneficiary of paragraph 2(e)
of this Agreement, in each case with rights to enforce such
provision.
20. Notice. All notices, demands and other communications
to be given or delivered under or by reason of the provisions of this
Agreement shall be in writing and shall be deemed to have been given
when personally delivered, sent by telecopy (with receipt confirmed)
on a Business Day during regular business hours of the recipient (or,
if not, on the next succeeding Business Day) or two Business Days
after sent by reputable overnight express courier (charges prepaid);
provided that any notice to a Stockholder who holds GS Shares shall
be effective only if notice has been given to the GS Designee and
notice to the GS Designee will not be deemed to have been given
unless actually delivered in person or by telecopy or courier.
21. Delivery by Facsimile. This Agreement and any signed
agreement or instrument entered into in connection thereto or
contemplated thereby, and any amendments hereto or thereto, to the
extent signed and delivered by means of a facsimile machine, shall be
treated in all manner and respects as an original agreement or
instrument and shall be considered to have the same binding legal
effect as if it were the original signed version thereof delivered in
person. At the request of any party hereto or to any such agreement
or instrument, each other party hereto or thereto shall re-execute
original forms thereof and deliver them to all other parties. No
party hereto or to any such agreement or instrument shall raise the
use of a facsimile machine to deliver a signature or the fact that
any signature or agreement or instrument was transmitted or
communicated through the use of a facsimile machine as a defense to
the formation of a contract and each such party forever waives any
such defense.
If to Holdings:
Dade Behring Holdings, Inc.
1717 Deerfield Road
Deerfield, Illinois 60015-0778
U.S.A.
Attention: Chief Executive Officer
If to the Bain Group:
Bain Capital, Inc.
Two Copley Place
Boston, Massachusetts 02116
U.S.A.
Attention: John Connaughton
With a copy to (which shall not constitute notice hereunder):
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
U.S.A.
Attention: Matthew E. Steinmetz
If to the GS Group:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
U.S.A.
Attn: Joseph H. Gleberman
With a copy to (which shall not constitute notice
hereunder):
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10014
U.S.A.
Attention: Lee Parks
If to Hoechst:
Hoechst AG
Bruningstrasse 50
D-65929 Frankfurt a. M.
Germany
Attention: Chairman of the Management Board
With a copy to (which shall not constitute notice hereunder):
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
U.S.A.
Attention: Creighton O'M. Condon
22. Governing Law. THE CORPORATE LAW OF DELAWARE WILL
GOVERN ALL ISSUES CONCERNING THE RELATIVE RIGHTS OF THE COMPANY AND
ITS STOCKHOLDERS. ALL OTHER ISSUES CONCERNING THIS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT
OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK OR ANY
OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAW OF
ANY JURISDICTION OTHER THAN THE COUNTY OF NEW YORK. EACH PARTY
HERETO HEREBY SUBMITS TO THE CO-EXCLUSIVE JURISDICTION OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND OF
ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY, OVER ANY LAWSUIT
UNDER THIS AGREEMENT AND WAIVES ANY OBJECTION BASED ON VENUE OR FORUM
NON CONVENIENS WITH RESPECT TO ANY ACTION INSTITUTED THEREIN. EACH
PARTY HERETO HEREBY WAIVES THE NECESSITY FOR PERSONAL SERVICE OF ANY
AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS
MAY BE MADE BY REGISTERED OR CERTIFIED MAIL (RETURN RECEIPT
REQUESTED), WITH A COPY ALSO BEING SENT BY FACSIMILE (WITH RECEIPT
CONFIRMED), IN EACH CASE DIRECTED TO SUCH PARTY AT ITS ADDRESS SET
FORTH IN, AND WITH COPIES SENT AS REQUIRED BY, PARAGRAPH 21 ABOVE,
AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED ON THE DATE OF
ACTUAL RECEIPT. EACH PARTY HERETO HEREBY CONSENTS TO SERVICE OF
PROCESS AS AFORESAID. NOTHING IN THIS PARAGRAPH 22 WILL PROHIBIT
PERSONAL SERVICE IN LIEU OF THE SERVICE BY MAIL CONTEMPLATED HEREIN.
23. Descriptive Headings. The descriptive headings of
this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this
Amended and Restated Stockholders Agreement on the day and year first
above written.
DADE BEHRING HOLDINGS, INC.
By: /s/
Its:
HOECHST AG
By: /s/
Its:
BAIN CAPITAL FUND IV, L.P.
By: Bain Capital Partners IV, L.P.
Its: General Partner
By: Bain Capital Investors, Inc.
Its: General Partner
By: /s/
A Managing Director
BAIN CAPITAL FUND IV-B, L.P.
By: Bain Capital Partners IV, L.P.
Its: General Partner
By: Bain Capital Investors, Inc.
Its: General Partner
By: /s/
A Managing Director
BCIP ASSOCIATES
By: /s/
A General Partner
BCIP TRUST ASSOCIATES, L.P.
By: /s/
A General Partner
GS CAPITAL PARTNERS, L.P.
By: GS Advisors, L.P.
Its: General Partner
By: GS Advisors, Inc.
Its: General Partner
By: /s/
BRIDGE STREET FUND 1994, L.P.
By: Stone Street Funding Corp.
Its: Managing General Partner
By: /s/
STONE STREET FUND 1994, L.P.
By: Stone Street Funding Corp.
Its: General Partner
By: /s/
RANDOLPH STREET PARTNERS
By:/s/
A General Partner
/