FORM OF IRREVOCABLE PROXY AND TAG-ALONG AGREEMENT
Exhibit 4.4
FORM OF
This Irrevocable Proxy and Tag-Along Agreement (this “Agreement”) is entered into as
of the date(s) set forth on the signature pages attached hereto, by and among (a) Explorer Coinvest LLC, a Delaware limited
liability company (the “Initial Carlyle Stockholder”) and the stockholder whose name is set
forth on the signature page hereof (the “Individual Stockholder”).
RECITALS:
WHEREAS, the Carlyle Stockholder currently is the owner of 9,566,000 shares of Company Common
Stock;
WHEREAS, the Individual Stockholder currently is the owner of the number of shares of Company
Common Stock, Company Non Voting Common Stock, Company Restricted Common Stock, and Company Special
Voting Stock and Company Options to purchase the number of shares of Company Common Stock, set
forth on the signature page hereof; and
WHEREAS, the Initial Carlyle Stockholder wishes to enter into a pro rata tag-along agreement
with the Individual Stockholder in exchange for the grant by the Individual Stockholder of an
irrevocable proxy to the Initial Carlyle Stockholder.
NOW, THEREFORE, in consideration of the mutual promises, covenants, representations and
warranties made herein and of the mutual benefits to be derived herefrom, the parties hereto agree
as follows:
Section 1 Tag-Along Right.
(a) In the event that any Carlyle Stockholder(s) (the “Initiating Stockholder(s)”)
propose(s) to Transfer any Securities to a Third Party Purchaser other than (i) to a
Permitted Transferee, (ii) pursuant to a registered public offering (it being understood
that the Individual Stockholder has piggyback registration rights with respect to registered public
offerings), (iii) in a bona fide sale to the public in accordance with Rule 144 under the
Securities Act or (iv) in a pro-rata distribution made by any Carlyle Stockholder(s) to its
partners or members for no additional consideration, then the Individual Stockholder shall have the
right (the “Tag-Along Right”) to require that the proposed Third Party Purchaser purchase
from the Individual Stockholder up to a number of whole Securities (which securities shall not
include Company Special Voting Stock (except to the extent described in the last sentence of this
Section 1(a)) or unvested Company Restricted Common Stock, or Company Options that are not
exercisable, except to the extent such Company Restricted Common Stock vests or Company Options
become exercisable as a result of the transactions contemplated by the applicable Sale Notice)
equal to the product of (x) the total number of Securities that the proposed Third Party
Purchaser has agreed, committed or is willing to purchase and (y) a fraction, the numerator
of which is the
Aggregate Quantity of Securities (excluding any Securities that are not Proxy Shares) owned by
the Individual Stockholder, and the denominator of which is the Aggregate Quantity of Securities
held by all holders of Securities (such product, the “Tag Eligible Securities”).
Notwithstanding anything to the contrary in this Section 1, if the Individual Stockholder
sells any Company Options issued under the Company Rollover Stock Plan to a Third Party Purchaser
pursuant to this Section 1, the Individual Stockholder (and, if applicable, a Permitted
Transferee and/or Related Trust of the Individual Stockholder) shall also sell, for no additional
consideration, a corresponding number of shares of Company Special Voting Stock to such Third Party
Purchaser.
(b) The Initiating Stockholder(s) shall notify the Individual Stockholder in writing in the
event such Initiating Stockholder(s) propose(s) to make a Transfer or series of Transfers giving
rise to the Tag-Along Right at least fifteen (15) Business Days prior to the date on which such
Initiating Stockholder(s) expect(s) to consummate such Transfer (the “Sale Notice”) which
notice shall specify the number of Securities which the Third Party Purchaser intends to purchase
in such Transfer and the Third Party Terms with respect thereto. The Tag-Along Right may be
exercised by the Individual Stockholder by delivery of a written notice to the Company and the
Initiating Stockholder(s) proposing to sell Securities (the “Tag-Along Notice”) within ten
(10) Business Days following receipt of the Sale Notice from such Initiating Stockholder(s). The
Tag-Along Notice shall state the number of each type of Securities (which Securities shall not
include Company Special Voting Stock (except to the extent described in the last sentence of
Section 1(a)) or unvested Company Restricted Common Stock, or Company Options that are not
exercisable, except to the extent such Company Restricted Common Stock vests or Company Options
become exercisable as a result of the transactions contemplated by the applicable Sale Notice, and
which shall not exceed the Tag Eligible Securities), that the Individual Stockholder proposes to
include in such Transfer to the proposed Third Party Purchaser (such securities the “Transfer
Securities”). In the event that the proposed Third Party Purchaser does not purchase from the
Individual Stockholder’s Transfer Securities, then the Initiating Stockholder(s) shall not be
permitted to sell any Securities to the Third Party Purchaser, subject to the Initiating
Stockholder’s right to send a new Sale Notice in accordance with the procedures set forth in this
Section 1.
(c) At the closing of the Transfer to any Third Party Purchaser pursuant to this Section
1, the Third Party Purchaser shall remit to the Individual Stockholder exercising its rights
under this Section 1, (i) the consideration for the Securities held by the
Individual Stockholder sold pursuant hereto, minus (ii) the Individual
Stockholder’s pro rata portion of any such consideration to be placed in escrow or otherwise held
back in accordance with the Third Party Terms, minus (iii) the aggregate exercise
price of any Company Options being Transferred by the Individual Stockholder to such Third Party
Purchaser, against transfer of such Securities subject to the Tag-Along Rights, free and clear of
all liens and encumbrances, by delivery by the Individual Stockholder of (A) certificates
for such Securities, duly endorsed for Transfer or with duly executed stock powers reasonably
acceptable to the Company and such Third Party Purchaser and/or (B) an instrument
evidencing the Transfer of the Company Options subject to
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the Tag-Along Right reasonably acceptable to the Company and such Third Party Purchaser, and
the compliance by the Individual Stockholder with any other conditions to closing or payment of
consideration generally applicable to the Initiating Stockholder(s) and all other holders of
Securities selling Securities in such transaction; provided, however, that the
Individual Stockholder shall not be required to bear more than the Individual Stockholder’s pro
rata share (determined based on the number of Securities sold in the transactions contemplated by
the Tag-Along Notice) of all liabilities for the representations, warranties and other obligations
incurred in connection with the transactions contemplated by the Tag-Along Notice (other than with
respect to representations and warranties relating to the ownership of the Individual Stockholder’s
Securities or otherwise relating solely to the Individual Stockholder). Notwithstanding anything
to the contrary in this Section 1, the Individual Stockholder shall bear its pro rata share
of the aggregate fees, costs and expenses of all such transactions.
Section 2 Irrevocable Proxy.
(a) In consideration of the Tag-Along Right, the Individual Stockholder hereby irrevocably
appoints the Initial Carlyle Stockholder, and any designee of the Initial Carlyle Stockholder, and
each of them individually, as the true and lawful attorney-in-fact and proxy of the Individual
Stockholder solely with respect to the matters set forth below, for and in the Individual
Stockholder’s name, place and stead, with full power of substitution and resubstitution, to vote
the Proxy Shares or act by written consent on behalf of the Proxy Shares, solely with respect to
the following matters:
(i) the election or removal of members of the board of directors of the
Company; and
(ii) the consent to or approval of any Company Sale that is approved by the
Board and the holders of a majority of the then-outstanding Voting Shares or any
items submitted to the stockholders of the Company for their consent or approval in
connection therewith (including, without limitation, any related votes under
Sections 242, 251, 252, 254, 257, 258, 263, 264 or 271 of the Delaware General
Corporation Law).
The Individual Stockholder hereby ratifies and confirms and undertakes to ratify and confirm all
that the Initial Carlyle Stockholder, in its capacity as the proxyholder of the Proxy Shares, may
lawfully do or cause to be done by virtue of the rights hereby granted.
(b) The proxy and power of attorney granted to the Initial Carlyle Stockholder pursuant to
Section 2(a) of this Agreement by the Individual Stockholder shall, except as herein
provided, be irrevocable during the term of this Agreement, shall be deemed to be coupled with an
interest sufficient in law to support an irrevocable proxy and shall revoke any and all prior
proxies granted by the Individual Stockholder with respect to the Proxy Shares (other than any
prior proxies granted to the Initial Carlyle Stockholder pursuant to Section 16(m) of the
Stockholders Agreement but including, if such Individual Stockholder is not a natural person,
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any prior proxies granted to the Related Individual of such Individual Stockholder). The
power of attorney granted by the Individual Stockholder herein is a durable power of attorney and
shall survive the dissolution or bankruptcy of the Individual Stockholder, and shall revoke any and
all prior powers of attorney granted by the Individual Stockholder with respect to the Proxy
Shares. The proxy and power of attorney granted hereunder shall terminate upon the termination of
this Agreement.1
Section 3 Certain Definitions. Capitalized terms used herein and not otherwise defined
shall have the meanings assigned to such terms in the Stockholders Agreement.
“Affiliate” means, with respect to any Person, any Person directly or indirectly
controlling, controlled by or under common control with such Person. For purposes of this
definition, “control” (and its derivatives) means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a Person, whether by
contract, through the ownership of voting securities, as trustee or executor, or otherwise.
“Aggregate Quantity of Securities” means, with reference to Securities owned by any
Person at any time or Securities outstanding at any time for purposes of any computation hereunder,
the number of shares of Company Common Stock, Company Restricted Common Stock and Company
Non-Voting Common Stock issued and outstanding and held by such Person or all Persons, as the case
may be, plus the number of shares of Company Common Stock issuable upon exercise, exchange or
conversion of Company Options held by such Person or all Persons, as the case may be, excluding
(x) any Company Options issued under the Equity Incentive Plan which are not vested at such
time and (y) Company Options that have an exercise, exchange or conversion price per share
greater than the price per share to be paid by the applicable Third Party Purchaser. Further, the
phrase “number of Securities” held by any Person or group of Persons or to be Transferred shall
mean the number of shares of Company Common Stock, Company Restricted Common Stock and Company
Non-Voting Common Stock held by such Person or group of Persons or to be Transferred, plus the
number of shares of Company Common Stock issuable upon exercise, exchange or conversion of Company
Options held by such Person or group of Persons (other than Company Options that have an exercise,
exchange or conversion price per share greater than the price per share to be paid by the
applicable Third Party Purchaser).
“Agreement” shall have the meaning set forth in the Preamble.
“Carlyle Stockholders” means (a) the Initial Carlyle Stockholder and
(b) any Affiliates of the Initial Carlyle Stockholder to which (i) the Initial
Carlyle Stockholder or any other Person transfers Company Common Stock or (ii) the Company
issues Company Common Stock.
| 1 | Note: To the extent that any individuals execute this Agreement within New York State, this Agreement will need to be revised to conform with New York’s power of attorney requirements. |
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“Company” means Booz ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Holding Corporation, a Delaware corporation.
“Company Common Stock” means shares of the Company’s Class A Common Stock, par value
$0.01 per share.
“Company Non-Voting Common Stock” means shares of the Company’s Class B Non-Voting
Common Stock, par value $0.01 per share.
“Company Options” means options to purchase shares of Company Common Stock pursuant
to an option agreement and the Company Rollover Stock Plan, the Equity Incentive Plan or any
similar equity-based plans approved by the Board.
“Company Restricted Common Stock” means shares of the Company’s Class C Restricted
Common Stock, par value $0.01 per share.
“Company Rollover Stock Plan” means the Company’s Officer’s Rollover Stock Plan, as
such plan may be modified or supplemented from time to time by the board of directors of the
Company.
“Company Sale” means the consummation of any transaction or series of transactions
(including, without limitation, any merger, recapitalization, reorganization, sale of stock or
other similar transaction) pursuant to which one or more Persons or group of Persons (other than
any Carlyle Stockholder) acquires (a) Securities possessing the voting power (without
taking into account this Agreement or any other agreement or proxy limiting the voting power of the
holder of such Securities) sufficient to elect a majority of the members of the board of directors
of the Company or the board of directors of the successor to the Company (whether such transaction
is effected by merger, consolidation, recapitalization, sale or transfer of the Company’s capital
stock or otherwise) or (b) all or substantially all of the assets of the Company and its
subsidiaries.
“Company Special Voting Stock” means shares of the Company’s Class E Special Voting
Stock, par value $0.03 per share.
“Individual Stockholder” shall have the meaning set forth in the Preamble.
“Initiating Stockholder” shall have the meaning set forth in Section 1(a).
“Party” means any of the parties to this Agreement.
“Permitted Transfer” means (i) any Transfer of Company Common Stock, Company
Restricted Common Stock or Company Non-Voting Common Stock by an Individual Stockholder that is a
natural person (or a trust or entity of the type described below) (A) by gift to, or for
the benefit of, any member or members of his or her immediate family (which shall include any
spouse, or any lineal ancestor or descendant, niece, nephew, adopted child or sibling of him or her
or such spouse, niece, nephew or adopted child), (B) to a trust under which the
distribution of the Securities may be made only by such Individual Stockholder and/or such
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Individual Stockholder’s immediate family or (C) to a partnership or limited liability
company for the benefit of the immediate family of such Individual Stockholder and the partners or
members of which are only such Individual Stockholder and such Individual Stockholder’s immediate
family, (ii) any Transfer of such Securities by an Individual Stockholder that is a natural
person to the heirs, executors or legatees of such Individual Stockholder by operation of law or
court order upon the death or incapacity of such Individual Stockholder; or (iii) any
Transfer of such Securities by an Individual Stockholder that is not a natural person to an
Affiliate; provided, that such Affiliate does not engage in any Competitive Activity (as
defined in the Stockholders Agreement).
“Permitted Transferee” means the recipient of any Securities pursuant to a Permitted
Transfer.
“Person” means any individual, corporation, partnership, limited partnership, limited
liability company, syndicate, trust, association or other entity.
“Proxy Shares” means the outstanding Securities owned by the Individual Stockholder as
of the date hereof, together with any Securities subsequently issued to the Individual Stockholder
by the Company.
“Related Trust” means, for any natural person, any trusts or entities to which such
natural person transferred, assigned or otherwise granted (i) Securities of the Company or
(ii) securities of Booz ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. that were exchanged for Securities of the
Company.
“Related Individual” means, for any entity or trust, the natural person who initially
transferred, assigned or otherwise granted to such entity or trust (i) Securities of the Company or
(ii) securities of Booz ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. that were exchanged for Securities of the Company.
“Sale Notice” shall have the meaning set forth in Section 1(b).
“Securities” means (a) (i) shares of Company Common Stock,
(ii) shares of Company Restricted Common Stock, (iii) shares of Company Non-Voting
Common Stock, (iv) shares of Company Special Voting Stock and (v) Company Options;
and (b) any securities issued or issuable with respect to any of the foregoing (x)
upon any conversion or exchange thereof, (y) by way of stock dividend or other
distribution, stock split or reverse stock split or (z) in connection with a combination of
shares, recapitalization, merger, consolidation, exchange offer or other reorganization.
“Stockholders Agreement” means that certain stockholders agreement, dated as of July
30, 2008, by and among the Company and its stockholders, as amended from time to time.
“Tag-Along Notice” shall have the meaning set forth in Section 1(b).
“Tag-Along Right” shall have the meaning set forth in Section 1(a).
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“Tag Eligible Securities” shall have the meaning set forth in Section 1(a).
“Third Party Purchaser” means Persons other than an Affiliate of the Carlyle
Stockholder.
“Transfer” means any direct or indirect sale, transfer, assignment, conveyance,
pledge, by operation of law or otherwise, or other encumbrance or disposition, but does not include
the sale of any shares of Company Special Voting Stock of the Company in accordance with the
Company Rollover Stock Plan.
“Transfer Securities” shall have the meaning set forth in Section 1(b).
“Voting Shares” means shares of Company Common Stock, Company Restricted Common Stock
and Company Special Voting Stock.
Section 4 Miscellaneous.
(a) Effective Time. This Agreement shall become effective upon the
effectiveness of the registration statement relating to the initial
public offering by the Company of Company Common Stock and shall be
null and void with no force and effect if such initial public
offering is not consummated within 60 days thereafter.
(b) Effect of Transfers of Proxy Shares. Except in connection with a Permitted
Transfer, (i) no Transfer of Securities by the Individual Stockholder (or any of its
Permitted Transferees) shall result in the transfer to the transferee of any Tag-Along Rights with
respect to such transferred Securities and (ii) immediately prior to such Transfer, the
proxy granted herein to the Carlyle Stockholder with respect to such transferred Securities shall
terminate. In the event of a Transfer of any Proxy Shares to a Permitted Transferee by the
Individual Stockholder, the Proxy Shares so Transferred shall continue to be subject to the terms
and conditions of this Agreement and the Permitted Transferee shall take such Proxy Shares subject
to the rights and obligations set forth herein.
(c) Assignment. This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective legal representatives, heirs, legatees, successors, and, to the extent
set forth in Section 4(b), transferees pursuant to Permitted Transfers, and shall not otherwise be
assignable (whether by operation of law or otherwise) by any Party without the prior written
consent of the other Party.
(d) Brokerage Accounts. The Individual Stockholder agrees that all Proxy Shares owned
by the Individual Stockholder or any of its Permitted Transferees shall be held in the name of the
Individual Stockholder or such Permitted Transferee and not in the name of any broker, brokerage
firm or other nominee.
(e) Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware, without giving effect to its principles or rules
of conflict of laws to the extent such principles or rules are not mandatorily applicable by
statute and would require or permit the application of the laws of another jurisdiction.
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(f) Termination. This Agreement, and the respective rights and obligations of the
Parties, shall terminate immediately upon the earliest to occur of (x) the execution by the
Carlyle Stockholder and the Individual Stockholder of a written agreement to terminate this
Agreement, (y) such time as more than 60% of the Securities have been sold to the public
pursuant to an effective registration statement (other than a sale by the Company pursuant to a
registration statement on Form S-8) or in accordance with Rule 144 or another exemption from
registration or (z) such time when the Carlyle Stockholders cease collectively to own and
have the power to dispose of Company Common Stock, Company Non-Voting Common Stock and Company
Restricted Common Stock representing at least twenty-five percent (25%) of the interests in the
Company represented by all issued and outstanding shares of Company Common Stock, Company
Non-Voting Common Stock and Company Restricted Common Stock.
(g) Specific Performance; Submission to Jurisdiction. The Parties agree that
irreparable damage would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It is accordingly
agreed that the Parties shall be entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions of this Agreement in federal
and state courts located in Wilmington, Delaware, this being in addition to any other remedy to
which such Party is entitled at law or in equity. In addition, each of the Parties hereto
(i) consents to submit itself to the personal jurisdiction of the federal and state courts
located in Wilmington, Delaware in the event any dispute arises out of this Agreement or any of the
transactions contemplated by this Agreement; (ii) agrees that it will not attempt to deny
or defeat such personal jurisdiction by motion or other request for leave from such court,
(iii) agrees that it will not bring any action relating to this Agreement or any of the
transactions contemplated by this Agreement in any court other than the federal or state courts
located in Wilmington, Delaware, and (iv) to the fullest extent permitted by Law, consents to
service being made through the notice procedures set forth in Section 4(f). Each Party
hereto hereby agrees that, to the fullest extent permitted by Law, service of any process, summons,
notice or document by U.S. registered mail to the respective addresses set forth in Section
4(f) shall be effective service of process for any suit or proceeding in connection with this
Agreement or the transactions contemplated hereby.
(h) Interpretation. The headings of the Sections contained in this Agreement are
solely for the purpose of reference, are not part of the agreement of the Parties and shall not
affect the meaning or interpretation of this Agreement. The words “this Agreement”, “herein”,
“hereunder”, “hereof”, “hereby”, or other words of similar import refer to this Agreement as a
whole and not to any particular Article, Section or other subdivision hereof. Unless the context
requires otherwise, pronouns in the masculine, feminine and neuter genders shall be construed to
include any other gender, and words in the singular form shall be construed to include the plural
and vice versa.
(i) Notices. All notices and other communications provided for or permitted hereunder
shall be in writing and shall be deemed to have been duly given and received when
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delivered by
overnight courier or hand delivery, when sent by telecopy, or five (5) days after mailing if sent
by registered or certified mail (return receipt requested) postage prepaid, to the Parties at the
following addresses (or at such other address for any Party as shall be specified by like notices).
| (i) | If to the Carlyle Stockholder, addressed to the Carlyle Stockholder, c/o The Carlyle Group, at: |
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
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Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Debevoise & ▇▇▇▇▇▇▇▇ LLP
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
And a copy to:
Booz ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
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Attention: Law Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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Attention: Law Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
| (ii) | If to the Individual Stockholder, to the address set forth on the Individual Stockholder’s signature page hereto |
With a copy to:
Booz ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Attention: Law Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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Attention: Law Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(j) Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which together shall be deemed to
constitute one and the same agreement. Any facsimile copies hereof or signature thereon
shall, for all purposes, be deemed originals.
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(k) Attorney’s Fees. In any action or proceeding brought to enforce any provision of
this Agreement, the successful Party shall be entitled to recover reasonable attorney’s fees and
expenses in addition to any other available remedy.
(l) Severability. In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstances, is held invalid, illegal, or unenforceable
in any respect for any reason, the validity, legality, and enforceability of any such provision in
every other respect and of the remaining provisions contained herein shall not be in any way
impaired thereby.
(m) Integration. This Agreement constitutes the entire agreement among the parties
pertaining to the subject matter hereof and supersedes all prior agreements and understandings of
the parties in connection therewith.
[remainder of page intentionally left blank.]
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IN
WITNESS WHEREOF, the Parties have executed this Agreement as of the
date(s) set forth below.
| EXPLORER COINVEST LLC |
||||
| By: | Carlyle Partners V US, L.P., its managing member | |||
| By: | TC Group V US, L.P., its general partner | |||
| By: | TC Group V US, L.L.C., its general partner | |||
| By: | TC Group Investment Holdings, L.P., its managing member | |||
| By: | TCG Holdings II, L.P., its general partner | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Date: | ||||
[Signature page to Irrevocable Proxy and Tag-Along Agreement]
| Date: |
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| INDIVIDUAL STOCKHOLDER |
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| Name: | ||||
| Address: | ||||
| If the Individual Stockholder is not a natural person: |
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| By: | ||||
| Name: | ||||
| Title: | ||||
Company Common Stock: ___________ shares
Company Non Voting Common Stock: __________ shares
Company Restricted Common Stock: ___________ shares
Company Special Voting Stock: ___________ shares
Company Options to purchase: ___________ shares
If the Individual Stockholder is not a natural person,
solely for the purposes of Section 2(b), accepted and agreed by:
solely for the purposes of Section 2(b), accepted and agreed by:
Signature of
Related Individual: ________________________
Related Individual: ________________________
Name: ________________________
[Signature page to Irrevocable Proxy and Tag-Along Agreement]