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EXHIBIT 99(c)(2)
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (this "Agreement") is made as of
_______ __, 1999 by and among TAGTCR Acquisition, Inc., a Delaware corporation
("TAGTCR"), each of the Persons listed on the signature pages attached hereto,
and each of the other Persons who hereafter agree to become party to and bound
by this Agreement (collectively the "Stockholders"). Capitalized terms used but
not otherwise defined herein are defined in Section 10 hereof.
WHEREAS, TAGTCR has been formed for the purpose of merging
(the "Merger") with and into CompDent Corporation, a Delaware corporation
("CompDent") pursuant to the terms, and subject to the conditions, set forth in
the Amended and Restated Agreement and Plan of Merger, dated as of July 28,
1998 and amended and restated as of January 18, 1999, by and among TAGTCR,
CompDent and others, as amended from time to time (the "Merger Agreement").
WHEREAS, by virtue of the Merger, CompDent will become the
successor to all of the rights, interests, duties and obligations of TAGTCR,
including, without limitation, those arising under this Agreement, and after
the Merger, CompDent shall be deemed to be a party to this Agreement and all
references in this Agreement to TAGTCR or the "Company" shall be deemed to be
references to CompDent.
WHEREAS, the Company and the Stockholders desire to enter
into this Agreement for the purposes, among others, of (i) establishing the
composition of the Company's board of directors (the "Board"), (ii) assuring
continuity in the management and ownership of the Company and (iii) limiting
the manner and terms by which the Stockholder Shares may be transferred.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Agreement
hereby agree as follows:
1. Board of Directors.
(a) From and after the date hereof and until the
provisions of this Section 1 cease to be effective, each Stockholder shall vote
all of his or its Stockholder Shares (other than Rollover Shares, which shares
will not be subject to the voting requirements of this Section 1) and any other
voting securities (other than Rollover Shares) of the Company over which such
Stockholder has voting control and shall take all other necessary or desirable
actions within his or its control (whether in his or its capacity as a
stockholder, director, member of a board committee or officer of the Company or
otherwise, and including, without limitation, attendance at meetings in person
or by proxy for purposes of obtaining a quorum and execution of written
consents in lieu of meetings), and the Company shall take all necessary and
desirable actions within its control (including, without limitation, calling
special board and stockholder meetings), in order to cause:
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(i) the authorized number of directors on the
Board to be the amount necessary to allow for the designations
provided for pursuant to Section 1(a)(ii) below;
(ii) the following persons to be elected to the
Board (each a "Director"):
(A) up to three representatives
designated by the holders of a majority of the GTCR Shares
from time to time (the "GTCR Directors"), with Xxxxxx X.
Xxxxxxx serving as the sole initial GTCR Director;
(B) up to three representatives
designated by the holders of a majority of the TA Shares from
time to time (the "TA Directors"), with Xxxxx X. Xxxxxx
serving as the sole initial TA Director;
(C) Xxxxx X. Xxxxx, for so long as he
is an officer of the Company and Xxxxxxx X. Xxxxx, for so
long as she is an officer of the Company (collectively, the
"Management Directors");
(D) in the event that neither Xxxxx X.
Xxxxx nor Xxxxxxx X. Xxxxx is serving on the Board pursuant
to clause (C) above, one representative designated by the
holders of a majority of the Xxxxx Shares from time to time
(the "Management Stock Director"); and
(E) up to three representatives who
are jointly designated by, and mutually acceptable to, the
holders of a majority of the Requisite Shares from time to
time (the "Outside Directors"), and at any time during which
the holders of a majority of the Requisite Shares cannot
mutually agree on an Outside Director, such position shall
remain vacant (the term "holders of a majority of the
Requisite Shares" means at least two of the following three
groups: the holders of a majority of the GTCR Shares, the
holders of a majority of the TA Shares and the holders of a
majority of the Xxxxx Shares);
(iii) the Chairman of the Board of Directors (the
"Chairman") to be one of the Directors designated pursuant to Section
1(a)(ii) above and one who is jointly designated by, and mutually
acceptable to, the holders of a majority of the Requisite Shares to
serve in such capacity, with Xxxxx X. Xxxxx serving as the initial
Chairman, and at any time during which the holders of a majority of
the Requisite Shares cannot mutually agree on a Chairman, no Director
shall be designated as the Chairman; provided that, notwithstanding
the foregoing, for so long as Xxxxx X. Xxxxx or Xxxxxxx X. Xxxxx is
the Company's Chief Executive Officer, such Person shall also serve as
the Chairman;
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(iv) the establishment of a compensation
committee (the "Compensation Committee") comprised of one GTCR
Director, one TA Director and one Management Director (and in the
event there is no Management Director, then the Management Stock
Director); with the Compensation Committee being empowered with, to
the fullest extent permitted by law, but subject to any specific
limitations imposed by the Certificate of Incorporation or the By-laws
of the Company or a resolution of the Board, all of the authority
granted to the Board in determining policies, practices and procedures
relating to the compensation of executive officers and other
managerial and key employees of the Company and its Subsidiaries and
the establishment and administration of employee benefit plans and
stock option plans;
(v) the removal from the Board (with or without
cause) of any GTCR Director upon the written request of the holders of
a majority of the GTCR Shares;
(vi) the removal from the Board (with or without
cause) of any TA Director upon the written request of the holders of a
majority of the TA Shares;
(vii) the removal from the Board (with or without
cause) of any Management Director promptly after such time as such
individual ceases for any reason to be an officer of the Company;
(viii) the removal from the Board (with or without
cause) of any Management Stock Director upon the written request of
the holders of a majority of the Xxxxx Shares;
(ix) the removal from the Board (with or without
cause) of any Outside Director upon the written request of the holders
of a majority of the Requisite Shares; and
(x) in the event that any representative
designated hereunder resigns or for any other reason ceases to serve
as a member of the Board during his term of office, the filling of the
resulting vacancy by a representative designated by the Person or
Persons originally entitled to designate such director pursuant to
Section 1(a)(ii) above.
(b) There shall be at least four meetings of the Board
during every fiscal year, at least one of which shall be held in each 120-day
period during the Company's fiscal year. The Company shall pay all
out-of-pocket expenses incurred by each Director in connection with attend ing
regular and special meetings of the Board, the board of directors of any
Subsidiary of the Company and any committee thereof. So long as any Director
designated hereunder serves on the Board and for at least three years
thereafter, the Company shall maintain directors and officers indemnity
insurance coverage satisfactory to the holders of a majority of the Requisite
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Shares, and the Company's certificate of incorporation and bylaws shall provide
for indemnification and exculpation of Directors to the fullest extent
permitted under applicable law.
(c) Notwithstanding anything to the contrary contained
in this Section 1, in the event the holder or holders of the Company's
Convertible Preferred Stock exercise their right to elect directors to the
Board during a Voting Period (as defined in the Company's Certificate of
Incorporation), the provisions of this Section 1 shall remain in effect;
provided that the size of the Board shall be increased by the number of
directors who are elected by the holders of the Company's Convertible Preferred
Stock in accordance with the Company's Certificate of Incorporation.
(d) The provisions of this Section 1 shall terminate
automatically and be of no further force and effect upon the earlier of the
consummation of a Sale of the Company or a Qualified Public Offering.
2. Representations and Warranties of Stockholders. Each
Stockholder represents and warrants that (i) this Agreement has been duly
authorized, executed and delivered by such Stockholder and constitutes the
valid and binding obligation of such Stockholder, enforceable in accordance
with its terms, (ii) such Stockholder has not granted and is not a party to any
proxy, voting trust or other agreement which is inconsistent with, conflicts
with or violates any provision of this Agreement, (iii) all Stockholder Shares
have been acquired by such Stockholder for investment and not with a view to
the sale or distribution thereof within the meaning of the Securities Act, (iv)
such Stockholder has no present intention of selling or otherwise disposing of
any of the Stockholder Shares for his or its own account, and (v) such
Stockholder has been advised that the Stockholder Shares have not been
registered with the Securities and Exchange Commission and may not be offered,
sold or otherwise transferred except in compliance with the Securities Act. No
holder of Stockholder Shares shall grant any proxy or become party to any
voting trust or other agreement which is inconsistent with, conflicts with or
violates any provision of this Agreement.
3. Restrictions on Transfer of Stockholder Shares.
(a) Participation Rights. At least 40 days prior to any
sale, transfer, assignment, pledge or other disposal (a "Transfer") of any
Stockholder Shares by any Stockholder which, together with its Affiliates and
Permitted Transferees, holds at least 25% of the Common Stockholder Shares as
of immediately prior to such Transfer (a "Significant Stockholder") (other than
(i) pursuant to a Public Sale or (ii) a Transfer pursuant to Section 3(c) or
Section 4), the transferring Significant Stockholder will deliver a written
notice (the "Sale Notice") to the Company and the other Stockholders (the
"Other Stockholders"), specifying in reasonable detail the identity of the
prospective transferee(s), the Stockholder Shares to be sold and the terms and
conditions of the Transfer. In the event that the Other Stockholders hold (x)
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the class of Stockholder Shares which are to be transferred, (y) securities
convertible, exchangeable or exercisable for the class of Stockholder Shares
which are to be transferred, or (z) securities into which the class of
Stockholder Shares which are to be transferred are convertible, exchangeable or
exercisable, they may elect to participate in the contemplated Transfer by
delivering written notice to the transferring Significant Stockholder within 15
days after delivery of the Sale Notice. If any Other Stockholders have elected
to participate in such Transfer ("Participating Stockholders"), the
transferring Significant Stockholder and each Participating Stockholder will be
entitled to sell in the contemplated Transfer, at the same price and on the
same terms, a number of Stockholder Shares of such class, or securities
convertible, exchangeable or exercisable for Stockholder Shares of such class
(or securities into which such class of Stockholder Shares are convertible,
exchangeable or exercisable), equal to the product of (i) the quotient
determined by dividing the number of Stockholder Shares of such class and
securities convertible, exchangeable or exercisable for Stockholder Shares of
such class held by such Person by the aggregate number of Stockholder Shares of
such class and securities convertible, exchangeable or exercisable for
Stockholder Shares of such class owned by the transferring Significant
Stockholder and all Participating Stockholders and (ii) the number of
Stockholder Shares of such class and securities convertible, exchangeable or
exercisable for Stockholder Shares of such class to be sold in the contemplated
Transfer; provided that for purposes of this sentence, (A) Stockholder Shares
which have not vested (and will not vest as a result of such transaction) or
are subject to repurchase by the Company for less than fair market value shall
not be considered to be Stockholder Shares and (B) all Stockholder Shares held
by any Permitted Transferee of any Other Stockholder shall be deemed held by
such Other Stockholder himself or itself. The transferring Significant
Stockholder shall use its best efforts to obtain the agreement of the
prospective transferee(s) to the participation of the Participating
Stockholders in any contemplated Transfer, and the transferring Significant
Stockholder shall not Transfer any of its Stockholder Shares to the prospective
transferee(s) unless (1) the prospective transferee(s) agrees to allow the
participation of the Participating Stockholders or (2) the transferring
Significant Stockholder agrees to purchase the number of such class of
Stockholder Shares from any Participating Stockholders which the Participating
Stockholders would have been entitled to sell pursuant to this Section 3(a). If
any securities convertible, exchangeable or exercisable for Stockholder Shares
are included in any Transfer under this Section 3(a), the purchase price for
such securities shall be equal to the full purchase price determined hereunder
for the Stockholder Shares covered by the portion of such securities to be
transferred, adjusted by the aggregate exercise price for such shares. Each
Stockholder transferring Stockholder Shares pursuant to this Section 3(a) shall
pay his or its pro rata share (based on the number of Common Stockholder Shares
to be sold) of the expenses incurred by the Stockholders in connection with
such transfer and shall be obligated to join on a pro rata basis (based on the
number of Common Stockholder Shares to be sold) in any indemnification or other
obligations that the transferring Significant Stockholder agrees to provide in
connection with such transfer (other than any such obligations that relate
specifically to a particular Stockholder, such as indemnification with respect
to representations and warranties given by a Stockholder regarding such
Stockholder's
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title to and ownership of Stockholder Shares).
(b) First Refusal Rights. At least 40 days prior to any
Transfer of Stockholder Shares by any Stockholder which, together with its
Affiliates and Permitted Transferees, holds less than 25% of the Stockholder
Shares as of immediately prior to such Transfer (other than (i) pursuant to a
Public Sale, (ii) a Transfer to the Company, (iii) a Transfer pursuant to a
Senior Management Agreement, or (iv) a Transfer pursuant to Section 3(a),
Section 3(c) or Section 4), the Stockholder making such Transfer (the "Minority
Transferor") shall deliver a written notice (the "Transfer Notice") to the
Company and each Significant Stockholder that it desires to Transfer
Stockholder Shares of such class, specifying in reasonable detail the identity
of the prospective transferee(s), the number to be transferred and the terms
and conditions of the Transfer, including the proposed price per Stockholder
Share of such class (which price shall be payable solely in cash at the closing
of the transaction or in installments over time). The Company may elect to
purchase all or any portion of the Stockholder Shares to be transferred, upon
the same terms and conditions as those set forth in the Transfer Notice, by
delivering a written notice of such election to the Minority Transferor within
15 days after the Transfer Notice has been given to the Company. If for any
reason the Company does not elect to purchase all of the Stockholder Shares to
be transferred, the Significant Stockholder(s) shall be entitled to purchase
the Stockholder Shares which the Company has not elected to purchase (the
"Available Shares"), upon the same terms and conditions as those set forth in
the Transfer Notice, by giving written notice of such election to the Minority
Transferor within 30 days after the Transfer Notice has been given to the
Significant Stockholder(s). If more than one Significant Stockholder elects to
purchase the Available Shares, the Available Shares will be allocated among
such electing stockholders pro rata according to the number of Common
Stockholder Shares owned by each such electing stockholder. The closing of the
purchase of any Stockholder Shares pursuant to this Section 3(b) shall take
place within 60 days after the date on which the parties to such purchase have
been finally determined pursuant to this Section 2(b). Notwithstanding the
foregoing, if the Company and the Significant Stockholder(s) do not elect to
purchase, collectively, all of the Stockholder Shares of a class specified in
the Transfer Notice, then the Minority Transferor may transfer all of the
Stockholder Shares of such class specified in the Transfer Notice to the
transferee(s) identified in the Transfer Notice for (i) a price no less than
the price specified in the Transfer Notice and (ii) other terms no more
favorable to the transferee(s) thereof than specified in the Transfer Notice,
during the 90-day period immediately following the date on which the Transfer
Notice has been given to the Company and the Significant Stockholder(s). Any
Stockholder Shares not transferred within such 90-day period will be subject to
the provisions of this Section 3(b) upon subsequent transfer.
(c) Permitted Transfers. The restrictions contained in
this Section 3 shall not apply with respect to any Transfer of Stockholder
Shares by any Stockholder (i) in the case of a Stockholder who is an
individual, pursuant to applicable laws of descent and distribution, or among
such individual's Family Group, (ii) in the case of a Stockholder which is an
entity,
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among such entity's Affiliates, (iii) in the case of the GTCR Investors, up to
ten percent of each class of Stockholder Shares held by the GTCR Investors on
the date hereof, to employees of, consultants to and advisors to (or any entity
formed for their benefit) the GTCR Investors or any of their Affiliates; and
(iv) in the case of the TA Investors, up to ten percent of each class of
Stockholder Shares held by the TA Investors on the date hereof, to employees
of, consultants to and advisors to (or any entity formed for their benefit) the
TA Investors or any of their Affiliates; provided that the restrictions
contained in this Section 3 shall continue to be applicable to the Stockholder
Shares after any of the foregoing Transfers, and provided further that the
transferees of such Stockholder Shares shall have agreed in writing to be bound
by the provisions of this Agreement which affect the Stockholder Shares so
transferred. All transferees permitted under this Section 3(c) are collectively
referred to herein as "Permitted Transferees." Each Permitted Transferee shall
be deemed a Stockholder for purposes of this Agreement.
(d) Other Agreements. Notwithstanding anything herein to
the contrary, the rights of any Stockholder to Transfer any Stockholder Shares
pursuant to the terms of this Agreement shall be subject to all such other
limitations and restrictions, if any, to which such Stockholder or such
Stockholder Shares are subject, including, by way of example but not in
limitation of the foregoing, the Senior Management Agreements to which the
certain of the Stockholders are party.
(e) Termination of Restrictions. The restrictions set
forth in this Section 3 shall continue with respect to each Stockholder Share
until the earlier of (i) the transfer of such Stockholder Share in a Public
Sale, or (ii) the consummation of a Sale of the Company or a Qualified Public
Offering.
4. Sale of the Company.
(a) If the Board and the holders of a majority of the
Common Stockholder Shares (which majority must include the holders of a
majority of the GTCR Shares and the holders of a majority of the TA Shares)
approve a Sale of the Company to an Independent Third Party (an "Approved
Sale"), each holder of Stockholder Shares shall vote for, consent to and raise
no objections against such Approved Sale. If the Approved Sale is structured as
a (i) merger or consolidation, each holder of Stockholder Shares shall waive
any dissenters' rights, appraisal rights or similar rights in connection with
such merger or consolidation or (ii) sale of stock, each holder of Stockholder
Shares shall agree to sell all of his Stockholder Shares and rights to acquire
Stockholder Shares on the terms and conditions approved by the Board and the
holders of a majority of the Common Stockholder Shares (which majority must
include the holders of a majority of the GTCR Shares and the holders of a
majority of the TA Shares). Each holder of Stockholder Shares shall take all
necessary or desirable actions in connection with the consummation of the
Approved Sale as requested by the Company.
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(b) The obligations of the holders of Stockholder Shares
with respect to the Approved Sale of the Company are subject to the
satisfaction of the following conditions: (i) upon the consummation of the
Approved Sale, all of the holders of each class of Stockholder Shares shall
receive the same form and amount of consideration per share of Stockholder
Shares as the other holders of such class, or if any holders of a class of
Stockholder Shares are given an option as to the form and amount of
consideration to be received, all holders of such class shall be given the same
option; and (ii) all holders of then currently exercisable rights to acquire
Stockholder Shares shall be given an opportunity to either (A) exercise such
rights prior to the consummation of the Approved Sale and participate in such
sale as holders of Stockholder Shares or (B) upon the consummation of the
Approved Sale, receive in exchange for such rights consideration equal to the
amount determined by multiplying (1) the same amount of consideration per share
of a class of Stockholder Shares received by holders of such class of
Stockholder Shares in connection with the Approved Sale less the exercise price
per share of such class of Stockholder Shares of such rights to acquire such
class of Stockholder Shares by (2) the number of shares of such class of
Stockholder Shares represented by such rights.
(c) If the Company or the holders of the Company's
securities enter into any negotiation or transaction for which Rule 506 (or any
similar rule then in effect) promulgated by the Securities Exchange Commission
may be available with respect to such negotiation or transaction (including a
merger, consolidation or other reorganization), the holders of Stockholder
Shares shall, at the request of the Company, appoint a "purchaser
representative" (as such term is defined in Rule 501) reasonably acceptable to
the Company and the Company shall pay the fees of such purchaser
representative.
(d) Each Stockholder transferring Stockholder Shares
pursuant to this Section 4 will bear his or its pro rata share (based upon the
number of Common Stockholder Shares to be sold) of the costs of any sale of
Stockholder Shares pursuant to an Approved Sale to the extent such costs are
incurred for the benefit of all such holders of Stockholder Shares and are not
otherwise paid by the Company or the acquiring party. Costs incurred by the
holders of Stockholder Shares on their own behalf will not be considered costs
of the Approved Sale; provided that in any event, the Company will reimburse
the Stockholders for the reasonable cost (not to exceed $30,000) of one counsel
selected by the holders of a majority of the Xxxxx Shares to advise such
holders with respect to tax and legal issues in connection with such Approved
Sale. Each Stockholder transferring Stockholder Shares pursuant to this Section
4 shall be obligated to join on a pro rata basis (based on the number of Common
Stockholder Shares to be sold) in any indemnification or other obligations that
are part of the terms and conditions of the Approved Sale (other than any such
obligations that relate specifically to a particular Stockholder, such as
indemnification with respect to representations and warranties given by a
Stockholder regarding such Stockholder's title to and ownership of Stockholder
Shares) (the "Company Indemnity Obligations"). Notwithstanding the foregoing,
(i) unless they agree otherwise, neither Xxxxx X. Xxxxx nor Xxxxxxx X. Xxxxx
shall be obligated in connection with any
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Approved Sale to agree to indemnify or hold harmless the transferees with
respect to Company Indemnity Obligations in an amount in excess of 30% of the
proceeds paid to such Person in connection with the Approved Sale, and (ii) no
other Stockholder shall be obligated in connection with any Approved Sale to
agree to indemnify or hold harmless the transferees with respect to Company
Indemnity Obligations in an amount in excess of the total proceeds paid to such
Person in connection with the Approved Sale.
5. Restrictions. The Company shall not, without the
prior written consent of the holders of a majority of the GTCR Shares and the
holders of a majority of the TA Shares:
(a) declare or pay any dividends or make any
distributions upon any of its capital stock or other equity securities;
(b) except as expressly contemplated by this Agreement
and the other agreements contemplated hereby, directly or indirectly redeem,
purchase or otherwise acquire, or permit any Subsidiary to redeem, purchase or
otherwise acquire, any of the Company's or any Subsidiary's capital stock or
other equity securities (including, without limitation, warrants, options and
other rights to acquire such capital stock or other equity securities) or
directly or indirectly redeem, purchase or make any payments with respect to
any stock appreciation rights, phantom stock plans or similar rights or plans;
(c) except as permitted by Section 5(o) below,
authorize, issue or enter into any agreement providing for the issuance
(contingent or otherwise) by the Company or any Subsidiary of (a) any notes or
debt securities containing equity features (including, without limitation, any
notes or debt securities convertible into or exchangeable for capital stock or
other equity securities, issued in connection with the issuance of capital
stock or other equity securities or containing profit participation features)
or (b) any capital stock or other equity securities (or any securities
convertible into or exchangeable for any capital stock or other equity
securities), other than any such issuances by a Subsidiary to the Company or
another Subsidiary;
(d) make, or permit any Subsidiary to make, any loans or
advances to, guarantees for the benefit of, or investments in, any Person
(other than a wholly-owned Subsidiary established under the laws of a
jurisdiction of the United States or any of its territorial possessions),
except in the ordinary course of business;
(e) merge or consolidate with any Person or permit any
Subsidiary to merge or consolidate with any Person (other than the Company or a
wholly-owned Subsidiary);
(f) sell, lease or otherwise dispose of, or permit any
Subsidiary to sell, lease or otherwise dispose of, more than the lesser of (A)
$5.0 million and (B) 5% of the consolidated assets of the Company and its
Subsidiaries (computed on the basis of fair market value,
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determined by the Board in its good faith judgment) in any transaction or
series of related transactions (other than sales of inventory in the ordinary
course of business);
(g) liquidate, dissolve or effect a recapitalization or
reorganization in any form of transaction (including, without limitation, any
reorganization into a limited liability company, a partnership or any other
non-corporate entity which is treated as a partnership for federal income tax
purposes) or permit any Subsidiary to effect any such transaction;
(h) acquire, or permit any Subsidiary to acquire, any
interest in excess of $5.0 million in any company or business (whether by a
purchase of assets, purchase of stock, merger or otherwise) or enter into any
joint venture in which it contributes and/or makes a commitment to contribute
in excess of $5.0 million in cash or property or which expressly subjects the
Company and its Subsidiaries to liabilities in excess of $5.0 million;
(i) enter into, or permit any Subsidiary to enter into,
the ownership, active management or operation of any business other than those
related to the dental industry;
(j) become subject to, or permit any of its Subsidiaries
to become subject to, (including, without limitation, by way of amendment to or
modification of) any agreement or instrument which by its terms would restrict
(i) the right of any Subsidiary to make loans or advances or pay dividends to,
transfer property to, or repay any Indebtedness owed to, the Company or another
Subsidiary or (ii) the Company's right to perform the provisions of this
Agreement, the other agreements contemplated hereby, the Certificate of
Incorporation or the Company's Bylaws;
(k) except as expressly contemplated by this Agreement,
make any amendment to the Certificate of Incorporation, or the Company's
Bylaws, or file any certificate of designations with the Secretary of State of
the State of Delaware;
(l) enter into, materially amend, modify or supplement,
or permit any Subsidiary to enter into, materially amend, modify or supplement,
any agreement, transaction, commitment or arrangement with any of its or any
Subsidiary's officers, directors, employees, stockholders or Affiliates or with
any individual related by blood, marriage or adoption to any such individual or
with any entity in which any such Person or individual owns a significant
beneficial interest, except for customary employment arrangements and benefit
programs on reasonable terms and except as otherwise expressly contemplated by
this Agreement;
(m) create, incur, assume or suffer to exist, or permit
any Subsidiary to create, incur, assume or suffer to exist any Indebtedness in
excess of $5.0 million;
(n) make aggregate capital expenditures (including,
without limitation,
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payments with respect to capitalized leases, as determined in accordance with
GAAP) in any year on a consolidated basis in excess of 200% of the aggregate
amount provided therefor in the annual budget for such year;
(o) adopt any new stock option plan or employee stock
ownership plan or issue any shares of Stock to its or its Subsidiaries'
employees other than a stock option plan approved by the Board with respect to
Common Stock employees of the Company and its Subsidiaries for not more than
500,000 shares of Common Stock with exercise prices not less than the fair
market value of the stock at the time of the grant with such vesting
requirements as the Board or the Compensation Committee shall determine;
(p) engage, or permit any Subsidiary to engage, in any
transaction which is reasonably likely to cause GTCR or TA or any of their
limited partners which are exempt from income taxation under Section 501(a) of
the IRC and, if applicable, any pension plan that any such limited partner may
be a part of, to recognize unrelated business taxable income as defined in
Section 512 and Section 514 of the IRC; or
(q) create, incur, assume or suffer to exist, or permit
any Subsidiary to create, incur, assume or suffer to exist, any unsatisfied
obligation for "withdrawal liability" to a "multiemployer plan" as such terms
are defined under ERISA.
6. Affirmative Covenants. The Company shall, and shall
cause each Subsidiary to, unless it has received the prior written consent of
the holders of a majority of the GTCR Shares and the holders of a majority of
the TA Shares:
(a) at all times cause to be done all things necessary
to maintain, preserve and renew its corporate existence and all material
licenses, authorizations and permits necessary to the conduct of its
businesses;
(b) maintain and keep its material properties in good
repair, working order and condition, and from time to time make all necessary
or desirable repairs, renewals and replacements, so that its businesses may be
properly and advantageously conducted at all times;
(c) pay and discharge when payable all taxes,
assessments and governmental charges imposed upon its properties or upon the
income or profits therefrom (in each case before the same becomes delinquent
and before penalties accrue thereon) and all claims for labor, materials or
supplies which if unpaid would by law become a lien upon any of its property,
unless and to the extent that the same are being contested in good faith and by
appropriate proceedings and adequate reserves (as determined in accordance with
GAAP) have been established on its books with respect thereto;
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(d) comply with all other material obligations which it
incurs pursuant to any material contract or agreement, whether oral or written,
express or implied, as such obligations become due, unless and to the extent
that the same are being contested in good faith and by appropriate proceedings
and adequate reserves (as determined in accordance with GAAP) have been
established on its books with respect thereto;
(e) comply in all material respects with all applicable
laws, rules and regulations of all governmental authorities;
(f) apply for and continue in force with good and
responsible insurance companies adequate insurance covering risks of such types
and in such amounts as are customary for corporations of similar size engaged
in similar lines of business, to the extent such insurance is reasonably
available;
(g) maintain proper books of record and account which
present fairly in all material respects its financial condition and results of
operations and make provisions on its financial statements for all such proper
reserves as in each case are required in accordance with GAAP; and
(h) in connection with any transaction in which the
Company or any of its Subsidiaries is involved which is required to be reported
under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended from
time to time (the "HSR Act"), prepare and file all documents with the Federal
Trade Commission and the United States Department of Justice which may be
required to comply with the HSR Act, and promptly furnish all materials
thereafter requested by any of the regulatory agencies having jurisdiction over
such filings, in connection with the transactions contemplated thereby; and
take all reasonable actions and file and use reasonable best efforts to have
declared effective or approved all documents and notifications with any
governmental or regulatory bodies, as may be necessary or may reasonably be
requested under federal antitrust laws for the consummation of the subject
transaction.
7. Public Disclosures. The Company shall not, nor shall
it permit any Subsidiary to, disclose any GTCR Investor's or TA Investor's name
or identity as an investor in the Company in any press release or other public
announcement or in any document or material filed with any governmental entity,
without the prior written consent of such GTCR Investor or TA Investor, unless
such disclosure is required (or reasonably believed to be required) by
applicable law or governmental regulations or by order of a court of competent
jurisdiction, in which case prior to making such disclosure the Company shall
give written notice to such GTCR Investor or TA Investor describing in
reasonable detail the proposed content of such disclosure and shall permit such
GTCR Investor or TA Investor to reasonably review and comment upon the form and
substance of such disclosure.
- 12 -
13
8. Securities Law Restrictions on Transfer of
Stockholder Shares.
(a) General Provisions. Subject to the other limitations
contained in this Agreement, Stockholder Shares are transferable only pursuant
to (i) public offerings registered under the Securities Act, (ii) Rule 144 or
Rule 144A of the Securities and Exchange Commission (or any similar rule or
rules then in force) if such rule is available and (iii) subject to the
conditions specified in Section 8(b) below, any other legally available means
of transfer.
(b) Opinion Delivery. In connection with the transfer of
any Stockholder Shares (other than a transfer described in clauses (i) or (ii)
of Section 8(a) above), the holder thereof shall deliver written notice to the
Company describing in reasonable detail the transfer or proposed transfer,
together with an opinion of counsel which (to the Company's reasonable
satisfaction) is knowledgeable in securities law matters to the effect that
such transfer of Stockholder Shares may be effected without registration of
such Stockholder Shares under the Securities Act. In addition, if the holder of
the Stockholder Shares delivers to the Company an opinion of such counsel that
no subsequent transfer of such Stockholder Shares shall require registration
under the Securities Act, the Company shall promptly upon such contemplated
transfer deliver new certificates for such Stockholder Shares which do not bear
the Securities Act portion of the legend set forth in Section 8(d). If the
Company is not required to deliver new certificates for such Stockholder Shares
not bearing such legend, the holder thereof shall not transfer the same until
the prospective transferee has confirmed to the Company in writing its
agreement to be bound by the conditions contained in this Section.
(c) Rule 144A. Upon the request of any Stockholder, the
Company shall promptly supply to such Person or its prospective transferees all
information regarding the Company required to be delivered in connection with a
transfer pursuant to Rule 144A of the Securities and Exchange Commission.
(d) Legend. Each certificate or instrument representing
Stockholder Shares shall be imprinted with a legend in substantially the
following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE
ORIGINALLY ISSUED ON ___________, 1999, AND HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE. THE
TRANSFER OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO THE CONDITIONS SPECIFIED
IN THE STOCKHOLDERS AGREEMENT, DATED AS OF ________,
1999, AND AS AMENDED AND MODIFIED FROM TIME TO TIME,
BETWEEN THE ISSUER (THE "COMPANY") AND CERTAIN
- 13 -
14
INVESTORS, AND THE COMPANY RESERVES THE RIGHT TO
REFUSE THE TRANSFER OF SUCH SECURITIES UNTIL SUCH
CONDITIONS HAVE BEEN FULFILLED WITH RESPECT TO SUCH
TRANSFER. A COPY OF SUCH CONDITIONS SHALL BE
FURNISHED BY THE COMPANY TO THE HOLDER HEREOF UPON
WRITTEN REQUEST AND WITHOUT CHARGE."
(e) Legend Removal. If any Stockholder Shares become
eligible for sale pursuant to Rule 144(k), the Company shall, upon the request
of the holder of such Stockholder Shares, remove the Securities Act portion of
the legend set forth in Section 8(d) from the certificates for such Stockholder
Shares.
9. Public Offering. In the event that the Board and the
holders of a majority of the Common Stockholder Shares (which majority must
include the holders of a majority of the GTCR Shares and the holders of a
majority of the TA Shares) approve a Public Offering, the holders of
Stockholder Shares (in their capacity as such) shall take all necessary or
desirable actions in connection with the consummation of the Public Offering.
In the event that such Public Offering is an underwritten offering and the
managing underwriters advise the Company in writing that in their opinion the
Company's capital structure shall adversely affect the marketability of the
offering, each holder of Stockholder Shares shall consent to and vote for a
recapitalization, reorganization and/or exchange of the Stockholder Shares into
securities that the managing underwriters, the Board and holders of a majority
of the Common Stockholder Shares (which majority must include the holders of a
majority of the GTCR Shares and the holders of a majority of the TA Shares)
find acceptable and shall take all necessary or desirable actions in connection
with the consummation of the recapitalization, reorganization and/or exchange;
provided that the resulting securities reflect and are consistent with the
rights and preferences set forth in the Company's Certificate of Incorporation
as in effect immediately prior to such Public Offering.
10. Definitions.
"Affiliate" of any particular Person means any other Person
controlling, controlled by or under common control with such particular Person,
where "control" means the possession, directly or indirectly, of the power to
direct the management and policies of a Person whether through the ownership of
voting securities, contract or otherwise, and if such Person is a partnership,
"Affiliate" shall also mean each general partner and limited partner of such
Person. Without limiting the generality of the foregoing, (i) each investment
fund managed by Golder, Thoma, Cressey, Rauner, Inc. or any successor thereto
shall be deemed to be an Affiliate of each of the initial holders of the GTCR
Shares and (ii) each investment fund managed by TA Associates, Inc. or any
successor thereto shall be deemed to be an Affiliate of each of the initial
- 14 -
15
holders of the TA Shares.
"Common Stock" means the Company's Common Stock, par value
$.01 per share, and any capital stock of any class of the Company hereafter
authorized which is not limited to a fixed sum or percentage of par or stated
value in respect to the rights of the holders thereof to participate in
dividends or in the distribution of assets upon any liquidation, dissolution or
winding up of the Company.
"Common Stockholder Shares" means Stockholder Shares which
are (i) Common Stock, (ii) warrants, options or other rights to subscribe for
or to acquire, directly or indirectly, Common Stock, whether or not then
exercisable or convertible (including, without limitation, the Warrants), and
(iii) stock or other securities which are convertible into or exchangeable for,
directly or indirectly, Common Stock, whether or not then convertible or
exchangeable (including, without limitation, the Convertible Preferred Stock).
As to any particular Common Stockholder Shares, such shares shall cease to be
Common Stockholder Shares when they have been disposed of in a Public Sale or
repurchased by the Company or any Subsidiary. References in this Agreement to a
majority of, or a certain percentage of, the Common Stockholder Shares, shall
be deemed to be references to a majority of the Common Stock represented by the
Common Stockholder Shares or a certain percentage of the Common Stock
represented by the Common Stockholder Shares, calculated on a fully-diluted
basis, as applicable.
"Convertible Preferred Stock" means the Company's Convertible
Participating Preferred Stock, par value $.01 per share.
"Family Group" means, in the case of any individual, his
spouse and/or descendants, and any trust, family limited partnership or other
entity solely for the benefit of such person and/or his spouse and/or
descendants.
"GAAP" means United States generally accepted accounting
principles, consistently applied.
"GTCR Investors" means Golder, Thoma, Xxxxxxx, Xxxxxx Fund V,
L.P., GTCR Associates V, and their Affiliates.
"GTCR Shares" means any capital stock, warrants, options or
other rights which constitute Stockholder Shares hereunder and which were
initially issued to any GTCR Investor. References in this Agreement to "a
majority of the GTCR Shares" shall be deemed to be references to a majority of
the GTCR Shares that are Common Stockholder Shares, calculated on a
fully-diluted basis.
"Indebtedness" means at a particular time, without
duplication, (i) any
- 15 -
16
indebtedness for borrowed money or issued in substitution for or exchange of
indebtedness for borrowed money, (ii) any indebtedness evidenced by any note,
bond, debenture or other debt security, (iii) any indebtedness for the deferred
purchase price of property or services with respect to which a Person is
liable, contingently or otherwise, as obligor or otherwise (other than trade
payables and other current liabilities incurred in the ordinary course of
business), (iv) any obligations under capitalized leases, and (v) any
guarantees of any of the foregoing.
"Independent Third Party" means any Person who, immediately
prior to the contemplated transaction, does not own in excess of 15% of the
Common Stockholder Shares (a "15% Owner"), who is not an Affiliate of any such
15% Owner and who is not the spouse or descendent (by birth or adoption) of any
such 15% Owner or a trust for the benefit of any such 15% Owner and/or such
other Persons.
"IRC" means the Internal Revenue Code of 1986, as amended,
and any reference to any particular IRC section shall be interpreted to include
any revision of or successor to that section regardless of how numbered or
classified
"Xxxxx Shares" means any capital stock, warrants, options or
other rights which constitute Stockholder Shares hereunder and which were
initially issued to Xxxxx X. Xxxxx, Xxxxxxx X. Xxxxx, or any of their
Affiliates. References in this Agreement to "a majority of the Xxxxx Shares"
shall be deemed to be references to a majority of the Xxxxx Shares that are
Common Stockholder Shares, calculated on a fully-diluted basis.
"Person" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Public Offering" means the sale, in an underwritten public
offering registered under the Securities Act, of shares of the Company's Common
Stock.
"Public Sale" means any sale of Stockholder Shares to the
public pursuant to an offering registered under the Securities Act or to the
public through a broker, dealer or market maker pursuant to the provisions of
Rule 144 adopted under the Securities Act.
"Qualified Public Offering" means the sale, in an
underwritten public offering registered under the Securities Act, of shares of
the Company's Common Stock having an offering price to the public of not less
than $25.0 million.
"Rollover Shares" means any Stockholder Shares resulting from
the conversion of the shares of CompDent Common Stock identified on Schedule
2.2(a)(iii) of the Merger
- 16 -
17
Agreement.
"Sale of the Company" means (i) any sale, transfer or
issuance or series of sales, transfers and/or issuances of capital stock of the
Company by the Company or any holders thereof which results in any Person or
group of Persons (as the term "group" is used under the Securities Exchange Act
of 1934, as amended), other than Persons who are holders of Stockholder Shares
as of immediately after the Merger, owning capital stock of the Company
possessing the voting power (under ordinary circumstances) to elect a majority
of the Board, and (ii) any sale or transfer of all or substantially all of the
assets of the Company and its Subsidiaries.
"Securities Act" means the Securities Act of 1933, as amended
from time to time.
"Senior Management Agreement" means, with respect to any
Stockholder, any senior management agreement, subscription agreement, stock
option agreement, executive stock agreement, or other similar agreement, to
which such Stockholder and the Company are party and which addresses such
Stockholder's investment in the Company and any restrictions thereto, including
without limitation, any right of the Company to repurchase such Stockholder's
Stockholder Shares following the termination of such Stockholder's employment.
"Stockholder Shares" means (i) any capital stock of the
Company purchased or otherwise acquired by any Stockholder, (ii) any warrants,
options or other rights to subscribe for or to acquire, directly or indirectly,
any capital stock of the Company, purchased or otherwise acquired by any
Stockholder, whether or not then exercisable or convertible, and (iii) any
stock or other securities which are convertible into or exchangeable for,
directly or indirectly, any capital stock of the Company, purchased or
otherwise acquired by any Stockholder, whether or not then convertible or
exchangeable, (iv) any securities or rights issued or issuable directly or
indirectly with respect to the securities and rights referred to in clauses
(i), (ii) and (iii) above by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization. As to any particular Stockholder Shares,
such shares shall cease to be Stockholder Shares when they have been disposed
of in a Public Sale or repurchased by the Company or any Subsidiary.
"Subsidiary" or "Subsidiaries" means, with respect to any
Person, any corporation, limited liability company, partnership, association,
or other business entity of which (i) if a corporation, a majority of the total
voting power of shares of stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers, or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of such Person or a combination
thereof, or (ii) if a limited liability company, partnership, association, or
other business entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
- 17 -
18
any Person or one or more Subsidiaries of such Person or entity or a
combination thereof. For purposes hereof, a Person or Persons shall be deemed
to have a majority ownership interest in a limited liability company,
partnership, association, or other business entity if such Person or Persons
shall be allocated a majority of limited liability company, partnership,
association, or other business entity gains or losses or shall be or control
any managing director or general partner of such limited liability company,
partnership, association, or other business entity.
"TA Investors" means TA/Advent VIII L.P., Advent Atlantic and
Pacific III, TA Executives Fund LLC, TA Investors LLC, and their Affiliates
"TA Shares" means any capital stock, warrants, options or
other rights which constitute Stockholder Shares hereunder and which were
initially issued to any TA Investor. References in this Agreement to "a
majority of the TA Shares" shall be deemed to be references to a majority of
the TA Shares that are Common Stockholder Shares, calculated on a fully-diluted
basis.
11. Transfers; Transfers in Violation of Agreement.
Prior to transferring any Stockholder Shares to any Person, the transferring
Stockholder shall cause the prospective transferee to execute and deliver to
the Company and the other Stockholders a counterpart of this Agreement. Any
transfer or attempted transfer of any Stockholder Shares in violation of any
provision of this Agreement shall be void, and the Company shall not record
such transfer on its books or treat any purported transferee of such
Stockholder Shares as the owner of such shares for any purpose.
12. Additional Stockholders. In connection with the
issuance of any additional equity securities of the Company to any Person, the
Company may permit such Person to become a party to this Agreement and succeed
to all of the rights and obligations of a "Stockholder" under this Agreement by
obtaining the consent of the holders of a majority of the Common Stockholder
Shares and an executed counterpart signature page to this Agreement, and, upon
such execution, such Person shall for all purposes be a "Stockholder" party to
this Agreement.
13. Miscellaneous Provisions
(a) Amendment and Waiver. Except as otherwise provided
herein, no modification, amendment, or waiver of any provision of this
Agreement will be effective against the Company or the holders of Stockholder
Shares, unless such modification, amendment, or waiver is approved in writing
by the Company and the holders of at least a majority of the Common Stockholder
Shares; provided, however, that in the event that such amendment or waiver (i)
is with respect to any provision of this Agreement which contains rights which
are unique to a single holder or group of holders of Stockholder Shares or (ii)
would materially and
- 18 -
19
adversely affect a single holder or group of holders of Stockholder Shares in a
manner substantially different than any other holders of Stockholder Shares,
then such amendment or waiver will require the consent of such holder of
Stockholder Shares or a majority of the Common Stockholder Shares held by such
group of holders materially and adversely affected. Notwithstanding the
foregoing, if an amendment or modification of this Agreement serves merely to
add a party hereto, then such amendment or modification will be effective
against the Company and the holders of Stockholder Shares if such amendment or
modification is approved in writing by the Company, the holders of a majority
of the Common Stockholder Shares and such new party hereto. The failure of any
party to enforce any of the provisions of this Agreement will in no way be
construed as a waiver of such provisions and will not affect the right of such
party thereafter to enforce each and every provision of this Agreement in
accordance with its terms.
(b) Severability. Whenever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law or
rule in any jurisdiction, such invalidity, illegality or unenforceability shall
not affect any other provision or any other jurisdiction, but this Agreement
shall be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein.
(c) Entire Agreement. Except as otherwise expressly set
forth herein, this document embodies the complete agreement and understanding
among the parties hereto with respect to the subject matter hereof and
supersedes and preempts any prior understandings, agreements or representations
by or among the parties, written or oral, which may have related to the subject
matter hereof in any way.
(d) Successors and Assigns. Except as expressly
otherwise provided herein, this Agreement shall bind and inure to the benefit
of and be enforceable by the Company and its successors and assigns and the
Stockholders and any subsequent holders of Stockholder Shares and the
respective successors and assigns of each of them.
(e) Counterparts. This Agreement may be executed in
separate counterparts each of which shall be an original and all of which taken
together shall constitute one and the same agreement.
(f) Remedies. The parties hereto shall be entitled to
enforce their rights under this Agreement specifically to recover damages by
reason of any breach of any provision of this Agreement and to exercise all
other rights existing in their favor. The parties hereto agree and acknowledge
that money damages may not be an adequate remedy for any breach of the
provisions of this Agreement and that any party hereto may in its sole
discretion apply to any
- 19 -
20
court of law or equity of competent jurisdiction for specific performance
and/or injunctive relief (without posting a bond or other security) in order to
enforce or prevent any violation of the provisions of this Agreement.
(g) Notices. Any notice provided for in this Agreement
shall be in writing and shall be either (i) personally delivered, (ii) sent by
registered or certified mail (return receipt requested and postage prepaid),
(iii) sent by reputable overnight courier service (charges prepaid), or (iv)
sent by facsimile, in each case, to the Company at the address set forth below
and to any other recipient at the address indicated on the Notices Schedule
attached hereto, or if such recipient is not listed on the Notices Schedule
attached hereto, at the address indicated by the Company's records. Any Person
may change its address for purposes of this Agreement by providing prior notice
of such change to the other parties hereto in accordance with this Section.
Notices will be deemed to have been given hereunder (i) when delivered
personally, (ii) three days after being mailed, (iii) one day after deposit
with a reputable overnight courier service, or (iv) in the cases of notices
sent by facsimile, when receipt is acknowledged. The Company's address is:
CompDent Corporation
000 Xxxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: President
Facsimile: (000) 000-0000
with copies to:
Golder, Thoma, Cressey, Rauner, Inc.
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
TA Associates, Inc.
Xxxx Xxxxxx Xxxxx, Xxxxx 0000
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
- 20 -
21
Attention: Xxxxxxx X. Perl
Facsimile: (000) 000-0000
(h) Governing Law. All questions concerning the
construction, validity and interpretation of this Agreement shall be governed
by and construed in accordance with the internal laws of the State of Delaware,
without giving effect to any choice of law or other conflict of law provision
or rule (whether of the State of Delaware or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State of
Delaware.
(i) No Strict Construction. The language used in this
Agreement shall be deemed to be the language chosen by the parties hereto to
express their mutual intent, and no rule of strict construction shall be
applied against any party.
(j) Business Days. If any time period for giving notice
or taking action hereunder expires on a day which is a Saturday, Sunday or
legal holiday in the state in which the Company's chief executive office is
located, the time period shall automatically be extended to the business day
immediately following such Saturday, Sunday or legal holiday.
(k) Construction. Whenever the context requires, each
term stated in either the singular or the plural shall include the singular and
the plural, and pronouns stated in either the masculine, the feminine or the
neuter gender shall include the masculine, feminine and neuter. All references
to Sections and Paragraphs refer to sections and paragraphs of this Agreement.
The use of the word "including" in this Agreement shall be by way of example
rather than limitation.
(l) Board Approval. Whenever this Agreement calls for or
refers to the consent or approval of any matter by any holder of GTCR Shares or
any holder of TA Shares, such consent or approval shall be deemed given by such
holder if each of such holder's designees on the Board has, in his capacity as
a director of the Company, given his consent or approval with respect to such
matter at a duly convened meeting of the Board or pursuant to an effective
unanimous written consent of the Board, unless, with respect to any given
matter, such holder notifies the Company in writing that the consent or
approval at the Board level by such holder's designees on the Board does not
constitute the consent or approval by such holder itself.
(m) Descriptive Headings. The descriptive headings of
this Agreement are inserted for convenience only and do not constitute a part
of this Agreement.
* * * * *
- 21 -
22
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders
Agreement on the day and year first above written.
TAGTCR ACQUISITION, INC.
By
--------------------------------------------
Its
--------------------------------------------
GOLDER, THOMA, XXXXXXX, XXXXXX
FUND V, L.P.
By: GTCR V, L.P., its General Partner
By: Golder, Thoma, Cressey, Rauner, Inc.
Its: General Partner
By:
--------------------------------
Its: Principal
GTCR ASSOCIATES V
By: Golder, Thoma, Cressey, Rauner, Inc.
Its: Managing General Partner
By:
--------------------------------
Its: Principal
TA/ADVENT VIII L.P.
By: TA Associates, Inc., its General Partner
By
----------------------------------------
Its
----------------------------------------
- 22 -
23
[CONTINUATION OF SIGNATURE PAGE TO STOCKHOLDERS AGREEMENT]
ADVENT ATLANTIC AND PACIFIC III
By: TA Associates, Inc., its General Partner
By
----------------------------------------
Its
----------------------------------------
TA EXECUTIVES FUND LLC
By: TA Associates, Inc., its Manager
By
----------------------------------------
Its
----------------------------------------
TA INVESTORS LLC
By: TA Associates, Inc., its Manager
By
----------------------------------------
Its
----------------------------------------
NMS CAPITAL, L.P.
By: NMS Capital Management LLC
Its: General Partner
By
---------------------------------------
Its
---------------------------------------
------------------------------------------------
Xxxxx X. Xxxxx
------------------------------------------------
Xxxxxxx X. Xxxxx
- 23 -
24
[OTHERS TO COME]
- 24 -
25
NOTICES SCHEDULE
Golder, Thoma, Xxxxxxx, Xxxxxx Fund V, L.P., or Xxxxx X. Xxxxx, or
GTCR Associates V Xxxxxxx X. Xxxxx
6100 Sears Tower x/x XxxxXxxx Xxxxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000 000 Xxxxxxx Xxxxx Xxxx, Xxxxx 000
Attention: Xxxxxx X. Xxxxxxx Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
with a copy to: with a copy to:
--------------- ---------------
Xxxxxxxx & Xxxxx Xxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxxxx Xxxxx 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000 Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Perl Attention: Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
TA/Advent VIII L.P.,
Advent Atlantic and Pacific III,
TA Executives Fund LLC, or [OTHERS TO COME]
TA Investors LLC
x/x XX Xxxxxxxxxx, Xxx.
Xxxx Xxxxxx Xxxxx, Xxxxx 0000
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
with a copy to:
---------------
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Perl
Facsimile: (000) 000-0000
NMS Capital, L.P.
--------------------------
--------------------------
--------------------------
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