EXHIBIT 10.1
INVESTOR RIGHTS AGREEMENT
among
POBEDA PARTNERS LTD.,
BLACKBAUD, INC.,
and
EACH OF THE SHAREHOLDERS
OF BLACKBAUD, INC. PARTIES HERETO
Dated as of October 13, 1999
TABLE OF CONTENTS
Page
SECTION 1. Definitions............................................................................ 1
SECTION 2. Term of Agreement...................................................................... 4
SECTION 3. Shareholders' Board Rights............................................................. 4
SECTION 4. General Restriction on Stock Transfers by Investors.................................... 4
SECTION 5. All Transfers in Compliance with Securities Laws....................................... 5
SECTION 6. Tag-Along and Bring-Along Rights....................................................... 5
Shareholders' Tag-along Rights.................................................................. 5
Purchaser's Bring-Along Rights.................................................................. 5
Closing......................................................................................... 6
Inapplicable to Public Offering................................................................. 6
SECTION 7. Restrictions on Transfer by Purchaser.................................................. 6
SECTION 8. Restrictions on Transfer by Shareholder................................................ 6
No Transfers for Two Years...................................................................... 6
No Transfers to Competitors..................................................................... 6
Rights of First Refusal Regarding Transfers to Third Parties.................................... 7
Transfers to Family Trusts...................................................................... 7
Call Rights on Option Shares.................................................................... 7
SECTION 9. Rights of First Refusal................................................................ 7
Offering Notice................................................................................. 7
Certificate of Prospective Investor............................................................. 8
Company Option to Purchase...................................................................... 8
Investors' Option to Purchase................................................................... 8
Sale by Selling Shareholder..................................................................... 9
Closing......................................................................................... 9
SECTION 10. Purchase of Shareholder's Shares Upon Death, Disability or Termination................. 9
Shareholder's Put Options....................................................................... 9
Closing and Payment of Purchase Price........................................................... 10
SECTION 11. Transfer Upon Termination of Employment................................................ 11
Option To Purchase Shares Upon Voluntary Resignation of Employment or Termination of
Employment for Cause............................................................................ 11
Option To Purchase Shares Upon Employment by Competitor......................................... 11
SECTION 12. Involuntary Transfers.................................................................. 12
SECTION 13. Assignment to Other Investors.......................................................... 12
SECTION 14. Legally Binding Obligation............................................................. 13
SECTION 15. Restrictions on Purchase............................................................... 13
SECTION 16. Closing................................................................................ 14
SECTION 17. Withholding and Offset Rights of the Company and Purchaser............................. 14
SECTION 18. Registration Rights.................................................................... 14
Certain Definitions............................................................................. 14
Demand Registration............................................................................. 15
Piggyback Registration.......................................................................... 17
Expenses of Registration........................................................................ 18
Obligations of the Company...................................................................... 19
Indemnification................................................................................. 20
Information by Holder........................................................................... 22
Transfer of Registration Rights................................................................. 22
Form S-3........................................................................................ 23
Delay of Registration........................................................................... 23
Limitations on Subsequent Registration Rights................................................... 23
Rule 144 Reporting.............................................................................. 23
Termination of Registration Rights.............................................................. 24
SECTION 19. Legend .............................................................................. 24
SECTION 20. Specific Performance and Injunctive Relief............................................. 25
SECTION 21. Miscellaneous.......................................................................... 25
References: Headings............................................................................ 25
Entire Agreement................................................................................ 25
Notices......................................................................................... 25
Applicable Law.................................................................................. 26
Severability.................................................................................... 26
Successors and Assigns, No Third Party Beneficiaries............................................ 27
Defaults........................................................................................ 27
Recapitalizations, Exchanges, etc............................................................... 27
Amendments: Waivers............................................................................. 27
Variation in Pronouns; Construction............................................................. 27
Counterparts.................................................................................... 27
Further Action.................................................................................. 27
No Implied Waiver............................................................................... 28
EXHIBITS
A - SELLING SHAREHOLDERS
ii
INVESTOR RIGHTS AGREEMENT
THIS INVESTOR RIGHTS AGREEMENT (this "Agreement") is dated as of
October 13, 1999, by and among BLACKBAUD, INC., a South Carolina corporation
(the "Company"), the Selling Shareholders listed on Exhibit A (collectively, the
"Shareholders"), and Pobeda Partners Ltd., a Bermuda exempt corporation (the
"Purchaser").
Statement of Purpose
The Company has entered into a Recapitalization Agreement dated as of
September 13, 1999 by and among the Company, the Shareholders, Purchaser and
certain other parties named therein, relating to, among other things, the
acquisition by Purchaser of 80.1% of the Common Stock of the Company pursuant to
a series of transactions including a leveraged recapitalization (the
"Recapitalization Agreement"). The transactions contemplated under the
Recapitalization Agreement are being consummated on the date hereof, and as of
this date, Purchaser and the Shareholders are the holders of all of the
outstanding Common Stock of the Company (as herein defined) and desire to enter
into this Agreement for the purpose of agreeing to certain aspects of their
relationship as holders of such Capital Stock.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1. Definitions.
In addition to the terms defined elsewhere in this Agreement, the
following terms shall have the meanings set forth in this Section 1:
"Affiliate" means, with respect to a Person, any other Person which
directly or indirectly through one or more intermediaries controls, is
controlled by, or is under common control with such Person. "Affiliate" of
Purchaser shall be deemed to include, in addition to all other Affiliates, any
equity owner of Purchaser. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through ownership of voting stock, by contract or
otherwise.
"Agreement" means this Investor Rights Agreement, as amended or
supplemented from time to time.
"Board" means the Board of Directors of the Company.
"Capital Stock" means any equity securities issued by the Company.
"Cause" shall have the meaning assigned to it in the applicable
Shareholder's Employment Agreement.
"Common Stock" means the Common Stock, no par value, of the Company.
"Competitor" shall mean any Person that is engaged in Competition.
"Competition" means, as of a particular time, engaging in, accepting a
position with, opening, controlling or becoming associated with any Person or
business that competes with the Company with respect to the business of software
development, marketing, sales and/or distribution for non-profit organizations
anywhere in the United States of America. A Shareholder shall not be considered
to be engaged in Competition if he or she does not perform services, or
supervise persons performing services, relating to the business of software
development, marketing, sales and/or distribution for non-profit organizations.
A Shareholder shall be considered to have become associated with a Person or
business only if the Shareholder becomes directly or indirectly involved with
such Person or business as an owner, principal, employee, officer, director,
independent contractor, consultant, representative, stockholder, financial
backer, agent, partner, advisor, lender, or in any other individual or
representative capacity; except that the Shareholder shall not be considered to
have become associated with an entity solely by reason of making and/or
retaining an investment in less than two percent of the equity of such entity,
if such equity is listed on a national securities exchange or regularly traded
in an over-the-counter market.
"Disability" shall have the meaning assigned to it in the Employment
Agreement.
"Employment Agreement" means the Employment Agreement dated as of the
date hereof between the Company and a Shareholder, as amended or supplemented
from time to time.
"Fair Market Value" of any Shares as of any date means the value of
such Shares as of the June 30 or December 31 immediately preceding such date as
agreed upon by the Company and the Shareholder in good faith, and if unable to
agree upon such value within a reasonable time, the value of such Shares as
determined by a qualified, disinterested investment banking firm of national
reputation mutually selected by the Company and the Shareholder (it being agreed
that (a) such investment banking firm shall determine that the Fair Market Value
is either the value proposed by the Shareholder or the value proposed by the
Company and (b) the fees and expenses of such investment banking firm shall be
shared equally between the Company and the Shareholder). The Fair Market Value
of each Share shall be determined on the basis of the Company's privately-held
status and without reference to any discount for minority interest, control
premium, restrictions on transfer or disparate voting rights (if any).
"Family Trust" shall have the meaning assigned thereto in Section 8(d).
"Investors" means Purchaser and the Shareholders and any transferee
bound by the terms and conditions of this Agreement in accordance with the terms
hereof, and the term "Investor" means any such Person; provided, that any Person
party hereto which ceases to own any Shares as permitted by this Agreement shall
cease to be an Investor and party to this Agreement.
"Involuntary Transfer" means any Transfer of title of beneficial
ownership of Shares upon default, foreclosure, forfeit, court order or otherwise
than by a voluntary decision on the part of a Shareholder, provided, however,
that such term shall not include Transfers to Purchaser
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or the Company as set forth herein or to a third party pursuant to Purchaser's
bring-along rights under Section 6(b).
"Mature Shares" means Shares that have been held by the Shareholder in
question for at least six months.
"Owned" means beneficially owned within the meaning of Rule 13d-3 under
the Securities Exchange Act of 1934, as amended.
"Permitted Transfer" means a Transfer of Shares by a Shareholder to his
or her Family Trust pursuant to Section 8(d).
"Person" means an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture, limited
liability company or any other entity of whatever nature, and shall include any
successor (by merger or otherwise) of such entity.
"Qualified Public Offering" means a firmly underwritten public offering
of the Company's stock, of not less than $20,000,000 in gross proceeds,
registered with the Securities and Exchange Commission under the 1933 Act and
shall not include any registration of shares pursuant to a Company stock option
or incentive plan.
"Sale Event" means (i) the sale to a third Person who is not an
Affiliate of Purchaser of fifty percent (50%) or more of the issued and
outstanding Common Stock of the Company, (ii) a merger, share exchange or other
business combination involving the Company and such a third Person in which the
shareholders of the Company receive consideration in respect of at least fifty
(50%) of the outstanding Capital Stock, or (iii) a leveraged recapitalization of
the Company involving significant distributions or redemptions in respect of the
Common Stock.
"1933 Act" means the Securities Act of 1933, as amended, the rules and
regulations issued thereunder.
"Shares" means all of the shares of Capital Stock held by the
Investors, whether now owned or hereafter acquired.
"Transfer" means (a) as a noun, any direct or indirect, voluntary or
involuntary, transfer, sale, assignment, alienation, gift, donation, grant,
conveyance, lease, exchange, mortgage, pledge, encumbrance, hypothecation or
other dispositions of any kind, including dispositions by operation of law or
legal process, or giving an option, warrant or other right to acquire any Shares
or granting a proxy with respect to voting of any Shares, and (b) as a verb, the
act of making any direct or indirect, voluntary or involuntary transfer,
entering into a contract to make a Transfer, sell, assign, convey, donate,
pledge, encumber, transfer or otherwise dispose of, or giving an option, warrant
or other right to acquire any Shares or granting a proxy with respect to voting
of any Shares or contract to do any of the foregoing.
3
SECTION 2. Term of Agreement; Termination of Prior Agreement.
The term of this Agreement shall begin on the date hereof and shall
terminate on the first to occur of the following events:
(a) the written consent of all of the Investors (to the extent
then an owner of any Shares);
(b) the dissolution or liquidation of the Company;
(c) a merger or business combination involving the Company, in
which the shareholders of the Company (including the Investors) immediately
prior to the effective time of such merger or business combination own capital
stock representing less than fifty percent (50%) of the voting power of the
surviving corporation (determined on a fully diluted basis) immediately after
the effective time of such merger or business combination; or
(d) except with respect to Sections 18 and 21, the closing of a
Qualified Public Offering. The obligations of the Company under Sections 18 and
21 shall terminate in accordance with the provisions of Section 18(n).
Effective upon the closing of the Recapitalization (as defined in the
Recapitalization Agreement), the Shareholders hereby terminate the prior
shareholders' agreement with respect to the Company and its related companies.
SECTION 3. Shareholders' and Purchaser's Board Rights.
For so long as the Shareholders and any Family Trust continue to own in
the aggregate at least ten percent (10%) of Company's stock on a fully diluted
basis, the Shareholders as a group shall be entitled to elect by majority vote
of Shares owned by the Shareholders at least one member of the Board, and
Purchaser, subject to its fiduciary obligations, shall vote all Shares owned by
it in favor of the Shareholders' Board nominee and shall make all other
reasonable efforts within its control to elect the Shareholders' nominee to the
Board. For so long as Purchaser and its Affiliates continue to own in the
aggregate at least ten percent (10%) of the Company's stock on a fully diluted
basis, Purchaser shall be entitled to elect at least one member of the Board,
and the Shareholders, subject to their fiduciary obligations, shall vote all
Shares owned by them in favor of the Purchaser's Board nominee and shall make
all other reasonable efforts within their control to elect the Purchaser's
nominee to the Board. This provision shall not in any way limit Purchaser's
ability to elect additional directors pursuant to the Company's Articles of
Incorporation or Bylaws.
SECTION 4. General Restriction on Stock Transfers by Shareholders.
Each Shareholder agrees that it will not, directly or indirectly,
Transfer, or permit to be transferred, any Shares or any interest therein held
by such Shareholder except as provided in this Agreement. Any attempted Transfer
of any Shares or of any interest therein, other than in
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compliance with the provisions of this Agreement, shall be null and void and of
no effect whatsoever and the Company shall refuse to register any such Transfer.
SECTION 5. All Transfers in Compliance with Securities Laws.
Each Investor acknowledges that the shares of Common Stock have not
been registered under the 1933 Act and may not be Transferred except while such
registration is in effect or pursuant to an exemption from registration under
the 1933 Act. Each Investor agrees that he or it will not Transfer any Shares at
any time if such Transfer would violate applicable federal and state securities
laws, and that each certificate or other document evidencing the Shares shall
bear an appropriate legend restricting the Transfer of such Shares in accordance
with applicable federal and state securities laws.
SECTION 6. Tag-Along and Bring-Along Rights.
(a) Shareholders' Tag-along Rights. Except as provided in Section
6(b), in the event of a proposed sale of Common Stock to any third party (but
not an Affiliate of Purchaser) by Purchaser of more than fifty percent (50%) of
the Shares held by Purchaser at such time, Purchaser shall, at least twenty (20)
days prior to such sale, deliver to the Shareholders written notice (the "Sale
Notice") thereof describing the terms and conditions of such sale (the "Sale
Notice Transaction"). Upon receipt of a Sale Notice, the Shareholders, by giving
written notice to Purchaser not later than ten (10) days following receipt of
the Sale Notice, may participate in such sale on a pro rata basis based on the
ratio of such Shareholder's Shares to the Shares owned by Purchaser and all
Shareholders. The accepting Shareholders shall participate in such sale for a
price per Share equal to the purchase price per Share being paid for Purchaser's
Shares and on other terms and conditions not less favorable to the Shareholders
than those applicable to Purchaser. The number of Shares to be sold by Purchaser
in connection with a sale pursuant to this Section 6(a) shall be reduced by the
number of Shares that the Shareholders elect to sell pursuant to this Section
6(a). In the event that a Shareholder does not accept terms and conditions
substantially similar to those of the Purchaser, such Shareholder shall not be
entitled to participate in the Sale Notice Transaction. The Shareholders' right
to participate in the Sale Notice Transaction is conditioned on consummation of
such Sale Notice Transaction.
(b) Purchaser's Bring-Along Rights. If Purchaser proposes to
effect a Sale Event, Purchaser may deliver a notice (a "Sale Event Notice") to
all of the Shareholders stating that Purchaser proposes to effect (or to cause
the Company to effect) such transaction (the "Sale Event Notice Transaction"),
and specifying the name and address of the proposed parties to such transaction
and the consideration payable in connection therewith. Upon receipt of a Sale
Event Notice, each Shareholder shall be obligated to Transfer all Shares owned
by it in the Sale Event (or, in the case of a Sale Event involving a sale of
less than all of the outstanding Shares, a percentage of the Shares owned by it
equal to the percentage of Purchaser's Shares being sold by Purchaser), for a
price per Share equal to the price per Share being paid for Purchaser's Shares
and on other terms and conditions not less favorable to Shareholder than to
Purchaser; provided, however, that, with respect to any Shares for which
Shareholder holds unexercised stock options, the price per such Share shall be
reduced by the exercise price of such options or, if required
5
pursuant to the terms of such options, such Shareholders shall pay the exercise
price therefor prior to the closing of the Sale Event Notice Transaction, and
shall Transfer Shares of Common Stock in the Sale Event Notice Transaction. In
addition to selling its Shares, the Shareholders shall take all other necessary
action to cause the Company to consummate the proposed Sale Event, including, to
the extent necessary, voting all their Shares in favor of such transaction.
(c) Closing. The closing of any transaction pursuant to this
Section 6 shall be held at such time and place as Purchaser shall reasonably
specify. At such closing, the Shareholders and Purchaser shall deliver
certificates representing the Shares to be sold, duly endorsed for transfer and
accompanied by all requisite stock transfer taxes, if any, and the Shares to be
transferred shall be free and clear of any liens, claims or encumbrances (other
than restrictions imposed by this Agreement) and Purchaser and each of the
Shareholders shall so represent and warrant. Each of the Shareholders and
Purchaser shall further represent and warrant that it is the record and
beneficial owner of such Shares and make such additional representations and
warranties and related indemnities relating to its ownership of the Shares as
shall be customary in transactions of a similar nature.
(d) Inapplicable to Public Offering. Notwithstanding anything
herein to the contrary, the tag-along rights set forth in Section 6(a) above and
the bring-along rights set forth in Section 6(b) above shall not apply to any
sale by Purchaser pursuant to a registration statement filed with the Securities
and Exchange Commission under the 1933 Act.
SECTION 7. Restrictions on Transfer by Purchaser.
Purchaser and its Affiliates may Transfer its Shares without
restriction hereunder except as set forth in Section 5 above, and in Section 6
above to the extent that the Shareholders' tag-along rights as set forth in
Section 6(a) apply to such Transfer. Any Person to whom Purchaser Transfers
Shares in accordance with the terms of this Agreement shall be entitled to
Purchaser's rights and benefits hereunder and shall be bound by Purchaser's
obligations and duties hereunder; provided, that, in the event that Purchaser
Transfers Shares to more than one unaffiliated Person, Purchaser may on a
reasonable basis allocate such rights and benefits and obligations and duties
among such Persons with the consent of the Shareholders' Representative (as
defined in the Recapitalization Agreement), which consent shall not be
unreasonably withheld.
SECTION 8. Restrictions on Transfer by Shareholder.
(a) No Transfers for Two Years. During the two-year period
commencing on the date hereof, the Shareholders shall not Transfer to any third
party any Shares, except in connection with a Permitted Transfer, a Transfer
pursuant to the tag-along rights set forth in Section 6(a) or a Transfer
pursuant to Purchaser's bring-along rights set forth in Section 6(b).
(b) No Transfers to Competitors. Notwithstanding anything to the
contrary contained in this Agreement, in no event shall any Shareholder Transfer
all or any portion of his Shares to a Competitor or an Affiliate thereof, unless
such Transfer is made pursuant to Shareholder's tag-along rights set forth in
Section 6(a), Purchaser's bring-along rights as set forth in Section 6(b) or
6
pursuant to any other Transfer to be approved by Purchaser involving the sale of
all or substantially all of the business or assets of the Company, whether
pursuant to merger, sale of assets, sale of stock or otherwise.
(c) Rights of First Refusal Regarding Transfers to Third Parties.
Subject to the restrictions set forth in Sections 8(a) and 8(b), a Shareholder
may sell Shares to a third party so long as the sale is made in compliance with
the right of first refusal provisions set forth in Section 9.
(d) Transfers to Family Trusts. A Shareholder may at any time
Transfer Shares to a trust established for the exclusive benefit of his spouse
or lineal descendants (collectively, the "Family Trusts"), and each such Family
Trust shall hold, and shall execute and deliver to the Company and to Purchaser
a written acknowledgement that it holds such Shares subject to the terms and
conditions of this Agreement as if such Shares were owned by such Shareholder.
The applicable Shareholder shall agree to be responsible for the compliance by
such Family Trust with the terms hereof. Each Family Trust may Transfer Shares
to the Shareholder or to another Family Trust of such Shareholder. If a
Shareholder desires to Transfer all or any portion of his Shares pursuant to
this Section 8(d), he shall give written notice to the Company and to Purchaser
of his intention to make such Transfer not less than five (5) days prior to
effecting such Transfer, which notice shall state the name and address of each
Trust to which such Transfer is proposed and the description and amount of the
Shares to be so Transferred. The Company and the Purchaser shall have the right
to review the applicable Family Trust documents (and any amendments thereto) to
confirm that such Family Trust is legally capable of complying with the terms of
this Agreement and, to the extent not so capable, may require changes to such
documents to provide for compliance with the terms hereof as a condition to such
Transfer.
(e) Call Rights on Option Shares. Prior to the Transfer of any
Shares pursuant to Section 9, 10, 11 or 12, the Company and Purchaser shall have
a reasonable opportunity to exercise any call rights the Company or Purchaser
then holds on any such Shares purchased upon option exercise pursuant to the
applicable option grant agreement.
SECTION 9. Rights of First Refusal on Certain Shareholder Transfers.
(a) Offering Notice. Subject to Sections 8(a) and 8(b), if a
Shareholder desires to Transfer all or any portion of his Shares to a third
party (other than in connection with a Permitted Transfer, a Transfer pursuant
to his tag-along rights set forth in Section 6(a), or a Transfer pursuant to
Purchaser's bring-along rights set forth in Section 6(b)), such Shareholder (the
"Selling Shareholder") shall give written notice thereof (the "Offering Notice")
to the Company and to Purchaser. The Offering Notice shall be accompanied by a
copy of the relevant acquisition agreement and shall state (i) the number of
Shares to be Transferred (the "Offered Shares"); (ii) the name and address of
the prospective Person (the "Prospective Purchaser") to whom the Selling
Shareholder desires to Transfer such Offered Shares; (iii) the price of the
Offered Shares to be paid by the Prospective Purchaser, which price must be
payable in cash; (iv) that the proposed purchase of the Offered Shares shall be
consummated no later than sixty (60) days after the expiration of the options
referred to in subsections (c) and (d) below; and (v)
7
that the offer of the Prospective Purchaser has been accepted by the Selling
Shareholder subject to the rights of the Company and Purchaser contained in this
Section 9.
(b) Certificate of Prospective Purchaser. The Offering Notice
shall be accompanied by a certificate of the Prospective Purchaser stating that
(i) its offer to purchase the Offered Shares has been approved by its board of
directors (or the equivalent if the Prospective Purchaser is not a corporation)
(unless such Prospective Purchaser is a natural Person); (ii) the description of
his or its offer contained in the Offering Notice is complete and accurate;
(iii) he or it is aware of the rights of the Company and Purchaser contained in
this Section 9; and (iv) prior to the purchase of any Offered Shares by the
Prospective Purchaser, he or it will become a party to this Agreement and agree
to be bound by the terms and conditions hereof to the same extent and in the
same manner as the Shareholder. In addition, the certificate of the Prospective
Purchaser shall be accompanied by evidence reasonably satisfactory to the
Company as to the Prospective Purchaser's financial ability to consummate the
proposed purchase.
(c) Company Option to Purchase. For a period of fifteen (15)
business days after receipt of the Offering Notice and the certificate referred
to in Section 9(b) above, (the "Company Option Period"), the Company shall have
the option to give notice of its election to purchase all of the Offered Shares;
provided, however, that the Company may elect to purchase less than all of the
Offered Shares if (i) one or more of the Investors other than the Selling
Shareholder elect (subject to Purchaser's option in Section 9(d) below) to
purchase all of the remaining Offered Shares or (ii) the Selling Shareholder
consents to the purchase of less than all of its Offered Shares. The Company's
option to purchase the Offered Shares hereunder shall be exercisable by
delivering written notice to such effect, prior to the expiration of the Company
Option Period, to the Selling Shareholder and to the other Investors. The
Company's purchase of Offered Shares hereunder shall be on terms no less
favorable in the aggregate than the terms contained in the Offering Notice on
which the Prospective Purchaser has agreed to purchase the Offered Shares. The
failure of the Company to exercise its option to purchase all or a portion of
the Offered Shares under this Section 9(c) within the Company Option Period
shall be deemed to be a waiver of its right to purchase the Offered Shares.
(d) Purchaser's Option to Purchase. If the Company does not elect
to purchase all of the Offered Shares pursuant to Section 9(c), above, Purchaser
shall then have the option, for a period of fifteen (15) business days (the
"Purchaser's Option Period") after the earlier of the express waiver by the
Company of its option in Section 9(c) or the expiration of the Company Option
Period, to give notice of its election to purchase not less than all of the
Offered Shares; provided, however, that Purchaser may elect to purchase less
than all of the Offered Shares, if (i) the Company elects to purchase all of the
remaining Offered Shares, (ii) one or more of the other Investors elect to
purchase all of the remaining Offered Shares, or (iii) the Selling Shareholder
consents to the purchase of less than all of the Offered Shares. Purchaser's
option to purchase Offered Shares hereunder shall be exercisable by delivering
written notice to such effect, prior to the expiration of the Purchaser's Option
Period, to the Selling Shareholder and the Company. Purchaser's purchase of
Offered Shares hereunder shall be on terms no less favorable in the aggregate
than the terms contained in the Offering Notice on which the Prospective
Purchaser agreed to purchase the Offered Shares. The failure of Purchaser to
exercise its option to
8
purchase Offered Shares within the Purchaser's Option Period shall be deemed to
be a waiver of its right to purchase the Offered Shares.
(e) Sale by Selling Shareholder. Subject to Sections 8(a) and
8(b), upon the expiration of the Purchaser's Option Period or the earlier waiver
by Purchaser of its rights under Section 9(d), the Selling Shareholder may
Transfer all, but not less than all, of the Offered Shares not purchased by the
Company and/or Purchaser pursuant to this Section 9, to the Prospective
Purchaser in accordance with the terms (including the purchase price and
consideration) set forth in the Offering Notice; provided, however, that as a
condition to such sale, such Prospective Purchaser shall have delivered to the
Company a signed acknowledgement that it shall hold such Shares subject to this
Agreement and shall be bound by all of the Selling Shareholder's duties and
obligations hereunder, as if it continued to own such Shares being purchased by
the Prospective Purchaser; and, provided further, that the provisions of Section
10 shall not apply to the Prospective Purchaser and the Prospective Purchaser
shall not be considered a Shareholder or Family Trust for purposes of Section 3;
and, provided, further, the provisions of Section 11 shall not apply to the
Prospective Purchaser, except that, if at the time of the proposed sale, the
Company has the right to exercise the options as set forth in Section 11(a) or
Section 11(b), the Company shall have ninety (90) days (or, if shorter, until
termination of the option period of Section 11(a) or Section 11(b), as
appropriate) to exercise such options. If such sale is not consummated by the
earlier of the date specified in the Offering Notice or the date thirty (30)
days after the expiration of the Purchaser's Option Period, the restrictions
provided for herein shall again become effective.
(f) Closing. The closing of any purchase of the Offered Shares by
the Company or the Purchaser pursuant to this Section 9 shall be held at the
principal office of the Company at 10:00 a.m. local time no later than thirty
(30) days after the date of expiration of the Company's Option Period or the
Purchaser's Option Period, as applicable. At such closing, the Selling
Shareholder shall deliver (i) certificates representing the Offered Shares, duly
endorsed for Transfer and accompanied by all requisite stock transfer taxes, if
any, and (ii) his signed certification that the Offered Shares are Transferred
free and clear of any liens, claims or encumbrances (other than restrictions
imposed by this Agreement), and that it is the record and beneficial owner of
such Offered Shares. The Company and/or the Purchaser, as the case may be, shall
deliver at such closing, by certified or official bank check or by wire transfer
of immediately available funds, payment in full for such Offered Shares.
SECTION 10. Purchase of Shareholder's Shares.
(a) Shareholder's Put Options. Upon the occurrence of any of the
following events:
(i) the termination without Cause by the Company of a
Shareholder's employment; or
(ii) a Shareholder's termination of employment within
thirty (30) days of the relocation by the Company of its
headquarters to a location more than thirty-five (35) miles
from the Charleston, South Carolina metropolitan area, unless,
either
9
(A) such Shareholder is not employed by the Company on such
date, or (B) such Shareholder has consented to such action;
such Shareholder shall have the right at its discretion, by written notice
delivered to the Company not later than sixty (60) days following the occurrence
of an event described in clauses (i) or (ii) above, to require the Company
(which obligations the Company may assign in whole or in part to Purchaser, or
the Other Investors (as defined in Section 13 hereof)) if the Company assigns
such obligation to the Other Investors pursuant to Section 13, to purchase not
less than all of the Shares owned by such Shareholder and each of his Family
Trusts, at a price equal to the Fair Market Value of such Shares for the date of
the event giving rise to such put option (the "Put Event"). The put option
arising upon the occurrence of the event described in Sections 10(a)(i) and
10(a)(ii) above is referred to herein as the "Termination Put". Notwithstanding
anything contained herein to the contrary, if the terms of any lending
arrangement between the Company and any of its institutional lenders restrict
the Company's ability to purchase all of the Shares owned by a Shareholder with
respect to which the Shareholder put option is being exercised, the Company may
elect to purchase such Shares in exchange for a promissory note, which shall
bear interest at the prime rate or base rate of interest most recently published
or announced in the Wall Street Journal and which shall be payable in equal
monthly installments over the term of such repurchase period, which shall not
exceed five (5) years; provided, that the terms of any such promissory note
shall in all events be subject to the applicable limitations contained in such
lending arrangements (and the Company agrees to exercise all reasonable efforts
to have any limitations amended or waived to the extent necessary to minimize
the modifications due to the lending arrangement limitations).
(b) Closing and Payment of Purchase Price. The closing of the
purchase and sale pursuant to this Section 10 shall be held at the principal
office of the Company at 10:00 a.m. local time no later than one-hundred twenty
(120) days after the date of the Put Event with respect to which such closing
relates, or at such other time and place as the parties to the transaction may
agree. At such closing (i) the Shareholder or his personal representative and
each of his Family Trusts shall deliver certificates representing the Shares to
be purchased, duly endorsed for transfer and accompanied by all requisite stock
transfer taxes, if any, and the Shares to be Transferred shall be free and clear
of any liens, claims or encumbrances (other than restrictions imposed by this
Agreement) and the Shareholder or his personal representative and each of his
Family Trusts shall so represent and warrant, and further represent and warrant
that they are the record and beneficial owners of the Shares; and (ii) the
Company or the Other Investors, as the case may be, shall pay to Shareholder or
his personal representative and each of his Family Trusts the purchase price
therefor by certified or official bank check or by wire transfer of immediately
available funds.
(c) Notwithstanding the foregoing, a Termination Put shall be
exercisable only with respect to Shares that are Mature Shares on the date of
the relevant Put Event. To the extent that a Shareholder's Shares are not Mature
Shares on the date of the Put Event, the Shareholder shall have a separate
Termination Put with respect to such Shares, and the Put Event relating to that
Termination Put shall be deemed to occur on the date such Shares become Mature
Shares.
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SECTION 11. Options to Purchase Upon Termination of Employment.
(a) Option To Purchase Shares: Voluntary Resignation of
Employment, Termination of Employment for Cause . Upon any voluntary resignation
of employment by Shareholder or upon the termination by the Company of the
employment of Shareholder for Cause (a "Termination Call Event"), the Company
shall have the option, for a period of three (3) years after the Termination
Call Event, to purchase, or to assign to the Other Investors the right to
purchase as set forth in Section 13, all, but not less than all, of the Shares
owned by such Shareholder and each of his Family Trusts, as follows:
(i) The Company's or the Other Investors' option to
purchase Shares under this Section 11 (the "Termination Call") shall be
exercisable by delivering written notice to such effect, prior to the expiration
of such option, to such Shareholder and to the Other Investors or the Company,
as the case may be.
(ii) The purchase price for such Shares shall be the Fair
Market Value of such Shares for the date of notice;
(ii) Such purchase price shall be paid by certified or
official bank check or by wire transfer of immediately available funds;
(iv) The closing of such purchase shall be held no later
than the date which is one hundred twenty (120) days after the date of receipt
by the Shareholder of the written notice required by clause (i), above.
(b) Option To Purchase Shares Upon Employment by Competitor. If a
Shareholder engages in Competition, in addition to any other rights and remedies
of the Company, the Company shall have the option (a "Competition Call"), for a
period of ninety (90) days after the date of the Company's receipt of actual
knowledge of such employment (the "Competition Call Event"), to purchase, or to
assign to the Other Investors the right to purchase as set forth in Section 13,
all, but not less than all, of the Shares owned by such Shareholder and each of
his Family Trusts at a purchase price (payable by certified or official bank
check or by wire transfer of immediately available funds) equal to the Fair
Market Value of such Shares for the date of exercise. The Company's option to
purchase Shares hereunder shall be exercisable by delivering written notice to
such effect, prior to the expiration of such option, to such Shareholder and
each of his Family Trusts. The closing of such purchase shall be held no later
than one hundred twenty (120) days after the date of the Company's receipt of
actual knowledge of such Competition, or if the required determination of Fair
Market Value has not been made at or prior to such time, a later date within
thirty (30) days following the determination of Fair Market Value.
(c) Notwithstanding anything in this Agreement to the contrary,
the provisions of this Section 11 shall not apply to any Shares now owned or
hereafter acquired by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
11
(d) Notwithstanding the foregoing, a Termination Call or
Competition Call shall be exercisable only with respect to Shares that are
Mature Shares on the date of the relevant Termination Call Event or Competition
Call Event. To the extent that a Shareholder's Shares are not Mature Shares on
the date of the Termination Call Event or Competition Call Event, as applicable,
there shall be a separate Termination Call or Competition Call, as applicable,
with respect to such Shares, and the Termination Call Event or Competition Call
Event relating to that Termination Call or Competition Call, as applicable,
shall be deemed to occur on the date such Shares become Mature Shares.
SECTION 12. Involuntary Transfers.
Upon any Involuntary Transfer of any Shares owned by a Shareholder, he
shall promptly, but in any event within thirty (30) days after such Involuntary
Transfer, give written notice to the Company, with a copy to the Person to whom
the Transfer was made, stating that the Involuntary Transfer occurred, the
reason therefor, the date of the Transfer, the name and address of the Person to
whom the Transfer was made and the Shares acquired by such Person. For a period
commencing on the date of such Involuntary Transfer and expiring ninety (90)
days after the date of receipt of such notice by the Company, the Company shall
have the option to purchase, or to assign to the Other Investors the right to
purchase as set forth in Section 13, all, but not less than all, of the Shares
owned by such Shareholder and each of his Family Trusts on the terms for
purchase of Shares at a price, payable by certified or official bank check or by
wire transfer of immediately available funds, equal to Fair Market Value for the
date of the Involuntary Transfer. The closing of such purchase shall be held no
later than one hundred twenty (120) days after the date of the Involuntary
Transfer, or if the required determination of Fair Market Value has not been
made at such time, a later date within thirty (30) days following the
determination of Fair Market Value as set forth herein. Such option to purchase
the Shares hereunder shall be exercisable by the Company or the Other Investors,
as the case may be, by delivering written notice to such effect, prior to the
expiration of such option, to the Shareholder and the Person to whom the
Transfer was made. The failure to exercise such option shall not in any way
constitute a waiver by the Company of its rights under this Agreement or a
consent to such Transfer.
SECTION 13. Assignment to Other Investors.
The Company shall have the right, at its discretion and not necessarily
on a pro rata or other equitable basis, to assign to the Investors (including
Purchaser), other than the Investor whose Shares are being purchased (the "Other
Investors"), all or any portion of its right or obligation to purchase Shares
under this Agreement, which assignment each of the Other Investors, in their
individual discretion, may accept. If an Other Investor accepts any such
assignment by the Company, such assignment shall be effective without consent by
or notice to the Shareholder or his personal representative, as the case may be,
from whom the Company has the right to purchase Shares, although such Other
Investor shall endeavor to notify such Shareholder or his personal
representative promptly. If such right to purchase Shares is assigned to one or
more Other Investors, then such Other Investor(s) shall be deemed to be the
Company for purpose of any such purchase hereunder and the Shareholder or his
personal representative, as the case may be, from whom the Company has the right
to purchase such Shares, including
12
each Family Trust thereof, shall be obligated to sell such Shares to the Other
Investor(s) electing to purchase the same as if it or they are the Company.
SECTION 14. Legally Binding Obligation.
The making of an offer, the delivery of a notice within the stated
period and the acceptance of an offer, as provided herein, shall create a
legally binding obligation to buy or sell, as the case may be, securities or
otherwise take all necessary actions, as provided above. In addition, the
Company is hereby authorized (a) to transfer such Shares on the books of the
Company in accordance with this Agreement and without regard to the surrender of
certificates representing such Shares held by such Shareholder and (b) to place
on all certificates representing Shares a legend reflecting its authority to
transfer such Shares in accordance with this Section 14. Any such certificates
not surrendered as required by this Agreement shall become upon such transfer
null and void.
SECTION 15. Restrictions on Purchase.
Notwithstanding anything in this Agreement to the contrary, the Company
shall not be permitted or obligated to purchase any Shares hereunder to the
extent the Company is prohibited from purchasing such Shares because it has
insufficient legally available funds for such purchase under the South Carolina
Business Corporation Act, as amended or any successor provision ("Restriction on
Purchase"). If the Company believes at the time it receives a written notice of
exercise of the put option pursuant to Section 10 that a Restriction on Purchase
exists, the Company shall promptly notify Shareholder or his personal
representative, as the case may be, and use reasonable efforts (excluding the
payment of waiver, consent or similar transactional fees but including
reasonable documentation costs and similar expenses) to have such Restriction on
Purchase waived or removed. If such Restriction on Purchase is not waived or
removed in whole, the Company shall purchase up to the maximum number of shares
that the Board in good faith shall determine is permitted under the Restrictions
on Purchase on such date. If any Shares that the Company is obligated hereunder
to purchase remain unpurchased, the Company shall thereafter effect a series of
purchases, each of which shall take place not later than five (5) business days
after such Restrictions on Purchase have ceased to exist to the extent that
would permit such partial payments of the purchase price in increments of fifty
thousand dollars ($50,000). Any such subsequent payment shall accrue simple
interest at a rate per annum of eight percent (8.0%) from the date such payment
would have otherwise been made to the date such payment is made, such interest
to be paid only at the date of payment by the Company for the Shares being
purchased.
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SECTION 16. Closing.
To the extent any closing of a purchase by the Company (or Other
Investor) of any Shares hereunder is delayed or prohibited by any action on the
part of a governmental entity or a third party (or certain requirements of law
have not been met or complied with), then such closing shall not take place
until permitted (or such requirement is met or complied with) or not at all and
the Company (or Other Investor) shall as a result thereof have no liability.
SECTION 17. Withholding and Offset Rights of the Company and Other
Investors.
To the extent permitted by applicable law and notwithstanding any other
provisions of this Agreement, the Company or an Other Investor may offset
against any payment to be made by it in respect of any Shares purchased by it
pursuant to this Agreement (including purchase price, installment payments and
interest payments) (i) any losses, damages, fees and/or expenses incurred by the
Company or its Affiliates arising out of a violation by such Shareholder or
related Family Trust of any employment, noncompete or nosolicitation agreement
by which such Shareholder or related Family Trust is bound (ii) any other amount
due and owing to the Company or Other Investor, as applicable, from such
Shareholder or related Family Trust and (iii) any applicable withholding or
similar taxes.
SECTION 18. Registration Rights.
The Company hereby grants to each of the Holders (as defined below) the
registration rights set forth in this Section 18, with respect to the
Registrable Securities (as defined below) owned by such Holders. The Company and
the Holders agree that the registration rights provided herein set forth the
sole and entire agreement, and supersede any prior agreement, between the
Company and the Holders with respect to registration rights for the Company's
securities.
(a) Certain Definitions. As used in this Section 18:
(i) The terms "register," "registered" and "registration"
refer to a registration effected by filing with the SEC a registration statement
(the "Registration Statement") in compliance with the 1933 Act, and the
declaration or ordering by the SEC of the effectiveness of such Registration
Statement.
(ii) The term "Registrable Securities" means (i) Common
Stock held by Investors, or any transferee pursuant to Section 18(h) below, and
(ii) any Common Stock issued as (or issuable upon the conversion or exercise of
any warrant, right or other security that is issued as) a dividend or other
distribution with respect to, or in exchange or in replacement of, such
Registrable Securities; provided, however, that Common Stock or other securities
shall cease to be treated as Registrable Securities if (a) a registration
statement covering such securities has been declared effective by the Securities
and Exchange Commission (the "SEC") and such security has been disposed of
pursuant to such effective registration statement, (b) such security is sold or
may be sold pursuant to Rule 144 under the Securities Act (or another
14
exemption from the registration requirements of the Securities Act) or (c) such
security ceases to be outstanding.
(iii) The term "Holder" (collectively, "Holders") means any
Investor (and any transferee as permitted by Section 18(h) hereof) holding
Registrable Securities, securities exercisable or convertible into Registrable
Securities or securities exercisable for securities convertible into Registrable
Securities.
(iv) The term "Initiating Holders" means any Holder or
Holders of at least 51% of the Registrable Securities then outstanding and not
registered at the time of any request for registration made pursuant to Section
18(b) of this Agreement.
(b) Demand Registration.
(i) Holders' Demand for Registration. At any time after
180 days following the Qualified Public Offering of the Company's Common Stock
if the Company shall receive from Initiating Holders other than Purchaser a
written demand that the Company effect any registration (a "Demand
Registration") of at least fifty percent (50%) of the Registrable Securities of
such Holders (other than a registration on Form S-3 or any related form of
registration statement, such a request being provided for under Section 18(i)
hereof) having an anticipated net aggregate offering price (after deduction of
underwriter commissions and offering expenses) of at least $5,000,000, the
Company will:
(A) promptly (but in any event within 10 days) give
written notice of the proposed registration to all other Holders; and
(B) use its reasonable best efforts to effect such
registration as soon as practicable and as will permit or facilitate the sale
and distribution of all or such portion of such Initiating Holders' Registrable
Securities as are specified in such demand, together with all or such portion of
the Registrable Securities of any Holder or Holders joining in such demand as
are specified in a written demand received by the Company within 15 days after
such written notice is given, provided that the Company shall not be obligated
to take any action to effect any such registration pursuant to this Section
18(b):
(I) In any particular jurisdiction in
which the Company would be required to execute a general
consent to service of process in effecting such registration,
qualification or compliance unless the Company is already
subject to service in such jurisdiction and except as may be
required by the 1933 Act;
(II) After the Company has effected one
(1) such registration pursuant to this Section 18(b)(i) and
the sales of the shares of Common Stock under such
registrations have closed;
(III) If the Company shall furnish to
such Holders a certificate signed by the President or
equivalent senior executive of the Company, stating that in
the good faith judgment of the Board of Directors of the
Company it would be seriously detrimental to the Company and
its shareholders for such
15
Registration Statement to be filed at the date filing would be
required, in which case the Company shall have an additional
period of not more than 90 days within which to file such
Registration Statement; provided, however, that the Company
shall not use this right more than twice in any 12 month
period;
(IV) During the period starting with the
date sixty (60) days prior to the Company's good faith
estimate of the date of filing of, and ending on a date one
hundred eighty (180) days after the effective date of, a
registration subject to Section 18(b) hereof, provided that
the Company is employing in good faith all reasonable efforts
to cause such registration statement to become effective.
(ii) Purchaser Demand for Registration. In addition,
Purchaser and its Affiliates shall be granted a number of Demand Registrations
to effect the registration of Registrable Securities owned by Purchaser or its
Affiliates, in each case having an anticipated net aggregate offering price
(after deduction of underwriter commissions and offering expenses) of at least
$5,000,000, which number shall be mutually agreed upon by the Company and
Purchaser based on Purchaser's equity ownership of the Company. In the case of
each such Demand Registration requested by Purchaser, the Company shall
undertake its covenants contained in Section 18(b)(i)(B) (subject to the
limitations on such covenants contained therein, but not subject to the
limitation contained in Section 18(b)(i)(B)(II)). The Company shall provide to
Purchaser and its Affiliates the same rights with respect to such Demand
Registration as provided for in the case of the Initiating Holders in this
Section 18.
(iii) Underwriting. If the Initiating Holders intend to
distribute the Registrable Securities covered by their demand by means of an
underwriting, they shall so advise the Company as part of their demand made
pursuant to this Section 18(b); and the Company shall include such information
in the written notice referred to in Section 18(b)(i)(A). In such event, the
right of any Holder to registration pursuant to this Section 18(b) shall be
conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting to the
extent provided herein.
The Company shall, together with all holders of Capital Stock of the
Company proposing to distribute their securities through such underwriting,
enter into an underwriting agreement in customary form with the underwriter or
underwriters selected by a majority-in-interest of the Initiating Holders and
reasonably satisfactory to the Company. Notwithstanding any other provision of
this Section 18(b), if the underwriter shall advise the Company that marketing
factors (including, without limitation, an adverse effect on the per share
offering price) require a limitation of the number of shares to be underwritten,
then the Company shall so advise all Holders of Registrable Securities that have
requested to participate in such offering, and the number of shares of
Registrable Securities that may be included in the registration and underwriting
shall be allocated pro rata among such Holders thereof in proportion, as nearly
as practicable, to the respective amounts of Registrable Securities held by such
Holders at the time of filing the Registration Statement. The foregoing
notwithstanding, in the case of a Purchaser Demand Registration, Purchaser's
Shares to be registered pursuant to such demand shall not be reduced except as
agreed by Purchaser (but in such event, there shall be no obligation on the part
16
of either party to proceed with the offering of the amount of Shares so
demanded). No Registrable Securities excluded from the underwriting by reason of
the underwriter's marketing limitation shall be included in such registration.
If any Holder disapproves of the terms of the underwriting, such Holder
may elect to withdraw therefrom by written notice to the Company, the
underwriter and the Initiating Holders. The Registrable Securities so withdrawn
shall also be withdrawn from registration.
If the underwriter has not limited the number of Registrable Securities
to be underwritten, the Company may include securities for its own account (or
for the account of other shareholders) in such registration if the underwriter
so agrees and if the number of Registrable Securities would not thereby be
limited.
(c) Piggyback Registration.
(i) Company Registration. If at any time or from time to
time the Company shall determine to register any of its securities, either for
its own account or for the account of security holders, other than in an initial
Qualified Public Offering, a registration relating solely to employee benefit
plans, a registration on Form S-4 or S-8 (or such other similar successor forms
then in effect under the Securities Act), a registration pursuant to which the
Company is offering to exchange its own securities, a registration statement
relating solely to dividend reinvestment or similar plans or a registration
pursuant to Section 18(b) or 18(i) hereof, the Company will:
(A) promptly (but in no event less than 15 days before
the anticipated filing date of the registration statement offering such
registration) give to each Holder written notice thereof; and
(B) include in such registration (and any related
qualification under state securities laws or other compliance), and in any
underwriting involved therein, all the Registrable Securities specified in a
written request or requests, made within 15 days after receipt of such written
notice from the Company, by any Holder or Holders, except as set forth in
Section 18(c)(ii) below.
(ii) Underwriting. If the registration of which the
Company gives notice is for a registered public offering involving an
underwriting, the Company shall so advise the Holders as a part of the written
notice given pursuant to Section 18(c)(i)(A). In such event the right of any
Holder to registration pursuant to this Section 18(c) shall be conditioned upon
such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting to the extent provided
herein.
All Holders proposing to distribute their Registrable Securities
through such underwriting shall, together with the Company and the other parties
distributing their securities through such underwriting, enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by the Company. Notwithstanding any other
provision of this Section 18(c), if the underwriter determines that marketing
factors require a limitation of the number of shares to be underwritten, the
underwriter may limit the number of Registrable Securities to be included in the
registration and underwriting, subject to the terms of
17
this Section 18(c). The Company shall so advise all holders of the Company's
securities that would otherwise be registered and underwritten pursuant hereto,
and the number of shares of such securities, including Registrable Securities,
that may be included in the registration and underwriting shall be allocated in
the following manner: shares, other than Registrable Securities and other
securities that are entitled to contractual rights with respect to registration
similar to those provided for in this Section 18(c), requested to be included in
such registration by shareholders shall be excluded, and if a limitation on the
number of shares is still required, the number of Registrable Securities and
other securities that are entitled to contractual rights with respect to
registration that may be included shall be allocated among the holders thereof
in proportion, as nearly as practicable, to the amounts of Registrable
Securities and such other securities held by each such holder at the time of
filing the Registration Statement. For purposes of any such underwriter cutback,
all Registrable Securities and other securities held by any holder that is a
partnership or corporation, shall also include any Registrable Securities held
by the partners, retired partners, shareholders or affiliated entities of such
holder, or the estates and family members of any such partners and retired
partners and any trusts for the benefit of any of the foregoing persons, and
such holder and other persons shall be deemed to be a single "selling holder,"
and any pro rata reduction with respect to such "selling holder" shall be based
upon the aggregate amount of shares carrying registration rights owned by all
entities and individuals included in such "selling holder," as defined in this
sentence. No securities excluded from the underwriting by reason of the
underwriter's marketing limitation shall be included in such registration.
Nothing in this Section 18(c)(ii) is intended to diminish the number of
securities to be included by the Company in the underwriting.
If any Holder disapproves of the terms of the underwriting, it may
elect to withdraw therefrom by written notice to the Company and the
underwriter. The Registrable Securities so withdrawn shall also be withdrawn
from registration.
(iii) Right to Terminate Registration. The Company shall
have the right to terminate or withdraw any registration initiated by it under
this Section 18(c) prior to the effectiveness of such registration whether or
not any Holder has elected to include securities in such registration.
(d) Expenses of Registration. All expenses incurred in connection
with all registrations effected pursuant to Sections 18(a), 18(b), 18(c) and
18(i), including without limitation all registration, filing and qualification
fees (including state securities law fees and expenses), printing expenses,
escrow fees, fees and disbursements of counsel for the Company (and the
reasonable fees and disbursements of one separate counsel for the participating
Holders) and expenses of any special audits incidental to or required by such
registration shall be borne by the Company; provided, however, that the Company
shall not be required to pay stock transfer taxes or underwriters' discounts or
selling commissions relating to Registrable Securities. Notwithstanding anything
to the contrary above, the Company shall not be required to pay for any expenses
of any registration proceeding under Section 18(b) if the registration request
is subsequently withdrawn at the request of the Holders of a majority of the
Registrable Securities to have been registered; provided, however, that in the
event that Holders holding at least 51% of the Registrable Securities agree to
forfeit their right to a demand registration pursuant to Section 18(b) (in which
event such right shall be forfeited by all Holders), then the Company shall be
18
required to pay the expenses of such withdrawn registration. In the absence of
such an agreement to forfeit, the Holders of Registrable Securities to have been
registered shall bear all such expenses pro rata on the basis of the Registrable
Securities to have been registered. Notwithstanding the preceding sentence,
however, if at the time of the withdrawal, the Holders have learned of a
materially adverse change in the condition, business or prospects of the Company
from that known to the Holders at the time of their request, then the Holders
shall not be required to pay any of said expenses and shall retain their rights
pursuant to Section 18(b).
(e) Obligations of the Company. Whenever required under this
Section 18 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(i) prepare and file with the SEC a Registration
Statement with respect to such Registrable Securities and use its diligent
efforts to cause such Registration Statement to become effective, and keep such
Registration Statement effective for the lesser of 120 days or until the Holder
or Holders have completed the distribution relating thereto.
(ii) prepare and file with the SEC such amendments and
supplements to such Registration Statement and the prospectus used in connection
with such Registration Statement as may be necessary to keep such Registration
Statement effective and to comply with the provisions of the 1933 Act with
respect to the disposition of all securities covered by such registration
statement in accordance with the intended methods of disposition by sellers
thereof set forth in such registration statement.
(iii) furnish to the Holders such numbers of copies of a
prospectus, including all exhibits thereto and documents incorporated by
reference therein and a preliminary prospectus, in conformity with the
requirements of the 1933 Act, and such other documents as they may reasonably
request in order to facilitate the disposition of Registrable Securities owned
by them.
(iv) use its diligent efforts to register or otherwise
qualify the securities covered by such Registration Statement under such other
securities laws of such states and other jurisdictions as shall be reasonably
requested by the Holders or the managing underwriter, provided that the Company
shall not be required in connection therewith or as a condition thereto to
qualify to do business or to file a general consent to service of process in any
such states or jurisdictions.
(v) in the event of any underwritten public offering,
enter into and perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(vi) notify each Holder of Registrable Securities covered
by such Registration Statement, at any time when a prospectus relating thereto
is required to be delivered under the 1933 Act, of the happening of any event as
a result of which the prospectus included in such Registration Statement, as
then in effect, includes an untrue statement of a material fact or omits
19
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
(vii) use its diligent efforts to list the Registrable
Securities that are shares of Common Stock covered by such Registration
Statement with any securities exchange on which the Common Stock is then listed.
(viii) make available for inspection by each Holder
including Registrable Securities in such registration, any underwriter
participating in any distribution pursuant to such registration, and any
attorney, accountant or other agent retained by such Holder or underwriter, all
financial and other records, pertinent corporate documents and properties of the
Company, as such parties may reasonably request, and cause the Company's
officers, directors and employees to supply all information reasonably requested
by any such Holder, underwriter, attorney, accountant or agent in connection
with such Registration Statement.
(ix) cooperate with Holders including Registrable
Securities in such registration and the managing underwriters, if any, to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold, such certificates to be in such denominations
and registered in such names as such Holders or the managing underwriters may
request at least two business days prior to any sale of Registrable Securities.
(x) permit any Holder which Holder, in the reasonable
judgment, exercised in good faith, of such Holder, might be deemed to be a
controlling person of the Company, to participate in good faith in the
preparation of such Registration Statement and to cooperate in good faith to
include therein material, furnished to the Company in writing, that in the
reasonable judgment of such Holder and its counsel should be included.
(f) Indemnification.
(i) The Company will, and does hereby undertake to,
indemnify and hold harmless each Holder of Registrable Securities, each of such
Holder's officers, directors, employees, partners and agents, and each Person
controlling such Holder, with respect to any registration, qualification or
compliance effected pursuant to this Section 18, and each underwriter, if any,
and each Person who controls any underwriter, of the Registrable Securities held
by or issuable to such Holder, against all claims, losses, damages and
liabilities (or actions in respect thereto) to which they may become subject
under the 1933 Act, the Securities Exchange Act of 1934, as amended (the "1934
Act"), or other federal or state law arising out of or based on (A) any untrue
statement (or alleged untrue statement) of a material fact contained in any
prospectus, offering circular or other similar document (including any related
Registration Statement, notification, or the like) incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances in which they were made, (B) any violation or alleged violation by
the Company of any federal, state or common law rule or regulation applicable to
the Company in connection with any such registration, qualification or
compliance, or (C) any failure to register or qualify Registrable Securities in
any state where the Company or its agents have affirmatively
20
undertaken or agreed in writing that the Company (the undertaking of any
underwriter chosen by the Company being attributed to the Company) will
undertake such registration or qualification on behalf of the Holders of such
Registrable Securities (provided that in such instance the Company shall not be
so liable if it has undertaken its best efforts to so register or qualify such
Registrable Securities) and will reimburse, as incurred, each such Holder, each
such underwriter and each such director, officer, partner, agent and controlling
person, for any legal and any other expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage, liability or
action; provided that the Company will not be liable in any such case to the
extent that any such claim, loss, damage, liability or expense arises out of or
is based on any untrue statement or omission made in reliance and in conformity
with written information furnished to the Company by such Holder or underwriter
expressly for use therein.
(ii) Each Holder will, and if Registrable Securities held
by or issuable to such Holder are included in such registration, qualification
or compliance pursuant to this Section 18, does hereby undertake to indemnify
and hold harmless the Company, each of its directors, employees, agents and
officers, and each Person controlling the Company, each underwriter, if any, and
each Person who controls any underwriter, of the Company's securities covered by
such a Registration Statement, and each other Holder, each of such other
Holder's officers, partners, directors and agents and each Person controlling
such other Holder, against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any such Registration
Statement, prospectus, offering circular or other document, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances in which they were made, and will reimburse, as incurred, the
Company, each such underwriter, each such other Holder, and each such director,
officer, employee, agent, partner and controlling Person of the foregoing, for
any legal or any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action, in
each case to the extent, but only to the extent, that such untrue statement (or
alleged untrue statement) or omission (or alleged omission) was made in such
Registration Statement, prospectus, offering circular or other document, in
reliance upon and in conformity with written information furnished to the
Company by Holder expressly for use therein; provided, however, that the
liability of each Holder hereunder shall be limited to the net proceeds received
by such Holder from the sale of securities under such Registration Statement. It
is understood and agreed that the indemnification obligations of each Holder
pursuant to any underwriting agreement entered into in connection with any
Registration Statement shall be limited to the obligations contained in this
subsection 18(f)(ii).
(iii) Each party entitled to indemnification under this
Section 18(f) (the "Indemnified Party") shall give notice to the party required
to provide such indemnification (the "Indemnifying Party") of any claim as to
which indemnification may be sought promptly after such Indemnified Party has
actual knowledge thereof, and shall permit the Indemnifying Party to assume the
defense of any such claim or any litigation resulting therefrom; provided that
counsel for the Indemnifying Party, who shall conduct the defense of such claim
or litigation, shall be subject to approval by the Indemnified Party (whose
approval shall not be unreasonably withheld) and the Indemnified Party may
participate in such defense at the Indemnifying Party's
21
expense if representation of such Indemnified Party would be inappropriate due
to actual or potential differing interests between such indemnified party and
any other party represented by such counsel in such proceeding; and provided
further that the failure of any Indemnified Party to give notice as provided
herein shall not relieve the Indemnifying Party of its obligations under this
Section 18, except to the extent that such failure to give notice shall
materially adversely affect the Indemnifying Party in the defense of any such
claim or any such litigation. An Indemnifying Party, in the defense of any such
claim or litigation, may, without the consent of each Indemnified Party, consent
to entry of any judgment or enter into any settlement that includes as an
unconditional term thereof the giving by the claimant or plaintiff therein, to
such Indemnified Party, of a release from all liability with respect to such
claim or litigation.
(iv) In order to provide for just and equitable
contribution in case indemnification is prohibited or limited by law, the
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of such Indemnifying Party and Indemnified
Party shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of material
fact or omission or alleged omission to state a material fact, has been made by,
or relates to information supplied by, such Indemnifying Party or Indemnified
Party, and such Party's relative intent, knowledge, access to information and
opportunity to correct or prevent such actions; provided, however, that, in any
case, (I) no Holder will be required to contribute any amount in excess of the
public offering price of all securities offered by it pursuant to such
Registration Statement less all underwriting fees and discounts and (II) no
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the ▇▇▇▇ ▇▇▇) will be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
(v) The indemnities provided in this Section 18(f) shall
survive the transfer of any Registrable Securities by such Holder.
(g) Information by Holder. The Holder or Holders of Registrable
Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders and the distribution proposed by
such Holder or Holders as the Company may reasonably request in writing and as
shall be required in connection with any registration, qualification or
compliance referred to in this Section 18.
(h) Transfer of Registration Rights. The rights, contained in
Sections 18(b), 18(c) and 18(i) hereof, to cause the Company to register the
Registrable Securities, may be assigned or otherwise conveyed (i) by a
Shareholder pursuant to a Permitted Transfer, and (ii) by Purchaser in (A) a
transaction not involving a change in beneficial ownership or which involves a
Transfer of a significant portion of Purchaser's Registrable Securities; (B) (if
Purchaser or its controlling shareholder is a partnership) transactions
involving distribution without consideration to Purchaser's or its controlling
shareholder's partners, retired partners, or to the estate of any of
22
such partners; or (C) (if Purchaser is a corporation) transactions involving
distribution without consideration to any of its shareholders.
(i) Form S-3. If the Company's stock becomes publicly traded, the
Company shall use its diligent efforts to qualify for registration on Form S-3
or any equivalent form used for the registration of securities under the 1933
Act within 12 months following the effective date of the first registration of
any securities of the Company on Form S-1. After the Company has qualified for
the use of Form S-3 (or equivalent), the Holders of Registrable Securities shall
have one right to request registrations on Form S-3 (or equivalent) thereafter
under this Section 18(i). The Company shall give notice to all Holders of
Registrable Securities of the receipt of a request for registration pursuant to
this Section 18(i) and shall provide a reasonable opportunity for other Holders
to participate in the registration. Subject to the foregoing, the Company will
use its reasonable best efforts to effect as soon as practicable the
registration of all shares of Registrable Securities on Form S-3, as the case
may be, to the extent requested by the Holder or Holders thereof for purposes of
disposition; provided, however, that the Company shall not be obligated to
effect any such registration if (A) the Holders, together with the holders of
any other securities of the Company entitled to inclusion in such registration,
propose to sell Registrable Securities and such other securities (if any) at an
aggregate price to the public of less than $500,000, or (B) the Company shall
have already made two registrations on Form S-3 within the 12-month period
immediately preceding the request. Notwithstanding the foregoing, nothing herein
shall restrict, prohibit, or limit in any way a Holder's ability to exercise its
registration rights under Sections 18(b) or 18(c) hereof.
(j) Delay of Registration. No Holder shall have any right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 18.
(k) Limitations on Subsequent Registration Rights. From and after
the date of this Agreement, the Company shall not, without the prior written
consent of the Holders of at least 51% of the Registrable Securities then
outstanding and not registered, enter into any agreement with any holder or
prospective holder of any securities of the Company that would allow such holder
or prospective holder to (i) require the Company to effect a registration or
(ii) include any securities in any registration filed under Section 18(b), 18(c)
or 18(i) hereof, unless, under the terms of such agreement, such holder or
prospective holder may include such securities in any such registration only to
the extent that the inclusion of such securities will not diminish the amount of
Registrable Securities that are included in such registration (except with
respect to any demand rights of any Holder or prospective Holder).
(l) Rule 144 Reporting. With a view to making available to the
Holders the benefits of certain rules and regulations of the SEC that may permit
the sale of the Registrable Securities to the public without registration, the
Company, following a Qualified Public Offering, agrees to use its diligent
efforts to:
(i) Make and keep current public information available,
within the meaning of SEC Rule 144 or any similar or analogous rule promulgated
under the 1933 Act, at all times after it has become subject to the reporting
requirements of the 1934 Act;
23
(ii) File with the SEC, in a timely manner, all reports
and other documents required of the Company under the 1933 Act and 1934 Act
(after it has become subject to such reporting requirements);
(iii) So long as a Holder owns any Registrable Securities,
furnish to such Holder forthwith upon request a written statement by the Company
as to its compliance with the reporting requirements of said Rule 144 (at any
time commencing 90 days after the effective date of the first registration filed
by the Company for an offering of its securities to the general public), the
1933 Act and the 1934 Act (at any time after it has become subject to such
reporting requirements); a copy of the most recent annual or quarterly report of
the Company; and such other reports and documents as a Holder may reasonably
request in availing itself of any rule or regulation of the SEC allowing it to
sell any such securities without registration.
(m) "Market Stand Off" Agreement. Each Holder hereby agrees that
during the 180 day period following the effective date of a registration
statement of the Company filed under the 1933 Act, it shall not, to the extent
requested by the Company and any underwriter, sell, pledge, hypothecate,
transfer, make any short sale of, loan, grant any option or right to purchase
of, or otherwise transfer or dispose of (other than to donees who agree to be
similarly bound) any Common Stock held by it at any time during such period
except Common Stock included in such registration.
(n) Termination of Registration Rights. The rights of any
particular Holder to cause the Company to register securities under Sections
18(b), 18(c) or 18(i) hereof shall terminate as to any Holder on the later of
(i) two (2) years following the consummation of a Qualified Public Offering, or
(ii) the date such Holder is able to dispose of all of its Registrable
Securities in any 90 day period pursuant to SEC Rule 144 (or any similar or
analogous rule promulgated under the 1933 Act).
SECTION 19. Legend.
Each of the parties hereto agrees that a legend in substantially the
following form shall be placed on the certificates representing any Shares owned
by it:
THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO THE TERMS OF AN INVESTOR RIGHTS AGREEMENT DATED AS OF
OCTOBER 13, 1999, A COPY OF WHICH IS ON FILE IN THE COMPANY'S OFFICES.
THE INVESTOR RIGHTS AGREEMENT, AMONG OTHER THINGS, CONTAINS
RESTRICTIONS ON THE TRANSFERABILITY OF THE SECURITIES REPRESENTED BY
THIS CERTIFICATE AND PUT AND CALL OPTIONS WITH RESPECT TO CERTAIN
SECURITIES. THE COMPANY WILL NOT REGISTER THE TRANSFER OF SUCH
SECURITIES ON THE BOOKS OF THE COMPANY UNLESS AND UNTIL THE TRANSFER
HAS BEEN MADE IN COMPLIANCE WITH THE TERMS OF THE INVESTOR RIGHTS
AGREEMENT.
24
SECTION 20. Specific Performance and Injunctive Relief; Arbitration.
Each of the parties hereto acknowledges and agrees that in the event of
any breach of this Agreement, the non-breaching party or parties would be
irreparably harmed and could not be made whole by monetary damages, and
therefore hereby waives the defense in any action for specific performance or
injunctive relief that a remedy at law would be adequate. Each of the parties
hereto further agrees that the Purchaser and the Company, in addition to any
other remedy to which it may be entitled at law or in equity, shall be entitled
to compel specific performance of this Agreement and to obtain injunctive relief
in any action instituted in a court of proper jurisdiction.
[Arbitration provision to be added]
SECTION 21. Miscellaneous.
(a) References; Headings. Unless otherwise indicated, "sections,"
"subsections" and "clauses" mean and refer to the sections, subsections and
clauses of this Agreement; words such as "herein," "hereinafter," "hereof,"
"hereto" and "hereunder" refer to this Agreement as a whole, unless the context
otherwise requires; and the headings in this Agreement are for convenience of
reference only and in no way define, limit or describe the scope or intent of
any provisions or Sections of this Agreement. Unless the context otherwise
requires, words denoting any gender shall include all genders -- male, female
and neuter -- as applicable. The word "including" shall mean "including without
limitation."
(b) Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties hereto in respect of the subject
matter contained herein, and there are no restrictions, promises,
representations, warranties, covenants or undertakings with respect to the
subject matter hereof other than those expressly set forth or referred to
herein. This Agreement supersedes all prior agreements and understandings
between the parties hereto with respect to the subject matter hereof. In the
event of any inconsistency or conflict between the provisions contained herein
and the provisions of the Articles of Incorporation or Bylaws of the Company,
the provisions hereof shall control and the parties hereto shall use their best
efforts to cause the Company to correct such inconsistency or conflict. All
exhibits and schedules, attained herein are by this reference made apart hereof
as though fully set forth herein.
(c) Notices. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be by
registered or certified first-class mail, return receipt requested, telecopy,
recognized overnight courier service or personal delivery:
if to the Company:
Blackbaud, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
25
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to Purchaser and to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to Purchaser:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Capital Partners III, L.P.
c/o Hellman & ▇▇▇▇▇▇▇▇ LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to Shareholder, at the address set forth on Exhibit A.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; when delivered by
courier, if delivered by commercial overnight courier service; five business
days after being deposited in the mail, postage prepaid, if mailed; and the
first business day after receipt is acknowledged, if telecopied.
(d) Applicable Law. The laws of the State of South Carolina shall
govern the interpretation, validity and performance of the terms of this
Agreement, regardless of the law that might be applied under applicable
principles of conflicts of laws.
(e) Severability. The invalidity, illegality or unenforceability
of one or more of the provisions of this Agreement in any jurisdiction shall not
affect the validity, legality or
26
enforceability of the remainder of this Agreement in such jurisdiction or the
validity, legality or enforceability of this Agreement, including any such
provision, in any other jurisdiction, it being intended that all rights and
obligations of the parties hereunder shall be enforceable to the fullest extent
permitted by law.
(f) Successors and Assigns; No Third Party Beneficiaries. The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, successors and permitted assigns,
which in the case of a transfer to more than one transferee shall mean the
transferee or transferees designated by the transferor. This Agreement is made
solely and specifically among and for the benefit of the parties hereto and
their respective permitted successors and assigns, and no other Person, unless
express provisions made herein to the contrary, shall have any rights, interests
or claims hereunder or be entitled to any benefits under or on account of this
Agreement as a third party beneficiary or otherwise.
(g) Defaults. A default by any party to this Agreement in such
party's compliance with any of the terms or conditions hereof or performance of
any of the obligations of such party hereunder shall not constitute or excuse a
default by any other party.
(h) Recapitalizations; Exchanges; etc. The provisions of this
Agreement shall apply, to the full extent set forth herein with respect to the
Shares, to any and all shares of capital stock of the Company or any successor
or assign of the Company (whether by merger, consolidation, sale of assets or
otherwise) which may be issued in respect of, in exchange for, or in
substitution of the Shares, by reason of a stock dividend, recapitalization,
reclassification, merger, consolidation or otherwise.
(i) Amendments; Waivers. This Agreement may not be amended,
modified or supplemented and no waivers of or consents to departures from the
provisions hereof may be given unless consented to in writing by the Company and
Persons holding more than ninety percent (90%) of the total outstanding Shares.
(j) Variation in Pronouns; Construction. All pronouns and any
variations thereof shall be deemed to refer to the masculine, feminine or
neuter, singular or plural, as the identity of the antecedent Person or Persons
may require. Whenever used herein, "or" shall include both the conjunctive and
disjunctive, "any" shall mean "one or more or all," and "including" shall mean
"including without limitation."
(k) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same Agreement. Signatures may be exchanged by telecopy,
with original signatures to follow. Each party to this Agreement agrees that it
will be bound by its own telecopied signature and that it accepts the telecopied
signatures of the other parties to this Agreement.
(1) Further Action. Each party hereto, upon the request of the
Company or Purchaser, as applicable, agrees to perform all further acts and
execute, acknowledge or deliver any instruments or documents and to perform such
additional acts as may be reasonably necessary, appropriate or desirable to
carry out the provisions of this Agreement.
27
(m) No Implied Waiver. No failure on the part of the Company or
any of the other parties hereto (and their successors and assigns) to exercise,
and no delay or other forbearance or indulgence in exercising, any right,
remedy, power or privilege under this Agreement, except as provided herein,
shall operate as a waiver thereof; nor, except as provided herein, shall any
single or partial exercise of any right, remedy, power or privilege under this
Agreement preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. Except as otherwise provided herein, no
term or provision of this Agreement shall be deemed waived and no breach excused
unless such waiver or excused breach is in writing and signed by the party
against whom it is asserted. The parties hereto (and their successors and
assigns) shall have the right at all times to enforce the provisions of this
Agreement in strict accordance with the terms hereof, and no waiver of any
provision of this Agreement, except as otherwise provided herein, shall
constitute a waiver of any other provision, nor shall, except as otherwise
provided herein, any waiver constitute a continuing waiver unless otherwise
provided in writing.
[SIGNATURE PAGES TO FOLLOW]
28
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be
duly executed as of the date first above written.
BLACKBAUD, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
Title: VP
------------------
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ CAPITAL PARTNERS III, L.P.
By: H&F Investors III, its General Partner
By: ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Associates III, L.P.,
its Managing General Partner
By: H&F Investors III, Inc., its Managing
General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------
Title: Vice President
------------------
H&F ORCHARD PARTNERS III, L.P.
By: H&F Investors III, its General Partner
By: ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Associates III, L.P.,
its Managing General Partner
By: H&F Investors III, Inc., its Managing
General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------
Title: Vice President
------------------
29
H&F INTERNATIONAL PARTNERS III, L.P.
By: H&F Investors III, its General Partner
By: ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Associates III, L.P.,
its Managing General Partner
By: H&F Investors III, Inc., its Managing
General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------
Title: Vice President
------------------
POBEDA PARTNERS LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------
Title: Director
------------------
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ Nigel ▇. ▇. ▇▇▇▇▇▇
-----------------------------------------------
Nigel ▇. ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
30
/s/ ▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇
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Tarek ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 1999 RETAINED
ANNUITY TRUST - EF, u/t/a dated June 17, 1999
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Trustee
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 1999 RETAINED
ANNUITY TRUST - TB, u/t/a dated June 17, 1999
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Trustee
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 1999 RETAINED
ANNUITY TRUST - LC, u/t/a dated June 17, 1999
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Trustee
31
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 1999 RETAINED
ANNUITY TRUST, u/t/a dated June 17, 1999
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Trustee
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 1999 RETAINED
ANNUITY TRUST, u/t/a dated August 4, 1999
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Trustee
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 1999 RETAINED
ANNUITY TRUST, u/t/a dated July 14, 1999
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Trustee
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 1999 RETAINED
ANNUITY TRUST, u/t/a dated July 12, 1999
By: /s/ Nigel ▇. ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Trustee
32