Exhibit 10.15
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STOCKHOLDERS AGREEMENT
among
UGS Capital Corp.
UGS Capital Corp. II
UGS Holdings, Inc.
UGS Corp.
and
Certain Stockholders of UGS Capital Corp. and UGS Capital Corp. II
Dated as of May 24, 2004
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TABLE OF CONTENTS
1. EFFECTIVENESS; DEFINITIONS................................................................. 2
1.1. Closing........................................................................ 2
1.2. Definitions.................................................................... 2
2. VOTING AGREEMENT........................................................................... 2
2.1. Significant Transactions....................................................... 2
2.2. Consent to Amendment........................................................... 2
2.3. The Company and Midco.......................................................... 3
2.4. Period......................................................................... 3
3. TRANSFER RESTRICTIONS...................................................................... 3
3.1. Transfers Allowed.............................................................. 3
3.1.1. Permitted Transferees............................................. 3
3.1.2. Distributions and Charitable Contributions........................ 3
3.1.3. Public Transfers.................................................. 3
3.1.4. Tag Along and Drag Along.......................................... 3
3.1.5. Other Private Transfers........................................... 4
3.2. Certain Transferees to become Parties.......................................... 4
3.3. Restrictions on Transfers to Strategic Investors............................... 5
3.4. Impermissible Transfer......................................................... 5
3.5. Notice of Transfer............................................................. 6
3.6. Other Restrictions on Transfer................................................. 6
3.7. Period......................................................................... 6
4. "TAG ALONG" AND "DRAG ALONG" RIGHTS AND RIGHT OF FIRST OFFER............................... 6
4.1. Tag Along...................................................................... 6
4.1.1. Notice............................................................ 6
4.1.2. Exercise.......................................................... 7
4.1.3. Irrevocable Offer................................................. 7
4.1.4. Reduction of Shares Sold.......................................... 7
4.1.5. Additional Compliance............................................. 8
4.2. Drag Along..................................................................... 8
4.2.1. Exercise.......................................................... 9
4.3. Miscellaneous.................................................................. 9
4.3.1. Certain Legal Requirements........................................ 9
4.3.2. Further Assurances................................................ 10
4.3.3. Sale Process...................................................... 10
4.3.4. Treatment of Options, Warrants and Convertible Securities......... 11
4.3.5. Expenses.......................................................... 11
4.3.6. Closing........................................................... 11
4.4. Right of First Offer........................................................... 11
4.4.1. Notice............................................................ 12
4.4.2. Exercise.......................................................... 12
4.4.3. Irrevocable Offer................................................. 12
4.4.4. Acceptance of Offers.............................................. 12
4.4.5. Additional Compliance............................................. 13
4.4.6. Determination of the Number of Subject Shares to be Sold.......... 13
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4.5. Period......................................................................... 14
5. HOLDER LOCK-UP............................................................................. 14
6. CALL OPTION................................................................................ 15
6.1. Call Option.................................................................... 15
6.1.1. Call Option Upon Termination...................................... 15
6.1.2. Payment........................................................... 15
6.2. Cash Payments.................................................................. 15
6.3. Prepayments.................................................................... 16
6.4. Final Maturity Date............................................................ 16
6.5. Notices, etc................................................................... 16
6.6. Closing........................................................................ 16
6.7. Investor Group Call Option..................................................... 16
6.8. Period......................................................................... 17
7. REMEDIES................................................................................... 17
7.1. Generally...................................................................... 17
7.2. Deposit........................................................................ 17
8. LEGENDS.................................................................................... 17
8.1. Restrictive Legend............................................................. 17
8.2. 1933 Act Legends............................................................... 18
8.3. Stop Transfer Instruction...................................................... 18
8.4. Termination of 1933 Act Legend................................................. 18
9. AMENDMENT, TERMINATION, ETC................................................................ 18
9.1. Oral Modifications............................................................. 18
9.2. Written Modifications.......................................................... 18
9.3. Withdrawal from Agreement...................................................... 19
9.4. Effect of Termination.......................................................... 19
10. DEFINITIONS............................................................................... 19
10.1. Certain Matters of Construction............................................... 20
10.2. Definitions................................................................... 20
11. MISCELLANEOUS............................................................................. 29
11.1. Authority: Effect............................................................. 29
11.2. Notices....................................................................... 29
11.3. Binding Effect, Etc........................................................... 30
11.4. Descriptive Heading........................................................... 31
11.5. Counterparts.................................................................. 31
11.6. Severability.................................................................. 31
11.7. No Recourse................................................................... 31
11.8. Aggregation of Shares......................................................... 31
11.9. Obligations of Company, Midco, Holdings and OpCo.............................. 31
12. GOVERNING LAW............................................................................. 32
12.1. Governing Law................................................................. 32
12.2. Consent to Jurisdiction....................................................... 32
12.3. WAIVER OF JURY TRIAL.......................................................... 32
12.4. Exercise of Rights and Remedies............................................... 33
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STOCKHOLDERS AGREEMENT
This Stockholders Agreement (the "Agreement") is made as of May 24, 2004
by and among:
(i) UGS Capital Corp., a Delaware corporation (formerly known as BSW
Holdings, Inc.) (together with its successors and permitted assigns,
the "Company");
(ii) UGS Capital Corp. II, a Delaware corporation (together with its
successors and permitted assigns, "Midco");
(iii) UGS Holdings, Inc., a Delaware corporation (together with its
successors and permitted assigns, "Holdings");
(iv) UGS Corp., a Delaware corporation (together with its successors and
permitted assigns, "AcquisitionCo");
(v) each Person executing this Agreement and listed as an Investor on
the signature pages hereto (collectively with their Permitted
Transferees, the "Investors");
(v) each Person executing this Agreement and listed as a Manager on the
signature pages hereto and such other Persons, if any, that from
time to time become party hereto as Managers (collectively, the
"Managers");
(vi) each Person executing this Agreement and listed as a Manager
Designee on the signature pages hereto and such other Persons, if
any, that from time to time become party hereto as Manager Designees
(collectively, the "Manager Designees"; and
(vii) such other Persons, if any, that from time to time become party
hereto as transferees of Shares pursuant to Section 3.2
(collectively, together with the Investors, the Managers and the
Manager Designees, the "Stockholders") in accordance with the terms
hereof.
RECITALS
1. The Company has been formed for the purpose of acquiring (the
"Acquisition"), indirectly through one or more subsidiaries, pursuant to a Stock
Purchase Agreement, dated as of March 12, 2004, as amended (the "Acquisition
Agreement"), between Electronic Data Systems Corporation, the Company and UGS
PLM Solutions Inc. ("OpCo"), all outstanding shares of OpCo.
2. Upon the Closing (as defined below), the Common Stock (as defined
below) of the Company, the common stock and the Preferred Stock (as defined
below) of Midco and all Options (as defined below) will be held as set forth on
Schedule I hereto.
3. The parties believe that it is in the best interests of the Company,
Midco, Holdings, AcquisitionCo and the Stockholders to set forth their
agreements on certain matters.
AGREEMENT
Therefore, the parties hereto hereby agree as follows:
1. EFFECTIVENESS; DEFINITIONS.
1.1. Closing. This Agreement shall become effective upon the initial
purchase of Stock by the Investors in connection with the consummation of the
closing under the Acquisition Agreement (the "Closing").
1.2. Definitions. Certain terms are used in this Agreement as specifically
defined herein. These definitions are set forth or referred to in Section 10
hereof.
2. VOTING AGREEMENT.
2.1. Significant Transactions. If a vote of holders of Shares (or any
class or series of Shares) is required under any applicable law or stock
exchange regulations in connection with a Change of Control transaction being
implemented pursuant to Section 4.2 or is deemed otherwise desirable by the
Requisite Stockholder Majority in connection with a transaction being
implemented pursuant to Section 4.2, each holder of Shares agrees to cast all
votes to which such holder is entitled in respect of the Shares, whether at any
annual or special meeting, by written consent or otherwise, in such manner as
the Requisite Stockholder Majority may instruct by written notice to approve any
sale, recapitalization, merger, consolidation, reorganization or any other
transaction or series of transactions involving the Company or its subsidiaries
(or all or any portion of their respective assets) in connection with, or in
furtherance of, the exercise by the Requisite Stockholder Majority of their
rights under Section 4.2. Each holder of Shares hereby grants to each member of
such Requisite Stockholder Majority an irrevocable proxy coupled with an
interest to vote, including in any action by written consent, such holder's
Shares in accordance with such holder's agreements contained in this Section
2.1, which proxy shall be valid and remain in effect until the provisions of
this Section 2.1 expire pursuant to Section 2.4.
2.2. Consent to Amendment. Each holder of Company Shares agrees to cast
all votes to which such holder is entitled in respect of the Company Shares,
whether at any annual or special meeting, by written consent or otherwise, in
such manner as the Requisite Stockholder Majority may instruct by written notice
to increase the number of authorized shares of Class A-4 Common Stock to the
extent necessary to permit the Company to comply with the provisions of its
certificate of incorporation with respect to the conversion of shares of Class
A-1 Common Stock, Class A-2 Common Stock, Class A-3 Common Stock and Class L
Common Stock into shares of Class A-4 Common Stock. Each holder of Shares hereby
grants to each member of such Requisite Stockholder Majority an irrevocable
proxy coupled with an interest to vote, including in any action by written
consent, such holder's Shares in accordance with such holder's agreements
contained in this Section 2.2, which proxy shall be valid and remain in effect
until the provisions of this Section 2.2 expire pursuant to Section 2.4.
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2.3. The Company and Midco. The Company and Midco will not to give effect
to any action by any holder of Shares or any other Person which is in
contravention of this Section 2.
2.4. Period. Each of the foregoing provisions of this Section 2 shall
expire on the earlier of (a) a Change of Control, (b) the Initial Public
Offering and (c) with respect to any particular provision, the last date
permitted by applicable law (including the rules of the Commission and any
exchange upon which equity securities of the Company might be listed); provided,
that Section 2.1 shall expire no later than the expiration of Section 4.2
pursuant to the terms hereof.
3. TRANSFER RESTRICTIONS.
3.1. Transfers Allowed. Until the expiration of the provisions of
this Section 3, no holder of Shares shall Transfer any of such holder's
Shares to any other Person except as follows:
3.1.1. Permitted Transferees. Subject to Section 3.3, but without
regard to any other restrictions on transfer contained elsewhere in this
Agreement, any holder of Shares may Transfer any or all of such Shares to
such holder's Permitted Transferees, so long as such Permitted Transferees
agree to be bound by the terms of this Agreement in accordance with
Section 3.2 (if not already bound hereby).
3.1.2. Distributions and Charitable Contributions. At or after the
closing of the Initial Public Offering, any holder of Shares may Transfer
any or all of such Shares (a) in a pro rata Transfer to its partners,
members or stockholders or (b) to a Charitable Organization, in each case
without regard to any other restrictions on transfer contained elsewhere
in this Agreement (other than the provisions of Section 5, if applicable).
Any Shares so Transferred shall conclusively be deemed thereafter not to
be Shares under this Agreement.
3.1.3. Public Transfers. Any holder of Shares may Transfer any or
all of such Shares: (a) in a Public Offering or (b) after the closing of
the Initial Public Offering, pursuant to Rule 144 or a block sale to a
financial institution in the ordinary course of its trading business, in
each case in compliance with Section 3.3, but without regard to any other
restrictions on transfer contained elsewhere in this Agreement (other than
the provisions of Section 5, if applicable). Shares Transferred pursuant
to this Section 3.1.3 shall conclusively be deemed thereafter not to be
Shares under this Agreement.
3.1.4. Tag Along and Drag Along.
(a) Any holder of Shares may Transfer any or all of such
Shares pursuant to Section 4.2, without regard to any other
restrictions on transfer contained elsewhere in this Agreement
(other than the provisions of Section 5, if applicable). Shares so
Transferred shall conclusively be deemed thereafter not to be Shares
under this Agreement.
(b) A Participating Seller may Transfer Shares pursuant to and
in accordance with the provisions of Section 4.1 without regard to
any other restrictions on transfer contained elsewhere in this
Agreement (other than the
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provisions of Section 5, if applicable) so long as each transferee
agrees to be bound by the terms of this Agreement in accordance with
Section 3.2 (if not already bound hereby).
3.1.5. Other Private Transfers. In addition to any Transfers made in
accordance with Sections 3.1.1, 3.1.2, 3.1.3 and 3.1.4, any holder of
Shares may Transfer any or all of such Shares subject to compliance with
all of the following conditions in respect of each Transfer:
(a) if such Transfer is during the Lock-up Period in respect
of such Shares, with the consent of the Requisite Stockholder
Majority;
(b) if such Transfer is after the Lock-up Period in respect of
such Shares and before the closing of an Initial Public Offering, in
compliance with Section 4.4;
(c) if such Transfer is before the closing of an Initial
Public Offering, in compliance with Sections 3.2 and 4.1;
(d) in compliance with Section 3.3; and
(e) if applicable, in compliance with Section 5.
Except as required by Section 3.1.5(c), any Shares so Transferred to a
Person other than a Stockholder or a Permitted Transferee shall
conclusively be deemed thereafter not to be Shares under this Agreement.
3.2. Certain Transferees to Become Parties. Any transferee receiving
Shares in a Transfer pursuant to Section 3.1.1, 3.1.4(b) or 3.1.5(c) shall
become a Stockholder party to this Agreement and be subject to the terms and
conditions of, and be entitled to enforce, this Agreement to the same extent,
and in the same capacity, as the Stockholder that Transfers such Shares to such
transferee; provided, that only a Permitted Transferee of an Investor will be
deemed to be an "Investor" for purposes of this Agreement and a Permitted
Transferee of a Manager or a Manager Designee will be deemed to be a "Manager
Designee" for purposes of this Agreement. Prior to the initial Transfer of any
Shares to any transferee pursuant to Section 3.1.1, 3.1.4(b) or 3.1.5(c), and as
a condition thereto, each holder of Shares effecting such Transfer shall (i)
cause such transferee to deliver to the Company and each of the Investors (other
than the transferor) its written agreement, in form and substance reasonably
satisfactory to the Company, to be bound by the terms and conditions of this
Agreement to the extent described in the preceding sentence and (ii) if such
Transfer is to a Permitted Transferee, remain directly liable for the
performance by such Permitted Transferee of all obligations of such transferee
under this Agreement. To the extent a transferee is not an individual, a trust
or an estate, and the transferor or an Affiliate thereof shall cease to control
such transferee, (i) such change of control shall be deemed to be a Transfer of
the Shares held by such transferee subject to the Transfer restrictions
contained or referenced in this Section 3 and (ii) to the extent such transferee
then holds assets in addition to Shares, the determination of the purchase price
deemed to have been
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paid for the Shares held by such transferee in such deemed Transfer for purposes
of the provisions of Sections 3 and 4 shall be made by the Board in good faith.
3.3. Restrictions on Transfers to Strategic Investors. In addition to any
other provision of this Agreement, no holder of Shares shall Transfer any Shares
pursuant to Sections 3.1.1, 3.1.3 or 3.1.5 of this Agreement to a Strategic
Investor without the approval of the Requisite Stockholder Majority. If any
Prospective Selling Stockholder proposes to Transfer any Shares pursuant to
Sections 3.1.1, 3.1.3 or 3.1.5 to any Prospective Buyer, the Prospective Selling
Stockholder shall furnish a written notice (which notice may be the same notice
as the Tag Along Notice, if any, delivered pursuant to Section 4.1 or the Sale
Notice, if any, delivered pursuant to Section 4.4, in each case so long as such
notice includes all of the information required by the next sentence) to the
Company and each other Investor at least ten business days prior to such
proposed Transfer. Such notice shall set forth the principal terms of the
proposed Transfer, including (i) the number and class of the Shares to be
Transferred, (ii) the per share purchase price or the formula by which such
price is to be determined and (iii) the name and address of the Prospective
Buyer. If the Prospective Buyer (or an Affiliate thereof) has previously been
determined by the Requisite Stockholder Majority to be a Strategic Investor, or
is presumed to be a Strategic Investor pursuant to the definition thereof, and
such determination or presumption has not been reversed by written notice to all
holders of Shares, the Prospective Selling Stockholder shall not Transfer any
Shares to such Prospective Buyer without the written approval of the Requisite
Stockholder Majority. If the Prospective Buyer (or an Affiliate thereof) has not
previously been determined by the Requisite Stockholder Majority to be a
Strategic Investor, or is not presumed to be a Strategic Investor pursuant to
the definition thereof, the Prospective Selling Stockholder may Transfer Shares
to such Prospective Buyer unless, within eight business days after the date of
delivery of the notice required by the second preceding sentence, the Requisite
Stockholder Majority delivers written notice to the Prospective Selling
Stockholder that such Prospective Buyer has been designated a Strategic
Investor. If, within such time period, a notice designating such Prospective
Buyer a Strategic Investor is delivered, then the Prospective Selling
Stockholder shall not Transfer any Shares to such Prospective Buyer. In the
event any proposed Transfer to a Strategic Investor is approved in accordance
with the foregoing, such approval shall also apply to Transfers made to such
Prospective Buyer by any Tag Along Sellers. Notwithstanding anything in this
Agreement to the contrary, the restrictions in this Section 3.3 shall not apply
to any Transfers (i) to the Company or any of its subsidiaries, (ii) to any
Investor, (iii) to any Affiliated Fund of any Investor, (iv) pursuant to Rule
144 effected as "brokers' transactions" (as defined in Rule 144); or (v)
pursuant to an underwritten Public Offering or, following the Initial Public
Offering, pursuant to Rule 144 directly to a "market maker" (as defined in Rule
144) or pursuant to a block sale to a financial institution in the ordinary
course of its trading business, in each case of this clause (v) in which, to the
knowledge of the Prospective Selling Stockholder (after reasonable due inquiry),
the underwriter(s), market maker(s) or block sale purchaser(s) are not acquiring
such Shares for the intended purpose of reselling such Shares to any Person
that, after giving effect to such resale, would own, directly or indirectly,
more than five percent (5%) of then outstanding shares of the applicable class
of Shares.
3.4. Impermissible Transfer. Any attempted Transfer of Shares not
permitted under the terms of this Section 3 shall be null and void, and neither
the Company nor Midco shall in any way give effect to any such impermissible
Transfer.
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3.5. Notice of Transfer. To the extent any Stockholder or Permitted
Transferee shall Transfer any Shares pursuant to Section 3.1.1 or 3.1.5, such
Stockholder or Permitted Transferee shall, within three business days following
consummation of such Transfer, deliver notice thereof to the Company and each
Investor.
3.6. Other Restrictions on Transfer. The restrictions on Transfer
contained in this Agreement are in addition to any other restrictions on
Transfer to which a Stockholder may be subject, including, without limitation,
any restrictions on transfer contained in a restricted stock agreement, stock
option agreement or stock subscription agreement.
3.7. Period. Each of the foregoing provisions of this Section 3 shall
expire upon a Change of Control.
4. "TAG ALONG" AND "DRAG ALONG" RIGHTS AND RIGHT OF FIRST OFFER.
4.1. Tag Along. Subject to prior compliance with Section 4.4, if
applicable, if any Prospective Selling Stockholder proposes to Sell any Shares
(other than Management Shares) to any Prospective Buyer(s) (including a First
Offer Purchaser pursuant to Section 4.4) prior to the Initial Public Offering in
a Transfer that is subject to Section 3.1.5:
4.1.1. Notice. The Prospective Selling Stockholder shall, prior to
any such proposed Transfer, furnish a written notice (the "Tag Along
Notice") to each of the other holders of Shares (each, a "Tag Along
Holder"). The Tag Along Notice shall include:
(a) the principal terms and conditions of the proposed Sale,
including (i) the number and class of the Shares to be purchased
from the Prospective Selling Stockholder, (ii) the fraction(s)
expressed as a percentage, determined by dividing the number of
Shares of each class to be purchased from the Prospective Selling
Stockholder by the total number of Vested Shares of each such class
held by the Prospective Selling Stockholder (for each class, the
"Tag Along Sale Percentage") (it being understood that the Company
shall reasonably cooperate with the Prospective Selling Stockholder
in respect of the determination of each applicable Tag Along Sale
Percentage), (iii) the per share purchase price or the formula by
which such price is to be determined and the payment terms,
including a description of any non-cash consideration sufficiently
detailed to permit valuation thereof, (iv) the name and address of
each Prospective Buyer and (v) the proposed Transfer date; and
(b) an invitation to each Tag Along Holder to make an offer to
include in the proposed Sale to the applicable Prospective Buyer(s)
Vested Shares of the same class(es) being sold by the Prospective
Selling Stockholder held by such Tag Along Holder (not in any event
to exceed the Tag Along Sale Percentage of the total number of
Vested Shares of the applicable class held by such Tag Along
Holder), on the same terms and conditions (subject to Section 4.3.4
in the case of Options, Warrants and Convertible Securities and
subject to Section 4.3.1 under all circumstances), with respect to
each Share Sold, as the Prospective Selling
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Stockholder shall Sell each of its Shares. For purposes of this
Section 4.1, the Class A Common Stock will be treated as a single
class and, subject to Section 4.3.4, all Options and Warrants will
be treated as the same class of Shares for which they may be
exercised.
4.1.2. Exercise. Within five (ten, if the proposed Transfer is not
also the subject of a currently effective Sale Notice under Section 4.4)
business days after the date of delivery of the Tag Along Notice (such
date the "Tag Along Deadline"), each Tag Along Holder desiring to make an
offer to include Vested Shares in the proposed Sale (each a "Participating
Seller" and, together with the Prospective Selling Stockholder,
collectively, the "Tag Along Sellers") shall furnish a written notice (the
"Tag Along Offer") to the Prospective Selling Stockholder indicating the
number of Vested Shares which such Participating Seller desires to have
included in the proposed Sale (subject to the limitation set forth in
Section 4.1.1(b)). Each Tag Along Holder who does not make a Tag Along
Offer in compliance with the above requirements, including the time
period, shall be deemed to have waived all of such holder's rights with
respect to such Sale, and the Tag Along Sellers shall thereafter be free
to Sell to the Prospective Buyer, at a per share price no greater than the
per share price set forth in the Tag Along Notice and on other principal
terms and conditions which are not materially more favorable to the Tag
Along Sellers than those set forth in the Tag Along Notice, without any
further obligation to such non-accepting Tag Along Holder pursuant to this
Section 4.1.
4.1.3. Irrevocable Offer. The offer of each Participating Seller
contained in such holder's Tag Along Offer shall be irrevocable, and, to
the extent such offer is accepted, such Participating Seller shall be
bound and obligated to Sell in the proposed Sale on the same terms and
conditions, with respect to each Share Sold (subject to Section 4.3.4 in
the case of Options, Warrants and Convertible Securities), as the
Prospective Selling Stockholder, up to such number of Vested Shares as
such Participating Seller shall have specified in such holder's Tag Along
Offer; provided, however, that if the principal terms of the proposed Sale
change with the result that the per share price shall be less than the per
share price set forth in the Tag Along Notice or the other principal terms
and conditions shall be materially less favorable to the Tag Along Sellers
than those set forth in the Tag Along Notice, the Prospective Seller shall
provide written notice thereof to each Participating Seller and each
Participating Seller shall be permitted to withdraw the offer contained in
such holder's Tag Along Offer by written notice to the Prospective Selling
Stockholder and upon such withdrawal shall be released from such holder's
obligations thereunder.
4.1.4. Reduction of Shares Sold. The Prospective Selling Stockholder
shall attempt to obtain the inclusion in the proposed Sale of the entire
number of Vested Shares which each of the Tag Along Sellers requested to
have included in the Sale (as evidenced in the case of the Prospective
Selling Stockholder by the Tag Along Notice and in the case of each
Participating Seller by such Participating Seller's Tag Along Offer). In
the event the Prospective Selling Stockholder shall be unable to obtain
the inclusion of such entire number of Vested Shares in the proposed Sale,
the number of Vested Shares to be sold in the proposed Sale shall be
allocated among the Tag Along Sellers in proportion, as nearly as
practicable, as follows:
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(a) there shall be first allocated to each Tag Along Seller a
number of Vested Shares equal to the lesser of (A) the number of
Vested Shares offered (or proposed, in the case of the Prospective
Selling Stockholder) to be included by such Tag Along Seller in the
proposed Sale pursuant to this Section 4.1, and (B) a number of
Vested Shares equal to such Tag Along Seller's Pro Rata Portion; and
(b) the balance, if any, not allocated pursuant to clause (a)
above shall be allocated to the Prospective Selling Stockholder, or
in such other manner as the Prospective Selling Stockholder may
otherwise agree (it being understood that no Tag Along Seller will
be obligated to sell more Vested Shares than it offered to sell in
the proposed Sale).
4.1.5. Additional Compliance. If prior to consummation, the terms of
the proposed Sale shall change with the result that the per share price to
be paid in such proposed Sale shall be greater than the per share price
set forth in the Tag Along Notice or the other principal terms of such
proposed Sale shall be materially more favorable to the Tag Along Sellers
than those set forth in the Tag Along Notice, the Tag Along Notice shall
be null and void, and it shall be necessary for a separate Tag Along
Notice to be furnished, and the terms and provisions of this Section 4.1
separately complied with, in order to consummate such proposed Sale
pursuant to this Section 4.1; provided, however, that in the case of such
a separate Tag Along Notice, the applicable period to which reference is
made in Sections 4.1.1 and 4.1.2 shall be three business days and two
business days, respectively. In addition, if the Prospective Selling
Stockholders have not completed the proposed Sale by the end of the 180th
day after the date of delivery of: (i) if the proposed Transfer is also
the subject of a currently effective Sale Notice under Section 4.4, such
Sale Notice, and (ii) otherwise, the Tag Along Notice, each Participating
Seller shall be released from such holder's obligations under such
holder's Tag Along Offer, the Tag Along Notice shall be null and void, and
it shall be necessary for a separate Tag Along Notice to be furnished, and
the terms and provisions of this Section 4.1 separately complied with, in
order to consummate such proposed Sale pursuant to this Section 4.1,
unless the failure to complete such proposed Sale resulted from any
failure by any Participating Seller to comply with the terms of this
Section 4.
4.2. Drag Along. Each holder of Shares hereby agrees, if requested by the
Requisite Stockholder Majority at any time prior to an Initial Public Offering,
to Sell the same percentage (the "Drag Along Sale Percentage") of each class of
such Shares that is proposed to be sold by the Prospective Selling Stockholders
to a Prospective Buyer in a Change of Control, in the manner and on the terms
set forth in this Section 4.2; provided, however, that this Section 4.2 shall
not apply to a Change of Control if (i) such Prospective Buyer is a member of an
Investor Group or an Affiliate of any such member and (ii) such Change of
Control has not been approved by vote or written consent of the Principal
Investor Majority. For purposes of this Section 4.2, the Class A Common Stock
will be treated as a single class and, subject to Section 4.3.4, all Options and
Warrants will be the same class of Shares for which they may be exercised. All
Shares to be sold pursuant to this Section 4.2 shall be included in determining
whether or not a proposed transaction constitutes a Change of Control.
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4.2.1. Exercise. The Prospective Selling Stockholders shall furnish
a written notice (the "Drag Along Notice") to each other holder of Shares
at least ten business days prior to the consummation of the Change of
Control transaction. The Drag Along Notice shall set forth the principal
terms and conditions of the proposed Sale, including (i) the number and
class of Shares to be acquired from the Prospective Selling Stockholders,
(ii) the Drag Along Sale Percentage for each class, (iii) the per share
consideration to be received in the proposed Sale for each class, (iv) the
name and address of the Prospective Buyer and (v) if known, the proposed
Transfer date. If the Prospective Selling Stockholders consummate the
proposed Sale to which reference is made in the Drag Along Notice, each
other holder of Shares (each, a "Participating Seller," and, together with
the Prospective Selling Stockholders, collectively, the "Drag Along
Sellers") shall: (i) be bound and obligated to Sell the Drag Along Sale
Percentage of such holder's Shares of each class in the proposed Sale on
the same terms and conditions, with respect to each Share Sold (subject to
Section 4.3.4 in the case of Options, Warrants and Convertible Securities)
as the Prospective Selling Stockholders shall Sell each Share in the Sale
(subject to Section 4.3.4 in the case of Options, Warrants and Convertible
Securities and subject to Section 4.3.1 under all circumstances); and (ii)
except as provided in Section 4.3.1, shall receive the same form and
amount of consideration per Share to be received by the Prospective
Selling Stockholders for the corresponding class of Shares (on an as
converted basis, if applicable). Except as provided in Section 4.3.1, if
any holders of Shares of any class are given an option as to the form and
amount of consideration to be received (other than with respect to any
roll-over option given to any or all Management Holders), all holders of
Shares of such class will be given the same option. Unless otherwise
agreed by each Drag Along Seller, any non-cash consideration shall be
allocated among the Drag Along Sellers pro rata based upon the aggregate
amount of consideration to be received by such Drag Along Sellers. If at
the end of the 180th day after the date of delivery of the Drag Along
Notice the Prospective Selling Stockholders have not completed the
proposed Sale, the Drag Along Notice shall be null and void, each
Participating Seller shall be released from such holder's obligation under
the Drag Along Notice and it shall be necessary for a separate Drag Along
Notice to be furnished and the terms and provisions of this Section 4.2
separately complied with, in order to consummate such proposed Sale
pursuant to this Section 4.2. The right of a holder of Unvested Shares to
receive consideration for such Unvested Shares pursuant to this Section
4.2 shall be subject to the vesting and other terms of such Unvested
Shares.
4.3. Miscellaneous. The following provisions shall be applied to any
proposed Sale to which Sections 4.1, 4.2 or 4.4 applies:
4.3.1. Certain Legal Requirements. In the event the consideration to
be paid in exchange for Shares in a proposed Sale pursuant to Section 4.1
or Section 4.2 includes any securities, and the receipt thereof by a
Participating Seller would require under applicable law (a) the
registration or qualification of such securities or of any Person as a
broker or dealer or agent with respect to such securities where such
registration or qualification is not otherwise required for the Sale by
the Prospective Selling Stockholder(s) or (b) the provision to any Tag
Along Seller or Drag Along Seller of any specified information regarding
the Company or any of its subsidiaries, such securities
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or the issuer thereof that is not otherwise required to be provided for
the Sale by the Prospective Selling Stockholder(s), then such
Participating Seller shall not have the right to Sell Shares in such
proposed Sale. In such event, the Prospective Selling Stockholder(s) shall
(i) in the case of a Sale pursuant to Section 4.1, have the right, but not
the obligation, and (ii) in the case of a Sale pursuant to Section 4.2,
have the obligation to cause to be paid to such Participating Seller in
lieu thereof, against surrender of the Shares (in accordance with Section
4.3.6 hereof) which would have otherwise been Sold by such Participating
Seller to the Prospective Buyer in the proposed Sale, an amount in cash
equal to the Fair Market Value of such Shares as of the date such
securities would have been issued in exchange for such Shares.
4.3.2. Further Assurances. Each Participating Seller and First Offer
Purchaser shall take or cause to be taken all such actions as may be
necessary or reasonably desirable in order expeditiously to consummate
each Sale pursuant to Section 4.1, Section 4.2 or Section 4.4 and any
related transactions, including executing, acknowledging and delivering
consents, assignments, waivers and other documents or instruments;
furnishing information and copies of documents; filing applications,
reports, returns, filings and other documents or instruments with
governmental authorities; and otherwise cooperating with the Prospective
Selling Stockholder(s) and the Prospective Buyer; provided, however, that
Participating Sellers shall be obligated to become liable in respect of
any representations, warranties, covenants, indemnities or otherwise to
the Prospective Buyer solely to the extent provided in the immediately
following sentence. Without limiting the generality of the foregoing, each
Participating Seller agrees to execute and deliver such agreements as may
be reasonably specified by the Prospective Selling Stockholder(s) to which
such Prospective Selling Stockholder(s) will also be party, including
agreements to (a) (i) make individual representations, warranties,
covenants and other agreements as to the unencumbered title to its Shares
and the power, authority and legal right to Transfer such Shares and the
absence of any Adverse Claim with respect to such Shares and (ii) be
liable as to such representations, warranties, covenants and other
agreements, in each case to the same extent (on a pro rata basis) as the
Prospective Selling Stockholder(s), and (b) in the case of a Sale pursuant
to Sections 4.1 or 4.2, be liable (whether by purchase price adjustment,
indemnity payments or otherwise) in respect of representations,
warranties, covenants and agreements in respect of the Company and its
subsidiaries; provided, however, that the aggregate amount of liability
described in this clause (b) in connection with any Sale of Shares shall
not exceed the lesser of (i) such Participating Seller's pro rata portion
of any such liability, to be determined in accordance with such
Participating Seller's portion of the aggregate proceeds to all
Participating Sellers and Prospective Selling Stockholder(s) in connection
with such Sale or (ii) the proceeds to such Participating Seller in
connection with such Sale.
4.3.3. Sale Process. The Requisite Stockholder Majority, in the case
of a proposed Sale pursuant to Section 4.2, or the Prospective Selling
Stockholder, in the case of a proposed Sale pursuant to Section 4.1 shall,
in their sole discretion, decide whether or not to pursue, consummate,
postpone or abandon any proposed Sale and the terms and conditions
thereof. No holder of Shares nor any Affiliate of any such holder shall
have any liability to any other holder of Shares or the Company arising
from,
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relating to or in connection with the pursuit, consummation, postponement,
abandonment or terms and conditions of any proposed Sale except to the
extent such holder shall have failed to comply with the provisions of this
Section 4.
4.3.4. Treatment of Options, Warrants and Convertible Securities. If
any Participating Seller shall Sell Options, Warrants or Convertible
Securities in any Sale pursuant to Section 4, such Participating Seller
shall receive in exchange for such Options, Warrants or Convertible
Securities consideration in the amount (if greater than zero) equal to the
purchase price received by the Prospective Selling Stockholder(s) in such
Sale for the number of shares of each class of Stock that would be issued
upon exercise, conversion or exchange of such Options, Warrants or
Convertible Securities less the exercise price, if any, of such Options,
Warrants or Convertible Securities (to the extent exercisable, convertible
or exchangeable at the time of such Sale), subject to reduction for any
tax or other amounts required to be withheld under applicable law.
4.3.5. Expenses. All reasonable costs and expenses incurred by the
Prospective Selling Stockholder(s) or the Company in connection with any
proposed Sale pursuant to Section 4.2, Section 4.1 or Section 4.4 (whether
or not consummated), including all attorneys fees and charges, all
accounting fees and charges and all finders, brokerage or investment
banking fees, charges or commissions, shall be paid by the Company. The
reasonable fees and expenses of a single legal counsel for each Investor
Group representing any or all of the Participating Sellers in connection
with any proposed Sale pursuant to this Section 4 (whether or not
consummated) shall be paid by the Company. Any other costs and expenses
incurred by or on behalf of any or all of the Participating Sellers in
connection with any proposed Sale pursuant to this Section 4 (whether or
not consummated) shall be borne by such Participating Seller(s).
4.3.6. Closing. The closing of a Sale to which Section 4.1, 4.2 or
4.4 applies shall take place (i) on the proposed Transfer date, if any,
specified in the Tag Along Notice, Drag Along Notice or Sale Notice, as
applicable (provided that consummation of any Transfer may be extended
beyond such date to the extent necessary to obtain any applicable
governmental approval or other required approval or to satisfy other
conditions), (ii) if no proposed Transfer date was required to be
specified in the Drag Along Notice, at such time as the Prospective
Selling Stockholders shall specify by notice to each Participating Seller
and (iii) at such place as the Prospective Selling Stockholder(s) shall
specify by notice to each Participating Seller in the case of a Sale to
which Section 4.2 applies. At the closing of such Sale, each Participating
Seller shall deliver the certificates evidencing the Shares to be Sold by
such Participating Seller, duly endorsed, or with stock (or equivalent)
powers duly endorsed, for transfer with signature guaranteed, free and
clear of any liens or encumbrances, with any stock (or equivalent)
transfer tax stamps affixed, against delivery of the applicable
consideration.
4.4. Right of First Offer. If any Prospective Selling Stockholder proposes
to Sell any Shares after the Lock-up Period in respect of such Shares and before
the closing of an Initial Public Offering in a Transfer (including to another
Stockholder or the Company or any of its subsidiaries) that is subject to
Section 3.1.5:
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4.4.1. Notice. The Prospective Selling Stockholder shall furnish a
written notice of such proposed Sale (a "Sale Notice") to each other
holder of Shares (each, a "First Offer Holder") prior to any such proposed
Transfer. The Sale Notice shall include:
(a) (i) the number and class(es) of Shares proposed to be sold
by the Prospective Selling Stockholder (the "Subject Shares"), (ii)
the per share purchase price or the formula by which such price is
to be determined and (iii) the proposed Transfer date, if known; and
(b) an invitation to each First Offer Holder to make an offer
to purchase (subject to Section 4.4.6 below) any number of the
Subject Shares at such price.
4.4.2. Exercise.
(a) Within twenty business days after the date of delivery of
the Sale Notice (the "First Offer Deadline"), each First Offer
Holder may make an offer to purchase any number of the Subject
Shares at the price set forth in the Sale Notice by furnishing a
written notice (the "First Offer Notice") of such offer specifying a
number of Subject Shares offered to be purchased from the
Prospective Selling Stockholder (each such Person delivering such
notice, a "First Offer Purchaser"). The receipt of consideration by
any Prospective Selling Stockholder selling Shares in payment for
the transfer of such Shares pursuant to this Section 4.4.2 shall be
deemed a representation and warranty by such Prospective Selling
Stockholder that: (i) such Prospective Selling Stockholder has full
right, title and interest in and to such Shares; (ii) such
Prospective Selling Stockholder has all necessary power and
authority and has taken all necessary action to sell such Shares as
contemplated by this Section 4.4.2; and (iii) such Shares are free
and clear of any and all liens or encumbrances.
(b) Each Person not furnishing a First Offer Notice that
complies with the above requirements, including the applicable time
periods, shall be deemed to have waived all of such Person's rights
to purchase such Shares under this Section 4.4.2 and the Prospective
Selling Stockholder shall thereafter be free to Sell the Subject
Shares to the First Offer Purchasers and/or any Prospective Buyer,
at a per share purchase price no less than the price set forth in
the Sale Notice, without any further obligation to such Person
pursuant to this Section 4.4.
4.4.3. Irrevocable Offer. The offer of each First Offer Purchaser
contained in a First Offer Notice shall be irrevocable, and, subject to
Section 4.4.6 below, to the extent such offer is accepted, such First
Offer Purchaser shall be bound and obligated to purchase the number of
Subject Shares set forth in such First Offer Purchaser's First Offer
Notice.
4.4.4. Acceptance of Offers. Within five business days after the
First Offer Deadline, the Prospective Selling Stockholder shall inform
each First Offer Purchaser, by written notice (the "Acceptance Notice"),
of whether or not the Prospective Selling Stockholder will accept all (but
not less than all) offers of the First Offer Purchasers. In
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the event the Prospective Selling Stockholder fails to furnish the
Acceptance Notice within the specified time period, the Prospective
Selling Stockholder shall be deemed to have decided not to Sell the
Subject Shares to the First Offer Purchasers. If the Prospective Selling
Stockholder decides not to Sell the Subject Shares to the First Offer
Purchasers, each First Offer Purchaser shall be released from such
holder's obligations under such holder's irrevocable offer. Acceptance of
such offers by the Prospective Selling Stockholder is without prejudice to
the Prospective Selling Stockholder's discretion under Section 4.3.3 to
determine whether or not to consummate any Sale.
4.4.5. Additional Compliance. If at the end of the 180th day after
the date of delivery of the Sale Notice, the Prospective Selling
Stockholder and First Offer Purchasers or Prospective Buyer (if not a
First Offer Purchaser), if any, have not completed the Sale of the Subject
Shares (other than due to the failure of any First Offer Purchaser to
perform its obligations under this Section 4.4), each First Offer
Purchaser shall be released from such holder's obligations under such
holder's irrevocable offer, the Sale Notice shall be null and void, and it
shall be necessary for a separate Sale Notice to be furnished, and the
terms and provisions of this Section 4.4 separately complied with, in
order to consummate a Transfer of such Subject Shares; provided, however,
that in the case of such a separate Sale Notice in which the classes of
Subject Shares and the per share price are unchanged and the number of
Subject Shares is substantially the same, the applicable period to which
reference is made in Section 4.4.1 and 4.4.2.1 shall be three business
days and two business days, respectively.
4.4.6. Determination of the Number of Subject Shares to be Sold.
(a) In the event that the number of Shares offered to be
purchased by the First Offer Purchasers is less than the number of
Subject Shares, (i) the Prospective Selling Stockholder may accept
the offers of the First Offer Purchasers and, at the option of the
Prospective Selling Stockholder, sell any remaining Subject Shares
which the First Offer Purchasers did not elect to purchase to one or
more Prospective Buyers at a price per share that is no less than
the price set forth in the Sale Notice or (ii) if a single
Prospective Buyer or group of Prospective Buyers is unwilling to
purchase less than all of the Subject Shares, the Prospective
Selling Stockholder may Sell all (but not less than all) of the
Subject Shares to such Prospective Buyer or group of Prospective
Buyers at a price per share that is no less than the price set forth
in the Sale Notice rather than Sell the Subject Shares to the First
Offer Purchasers. Such sales, if any, to Prospective Buyer(s) other
than the First Offer Purchasers in accordance with clause (a) above
shall be consummated together with the sale to the First Offer
Purchasers.
(b) In the event that the Prospective Selling Stockholder has
accepted the offers of the First Offer Purchasers and the aggregate
number of Subject Shares offered to be purchased by (and to be sold
to) the First Offer Purchasers is equal to or exceeds the aggregate
number of Subject Shares, the Subject Shares shall be sold to the
First Offer Purchasers as follows:
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(i) there shall be first allocated to each First Offer
Purchaser a number of Shares of each applicable class equal to
the lesser of (A) the number of Shares of such class offered
to be purchased by such First Offer Purchaser pursuant such
holder's First Offer Notice, and (B) a number of Shares of
such class equal to such First Offer Purchaser's Pro Rata
Portion; and
(ii) the balance, if any, not allocated pursuant to
clause (i) above shall be allocated to those First Offer
Purchasers which offered to purchase a number of Shares of the
applicable class in excess of such Person's Pro Rata Portion
pro rata to each such First Offer Purchaser based upon the
amount of such excess, or in such other manner as the First
Offer Purchasers may otherwise agree.
In the event any holders of Shares exercise such holders' rights under
Section 4.1 to sell Shares in connection with a Sale to First Offer Purchasers
pursuant to this Section 4.4, such Shares (as the case may be, reduced in
accordance with Section 4.1.5) shall be deemed to be Subject Shares for purposes
of this Section 4.4 and shall be allocated among the First Offer Purchasers in
accordance with this Section 4.4.6.
4.5. Period. The provisions of Section 4 shall expire as to any Share on
the earlier of (a) a Change of Control or (b) the Initial Public Offering.
5. HOLDER LOCK-UP.
In connection with each underwritten Public Offering each Stockholder
hereby agrees to be bound by and, if requested, to execute and deliver such
lock-up agreement with the underwriter(s) of such Public Offering restricting
such Stockholder's right to (a) Transfer, directly or indirectly, any shares of
Common Stock or any securities convertible into or exercisable or exchangeable
for such Common Stock or (b) enter into any swap or other arrangement that
transfers to another any of the economic consequences of ownership of Common
Stock, in each case to the extent that such restrictions are agreed to by a
majority of the Investor Groups with the underwriter(s) of such Public Offering
(the "Principal Lock-Up Agreement"); provided, however, that no Stockholder
shall be required by this Section 5 to be bound by a lock-up agreement covering
a period of greater than 90 days (180 days in the case of the Initial Public
Offering) following the effectiveness of the related registration statement;
provided, further, that after the closing of the Initial Public Offering, and so
long as there is no more than one Investor Group, no Stockholder shall be
required by this Section 5 to be bound by a lock-up agreement unless Investors
holding a majority of Shares held by all Investors agree to be bound by such
lock-up agreement. Notwithstanding the foregoing, such lock-up agreement shall
not apply to (i) transactions relating to shares of Common Stock or other
securities acquired in (a) open market transactions or block purchases after the
completion of the Initial Public Offering or (b) a Public Offering, (ii)
Transfers to Permitted Transferees of such Stockholder in accordance with the
terms of this Agreement, (iii) conversions of shares of Stock into other classes
of Stock without change of holder and (iv) during the period preceding the
execution of the underwriting agreement, Transfers to a Charitable Organization
in accordance with the terms of this Agreement.
-14-
6. CALL OPTION.
6.1. Call Option.
6.1.1. Call Option Upon Termination. Upon the termination of
employment by the Company and any of its subsidiaries of any Manager, the
Company and the Investor Groups shall have the right to purchase all or
any portion of the Management Shares that are owned by such Manager or
associated with such Manager, regardless of who then owns such Shares. For
this purpose, (i) all Management Shares that are Transferred by the holder
thereof to a Permitted Transferee of such holder shall continue to be
associated with the Manager with whom they were associated prior to such
Transfer and (ii) all Management Shares that are issued directly to a
Manager Designee will be associated with the Manager that requested that
such Management Shares be issued to such Manager Designee. The purchase
price per Share for each such Share that is a Vested Roll-Over Share or
Vested Incentive Share (determined as of the date of termination) shall be
equal to Fair Market Value of such Share. The purchase price per Share for
each such Share that is an Unvested Roll-Over Share or Unvested Incentive
Share (determined as of the date of termination) shall be equal to the
lower of Cost or Fair Market Value of such Share.
6.1.2. Payment. Subject to the provisions of 6.2, in each case
Shares are purchased pursuant to Section 6.1, the Company may pay for such
Shares in its sole discretion (x) in cash or (y) by the issuance of a
promissory note in a principal amount equal to the purchase price for such
Shares. Interest will accrue at the mid-term applicable federal rate on
the principal of such note, and, subject to 6.2, such note will be due and
payable in four equal annual installments payable on, the first, second,
third and fourth anniversaries of the termination of employment of such
Manager with the Company and any of its subsidiaries.
6.2. Cash Payments. To the extent that (i)(a) any payment of cash
required under the terms of Section 6.1 or any payment on a promissory
note issued under this Section 6 or (b) a distribution to the Company from
any of its subsidiaries in an amount equal to the amount of cash required
to be paid under the terms of Section 6 or the amount of any payment on a
promissory note issued under Section 6 would, in any event, constitute,
result in or give rise to a breach or violation of, or any default or
right or cause of action under any agreement of the Company or any of its
subsidiaries in respect of indebtedness for borrowed money, or (ii) the
Board in good faith determines that it is in the Company's interest to
issue a promissory note in lieu of making such cash payment then,
(a) in the case of a cash payment to be made at the closing of
the purchase of Shares under Section 6.1, the Company will instead
issue a promissory note in the principal amount of such cash
payment. Interest will accrue on the principal of such note at a
rate equal to the mid-term applicable federal rate on the date of
issuance of such note and the principal of such note, together with
the interest thereon, will become due and payable from time to time
to the extent that (i) the payment thereof, and a distribution to
the Company by any of its subsidiaries to
-15-
provide funds for the payment thereof, can be made without violating
any such agreement and (ii) the Board in good faith determines that
it is in the Company's interest to make such payment; and
(b) in the case of a cash payment in respect of a promissory
note issued under this Section 6, notwithstanding any of the
provisions of such note (including without limitation the stated due
date on which principal or interest payments are due) except the
Final Maturity Date (as defined below) of such note, such payment
will not become due and payable until (i) such time as the payment
thereof, and a distribution to the Company by any of its
subsidiaries to provide funds for the payment thereof, can be made
without violating any such agreement and (ii) the Board in good
faith determines that it is in the Company's interest to make such
payment.
6.3. Prepayments. Any promissory note issued under this Section 6 may be
prepaid in whole or in part at any time and from time to time without premium or
penalty.
6.4. Final Maturity Date. The "Final Maturity Date" of each promissory
note issued under this Section 6.1 shall be the fifth anniversary of the date of
issuance.
6.5. Notices, etc. Any right described in this Section 6 may be exercised
by delivery of written notice thereof (the "Option Notice") from the Company to
the relevant Manager or Manager Designee or such Person's estate after the date
of the termination of such Manager's employment. The Option Notice shall state
that the Company has elected to exercise such right, and the number of Shares
with respect to which the right is being exercised.
6.6. Closing. The closing of any purchase and sale of Shares pursuant to
the exercise of any right granted pursuant to this Section 6 shall take place as
soon as reasonably practicable and in no event later than 30 days after the
election by the Company to repurchase such Shares at the principal office of the
Company, or at such other time and location as the parties to such purchase may
mutually determine. In the event the price of any Shares to be purchased is
specified to be Fair Market Value, such Fair Market Value shall be determined as
of the date on which such Manager's employment is terminated if the Company
elects to repurchase such Shares within 180 days after the termination of such
Manager's employment and, thereafter, Fair Market Value shall be determined as
of the date the Company elects to purchase such Shares. At the closing of any
purchase and sale of Shares pursuant this Section 6, the Company shall pay to
the holder of such Shares the purchase price therefor by certified or bank check
or wire transfer of immediately available federal funds and/or delivery to such
holder of a note, as may be applicable, pursuant to this Section 6. The receipt
of consideration by any Person selling Shares in payment for the transfer of
such Shares pursuant to this Section 6 shall be deemed a representation and
warranty by such Person that: (i) such Person has full right, title and interest
in and to such Shares; (ii) such Person has all necessary power and authority
and has taken all necessary action to sell such Shares as contemplated by this
Section 6; and (iii) such Shares are free and clear of any and all liens or
encumbrances.
6.7. Investor Group Call Option. If the Company shall elect not to
purchase pursuant to 6.1 any or all Management Shares that are associated with a
Manager whose employment has
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terminated or owned by such Manager, the Company shall notify each Investor
Group and each Investor Group may purchase its pro rata portion of the remaining
Shares for the purchase price identified in Section 6.1. In the event any
Investor Group agrees to forego its full pro rata share of any Management Shares
that are associated with a Manager whose employment has terminated or owned by
such Manager, the remainder shall be re-allocated pro rata among the other
Investor Groups (unless the Investor Groups otherwise agree); provided, that the
participating Investor Groups shall deliver an Option Notice stating that the
relevant Investor Groups have elected to exercise such right and the number of
Shares with respect to which the right is being exercised; provided, further,
that each participating Investor Group will pay for its portion of such
remaining Shares in cash at a closing as the parties may mutually determine and
otherwise in accordance with Section 6.6.
6.8. Period. This Section 6 shall terminate with respect to any Share on
the later of (a) the closing of an Initial Public Offering or (b) the date such
Share becomes a Vested Share.
7. REMEDIES.
7.1. Generally. The parties shall have all remedies available at law, in
equity or otherwise in the event of any breach or violation of this Agreement or
any default hereunder. The parties acknowledge and agree that in the event of
any breach of this Agreement, in addition to any other remedies which may be
available, each of the parties hereto shall be entitled to specific performance
of the obligations of the other parties hereto and, in addition, to such other
equitable remedies (including preliminary or temporary relief) as may be
appropriate in the circumstances.
7.2. Deposit. Without limiting the generality of Section 7.1, if any
holder of Shares fails to deliver to the purchaser thereof the certificate or
certificates evidencing Shares to be Sold pursuant to Section 4 or Section 6,
such purchaser may, at its option, in addition to all other remedies it may
have, deposit the purchase price for such Shares with any national bank or trust
company having combined capital, surplus and undivided profits in excess of One
Hundred Million Dollars ($100,000,000) (the "Escrow Agent") and the Company or
Midco, as the case may be, shall cancel on its books the certificate or
certificates representing such Shares and thereupon all of such holder's rights
in and to such Shares shall terminate. Thereafter, upon delivery to such
purchaser by such holder of the certificate or certificates evidencing such
Shares (duly endorsed, or with stock powers duly endorsed, for transfer, with
signature guaranteed, free and clear of any liens or encumbrances, and with any
transfer tax stamps affixed), such purchaser shall instruct the Escrow Agent to
deliver the purchase price (without any interest from the date of the closing to
the date of such delivery, any such interest to accrue to such purchaser) to
such holder.
8. LEGENDS.
8.1. Restrictive Legend. Each certificate representing Shares shall have
the following legend endorsed conspicuously thereupon:
"THE VOTING OF THE SHARES OF STOCK
REPRESENTED BY THIS CERTIFICATE, AND THE
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SALE, ENCUMBRANCE OR OTHER DISPOSITION
THEREOF, ARE SUBJECT TO THE PROVISIONS OF A
STOCKHOLDERS AGREEMENT TO WHICH THE
ISSUER AND CERTAIN OF ITS STOCKHOLDERS ARE
PARTY, A COPY OF WHICH MAY BE INSPECTED AT
THE PRINCIPAL OFFICE OF THE ISSUER OR
OBTAINED FROM THE ISSUER WITHOUT CHARGE."
Any Person who acquires Shares which are not subject to all or part
of the terms of this Agreement shall have the right to have such legend (or the
applicable portion thereof) removed from certificates representing such Shares.
8.2. 1933 Act Legends. Each certificate representing Shares shall have the
following legend endorsed conspicuously thereupon:
"THE SECURITIES REPRESENTED BY THIS
CERTIFICATE WERE ISSUED IN A PRIVATE
PLACEMENT, WITHOUT REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
AND MAY NOT BE SOLD, ASSIGNED, PLEDGED OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION UNDER THE ACT
COVERING THE TRANSFER OR AN OPINION OF
COUNSEL, SATISFACTORY TO THE ISSUER, THAT
REGISTRATION UNDER THE ACT IS NOT REQUIRED"
8.3. Stop Transfer Instruction. The Company or Midco will instruct any
transfer agent not to register the Transfer of any Shares until the conditions
specified in the foregoing legends and this Agreement are satisfied.
8.4. Termination of 1933 Act Legend. The requirement imposed by Section
8.2 hereof shall cease and terminate as to any particular Shares (a) when, in
the opinion of counsel reasonably acceptable to the Company, such legend is no
longer required in order to assure compliance by the Company and Midco with the
Securities Act or (b) when such Shares have been effectively registered under
the Securities Act or transferred pursuant to Rule 144. Wherever (x) such
requirement shall cease and terminate as to any Shares or (y) such Shares shall
be transferable under paragraph (k) of Rule 144, the holder thereof shall be
entitled to receive from the Company or Midco, as the case may be, without
expense, new certificates not bearing the legend set forth in Section 8.2
hereof.
9. AMENDMENT, TERMINATION, ETC.
9.1. Oral Modifications. This Agreement may not be orally amended,
modified, extended or terminated, nor shall any oral waiver of any of its terms
be effective.
9.2. Written Modifications. This Agreement may be amended, modified,
extended or terminated, and the provisions hereof may be waived, only by an
agreement in writing signed by the Company, Midco and the Requisite Stockholder
Majority; provided, however, that the
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consent of a majority in interest of the Management Shares shall be required for
any amendment, modification, extension, termination or waiver (an "Amendment")
that discriminates against the rights of the holders of Management Shares as
such under this Agreement (provided, that it is understood and agreed that, for
the purposes of interpreting and enforcing this amendment and waiver provision,
Amendments that affect all Stockholders will not be deemed to "discriminate
against" the holders of Management Shares as such simply because holders of
Management Shares (i) own or hold more or less Shares than any other
Stockholders, (ii) invested more or less money in the Company than any other
Stockholders or (iii) have greater or lesser voting rights or powers than any
other Stockholders).
Each such Amendment shall be binding upon each party hereto and each holder of
Shares subject hereto. In addition, each party hereto and each holder of Shares
subject hereto may waive any right hereunder by an instrument in writing signed
by such party or holder. To the extent the Amendment of any Section of this
Agreement would require a specific consent pursuant this Section 9.2, any
Amendment to the definitions used in such Section shall also require the
specified consent.
9.3. Withdrawal from Agreement. At any time following the Initial Public
Offering, any holder of Vested Shares that, together with its Affiliates, holds
less than five percent (5%) of the then outstanding shares of Common Stock may
elect (on behalf of itself and all of its Affiliates that hold Shares), by
written notice to the Company and the Investors, to (i) withdraw all Vested
Shares held by such holder and all of its Affiliates from this Agreement (shares
withdrawn pursuant to this clause (i) and clause (i) of the proviso below,
collectively, the "Withdrawn Shares") and (ii) terminate this Agreement with
respect to any of such holder and its Affiliates that do not own any Unvested
Shares (holders and Affiliates withdrawing pursuant to this clause (ii) and
clause (ii) of the proviso below, collectively, the "Withdrawing Holders");
provided, that the Designated Investor(s) designated by an Investor Group may
elect, by written notice to the Company and the Investors, to (i) withdraw
Vested Shares in an amount equal to no more than $7 million in Purchase Price
Value from this Agreement and (ii) terminate this Agreement with respect to any
such Designated Investor that does not own any other Shares. From the date of
delivery of such withdrawal notice, the Withdrawn Shares shall cease to be
Shares subject to this Agreement and, if applicable, the Withdrawing Holders
shall cease to be parties to this Agreement and shall no longer be subject to
the obligations of this Agreement or have rights under this Agreement; provided,
however, that such Withdrawing Holders, if they constitute an Investor Group,
shall comply with such Investor Group's obligations under Section 4.5.6 of the
Company's certificate of incorporation to cause the removal or resignation of
any directors designated by such Investor Group; provided, further, that the
Withdrawing Holders shall nonetheless be obligated under Section 5 with respect
to any Pending Underwritten Offering to the same extent that they would have
been obligated if they had not withdrawn; provided, further, that if the
Withdrawing Holders hold shares of Class A-1 Common Stock, Class A-2 Common
Stock or Class A-3 Common Stock, they shall be deemed to have elected to convert
all such Shares into Class A-4 Common Stock at the effective time of such
withdrawal.
9.4. Effect of Termination. No termination under this Agreement (including
pursuant to Section 9.3) shall relieve any Person of liability for breach prior
to termination.
10. DEFINITIONS. For purposes of this Agreement:
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10.1. Certain Matters of Construction. In addition to the definitions
referred to or set forth below in this Section 10:
(a) The words "hereof', "herein", "hereunder" and words of similar
import shall refer to this Agreement as a whole and not to any particular
Section or provision of this Agreement, and reference to a particular
Section of this Agreement shall include all subsections thereof;
(b) The word "including" shall mean including, without limitation;
(c) Definitions shall be equally applicable to both nouns and verbs
and the singular and plural forms of the terms defined; and
(d) The masculine, feminine and neuter genders shall each include
the other.
10.2. Definitions. The following terms shall have the following meanings:
"Acceptance Notice" shall have the meaning set forth in Section 4.4.4.
"Acquisition" shall have the meaning set forth in the Recitals.
"AcquisitionCo" shall have the meaning set forth in the Preamble.
"Acquisition Agreement" shall have the meaning set forth in the Recitals.
"Adverse Claim" shall have the meaning set forth in Section 8-102 of the
applicable Uniform Commercial Code.
"Affiliate" shall mean, with respect to any specified Person, (a) any
other Person which directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, such specified
Person (for the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling," "controlled by" and "under common
control with"), as used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise); provided, however, that neither the
Company nor any of its subsidiaries shall be deemed an Affiliate of any of the
Stockholders (and vice versa), (b) if such specified Person is an investment
fund, any other investment fund the primary investment advisor to which is the
primary investment advisor to such specified Person or an Affiliate thereof and
(c) if such specified Person is a natural Person, any Family Member of such
natural Person. Notwithstanding the foregoing, for all purposes of this
Agreement, Integral Capital Partners VI, L.P. and its Affiliates will be
considered Affiliates of Silver Lake Partners, L.P., Silver Lake Investors, L.P.
and Silver Lake Technology Investors, L.L.C. and their respective Affiliates.
"Affiliated Fund" shall mean, with respect to any specified Person, an
investment fund that is an Affiliate of such Person or that is advised by the
same investment adviser as such Person or by an Affiliate of such investment
adviser.
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"Agreement" shall have the meaning set forth in the Preamble.
"Amendment" shall have the meaning set forth in Section 9.2.
"Bain Investors" shall mean, as of any date, ▇▇▇▇ Capital Integral
Investors, LLC, ▇▇▇▇ Capital VII Coinvestment Fund, LLC and BCIP TCV, LLC, and
their respective Permitted Transferees, in each case only if such Person is then
a Stockholder and holds any Shares.
"Board" shall mean the board of directors of the Company.
"business day" shall mean any day that is not a Saturday, a Sunday or
other day on which banks are required or authorized by law to be closed in the
City of New York.
"Cause" shall mean, with respect to any Manager, the following events or
conditions, as determined by the Board in its reasonable judgment: (i) the
refusal or failure to perform (other than by reason of disability), or material
negligence in the performance of such employee's duties and responsibilities to
the Company or any of its Affiliates, or refusal or failure to follow or carry
out any reasonable direction of the Board, and the continuance of such refusal,
failure or negligence for a period of ten days after notice to such Manager;
(ii) the material breach by such Manager of any provision of any material
agreement between such employee and the Company or any of its Affiliates; (iii)
fraud, embezzlement, theft or other dishonesty by such Manager with respect to
the Company or any of its Affiliates; (iv) the conviction of, or a plea of nolo
contendere by, such Manager to any felony or any other crime involving
dishonesty or moral turpitude; and (v) any other conduct that involves a breach
of fiduciary obligation on the part of such Manager or otherwise could
reasonably be expected to have a material adverse effect upon the business,
interests or reputation of the Company or any of its Affiliates.
"Change of Control" shall mean the occurrence of (a) any consolidation or
merger of the Company with or into any other corporation or other Person, or any
other corporate reorganization or transaction (including the acquisition of
capital stock of the Company), whether or not the Company is a party thereto, in
which the stockholders of the Company immediately prior to such consolidation,
merger, reorganization or transaction, own capital stock either (i) representing
directly, or indirectly through one or more entities, less than fifty percent
(50%) of the economic interests in or voting power of the Company or other
surviving entity immediately after such consolidation, merger, reorganization or
transaction or (ii) that does not directly, or indirectly through one or more
entities, have the power to elect a majority of the entire board of directors of
the Company or other surviving entity immediately after such consolidation,
merger, reorganization or transaction, (b) any transaction or series of related
transactions, whether or not the Company is a party thereto, after giving effect
to which in excess of fifty percent (50%) of the Company's voting power is owned
directly, or indirectly through one or more entities, by any Person and its
"affiliates" or "associates" (as such terms are defined in the rules adopted by
the Commission under the Exchange Act), other than the Investors and their
respective Affiliated Funds, excluding, in any case referred to in clause (a) or
(b) any Initial Public Offering or any bona fide primary or secondary public
offering following the occurrence of an Initial Public Offering; or (c) a sale,
lease or other disposition of all or substantially all of the assets of the
Company.
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"Charitable Organization" shall mean a charitable organization as
described by Section 501(c)(3) of the Internal Revenue Code of 1986, as in
effect from time to time.
"Class A Stock" shall mean the Class A Common Stock, par value $.001 per
share, of the Company, which is comprised of Class A-1 Common Stock, Class A-2
Common Stock, Class A-3 Common Stock and Class A-4 Common Stock.
"Class L Stock" shall mean the Class L Common Stock, par value $.001 per
share, of the Company.
"Closing" shall have the meaning set forth in Section 1.1.
"Commission" shall mean the Securities and Exchange Commission.
"Common Stock" shall mean the common stock of the Company, including the
Class A Stock and the Class L Stock.
"Company" shall have the meaning set forth in the Preamble.
"Company Call Right" shall mean the right of the Company pursuant to
Section 6 to purchase all or any portion of the Management Shares of any Manager
upon termination of such Manager's employment.
"Company Shares" shall mean Shares in respect of capital stock of the
Company.
"Convertible Securities" shall mean any evidence of indebtedness, shares
of stock (other than Stock) or other securities (other than Options and
Warrants) which are directly or indirectly convertible into or exchangeable or
exercisable for shares of Stock.
"Cost" shall mean with respect to any Management Shares, the purchase
price paid for such Management Shares by the original holder thereof less any
distributions received with respect to such Management Shares; provided, that
the Cost of (i) unvested shares of capital stock shall equal the purchase price
paid for such shares, if any, and (ii) unvested options shall equal zero; and
provided, further, that any unvested consideration included in the purchase
price for any Shares shall equal zero.
"Designated Investor" shall mean any Investor in any Investor Group that
has been designated by such Investor Group as one of such Investor Group's
Designated Investors.
"Drag Along Notice" shall have the meaning set forth in Section 4.2.1.
"Drag Along Sale Percentage" shall have the meaning set forth in Section
4.2.
"Drag Along Sellers" shall have the meaning set forth in Section 4.2.1.
"Equivalent Shares" shall mean, at any date of determination, (a) as to
any outstanding shares of Stock, such number of shares of Stock and (b) as to
any outstanding Options, Warrants or Convertible Securities which constitute
Shares, the maximum number of shares of Stock for
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which or into which such Options, Warrants or Convertible Securities may at the
time be exercised, converted or exchanged (or which will become exercisable,
convertible or exchangeable on or prior to, or by reason of, the transaction or
circumstance in connection with which the number of Equivalent Shares is to be
determined).
"Escrow Agent" shall have the meaning set forth in Section 7.2.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as in
effect from time to time.
"Fair Market Value" shall mean, as of any date, as to any Share, the
Board's good faith determination of the fair value of such Share as of the
applicable reference date.
"Family Member" shall mean, with respect to any natural Person, (i) any
lineal descendant or ancestor or sibling (by birth or adoption) of such natural
Person, (ii) any spouse or former spouse of any of the foregoing, (iii) any
legal representative or estate of any of the foregoing, (iv) any trust
maintained for the benefit of the foregoing and (v) any corporation, private
charitable foundation or other organization controlled by the foregoing.
"First Offer Deadline" shall have the meaning set forth in Section
4.4.2.1.
"First Offer Holder" shall have the meaning set forth in Section 4.4.1.
"First Offer Notice" shall have the meaning set forth in Section 4.4.2.1.
"First Offer Purchaser" shall have the meaning set forth in Section
4.4.2.1.
"Final Maturity Date" shall have the meaning set forth in Section 6.1.5.
"Holdings" shall have the meaning set forth in the Preamble.
"Incentive Shares" shall mean all shares of Stock and Options held by a
Manager or Manager Designee that are not Purchased and Roll-Over Shares,
treating such Options as a number of Incentive Shares equal to the maximum
number of shares of Stock for which such Options may at the time be exercised.
"Initial Public Offering" shall mean the initial Public Offering
registered on Form S-1 (or any successor form under the Securities Act).
"Investor Group" shall mean any one of (a) the Bain Investors,
collectively, (b) the Silver Lake Investors, collectively and (c) the Warburg
Pincus Investors, collectively. Where this Agreement provides for the vote,
consent or approval of any Investor Group, such vote, consent or approval shall
be determined by the Majority Bain Investors, the Majority Silver Lake Investors
or the Majority Warburg Pincus Investors, as the case may be, except as
otherwise specifically set forth herein; provided, however, that any such
Investor Group shall cease to be a Investor Group at such time after the
Closing, and at all times thereafter, as (i) such Investor Group ceases to hold
Shares representing a Total Combined Investment (as
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defined in the Company's certificate of incorporation) of at least the Minimum
Total Combined Investment (as defined in the Company's certificate of
incorporation) or (ii) such Investor Group ceases to hold Shares representing a
Director Share Amount of at least the Minimum Director Share Amount (as defined
in the Company's certificate of incorporation); provided that no adjustment
pursuant to the Company's certificate of incorporation to the "Minimum Total
Combined Investment" or the "Minimum Director Share Amount" shall cause any
former Investor Group to again become an Investor Group.
"Investors" shall have the meaning set forth in the Preamble.
"Lock-Up Period" shall mean the period commencing from the effective date
hereof and continuing through the earlier to occur of (a) the five year
anniversary of the date of the Closing and (b) the closing of the Initial Public
Offering; provided, that the Lock-Up Period with respect to Shares held by
Managers will not terminate until the closing of the Initial Public Offering.
"Majority Bain Investors" shall mean, as of any date, the holders of a
Majority in Interest of the Shares held by the Bain Investors.
"Majority in Interest" shall mean, (a) with respect to a set of Shares of
a single class, a majority of such Shares and (b) with respect to a set of
Shares of more than one class, a majority in aggregate Purchase Price Value of
such Shares.
"Majority Silver Lake Investors" shall mean, as of any date, the holders
of a Majority in Interest of the Shares held by the Silver Lake Investors.
"Majority Warburg Pincus Investors" shall mean, as of any date, the
holders of a Majority in Interest of the Shares held by the Warburg Pincus
Investors.
"Management Shares" shall mean all Shares held by a Manager or Manager
Designee, including (a) all Purchased and Roll-Over Shares and (b) all Incentive
Shares held by such Manager or Manager Designee. Any Management Shares that are
Transferred by the holder thereof to such holder's Permitted Transferees shall
remain Management Shares in the hands of such Permitted Transferee.
"Managers" shall have the meaning set forth in the Preamble.
"Midco" shall have the meaning set forth in the Preamble.
"OpCo" shall have the meaning set forth in the Recitals.
"Option Exercise Period" shall have the meaning set forth in Section
6.1.6.
"Option Notice" shall have the meaning set forth in Section 6.1.6.
"Options" shall mean any options to subscribe for, purchase or otherwise
directly acquire Stock, other than any such option held by the Company or Midco
or any right to purchase shares pursuant to this Agreement.
"Participating Seller" shall have the meaning set forth in Section 4.1.2
and 4.2.1.
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"Pending Underwritten Offering" means, with respect to any Withdrawing
Holder withdrawing from this Agreement pursuant to Section 9.3, any underwritten
Public Offering for which a registration statement relating thereto is or has
been filed with the Commission either prior to, or not later than the sixtieth
day after, the effectiveness of such Withdrawing Holder's withdrawal from this
Agreement.
"Permitted Transferee" shall mean, in respect of any Investor, any
Affiliated Fund of such Investor, and, in respect of any Manager or Manager
Designee, any Family Member of such Manager or Manager Designee, in each case to
the extent such Person agrees to be bound by the terms of this Agreement in
accordance with Section 3.2. In addition, any Stockholder shall be a Permitted
Transferee of the Permitted Transferees of itself.
"Person" shall mean any individual, partnership, corporation, company,
association, trust, joint venture, limited liability company, unincorporated
organization, entity or division, or any government, governmental department or
agency or political subdivision thereof.
"Preferred Stock" shall mean the 10% Cumulative Preferred Stock, par value
$.001 per share, of Midco.
"Principal Investor Majority" shall mean, with respect to a transaction
between the Company or one of its subsidiaries on the one hand and an Investor
or one of its Affiliates on the other (a "Related Affiliate"), (i) a majority of
Investor Groups that are not and whose Affiliates are not a Related Affiliate,
or (ii) if there is no unaffiliated Investor Group, a majority vote of all Class
A-1 Common Stock, Class A-2 Common Stock and Class A-3 Common Stock (voting as a
single class) held by all Investors that are not and whose Affiliates are not a
Related Affiliate.
"Principal Lock-Up Agreement" shall have the meaning set forth in Section
5.
"Pro Rata Portion" shall mean:
(a) for purposes of Section 4.1.4, with respect to each Tag
Along Seller, a number of Shares equal to the aggregate number of
Shares that the Prospective Buyer is willing to purchase in the
proposed Sale, multiplied by a fraction, the numerator of which is
the aggregate number of Vested Shares of the applicable class held
by such Tag Along Seller and the denominator of which is the
aggregate number of Vested Shares of the applicable class held by
all Tag Along Sellers; and
(b) for purposes of Section 4.4.6, with respect to each First
Offer Purchaser, a number of Shares equal to the aggregate number of
Subject Shares of the applicable class multiplied by a fraction, the
numerator of which is the aggregate number of Shares of the
applicable class held by such First Offer Purchaser and the
denominator of which is the aggregate number of Shares of the
applicable class held by all First Offer Purchasers.
"Prospective Buyer" shall mean any Person, including the Company or any of
its subsidiaries, proposing to purchase or otherwise acquire shares from a
Prospective Selling Stockholder.
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"Prospective Selling Stockholder" shall mean:
(a) for purposes of Section 3.3, any Stockholder that proposes
to Transfer any Shares to any Prospective Buyer;
(b) for purposes of Section 4.1, any Stockholder that proposes
to Transfer any Shares to any Prospective Buyer, including a First
Offer Purchaser pursuant to Section 4.4;
(c) for purposes of Section 4.2, any Stockholder forming part
of the acting Requisite Stockholder Majority that has elected to
exercise the drag along right provided by such Section; and
(d) for purposes of Section 4.4, any Stockholder that proposes
to Transfer any Shares in a transaction that is subject to such
Section.
"Public Offering" shall mean a public offering and sale of Common Stock
for cash pursuant to an effective registration statement under the Securities
Act.
"Purchase Price Value" shall mean: (a) $1.00, in the case of a share of
Class A Stock, (b) $81.00, in the case of a share of Class L Stock and (c)
$100.00, in the case of a share of Preferred Stock, in each case appropriately
adjusted for any stock split, stock dividend, combination, recapitalization or
the like involving such class.
"Purchased and Roll-Over Shares" shall mean (a) all shares of Stock held
by a Manager or Manager Designee that were purchased by the original holder
thereof on or before the Closing Date or upon the exercise, conversion or
exchange of Options described in clause (b) hereof, (b) all Options for shares
of Stock held by a Manager, which were received by such Manager on the Closing
Date in connection with the roll-over of his or her deal bonus from OpCo,
treating such Options as a number of Purchased and Roll-Over Shares equal to the
maximum number of shares of Stock for which such Options may be exercised, and
(c) all Shares held by a Manager or Manager Designee that are designated as
Purchased and Roll-Over Shares by the Requisite Stockholder Majority.
"Purchaser" shall have the meaning set forth in the Recitals.
"Related Affiliate" shall have the meaning set forth in the definition of
Principal Investor Majority.
"Requisite Stockholder Majority" shall mean at any time the approval of
(a) each of at least two Investor Groups if there is more than one Investor
Group, (b) a single Investor Group if there is only one Investor Group and (c)
otherwise, Investors holding a majority of the outstanding Class A Stock
constituting Shares then held by Investors party to this Agreement.
"Rule 144" shall mean Rule 144 under the Securities Act (or any successor
Rule).
"Sale" shall mean a Transfer for value and the terms "Sell" and "Sold"
shall have correlative meanings.
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"Sale Notice" shall have the meaning set forth in Section 4.4.1.
"Securities Act" shall mean the Securities Act of 1933, as in effect from
time to time.
"Shares" shall mean (a) all shares of Stock held by a Stockholder,
whenever issued, including all shares of Stock issued upon the exercise,
conversion or exchange of any Options, Warrants or Convertible Securities and
(b) all Options, Warrants and Convertible Securities held by a Stockholder
(treating such Options, Warrants and Convertible Securities as a number of
Shares equal to the number of Equivalent Shares represented by such Options,
Warrants and Convertible Securities for all purposes of this Agreement except as
otherwise specifically set forth herein). Notwithstanding the foregoing, Shares
shall include Management Shares for all purposes of this Agreement except with
respect to Section 4.4, for which Shares held by a Prospective Selling
Stockholder shall include all Management Shares and Shares held by other Persons
shall not include any Management Shares that are Incentive Shares.
"Silver Lake Investors" shall mean, as of any date, Silver Lake Partners,
L.P., Silver Lake Investors, L.P., Silver Lake Technology Investors, L.L.C. and
Integral Capital Partners VI, L.P., and their respective Permitted Transferees,
in each case only if such Person is then a Stockholder and holds any Shares.
"Stock" shall mean the Common Stock and the Preferred Stock.
"Stockholders" shall have the meaning set forth in the Preamble.
"Strategic Investor" shall mean, with respect to any proposed Transfer,
any (a) Person that is determined by the Requisite Stockholder Majority to be a
competitor of the Company or any of its subsidiaries in any material respect or
a potential strategic investor in the Company or any of its subsidiaries and (b)
any Affiliate of any such Person specified in clause (a). For purposes hereof,
without limiting the foregoing, any Person with, or whose Affiliate has,
substantial operations in the product lifecycle management industry shall be
presumed to be a Strategic Investor unless the Requisite Stockholder Majority
otherwise determine.
"Subject Shares" shall have the meaning set forth in Section 4.4.
"Tag Along Deadline" shall have the meaning set forth in Section 4.1.2.
"Tag Along Holder" shall have the meaning set forth in Section 4.1.1.
"Tag Along Notice" shall have the meaning set forth in Section 4.1.1.
"Tag Along Offer" shall have the meaning set forth in Section 4.1.2.
"Tag Along Sale Percentage" shall have the meaning set forth in Section
4.1.1.
"Tag Along Sellers" shall have the meaning set forth in Section 4.1.2.
"Total Investment" shall mean at any time, with respect to a set of
Shares, the aggregate Purchase Price Value of such Shares.
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"Transfer" shall mean any sale, pledge, assignment, encumbrance or other
transfer or disposition of any Shares to any other Person, whether directly,
indirectly, voluntarily, involuntarily, by operation of law, pursuant to
judicial process or otherwise.
"Unvested Incentive Shares" shall mean, with respect to a Manager or
Manager Designee at any time, the Management Shares that are Incentive Shares
held by such Manager or Manager Designee which remain subject to vesting
requirements at such time.
"Unvested Purchased and Roll-Over Shares" shall mean, with respect to a
Manager or Manager Designee at any time, the Management Shares that are
Purchased and Roll-Over Shares held by such Manager or Manager Designee which
remain subject to vesting requirements at such time.
"Unvested Shares" shall mean, at any time, all Management Shares that are
Unvested Incentive Shares or Unvested Purchased and Roll-Over Shares at such
time.
"Vested Incentive Shares" shall mean, with respect to a Manager or Manager
Designee at any time, the Management Shares that are Incentive Shares held by
such Manager or Manager Designee which are fully vested at such time.
"Vested Purchased and Roll-Over Shares" shall mean, with respect to a
Manager or Manager Designee at any time, the Management Shares that are
Purchased and Roll-Over Shares held by such Manager or Manager Designee which
are fully vested at such time; provided, that upon any termination of employment
of the Manager associated with such Purchased and Roll-Over Shares by the
Company and its subsidiaries other than for Cause, all of the Purchased and
Roll-Over Shares associated with such Manager shall automatically vest in
accordance with the terms of any restricted stock agreement, award or plan that
governs such Purchased and Roll-Over Shares.
"Vested Shares" shall mean, at any time, all Shares that (i) are not
Management Shares or (ii) are Management Shares that are Vested Incentive Shares
or Vested Purchased and Roll-Over Shares at such time.
"Warburg Pincus Investors" shall mean, as of any date, Warburg Pincus
Private Equity VIII, L.P., Warburg Pincus Netherlands Private Equity VIII I,
C.V., Warburg Pincus Netherlands Private Equity VIII II, C.V., Warburg Pincus
Germany Private Equity VIII K.G., Warburg Pincus International Partners, L.P.,
Warburg Pincus Netherlands International Partners I, C.V., Warburg Pincus
Netherlands International Partners II, C.V. and Warburg Pincus Germany
International Partners, K.G. and their respective Permitted Transferees, in each
case only if such Person is then a Stockholder and holds any Shares.
"Warrants" shall mean any warrants to subscribe for, purchase or otherwise
directly acquire Stock.
"Withdrawing Holders" shall have the meaning set forth in Section 9.3.
"Withdrawn Shares" shall have the meaning set forth in Section 9.3.
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11. MISCELLANEOUS.
11.1. Authority: Effect. Each party hereto represents and warrants to and
agrees with each other party that the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized on behalf of such party and do not violate any agreement or other
instrument applicable to such party or by which its assets are bound. This
Agreement does not, and shall not be construed to, give rise to the creation of
a partnership among any of the parties hereto, or to constitute any of such
parties members of a joint venture or other association. The Company and Midco
shall be jointly and severally liable for all obligations of each such party
pursuant to this Agreement.
11.2. Notices. Any notices and other communications required or permitted
in this Agreement shall be effective if in writing and (a) delivered personally,
(b) sent by facsimile, or (c) sent by overnight courier, in each case, addressed
as follows:
If to the Company, Midco, Holdings or OpCo, to it:
c/o UGS Corp.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with copies to:
Ropes & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇, Esq.
If to a Bain Investor, to it:
c/o Bain Capital, LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
with copies to:
Ropes & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
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If to a Silver Lake Investor, to it:
c/o Silver Lake Partners
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇
with copies to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
If to a Warburg Pincus Investor, to it:
c/o Warburg Pincus LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. Back
with copies to:
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
If to a Stockholder, to it at the address set forth in the records of the
Company.
Notice to the holder of record of any shares of capital stock shall be
deemed to be notice to the holder of such shares for all purposes hereof.
Unless otherwise specified herein, such notices or other communications
shall be deemed effective (a) on the date received, if personally delivered, (b)
on the date received if delivered by facsimile on a business day, or if not
delivered on a business day, on the first business day thereafter and (b) two
business days after being sent by overnight courier. Each of the parties hereto
shall be entitled to specify a different address by giving notice as aforesaid
to each of the other parties hereto.
11.3. Binding Effect, Etc. Except for restrictions on the Transfer of
Shares set forth in other written agreements, plans or documents and except for
other written agreements dated on or about the date of this Agreement, this
Agreement constitutes the entire agreement of the
-30-
parties with respect to its subject matter, supersedes all prior or
contemporaneous oral or written agreements or discussions with respect to such
subject matter, and shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, representatives, successors and
permitted assigns. Except as otherwise expressly provided herein, no Holder
party hereto may assign any of its respective rights or delegate any of its
respective obligations under this Agreement without the prior written consent of
the other parties hereto, and any attempted assignment or delegation in
violation of the foregoing shall be null and void.
11.4. Descriptive Heading. The descriptive headings of this Agreement are
for convenience of reference only, are not to be considered a part hereof and
shall not be construed to define or limit any of the terms or provisions hereof.
11.5. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one instrument.
11.6. Severability. In the event that any provision hereof would, under
applicable law, be invalid or unenforceable in any respect, such provision shall
be construed by modifying or limiting it so as to be valid and enforceable to
the maximum extent compatible with, and possible under, applicable law. The
provisions hereof are severable, and in the event any provision hereof should be
held invalid or unenforceable in any respect, it shall not invalidate, render
unenforceable or otherwise affect any other provision hereof.
11.7. No Recourse. Notwithstanding anything that may be expressed or
implied in this Agreement, the Company and each Stockholder covenant, agree and
acknowledge that no recourse under this Agreement or any documents or
instruments delivered in connection with this Agreement shall be had against any
current or future director, officer, employee, general or limited partner or
member of any Stockholder or of any Affiliate or assignee thereof, as such,
whether by the enforcement of any assessment or by any legal or equitable
proceeding, or by virtue of any statute, regulation or other applicable law, it
being expressly agreed and acknowledged that no personal liability whatsoever
shall attach to, be imposed on or otherwise be incurred by any current or future
officer, agent or employee of any Stockholder or any current or future member of
any Stockholder or any current or future director, officer, employee, partner or
member of any Stockholder or of any Affiliate or assignee thereof, as such, for
any obligation of any Stockholder under this Agreement or any documents or
instruments delivered in connection with this Agreement for any claim based on,
in respect of or by reason of such obligations or their creation.
11.8. Aggregation of Shares. All Shares held by a Stockholder and its
Affiliates and Affiliated Funds shall be aggregated together for purposes of
determining the availability of any rights under Sections 4 and 6. Within any
Investor Group, the Stockholders may allocate the ability to exercise any rights
under this Agreement in any manner that such Investor Group (by a Majority in
Interest of the Shares held by such Investor Group) sees fit.
11.9. Obligations of Company, Midco, Holdings and OpCo. Each of the
Company, Midco, Holdings and OpCo shall be jointly and severally liable for any
payment obligation of any of the Company, Midco, Holdings or OpCo pursuant to
this Agreement.
-31-
12. GOVERNING LAW.
12.1. Governing Law. This Agreement and all claims arising out of or based
upon this Agreement or relating to the subject matter hereof shall be governed
by and construed in accordance with the domestic substantive laws of the State
of Delaware without giving effect to any choice or conflict of laws provision or
rule that would cause the application of the domestic substantive laws of any
other jurisdiction.
12.2. Consent to Jurisdiction. Each party to this Agreement, by its
execution hereof, (a) hereby irrevocably submits to the exclusive jurisdiction
of the state and federal courts sitting in the State of Delaware for the purpose
of any action, claim, cause of action or suit (in contract, tort or otherwise),
inquiry, proceeding or investigation arising out of or based upon this Agreement
or relating to the subject matter hereof, (b) hereby waives to the extent not
prohibited by applicable law, and agrees not to assert, and agrees not to allow
any of its subsidiaries to assert, by way of motion, as a defense or otherwise,
in any such action, any claim that it is not subject personally to the
jurisdiction of the above-named courts, that its property is exempt or immune
from attachment or execution, that any such proceeding brought in one of the
above-named courts is improper, or that this Agreement or the subject matter
hereof or thereof may not be enforced in or by such court and (c) hereby agrees
not to commence or maintain any action, claim, cause of action or suit (in
contract, tort or otherwise), inquiry, proceeding or investigation arising out
of or based upon this Agreement or relating to the subject matter hereof or
thereof other than before one of the above-named courts nor to make any motion
or take any other action seeking or intending to cause the transfer or removal
of any such action, claim, cause of action or suit (in contract, tort or
otherwise), inquiry, proceeding or investigation to any court other than one of
the above-named courts whether on the grounds of inconvenient forum or
otherwise. Notwithstanding the foregoing, to the extent that any party hereto is
or becomes a party in any litigation in connection with which it may assert
indemnification rights set forth in this agreement, the court in which such
litigation is being heard shall be deemed to be included in clause (a) above.
Notwithstanding the foregoing, any party to this Agreement may commence and
maintain an action to enforce a judgment of any of the above-named courts in any
court of competent jurisdiction. Each party hereto hereby consents to service of
process in any such proceeding in any manner permitted by Delaware law, and
agrees that service of process by registered or certified mail, return receipt
requested, at its address specified pursuant to Section 11.2 hereof is
reasonably calculated to give actual notice.
12.3. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW
WHICH CANNOT BE WAIVED, EACH PARTY HERETO HEREBY WAIVES AND COVENANTS THAT IT
WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO
TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE OR ACTION, CLAIM, CAUSE OF
ACTION OR SUIT (IN CONTRACT, TORT OR OTHERWISE), INQUIRY, PROCEEDING OR
INVESTIGATION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER
HEREOF OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE TRANSACTIONS
CONTEMPLATED HEREBY, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING.
EACH PARTY HERETO ACKNOWLEDGES THAT IT HAS BEEN INFORMED BY THE OTHER PARTIES
HERETO THAT THIS SECTION 12.3 CONSTITUTES A MATERIAL INDUCEMENT UPON WHICH THEY
ARE
-32-
RELYING AND WILL RELY IN ENTERING INTO THIS AGREEMENT. ANY PARTY HERETO MAY FILE
AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 12.3 WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL
BY JURY.
12.4. Exercise of Rights and Remedies. No delay of or omission in the
exercise of any right, power or remedy accruing to any party as a result of any
breach or default by any other party under this Agreement shall impair any such
right, power or remedy, nor shall it be construed as a waiver of or acquiescence
in any such breach or default, or of any similar breach or default occurring
later; nor shall any such delay, omission nor waiver of any single breach or
default be deemed a waiver of any other breach or default occurring before or
after that waiver.
[Signature pages follow]
-33-
IN WITNESS WHEREOF, each of the undersigned has duly executed this
Agreement (or caused this Agreement to be executed on its behalf by its officer
or representative thereunto duly authorized) under seal as of the date first
above written.
THE COMPANY: UGS CAPITAL CORP.
*
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President
MIDCO: UGS CAPITAL CORP. II
*
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President
HOLDINGS: UGS HOLDINGS, INC.
*
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President
ACQUISITIONCO: UGS CORP.
*
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President
* The signature appearing immediately below shall serve as a signature at each
place indicated with an "*" on this page:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President
Stockholders Agreement
THE INVESTORS: ▇▇▇▇ CAPITAL INTEGRAL INVESTORS, LLC
By: ▇▇▇▇ Capital Investors, LLC
its administrative member
*
-----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
Managing Director
▇▇▇▇ CAPITAL VII COINVESTMENT FUND, LLC
By: ▇▇▇▇ Capital VII Coinvestment Fund, L.P.,
its sole member
By: ▇▇▇▇ Capital Partners VII, L.P.,
its general partner
By: ▇▇▇▇ Capital Investors, LLC,
its general partner
*
-----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
Managing Director
BCIP TCV, LLC
By: ▇▇▇▇ Capital Investors, LLC
its administrative member
*
-----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
Managing Director
* The signature appearing immediately below shall serve as a signature at each
place indicated with an "*" on this page:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
Managing Director
-1-
SILVER LAKE PARTNERS, L.P.
By: Silver Lake Technology Associates, L.L.C.
its General Partner
*
________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇
Managing Director
SILVER LAKE INVESTORS, L.P.
By: Silver Lake Technology Associates, L.L.C.
its General Partner
*
________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇
Managing Director
SILVER LAKE TECHNOLOGY INVESTORS, L.L.C.
By: Silver Lake Technology Management, L.L.C.
its Manager
*
________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇
Managing Director
* The signature appearing immediately below shall serve as a signature at each
place indicated with an "*" on this page:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
--------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇
Managing Director
Stockholders Agreement
INTEGRAL CAPITAL PARTNERS VI, L.P.
By: Integral Capital Management VI, LLC
its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Manager
Stockholders Agreement
WARBURG PINCUS PRIVATE EQUITY VIII, L.P.
By: Warburg Pincus & Co.
its General Partner
*
________________________________________
▇▇▇▇▇▇▇ ▇. Back
Partner
WARBURG PINCUS NETHERLANDS PRIVATE
EQUITY VIII I, C.V.
By: Warburg Pincus & Co.
its General Partner
*
________________________________________
▇▇▇▇▇▇▇ ▇. Back
Partner
WARBURG PINCUS NETHERLANDS PRIVATE
EQUITY VIII II, C.V.
By: Warburg Pincus & Co.
its General Partner
*
________________________________________
▇▇▇▇▇▇▇ ▇. Back
Partner
WARBURG PINCUS GERMANY PRIVATE
EQUITY VIII K.G.
By: Warburg Pincus & Co.
its General Partner
*
________________________________________
▇▇▇▇▇▇▇ ▇. Back
Partner
Stockholders Agreement
WARBURG PINCUS INTERNATIONAL
PARTNERS, L.P.
By: Warburg Pincus & Co.
its General Partner
*
________________________________________
▇▇▇▇▇▇▇ ▇. Back
Partner
WARBURG PINCUS NETHERLANDS
INTERNATIONAL PARTNERS I, C.V.
By: Warburg Pincus & Co.
its General Partner
*
________________________________________
▇▇▇▇▇▇▇ ▇. Back
Partner
WARBURG PINCUS NETHERLANDS
INTERNATIONAL PARTNERS II, C.V.
By: Warburg Pincus & Co.
its General Partner
*
________________________________________
▇▇▇▇▇▇▇ ▇. Back
Partner
WARBURG PINCUS GERMANY INTERNATIONAL
PARTNERS, K.G.
By: Warburg Pincus & Co.
its General Partner
*
________________________________________
▇▇▇▇▇▇▇ ▇. Back
Partner
Stockholders Agreement
* The signature appearing immediately below shall serve as a signature at each
place indicated with an "*" on the two pages above:
/s/ ▇▇▇▇▇▇▇ ▇. Back
-------------------------
▇▇▇▇▇▇▇ ▇. Back
Partner
Stockholders Agreement
THE MANAGERS: THE ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ AND
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
REVOCABLE TRUST
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Co-Trustee
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Co-Trustee
Stockholders Agreement
SCHEDULE I
HOLDINGS OF SHARES
CLASS A COMMON CLASS L COMMON CLASS A LASS L PREFERRED
STOCKHOLDER STOCK STOCK PREFERRED STOCK OPTIONS OPTIONS OPTIONS
----------- -------------- -------------- --------------- ------- ---------- ----------
▇▇▇▇ Capital Integral Investors,
LLC 21,372,116.03 2,355,682.49 529,100.05 - - -
▇▇▇▇ Capital VII Coinvestment
Fund, LLC 6,000,000.00 666,666.66 150,000.00 - - -
BCIP TCV, LLC 147,884.00 35,428.62 8,899.94 - - -
Silver Lake Partners, L.P. 26,078,366.28 2,897,596.25 651,959.16 - - -
Silver Lake Investors, L.P. 733,819.35 81,535.48 18,345.49 - - -
Silver Lake Technology Investors,
L.L.C. 157,414.40 17,490.49 3,935.35 - - -
Integral Capital Partners VI, L.P. 550,400.00 61,155.55 13,759.99 - - -
Warburg Pincus Private Equity
VIII, L.P. 13,334,831.49 1,481,647.95 333,370.78 - - -
Warburg Pincus Netherlands
Private Equity VIII I, C.V. 226,756.55 25,195.17 5,668.91 - - -
Warburg Pincus Netherlands
Private Equity VIII II, C.V. 159,760.30 17,751.14 3,994.01 - - -
Warburg Pincus Germany Private
Equity VIII K.G. 38,651.68 4,294.63 966.29 - - -
Warburg Pincus International
Partners, L.P. 13,189,235.21 1,465,470.58 329,730.88 - - -
Warburg Pincus Netherlands
International Partners I, C.V. 330,240.00 36,693.33 8,256.00 - - -
Warburg Pincus Netherlands
International Partners II, C.V. 220,160.00 24,462.22 5,504.00 - - -
Warburg Pincus Germany
International Partners, K.G. 20,364.80 2,262.75 509.12 - - -
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 76,000.00 - - - 8,444.44 1,900.00
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 22,000.00 - - - 2,444.44 550.00
▇▇▇▇▇ ▇▇▇▇▇▇▇ 9,044.00 - - - 1,004.89 226.10
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 16,720.00 - - - 1,857.78 418.00
▇▇▇▇-▇▇▇▇ Luebberstedt 18,400.00 - - - 2,044.44 460.00
▇▇▇▇▇ ▇▇▇▇▇▇ 2,880.00 - - - 320.00 72.00
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 4,000.00 - - - 444.44 100.00
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ (RSL) 9,600.00 - - - 1,066.67 240.00
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 9,880.00 - - - 1,097.78 247.00
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 950.00 - - - 105.56 23.75
▇▇▇▇ ▇▇▇▇▇▇ 2,400.00 - - - 266.67 60.00
▇▇▇▇▇▇ ▇▇▇▇ 950.00 - - - 105.56 23.75
Stockholders Agreement
CLASS A COMMON CLASS L COMMON CLASS A LASS L PREFERRED
STOCKHOLDER STOCK STOCK PREFERRED STOCK OPTIONS OPTIONS OPTIONS
----------- -------------- -------------- --------------- ------- ---------- ----------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 3,800.00 - - - 422.22 95.00
W. ▇▇▇▇▇▇▇ ▇▇▇▇▇ 2,000.00 - - - 222.22 50.00
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 12,000.00 1,333.33 300.00 - - -
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 20,000.00 2,222.22 500.00 - - -
The ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ and
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Revocable Trust 12,000.00 1,333.33 300.00 - - -
TOTAL 82,782,624.09 9,178,222.20 2,065,099.97 - 19,847.11 4,465.60
Stockholders Agreement