HomeMy WebLinkAboutCertain DefinitionsEXHIBIT D
Certain Definitions
"Affiliate" of any Person means another Person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with, such first Person.
"Class A Common Stock" means the Class A Voting Common Stock, par value $.01 per share,
of the Company.
"Class B Common Stock" means the Class B Non -Voting Common Stock, par value $.01 per
share, of the Company.
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" means the Class A Common Stock and the Class B Common Stock.
"Fully Diluted Shares" means, as of any date, the total number of shares of Common Stock,
Vested Options and Warrants outstanding as of such date.
"GAAP" means U.S. generally accepted accounting principles, consistently applied.
"Indebtedness" shall mean and include, without duplication: (1) all indebtedness for borrowed
money or indebtedness evidenced by notes, including without limitation Senior Indebtedness and
Subordinated Indebtedness; (2) all leases which are set forth as capitalized leases on the Base
Balance Sheet and all capitalized leases entered into by the Company since the date of the Base
Balance Sheet (determined on the basis of the same accounting principles used to prepare the
Base Balance Sheet); (3) all contingent payments or "earnouts" that the Company or any
Subsidiary may be required to pay under any agreements pursuant to which the Company or a
Subsidiary acquired the outstanding capital stock or assets of another Person and (4) all
guarantees in respect of the indebtedness of others of the type referred to in clauses (1), (2) or (3)
of this definition.
"Losses" of a Person means any and all losses, liabilities, damages, claims, awards, judgments,
costs and expenses (including, without limitation, reasonable attorneys' fees) actually suffered or
incurred by such Person; provided, however, that "Losses" shall not include any consequential,
special, exemplary or punitive damages, or any multiple of damages.
"Material Adverse Effect" means a material adverse effect on the financial condition or
business of the Company and its Subsidiaries, taken as a whole, except for any such effects
resulting from (i) this Agreement, the transactions contemplated hereby or the announcement
thereof, (ii) changes in general economic or political conditions or the securities markets in
general, (iii) changes, after the date of this Agreement, in conditions generally applicable to
businesses in the same industries of the Company and its Subsidiaries including (A) changes in
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laws generally applicable to such businesses or industry and (B) changes in GAAP or its
application, or (iv) loss of business to Buyer and its subsidiaries and Affiliates.
"Options" means options to purchase Common Stock.
"Preferred Stock Liquidation Amount" means, as of any date, the aggregate Series A
Preferred Liquidation Value and Series B Preferred Liquidation Value with respect to all shares
of Preferred Stock outstanding as of such date.
"Per Share Purchase Price" means, as of any date, the quotient of (a) the sum of (i) the
Purchase Price, >l lus (ii) the aggregate exercise price for all Vested Options and Warrants, minus
(iii) the Preferred Stock Liquidation Amount, divided by (b) the Fully Diluted Shares.
"Person" means an individual, corporation, partnership, limited liability company, joint venture,
association, trust, unincorporated organization or other entity.
"Preferred Stock" means the Series A Preferred and Series B Preferred.
"Registration Rights Agreement" means that certain Amended and Restated Registration
Rights Agreement dated as of April 12, 2005 by and among the Company and certain of its
stockholders.
"Senior Credit Agreement" means that certain Amended and Restated Credit Agreement dated
as of November _, 2006 by and among the Company and its Subsidiaries, and the Lenders, the
Administrative Agent and the Arranger identified therein, as the same has been and may be
amended and/or restated from time to time.
"Series A Preferred" means the Series A Preferred Stock, par value $.01 per share, of the
Company.
"Series A Preferred Liquidation Value" means the amount per share of Series A Preferred
payable in connection with a Liquidation (as defined and used in the Charter) pursuant to Section
4.1 of Article 5.A.II of the Charter.
"Series B Preferred" means the Series B Preferred Stock, par value $.01 per share, of the
Company.
"Series B Preferred Liquidation Value" means the amount per share of Series B Preferred
payable in connection with a Liquidation pursuant to Section 4.2 of Article 5.A.II of the Charter.
"Share(s)" means the shares of Common Stock.
"Stockholders Agreement" means that certain Second Amended and Restated Stockholders
Agreement dated as of April 12, 2005 among the Company and its stockholders.
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"Subordinated Note Purchase Agreement" means that certain Note Purchase Agreement dated
May 12, 2003 by and among the Company and certain of its Subsidiaries and the Purchaser party
thereto, as the same has been and may be amended from time to time.
"Transaction Expenses" means all unpaid fees and expenses of the Company and the Sellers
incurred in connection with this Agreement and the transactions contemplated hereby, which
fees and expenses include, without limitation, the legal fees and expenses of Proskauer Rose LLP
and the advisory fees payable to Robert W. Baird & Co., Inc.
"Vested Options" means, as of any date, any Options that are vested and exercisable in
accordance with the applicable award agreement and the Company's 2000 Employee Stock Plan
as of such date, including, for purposes of determining Vested Options as of the Closing Date,
any Options which, but for the Option Termination Agreement, become vested as a result of the
transactions contemplated by this Agreement.
"Warrant(s)" means warrants to purchase Common Stock.
"Warrant Share" means the Shares underlying the Warrants.
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