Exhibit 1
VOTING TRUST AGREEMENT
Relating to Shares of
DELTAGEN, INC.
THIS VOTING TRUST AGREEMENT (the "Agreement") is made and entered into as
of October 2, 2001 by and among Sprout Capital VIII, L.P., a Delaware limited
partnership ("Sprout Capital VIII"), Sprout Venture Capital, L.P., a Delaware
limited partnership ("Sprout Venture Capital"), Sprout CEO Fund, L.P. ("Sprout
CEO Fund"), DLJ Capital Corporation, a Delaware corporation ("DLJ Capital"), DLJ
ESC II, L.P., a Delaware limited partnership ("DLJ ESC"), Xxxxx Fargo Bank
Indiana, N.A. as trustee (together with its successors in such capacity, the
"Trustee") and Credit Suisse First Boston Corporation.
WHEREAS, the parties hereto desire to record their arrangements with
respect to shares of common stock, par value $.001 per ("Common Stock"), of
Deltagen, Inc. a Delaware corporation (the "Corporation"), the principal
executive offices of which are presently located at 0000 Xxxxxxxx Xxxxxx, Xxxxx
Xxxx, Xxxxxxxxxx 00000.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Certain Definitions. In this Agreement (a) "Control Affiliate"
means CSFB and any person or entity controlling, controlled by or under common
control with, directly or indirectly, Credit Suisse First Boston Corporation.
(b) "CSFB" means Credit Suisse First Boston Corporation, a Delaware
corporation, and its successors.
(c) "CSFB Affiliate" means any person or entity who is a Control Affiliate,
Employee Affiliate or Other Affiliate.
(d) "Employee Affiliate" means any person employed by (or who is the
spouse, relative or relative of a spouse, in each case residing in the home of a
person employed by) a Control Affiliate.
(e) "Holder" means from time to time, any person or entity for whom Shares
are held hereunder by the Trustee.
(f) "Other Affiliate" means any person or entity that has a substantial
business relationship with a Control Affiliate and which is not itself a Control
Affiliate.
(g) "Securities Act" means the Securities Act of 1933.
(h) "Share" means a share of Common Stock or a Share Equivalent.
(i) "Share Equivalent" means at any time any security convertible into,
exchangeable for, or carrying the right to acquire Common Stock or
subscriptions, warrants, options, rights or other arrangements, obligating the
Corporation to issue or dispose of any of shares of Common Stock, regardless
whether such security is convertible, exchangeable or exercisable at such time.
Section 2. Deposit. (a) Each of Sprout Capital VIII, Sprout Venture
Capital, Sprout CEO Fund, DLJ Capital, and DLJ ESC hereby duly assigns and
delivers or has caused to be duly assigned and delivered to the Trustee to be
held pursuant to this Agreement the number of Shares set forth opposite its name
on Schedule A attached hereto (the "initial deposit").
(b) From time to time after the date hereof, any Holder or any CSFB
Affiliate may deposit additional Shares to be held pursuant to this Agreement by
assigning and delivering such Shares to the Trustee.
Section 3. Transfer of Books of Corporation. The Trustee shall, to the
extent applicable, cause all Shares transferred to or deposited with it in its
capacity as Trustee hereunder (such Shares, the "Trust Shares" to be transferred
to it as Trustee on the books of the Corporation and will issue and deliver by
first class mail to each Holder a Voting Trust Certificate (a "Trust
Certificate") for the number of Shares so transferred to the Trustee.
Section 4. Form. Trust Certificates shall be in substantially the following
form (with such modifications as may be appropriate if the applicable Trust
Certificate represents Share Equivalents):
"THE TRANSFER OF THIS VOTING TRUST
CERTIFICATE IS SUBJECT TO TERMS AND
CONDITIONS SET FORTH IN THE VOTING
TRUST AGREEMENT DATED AS OF OCTOBER 2,
2001. A COPY OF WHICH HAS BEEN FILED IN
THE REGISTERED OFFICE IN THE STATE OF
DELAWARE OF DELTAGEN, INC., A DELAWARE
CORPORATION (THE "CORPORATION"). SUCH
COPY IS OPEN TO INSPECTION DAILY DURING
BUSINESS HOURS BY ANY STOCKHOLDER OF
THE COPRORASTION OR ANY BENEFICIARY OF
THE VOTING TRUST CREATED PURSUANT TO
SUCH VOTING TRUST AGREEMENT.
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Deltagen, Inc.
VOTING TRUST CERTIFICATE
Certificate No. ______ No. of Shares _____
This certifies that _______________ ("Holder") has transferred to the
undersigned Trustee the above-stated number of voting shares of Common Stock,
par value $.001 per share, of Deltagen, Inc. a Delaware corporation (the
"Corporation"), to be held by the Trustee pursuant to the terms of the Voting
Trust Agreement dated as of October 2, 2001 (the "Voting Trust Agreement"), a
copy of which agreement has been delivered to the above-named Holder and filed
in the registered office of the Corporation in the State of Delaware. The
Holder, or his registered assigns, will be entitled (i) to receive payments
equal to any and all cash dividends, collected by the Trustee on the
above-stated number of shares, (ii) to receive all other dividends or
distributions except to the extent that property received is required to be
deposited in the trust created by the Voting Trust Agreement, and (iii) to the
delivery of a certificate or certificates for that number of shares on the
termination of the Voting Trust Agreement, in accordance with its provisions. At
all times prior to the termination of the Voting Trust, the Trustee has the
exclusive right to vote the above-stated number of shares, or give written
consent, in person or by proxy, at all meetings of stockholders of the
Corporation, and in all proceedings in which the vote or consent, written or
otherwise, of the holders of Shares may be required or authorized by law.
This Voting Trust Certificate is transferable on the books maintained by
the Trustee at the principal corporate trust office of the Trustee by the Holder
hereof, in person or by duly authorized attorney, and upon surrender hereof, and
until so transferred the Trustee may treat the registered Holder hereof as the
absolute owner hereof for all purposes.
The Holder, by the acceptance of this Voting Trust Certificate, agrees to
be bound by all of the provisions of the Voting Trust Agreement as fully as if
its terms were set forth in this Voting Trust Certificate.
EXECUTED this _____ day of _______________, ___________
------------------------------
By:___________________________
Name:_________________________
Title: _______________________
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[Form of Assignment for Reverse of Voting Trust Certificate]
For value received, ________________ hereby sells, assigns, and transfers
unto ____________________ the within Voting Trust Certificate and all rights and
interests represented thereby, and does hereby irrevocably constitute and
appoint _______________ attorney to transfer such Voting Trust Certificate on
the books of the within-named Trustee with full power of substitution in the
premises.
Date: ____________________________________
Signed: ___________________________*."
*Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Trustee, which requirements include membership
or participation in STAMP or such other "signature guarantee program" as may be
determined by the Trustee in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934 , as amended.
SECTION 5. Additional Trust Certificates. Any Holder may at any time
deposit with the Trustee additional certificates (or the equivalent evidence of
ownership in the case of Share Equivalents) for Shares. Any CSFB Affiliate
acquiring Shares may at any time become a Holder by (a) depositing, or causing
to be deposited, certificates (or the equivalent evidence of ownership in the
case of Share Equivalents) for Shares, duly endorsed for transfer, with the
Trustee and (b) accepting a Voting Trust Certificate in respect of such Shares.
Section 6. Voting; Powers. At all time prior to the termination of the
voting trust created herein, the Trustee shall have the exclusive right to vote
the Trust Shares, or give written consent, in person or by proxy, at all
meetings of stockholders of the Corporation, and in all proceedings in which the
vote or consent, written or otherwise, of the holders of Shares may be required
or authorized by law.
The Trustee shall vote all Trust Shares in accordance with this Agreement.
The Trustee shall hgave full power and authority, and it is hereby empowered and
authorized, to vote the Trust Shares as in its sole judgment it believes to be
in the best interest of the stockholders of the Corporation generally, it being
understood that the Trustee will exercise its independent judgment in
determining the best interest of the stockholders of the Corporation, and to do
any and all other things and take any and all other actions as fully as any
stockholder of the Corporation might do if personally present at a meeting of
the stockholders of the Corporation. Each Holder agrees that it will not
communicate with Trustee in connection with any proceeding in which the vote or
consent of the holders of Shares may be required or authorized by law or
otherwise seek to influence the Trustee in the exercise of its right to vote or
consent in any such proceedings. Notwithstanding anything herein to the
contrary, the Trustee shall vote the Trust Shares
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(and use its power or right, if any, to designate or remove directors of the
Corporation) to prevent the election of more than one CSFB Affiliate as a
director of the Corporation. The duties of the Trustee under this Agreement
shall include exercising reasonable effort under this Agreement in a manner that
ensures that no CSFB Affiliate exercises control over the Corporation. CSFB
shall promptly provide to the Trustee from time to time such information as is
reasonably necessary (including certificates and/or other documents) in order to
enable the Trustee to carry out the foregoing obligations; provided that the
Trustee shall not be held responsible for identifying an entity as CSFB
Affiliate unless it has actual knowledge that such entity is a CSFB affiliate.
Section 7. Dividends. If the Corporation pays or issues dividends or makes
other distributions on the Trust Shares, the Trustee shall accept and receive
such dividends and distributions. Upon receipts of dividends and distributions
the same shall be prorated among the Holders that have a beneficial interest
hereunder in the Trust Shares with respect to which such dividend or other
distribution was made in accordance with their interests and, subject to the
next sentence, the amount shall be distributed promptly pursuant to transfer
instructions set forth of Exhibit B attached hereto. If the dividend or
distribution is in Shares, such Shares shall be held by the Trustee under the
voting trust created herein and new Trust Certificates representing the Shares
received shall be issued to the applicable Holders. Holders entitled to receive
such dividends or distributions, or Trust Certificates in respect thereof,
described in this Section 7 shall be those Holders registered as such on the
transfer books of the Trustee at the close of business on the day fixed by the
Corporation for the taking of a record to determine those holders of its stock
entitled to receive such dividend or distributions. In the performance of its
duties to deliver cash dividends under this Agreement, the Trustee shall not be
obligated to risk its own funds and will not be liable for taxes or other
charges related to the delivery of such dividends or distributions.
SECTION 8. Termination. The voting trust created herein shall terminate on
the earliest to occur of:
(a) ten years from the date hereof;
(b) the written election of CSFB or the Holders of Trust Certificates
representing fifty percent (50%) or more of the Trust Shares thereby;
provided that (1) immediately after giving effect to such termination,
either (i)all CSFB Affiliates will in the aggregate beneficially own
(through record ownership, contract or otherwise) as defined in Rule 13d-3
under the Securities Exchange Act of 1934, less than 5% of the total fully
diluted number of shares of Common Stock then outstanding or (ii) no CSFB
Affiliate will be or have the right to become an officer or a director of
the Company; the Trustee will be entitled to rely conclusively on a
certificate of an officer of CSFB to the effect of the foregoing proviso,
and (2) CSFB delivers to the Trustee an opinion of independent nationally
recognized counsel who are experts in matters involving the federal
securities law, that, immediately after giving effect to such
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termination, CSFB should not be an "affiliate" of the Corporation within
the meaning of Rule 144 under the Securities Act; and
(c) transfer of all the Trust Shares in accordance with Section 9.
Subject to CSFB's delivery of the officer's certificate and the opinion of
counsel described in Section 8(b) above, an election pursuant to Section 8(b)
shall be effective upon delivery of notice thereof to the Trustee.
Upon the termination of the voting trust herein created, the Holders shall
surrender their Trust Certificates to the Trustee, and the Trustee shall deliver
by first class mail to the Holders certificates (or the equivalent evidence of
ownership in the case of Share Equivalents) for Shares, properly endorsed for
transfer (to the extent possible), equivalent to the number and type of Shares
represented by the respective Trust Certificates surrendered.
SECTION 9. Transfer. Except as provided in Sections 8 and 10 and in
subsection (a), (b) and (c) of this Section 9, certificates (or the equivalent
evidence of ownership in the case of Share Equivalents) for Trust Shares may not
be delivered to a Holder, a Holder's designee or any other third party prior to
the termination of the voting trust created herein.
(a) A Holder may notify the Trustee in writing that the Holder desires to
cause a certificate or certificates (or the equivalent evidence of ownership in
the case of Share Equivalents) for Trust Shares in which the Holder has a
beneficial interest hereunder to be transferred to any person or entity,
including such Holder, only if such transfer is an Eligible Transfer as defined
herein. Any person or entity that acquires Trust Shares pursuant to an Eligible
Transfer is hereinafter referred to as an "Eligible Transferee."
For purposes of this Section 9, an "Eligible Transfer" is defined as (i)
any transfer of Trust Shares to a person who is not at the time of such transfer
a Control Affiliate or (ii) any transfer of Trust Shares to an Other Affiliate
or to any Employee Affiliate other than a person holding the position of
Managing Director or above (or performing the comparable function) of any
Control Affiliate; provided, in the case of clause (i) and (ii), that a contract
or other arrangement (other than this Agreement) regarding the voting of such
Shares does not exist between any Control Affiliate or Employee Affiliate and
such transferee.
Such notice shall name such Eligible Transferee and shall state (i) its
mailing address, (ii) the proposed transfer date (which date shall be not less
than five days after the Trustee's receipt of such notice), (iii) the number and
type of Shares to be transferred and (iv) the consideration, if any, to be paid
by such Eligible Transferee therefor. The notice to the Trustee shall also
contain a representation that such transferee is an Eligible Transferee and
shall be accompanied by a Trust Certificate or Certificates of the Holder, duly
endorsed for transfer, representing not less than the number of Shares of the
type to be transferred to the Eligible Transferee. On the date specified in such
notice, and upon
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receipt by the Trustee from such Eligible Transferee of the specified
consideration, if any, the Trustee shall deliver: (i) to the Eligible
Transferee, a certificate (or the equivalent evidence of ownership in the case
of Share Equivalents) for the number of Shares of the type specified in such
notice, registered in the name of the Trustee and duly endorsed for transfer,
and (ii) to the Holder, (x) a Trust Certificate representing a number of Shares,
if any, equal to the number of Shares of the type represented by the surrendered
Trust Certificate less the number of Shares of the type transferred to such
Eligible Transferee, and (y) the consideration, if any, received from such
Eligible Transferee. Such consideration shall be distributed promptly to such
Holder pursuant to the transfer instructions set forth on Exhibit B attached
hereto.
(b) A Holder (hereinafter referred to as a "Requesting Party" for the
purpose of this Section 9(b)) may request of the Trustee in writing that the
Trustee transfer to such Requesting Party a certificate or certificates (or the
equivalent evidence of ownership in the case of Share Equivalents) for Shares in
which the Requesting Party has a beneficial interest hereunder; provided,
however, that the Trustee shall not honor such request if immediately after
giving effect thereto CSFB Affiliates will own in the aggregate five percent
(5%) or more of the total number of shares of Common Stock then outstanding, and
provided further if the Requesting Party is not CSFB, the Trustee shall not
honor such request unless CSFB consents in writing to such request. In
determining, for purposes of the Section 9(b) only, whether CSFB Affiliates will
own in the aggregate five percent (5%) or more of the total number of shares of
Common Stock then outstanding, (x) shares of Common Stock underlying Share
Equivalents owned by a CSFB Affiliate shall be deemed to be outstanding and
owned by such CSFB Affiliate and (y) Shares held pursuant to this Agreement
shall be excluded. Such written request shall name such Requesting Party and
shall state (i) the proposed transfer date (which date shall be not less than
four business days after the Trustee's receipt of such request) and (ii) the
number and type of Shares to be transferred. The notice to the Trustee shall
also be accompanied by (i) a Trust Certificate or Certificates of the Requesting
Party, duly endorsed for transfer, representing not less than the number of
Shares of the type to be transferred to the Requesting Party and (ii) a
certificate of an officer of CSFB certifying that immediately after giving
effect to such request all CSFB Affiliate will own in the aggregate less than
five percent (5%) of the total number of shares of Common Stock then
outstanding. The Trustee shall be entitled to conclusively rely upon such
certificate. On the date specified in such request, and upon receipt by the
Trustee from the Requesting Party of such certificates, the Trustee shall
deliver to the Requesting Party a certificate (or the equivalent evidence of
ownership in the case of Share Equivalents) for the number of Shares of the type
specified in such notice, registered in the name of the Trustee and duly
endorsed for transfer.
(c) A Holder may at any time direct the Trustee by notice in writing to
transfer a certificate of certificates (or the equivalent evidence of ownership
in the case of Share Equivalents) for Shares in which the Holder has a
beneficial interest hereunder (i) to an underwriter (including CFSB) in
connection with a public offering of the Shares registered under the Securities
Act or (ii) in connection with sales made pursuant to Rule 144 (other than
subsection (k) thereof) under the Securities Act through a broker-dealer
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(including CSFB). Such notice shall state (a) the underwriter's or broker
dealer's mailing address, (b) the proposed transfer date (which date shall not
be less that five days after the Trustee's receipt of such notice), (c) the
number and type of Shares to be transferred and (d) the consideration, if any,
to be paid. The notice shall also be accompanied by a certificate of an officer
of the Holder certifying that such request is being made solely for sales made
in connection with a public offering of the Shares registered under the
Securities Act or sales made pursuant to Rule 144 (other than subsection (k)
thereof) under the Securities Act and a Trust Certificate or Certificates of the
Holder, duly endorsed for transfer, representing not less than the number of
Shares of the type to be transferred. The Trustee shall be entitled to
conclusively rely upon such certificate. On the date specified in such notice,
and upon receipt by the Trustee from such underwriter or such other transferee
of the specified consideration, if any, the Trustee shall deliver: (x) to the
underwriter or such other transferee, a certificate (or the equivalent evidence
of ownership in the case of Share Equivalents) for the number of Shares of the
type specified in such notice, registered in the name of the Trustee and duly
endorsed for transfer, and (y) to the Holder, a Trust Certificate representing a
number of Shares, if any, equal to the number of Shares represented by the
surrendered Trust Certificate less the number of Shares transferred to such
underwriter or such other transferee, and (z) to the Holder, the consideration,
if any, received from such underwriter or such other transferee. Such
consideration shall be distributed promptly to the Holder pursuant to the
transfer instructions set forth of Schedule B attached hereto.
Notwithstanding the foregoing, if the Holder intends to transfer Shares
pursuant to the exercise of the over-allotment option granted to the
underwriters in connection with a public offering of shares of Common Stock of
the Corporation, the transfer date in the notice may be less than four business
but shall not be less than two days after the Trustee's receipt of such notice;
provided that if the transfer date in the notice is less than four business days
after the Trustee's receipt of the notice, the Trustee shall only be obligated
to use its reasonable best efforts to effect the transfer of such Shares by such
transfer date.
Nothing in this Section 9 or elsewhere in this Agreement shall prohibit a
Holder from transferring Trust Certificates in accordance with the terms of the
Trust Certificates.
SECTION 10. Exercise, Conversion, Exchange or Cancellation of Shares. The
Trustee shall, upon written instruction of a Holder, submit to the Corporation
for exercise, conversion, exchange or cancellation any Share in which such
Holder has a beneficial interest hereunder. Such notice shall state (a) whether
such Shares are to be exercised, converted, exchanged or cancelled, (b) the date
on which such Shares are to be submitted to the Corporation (which date shall
not be less than five days after the Trustee's receipt of such notice), (c) the
number and type of Shares to be submitted to the Corporation and (d) the
consideration, if any, to be received upon such exercise, conversion, exchange
or cancellation from the Corporation. The notice shall be accompanied by (x) a
Trust Certificate or Certificates of the Holder, duly endorsed for transfer,
representing not less than the number of Shares of the type to be submitted to
the Corporation and (y) any exercise price or other payment and any agreement,
certificate or
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other documentation required in connection with such exercise, conversion
exchange or cancellation. On the date specified in such notice, and against
receipt from the Corporation of the specified consideration, if any, the Trustee
shall deliver by first class mail: (i) to the Corporation, (x) a certificate or
certificates for the number of Shares of the type specified in such notice,
registered in the name of the Trustee and duly endorsed for transfer and (y) any
exercise price or other payment and any agreement, certificate or other
documentation delivered to the Trustee by such Holder with such notice and (ii)
to the Holder, (x) a Trust Certificate representing a number of Shares equal to
the number of Shares represented by the surrendered Trust Certificate or
Certificates less the number of Shares submitted to the Corporation and (y) the
consideration, if any, received by the Trustee pursuant to such exercise,
conversion, exchange or cancellation; Provided that if such consideration
includes Shares, such Shares shall be held by the Trustee pursuant to this
Agreement and new Trust Certificates representing such Shares shall be issued to
such Holder.
SECTION 11. Increase or Decrease in Number of Shares. In the event of an
increase in the number of Shares by virtue of a stock split or the decrease in
the number of Shares because of a contraction of shares or a change in the
number of outstanding Shares as a result of some other recapitalization in which
the Corporation receives no consideration for the issuance of the additional or
reduced number of Shares, the new additional or changed number of Shares shall
be held by the Trustee and new Trust Certificates representing the appropriate
changed number of Shares shall be issued to Holders upon surrender of the then
existing Trust Certificates.
SECTION 12. Successor Trustee. There shall initially be one Trustee of the
voting trust crated herein. Upon the liquidation, dissolution, winding-up,
suspension, incapacity, resignation or removal (in accordance with Section 13
below) of the initial Trustee, CSFB or the Holders of Trust Certificates
representing fifty percent (50%) or more of the Trust Shares shall appoint a
successor Trustee; provided, however, that such successor Trustee shall not be a
Control Affiliate, an Employee Affiliate, or an Other Affiliate unless such
Other affiliate is a bank or trust company. In the event a successor Trustee
shall not have been appointed within 30 days of such removal, the Trustee may
petition a court of competent jurisdiction to appoint such a successor. In the
event that the Trustee consolidates with, merges with or converts into, or
transfers all or substantially all of its corporate trust assets to, another
corporation that is a bank or trust company, the surviving or transferee
corporation may become the successor Trustee upon notice to the signatories
hereto but without further action by the signatories or any Holder.
SECTION 13. Removal/Resignation of Trustee. (a) A Trustee may be removed by
CSFB or the Holders of Trust Certificates representing fifty percent (50%) or
more of the Trust Shares:
(i) if it is determined by a court of competent jurisdiction that
either (A) the Trustee has willfully and materially violated the terms of
the trust created
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herein, or (B) the Trustee has been guilty of malfeasance, misfeasance or
dereliction of duty hereunder.
(ii) if the Trustee shall have commenced a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect
to itself or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect, or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall have consented to any such
relief or to the appointment of or taking possession by any such official
in an involuntary case or other proceeding commenced against it, or shall
have made a general assignment for the benefit of creditors, or shall have
failed generally to pay its debts as they become due, or shall have taken
any corporate action to authorize any of the foregoing; or
(iii) if an involuntary case or other proceeding shall have been
commenced against the Trustee seeking liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect, or seeking the appointment of
a trustee, receiver, liquidator, custodian or other similar official of it
or any substantial part of its property, and such involuntary case or other
proceeding shall have remained undismissed and unstayed for a period of 60
days; or an order for relief shall have been entered against the Trustee
under the federal bankruptcy laws as now or hereafter in effect.
(b) If CSFB or the Holders of Trust Certificates representing fifty percent
(50%) or more of the Trust Shares then deposited hereunder determine that a
basis exists for removal of the Trustee under Section 13(a) above, they shall
deliver written notice of such determination to the Trustee stating the basis
for such removal.
(c) The Trustee may resign its position as such (i) upon ten days' written
notice to CSFB, but only if a successor Trustee, appointed as provided for in
Section 12 above, has agreed to serve as such effective upon the effectiveness
of the resignation of the Trustee then acting, or (ii) in any even upon thirty
days' written notice to CSFB.
SECTION 14. Trustee May Own Shares. Nothing in this Agreement shall prevent
the Trustee from owning Shares or options to purchase Shares in its individual
capacity or in any capacity other than as trustee hereunder or for any CSFB
Affiliate.
SECTION 15. Trustee Not an Affiliate. The Trustee represents that it is a
bank or trust company that is not a Control Affiliate or an Employee Affiliate.
SECTION 16. Compensation Expenses. Reasonable expenses lawfully incurred in
the administration of the Trustee's duties hereunder shall be reimbursed to it
by CSFB on behalf of the Holders. During the period of its services hereunder,
the Trustee shall receive a fee from CSFB as follows: (i) an initial fee of
$3,000, (ii) thereafter, during the period of its services hereunder, a fee of
$4,500 per annum payable quarterly in arrears
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and (iii) thereafter, such fee as the parties may from time to time agree. The
provision of this Section 16 shall survive the termination of this Agreement.
SECTION 17. Merger, Etc. Upon any merger, consolidation, reorganization or
dissolution of the Corporation or the sale of all or substantially all of the
assets of the Corporation pursuant to which shares of capital stock or other
voting securities of another corporation are to be issued in payment or exchange
for or upon conversion of Shares and other voting securities, the shares of said
other corporation shall automatically be and become subject to the terms of this
Agreement and be held by the Trustee hereunder in the same manner and upon the
same terms as the Trust Shares, and in such event the Trustee shall issue to the
Holders that have deposited Shares with the Trustee new Trust Certificates in
lieu of the old Trust Certificates for the appropriate number of shares and
other voting securities of such other corporation.
At the request of any Holder, the Trustee may transfer, sell or exchange or
join with the Holder in such transfer, sale or exchange of Shares and other
voting securities in exchange for shares of another corporation, and in said
event the shares and other voting securities of the other corporation received
by the transferor shall be and become subject to this Agreement and be held by
the Trustee hereunder in the same manner as the Trust Shares.
SECTION 18. Notices. All notices, reports, statements and other
communications directed to the Trustee from the Corporation, other than
communications pertaining solely to the voting of the Trust Shares, shall be
forwarded promptly by the Trustee to CSFB and each Holder. All notices, notices
of election and other communications required herein shall be given in writing
by overnight courier, telegram or facsimile transmission and shall be addressed
or, sent, to the appropriate addresses as set forth beneath the signature of
each party hereto, or at such other address as to which notice is given in
accordance with this Section 18.
SECTION 19. Indemnity, Etc. The Trustee shall be indemnified from and
against any and all loss, liability, claim, damage and expense whatsoever
(including, but not limited to, any and all expense whatsoever reasonably
incurred in investigating, preparing or defending against any litigation,
commenced or threatened, or any claims whatsoever) (the "Indemnified Claims")
arising out of or based upon this Agreement or the actions or failures to act of
the Trustee hereunder or thereunder, except to the extent such loss, liability,
claim damage or expense is caused by or results from the Trustee's gross
negligence or willful misconduct (as determined by a final and unappealable
order of a court of competent jurisdiction). CSFB agrees on behalf of the
Holders that it will indemnify and hold harmless the Trustee from and against
any Indemnified Claims. CSFB's obligation hereunder shall survive the transfer
of all or any portions of its respective shares and interests, the termination
of the voting trust created herein, or the resignation or removal of the
Trustee.
The Trustee shall be entitled to the prompt reimbursement for its
out-of-pocket expenses (including reasonable attorneys' fees and expenses)
incurred in investigating,
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preparing or defending against any litigation, commenced or threatened, arising
out of or based upon this Agreement, or the actions or failures to act of the
Trustee hereunder or thereunder, without regard to the outcome of such
litigation; provided however, that the Trustee shall be obligated to return any
such reimbursement if it is subsequently determined by a final and unappealable
order of a court of competent jurisdiction that the Trustee was grossly
negligent or engaged in willful misconduct in the matter in question. Such
expenses payable under this Section 19 shall be prorated among the Holders in
accordance with their respective interest in the Shares then deposited
hereunder.
If a claim under this Section 19 is not paid in full within 30 days after a
written claim has been submitted by the Trustee, the Trustee may at any time
thereafter bring suit to recover the unpaid amount of the claim and, if
successful in whole or in part, the Trustee shall be entitled to be paid also
the expense of prosecuting such claims.
The Trustee is authorized and empowered to construe this Agreement and its
construction of the same, made in good faith, shall be final, conclusive, and
binding upon all Holders and all other parties interested. The Trustee may, in
its discretion, consult with counsel to be selected and employed by it, and the
reasonable fees and expenses of such counsel shall be an expense for which the
Trustee is entitled to indemnity hereunder.
The Trustee hereby accepts the trust created hereby and agrees to carry out
the terms and provision hereof, but assumes no responsibility for the management
of the Corporation or for any action taken by it, by any person elected as a
director of the Corporation or by the Corporation pursuant to any vote cast or
consent given by the Trustee. The Trustee, whether or not acting upon the advice
of counsel, shall incur no liability because of any error of law or fact,
mistake of judgment or any matter or thing done or omitted under this Agreement,
except its own malfeasance. Anything done or suffered in good faith by the
Trustee in accordance with the advice of counsel chosen as indicated above shall
be conclusive in favor of the Trustee against the Holders and any other
interested party.
The Trustee shall not be liable in any event for acts or defaults of any
other trustee or trustees (under this or any other voting trust of the
Corporation's securities) or for acts or defaults of any employee, agent, proxy
or attorney-in-fact of any other trustee or trustees. The Trustee shall be
protected and free from liability in acting upon any notice, request, consent,
certificate, declaration, guarantee, affidavit or other paper or document or
signature reasonably believed by it to be genuine and to have been signed by the
proper party or parties or by the party or parties purporting to have signed the
same.
No provision of this Agreement shall require the Trustee to expend or risk
its own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured
to it.
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SECTION 20. Certain Calculations. For purposes of Sections 9, 12, 13, 16
and 19 a Holder owning a Trust Certificate representing Share Equivalents shall,
in respect of such ownership, be deemed to be the Holder of a Trust Certificate
representing the number of shares of Common Stock that the Trustee, acting on
behalf of such Holder, may acquire, whether by exercise, conversion,
subscription or otherwise, pursuant to or by reason of ownership of such Shares.
SECTION 21. Counterparts. This Agreement may be executed in multiple
counterparts all of which counterparts together shall constitute one agreement.
Upon execution of this Agreement and the establishment of the voting trust
created herein, the Trustee shall cause a copy of this Agreement to be filed in
the registered office of the Corporation in the State of Delaware and the
Agreement shall be open to inspection in the manner provided for inspection
under the laws of the State of Delaware.
SECTION 22. Choice of Law. This Agreement is intended by the parties to be
governed and construed in accordance with the laws of the State of Delaware
except that the Trustee's rights and obligations shall be governed and construed
in accordance with the laws of the State of New York.
SECTION 23. Bond. The Trustee shall not be required to provide any bond to
secure the performance of its duties hereunder.
SECTION 24. Reliance. Each Holder acknowledges that CSFB will rely on the
Trustee abiding by the terms of this Agreement, including, without limitation,
that (x) the Trustee will exercise independent judgment in voting the shares and
will not consult with any CSFB Affiliate regarding the voting of such shares and
(y) the Trustee will not consent to any amendment or waiver of this Agreement
prohibited by Section 25 hereof whether or not such amendment or waiver is
approved by each of the parties hereto and all of the Holders.
SECTION 25. Amendments and Waivers. This Agreement may not be amended or
waived in any material respect unless an opinion of independent nationally
recognized counsel (which opinion and counsel shall be satisfactory to CSFB),
who are experts in matters involving the federal securities law, that,
immediately after such amendment or waiver, CSFB should not be an "affiliate" of
the Corporation within the meaning of Rule 144 under the Securities Act.
SECTION 26. Benefits and Assignment. Nothing in this Agreement, expressed
or implied, shall give or be construed to give any persons, firm or corporation,
other than the parties hereto and their successors and assigns, any legal claim
under any covenant, condition or provision hereof, all the covenants, conditions
and provisions contained in this Agreement being for the sole benefit of the
parties hereto and their successors and assigns. No party may assign any of its
rights or obligation under this Agreement without the written consent of all the
other parties, which consent may be withheld in the sole discretion of the party
whose consent is sought.
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SECTION 27. Severability. In case any provision in this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
EXECUTED as of the date and year first above written.
XXXXX FARGO BANK INDIANA, N.A.
Trustee
By: /s/ Xxxxxx X. Xxxxxxx
Assistant Vice President
000 X. Xxxxx Xx., 0xx Floor
MAC X0000-000
Xxxx Xxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Xxxxxxx Xxxxxxx
Managing Director
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
DLJ CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
Managing Director
Sprout
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
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SPROUT CAPITAL VIII, L.P.
By: DLJ Capital Corporation
Its: Managing General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
Managing Director
Sprout
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
SPROUT VENTURE CAPITAL, L.P.
By: DLJ Capital Corporation
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
Managing Director
Sprout
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
DLJ ESC II, L.P.
By: DLJ LBO Plans Management Corporation
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
Managing Director
Sprout
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
15
SPROUT CEO FUND, L.P.
By: DLJ Capital Corporation
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
Managing Director
Sprout
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
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SCHEDULE A
(Initial Deposit)
Name Type Shares Deposited
Sprout Capital VIII, L.P. Common Stock 4,500,000
Sprout Venture Capital, L.P. Common Stock 346,724
DLJ Capital Corporation Common Stock 90,713
DLJ ESC II, L.P. Common Stock 578,218
Sprout CEO Fund, L.P. Common Stock 26,263
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SCHEDULE B
TRANSFER INSTRUCTIONS
SPROUT CAPITAL, VIII, L.P.
All payments shall be made by check mailed to:
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
SPROUT VENTURE CAPITAL, L.P.
All payments shall be made by check mailed to:
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
DLJ CAPITAL CORPORATION
All payments shall be made by check mailed to:
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
DLJ ESC II, L.P.
All payments shall be made by check mailed to:
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
SPROUT CEO FUND, L.P.
All payments shall be made by check mailed to:
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
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