EXHIBIT 10.14
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AMENDED & RESTATED INVESTOR AGREEMENT
among
UGS Capital Corp.
UGS Capital Corp. II
UGS Holdings, Inc.
UGS Corp.
and
the Investors
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. Certain Actions....................................................................... 2
2.1.1. Annual Budget................................................................. 2
2.1.2. Change of Control............................................................. 2
2.1.3. Indebtedness, etc............................................................. 2
2.1.4. Sale of Assets................................................................ 2
2.1.5. Acquisition of Assets......................................................... 2
2.1.6. Merger, Consolidation......................................................... 3
2.1.7. Prepayment of Debt, Repurchase of Securities, Issuance of Dividends........... 3
2.1.8. Initial Public Offering....................................................... 3
2.1.9. Board of Directors............................................................ 3
2.1.10. Acquisition Documents......................................................... 3
2.1.11. Chief Executive Officer....................................................... 3
2.1.12. Management Equity Program..................................................... 4
2.1.13. Joint Ventures and Alliances.................................................. 4
2.1.14. Charter and By-laws........................................................... 4
2.2. Other Restricted Actions.............................................................. 4
2.3. Committees............................................................................ 6
2.4. Midco's and OpCo's Directors.......................................................... 6
2.5. The Company and Midco................................................................. 6
2.6. Period................................................................................ 6
3. TRANSFER RESTRICTIONS....................................................................... 6
3.1. Permitted Public Transfers and Block Sales............................................ 6
3.1.1. Public Transfers............................................................... 6
3.1.2. Block Sales.................................................................... 7
3.2. Permitted Transferees................................................................. 7
3.3. Distributions to Limited Partners or Members.......................................... 8
3.4. Transfers and Holder Lock-up.......................................................... 8
4. POST-IPO "TAG ALONG" RIGHTS................................................................. 8
4.1. Tag Along............................................................................. 8
4.1.1. Notice......................................................................... 8
4.1.2. Exercise....................................................................... 9
4.1.3. Irrevocable Offer.............................................................. 9
4.1.4. Reduction of Shares Sold....................................................... 10
4.1.5. Additional Compliance.......................................................... 10
4.2. Miscellaneous......................................................................... 11
4.2.1. Certain Legal Requirements..................................................... 11
4.2.2. Further Assurances............................................................. 11
4.2.3. Sale Process................................................................... 12
4.2.4. Treatment of Options, Warrants and Convertible Securities...................... 12
4.2.5. Expenses....................................................................... 12
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4.2.6. Closing....................................................................... 12
5. COVENANTS................................................................................... 12
5.1. Information Rights................................................................... 13
5.1.1. Historical Financial Information.............................................. 13
5.1.2. Period........................................................................ 13
5.2. Confidentiality...................................................................... 13
5.3. Directors' and Officers' Insurance................................................... 14
6. REMEDIES.................................................................................... 14
6.1. Generally............................................................................ 14
7. LEGENDS..................................................................................... 14
7.1. Restrictive Legend................................................................... 14
7.2. Stop Transfer Instruction............................................................ 15
8. AMENDMENT, TERMINATION, ETC................................................................. 15
8.1. Oral Modifications................................................................... 15
8.2. Written Modifications................................................................ 15
8.3. Withdrawal from Agreement............................................................ 15
8.4. Effect of Termination................................................................ 16
9. DEFINITIONS................................................................................. 16
9.1. Certain Matters of Construction...................................................... 16
9.2. Definitions.......................................................................... 16
10. MISCELLANEOUS............................................................................... 22
10.1. Authority: Effect................................................................... 22
10.2. Notices.............................................................................. 22
10.3. Binding Effect, Etc.................................................................. 24
10.4. Descriptive Heading.................................................................. 24
10.5. Counterparts......................................................................... 24
10.6. Severability......................................................................... 24
10.7. No Recourse.......................................................................... 25
10.8. Aggregation of Shares................................................................ 25
10.9. Obligations of Company, Midco, Holdings and OpCo..................................... 25
10.10. Indemnity and Liability.............................................................. 25
11. GOVERNING LAW............................................................................... 26
11.1. Governing Law........................................................................ 26
11.2. Consent to Jurisdiction.............................................................. 26
11.3. WAIVER OF JURY TRIAL................................................................. 27
11.4. Exercise of Rights and Remedies...................................................... 27
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AMENDED AND RESTATED INVESTOR AGREEMENT
This Amended and Restated Investor 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"); and
(v) each Person executing this Agreement and listed as an Investor on
the signature pages hereto (collectively with their Permitted
Transferees, the "Investors").
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 "Seller"), the
Company and UGS PLM Solutions Inc. ("OpCo"), all outstanding shares of UGS PLM
Solutions Inc.
2. In connection with the execution of the Acquisition Agreement,
certain of the Investors (the "Initial Investors") and the Company entered into
an Investor Agreement dated as of March 12, 2004 (the "Original Investor
Agreement").
3. Upon the closing of the transactions contemplated by the Acquisition
Agreement, 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. In connection with the
purchase of such securities, the Company, Midco, Holdings, AcquisitionCo, the
Investors and certain other Stockholders of the Company and Midco have entered
into a stockholders agreement dated as of the date hereof (the "Stockholders
Agreement") and a participation and registration rights agreement dated as of
the date hereof (the "Participation and Registration Rights Agreement").
4. The Initial Investors and the Company wish to add additional parties
and to amend and restate the Original Investor Agreement in its entirety.
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 8 hereof.
2. VOTING AGREEMENT.
2.1. Certain Actions. In addition to any other approval required by the
certificate of incorporation of the Company, Midco, Holdings or AcquisitionCo or
by applicable law, the approval of the Requisite Stockholder Majority shall be
required to do any of the following, and the Company, Midco, Holdings and
AcquisitionCo shall not, and shall cause their respective subsidiaries not to,
take any of the following actions without the approval of the Requisite
Stockholder Majority:
2.1.1. Annual Budget. Approve the annual operating budget of the
Company and its subsidiaries, modify in any material respect any such
budget or take any action that is or would be reasonably likely to be in
material variance therefrom.
2.1.2. Change of Control. Effect a Change of Control transaction.
2.1.3. Indebtedness, etc. Other than a draw down under a debt
agreement entered into prior to the date of such draw down the execution
of which was previously approved by the Requisite Stockholder Majority,
incur any indebtedness, assume, guarantee, endorse or otherwise as an
accommodation become responsible for the obligations of any other Person
(provided that the Company or any of its direct or indirect subsidiaries
may provide cross-guarantees for any indebtedness that has been approved
under this Section 2.1.3), enter into any agreement under which it may
incur indebtedness in the future, or make any loan, advance or capital
contribution to any Person (other than the Company or any of its
subsidiaries), in each case outstanding at any time, or enter into or
effect any transaction or series of related transactions involving the
issuance by the Company or any of its subsidiaries of any debt or equity
securities, including rights to acquire any debt or equity securities, in
an aggregate amount in excess of $25,000,000 for all such matters.
2.1.4. Sale of Assets. Enter into or effect any transaction or
series of related transactions, involving the sale, lease, exchange or
other disposal by the Company or any of its subsidiaries of any assets for
consideration having a fair market value (as reasonably determined by the
Board) in excess of $25,000,000, other than (i) transactions between and
among any of the Company and its direct or indirect wholly-owned
subsidiaries and (ii) sales of products in the ordinary course of
business.
2.1.5. Acquisition of Assets. Enter into or effect any transaction
or series of related transactions, involving the purchase, rent, license,
exchange or other acquisition
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by the Company or any of its subsidiaries of any assets for consideration
having a fair market value (as reasonably determined by the Board) in
excess of $25,000,000, other than purchases, rentals, licenses, exchanges
or other acquisitions of equipment and supplies in the ordinary course of
business.
2.1.6. Merger, Consolidation. Enter into or effect any transaction
or series of related transactions, involving the merger or consolidation
of the Company or any of its subsidiaries with or into any Person, the
assets that are the subject of such merger or consolidation having a fair
market value (as reasonably determined by the Board) in excess of
$25,000,000, other than a merger or consolidation of a direct or indirect
wholly-owned subsidiary of the Company with or into the Company or another
direct or indirect wholly-owned subsidiary of the Company.
2.1.7. Prepayment of Debt, Repurchase of Securities, Issuance of
Dividends. Enter into or effect any transaction or series of related
transactions in connection with or involving (i) the voluntary prepayment
of debt of the Company or any of its subsidiaries outside the ordinary
course of business, (ii) the repurchase of securities of the Company or
any of its subsidiaries other than any such repurchases pursuant to the
Company's Call Right or up to an aggregate of $5,000,000 per transaction
or series of related transactions or (iii) the declaration and payment of
dividends by the Company or any of its subsidiaries in excess of
$25,000,000 (other than dividends payable to the Company or any of its
wholly-owned subsidiaries).
2.1.8. Initial Public Offering. Register any equity securities
under the Securities Act in connection with, or consummate, an Initial
Public Offering, including an Initial Public Offering initiated pursuant
to Section 3.1 of the Participation and Registration Rights Agreement or
register any equity securities under the Securities Act of any subsidiary
of the Company; provided, however, that no such approval shall be required
for the inclusion of any Registrable Securities (as defined in the
Participation and Registration Rights Agreement) in any registration
statement relating to an Initial Public Offering pursuant to the exercise
by the holders thereof of piggyback registration rights under Section 3.2
of the Participation and Registration Rights Agreement, if applicable.
2.1.9. Board of Directors. Expand the number of members of the
Board to more than ten.
2.1.10. Acquisition Documents. Amend or waive any material
provisions of or otherwise terminate (i) the Acquisition Agreement and any
ancillary documents entered into in connection with the Acquisition,
provided, that any waiver of or amendment to management fees payable by
the Company or any of its subsidiaries (i) that increases such management
fees shall require the consent of each Investor Group or (ii) that
decreases such management fees shall require the consent of each Investor
Group adversely affected thereby.
2.1.11. Chief Executive Officer. Hire or remove, with or without
cause, the chief executive officer of the Company or the chief executive
officer of OpCo from time to time.
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2.1.12. Management Equity Program. Adopt or make a material
amendment to any management equity program.
2.1.13. Joint Ventures and Alliances. Enter into any joint venture
or business alliance other than in the ordinary course of business with an
aggregate value in excess of $25,000,000.
2.1.14. Charter and By-laws. Amend or waive any material provisions
of the certificate of incorporation or by-laws of the Company or any of
its subsidiaries.
2.2. Other Restricted Actions.
2.2.1. Any transaction between the Company or one of its
subsidiaries, on the one hand, and a member of an Investor Group or one of
its Affiliates, on the other, shall require the consent of the Principal
Investor Majority unless such transaction is entered into in the ordinary
course of business of the Company or such subsidiary and is negotiated by
employees of the Company or such subsidiary that are not Affiliates of
such Investor Group and is on terms comparable to those that would be
received on an arms' length basis.
2.2.2. The approval of each Sponsor Group shall be required to
amend, modify or waive any of the following:
(i) any provision of Section 3 (Transfer Restrictions),
Section 5 (Holder Lock-Up) or Section 8 (Legends) of the
Stockholders Agreement that imposes additional transfer restrictions
on Investors,
(ii) any provision of Section 4 of the Stockholders
Agreement (Tags and Drags) or Section 4 of this Agreement that (x)
materially reduces the Investors' rights as a Participating Seller
(or their right to become a Participating Seller) under Section 4.1
of the Stockholders Agreement or this Agreement or (y) increases the
Investors' obligations as a Participating Seller (or adversely
modifies the circumstances under which they can be required to be a
Participating Seller),
(iii) the maximum Purchase Price Value of the shares which
an Investor Group's Designated Investor(s) may withdraw pursuant to
the proviso in the first sentence of Section 9.3 of the Stockholders
Agreement that decreases such maximum,
(iv) any provision of the definition of Investor Group in
the Stockholders Agreement, the Participation and Registration
Rights Agreement or this Agreement that narrows such definition so
as to raise the threshold criteria to remain an Investor Group,
(v) (x) the Purchase Price Value threshold set forth in
Section 5.1 of this Agreement (Information Rights) that increases
such threshold or (y) that reduces the Information Rights under
Section 5.1,
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(vi) the definitions of Participation Shares or Participation
Portion in the Participation and Registration Rights Agreement that
reduces the rights of an Investor to participate in issuances of
securities pursuant to Section 2 thereof,
(vii) Section 3.1.1 of the Participation and Registration
Rights Agreement that increases the Purchase Price Value threshold
required (a) to set the minimum dollar threshold for registrations
pursuant to Section 3.1.1 thereof or (b) to request a shelf offering
pursuant to Section 3.1.1 thereof,
(viii) the definitions of Minimum Director Share Amount or
Minimum Total Combined Investment in the certificate of
incorporation of the Company that increases the Purchase Price Value
thresholds set forth therein or any amendment to Section 4.10.3 of
such certificate of incorporation,
(ix) Section 4.5 of the certificate of incorporation of the
Company that (a) increases the minimum thresholds of Total Combined
Investment or Director Shares Amount set forth therein or (b)
reduces the number of directors to which such minimum thresholds
entitle an Investor Group,
(x) Section 11.8 of the Stockholders Agreement, Section 8.8 of
the Participation and Registration Rights Agreement or Section 10.8
hereof,
(xi) Section 10.10 of this Agreement that materially reduces
the indemnification rights set forth therein, or
(xii) The certificate of incorporation of the Company to
effect a reverse stock split in which all of the Stock held by any
Investor is converted into the right to receive cash in lieu of a
fractional share.
provided, that any amendment to the definitions used in such provisions
(only to the extent any such amendment would have an effect contrary to
the intent set forth in any of clauses (i) through (xii) immediately
above) shall also require the consent of each Sponsor Group; provided,
further, that except with respect to matters set forth in clauses (i)
through (xii) above, the consent of any Investor shall be required for any
amendment to the Stockholders Agreement, the Participation and
Registration Rights Agreement, the certificate of incorporation of the
Company or this Agreement that discriminates against the rights of such
Investor in a manner materially different from the other Investors
(provided, that it is understood and agreed that, for the purposes of
interpreting and enforcing this amendment and waiver provision, amendments
and/or waivers will not be deemed to "discriminate against" any individual
Investor in a "manner materially different" from any other Investors
simply because any one Investor (i) owns or holds more or less Shares than
any other Investors, (ii) invested more or less money in the Company than
any other Investors or (iii) has greater or lesser voting rights or powers
than any other Investors); provided, however, that notwithstanding any
provision to the contrary, the certificate of incorporation of the Company
may be amended in any way in connection with the Initial Public Offering
so long as the Requisite Stockholder Majority
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consents to such amendment and such amendment does not discriminate
against any Sponsor Group that has not consented thereto.
2.3. Committees. The Company shall, and each Investor shall use its best
efforts to, cause the Board to maintain the following committees: (i) an Audit
Committee, (ii) a Compensation Committee and (iii) any other committee as the
Board shall determine in its discretion; provided, that the appointment of an
executive committee and/or the delegation of board authority to a committee
shall be accomplished in accordance with the by-laws of the Company. Without the
consent of a majority of each of the Class A-1 Directors, Class A-2 Directors
and Class A-3 Directors, if any, the composition of any Board committee shall be
comprised of one Class A-1 Director, one Class A-2 Director and one Class A-3
Director.
2.4. Midco's and OpCo's Directors. The Company will cause the boards of
directors of Midco and OpCo to consist at all times of the same members as the
Board of the Company at such time; provided, that the Requisite Stockholder
Majority may consent to a different composition of the board of directors of
Midco or OpCo; provided, further, that the number of director designees of each
Investor Group with respect to any such other board composition shall be in
proportion to the number of director designees of each Investor Group with
respect to the Board of the Company and each Investor Group with a director
designee on the Board of the Company shall have the right to designate at least
one member to each such board of directors unless no Investor Group has any
director designees on such board. OpCo shall, and the Company shall use its best
efforts to, cause the board of directors of OpCo to maintain at all times such
committees as the Company at such time, with the same member composition;
provided, that the Requisite Stockholder Majority may consent to a different
composition of such committees.
2.5. The Company and Midco. The Company and Midco will not give effect to
any action by any Investor or any other Person which is in contravention of this
Section 2.
2.6. Period. Each of the foregoing provisions of this Section 2 shall
expire on the earlier of (a) a Change of Control and (b) 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).
3. TRANSFER RESTRICTIONS.
3.1. Permitted Public Transfers and Block Sales. No Investor shall
Transfer any or all of its Shares 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 other than in compliance
with Section 3.1.1 hereof and Section 3.3 of the Stockholders Agreement. Shares
Transferred pursuant to this Section 3.1 shall conclusively be deemed thereafter
not to be Shares under this Agreement.
3.1.1. Public Transfers. From time to time after the Initial Public
Offering, the Requisite Stockholder Majority may determine to require the
Investors to make reasonable efforts to coordinate their efforts to
Transfer Shares pursuant to Rule 144 ("144 Coordination") or to
discontinue such requirement. The Requisite Stockholder
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Majority shall give notice of any such determination to each Investor. At
any time after a notice requiring 144 Coordination has been given and
before a notice discontinuing such requirement has been given, the
Investors will make reasonable efforts to coordinate their efforts to
Transfer Shares pursuant to Rule 144, and each Specified Holder promptly
shall notify each Related Stockholder (i) when it has commenced a
measurement period for purposes of the Rule 144 group volume limit in
connection with a Sale that is subject to such limit and (ii) what the
volume limit for that measurement period, determined as of its
commencement, will be. In the event of 144 Coordination, each Related
Stockholder shall be entitled to effect Sales that are subject to the Rule
144 group volume limit pro rata during the applicable measurement period
based on its percentage ownership of Shares held by all holders of Shares
at the start of such measurement period. In the event any Related
Stockholder agrees to forego its full pro rata share of the Rule 144 group
volume limit by written notice to the Specified Holder and all other
Related Stockholders, the remainder shall be re-allocated pro rata among
the Specified Holder and all other Related Stockholders in like manner
(except that the Shares held by such forfeiting Related Holder at the
start of such measurement period shall be excluded from such calculation).
The provisions of this Section 3.1.1 shall not apply to any Transfer of
Shares (i) in a Public Offering, (ii) not subject to volume limitation
under Rule 144 or (iii) at any time with respect to which the Requisite
Stockholder Majority has determined not to coordinate sales pursuant to
this Section 3.1.1. For purposes of this Section 3.1.1, a "Specified
Holder" means a holder of Shares whose sale of Shares pursuant to Rule 144
would be subject to aggregation with another Stockholder (such other
Stockholder being a "Related Stockholder"). Notwithstanding the foregoing,
an Investor may opt out of 144 Coordination with respect to any period of
time if such Investor delivers a notice to the other Investors irrevocably
committing not to Transfer Shares pursuant to Rule 144 during such period.
3.1.2. Block Sales. After the Initial Public Offering, each Investor
(the "Initiating Block Transferor") shall notify each other Investor (the
"Potential Block Participant") when it plans to Transfer any or all of its
Shares pursuant to a block sale to a financial institution in the ordinary
course of its trading business. Each Potential Block Participant shall be
entitled to participate in such block transfer pro rata based on its
percentage ownership of Shares held by all Investors at the time of such
proposed transfer. In the event any Potential Block Participant agrees to
forego its full pro rata share of the block sale by written notice to the
Initiating Block Transferor and all other Potential Block Participants,
the remainder shall be re-allocated pro rata among the Initiating Block
Transferor and all other Potential Block Participants in like manner
(except that the Shares held by such forfeiting Potential Block
Participant shall be excluded from such calculation).
3.2. Permitted Transferees. Any Permitted Transferee receiving Shares
from an Investor in a Transfer pursuant to Section 3.1.1, 3.1.4(b) or 3.1.5 of
the Stockholders Agreement shall 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 Investor that Transfers the Shares to such Permitted Transferee
as if such Permitted Transferee were such Investor. Prior to the initial
Transfer of any Shares to any Permitted Transferee pursuant to Section 3.1.1,
3.1.4(b) or 3.1.5 of the Stockholders Agreement hereof, and as a condition
thereto, each holder of Shares effecting such
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Transfer shall (i) cause such Permitted 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) remain directly liable for the performance by the Permitted
Transferee of all obligations of such Permitted Transferee under this Agreement.
Shares transferred to any Person (other than a Permitted Transferee receiving
Shares from an Investor in a Transfer pursuant to Section 3.1.1, 3.1.4(b) or
3.1.5 of the Stockholders Agreement) shall cease to be Shares for all purposes
of this Agreement.
3.3. Distributions to Limited Partners or Members. Each Investor agrees
that, until the earlier of (a) 30 months after the Initial Public Offering or
(b) the date on which the Sponsor Group of which such Investor is a member
beneficially owns less than 10% of the outstanding Common Stock, it shall (i)
provide reasonable prior notice to each of the other Investors prior to the
distribution of its then unregistered Shares to its partners, members or
stockholders and (ii) use reasonable efforts to coordinate in good faith the
timing and amount of any such distributions with the other Investors' plans to
distribute Shares to their partners, members or stockholders or to sell Shares
pursuant to Rule 144 or otherwise.
3.4. Transfers and Holder Lock-up. No Investor shall Transfer Shares in a
transaction that would have violated Section 5 of the Stockholders Agreement
(Holder Lock-up) or a lock-up agreement entered into pursuant thereto but for
the fact that such Investor has been granted permission to make such Transfer or
has been released from such Section or such lock-up agreement unless each
Investor is granted similar permission or has been similarly released.
4. POST-IPO "TAG ALONG" RIGHTS. Any Investor that wishes to Transfer any or
all of its Shares after the closing of an Initial Public Offering in a
transaction that is subject to Section 3.1.5 of the Stockholders Agreement
(Other Private Transfers), other than a Transfer by a Participating Seller
pursuant to the exercise of such Participating Seller's rights under this
Section 4, shall first comply with this Section 4. Any Shares Transferred
pursuant to this Section 4 to a Person other than an Investor or Permitted
Transferee shall conclusively be deemed thereafter not to be Shares under this
Agreement.
4.1. Tag Along.
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 Investors (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 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
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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) 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
Shares (other than unvested Shares) of the applicable class held by
such Tag Along Holder), on the same terms and conditions (subject to
Section 4.2.4 in the case of Options, Warrants and Convertible
Securities and subject to Section 4.2.1 under all circumstances),
with respect to each Share Sold, as the Prospective Selling
Stockholder shall Sell each of its Shares. For purposes of this
Section 4, the Class A Common Stock will be treated as a single
class and, subject to Section 4.2.4, all Options and Warrants will
be treated as the same class of Shares for which they may be
exercised.
4.1.2. Exercise. Within ten 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 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 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 to participate in 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 4.2.4 in
the case of Options, Warrants and Convertible Securities), as the
Prospective Selling Stockholder, up to such number of 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
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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 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 Shares in the proposed Sale, the number of Shares to
be sold in the proposed Sale shall be allocated among the Tag Along
Sellers in proportion, as nearly as practicable, as follows:
(i) there shall be first allocated to each Tag Along Seller
a number of Shares equal to the lesser of (A) the number of 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 Shares equal
to such Tag Along Seller's Pro Rata Portion; and
(ii) 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 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 of the
Stockholders Agreement, 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.
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4.2. Miscellaneous. The following provisions shall be applied to any
proposed Sale to which Section 4.1 applies:
4.2.1. Certain Legal Requirements. In the event the consideration to
be paid in exchange for Shares in a proposed Sale pursuant to Section 4.1
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 of any specified information
regarding the Company or any of its subsidiaries, such securities 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 have the right, but
not the obligation, to cause to be paid to such Participating Seller in
lieu thereof, against surrender of the Shares (in accordance with Section
4.2.6 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.
4.2.2. Further Assurances. Each Participating Seller, whether in
such holder's capacity as a Participating Seller, stockholder, officer or
director of the Company (subject to such officer's or director's fiduciary
duty), or otherwise, 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 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);
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) 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
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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.
4.2.3. Sale Process. The Prospective Selling Stockholder shall, in
its 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,
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.
4.2.4. 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.
4.2.5. 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 4.1 (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. Each Investor Group shall be
entitled to retain its own counsel in connection with any proposed sale
pursuant to this Section 4 (whether or not consummated) whose expenses
will 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).
4.2.6. Closing. The closing of a Sale to which Section 4.1 applies
shall take place (i) on the proposed Transfer date, if any, specified in
the Tag Along Notice (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) and (ii) at such place as the Prospective Selling
Stockholder(s) shall specify by notice to each Participating Seller. 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.
5. COVENANTS.
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5.1. Information Rights.
5.1.1. Historical Financial Information. The Company will furnish
each Investor holding Shares representing a Total Investment of at least
twenty five million dollars ($25,000,000), the following:
5.1.1.1. As soon as available, and in any event within 120
days after the end of each fiscal year of the Company, the
consolidated balance sheet of the Company and its subsidiaries as at
the end of each such fiscal year and the consolidated statements of
income, cash flows and changes in stockholders' equity for such year
of the Company and its subsidiaries, setting forth in each case in
comparative form the figures for the next preceding fiscal year,
accompanied by the report of independent certified public
accountants of recognized national standing, to the effect that,
except as set forth therein, such consolidated financial statements
have been prepared in accordance with generally accepted accounting
principles applied on a basis consistent with prior years and fairly
present in all material respects the financial condition of the
Company and its subsidiaries at the dates thereof and the results of
their operations and changes in their cash flows and stockholders'
equity for the periods covered thereby.
5.1.1.2. As soon as available, and in any event within 60
days after the end of each fiscal quarter of the Company, the
consolidated balance sheet of the Company and its subsidiaries as at
the end of such quarter and the consolidated statements of income,
cash flows and changes in stockholders' equity for such quarter and
the portion of the fiscal year then ended of the Company and its
subsidiaries, setting forth in each case the figures for the
corresponding periods of the previous fiscal year in comparative
form, all in reasonable detail.
5.1.1.3. Such other information made available to the Board.
5.1.2. Period. Each of the foregoing provisions of this Section 5.1
shall expire on the earlier of (a) a Change of Control or (b) the closing
of the Initial Public Offering.
5.2. Confidentiality. Each Investor agrees that it will keep confidential
and will not disclose, divulge or use for any purpose, other than to monitor its
investment in the Company and its subsidiaries, any confidential information
obtained from the Company pursuant to the terms of this Agreement, unless such
confidential information (i) is known or becomes known to the public in general
(other than as a result of a breach of this Section 5.2 by such Investor or its
Affiliates), (ii) is or has been independently developed or conceived by such
Investor without use of the Company's confidential information or (iii) is or
has been made known or disclosed to such Investor by a third party (other than
an Affiliate of such Investor) without a breach of any obligation of
confidentiality such third party may have to the Company that is known to such
Investor; provided, however, that an Investor may disclose confidential
information (a) to its attorneys, accountants, consultants, and other
professionals to the extent necessary to obtain their services in connection
with monitoring its investment in the Company, (b) to any prospective purchaser
of any Shares from such Investor as long as such prospective purchaser agrees to
be bound by the provisions of this Section 5.2, (c) to any Affiliate, partner or
member of such
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Investor in the ordinary course of business, or (d) as may otherwise be required
by law, provided that such Investor takes reasonable steps to minimize the
extent of any such required disclosure; and provided, further, however, that the
acts and omissions of any Person to whom such Investor may disclose confidential
information pursuant to clauses (a) through (c) of the preceding proviso shall
be attributable to such Investor for purposes of determining such Investor's
compliance with this Section 5.2. Each of the parties hereto acknowledge that
the Investors may review the business plans and related proprietary information
of many enterprises, including enterprises which may have products or services
which compete directly or indirectly with those of the Company. Nothing in this
Section 5.2 shall preclude or in any way restrict the Investors or their
Affiliates from investing or participating in any particular enterprise, or
trading in the securities thereof, whether or not such enterprise has products
or services that compete with those of the Company.
5.3. Directors' and Officers' Insurance. The Company shall purchase,
within a reasonable period following the Closing, and maintain for such periods
as the Board shall in good faith determine, at its expense, insurance in an
amount determined in good faith by the Board to be appropriate, on behalf of any
person who after the Closing is or was a director or officer of the Company, or
is or was serving at the request of the Company as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, including any direct or indirect subsidiary of the Company, against
any expense, liability or loss asserted against such Person and incurred by such
Person in any such capacity, or arising out of such Person's status as such,
subject to customary exclusions. The provisions of this Section 5.3 shall
survive any termination of this Agreement.
6. REMEDIES.
6.1. 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. LEGENDS.
7.1. Restrictive Legend. Each certificate representing Shares issued or
transferred to an Investor shall have the following legend endorsed
conspicuously thereupon:
"THE VOTING OF THE SHARES OF STOCK REPRESENTED BY
THIS CERTIFICATE, AND THE SALE, ENCUMBRANCE OR OTHER
DISPOSITION THEREOF, ARE SUBJECT TO THE PROVISIONS OF
AN INVESTOR AGREEMENT TO WHICH THE ISSUER AND CERTAIN
OF ITS STOCKHOLDERS ARE PARTY, A COPY OF WHICH MAY BE
INSPECTED AT THE
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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.
7.2. 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 legend, this Agreement, the Stockholders Agreement
and the Participation and Registration Rights Agreement are satisfied.
8. AMENDMENT, TERMINATION, ETC.
8.1. 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.
8.2. 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:
(a) the consent of each of the Investor Groups shall be required
for any amendment, modification, extension, termination or waiver (an
"Amendment") of (i) the provisions of Section 2.2.2 or 10.8, (ii) any
provision requiring unanimous consent of the Investor Groups or requiring
the consent of the Principal Investor Majority, or (iii) this clause (a)
of Section 8.2;
(b) the consent of any Investor shall be required for any
Amendment that discriminates against such Investor as such under this
Agreement or would disproportionately impact that Investor as compared to
Investors that are not in the same Investor Group as such Investor.
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 to this Section 8.2, any
Amendment to the definitions used in such Section shall also require the
specified consent.
8.3. Withdrawal from Agreement. Any Investor that withdraws Shares from
the Stockholders Agreement in accordance with Section 9.3 thereof shall be
deemed to have simultaneously withdrawn such Shares from this Agreement. From
the date of delivery of such Investor's withdrawal notice pursuant to Section
9.3 of the Stockholders Agreement, the withdrawn shares shall cease to be Shares
subject to this Agreement and, if the Investor withdrawing such Shares does not
own any Share that will remain subject to this Agreement (each such holder, a
"Withdrawing Holder"), such Investor shall cease to be a party to this Agreement
and shall no longer be subject to the obligations of this Agreement or have
rights
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under this Agreement; provided, however, that any such Withdrawing Holder shall
retain the indemnification rights pursuant to Section 10.10 hereof with respect
to any matter that (i) may be an Indemnified Liability and (ii) occurred prior
to such withdrawal.
8.4. Effect of Termination. No termination under this Agreement shall
relieve any Person of liability for breach prior to termination. In the event
this Agreement is terminated, each Investor shall retain the indemnification
rights pursuant to Section 10.10 hereof with respect to any matter that (i) may
be an Indemnified Liability and (ii) occurred prior to such termination.
9. DEFINITIONS. For purposes of this Agreement:
9.1. Certain Matters of Construction. In addition to the definitions
referred to or set forth below in this Section 9:
(i) 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;
(ii) The word "including" shall mean including, without
limitation;
(iii) Definitions shall be equally applicable to both nouns
and verbs and the singular and plural forms of the terms defined;
and
(iv) The masculine, feminine and neuter genders shall each
include the other.
9.2. Definitions. The following terms shall have the following meanings:
"144 Coordination" shall have the meaning set forth in Section 3.2.
"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);
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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.
"Agreement" shall have the meaning set forth in the Preamble.
"Amendment" shall have the meaning set forth in Section 8.2.
"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
an Investor 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.
"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.
"Class A-1 Director" shall mean any director of the Company elected by the
holders of Class A-1 Common Stock in accordance with the Company's certificate
of incorporation.
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"Class A-2 Director" shall mean any director of the Company elected by the
holders of Class A-2 Common Stock in accordance with the Company's certificate
of incorporation.
"Class A-3 Director" shall mean any director of the Company elected by the
holders of Class A-3 Common Stock in accordance with the Company's certificate
of incorporation.
"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 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.
"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 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).
"Exchange Act" shall mean the Securities Exchange Act of 1934, as in
effect from time to time.
"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.
"Holdings" shall have the meaning set forth in the Preamble.
"Indemnified Liabilities" shall have the meaning set forth in Section
10.10.
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"Indemnitees" shall have the meaning set forth in Section 10.10.
"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 an 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 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 equal to or greater than 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.
"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.
"Midco" shall have the meaning set forth in the Preamble.
"OpCo" shall have the meaning set forth in the Recitals.
"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.
"Original Investor Agreement" shall have the meaning set forth in the
Recitals.
"Participating Seller" shall have the meaning set forth in Section 4.1.2.
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"Permitted Transferee" shall mean, in respect of any Investor, any
Affiliated Fund of such Investor, and, in respect of any Manager, any Family
Member of such Manager, in each case to the extent such Person agrees to be
bound by the terms of this Agreement in accordance with Section 3.3 and the
Stockholders Agreement, as applicable. 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 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.
"Pro Rata Portion" shall mean 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 Shares of the applicable class
held by such Tag Along Seller and the denominator of which is the aggregate
number of Shares of the applicable class held by all Tag Along Sellers.
"Prospective Buyer" shall mean any Person proposing to purchase shares
from a Prospective Selling Stockholder.
"Prospective Selling Stockholder" shall mean, 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 of the Stockholders
Agreement.
"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.
"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.
"Related Stockholder" shall have the meaning set forth in Section 3.1.1.
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"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 all Investors.
"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.
"Securities Act" shall mean the Securities Act of 1933, as in effect from
time to time.
"Seller" shall have the meaning set forth in the Recitals.
"Shares" shall mean (a) all shares of Stock held by an Investor, 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 an Investor (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).
"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.
"Specified Holder" shall have the meaning set forth in Section 3.1.1.
"Sponsor 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 Sponsor 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.
"Stock" shall mean the Common Stock and the Preferred Stock.
"Stockholders" shall have the meaning set forth in the Stockholders
Agreement.
"Stockholders Agreement" shall have the meaning set forth in the Recitals.
"Subscription Agreement" shall have the meaning set forth in Section 10.3.
"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.
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"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.
"Third-Party Claim" shall have the meaning set forth in Section 10.10.
"Total Investment" shall mean at any time, with respect to a set of
Shares, the aggregate Purchase Price Value of such Shares.
"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.
"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 8.3.
10. MISCELLANEOUS.
10.1. 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.
10.2. 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.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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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.
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
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▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. Back
with copies to:
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
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.
10.3. Binding Effect, Etc. Except for the Stockholders Agreement, the
Participation and Registration Rights Agreement, and the Subscription Agreement
dated as of May 24, 2004 among Company, Midco, Holdings, OpCo and the
stockholders named therein ("Subscription Agreement"), this Agreement
constitutes the entire agreement of the parties with respect to its subject
matter, supersedes all prior or contemporaneous oral or written agreements,
including the Original Investor Agreement, 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 Investor or other
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.
10.4. 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.
10.5. 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.
10.6. 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
-24-
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.
10.7. No Recourse. Notwithstanding anything that may be expressed or
implied in this Agreement, the Company and each Investor 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 Investor 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 Investor or any current or future member of any Investor or
any current or future director, officer, employee, partner or member of any
Investor or of any Affiliate or assignee thereof, as such, for any obligation of
any Investor 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.
10.8. Aggregation of Shares. All Shares held by an Investor and its
Affiliates and Affiliated Funds shall be aggregated together for purposes of
determining all rights and obligations hereunder, including under Sections 3 and
4. Within any Investor Group, the Investors 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.
10.9. Obligations of Company, Midco, Holdings and OpCo. Each of the
Company, Midco, Holdings and OpCo shall be jointly and severally liable for any
obligation of any of the Company, Midco, Holdings or OpCo pursuant to this
Agreement.
10.10. Indemnity and Liability. Each of the Company, Midco, Holdings and
OpCo, jointly and severally, will indemnify, exonerate and hold each of the
Investors, and each of their respective partners, shareholders, members,
Affiliates, directors, officers, fiduciaries, managers, controlling Persons,
employees and agents and each of the partners, shareholders, members,
Affiliates, directors, officers, fiduciaries, managers, controlling Persons,
employees and agents of each of the foregoing (collectively, the "Indemnitees")
free and harmless from and against any and all actions, causes of action, suits,
claims, liabilities, losses, damages and costs and out-of-pocket expenses in
connection therewith (including reasonable attorneys' fees and expenses)
incurred by the Indemnitees or any of them before or after the date of this
Agreement (collectively, the "Indemnified Liabilities"), as a result of, arising
out of, or in any way relating to (i) this Agreement, the Acquisition, any
transaction to which any of the Company, Midco, Holdings or OpCo is a party or
any other circumstances with respect to any of the Company, Midco, Holdings or
OpCo (other than any such Indemnified Liabilities to the extent such Indemnified
Liabilities arise out of any breach of the Stockholders Agreement, the
Participation and Registration Rights Agreement or the Subscription Agreement by
such Indemnitee or its affiliated or associated Indemnitees or other related
Persons or any transaction entered into after the Closing or other circumstances
existing after the Closing with respect to which the interests
-25-
of such Indemnitee or its affiliated or associated Indemnitees were adverse to
the interests of any of the Company, Midco, Holdings or OpCo) or (ii) operations
of, or services provided by any of the Indemnitees to, any of the Company,
Midco, Holdings or OpCo, or any of their Affiliates from time to time (including
but not limited to any indemnification obligations assumed or incurred by any
Indemnitee to or on behalf of the Seller, or any of its accountants or other
representatives, agents or Affiliates); provided that the foregoing
indemnification rights shall not be available to the extent that any such
Indemnified Liabilities arose on account of such Indemnitee's gross negligence
or willful misconduct, and further provided that, if and to the extent that the
foregoing undertaking may be unavailable or unenforceable for any reason, the
Company, Midco, Holdings and OpCo hereby agree to make the maximum contribution
to the payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law. For purposes of this Section 10.10, none of
the circumstances described in the limitations contained in the two provisos in
the immediately preceding sentence shall be deemed to apply absent a final
non-appealable judgment of a court of competent jurisdiction to such effect, in
which case to the extent any such limitation is so determined to apply to any
Indemnitee as to any previously advanced indemnity payments made by any of the
Company, Midco, Holdings or OpCo, then such payments shall be promptly repaid by
such Indemnitee to the Company, Midco, Holdings and OpCo. The rights of any
Indemnitee to indemnification hereunder will be in addition to any other rights
any such Person may have under any other agreement or instrument referenced
above or any other agreement or instrument to which such Indemnitee is or
becomes a party or is or otherwise becomes a beneficiary or under law or
regulation. None of the Indemnitees shall in any event be liable to any of the
Company, Midco, Holdings or OpCo or any of their Affiliates for any act or
omission suffered or taken by such Indemnitee that does not constitute gross
negligence or willful misconduct. If all Investor Groups are similarly situated
with respect to their interests in a matter that may be an Indemnified Liability
and that is not based on a Third-Party Claim, the Indemnitees may enforce their
rights pursuant to this Section 10.10 only with the consent of the Requisite
Stockholder Majority (determined based on the Investor Groups existing at the
time of the events giving rise to such claim for indemnification). A
"Third-Party Claim" means any (i) claim brought by a Person other than the
Company, Midco, Holdings, AcquisitionCo or any of their subsidiaries, an
Investor or any Indemnitee and (ii) any derivative claim brought in the name of
the Company, Midco, Holdings, AcquisitionCo, or any of their respective
subsidiaries that is initiated by a Person other than an Investor or any
Indemnitee.
11. GOVERNING LAW.
11.1. 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.
11.2. 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
-26-
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 10.2 hereof is reasonably calculated to
give actual notice.
11.3. 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 11.3 CONSTITUTES A MATERIAL INDUCEMENT UPON WHICH THEY
ARE RELYING AND WILL RELY IN ENTERING INTO THIS AGREEMENT. ANY PARTY HERETO MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 11.3 WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT TO
TRIAL BY JURY.
11.4. 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]
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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
Amended and Restated Investor 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
Amended and Restated Investor Agreement
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
Amended and Restated Investor Agreement
INTEGRAL CAPITAL PARTNERS VI, L.P.
By: Integral Capital Management VI, LLC
its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Manager
Amended and Restated Investor 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
Amended and Restated Investor Agreement
WARBURG PINCUS INTERNATIONAL
PARTNERS, L.P.
By: Warburg Pincus & Co.
its General Partner
*
__________________________________________
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Partner
WARBURG PINCUS NETHERLANDS
INTERNATIONAL PARTNERS I, C.V.
By: Warburg Pincus & Co.
its General Partner
*
__________________________________________
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Partner
WARBURG PINCUS NETHERLANDS
INTERNATIONAL PARTNERS II, C.V.
By: Warburg Pincus & Co.
its General Partner
*
__________________________________________
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Partner
WARBURG PINCUS GERMANY INTERNATIONAL
PARTNERS, K.G.
By: Warburg Pincus & Co.
its General Partner
*
__________________________________________
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Partner
Amended and Restated Investor Agreement
* The signature appearing immediately below shall serve as a
signature at each place indicated with an "*" on the two pages
above:
/s/ ▇▇▇▇▇▇▇ ▇. Back
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Partner
Amended and Restated Investor Agreement
SCHEDULE I
HOLDINGS OF SHARES
CLASS A COMMON CLASS L COMMON CLASS A CLASS 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
Amended and Restated Investor Agreement
CLASS A COMMON CLASS L COMMON CLASS A CLASS L PREFERRED
STOCKHOLDER STOCK STOCK PREFERRED STOCK OPTIONS OPTIONS OPTIONS
----------- -------------- -------------- --------------- ------- --------- ---------
▇▇▇▇▇▇ ▇▇▇▇ 950.00 - - - 105.56 23.75
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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
Amended and Restated Investor Agreement