Exhibit 10.5
MANAGEMENT AGREEMENT
This Management Agreement (this "Agreement") is entered into as of May 24,
2004 by and among UGS Corp. (formerly known as UGS PLM Solutions Inc.), a
Delaware corporation (the "Company"), UGS Capital Corp. (formerly known as BSW
Holdings, Inc.), a Delaware corporation ("Capital"), UGS Capital Corp. II, a
Delaware corporation ("Capital II"), UGS Holdings, Inc., a Delaware corporation
("Holdings" and, together with the Company, Capital and Capital II, the "UGS
Corporations"), Xxxx Capital Partners, LLC, a Delaware limited liability company
("Bain"), Silver Lake Technology Management, L.L.C., a Delaware limited
liability company ("Silver Lake") and Warburg Pincus LLC, a New York limited
liability company ("Warburg" and, together with Bain and Silver Lake, the
"Managers").
RECITALS
WHEREAS, Capital, Capital II and Holdings have been formed for the purpose
of acquiring (the "Acquisition") all of the outstanding shares of capital stock
of the Company from Electronic Data Systems Corporation, a Delaware corporation
(the "Seller"), all on the terms and subject to the conditions of that certain
Stock Purchase Agreement dated as of March 12, 2004 (the "Purchase Agreement")
among the Seller, Capital and the Company;
WHEREAS, to enable the UGS Corporations to engage in the Acquisition and
related transactions, the Managers provided financial and structural advice and
analysis as well as assistance with due diligence investigations and
negotiations (the "Financial Advisory Services"); and
WHEREAS, the UGS Corporations want to retain the Managers to provide
certain management and advisory services to the UGS Corporations, and the
Managers are willing to provide such services on the terms set forth below.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants contained herein,
the parties hereto, intending to be legally bound, hereby agree as follows:
1. Services. Each of the Managers hereby agrees that, during the term of
this Agreement (the "Term"), it will provide the following consulting and
management advisory services to the UGS Corporations as requested from time to
time by the Boards of Directors of the UGS Corporations:
(a) advice in connection with the negotiation and consummation of
agreements, contracts, documents and instruments necessary to provide
the UGS Corporations with financing on terms and conditions
satisfactory to the UGS Corporations;
(b) financial, managerial and operational advice in connection with
the Company's day-to-day operations, including, without limitation,
advice with respect to the development and implementation of strategies
for improving the operating, marketing and financial performance of the
Company and its subsidiaries; and
(c) such other services (which may include financial and strategic
planning and analysis, consulting services, human resources and
executive recruitment services and other services) as such Manager and
the UGS Corporations may from time to time agree in writing.
Each of the Managers shall devote such time and efforts to the performance of
services contemplated hereby as such Manager deems reasonably necessary or
appropriate; provided, however, that no minimum number of hours is required to
be devoted by Bain, Silver Lake or Warburg on a weekly, monthly, annual or other
basis. The UGS Corporations acknowledge that each of the Managers' services are
not exclusive to any of the UGS Corporations and that each Manager will render
similar services to other persons and entities. The Managers and the UGS
Corporations understand that the UGS Corporations may, at times, engage one or
more investment bankers or financial advisers to provide services in addition
to, but not in lieu of, services provided by the Managers under this Agreement.
In providing services to the UGS Corporations, each Manager will act as an
independent contractor and it is expressly understood and agreed that this
Agreement is not intended to create, and does not create, any partnership,
agency, joint venture or similar relationship and that no party has the right or
ability to contract for or on behalf of any other party or to effect any
transaction for the account of any other party.
2. Payment of Fees.
(a) The UGS Corporations, jointly and severally, will pay to the
Managers (or such affiliates as they may respectively designate), in
consideration of the Managers providing the Financial Advisory Services,
an aggregate transaction fee (the "Transaction Fee") in the amount of
$30,000,000, such fee being payable at the closing of the Acquisition.
The Transaction Fee shall be divided among the Managers as follows:
Bain: $10,000,000
Silver Lake: $10,000,000
Warburg: $10,000,000
(b) During the Term, the UGS Corporations, jointly and severally,
will pay to the Managers (or such affiliates as they may respectively
designate), an aggregate annual periodic fee (the "Periodic Fee") of
$3,000,000 in exchange for the ongoing services provided by the Managers
under this Agreement, such fee being payable by the Company quarterly in
advance on or before the start of each calendar quarter; provided,
however, that the Periodic Fee for the period from the date hereof
through June 30, 2004 shall be paid on or before June 30, 2004. The
Periodic Fee shall be prorated for any partial period of less than three
months. The Periodic Fee shall be divided among the Managers pro rata in
proportion to the amount of Investor Shares held at the time by the
investment funds affiliated with each Manager (provided that,
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for purposes of this Agreement, (a) Xxxx Capital Integral Investors,
LLC, Xxxx Capital VII Coinvestment Fund, LLC and BCIP TCV, LLC and their
respective Affiliated Funds shall be deemed to be investment funds
affiliated with Bain; (b) Silver Lake Partners, L.P., Silver Lake
Investors, L.P., Silver Lake Technology Investors, L.L.C. and Integral
Capital Partners VI, L.P. and their respective Affiliated Funds shall be
deemed to be investment funds affiliated with Silver Lake; and (c)
Warburg Pincus Private Equity VIII, L.P., Warburg Pincus International
Partners, L.P., Warburg Pincus Netherlands Private Equity VIII I, C.V.,
Warburg Pincus Netherlands Private Equity VIII II, C.V., Warburg Pincus
Germany Private Equity VIII K.G., Warburg Pincus Netherlands
International Partners I, C.V., Warburg Pincus Netherlands International
Partners II, C.V. and Warburg Pincus Germany International Partners,
K.G. and their respective Affiliated Funds shall be deemed to be
investment funds affiliated with Warburg). In the preceding sentence,
the term "Affiliated Funds" shall have the same meaning given to it in
that certain Amended and Restated Investor Agreement dated May 24, 2004
among Capital, Capital II, Holdings, Company and the Investors (as
defined in the Amended and Restated Investor Agreement) (the "Amended
and Restated Investor Agreement"). In this Agreement, the term "Investor
Shares" means at any time all shares of capital stock of Capital,
Capital II and Holdings (and any successor or survivor to Capital,
Capital II or Holdings) held by the investment funds affiliated with the
Managers.
(c) During the Term, the Managers will advise the UGS Corporations
in connection with financing, acquisition, disposition and change of
control transactions involving the UGS Corporations or any of their
respective direct or indirect subsidiaries (however structured), and the
UGS Corporations, jointly and severally, will pay to the Managers (or
such affiliates as they may respectively designate) an aggregate fee
(the "Subsequent Fee") in connection with each such transaction equal to
one percent (1%) of the gross transaction value of such transaction,
such fee to be due and payable for the foregoing services at the closing
of such transaction. Each Subsequent Fee shall be divided among the
Managers pro rata in proportion to the amount of Investor Shares held at
the time by the investment funds affiliated with each Manager.
Each payment made pursuant to this Section 2 shall be paid by wire
transfer of immediately available federal funds to the accounts specified on
Schedule 1 hereto, or to such other account(s) as the Managers may specify to
the Company in writing prior to such payment.
3. Term. This Agreement shall continue in full force and effect until
December 31, 2014; provided that this Agreement shall be automatically extended
each December 31 for an additional year unless the UGS Corporations or two of
the three Managers provide written notice of their desire not to automatically
extend the term of this Agreement to the other parties hereto at least 90 days
prior to such December 31; provided, however, that two of the three Managers may
cause this Agreement to terminate at any time. In the event of a termination of
this Agreement, the UGS Corporations, jointly and severally, shall pay each of
Bain, Silver Lake and Warburg (or such affiliates as they may respectively
designate) (i) all unpaid Periodic Fees (pursuant to Section 2(b) above),
Subsequent Fees (pursuant to Section 2(c) above) and expenses (pursuant to
Section 4(a) below) due with respect to periods prior to the date of termination
plus
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(ii) the net present value (using a discount rate equal to the then yield on
U.S. Treasury Securities of like maturity) of the Periodic Fees that would have
been payable with respect to the period from the date of termination until the
expiration date in effect immediately prior to such termination. Sections 4 and
5 of this Agreement shall survive any termination of this Agreement.
4. Expenses; Indemnification.
(a) Expenses. The UGS Corporations, jointly and severally, will pay
on demand all Reimbursable Expenses. As used herein, "Reimbursable
Expenses" means (i) all expenses incurred or accrued prior to the date
on which the transactions contemplated by the Purchase Agreement are
consummated (the "Closing Date") by any of the Managers or their
affiliates in connection with this Agreement, the Acquisition or any
related transactions, consisting of their respective out-of-pocket
expenses for travel and other incidentals in connection with such
transactions (including, without limitation, all air travel (by first
class on a commercial airline or by charter, as determined by the
appropriate Manager) and other travel related expenses) and the
out-of-pocket expenses and the fees and charges of (A) Ropes & Xxxx LLP,
(B) Xxxxxxx Xxxxxxx & Xxxxxxxx LLP (as counsel to Silver Lake and its
affiliated funds), (C) Xxxxxxx Xxxx & Xxxxxxxxx LLP, (D) Lovells,
McFarlanes, Xxxxxxxx & Xxxxxxx Advogados, Osler, Xxxxxx & Harcourt LLP,
A & L Goodbody Solicitors, Asahi Koma Law Offices, Xxxxx X. Xxxx Esq.
and other foreign counsel to the Managers or their affiliates, (E) Ernst
& Young LLP, (F) McKinsey & Company, and (G) any other consultants or
advisors retained by the Managers with the agreement of all Managers in
connection with such transactions, (ii) reasonable out-of-pocket
expenses incurred from and after the Closing Date relating to their
affiliated funds' investment in, the operations of, or the services
provided by the Managers to, the UGS Corporations or any of their
affiliates from time to time (including, without limitation, all air
travel (by first class on a commercial airline or by charter, as
determined by the appropriate Manager) and other travel related
expenses), provided, however, that two of the three Managers must
approve any such expenses other than routine out-of-pocket expenses,
(iii) reasonable out-of-pocket legal expenses incurred by any Manager or
its affiliates from and after Closing Date in connection with the
enforcement of rights or taking of actions under this Agreement, the
Subscription Agreement, the UGS Corporations' certificates of
incorporation and bylaws, the Stockholders Agreement, the Participation
and Registration Rights Agreement or the Amended and Restated Investor
Agreement; provided that the reimbursement of expenses incurred by the
Managers or their affiliates with respect to transactions pursuant to
Section 2.1 of the Participation and Registration Rights Agreement
(Right of Participation Expenses), Section 3.1 of the Participation and
Registration Rights Agreement (Demand Right Expenses) and Section 3.2 of
the Participation and Registration Rights Agreement (Piggyback Right
Expenses),will be governed by, and subject to any limitations contained
in, the applicable provisions of the Participation and Registration
Rights Agreement and the reimbursement of expenses with respect to
transactions pursuant to Section 4.1 of the Stockholders Agreement
(Tag-Along Expenses), Section 4.2 of the Stockholders Agreement
(Drag-Along Expenses) and Section 4.4 of the Stockholders Agreement
(Right of First Offer Expenses) will be
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governed by, and subject to any limitations contained in, the applicable
provisions of the Stockholders Agreement and (iv) expenses incurred from
and after the Closing Date by the Managers and their affiliates which at
least two of the three Managers agree are properly allocable to the UGS
Corporations under this Agreement. As used in this Agreement,
Subscription Agreement" means the Subscription Agreement dated May 24,
2004 among Capital, Capital II, Holdings, Company and the Subscribers
(as defined in the Subscription Agreement), "Stockholders Agreement"
means the Stockholders Agreement dated May 24, 2004 among Capital,
Capital II, Holdings, Company and certain stockholders of Capital and
Capital II and "Participation and Registration Rights Agreement " means
the Participation and Registration Rights Agreement dated May 24, 2004
among Capital, Capital II, Holdings, Company and certain stockholders of
Capital and Capital II.
(b) Indemnity and Liability. The UGS Corporations, jointly and
severally, will indemnify, exonerate and hold each of the Managers, and
each of their respective partners, shareholders, members, affiliates,
directors, officers, fiduciaries, managers, controlling Persons,
employees and agents and each of the partners, shareholders, members,
affiliates, directors, officers, fiduciaries, managers, controlling
Persons, employees and agents of each of the foregoing (collectively,
the "Indemnitees") free and harmless from and against any and all
actions, causes of action, suits, claims, liabilities, losses, damages
and costs and out-of-pocket expenses in connection therewith (including
reasonable attorneys' fees and expenses) incurred by the Indemnitees or
any of them before or after the date of this Agreement (collectively,
the "Indemnified Liabilities"), as a result of, arising out of, or in
any way relating to (i) this Agreement, the Acquisition, any transaction
to which a UGS Corporation is a party or any other circumstances with
respect to a UGS Corporation (other than any such Indemnified
Liabilities to the extent such Indemnified Liabilities arise out of any
breach of the Amended and Restated Investor Agreement, the Stockholders
Agreement or the Subscription Agreement by such Indemnitee or its
affiliated or associated Indemnitees or other related persons or any
transaction entered into after the Closing Date or other circumstances
existing after the Closing Date with respect to which the interests of
such Indemnitee or its affiliated or associated Indemnitees were adverse
to the interests of the UGS Corporations or (ii) operations of, or
services provided by any of the Managers to, the UGS Corporations, or
any of their affiliates from time to time (including but not limited to
any indemnification obligations assumed or incurred by any Indemnitee to
or on behalf of the Seller, or any of its accountants or other
representatives, agents or affiliates); provided that the foregoing
indemnification rights shall not be available to the extent that any
such Indemnified Liabilities arose on account of such Indemnitee's gross
negligence or willful misconduct, and further provided that, if and to
the extent that the foregoing undertaking may be unavailable or
unenforceable for any reason, the UGS Corporations hereby agree to make
the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law. For
purposes of this Section 4(b), none of the circumstances described in
the limitations contained in the two provisos in the immediately
preceding sentence shall be deemed to apply absent a final
non-appealable judgment of a court of competent jurisdiction to such
effect, in which case to the extent any
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such limitation is so determined to apply to any Indemnitee as to any
previously advanced indemnity payments made by the UGS Corporations,
then such payments shall be promptly repaid by such Indemnitee to the
UGS Corporations. The rights of any Indemnitee to indemnification
hereunder will be in addition to any other rights any such person may
have under any other agreement or instrument referenced above or any
other agreement or instrument to which such Indemnitee is or becomes a
party or is or otherwise becomes a beneficiary or under law or
regulation. None of the Indemnitees shall in any event be liable to the
UGS Corporations or any of their affiliates for any act or omission
suffered or taken by such Indemnitee that does not constitute gross
negligence or willful misconduct. If the Indemnitees related to each of
the three Managers are similarly situated with respect to their
interests in connection with a matter that may be an Indemnified
Liability and such Indemnified Liability is not based on a Third-Party
Claim, the Indemnitees may enforce their rights pursuant to this Section
4(b) with respect to such matter only with the consent of at least two
of the three Managers. In this Agreement, "Person" means any individual
or corporation, association, partnership, limited liability company,
joint venture, joint stock or other company, business trust, trust,
organization, or other entity of any kind. A "Third-Party Claim" means
any (i) claim brought by a Person other than a UGS Corporation, a
Manager or any indemnified Person related to a Manager and (ii) any
derivative claim brought in the name of a UGS Corporation that is
initiated by a Person other than a Manager or any indemnified Person
related to a Manager.
5. Disclaimer and Limitation of Liability; Opportunities.
(a) Disclaimer; Standard of Care. None of the Managers makes any
representations or warranties, express or implied, in respect of the
services to be provided by any Manager hereunder. In no event shall any
of the Managers be liable to the UGS Corporations or any of their
affiliates for any act, alleged act, omission or alleged omission that
does not constitute gross negligence or willful misconduct of such
Manager as determined by a final, non-appealable determination of a
court of competent jurisdiction.
(b) Freedom to Pursue Opportunities. In recognition that each
Manager and its respective Indemnitees currently have, and will in the
future have or will consider acquiring, investments in numerous
companies with respect to which each Manager or its respective
Indemnitees may serve as an advisor, a director or in some other
capacity, and in recognition that each Manager and its respective
Indemnitees have myriad duties to various investors and partners, and in
anticipation that the UGS Corporations, on the one hand and each of the
Managers (or one or more affiliates, associated investment funds or
portfolio companies), on the other hand, may engage in the same or
similar activities or lines of business and have an interest in the same
areas of corporate opportunities, and in recognition of the benefits to
be derived by the UGS Corporations hereunder and in recognition of the
difficulties which may confront any advisor who desires and endeavors
fully to satisfy such advisor's duties in determining the full scope of
such duties in any particular situation, the provisions of this Section
5(b) are set forth to regulate, define and guide the conduct of certain
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affairs of the UGS Corporations as they may involve such Manager. Except
as a Manager may otherwise agree in writing after the date hereof:
(i) Such Manager and its respective Indemnitees shall have the
right: (A) to directly or indirectly engage in any business
(including, without limitation, any business activities or lines of
business that are the same as or similar to those pursued by, or
competitive with, the Company and its subsidiaries, (B) to directly
or indirectly do business with any client or customer of the Company
and its subsidiaries, (C) to take any other action that such Manager
believes in good faith is necessary to or appropriate to fulfill its
obligations as described in the first sentence of this Section 5(b),
and (D) not to present potential transactions, matters or business
opportunities to the UGS Corporations or any of their subsidiaries,
and to pursue, directly or indirectly, any such opportunity for
itself, and to direct any such opportunity to another person.
(ii) Such Manager and its respective Indemnitees shall have no
duty (contractual or otherwise) to communicate or present any
corporate opportunities to the UGS Corporations or any of their
affiliates or to refrain from any actions specified in Section
5(b)(i), and the UGS Corporations, on their own behalf and on behalf
of their affiliates, hereby renounce and waive any right to require
such Manager or any of its Indemnitees to act in a manner
inconsistent with the provisions of this Section 5(b).
(iii) None of such Manager, nor any of its Indemnitees shall be
liable to the UGS Corporations or any of their affiliates for breach
of any duty (contractual or otherwise) by reason of any activities
or omissions of the types referred to in this Section 5(b) or of any
such person's participation therein.
(c) Limitation of Liability. In no event will any of the Managers or
any of their Indemnitees be liable to the UGS Corporations or any of
their affiliates or either of the other Managers or their Indemnitees
for any indirect, special, incidental or consequential damages,
including, without limitation, lost profits or savings, whether or not
such damages are foreseeable, or for any third party claims (whether
based in contract, tort or otherwise), relating to the services to be
provided by the Managers hereunder.
6. Assignment, etc. Except as provided below, none of the parties hereto
shall have the right to assign this Agreement without the prior written consent
of each of the other parties. Notwithstanding the foregoing, (a) any Manager may
assign all or part of its rights and obligations hereunder to any of its
respective affiliates which provides services similar to those called for by
this Agreement, in which event such Manager shall be released of its rights to
fees under Section 2 and reimbursement of expenses under Section 4(a) and all of
its obligations hereunder and (b) the provisions hereof for the benefit of
Indemnitees of the Managers shall inure to the benefit of such Indemnitees and
their successors and assigns.
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7. Amendments and Waivers. No amendment or waiver of any term, provision
or condition of this Agreement shall be effective, unless in writing and
executed by two of the three Managers and the UGS Corporations; provided, that
any amendment that would increase any fee pursuant to this Agreement shall
require the written consent of each of the Managers and the UGS Corporations and
any amendment or waiver that discriminates against a Manager will require the
consent of such Manager; and provided, further that any Manager may waive any
portion of any fee to which it is entitled pursuant to this Agreement, and,
unless otherwise directed by such Manager, such waived portion shall revert to
the UGS Corporations. No waiver on any one occasion shall extend to or effect or
be construed as a waiver of any right or remedy on any future occasion. No
course of dealing of any person nor any delay or omission in exercising any
right or remedy shall constitute an amendment of this Agreement or a waiver of
any right or remedy of any party hereto.
8. Governing Law; Jurisdiction.
(a) Choice of Law. This Agreement and all matters arising under or
related to this Agreement shall be governed by and construed in
accordance with the domestic substantive laws of the State of Delaware
without giving effect to any choice or conflict of law provision or
rule that would cause the application of the domestic substantive laws
of any other jurisdiction.
(b) Consent to Jurisdiction. Each of the parties agrees that all
actions, suits or proceedings arising out of, based upon or relating
to this Agreement or the subject matter hereof shall be brought and
maintained exclusively in the federal and state courts of the State of
Delaware. Each of the parties hereto by execution hereof (i) hereby
irrevocably submits to the jurisdiction of the federal and state
courts in the State of Delaware for the purpose of any action, suit or
proceeding arising out of or based upon this Agreement or the subject
matter hereof and (ii) hereby waives to the extent not prohibited by
applicable law, and agrees not to assert, by way of motion, as a
defense or otherwise, in any such action, suit or proceeding, any
claim that it is not subject personally to the jurisdiction of the
above-named courts, that it is immune from extraterritorial injunctive
relief or other injunctive relief, that its property is exempt or
immune from attachment or execution, that any such action, suit or
proceeding may not be brought or maintained in one of the above-named
courts, that any such action, suit or proceeding brought or maintained
in one of the above-named courts should be dismissed on grounds of
forum non conveniens, should be transferred to any court other than
one of the above-named courts, should be stayed by virtue of the
pendency of any other action, suit or proceeding in any court other
than one of the above-named courts, or that this Agreement or the
subject matter hereof may not be enforced in or by any of the
above-named courts. Notwithstanding the foregoing, to the extent that
any party hereto is or becomes a party in any litigation in connection
with which it may assert indemnification rights set forth in this
Agreement, the court in which such litigation is being heard shall be
deemed to be included in clause (i) above. Each of the parties hereto
hereby consents to service of process in any such suit, action or
proceeding in any manner permitted by the laws of the State of
Delaware, agrees that service of process by registered or certified
mail, return receipt requested, at the address specified in or
pursuant to Section 10 is
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reasonably calculated to give actual notice and waives and agrees not
to assert by way of motion, as a defense or otherwise, in any such
action, suit or proceeding any claim that service of process made in
accordance with Section 10 does not constitute good and sufficient
service of process. The provisions of this Section 8 shall not
restrict the ability of any party to enforce in any court any judgment
obtained in a federal or state court of the State of Delaware.
(c) Waiver of Jury Trial. To the extent not prohibited by applicable
law which cannot be waived, each of the parties hereto hereby waives,
and covenants that it will not assert (whether as plaintiff,
defendant, or otherwise), any right to trial by jury in any forum in
respect of any issue, claim, demand, cause of action, action, suit or
proceeding arising out of or based upon this Agreement or the subject
matter hereof, in each case whether now existing or hereafter arising
and whether in contract or tort or otherwise. Each of the parties
hereto acknowledges that it has been informed by each other party that
the provisions of this Section 8(c) constitute a material inducement
upon which such party is relying and will rely in entering into this
Agreement and the transactions contemplated hereby. Any of the parties
hereto may file an original counterpart or a copy of this Agreement
with any court as written evidence of the consent of each of the
parties hereto to the waiver of its right to trial by jury.
9. Entire Agreement. This Agreement contains the entire understanding of
the parties with respect to the subject matter hereof and supersedes any prior
communication or agreement with respect thereto.
10. Notice. All notices, demands, and communications required or permitted
under this Agreement shall be in writing and shall effective if served upon such
other party and such other party's copied persons as specified below to the
address set forth for it below (or to such other address as such party shall
have specified by notice to each other party) if (i) delivered personally, (ii)
sent and received by facsimile or (iii) sent by certified or registered mail or
by Federal Express, DHL, UPS or any other comparably reputable overnight courier
service, postage prepaid, to the appropriate address as follows:
If to a UGS Corporation, to it:
c/o UGS Corp.
00000 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
with a copy to:
Ropes & Xxxx LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
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Attention: Xxxxxx X. Xxxx, Esq.
If to Bain, to it:
c/o Bain Capital, LLC
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxx
with a copy to:
Ropes & Xxxx LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: X. Xxxxxxx Xxxxxxxxx, Esq.
If to Silver Lake, to it:
c/o Silver Lake Partners
0000 Xxxx Xxxx Xxxx, Xxx. 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxx
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxx, Esq.
If to Warburg, to:
Warburg Pincus LLC
000 Xxxxxxxxx Xxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Back
with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx LLP
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000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Unless otherwise specified herein, such notices or other
communications shall be deemed effective, (a) on the date received, if
personally delivered or sent by facsimile during normal business hours,
(b) on the business day after being received if sent by facsimile other
than during normal business hours, (c) one business day after being sent
by Federal Express, DHL or UPS or other comparably reputable delivery
service and (d) five business days after being sent by registered or
certified mail. Each of the parties hereto shall be entitled to specify a
different address by giving notice as aforesaid to each of the other
parties hereto.
11. Severability. If in any proceedings a court shall refuse to enforce
any provision of this Agreement, then such unenforceable provision shall be
deemed eliminated from this Agreement for the purpose of such proceedings to the
extent necessary to permit the remaining provisions to be enforced. To the full
extent, however, that the provisions of any applicable law may be waived, they
are hereby waived to the end that this Agreement be deemed to be valid and
binding agreement enforceable in accordance with its terms, and in the event
that any provision hereof shall be found to be invalid or unenforceable, such
provision shall be construed by limiting it so as to be valid and enforceable to
the maximum extent consistent with and possible under applicable law.
12. Counterparts. This Agreement may be executed in any number of
counterparts and by each of 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 constitute one and the same agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf as an instrument under seal as of the date first above
written by its officer or representative thereunto duly authorized.
THE COMPANY: UGS CORP.
*
_________________________________
Xxxxxxx X. Xxxxxxx
Executive Vice President
CAPITAL: UGS CAPITAL CORP.
*
________________________________
Xxxxxxx X. Xxxxxxx
Executive Vice President
CAPITAL II: UGS CAPITAL CORP. II
*
________________________________
Xxxxxxx X. Xxxxxxx
Executive Vice President
HOLDINGS: UGS HOLDINGS, INC.
*
________________________________
Xxxxxxx X. Xxxxxxx
Executive Vice President
The signature appearing immediately below shall serve as a signature at
each place with a "*" on this page:
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Executive Vice President
Management Agreement
BAIN: XXXX CAPITAL PARTNERS, LLC
By: Xxxx Capital LLC, its sole member
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
Managing Director
SILVER LAKE: SILVER LAKE TECHNOLOGY
MANAGEMENT, L.L.C.
/s/ Xxxxxxx X. Xxx
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Xxxxxxx X. Xxx
Managing Director
Management Agreement
WARBURG: WARBURG PINCUS LLC
/s/ Xxxxxxx X. Back
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Xxxxxxx X. Back
Managing Director
Management Agreement
