Exhibit 2.4
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STOCKHOLDERS' AGREEMENT
By and Among
Boron, XxXxxx & Associates, Inc.,
Xxxxxxx X. XxXxxx,
Xxxxxxx Xxxxx,
Xxxxxxxxxxx Xxxxxxx
and
Xxxxxxx X. Xxxx
and
The Investors
as defined herein and set forth
on the signature pages hereto
Dated as of December 4, 1996
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TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS.....................................................2
Section 1.1 Construction of Terms..................................2
Section 1.2 Terms Not Defined......................................2
Section 1.3 Number of Shares of Stock..............................2
Section 1.4 Defined Terms..........................................2
ARTICLE II. REPRESENTATIONS AND WARRANTIES.................................4
Section 2.1 Representations and Warranties of the Investors........4
Section 2.2 Representations and Warranties of the Founders.........4
Section 2.3 Representations and Warranties of the Company..........5
ARTICLE III. RESTRICTIONS ON TRANSFER; RIGHT OF LAST REFUSAL;
CO-SALE AND DRAG-ALONG PROVISION.......................5
Section 3.1 Restrictions on Transfer...............................5
Section 3.2 Right of Last Refusal..................................6
Section 3.3 Co-Sale Option.........................................8
Section 3.4 Drag-Along Obligations................................10
Section 3.4A Founder Co-Sale Option................................11
Section 3.5 Contemporaneous Transfers.............................12
Section 3.6 Assignment............................................13
Section 3.7 Prohibited Transfers..................................13
ARTICLE IV. RIGHTS TO PURCHASE...........................................13
Section 4.1 Right to Participate in Certain Sales of
Additional Securities.................................13
Section 4.2 Assignment of Rights..................................14
ARTICLE V. REGISTRATION RIGHTS...........................................14
Section 5.1 Piggyback Registration Rights.........................15
Section 5.2 Demand Registration Rights............................15
Section 5.3 Form S-3..............................................16
Section 5.4 Registrable Shares....................................17
Section 5.5 Further Obligations of the Company....................18
Section 5.6 Indemnification; Contribution.........................19
Section 5.7 Rule 144 Requirements.................................21
(i)
Page
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Section 5.8 Market Stand-Off......................................22
Section 5.9 Transfer of Registration Rights.......................22
ARTICLE VI. ELECTION OF DIRECTORS........................................22
Section 6.1 Management Representatives............................22
Section 6.2 Committees of the Board...............................23
Section 6.3 Assignment............................................23
ARTICLE VII. MISCELLANEOUS PROVISIONS.....................................23
Section 7.1 Survival of Representations and Covenants.............23
Section 7.2 Legend on Securities..................................23
Section 7.3 Amendment and Waiver..................................24
Section 7.4 Notices...............................................24
Section 7.5 Headings..............................................25
Section 7.6 Counterparts..........................................25
Section 7.7 Dispute Resolution....................................25
Section 7.8 Remedies; Severability................................26
Section 7.9 Entire Agreement......................................26
Section 7.10 Adjustments...........................................26
Section 7.11 Law Governing.........................................26
Section 7.12 Successors and Assigns................................26
Exhibit A - Form of Joinder Agreement
Exhibit B - Amended and Restated Certificate of Incorporation
(ii)
STOCKHOLDERS' AGREEMENT
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This Stockholders' Agreement is made as of this 4th day of December,
1996 by and among Boron, XxXxxx & Associates, Inc., a Delaware corporation (the
"Company"), Xxxxxxx X. XxXxxx, Xxxxxxx Xxxxx, Xxxxxxxxxxx Xxxxxxx and Xxxxxxx X.
Xxxx (collectively, the "Founders" and individually, a "Founder"), the
investment funds and other persons identified on the signature pages hereto as
the TA Investors (the "Investors"), and any other stockholder or optionholder
who from time to time becomes party to this Agreement by execution of a Joinder
Agreement in substantially the form attached hereto as Exhibit A.
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W I T N E S S E T H
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WHEREAS, the Founders own shares of the Company's outstanding capital
stock;
WHEREAS, reference is made to the Preferred Stock Purchase Agreement,
dated as of the date hereof, by and between the Company and the Investors (the
"Investment Agreement"), pursuant to which the Investors have purchased
7,000,000 shares of the Company's Convertible Participating Preferred Stock, par
value $.01 per share (the "Convertible Preferred Stock"); and
WHEREAS, the effectiveness of this Agreement is a condition to the
consummation of the Investment Agreement.
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements hereinafter set forth, the parties hereto agree as
follows:
ARTICLE I. DEFINITIONS
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Section 1.1 Construction of Terms. As used herein, the masculine,
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feminine or neuter gender, and the singular or plural number, shall be deemed to
be or to include the other genders or number, as the case may be, whenever the
context so indicates or requires.
Section 1.2 Terms Not Defined. Capitalized terms used herein and
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not otherwise defined shall have the meanings ascribed to them in the Investment
Agreement.
Section 1.3 Number of Shares of Stock. Whenever any provision of
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this Agreement calls for any calculation based on a number of shares of capital
stock held by a Founder or an Investor, the number of shares deemed to be held
by that Founder or Investor shall be the total number of shares of Common Stock
then owned by the Founder or Investor which are vested, plus the total number of
shares of Common Stock (or Class B Common Stock, as applicable) issuable upon
conversion of any Convertible Preferred Stock or other convertible securities or
exercise of any vested options, warrants or subscription rights then owned by
the Founder or Investor.
Section 1.4 Defined Terms. The following capitalized terms, as used
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in this Agreement, shall have the meanings set forth below.
An "Affiliate" of any Person means a Person that directly or
indirectly, through one or more intermediaries, controls, is controlled by or is
under common control with the first mentioned Person. A Person shall be deemed
to control another Person if such first Person possesses directly or indirectly
the power to direct, or cause the direction of, the management and policies of
the second Person, whether through the ownership of voting securities, by
contract or otherwise.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the Common Stock, par value $.01 per share, of
the Company, as the context requires, and any other common equity securities now
or hereafter issued by the Company (but not including the Preferred Stock), and
any other shares of stock issued or issuable with respect thereto (whether by
way of a stock dividend or stock split or in exchange for or upon conversion of
such shares or otherwise in connection with a combination of shares,
recapitalization, merger, consolidation or other corporate reorganization).
"Convertible Preferred Stock" means the Convertible Participating
Preferred Stock, par value $.01 per share, of the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and the rules and regulations promulgated thereunder.
"Independent Third Party" means any person who, immediately prior to
the contemplated transaction, does not own in excess of 10% of the Company's
Common Stock on a fully-diluted basis, who is not controlling, controlled by or
under common control with any such 10% owner of the Company's Common Stock and
who is not the spouse or descendent (by birth or adoption) of any such 10% owner
of the Company's Common Stock.
"Offer Notice" has the meaning specified in Section 3.2(a)
"Offeror" has the meaning specified in Section 3.2.
"Permitted Transferee" has the meaning specified in Section 3.1.
"Person" means an individual, a corporation, an association, a
partnership, an estate, a trust, and any other entity or organization,
governmental or otherwise.
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"Preferred Stock" means the Convertible Preferred Stock and the
Redeemable Preferred Stock (as hereinafter defined), each issued or to be issued
in accordance with and subject to the terms of the Amended and Restated
Certificate of Incorporation of the Company substantially in the form attached
hereto as Exhibit B (the "Charter"), together with any other shares issued or
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issuable with respect thereto (whether by way of a stock dividend, stock split
or in exchange for or in replacement or upon conversion of such shares or
otherwise in connection with a combination of shares, recapitalization, merger,
consolidation or other corporate reorganization).
"Qualified Public Offering" means the first underwritten public
offering pursuant to an effective registration statement under the Securities
Act, covering the offer and sale of Common Stock to the public in which the
proceeds received by the Company and any selling stockholders, net of
underwriting discounts and commissions, equal or exceed $25 million.
"Redeemable Preferred Stock" means the Company's Redeemable Preferred
Stock, par value $.01 per share.
"Sale of the Company" means the sale of the Company to an Independent
Third Party or affiliated group of Independent Third Parties pursuant to which
such party or parties acquire (i) capital stock of the Company possessing the
voting power to elect a majority of the Board of Directors of the Company
(whether by merger, consolidation or sale or transfer of the Company's capital
stock); or (ii) all or substantially all of the Company's assets determined on a
consolidated basis.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, and the rules and regulations promulgated thereunder.
"Shares" means the shares of Common Stock, Preferred Stock and any
other equity securities now or hereafter issued by the Company, together with
any options thereon and any other shares of stock issued or issuable with
respect thereto (whether by way of a stock dividend, stock split or in exchange
for or upon conversion of such shares or otherwise in connection with a
combination of shares, recapitalization, merger, consolidation or other
corporate reorganization).
"Transaction Offer" has the meaning specified in Section 3.2.
"Transfer" means any direct or indirect transfer, donation, sale,
assignment, pledge, hypothecation, grant of a security interest in or other
disposal or attempted disposal of all or any portion of a security or of any
rights. "Transferred" means the accomplishment of a Transfer, and "Transferee"
means the recipient of a Transfer.
"Transferring Stockholder" has the meaning specified in Section 3.2.
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ARTICLE II. REPRESENTATIONS AND WARRANTIES
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Section 2.1 Representations and Warranties of the Investors. Each
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of the Investors, individually and not jointly, hereby represents, warrants and
covenants to the Company and to the Founders as follows: (a) such Investor has
full authority and power under its charter, by-laws, governing partnership
agreement or comparable document (if applicable) to enter into this Agreement;
(b) this Agreement constitutes the valid and binding obligation of such Investor
enforceable against it in accordance with its terms; and (c) the execution,
delivery and performance by such Investor of this Agreement: (i) does not and
will not violate any laws, rules or regulations of the United States or any
state or other jurisdiction applicable to such Investor, or require such
Investor to obtain any approval, consent or waiver of, or to make any filing
with, any Person that has not been obtained or made; and (ii) does not and will
not result in a breach of, constitute a default under, accelerate any obligation
under or give rise to a right of termination of any indenture or loan or credit
agreement or any other agreement, contract, instrument, mortgage, lien, lease,
permit, authorization, order, writ, judgment, injunction, decree, determination
or arbitration award to which such Investor is a party or by which the property
of such Investor is bound or affected, or result in the creation or imposition
of any mortgage, pledge, lien, security interest or other charge or encumbrance
on any of the assets or properties of such Investor.
Section 2.2 Representations and Warranties of the Founders. Each of
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the Founders, individually and not jointly, hereby represents, warrants and
covenants to the Company and to the Investors as follows: (a) such Founder has
full authority, power and capacity to enter into this Agreement; (b) this
Agreement constitutes the valid and binding obligation of such Founder
enforceable against him in accordance with its terms; and (c) the execution,
delivery and performance by such Founder of this Agreement: (i) does not and
will not violate any laws, rules or regulations of the United States or any
state or other jurisdiction applicable to such Founder, or require such Founder
to obtain any approval, consent or waiver of, or to make any filing with, any
Person that has not been obtained or made; and (ii) does not and will not result
in a breach of, constitute a default under, accelerate any obligation under or
give rise to a right of termination of any indenture or loan or credit agreement
or any other material agreement, contract, instrument, mortgage, lien, lease,
permit, authorization, order, writ, judgment, injunction, decree, determination
or arbitration award to which such Founder is a party or by which the property
of such Founder is bound or affected, or result in the creation or imposition of
any mortgage, pledge, lien, security interest or other charge or encumbrance on
any of the assets or properties of such Founder.
Section 2.3 Representations and Warranties of the Company. The
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Company hereby represents, warrants and covenants to the Founders and to the
Investors as follows: (a) the Company has full corporate authority and power to
enter into this Agreement; (b) this Agreement constitutes the valid and binding
obligation of the Company enforceable against it in accordance with its terms;
and (c) the execution, delivery and performance by the Company of this
Agreement: (i) does not and will not violate any laws, rules or regulations of
the United States or any state or other jurisdiction applicable to the Company,
or require the Company to
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obtain any approval, consent or waiver of, or to make any filing with, any
Person that has not been obtained or made; and (ii) does not and will not result
in a breach of, constitute a default under, accelerate any obligation under or
give rise to a right of termination of any indenture or loan or credit agreement
or any other material agreement, contract, instrument, mortgage, lien, lease,
permit, authorization, order, writ, judgment, injunction, decree, determination
or arbitration award to which the Company is a party or by which the property of
the Company is bound or affected, or result in the creation or imposition of any
mortgage, pledge, lien, security interest or other charge or encumbrance on any
of the assets or properties of the Company.
ARTICLE III. RESTRICTIONS ON TRANSFER; RIGHT OF LAST REFUSAL; CO-SALE
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AND DRAG-ALONG PROVISIONS
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The following provisions of this Article III shall terminate
immediately upon, and shall not apply with respect to, the closing of a
Qualified Public Offering.
Section 3.1 Restrictions on Transfer. Each Founder agrees that it
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or he will not, without the prior written consent of two-thirds-in-interest of
the Investors, Transfer all or any portion of the Shares now owned or hereafter
acquired by it or him, except in connection with, and strictly in compliance
with the conditions of, any of the following (along with any other applicable
restrictions):
(a) Transfers effected pursuant to Sections 3.2, 3.3, 3.4
and 3.4A, in each case made in accordance with the procedures set
forth therein;
(b) Transfers by any Founder to his spouse or children or
to a trust of which he is the settlor, provided that any such trust
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does not require or permit distribution of such Shares during the term
of this Agreement unless the beneficiaries are bound by the terms of
this Agreement, and provided further that the Transferee shall have
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entered into an enforceable written agreement consented to by two-
thirds-in-interest of the Investors, which consent shall not be
unreasonably withheld, providing that all Shares so Transferred shall
continue to be subject to all provisions of this Agreement as if such
Shares were still held by such Founder, except that no further
Transfer shall thereafter be permitted hereunder except in compliance
with Sections 3.2, 3.3, 3.4 and 3.4A; and
(c) Transfers upon the death of any Founder to his heirs,
executors or administrators or to a trust under his will or Transfers
between such Founder and his guardian or conservator, provided that
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the Transferee shall have entered into an enforceable written
agreement consented to by two-thirds-in-interest of the Investors,
which consent shall not be unreasonably withheld, providing that all
Shares so Transferred shall continue to be subject to all provisions
of this Agreement as if such
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Shares were still held by Founder, except that no further Transfer
shall thereafter be permitted hereunder except in compliance with
Sections 3.2, 3.3, 3.4 and 3.4A.
Any permitted Transferee described in the preceding clauses (b) or (c)
shall be referred to herein as a "Permitted Transferee." Anything to
the contrary in this Agreement notwithstanding, Permitted Transferees
shall take any Shares so Transferred subject to all provisions of this
Agreement as if such Shares were still held by the Transferring
Founder, whether or not they so agree with the transferor and/or the
Company. Without limitation of the foregoing, in connection with any
otherwise permitted transfer of shares of capital stock that are
restricted shares and are subject to any stock restriction agreement,
any transferee of any such shares shall agree in writing to be bound
by the terms of any such stock restriction or similar agreement,
including, without limitation, any repurchase or similar right
contained therein.
Section 3.2 Right of Last Refusal. In the event that any of the
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Founders, including any of their Permitted Transferees, receives a bona fide
offer to purchase all or any portion of the Shares held by such stockholder (a
"Transaction Offer") from a non-Affiliate (the "Offeror"), such Founder or
Permitted Transferee (a "Transferring Stockholder") may, subject to the
provisions of Section 3.3 hereof, Transfer such Shares pursuant to and in
accordance with the following provisions of this Section 3.2:
(a) Such Transferring Stockholder shall cause the
Transaction Offer and all of the terms thereof to be reduced to
writing and shall notify each Investor of his wish to accept the
Transaction Offer and otherwise comply with the provisions of this
Section 3.2 and, if applicable, Section 3.3 (such notice, the "Offer
Notice"). The Transferring Stockholder's Offer Notice shall constitute
an irrevocable offer to sell such shares to the Investors on the basis
described below at a purchase price equal to the price contained in,
and on the same terms and conditions of, the Transaction Offer. The
notice shall be accompanied by a true copy of the Transaction Offer
(which shall identify the Offeror and all relevant information in
connection therewith). In the event of any conflict between the terms
of the Transaction Offer and the offer to sell such shares to the
Investors on the basis described below, the terms described below
shall control.
(b) Each Investor shall have the right (the "Right of
Last Refusal") to offer to purchase up to that number of Shares
covered by the Transaction Offer as shall be equal to the product
obtained by multiplying (i) the total number of Shares subject to the
Transaction Offer by (ii) a fraction, the numerator of which is the
total number of shares of Common Stock owned by such Investor on the
date of the Offer Notice on an as converted basis (including for this
purpose any shares of Common Stock or Class B Common Stock, as
applicable, that may be received upon conversion of the Convertible
Preferred Stock), and the denominator of which is the total number of
shares of Common Stock or Class B Common Stock, as applicable, then
held by all Investors on the date of the Offer Notice on an as
converted basis, subject to increase as hereinafter
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provided. The number of Shares that each Investor is entitled to
purchase under this Section 3.2 shall be referred to as its "Pro Rata
Fraction". Each Investor shall have the right to transfer its right to
any Pro Rata Fraction or part thereof with respect to any proposed
Transaction Offer to any transferee. In the event an Investor does not
wish to purchase or to transfer its right to purchase its Pro Rata
Fraction, then any Investors who so elect shall have the right to
offer to purchase, on a pro rata basis with any other Investors who so
elect, any Pro Rata Fraction not purchased by an Investor or its
transferee. Each Investor shall have the right to accept the
Transaction Offer by giving notice of such acceptance to the
Transferring Stockholder as provided in Section 7.4 within thirty (30)
days after receipt of the Offer Notice, which notice shall indicate
the maximum number of Shares subject thereto which the Investor and
its transferee(s) are willing to purchase in the event fewer than all
Investors elect to purchase their Pro Rata Fractions; provided that
the Investors as a group may not exercise the Right of Last Refusal
with respect to fewer than all of the Shares which are subject to the
Transaction Offer. In the event that the price set forth in the Offer
Notice is stated in consideration other than cash or cash equivalents,
the Board of Directors of the Company with the agreement of the TA
Associates, Inc. as representative of the Investors may determine the
fair market value of such consideration, reasonably and in good faith,
and the Investors may exercise their Right of Last Refusal by payment
of such fair market value in cash or cash equivalents. The
Transferring Stockholder shall notify the Investors promptly following
any lapse of the Right of Last Refusal without acceptance thereof or
any rejection of the Right of Last Refusal.
Upon the expiration of thirty (30) days following receipt of the
Offer Notice by all Investors, the number of Shares to be purchased by
each Investor and transferee shall be determined as follows: (x) there
shall first be allocated to each Investor and transferee electing to
purchase a number of Shares equal to the lesser of (A) the number of
Shares as to which such Investor accepted the Transaction Offer or (B)
such Investor's Pro Rata Fraction, and (y) the balance, if any, not
allocated under clause (x) above, shall be allocated to those
Investors and transferees who accepted the Transaction Offer as to a
number of Shares which exceeded their respective Pro Rata Fractions,
in each case on a pro rata basis in proportion to the amount of such
excess. The closing for any purchase of Shares by the Investors and
their transferees hereunder shall take place within thirty (30) days
after the expiration of the first thirty (30) day period following the
Investors' receipt of the Offer Notice at the place and on the date
specified by a two-thirds-in-interest of the Investors.
(c) In the event that the Investors do not elect to exercise
the Right of Last Refusal with respect to all of the Shares proposed
to be sold, the Investors shall not be entitled to purchase any such
Shares and the Transferring Stockholder may sell all such Shares
proposed to be sold to the Offeror on the terms and conditions set
forth in the Offer Notice, subject to the provisions of Section 3.3.
If the Transferring Stockholder's transfer to an Offeror is not
consummated in accordance with the terms of the Transaction Offer
within the later of (i) ninety (90) days after the expiration of
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the Right of Last Refusal and the Co-Sale Option set forth in Section
3.3 below, if applicable, and (ii) the satisfaction of all
governmental approval or filing requirements, the Transaction Offer
shall be deemed to lapse, and any Transfers of Shares pursuant to such
Transaction Offer shall be deemed to be in violation of the provisions
of this Agreement unless the Investors are once again afforded the
Right of Last Refusal provided for herein with respect to such
Transaction Offer.
Section 3.3 Co-Sale Option. In the event that any Transferring
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Stockholder receives a Transaction Offer from an Offeror, and the Right of Last
Refusal is not exercised, such Transferring Stockholder may Transfer such Shares
only pursuant to and in accordance with the following provisions of this Section
3.3:
(a) Each of the Investors shall have the right to participate in
the Transaction Offer by giving written notice (the "Acceptance
Notice") to the Transferring Stockholder within forty-five (45) days
after delivery to it of the Offer Notice (the "Co-Sale Option"). The
Acceptance Notice shall indicate the maximum number of Shares such
Investor wishes to sell including the number of Shares it would sell
if one or more other Investors do not elect to participate in the sale
on the terms and conditions stated in the Offer Notice. Any Investor
who holds Preferred Stock shall be permitted to sell to the relevant
purchaser in connection with any exercise of the Co-Sale Option Shares
of Common Stock (or Class B Common Stock, as applicable) acquired upon
conversion thereof or, at its election, an option to acquire such
Common Stock (or Class B Common Stock, as applicable) when it receives
the same upon such conversion at the election of such Investor or as
otherwise provided in the Company's Amended and Restated Certificate
of Incorporation (the "Charter") with the same effect as if Common
Stock were being conveyed, or, at its election, shares of Convertible
Preferred Stock provided the acquiror pays the full liquidation
preference of the shares being sold plus the relevant price per share
for the underlying Common Stock.
(b) Each of the Investors shall have the right to sell a portion
of its Shares pursuant to the Transaction Offer which is equal to or
less than the product obtained by multiplying (i) the total number of
Shares subject to the Transaction Offer by (ii) a fraction, the
numerator of which is the total number of vested shares of Common
Stock owned by such Investor on the date of the Offer Notice on an as
converted basis (including any Common Stock (or Class B Common Stock,
as applicable) issuable upon conversion of the Convertible Preferred
Stock), and the denominator of which is the total number of vested
shares of Common Stock then held by all Investors and Founders
(including any Permitted Transferees) on the date of the Offer Notice
on an as converted basis. To the extent one or more Investors elect
not to sell, or fail to exercise their right to sell, the full amount
of such Shares which they are entitled to sell pursuant to this
Section 3.3, the right of Investors who have elected to sell Shares
shall be increased proportionately based on their relative holdings
and such other Investors shall have an additional five (5) days from
the date upon which they are
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notified of such election or failure to exercise in which to increase
the number of Shares to be sold by them hereunder.
(c) Within ten (10) days after the date by which the Investors
were first required to notify the Transferring Stockholder of their
intent to participate, the Transferring Stockholder shall notify each
participating Investor of the number of Shares held by such Investor
that will be included in the sale and the date on which the
Transaction Offer will be consummated, which shall be no later than
the later of (i) thirty (30) days after the date by which the
Investors were required to notify the Transferring Stockholder of
their intent to participate and (ii) the satisfaction of any
governmental approval or filing requirements, if any.
(d) Each of participating Investors may effect its participation
in any Transaction Offer hereunder by delivery to the Offeror, or to
the Transferring Stockholder for delivery to the Offeror, of one or
more instruments or certificates, properly endorsed for transfer,
representing the Shares it elects to sell therein, provided that no
Investor shall be required to make any representations or warranties
or to provide any indemnities in connection therewith other than with
respect to title to the stock being conveyed. At the time of
consummation of the Transaction Offer, the Offeror shall remit
directly to each Investor that portion of the sale proceeds to which
each Investor is entitled by reason of its participation therein (less
any adjustments due to the conversion of any convertible securities or
the exercise of any exercisable securities). No Shares may be
purchased by a purchaser from the Transferring Stockholder or any or
his Permitted Transferees unless the purchaser simultaneously
purchases from the Investors all of the Shares that they have elected
to sell pursuant to this Section 3.3.
(e) Any shares held by a Transferring Stockholder that the
Transferring Stockholder desires to sell following compliance with
this Section 3.3 may be sold to the purchaser only during the period
specified in Section 3.3(c) and only on terms no more favorable to the
Transferring Stockholder than those contained in the Offer Notice.
Promptly after such sale, the Transferring Stockholder shall notify
the Investors of the consummation thereof and shall furnish such
evidence of the completion and time of completion of such sale and of
the terms thereof as may reasonably be requested by the Investors. So
long as the purchaser is neither a party, nor an affiliate or relative
of a party, to this Agreement, such purchaser shall take the Shares so
Transferred free and clear of any further restrictions of this Article
III. In the event that the Transaction Offer is not consummated within
the period required by this Section 3.3 or the Offeror fails timely to
remit to each Investor its portion of the sale proceeds, the
Transaction Offer shall be deemed to lapse, and any Transfers of
Shares pursuant to such Transaction Offer shall be deemed to be in
violation of the provisions of this Agreement unless the Transferring
Stockholder once again complies with the provisions of Section 3.2 and
this Section 3.3 hereof with respect to such Transaction Offer.
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Section 3.4 Drag-Along Obligations.
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(a) In the event that two-thirds-in-interest of the Investors
determine to sell or otherwise dispose of all or substantially all of the
assets of the Company or all or substantially all of the capital stock of
the Company owned by the Investors to any non-Affiliate(s) of the Company
or any of the Investors, or to cause the Company to merge with or into or
consolidate with any non-Affiliate(s) of the Company or any of the
Investors (in each case, the "Buyer") in a bona fide negotiated transaction
(a "Sale"), each of the Founders, including any of their respective
Permitted Transferees (collectively, the "Non-Investor Stockholders"),
shall be obligated to and shall upon the written request of two-thirds-in-
interest of the Investors: (i) sell, transfer and deliver, or cause to be
sold, transferred and delivered, to the Buyer, his Shares (including for
this purpose all of such Non-Investor Stockholder's Shares that presently
or as a result of any such transaction may be acquired upon the exercise of
options (following the payment of the exercise price therefor)) on
substantially the same terms applicable to the Investors (with appropriate
adjustments to reflect the conversion of convertible securities, the
redemption of redeemable securities and the exercise of exercisable
securities as well as the relative preferences and priorities of the
Preferred Stock); and (ii) execute and deliver such instruments of
conveyance and transfer and take such other action, including voting such
Shares in favor of any Sale proposed by the Investors and executing any
purchase agreements, merger agreements, indemnity agreements, escrow
agreements or related documents, as the Investors or the Buyer may
reasonably require in order to carry out the terms and provisions of this
Section 3.4.
(b) In the event of a Sale to a Buyer as contemplated in Section
3.4(a) above, each Founder, including each Founder's Permitted Transferees,
shall in the event that the Investors do not exercise their "drag-along"
rights in Section 3.4(a) above, have the right to require the Investors to
include such Founder's or Permitted Transferee's Shares in the Sale on the
same terms as the Investors' Shares (with appropriate adjustments to
reflect the conversion of convertible securities, the redemption of
redeemable securities and the exercise of exercisable securities as well as
the relative priorities and preferences of the Preferred Stock and the
terms of any options issued by the Company), which such right shall be
exercisable by the delivery of written notice to the Company and each of
the Investors at least twenty (20) days prior to the date proposed for the
closing of the Sale.
(c) Not less than thirty (30) days prior to the date proposed for
the closing of any Sale, the Investors shall give written notice to each
Non-Investor Stockholder, setting forth in reasonable detail the name or
names of the Buyer, the terms and conditions of the Sale, including the
purchase price, and the proposed closing date. In furtherance of the
provisions of this Section 3.4, each of the Non-Investor Stockholders
hereby (i) irrevocably appoints TA Associates, Inc. as its agent and
attorney-in-fact (the "Agent") (with full power of substitution) to execute
all agreements, instruments and certificates and take all actions necessary
or desirable to
10
effectuate any Sale hereunder; and (ii) grants to the Agent a proxy (which
shall be deemed to be coupled with an interest and irrevocable) to vote the
Shares held by such Non-Investor Stockholder and exercise any consent
rights applicable thereto in favor of any Sale hereunder; provided,
--------
however, that the Investors shall not exercise such powers-of-attorney or
-------
proxies with respect to any Non-Investor Stockholder unless such Non-
Investor Stockholders are in breach of their obligations under this
Section 3.4.
Section 3.4A Founder Co-Sale Option. In the event that any Investor
------------ ----------------------
(a "Transferring Investor") receives a bona fide offer from an Offeror to
purchase a portion of the Shares of Common Stock held by an Investor, to which
Offer the provisions of Section 3.4 do not apply (an "Investor Transaction
Offer"), such Transferring Investor may Transfer such Shares only pursuant to
and in accordance with the following provisions of this Section 3.4A:
(a) Each of the Founders (including for purposes of this
paragraph (a) and the following paragraphs (b), (c), (d) and (e) any
Permitted Transferee) shall have the right to participate in the Investor
Transaction Offer by giving written notice (the "Founder Acceptance
Notice") to the Transferring Investor within forty-five (45) days after
delivery to it of a written notice (the "Investor Offer Notice") notifying
each Founder of the Investor's receipt of the Investor Transaction Offer
and all of the terms of such Investor Transaction Offer (the "Founder Co-
Sale Option"). The Founder Acceptance Notice shall indicate the maximum
number of Shares such Founder wishes to sell including the number of Shares
it would sell if one or more other Founders do not elect to participate in
the sale on the terms and conditions stated in the Investor Offer Notice.
(b) Each of the Founders shall have the right to sell a
portion of his Shares pursuant to the Investor Transaction Offer which is
equal to or less than the product obtained by multiplying (i) the total
number of Shares subject to the Investor Transaction Offer by (ii) a
fraction, the numerator of which is the total number of vested shares of
Common Stock owned by such Founder on the date of the Investor Offer
Notice, and the denominator of which is the total number of vested shares
of Common Stock then held by all Investors and Founders (including any
Permitted Transferees) on the date of the Investor Offer Notice on an as
converted basis. To the extent one or more Founders elect not to sell, or
fail to exercise their right to sell, the full amount of such Shares which
they are entitled to sell pursuant to this Section 3.4A, the right of
Founders who have elected to sell Shares shall be increased proportionately
based on their relative holdings and such other Founders shall have an
additional five (5) days from the date upon which they are notified of such
election or failure to exercise in which to increase the number of Shares
to be sold by them hereunder.
(c) Within ten (10) days after the date by which the Founders
were first required to notify the Transferring Investor of their intent to
participate, the Transferring Investor shall notify each participating
Founder of the number of Shares held by such Founder that will be included
in the sale and the date on which the
11
Investor Transaction Offer will be consummated, which shall be no later
than the later of (i) thirty (30) days after the date by which the Founders
were required to notify the Transferring Investor of their intent to
participate and (ii) the satisfaction of any governmental approval or
filing requirements, if any.
(d) Each of the participating Founders may effect his
participation in any Investor Transaction Offer hereunder by delivery to
the Offeror, or to the Transferring Investor for delivery to the Offeror,
of one or more instruments or certificates, properly endorsed for transfer,
representing the Shares it elects to sell therein, provided that no Founder
shall be required to make any representations or warranties or to provide
any indemnities in connection therewith other than with respect to title to
the stock being conveyed. At the time of consummation of the Investor
Transaction Offer, the Offeror shall remit directly to each Founder that
portion of the sale proceeds to which each Founder is entitled by reason of
his participation therein (less any adjustments due to the conversion of
any convertible securities or the exercise of any exercisable securities).
No Shares may be purchased by a purchaser from the Transferring Investor or
any of his Permitted Transferees unless the purchaser simultaneously
purchases from the Founders all of the Shares that they have elected to
sell pursuant to this Section 3.4A.
(e) Any shares held by a Transferring Investor that the
Transferring Investor desires to sell following compliance with this
Section 3.4A may be sold to the purchaser only during the period specified
in Section 3.4A(c) and only on terms no more favorable to the Transferring
Investor than those contained in the Investor Offer Notice. Promptly after
such sale, the Transferring Investor shall notify the Founders of the
consummation thereof and shall furnish such evidence of the completion and
time of completion of such sale and of the terms thereof as may reasonably
be requested by the Founders. So long as the purchaser is neither a party,
nor an affiliate or relative of a party, to this Agreement, such purchaser
shall take the Shares so Transferred free and clear of any further
restrictions of this Article III. In the event that the Investor
Transaction Offer is not consummated within the period required by this
Section 3.4A or the Offeror fails timely to remit to each Founder his
portion of the sale proceeds, the Investor Transaction Offer shall be
deemed to lapse, and any Transfers of Shares pursuant to such Investor
Transaction Offer shall be deemed to be in violation of the provisions of
this Agreement unless the Transferring Investor once again complies with
the provisions of this Section 3.4A hereof with respect to such Investor
Transaction Offer.
(f) Notwithstanding anything to the contrary contained in
this Agreement, the provisions of this Section 3.4A shall not apply to any
Transfer by any Investor to any other Investor or to any TA Fund (as
defined in Section 3.6).
Section 3.5 Contemporaneous Transfers. If two or more Founders (or their
----------- -------------------------
Permitted Transferees) or Investors propose concurrent Transfers which are
subject to this
12
Article III, then the relevant provisions of Sections 3.2, 3.3 and 3.4A shall
apply separately to each such proposed Transfer.
Section 3.6 Assignment. Each Investor and each Founder shall have
----------- ----------
the right to assign its rights under this Article III in connection with any
transaction or series of related transactions involving the transfer to a
transferee or two or more transferees that are Affiliates of each other of at
least 10,000 Shares of capital stock of the Company (subject to adjustment for
stock splits, stock dividends, reclassifications, reorganizations and the like
and aggregating all contemporaneous transfers), or to any fund managed by or
associated with TA Associates, Inc. (a "TA Fund"), and upon any such transfer,
any such transferee or TA Fund thereupon shall be deemed an "Investor" or a
"Founder" in connection with its ownership of the Shares Transferred for
purposes of this Article III, without limitation of Section 3.3(e).
Section 3.7 Prohibited Transfers. If any Transfer is made or attempted
----------- --------------------
contrary to the provisions of this Agreement, such purported Transfer shall be
void ab initio; the Company and the other parties hereto shall have, in addition
-- ------
to any other legal or equitable remedies which they may have, the right to
enforce the provisions of this Agreement by actions for specific performance (to
the extent permitted by law); and the Company shall have the right to refuse to
recognize any Transferee as one of its stockholders for any purpose. Without
limitation to the foregoing, each of the Investors and Founders further agrees
that the provisions of Section 7.8 shall apply in the event of any violation or
threatened violation of this Agreement.
ARTICLE IV. RIGHTS TO PURCHASE
---------- ------------------
Notwithstanding anything herein to the contrary, the following provisions
of this Article IV shall terminate immediately prior to the closing of a
Qualified Public Offering and shall not apply with respect to any Qualified
Public Offering.
Section 4.1 Right to Participate in Certain Sales of Additional
---------------------------------------------------
Securities. The Company agrees that it will not sell or issue any shares of
----------
capital stock of the Company, or other securities convertible into or
exchangeable for capital stock of the Company, or options, warrants or rights
carrying any rights to purchase capital stock of the Company unless the Company
first submits a written offer to the Investors and the Founders (including their
Permitted Transferees) (collectively, the "Offerees") identifying the terms of
the proposed sale (including price, number or aggregate principal amount of
securities and all other material terms), and offers to each Investor and
Founder (including each Permitted Transferee) the opportunity to purchase its
Pro Rata Allotment (as hereinafter defined) of the securities (subject to
increase for over-allotment if some Investors do not fully exercise their
rights) on terms and conditions, including price, not less favorable than those
on which the Company proposes to sell such securities to a third party or
parties. Each Offeree's "Pro Rata Allotment" of such securities shall be based
on the ratio which the number of vested shares of Common Stock or Class B Common
Stock, as applicable (including shares issuable upon conversion of Preferred
13
Stock), owned by it bears to the number of all the issued and outstanding vested
shares of Common Stock (including shares of Common Stock or Class B Common Stock
issuable upon conversion of Preferred Stock) calculated in each case on a fully-
diluted basis giving effect to the conversion of convertible securities and
assuming the exercise of all outstanding vested options, in each case as of the
date of such written offer. The Company's offer pursuant to this Section 4.1
shall remain open and irrevocable for a period of 30 days, and the recipients of
such offer shall elect to purchase by giving written notice thereof to the
Company within such 30-day period, including therein the maximum number of
shares or other securities which the Offeree would purchase if other Offerees do
not elect to purchase, with the rights of electing Offerees to purchase such
additional shares to be based upon the relative holdings of Common Stock
(including shares of Common Stock or Class B Common Stock issuable upon
conversion of Preferred Stock) of the electing Offerees in the case of over-
subscription. Any securities so offered which are not purchased pursuant to
such offer may be sold by the Company but only on the terms and conditions set
forth in the initial offer, at any time within 120 days following the
termination of the above-referenced 30-day period but may not be sold to any
other person or on terms and conditions, including price, that are more
favorable to the purchaser than those set forth in such offer or after such 120-
day period without renewed compliance with this Section 4.1.
Notwithstanding the foregoing, the right to purchase granted under this
Article IV shall be inapplicable with respect to any issuance or proposed
issuance by the Company of (i) securities issued in connection with the
acquisition of another corporation by the Company, whether by merger, purchase
of all or substantially all of the assets of such corporation, or otherwise,
(ii) up to 600,000 shares (or options to purchase shares) of Common Stock and
2,000,000 shares of Class A Common Stock (subject to adjustment in the event of
stock splits, stock dividends, recapitalizations and like events) issued or
granted to employees, consultants, officers, directors, advisors or independent
contractors of the Company or of any Affiliate of the Company pursuant to the
Company's 1996 Stock Option and Grant Plan, (iii) securities issued as a result
of any stock split, stock dividend, reclassification or reorganization of the
Company's stock or (iv) Common Stock, Class B Common Stock or Redeemable
Preferred Stock issued upon conversion of the Convertible Preferred Stock in
accordance with the terms of the Charter.
Section 4.2 Assignment of Rights. Each Investor and Founder (including
--------------------
each Permitted Transferee) shall have to right to assign its rights under this
Article IV in connection with any transaction or series of related transactions
involving the transfer to one or more transferees of at least 10,000 shares of
capital stock of the Company (subject to adjustment for stock splits, stock
dividends and the like and aggregating all contemporaneous transfers), or to any
TA Fund, and upon any such transfer such transferee or TA Fund shall be deemed
an Offeree for purposes of Sections 4.1 and 4.2 with the rights set forth in
such Sections.
14
ARTICLE V. REGISTRATION RIGHTS
--------- -------------------
The Company's obligation to register shares of Common Stock under this
Article V shall terminate seven (7) years following the closing by the Company
of its first underwritten public offering pursuant to a registration statement
under the Securities Act (an "IPO") or, with respect to Shares held by
particular Investors or the Founders (including Permitted Transferees), whenever
such shares are no longer Registrable Shares (as defined below).
Section 5.1 Piggyback Registration Rights. If at any time or times after
----------- -----------------------------
the date hereof, the Company shall determine to register any shares of its
Common Stock or securities convertible into or exchangeable or exercisable for
shares of Common Stock under the Securities Act (whether in connection with a
public offering of securities by the Company (a "primary offering"), a public
offering of securities by stockholders (a "secondary offering"), or both, but
not in connection with a registration effected solely to implement an employee
benefit plan or a transaction to which Rule 145 or any other similar rule of the
Commission under the Securities Act is applicable or a registration effected
pursuant to Sections 5.2 or 5.3 hereof), the Company will promptly give written
notice thereof to the Investors and the Founders (including for purpose of this
Section 5.1 each Permitted Transferee). In connection with any such
registration, if within thirty (30) days after their receipt of such notice (or
10 days in the case of a proposed registration on Form S-3) any Investor or
Founder requests in writing the inclusion in such registration of some or all of
the Registrable Shares (as hereinafter defined) owned by such Investor or
Founder, or into which any Shares held by such Investor or Founder are
convertible or exchangeable, the Company will use its best efforts to effect the
registration under the Securities Act of all Registrable Shares which such
Investors and Founders so request; provided, however, that in the case of an
-------- -------
underwritten public offering, if the underwriter determines that a limitation on
the number of shares to be underwritten is required, (i) if such registration is
the first registered offering of the Company's securities to the public, the
underwriter may exclude from such registration and underwriting some or all of
the Registrable Shares which would otherwise be underwritten pursuant to the
notice described herein, and (ii) if such registration is other than the first
registered offering of the sale of the Company's securities to the public, the
underwriter may limit the number of Registrable Shares to be included in the
registration and underwriting to not less than thirty percent (30%) of the
securities included therein (based on aggregate market values). The Company
shall advise all Investors and Founders promptly after such determination by the
underwriter, and the number of Registrable Shares that may be included in the
registration and underwriting shall be allocated among all Investors and
Founders requesting registration in proportion, as nearly as practicable, to
their respective holdings of Registrable Shares. All expenses of the
registration and offering (including the reasonable fees and expenses of one
independent counsel for the Investors as a group and the Founders as a group,
elected by a majority in interest (based on Registrable Shares proposed to be
sold) of the Investors and Founders proposing to sell), shall be borne by the
Company, except that the Investors and the Founders shall bear underwriting and
selling commissions and transfer taxes attributable to the sale of their
Registrable Shares.
15
Section 5.2 Demand Registration Rights. If on any two (2) occasions
----------- --------------------------
(which occasions shall in no event be less than six months apart from each
other) after the earlier of (i) two (2) years after the date of this Agreement
or (ii) three (3) months after the closing of the Company's first public
offering pursuant to a registration statement under the Securities Act,
Investors holding a majority in interest of the Registrable Shares then held by
all of the Investors shall notify the Company in writing that it or they intend
to offer or cause to be offered for public sale all or any portion of its or
their Registrable Shares, the Company will notify all of the Investors and the
Founders (including for purposes of this Section 5.2 all Permitted Transferees)
of its receipt of such notification from such Investors. If within thirty (30)
days after their receipt of such notice any Investor or Founder requests the
inclusion of some or all of the Registrable Shares owned by such Investor or
Founder in such registration, the Company will use its best efforts to cause
such Registrable Shares so requested (including the Registrable Shares held by
the Investor(s) or Founder(s) giving the initial notice of intent to register
hereunder) to be registered under the Securities Act in accordance with the
terms of this Section 5.2; provided, however, that unless such registration
-------- -------
becomes effective, the Investors shall be entitled to require an additional
registration pursuant to this Section 5.2; and, provided further that if such
-------- -------
registration is underwritten and the underwriter determines that a limitation on
the number of shares to be underwritten is required, the first shares to be
excluded from such registration shall be any shares registered for the benefit
of the Company, and thereafter any shares which the Investors and the Founders
have requested to be registered shall be limited, to the extent necessary, based
upon the respective holdings of Registrable Shares of the Investors and Founders
proposing to sell.
All expenses of such registrations and offerings (including the reasonable
fees and expenses of one independent counsel for the Investors as a group, and
the Founders as a group, selected in the manner contemplated by Section 5.1)
shall be borne by the Company. The Company may postpone the filing of any
registration statement required hereunder for a reasonable period of time, not
to exceed 90 days during any twelve-month period, if the Company determines in
good faith that such filing would require the disclosure of a material
transaction or other matter and the Company determines reasonably and in good
faith that such disclosure would have a material adverse effect on the Company
or otherwise would not be in the best interest of the Company. The Company shall
not be required to cause a registration statement requested pursuant to this
Section 5.2 to become effective prior to 90 days following the effective date of
a Registration Statement initiated by the Company, if the request for
registration has been received by the Company subsequent to the giving of
written notice by the Company, made in good faith, to the Investors to the
effect that the Company is commencing to prepare a Company-initiated
Registration Statement (other than a registration effected solely to implement
an employee benefit plan or a transaction to which Rule 145 or any other similar
rule of the Commission under the Securities Act is applicable); provided,
however, that the Company shall use its best efforts to achieve such
effectiveness promptly following such 90-day period if the request pursuant to
this Section 5.2 has been made prior to the expiration of such 90-day period. If
so requested by any Investor or Founder in connection with a registration under
this paragraph, the Company shall take such steps as are required to register
the Investors' and the Founders' Registrable Shares for sale on a delayed or
continuous
16
basis under Rule 415, and also take such steps as are required to keep any
registration effective until all of the Investors' and the Founders' Registrable
Shares registered thereunder are sold. Notwithstanding the foregoing, the
Company shall have no obligation to keep any registration pursuant to this
Section 5.2 effective more than 120 days after the initial date of effectiveness
of such registration.
Section 5.3 Form S-3. If the Company becomes eligible to use Form S-3
----------- --------
under the Securities Act or a comparable successor form, (a) the Company shall
use its best efforts to continue to qualify at all times for registration of its
capital stock on Form S-3 or such successor form, and (b) holders of Registrable
Shares anticipated to have an aggregate sale price (net of underwriting
discounts and Commission, if any) in excess of $500,000 shall have the right on
one or more occasions to request and have effected the registration of their
Shares on Form S-3 or such successor form (such requests shall be in writing and
shall state the number of Shares to be disposed of and the intended method of
disposition of such Shares by Investor(s) or Founder(s), including for purposes
of this Section 5.3 all Permitted Transferees). The Company will use its best
efforts to effect promptly the registration of all Shares on Form S-3 or such
successor form to the extent requested by such Investor(s) or Founder(s). If so
requested by such Investor(s) or Founder(s) in connection with a registration
under this Section 5.3, the Company shall take such steps as are required to
register such Investor's or Founder's Registrable Shares for sale on a delayed
or continuous basis under Rule 415, and to keep such registration effective
until all of such Investor's or Founder's Registrable Shares registered
thereunder are sold. Notwithstanding the foregoing, the Company shall have no
obligation to keep any registration effective more than 120 days after the
initial date of effectiveness of such registration. All expenses incurred in
connection with a registration requested pursuant to this Section 5.3 (including
the reasonable fees and expenses of one independent counsel for the Investors as
a group and the Founders as a group, selected in this manner contemplated as of
Section 5.1) shall be borne by the Company. The Company may postpone the filing
of any registration statement required hereunder for a reasonable period of
time, not to exceed 90 days during any twelve month period, if the Company
determines in good faith that such filing would require the disclosure of a
material transaction or other matter and the Company determines reasonably and
in good faith that such disclosure would have a material adverse effect on the
Company or otherwise would not be in the best interest of the Company. The
Company shall not be required to cause a Registration Statement requested
pursuant to this Section 5.3 to become effective prior to 90 days following the
effective date of a Registration Statement initiated by the Investors pursuant
to Section 5.2 or by the Company, if the request for registration has been
received by the Company subsequent to the giving of written notice by the
Company, made in good faith, to the Investors and the Founders to the effect
that the Company is commencing to prepare a Company-initiated Registration
Statement (other than a registration effected solely to implement an employee
benefit plan or a transaction to which Rule 145 or any other similar rule of the
Commission under the Securities Act is applicable); provided, however, that the
-------- -------
Company shall use its best efforts to achieve such effectiveness promptly
following such 90-day period if the request pursuant to this Section 5.3 has
been made prior to the expiration of such 90-day period.
17
Section 5.4 Registrable Shares. For the purposes of this Article V, the
----------- ------------------
term "Registrable Shares" shall mean any shares of Common Stock held by an
Investor, Founder or Permitted Transferee or subject to acquisition by an
Investor upon conversion of Convertible Preferred Stock or Class B Common Stock,
as applicable, including any shares issued by way of a stock dividend or stock
split or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization; provided, however, that if an Investor
owns Convertible Preferred Stock or Class B Common Stock, the Investor may
exercise its registration rights hereunder by converting the shares to be sold
publicly into Common Stock as of the closing of the relevant offering and shall
not be required to cause such Convertible Preferred Stock or Class B Common
Stock to be converted to Common Stock until and unless such Closing occurs, it
being understood that the Company shall at the request of the relevant Investor
effect the reconversion of Common Stock or Class B Common Stock and any
Redeemable Preferred Stock acquired upon conversion of Convertibly Preferred
Stock to Convertible Preferred Stock if such a conversion occurs notwithstanding
the foregoing and a public offering does not close; and provided, further, that
any Common Stock that is sold in a registered sale pursuant to an effective
registration statement under the Securities Act or pursuant to Rule 144
thereunder, or that may then be sold without restriction as to volume or
otherwise pursuant to Rule 144 under the Securities Act, including by reason of
Rule 701(c) under the Securities Act or any restricted stock that is not then
vested, shall not be deemed Registrable Shares.
Section 5.5 Further Obligations of the Company. Whenever, under the
----------- ----------------------------------
provisions of Sections 5.1, 5.2 or 5.3 of this Agreement, the Company is
required to register any Registrable Shares, it agrees that it shall also do the
following:
(a) Use its best efforts to diligently prepare and file with
the Commission a registration statement and such amendments, post-effective
amendments and supplements to said registration statement and the
prospectus used in connection therewith as may be necessary to keep said
registration statement effective as contemplated herein and to comply with
the provisions of the Securities Act with respect to the sale of securities
covered by said registration statement for the period necessary to complete
the proposed public offering as provided herein;
(b) Furnish to each selling Investor or Founder (including
for purposes of this Section 5.4 each Permitted Transferee) such copies of
each preliminary and final prospectus and such other documents as such
Investor or Founder may reasonably request to facilitate the public
offering of its Registrable Shares;
(c) Enter into any reasonable underwriting agreement required
by the proposed underwriter for the selling Investors or Founders, if any
(which underwriter shall be selected by the selling Investors in connection
with any registration requested pursuant to Section 5.2); provided,
however, that no Founder or Investor shall be required to make any
representations or warranties other than with respect to its title to the
Registrable Shares and any written information provided by it to the
Company
18
specifically for us in the Registration Statement, and if the underwriter
requires that representations or warranties be made and that
indemnification be provided, the Company shall make all such
representations and warranties and provide all such indemnities, including,
without limitation, in respect of the Company's business, operations and
financial information and the disclosures relating thereto in the
prospectus;
(d) Use its best efforts to register or qualify the
securities covered by said registration statement under the securities or
"blue-sky" laws of such jurisdictions as any selling Investors or Founders
may reasonably request, provided that the Company shall not be required to
register or qualify the securities in any jurisdictions which require it to
qualify to do business or subject itself to general service of process
therein;
(e) Immediately notify each selling Investor or Founder, at
any time when a prospectus relating to his Registrable Shares is required
to be delivered under the Securities Act, of the happening of any event as
a result of which such prospectus contains an untrue statement of a
material fact or omits any material fact necessary to make the statements
therein not misleading, and, at the request of any such selling Investor or
Founder, prepare a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Shares, such
prospectus will not contain any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein not
misleading;
(f) Cause all such Registrable Shares to be listed on or
included in each securities exchange or quotation system on which similar
securities issued by the Company are then listed;
(g) Otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission and make generally
available to its stockholders, in each case as soon as practicable, but not
later than 30 days after the close of the period covered thereby an
earnings statement of the Company which will satisfy the provisions of
Section 11(a) of the Securities Act;
(h) Cooperate with each Investor and Founder and each
underwriter participating in the disposition of Registrable Shares and
their respective counsel in connection with any filings required to be made
with the National Association of Securities Dealers, Inc.;
(i) During the period when the prospectus is required to be
delivered under the Securities Act, promptly file all documents required to
be filed with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act;
19
(j) Appoint a transfer agent and registrar for all
Registrable Shares covered by a Registration Statement not later than the
effective date of such Registration Statement;
(k) In connection with an underwritten offering, to the
extent reasonably requested by the managing underwriter for the offering or
the Investors or the Founders, participate in and support customary efforts
to sell the securities in the offering, including, without limitation,
participating in "road shows"; and
(l) Otherwise cooperate with the underwriter or underwriters,
the Commission and other regulatory agencies and take all actions and
execute and deliver or cause to be executed and delivered all documents
necessary to effect the registration of any Registrable Shares under this
Article V,
Section 5.6 Indemnification; Contribution.
----------- -----------------------------
(a) Incident to any registration statement referred to in
this Article V, and subject to applicable law, the Company will indemnify and
hold harmless each underwriter, each Investor or Founder (including for purposes
of this Article V each Permitted Transferee) who offers or sells any such
Registrable Shares in connection with such registration statement (including its
partners (including partners of partners and stockholders of any such partners),
and directors, officers, employees and agents of any of them (a "Selling
Stockholder"), and each person who controls any of them within the meaning of
Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of
1934 (the "Exchange Act") (a "Controlling Person"), from and against any and all
losses, claims, damages, expenses and liabilities, joint or several (including
any investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claim
asserted), as the same are incurred to which they, or any of them, may become
subject under the Securities Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities arise out of or are based on (i) any untrue
statement or alleged untrue statement of a material fact contained in such
registration statement (including any related preliminary or definitive
prospectus, or any amendment or supplement to such registration statement or
prospectus), (ii) any omission or alleged omission to state in such document a
material fact required to be stated in it or necessary to make the statements in
it not misleading, or (iii) any violation by the Company of the Securities Act,
any state securities or "blue sky" laws or any rule or regulation thereunder in
connection with such registration; provided, however, that the Company will not
be liable to the extent that such loss, claim, damage, expense or liability
arises from and is based on an untrue statement or omission or alleged untrue
statement or omission made in reliance on and in conformity with information
furnished in writing to the Company by such underwriter, Selling Stockholder or
Controlling Person expressly for use in such registration statement. With
respect to such untrue statement or omission or alleged untrue statement or
omission in the information furnished in writing to the Company by such Selling
Stockholder expressly for use in such registration statement, such Selling
Stockholder will indemnify and hold harmless
20
each underwriter, the Company (including its directors, officers, employees and
agents), and each other Selling Stockholder (including its partners (including
partners of partners and stockholders of such partners) and directors, officers,
employees and agents of any of them), and each person who controls any of them
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages, expenses and
liabilities, joint or several, to which they, or any of them, may become subject
under the Securities Act, the Exchange Act or other federal or state statutory
law or regulation, at common law or otherwise to the same extent provided in the
immediately preceding sentence. In no event, however, shall the liability of a
Selling Stockholder for indemnification under this Section 5.6(a) in its
capacity as such exceed the lesser of (i) that proportion of the total of such
losses, claims, damages or liabilities indemnified against equal to the
proportion of the total securities sold under such registration statement which
is being sold by such Selling Stockholder or (ii) the proceeds received by such
Selling Stockholder from its sale of Registrable Shares under such registration
statement.
(b) If the indemnification provided for in Section 5.6(a)
above for any reason is held by a court of competent jurisdiction to be
unavailable to an indemnified party in respect of any losses, claims, damages,
expenses or liabilities referred to therein, then each indemnifying party under
this Section 5.6, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, expenses or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, the other Selling Stockholders and the underwriters from the offering
of the Registrable Shares or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company, the other Selling Stockholders and the
underwriters in connection with the statements or omissions which resulted in
such losses, claims, damages, expenses or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Company, the Selling Stockholders and the underwriters shall be deemed to be in
the same respective proportions that the net proceeds from the offering (before
deducting expenses) received by the Company and the Selling Stockholders and the
underwriting discount received by the underwriters, in each case as set forth in
the table on the cover page of the applicable prospectus, bear to the aggregate
public offering price of the Registrable Shares. The relative fault of the
Company, the Selling Stockholders and the underwriters shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, the Selling Stockholders or the
underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, the Selling Stockholders, and the underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 5.6(b) were determined by pro rata or per capita allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding
21
paragraph. In no event, however, shall a Selling Stockholder be required to
contribute any amount under this Section 5.6(b) in excess of the lesser of (i)
that proportion of the total of such losses, claims, damages or liabilities
indemnified against equal to the proportion of the total Registrable Shares sold
under such registration statement which are being sold by such Selling
Stockholder or (ii) the proceeds received by such Selling Stockholder from its
sale of Registrable Shares under such registration statement. No person found
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not found guilty of such fraudulent misrepresentation.
(c) The amount paid by an indemnifying party or payable to an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in this Section 5.6 shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim, payable as the same are incurred. The indemnification and
contribution provided for in this Section 5.6 will remain in full force and
effect regardless of any investigation made by or on behalf of the indemnified
parties or any officer, director, employee, agent or controlling person of the
indemnified parties.
Section 5.7 Rule 144 Requirements. If the Company becomes subject to the
----------- ---------------------
reporting requirements of either Section 13 or 15(d) of the Exchange Act, the
Company will use its best efforts thereafter to file with the Commission such
information as is specified under either of said Sections for so long as any of
the Investors hold any Registrable Shares; and in such event, the Company shall
use its best efforts to take all action as may be required as a condition to the
availability of Rule 144 under the Securities Act (or any successor or similar
exemptive rules hereafter in effect). The Company shall furnish to any holder of
Registrable Shares upon request a written statement executed by the Company as
to the steps it has taken to comply with the current public information
requirement of Rule 144 or such successor rules.
Section 5.8 Market Stand-Off. Each Investor and Founder agrees, if
----------- ----------------
requested by the Company and an underwriter of Registrable Shares of the Company
in connection with the Company's initial public offering, not to sell or
otherwise transfer or dispose of any Shares (with the exception of any
Registrable Shares sold in such offering in accordance with the provisions of
Article V) held by it for such period, not to exceed 180 days following the
effective date of the relevant registration statement filed under the Securities
Act in connection with such initial public offering, as such underwriter shall
specify reasonably and in good faith.
Section 5.9 Transfer of Registration Rights. The registration rights and
----------- -------------------------------
related obligations under this Article V of the Investors and Founders with
respect to their Registrable Securities may be assigned in connection with any
transaction or series of related transactions involving the transfer to one or
more transferees of at least 10,000 shares of capital stock of the Company,
other than pursuant to an effective registration statement under the Securities
Act or pursuant to Rule 144 thereunder (subject to adjustments for stock splits,
stock dividends and the like and aggregating all contemporaneous transfers), or
to any TA Fund, and upon any
22
such transfer such transferee or TA Fund shall be deemed to be included within
the definition of an "Investor" or a "Founder" as applicable, for purposes of
this Article V with the rights set forth herein.
ARTICLE VI. ELECTION OF DIRECTORS
---------- ---------------------
Section 6.1 Management Representatives. Each Investor and each Founder
----------- --------------------------
(including, for purposes of this Section 6.1, each Permitted Transferee) agrees
to vote all its shares of the Company's capital stock having voting power (and
any other shares over which it exercises voting control) in connection with the
election of Directors and to take such other actions as are necessary so as to
establish a Board of Directors of not more than seven (7) members and to elect
and continue in the office as directors two (2) individuals nominated by two-
thirds interest of the Founders who shall initially be Xxxxxxx X. XxXxxx and
Xxxxxxx Xxxxx, it being understood, however, that all Directors other than the
nominees of the Founders shall be subject to election by the holders of the
Preferred Stock and the holders of the Company's outstanding voting stock as
provided in the Company's Amended and Restated Certificate of Incorporation.
Each Investor and each Founder further agrees to vote all of its shares of the
Company's capital stock having voting power (and any other shares over which he
or it exercises voting control) for the removal of any Director designated
pursuant to this Section 6.1 upon the request of two-thirds in interest of the
Founders and for the election to the Board of Directors of a substitute
designated by such parties in accordance with the provisions this Section 6.1,
and to vote all shares of the Company's capital stock having voting power (and
any other shares over which he or it exercises voting control) in such manner as
shall be necessary or appropriate to ensure that any vacancy on the Board of
Directors of the Company occurring for any reason shall be filled only in
accordance with the provisions of this Article VI.
Section 6.2 Committees of the Board. The Company and each of Investors
----------- -----------------------
and Founders agree to use their best efforts to cause the Board of Directors to
establish a Compensation Committee (which shall be charged with exclusive
authority over all compensation and employee stock and option matters) and an
Audit Committee (which shall be charged with reviewing the Company's financial
statements and accounting practices). The Compensation Committee shall consist
of three (3) Directors, two (2) of whom shall have been designated by two-thirds
in interest of the Investors and one (1) of whom shall be the Company's Chief
Executive Officer; provided, that if the Company's 1996 Stock Option and Grant
--------
Plan must be administered solely by outside directors in order to comply with
relevant tax and securities law requirements, the Chief Executive Officer shall
be permitted to consult with the Compensation Committee without being a voting
member thereof and the Compensation Committee shall consult with the Chief
Executive Officer on such matters. The Audit Committee shall consist of such
individuals as the Board of Directors shall appoint from time to time. In
addition, should an Executive Committee be established, the Investors and
Founders agree that such Committee shall consist of two nominees of the
Investors and one nominee of the Founders.
23
Section 6.3 Assignment. Each Investor and each Founder agrees, as a
----------- ----------
condition to any transfer of its Shares, to cause the transferee to agree to the
provisions of this Article VI, whereupon such transferee shall be subject to the
provisions hereof as an Investor or Founder, as applicable, in connection with
its ownership of the shares Transferred for purposes of this Article VI.
Section 6.4 Term. This Article VI shall remain in effect until the
----------- ----
closing of a Qualified Public Offering or, if sooner, the date which is 10 years
after the date hereof.
ARTICLE VII. MISCELLANEOUS PROVISIONS
----------- ------------------------
Section 7.1 Survival of Representations and Covenants. Each of the
----------- -----------------------------------------
parties hereto agrees that each representation, warranty, covenant and agreement
made by it in this Agreement or in any certificate, instrument or other document
delivered pursuant to this Agreement is material, shall be deemed to have been
relied upon by the other parties and shall remain operative and in full force
and effect after the date hereof regardless of any investigation. This
Agreement shall not be construed so as to confer any right or benefit upon any
Person other than the parties hereto and their respective successors and
permitted assigns to the extent contemplated herein.
Section 7.2 Legend on Securities. The Company, the Investors and the
----------- --------------------
Founders acknowledge and agree that the following legend shall be typed on each
certificate evidencing any of the securities issued hereunder held at any time
by any of the Investors, Founders or their Permitted Transferees:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED,
HYPOTHECATED OR OTHERWISE ASSIGNED EXCEPT PURSUANT TO (1) A REGISTRATION
STATEMENT WITH RESPECT TO SUCH SECURITIES WHICH IS EFFECTIVE UNDER SUCH ACT OR
(2) AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER SUCH ACT RELATING TO THE
DISPOSITION OF SECURITIES. THESE SECURITIES ARE ALSO SUBJECT TO THE PROVISIONS
OF A CERTAIN STOCKHOLDERS' AGREEMENT, DATED AS OF DECEMBER 4, 1996, INCLUDING
CERTAIN RESTRICTIONS ON TRANSFER SET FORTH THEREIN. A COMPLETE AND CORRECT COPY
OF SUCH AGREEMENT IS AVAILABLE FOR INSPECTION AT THE PRINCIPAL OFFICE OF THE
COMPANY AND WILL BE FURNISHED UPON WRITTEN REQUEST AND WITHOUT CHARGE.
Section 7.3 Amendment and Waiver. Any party may waive any provision
----------- --------------------
hereof intended for its benefit in writing. No failure or delay on the part of
any party hereto in exercising any right, power or remedy hereunder shall
operate as a waiver thereof. The remedies provided for herein are cumulative
and are not exclusive of any remedies that may be available to any party hereto
at law or in equity or otherwise. This Agreement may be
24
amended with the prior written consent of the Company, a two-thirds-in-interest
of the Founders (based on the Shares held by the Founders and their Permitted
Transferees as a group), and two-thirds-in-interest of the Investors (based on
the Shares held by the Investors as a group); provided, however, that any
-------- -------
amendment which directly, materially and adversely affects any right
specifically granted to a particular Investor or Founder in a manner different
than other Investors or Founders shall not be effective unless such Person has
consented to that amendment. All actions by the Company hereunder shall be
taken by or upon the direction of a majority of the members of the Company's
Board of Directors.
Section 7.4 Notices. All notices and other communications provided
------------ -------
for herein shall be in writing and shall be deemed to have been duly given,
delivered and received (a) if delivered personally or (b) if sent by telex or
facsimile, registered or certified mail (return receipt requested) postage
prepaid, or by courier guaranteeing next day delivery, in each case to the party
to whom it is directed at the following addresses (or at such other address for
any party as shall be specified by notice given in accordance with the
provisions hereof, provided that notices of a change of address shall be
effective only upon receipt thereof). Notices delivered personally shall be
effective on the day so delivered, notices sent by registered or certified mail
shall be effective three days after mailing, notices sent by telex shall be
effective when answered back, notices sent by facsimile shall be effective when
receipt is acknowledged, and notices sent by courier guaranteeing next day
delivery shall be effective on the earlier of the second business day after
timely delivery to the courier or the day of actual delivery by the courier:
(a) if to the Company:
Boron, XxXxxx & Associates, Inc.
00-00 Xxxxx 000 Xxxxx
Xxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. XxXxxx
Chief Executive Officer
(b) if to the Investors:
TA Associates, Inc.
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxxxxx X. Xxxxx
25
TA Associates, Inc.
Xxxx Xxxxxx Xxxxx, Xxxxx 0000
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
(c) if to the Founders:
x/x Xxxxx, XxXxxx & Associates, Inc.
00-00 Xxxxx 000 Xxxxx
Xxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. XxXxxx, Xxxxxxx Xxxxx, Xxxxxxxxxxx
Xxxxxxx and Xxxxxxx X. Xxxx
Section 7.5 Headings. The Article and Section headings used or contained
----------- --------
in this Agreement are for convenience of reference only and shall not affect the
construction of this Agreement.
Section 7.6 Counterparts. This Agreement may be executed in one or more
----------- ------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which together
shall be deemed to constitute one and the same agreement.
Section 7.7 Dispute Resolution. Except with respect to matters as to
----------- ------------------
which injunctive relief is being sought, any dispute arising out of or relating
to this Agreement that has not been settled within thirty (30) days by good
faith negotiation between the parties to this Agreement shall be submitted to
the American Arbitration Association ("AAA") for final and binding arbitration
pursuant to AAA's commercial Arbitration Rules. Any such arbitration shall be
conducted in New York, New York.
Section 7.8 Remedies; Severability. Notwithstanding Section 7.7, it is
----------- ----------------------
specifically understood and agreed that any breach of the provisions of this
Agreement by any Person subject hereto will result in irreparable injury to the
other parties hereto, that the remedy at law alone will be an inadequate remedy
for such breach, and that, in addition to any other legal or equitable remedies
which they may have, such other parties may enforce their respective rights by
actions for specific performance (to the extent permitted by law) and the
Company may refuse to recognize any unauthorized Transferee as one of its
stockholders for any purpose, including, without limitation, for purposes of
dividend and voting rights, until the relevant party or parties have complied
with all applicable provisions of this Agreement.
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
26
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, it being intended that all of the rights and
privileges of the parties hereto shall be enforceable to the fullest extent
permitted by law.
Section 7.9 Entire Agreement. This Agreement, together with the
----------- ----------------
Preferred Stock Purchase Agreement and other agreements specifically
contemplated hereby and thereby, is intended by the parties as a final
expression of their agreement and intended to be complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein. This Agreement and the
Preferred Stock Purchase Agreement and other agreements contemplated hereby and
thereby (including the exhibits hereto and thereto) supersede all prior
agreements and understandings between the parties with respect to such subject
matter.
Section 7.10 Adjustments. All references to share prices and amounts
------------ -----------
herein shall be equitably adjusted to reflect stock splits, stock dividends,
recapitalizations and similar changes affecting the capital stock of the
Company.
Section 7.11 Law Governing. This Agreement shall be construed and
------------ -------------
enforced in accordance with and governed by the laws of New Jersey (without
giving effect to principles of conflicts of law), except that any Delaware
corporate law matters relating to the Company shall be construed and enforced in
accordance with and governed by the Delaware General Corporation Law (without
giving effect to principles of conflicts of law). Each party also waives trial
by jury in any action relating to this Agreement.
Section 7.12 Successors and Assigns. This Agreement shall be binding
------------ ----------------------
upon and inure to the benefit of the respective successors and permitted assigns
of the parties hereto as contemplated herein, and any successor to the Company
by way of merger or otherwise shall specifically agree to be bound by the terms
hereof as a condition of such successor. This Agreement may not be assigned by
any Founder or Permitted Transferee except as contemplated by Article IV without
the prior written consent of two-thirds-in-interest of the Investors, and
without such prior written consent any attempted transfer shall be null and
void.
[Remainder of Page Intentionally Left Blank]
27
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
BORON, XXXXXX & ASSOCIATES, INC.
By: /s/ Xxxxxxx X. XxXxxx
---------------------------------
President
FOUNDERS:
/s/ Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxx X. XxXxxx
/s/ Xxxxxxx Xxxxx
------------------------------------
Xxxxxxx Xxxxx
/s/ Xxxxxxxxxxx Xxxxxxx
------------------------------------
Xxxxxxxxxxx Xxxxxxx
/s/ Xxxxxxx X. Xxxx
------------------------------------
Xxxxxxx X. Xxxx
28
TA INVESTORS ADVENT VII L.P.
By: TA Associates VII L.P.,
its General Partner
By: TA Associates, Inc.,
its General Partner
*
------------------------------------
Name: Xxxxxxxxxx X. Xxxxx
Title: Managing Director
ADVENT ATLANTIC AND PACIFIC III L.P.
By: TA Associates AAP III Partners,
its General Partner
By: TA Associates, Inc.,
its General Partner
*
------------------------------------
Name: Xxxxxxxxxx X. Xxxxx
Title: Managing Director
TA VENTURE INVESTORS LIMITED
PARTNERSHIP
*
------------------------------------
Name: Xxxxxxxxxx X. Xxxxx
Title: General Partner
* /s/ Xxxxxxxxxx X Xxxxx
-----------------------------
By: Xxxxxxxxxx X Xxxxx
29
/s/ MLPFS FBO Xxxx X. Xxxxxx, XX IRRA
------------------------------------
MLPFS FBO
Xxxx X. Xxxxxx, XX IRRA
/s/ Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxx X. XxXxxxxx
------------------------------------
Xxxx X. XxXxxxxx
/s/ Xxxxxx X. Xxx
------------------------------------
Xxxxxx X. Xxx
30
EXHIBIT A
---------
Form of Joinder Agreement
-------------------------
The undersigned hereby agrees, effective as of the date hereof, to become a
party to that certain Stockholders' Agreement (the "Agreement") dated as of
December 4, 1996 by and among Boron, XxXxxx & Associates, Inc. (the "Company")
and the parties named therein and for all purposes of the Agreement, the
undersigned shall be included within the term ["Investor"] ["Founder"] (each as
defined in the Agreement). As of the date hereof the undersigned makes each of
the representations and warranties set forth in Section 2.2 of the Agreement.
The address and facsimile number to which notices may be sent to the undersigned
is as follows:
--------------------------------------------------------------------------------
Facsimile No. :
----------------
---------------------------------
[NAME OF UNDERSIGNED]
31
