EX-4.1 3 dex41.htm SECOND AMENDED AND RESTATED SHAREHOLDER AGREEMENT FORM OF SECOND AMENDED AND RESTATED SHAREHOLDER AGREEMENT among Avago Technologies Limited, Silver Lake Partners II Cayman, L.P., Silver Lake Technology Investors II Cayman, L.P....
Exhibit 4.1
FORM OF SECOND AMENDED AND RESTATED SHAREHOLDER AGREEMENT
among
Avago Technologies Limited,
Silver Lake Partners II Cayman, L.P.,
Silver Lake Technology Investors II Cayman, L.P.
Integral Capital Partners VII, L.P.
KKR Millennium Fund (Overseas), Limited Partnership,
KKR European Fund, Limited Partnership,
KKR European Fund II, Limited Partnership,
KKR Partners (International), Limited Partnership,
Capstone Equity Investors LLC,
Avago Investment Partners, Limited Partnership,
Bali Investments S.à x.x.,
Seletar Investments Pte. Ltd.,
Geyser Investment Pte Ltd and
certain other Persons
Dated as of August 11, 2009
TABLE OF CONTENTS
Page | ||||||||
1. | AMENDMENT AND RESTATEMENT; EFFECTIVE DATE | 3 | ||||||
2. | VOTING AGREEMENT | 3 | ||||||
2.1 | Board of Directors | 3 | ||||||
2.1.1. | Board Size | 3 | ||||||
2.1.2. | Designation of Directors | 3 | ||||||
2.1.3. | Board Observer | 3 | ||||||
2.1.4. | Sell-Down Provisions | 4 | ||||||
2.1.5. | Company Articles of Association | 4 | ||||||
2.1.6. | Additional Independent Directors | 5 | ||||||
2.2 | Removal and Replacement; Vacancies | 5 | ||||||
2.2.1. | Removal and Replacement; Vacancies Generally | 5 | ||||||
2.2.2. | Vacancies upon a Reduction in a Sponsor’s Ownership Percentage | 5 | ||||||
2.3 | Directors of Subsidiaries | 6 | ||||||
2.4 | Committees | 6 | ||||||
2.4.1. | Composition | 6 | ||||||
2.4.2. | Authority | 6 | ||||||
2.5 | Actions Requiring Majority Sponsor Approval | 6 | ||||||
2.5.1. | Composition of the Board | 6 | ||||||
2.5.2. | Change in Control | 7 | ||||||
2.5.3. | Certain Dispositions | 7 | ||||||
2.5.4. | Certain Acquisitions | 7 | ||||||
2.5.5. | Certain Joint Ventures and Business Alliances | 7 | ||||||
2.5.6. | Certain Indebtedness | 7 | ||||||
2.5.7. | Dissolution; Liquidation; Reorganization; Bankruptcy | 8 | ||||||
2.5.8. | Affiliated Transactions | 8 | ||||||
2.5.9. | Nature of Business | 8 | ||||||
2.5.10. | Management Shareholder Agreement; Capstone Shareholder Agreement | 8 | ||||||
2.6 | Disproportionate Effects on Co-Investors | 8 | ||||||
2.7 | Further Assurances by all Shareholders | 8 | ||||||
2.7.1. | Board of Directors Provisions | 8 | ||||||
2.7.2. | Approved Change in Control | 9 | ||||||
2.8 | Actions in Contravention | 9 | ||||||
2.9 | Period | 9 | ||||||
3. | TRANSFER RESTRICTIONS | 9 | ||||||
3.1 | General Transfer Restrictions | 9 | ||||||
3.2 | Allowed Transfers | 9 | ||||||
3.2.1. | Permitted Transferees | 9 | ||||||
3.2.2. | Public Transfers | 10 | ||||||
3.2.3. | Distributions and Charitable Contributions | 10 | ||||||
3.2.4. | Participation in Drag-Along and Tag-Along | 10 |
- i -
3.2.5. | Transfers by Co-Investors | 10 | ||||||
3.2.6. | Other Private Transfers | 11 | ||||||
3.2.7. | Luxco and Avago Partners Distributions | 11 | ||||||
3.3 | Certain Transferees to Become Parties | 11 | ||||||
3.4 | Restrictions on Public Transfers under Rule 144 | 12 | ||||||
3.5 | Impermissible Transfer | 12 | ||||||
3.6 | Notice of Transfer | 12 | ||||||
3.7 | Period | 12 | ||||||
4. | “TAG ALONG” AND “DRAG ALONG” RIGHTS | 12 | ||||||
4.1 | Tag Along | 12 | ||||||
4.1.1. | Notice | 12 | ||||||
4.1.2. | Exercise | 13 | ||||||
4.1.3. | Irrevocable Offer | 13 | ||||||
4.1.4. | Reduction of Shares Sold | 14 | ||||||
4.1.5. | Additional Compliance | 14 | ||||||
4.1.6. | Actions with Respect to Tag Along | 15 | ||||||
4.2 | Drag Along | 15 | ||||||
4.2.1. | Exercise | 15 | ||||||
4.2.2. | Drag Along Seller Exclusions | 16 | ||||||
4.3 | [Reserved] | 16 | ||||||
4.4 | Miscellaneous | 16 | ||||||
4.4.1. | Further Assurances | 16 | ||||||
4.4.2. | Sale Process | 16 | ||||||
4.4.3. | Treatment of Options, Warrants and Convertible Securities | 17 | ||||||
4.4.4. | Closing | 17 | ||||||
4.5 | Period | 17 | ||||||
5. | [RESERVED] | 17 | ||||||
6. | COVENANTS | 18 | ||||||
6.1 | Information Rights | 18 | ||||||
6.1.1. | Historical Financial Information | 18 | ||||||
6.1.2. | Tax Information | 18 | ||||||
6.1.3. | Access | 18 | ||||||
6.1.4. | Period | 18 | ||||||
6.2 | Confidentiality | 18 | ||||||
6.3 | Suspension of Information Rights | 19 | ||||||
7. | REMEDIES | 20 | ||||||
7.1 | Generally | 20 | ||||||
8. | LEGENDS | 20 | ||||||
8.1 | Restrictive Legend | 20 | ||||||
8.2 | Securities Act Legend | 20 | ||||||
8.3 | Stop Transfer Instruction | 21 | ||||||
8.4 | Termination of the Securities Act Legend | 21 |
- ii -
9. | AMENDMENT, TERMINATION, ETC | 21 | ||||
9.1 | Oral Modifications | 21 | ||||
9.2 | Written Modifications | 21 | ||||
9.3 | Effect of Termination | 21 | ||||
10. | DEFINITIONS | 22 | ||||
10.1 | Certain Matters of Construction | 22 | ||||
10.2 | Definitions | 22 | ||||
11. | MISCELLANEOUS | 28 | ||||
11.1 | Aggregation of Shares | 28 | ||||
11.2 | Authority; Effect | 29 | ||||
11.3 | Notices | 29 | ||||
11.4 | Binding Effect, Etc | 35 | ||||
11.5 | Descriptive Heading | 35 | ||||
11.6 | Counterparts | 35 | ||||
11.7 | Severability | 35 | ||||
11.8 | No Recourse | 35 | ||||
11.9 | Expenses; Indemnity | 36 | ||||
11.10 | No Third Party Beneficiaries | 36 | ||||
11.11 | Consent of Shareholders to Advisory Agreement | 36 | ||||
12. | GOVERNING LAW | 37 | ||||
12.1 | Governing Law | 37 | ||||
12.2 | Consent to Jurisdiction | 37 | ||||
12.3 | WAIVER OF JURY TRIAL | 37 | ||||
12.4 | Exercise of Rights and Remedies | 38 |
- iii -
FORM OF SECOND AMENDED AND RESTATED SHAREHOLDER AGREEMENT
This Second Amended and Restated Shareholder Agreement (this “Agreement”) is made as of August 11, 2009 by and among:
(i) | Avago Technologies Limited (Registration No. 200510713C), a public limited company incorporated in Singapore (together with its successors and permitted assigns, the “Company”); |
(ii) | Bali Investments S.à x.x., a company organized under the laws of Luxembourg (together with its Permitted Transferees, “Luxco”); |
(iii) | Silver Lake Partners II Cayman, L.P. (“SLP Cayman”), Silver Lake Technology Investors II Cayman, L.P. (together with SLP Cayman and, together with their Permitted Transferees, “Silver Lake”) and Integral Capital Partners VII, L.P. (together with its Permitted Transferees, “Integral Capital”) (collectively with Silver Lake and together with their Permitted Transferees, “SLP”); |
(iv) | KKR Millennium Fund (Overseas), Limited Partnership (“KKR Millennium”), KKR European Fund, Limited Partnership (“KKR Europe”), KKR European Fund II, Limited Partnership (“KKR Europe II”), and KKR Partners (International), Limited Partnership (collectively, and together with their Permitted Transferees, “KKR”); and |
(v) | Avago Investment Partners, Limited Partnership, a limited partnership formed under the Exempt Limited Partnership Law (2003 Revision) of the Cayman Islands (together with its Permitted Transferees, “Avago Partners”). |
Parties not executing this Agreement but which are parties to the Amended Agreement and therefore bound by the provisions hereof are the following:
(i) | Capstone Equity Investors LLC, a Delaware limited liability company (together with its Permitted Transferees, “Capstone”); |
(ii) | Seletar Investments Pte. Ltd., a private limited company organized under the laws of Singapore (together with its Permitted Transferees, “Temasek”); |
(iii) | Geyser Investment Pte Ltd, a private limited company organized under the laws of Singapore (together with its Permitted Transferees, “Geyser”); and |
(iv) | such other Persons, if any, that from time to time become parties hereto as transferees of Shares pursuant to Section 3.3 (collectively, together with the Sponsors, the “Shareholders”). |
WHEREAS, the Company and the Sponsors other than Capstone are party to that certain Shareholder Agreement (the “Original Agreement”), dated December 1, 2005 (the “Original Agreement Effective Date”), and the Company and the Sponsors are party to that certain Amended and Restated Shareholder Agreement (the “Amended Agreement”), dated February 3, 2006 (the “Amended Agreement Effective Date”), which amended and restated the Original Agreement in its entirety;
WHEREAS, as of the Effective Date, Luxco is owned by SLP, KKR, Capstone and Avago Partners;
WHEREAS, certain managers of the Company and its Subsidiaries have purchased or may purchase Company Shares, or have received or may receive Options exercisable for Company Shares, pursuant to the Company’s Equity Incentive Plan for Executive Employees of Avago Technologies Limited and Subsidiaries (the “Management Equity Plan”). With respect to Company Shares purchased by such certain managers under the Management Equity Plan and in certain instances other compensatory plans maintained by the Company, or any Company Shares issued to such certain managers upon exercise of any Options granted under the Management Equity Plan and in certain instances other compensatory plans maintained by the Company, the holders thereof (and their permitted transferees) (collectively, the “Management Shareholders”) are or will be subject to the terms of a Management Shareholder Agreement, dated as of February 3, 2006 (as amended from time to time, the “Management Shareholder Agreement”), among the Company and the Management Shareholders; and
- 2 -
AGREEMENT
1. AMENDMENT AND RESTATEMENT; EFFECTIVE DATE. This Agreement amends and restates the Amended Agreement in full to read as set forth herein, and this Agreement shall become effective as of the date first written above (the “Effective Date”).
2. VOTING AGREEMENT.
2.1 Board of Directors.
2.1.1. Board Size. The authorized number of directors of the Board shall be fixed at eleven (11), or such other number as is determined from time to time pursuant to Section 2.1.6 or Section 2.5.1.
2.1.2. Designation of Directors. Subject to Sections 2.1.3, 2.1.5 and 2.1.6 and the Company Articles of Association, the following persons shall be elected to the Board:
(a) three (3) persons designated by Silver Lake, who shall initially be Xxxxx X. Xxxxxxxx, Xxxxxxx X. Xxx and Xxxx X. Xxxxx (the “SLP Designees”);
(b) three (3) persons designated by KKR, one of whom shall be designated by KKR Millennium, who shall initially be Xxxxx Xxxxx, one of whom shall be designated by KKR Europe, who shall initially be Xxxx X. Xxxxxxx, and one of whom shall be designated by KKR Europe II, who shall initially be Xxxxx X. Xxxxxx, Xx. (the “KKR Designees”);
(c) one (1) person designated by Temasek, who shall initially be Xxxx Xxxx Tan, and who shall at all times be a person who qualifies as the Company’s Singapore resident director (the “Temasek Designee” and together with the SLP Designees and KKR Designees, the “Sponsor Designees”);
(d) one (1) person who shall be the then current Chief Executive Officer of the Company; and
(e) three (3) persons who shall, for so long as Section 2.5 shall be effective, be approved by Majority Sponsor Approval.
2.1.3. Board Observer. Subject to the Company Articles of Association, Geyser shall be entitled to designate one (1) person (the “Observer”), who shall be reasonably acceptable to the Company and shall initially be Xxx Xxx Xxxx, to attend all meetings of the Board, and the Company shall provide to the Observer, concurrently with the members of the Board and in the same manner, notice of such meetings and a copy of all materials provided to such members; provided, however, the Board, by majority vote, shall be entitled to exclude the Observer from portions of any Board meeting and to cause
- 3 -
portions of any Board materials delivered to the Observer to be redacted where and to the extent that the Board determines that exclusion is reasonably necessary to preserve attorney-client privilege; provided, further, for the avoidance of doubt, the Observer shall be subject to the confidentiality obligations set forth in Section 6.2 hereof and Geyser shall be responsible for the Observer’s compliance therewith.
2.1.4. Sell-Down Provisions. In the event that Silver Lake has sold any of its Company Equity Shares or otherwise transferred any of its Company Equity Shares to an unaffiliated entity, or Luxco has sold any of its Company Equity Shares and distributed the proceeds to Silver Lake, and SLP (x) ceases to own at least 24% of the Outstanding Company Shares but continues to own at least 15% of the Outstanding Company Shares, Silver Lake shall no longer have the right to designate three (3) Sponsor Designees and shall have the right to designate only two (2) Sponsor Designees, (y) ceases to own at least 15% of the Outstanding Company Shares but continues to own at least 5% of the Outstanding Company Shares, Silver Lake shall no longer have the right to designate two (2) Sponsor Designees and shall have the right to designate only one (1) Sponsor Designee, and (z) ceases to own at least 5% of the Outstanding Company Shares, Silver Lake shall no longer have the right to designate any Sponsor Designees.
(a) In the event that KKR has sold any of its Company Equity Shares or otherwise transferred any of its Company Equity Shares to an unaffiliated entity, or Luxco has sold any of its Company Equity Shares and distributed the proceeds to KKR, and KKR (x) ceases to own at least 24% of the Outstanding Company Shares but continues to own at least 15% of the Outstanding Company Shares, it shall no longer have the right to designate three (3) Sponsor Designees and shall have the right to designate only two (2) Sponsor Designees (in which case, the Board Designators (as defined below) will be KKR Millennium and KKR Europe II), (y) ceases to own at least 15% of the Outstanding Company Shares but continues to own at least 5% of the Outstanding Company Shares, it shall no longer have the right to designate two (2) Sponsor Designees and shall have the right to designate only one (1) Sponsor Designee (in which case, the Board Designator will be KKR Europe II), and (z) ceases to own at least 5% of the Outstanding Company Shares, it shall no longer have the right to designate any Sponsor Designees.
(b) In the event that Temasek ceases to own the lesser of (x) at least 2.5% of the Outstanding Company Shares, provided that it has not sold any of its Company Equity Shares, or (y) at least 5% of the Outstanding Company Shares, it shall no longer have the right to designate the Temasek Designee.
(c) In the event that Geyser ceases to own the lesser of (x) at least 2.5% of the Outstanding Company Shares, provided that it has not sold any of its Company Equity Shares, or (y) at least 5% of the Outstanding Company Shares, it shall no longer have the right to designate the Observer.
2.1.5. Company Articles of Association. Notwithstanding the provisions of Sections 2.1.2, 2.1.3 and 2.1.4, the rights to designate the Sponsor Designees and the Observer provided for in Section 2.1.2, 2.1.3 and 2.1.4 are subject to the Company Articles of Association and applicable laws.
- 4 -
2.1.6. Additional Independent Directors. For so long as Section 2.5 shall be effective, the number of directors designated pursuant to Section 2.1.2(e) may from time to time temporarily be increased above the number set forth in such section if Majority Sponsor Approval is received in advance of any such designation; provided, however, that any such Majority Sponsor Approval may be revoked at any time, without notice and without cause, by a subsequent Majority Sponsor Approval to such effect, whereupon the excess director or directors above and beyond the number permitted by Section 2.1.2(e), as identified in the Majority Sponsor Approval, shall immediately be removed from the Board and the Board size and composition returned to that specified in Section 2.1.2; and provided, further, however, in the event of any vacancy of any such Board seat in excess of that permitted by Section 2.1.2(e), such vacancy may not be filled without Majority Sponsor Approval. As of the date of the adoption hereof, it is acknowledged that Majority Sponsor Approval has been provided for Section 2.1.2(e) temporarily to permit four (4) directors.
2.2 Removal and Replacement; Vacancies.
2.2.1. Removal and Replacement; Vacancies Generally. Subject to Section 2.2.2, the Company Articles of Association and applicable laws, members of the Board designated by Silver Lake, KKR Millennium, KKR Europe, KKR Europe II or Temasek (each, a “Board Designator”), as the case may be, may be removed by, and only by, the affirmative vote or written consent of such Board Designator. If, prior to his or her election to the Board, any person is unable or unwilling to serve as a Sponsor Designee, then the applicable Board Designator shall, subject to Section 2.1.3, be entitled to designate a replacement. If, following election to the Board, any Sponsor Designee resigns, is removed, or is unable to serve for any reason prior to the expiration of his or her term as a director, then, subject to Section 2.1.3, the Company Articles of Association and applicable laws, the applicable Board Designator shall be entitled to designate a replacement. If any Board Designator entitled to designate a person to fill any directorship fails to do so, then such directorship shall remain vacant until filled by such Board Designator.
2.2.2. Vacancies upon a Reduction in a Sponsor’s Ownership Percentage. To the extent that, pursuant to Section 2.1.4, there is any reduction in the number of Sponsor Designees that any Board Designator is entitled to designate, then such Board Designator shall send a written notice to the Secretary of the Company stating the name of the Sponsor Designee(s) to be removed from the Board and, upon receipt of such notice by the Secretary of the Company (or, in the event such Board Designator fails to deliver such notice within ten (10) days after written request from the Company, such selection of a Sponsor Designee(s) of such Board Designator shall be made by the Company by lot), such Sponsor Designee(s) shall be deemed to have resigned from the Board, and the vacancy or vacancies created thereby (and, thereafter, any vacancies created in that particular directorship) shall be filled by a person designated by the Board acting in accordance with the Company’s nomination and governance procedures.
- 5 -
2.3 Directors of Subsidiaries. Subject to applicable laws, the size and composition of the boards of directors of the Company’s Subsidiaries shall be as determined by the Board; provided that, if at any time any Person other than an employee of the Company or any of its Subsidiaries (other than a Person who is also an employee, partner, member, shareholder or Affiliate of any Sponsor) or a local qualifying director is appointed to the board of directors of any Subsidiary of the Company, then each Board Designator shall have the right to designate a number of members to such board of directors in the same proportion as such Board Designator has the right to designate Sponsor Designees to the Board under Section 2.1.
2.4 Committees.
2.4.1. Composition. The Board may from time to time designate one or more committees, each of which shall have such number of members as is determined from time to time by the Board acting in accordance with the Company’s nomination and governance procedures; provided that for so long as Silver Lake or KKR is entitled to designate one or more Sponsor Designees under Section 2.1, it shall have the right to designate one of its Sponsor Designees to serve as a member of each of the Board’s committees (and if it has more than one Sponsor Designee, it may appoint a different Sponsor Designee to different Board committees); provided, further, however, that no such right to designate one or more Sponsor Designees to a Board committee would violate the U.S. federal securities laws or the requirements of the primary United States exchange on which the Company Shares are listed for trading. To the extent that a Sponsor Designee is removed from the Board pursuant to Section 2.2.2, such Sponsor Designee shall be deemed to have resigned from all committees upon which such Sponsor Designee is serving. Any vacancies on the Board’s committees created thereby (and, thereafter, any vacancies created in these committee memberships) shall, subject to this Section 2.4.1 to the extent Silver Lake or KKR continues to have the right to appoint one of its Sponsor Designees to the Board’s committees, be filled by the Board acting in accordance with the Company’s nomination and governance procedures.
2.4.2. Authority. Each of the Board’s committees, to the extent provided in the enabling resolution of such committee, the Company Articles of Association or this Agreement, shall have and may exercise all of the authority of the Board delegated to such committee. Any such delegation may be revoked at any time by action of the Board. Notwithstanding the foregoing, no committee of the Board shall have the power to act for the Board where such action would require Majority Sponsor Approval or otherwise expressly require the vote or consent of a majority of the Board’s directors under applicable law, the Company Memorandum of Association or Company Articles of Association or this Agreement.
2.5 Actions Requiring Majority Sponsor Approval. Except as expressly provided in this Section 2.5 and subject to the Company Articles of Association and applicable laws, until such time as the Shareholders beneficially own, collectively, less than 50% of the Outstanding Company Shares, Majority Sponsor Approval is required for the following actions by the Company and/or its Subsidiaries:
2.5.1. Composition of the Board. Except as otherwise expressly provided in this Agreement, change the size or the composition of the Board or any committee of the Board or the board of directors or similar governing body of any Subsidiary; provided, however, the prior written consent of Temasek shall also be required to amend, delete or otherwise change its rights under Section 2.1.4(c); provided, further, the prior written consent of Geyser shall also be required to amend, delete or otherwise change its rights under Section 2.1.4(d).
- 6 -
2.5.2. Change in Control. Enter into or effect a Change in Control.
2.5.3. Certain Dispositions. Directly or indirectly, enter into or effect any transaction or series of related transactions involving the sale, lease, license, exchange or other disposal (including by merger, consolidation, sale of stock, or sale of assets) by the Company or the Subsidiaries of any assets having a fair market value or for consideration having a fair market value (in each case as reasonably determined by the Board) in excess of US$300,000,000, other than transactions solely between and among the Company and Wholly Owned Subsidiaries.
2.5.4. Certain Acquisitions. Directly or indirectly, enter into or effect any transaction or series of related transactions involving the purchase, lease, license, exchange or other acquisition (including by merger, consolidation, acquisition of stock, or acquisition of assets) by the Company or the Subsidiaries of any assets and/or equity securities of any Person for consideration having a fair market value (as reasonably determined by the Board) in excess of US$300,000,000, other than transactions solely between and among the Company and Wholly Owned Subsidiaries.
2.5.5. Certain Joint Ventures and Business Alliances. Enter into any joint venture or similar business alliance involving investment, contribution or disposition by the Company or the Subsidiaries of assets (including stock of Subsidiaries) having a fair market value (as reasonably determined by the Board) in excess of US$300,000,000 other than transactions solely between and among the Company and Wholly Owned Subsidiaries.
2.5.6. Certain Indebtedness. Incur (or extend, supplement, or otherwise modify any of the material terms of) any indebtedness (including any refinancing of existing indebtedness); assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other Person (provided that the Company or any Subsidiary may provide cross-guarantees for any indebtedness in existence as of the Original Agreement Effective Date or that has otherwise been approved under this Section 2.5.6); enter into (or extend, supplement, or otherwise modify any of the material terms of) any agreement under which it may incur indebtedness in the future; or make any loan, advance or capital contribution to any Person (other than the Company or any Wholly Owned Subsidiaries); or make any voluntary prepayment of indebtedness of the Company or any of the Subsidiaries outside the ordinary course of business; in each case in an aggregate principal amount in excess of US$300,000,000 in any transaction or series of related transactions, and other than (x) a draw down in the ordinary course of business under a debt agreement entered into prior to the date of such draw down, the execution of which previously received Majority Sponsor Approval or (y) occurred on or prior to the Original Agreement Effective Date.
- 7 -
2.5.7. Dissolution; Liquidation; Reorganization; Bankruptcy. Dissolve, liquidate or engage in any recapitalization or reorganization of the Company or any Subsidiary or initiate a voluntary liquidation, dissolution, receivership, bankruptcy or other insolvency proceeding involving the Company or any Subsidiary.
2.5.8. Affiliated Transactions. Enter into or effect any transaction with a Majority Sponsor (or with an Affiliate of such Majority Sponsor, or with any officer, director, or employee of such Majority Sponsor or its Affiliates), other than this Agreement, the Securities Subscription Agreement, the Luxco Securities Subscription Agreement, the Advisory Agreement and the Registration Rights Agreement and other than transactions which do not have a materially disproportionate effect on any of the Sponsors, in their capacity as Shareholders, relative to the other Sponsors; and such Majority Sponsor shall be excluded from the determination of Majority Sponsor Approval for such transaction under this Section 2.5.8.
2.5.9. Nature of Business. Make any material change in the nature of the business conducted by the Company and its Subsidiaries.
2.5.10. Management Shareholder Agreement; Capstone Shareholder Agreement. Amend, waive or otherwise modify the Management Shareholder Agreement or Capstone Shareholder Agreement in any material respect.
2.6 Disproportionate Effects on Co-Investors. Except for such actions as are specifically set forth in this Agreement, the Company shall not take any action in respect of any class of its shares that shall have a materially disproportionate effect on the Co-Investors, in their capacity as Shareholders of such class of shares, as compared to the Majority Sponsors, in their capacity as Shareholders of such class of shares, without first obtaining the prior written consent of the Co-Investors holding a majority of the number of such class of shares held by all the Co-Investors. Without limiting the foregoing, the Company agrees that any repurchase or redemption of equity or debt securities by it, other than any repurchase or redemption of equity securities from any current or former director, executive officer or employee of the Company where such equity securities were issued pursuant to or in connection with any compensatory plan, and other than pursuant to the Capstone Shareholder Agreement, will be made pro rata, based upon the ownership of such securities, among the Sponsors.
2.7 Further Assurances by all Shareholders.
2.7.1. Board of Directors Provisions. Each Shareholder hereby agrees to take, at any time and from time to time, all actions necessary or desirable (whether in such Shareholder’s capacity as a shareholder, director or officer of the Company or otherwise, and including, without limitation, attendance at meetings in person or by proxy for the purposes of achieving a quorum and voting such Shareholder’s Shares or execution of a written consent in lieu of attending a meeting) to accomplish the provisions of Sections
- 8 -
2.1 through 2.4, and the Company agrees to take, at any time and from time to time, all actions necessary or desirable within its control (including, without limitation, calling special board and shareholder meetings) to ensure that the provisions of Sections 2.1 through 2.4 are accomplished.
2.7.2. Approved Change in Control. With respect to any Change in Control that has received the Majority Sponsor Approval required under Section 2.5.2, each Shareholder agrees to cast all votes to which such Shareholder is entitled in respect of the Shares, whether at any annual or special meeting, by written consent or otherwise, in such manner as the Majority Sponsors may instruct by written notice to approve, effect, or implement such approved transaction. Each Shareholder hereby grants to the Majority Sponsors an irrevocable proxy coupled with an interest to vote, including in any action by written consent, such Shareholder’s Shares in accordance with such Shareholder’s agreements contained in this Section 2.7.2, which proxy shall be valid and remain in effect until the provisions of this Section 2.7.2 expire pursuant to Section 2.9.
- 9 -
(a) Any Shareholder may Transfer any or all of such Shareholders’ Shares in a Public Offering in accordance with and pursuant to the Registration Rights Agreement.
(b) From and after the closing of the Initial Public Offering, a Majority Sponsor may Transfer any or all of such Majority Sponsor’s Shares pursuant to Rule 144 and in compliance with Section 3.4, or pursuant to a block sale to a financial institution in the ordinary course of its trading business; provided that any Transfer pursuant to this Section 3.2.2(b) occurring during the two-year period commencing on the closing of the Initial Public Offering shall not be made without Majority Sponsor Approval.
(c) Shares Transferred pursuant to this Section 3.2.2 shall conclusively be deemed thereafter not to be Shares under this Agreement.
3.2.4. Participation in Drag-Along and Tag-Along.
(a) Drag-Along. Any Shareholder shall Transfer any or all of such Shareholder’s Shares to the extent required pursuant to Section 4.2.
- 10 -
financial institution in the ordinary course of its trading business, in each case in compliance with Section 3.4, or (ii) pursuant to Regulation S under the Securities Act if such Shares following such Transfer are not “restricted securities” as defined in Rule 144, (c) in a pro rata Transfer to its partners, members or shareholders, as applicable, or (d) to a Charitable Organization, then the Shares Transferred pursuant to this Section 3.2.5 shall conclusively be deemed thereafter not to be Shares under this Agreement.
- 11 -
by the terms and conditions of this Agreement to the extent described in the preceding sentence and (y) if such Transfer is to a Permitted Transferee, remain directly liable for the performance by such Permitted Transferee of all obligations of such transferee under this Agreement.
3.4 Restrictions on Public Transfers under Rule 144. After the Initial Public Offering, and subject to the provisions of Sections 3.2.2 and 3.2.5, if any Shareholders’ sales of Shares pursuant to Rule 144 would be subject to aggregation (each such Shareholder whose Shares would be subject to aggregation, a “Related Holder”), then each such Related Holder shall promptly notify each other Related Holder (a) when it has commenced a measurement period for purposes of the Rule 144 group volume limit in connection with a Sale that is subject to such limit and (b) what the volume limit for that measurement period, determined as of its commencement, will be. Subject to Sections 3.2.2 and 3.2.5, each Related Holder shall be entitled to effect Sales that are subject to the Rule 144 group volume limit pro rata during the applicable measurement period based on its percentage ownership of Shares held by all such Related Holders at the start of such measurement period. The provisions of this Section 3.4 shall not apply to any Transfer of Shares (x) in a Public Offering or (y) not subject to volume limitation under Rule 144.
4. “TAG ALONG” AND “DRAG ALONG” RIGHTS.
(a) the principal terms and conditions of the proposed Sale, including (i) the number and class of the Shares to be purchased from the Prospective Selling Shareholder, (ii) the fraction(s) expressed as a percentage, determined by dividing the number of Shares of each class to be purchased from the Prospective Selling Shareholder by the total number of Shares of each such class held by the Prospective Selling Shareholder (for each class, the “Tag Along Sale Percentage”) (it being understood that the Company shall reasonably cooperate with the Prospective Selling Shareholder in respect of the determination of each applicable
- 12 -
Tag Along Sale Percentage), (iii) the purchase price or the formula by which such price is to be determined and the payment terms, including a description of any non-cash consideration sufficiently detailed to permit valuation thereof, (iv) the name and address of each Prospective Buyer and (v) if known, the proposed Transfer date; and
(b) an invitation to each Tag Along Holder to make an offer to include in the proposed Sale to the applicable Prospective Buyer(s) Shares of the same class(es) being sold by the Prospective Selling Shareholder held by such Tag Along Holder (not in any event to exceed the Tag Along Sale Percentage of the total number of Shares of the applicable class held by such Tag Along Holder), on the same terms and conditions (subject to Section 4.4.3 in the case of Options, Warrants and Convertible Securities), with respect to each Share Sold, as the Prospective Selling Shareholder shall Sell each of its Shares. For purposes of this Section 4.1, but subject to Section 4.4.3, all Options, Warrants and Convertible Securities will be treated as the same class of Shares for which they may be exercised.
4.1.3. Irrevocable Offer. The offer of each Participating Seller contained in such Participating Seller’s Tag Along Offer shall be irrevocable, and, to the extent such offer is accepted, such Participating Seller shall be bound and obligated to Sell in the proposed Sale on the same terms and conditions, with respect to each Share Sold (subject to Section 4.4.3 in the case of Options, Warrants and Convertible Securities), as the Prospective Selling Shareholder, up to such number of Shares as such Participating Seller shall have specified in such holder’s Tag Along Offer; provided, however, that if the principal terms of the proposed Sale change with the result that the purchase price shall be less than the purchase price set forth in the Tag Along Notice or the other terms and conditions shall be materially less favorable to the Tag Along Sellers than those set forth in the Tag Along Notice, the Prospective Seller shall provide written notice thereof to each Participating Seller and each Participating Seller shall be permitted to withdraw the
- 13 -
offer contained in such holder’s Tag Along Offer by written notice to the Prospective Selling Shareholder within three (3) Business Days after delivery of such written notice from the Prospective Selling Shareholder and upon such withdrawal shall be released from such Participating Seller’s obligations thereunder.
(a) there shall be first allocated to each Tag Along Seller a number of Shares equal to the lesser of (i) the number of Shares of the applicable class offered (or proposed, in the case of the Prospective Selling Shareholder) to be included by such Tag Along Seller in the proposed Sale pursuant to this Section 4.1, and (ii) a number of Shares equal to such Tag Along Seller’s Pro Rata Portion; and
(b) the balance, if any, not allocated pursuant to clause (a) above shall be allocated to the Prospective Selling Shareholder and each other Tag Along Seller which offered to sell a number of Shares of the applicable class in excess of such Person’s Pro Rata Portion, pro rata to each Tag Along Seller based upon the amount of such excess, or in such manner as the Tag Along Sellers may otherwise agree.
- 14 -
- 15 -
4.3 [Reserved].
- 16 -
consummate, postpone or abandon any proposed Sale and the terms and conditions thereof. No Shareholder nor any Affiliate thereof shall have any liability to any other Shareholder or the Company arising from, relating to or in connection with the pursuit, consummation, postponement, abandonment or terms and conditions of any proposed Sale except to the extent such holder shall have failed to comply with the provisions of this Section 4 and such failure shall have prevented the Company or such other Shareholder from exercising its rights pursuant to Section 4.1 or 4.2, as applicable.
5. [RESERVED].
- 17 -
6. COVENANTS.
6.1.2. Tax Information Within 90 days after the end of each fiscal year to the extent reasonably practicable, and in any event within 120 days after the end of each fiscal year, the Company shall cause to be delivered to any Person who was a Shareholder during such prior fiscal year all information necessary for the preparation of such Person’s income tax returns (whether federal, state or foreign).
6.1.4. Period. The provisions of this Section 6.1 shall expire on a Change in Control.
- 18 -
Shareholder as long as such prospective purchaser agrees to be bound by the provisions of this Section 6.2, (c) to any Affiliate, partner or member of such Shareholder in the ordinary course of business, (d) to the extent necessary for a Shareholder to enforce its rights under this Agreement, the other agreements entered into in connection herewith and under the Company Memorandum of Association and Company Articles of Association or (e) as may otherwise be required by law (including reporting under Securities laws and governmental filings); provided that such Shareholder takes reasonable steps to minimize the extent of any such required disclosure, including using best efforts to obtain a protective order in any legal proceeding, and provide the Company with written notice describing the disclosure that was or is to be made; provided, further, that the acts and omissions of any Person to whom such Shareholder may disclose confidential information pursuant to clauses (a) and (c) of the preceding proviso shall be attributable to such Shareholder for purposes of determining such Shareholder’s compliance with this Section 6.2.
Each of the parties hereto acknowledges that the Sponsors may review the business plans and related proprietary information of many enterprises, including enterprises which may have products or services which compete directly or indirectly with those of the Company or the Subsidiaries. Nothing in this Section 6.2 shall preclude or in any way restrict the Sponsors or their Affiliates from investing or participating in any particular enterprise, or trading in the securities thereof, whether or not such enterprise has products or services that compete with those of the Company or the Subsidiaries. Except as a Sponsor may otherwise agree in writing after the date hereof with respect to itself or its Affiliates (or its or its Affiliates’ employees, officers, directors, partners, members, shareholders, or agents): (i) such Persons shall have the right to, and shall have no duty (contractual or otherwise) not to, directly or indirectly: (A) engage in the same or similar business activities or lines of business as the Company or any of its Subsidiaries and (B) do business with any client or customer of the Company or any of its Subsidiaries; (ii) no such Person shall be liable to the Company or any of its Subsidiaries or Shareholders for breach of any duty (contractual or otherwise) by reason of any such activities or of such Person’s participation therein; and (iii) in the event that any such Person acquires knowledge of a potential transaction or matter that may be a corporate opportunity for the Company or its Subsidiaries on the one hand, and any such Person on the other hand, or any other person, no such Person shall have any duty (contractual or otherwise) to communicate or present such corporate opportunity to the Company or any of its Subsidiaries or any of its Shareholders and, notwithstanding any provision of this Agreement to the contrary, such Persons shall not be liable to the Company or its Subsidiaries or Shareholders for breach of any duty (contractual or otherwise) by reason of the fact that any such Person directly or indirectly pursues or acquires such opportunity for itself, directs such opportunity to another person, or does not present such opportunity to the Company or its Subsidiaries or Shareholders.
Nothing in this Section 6.2 shall authorize the use of any confidential information in contravention of applicable securities laws.
- 19 -
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN TRANSFER AND OTHER RESTRICTIONS PURSUANT TO A SHAREHOLDER AGREEMENT DATED AS OF DECEMBER 1, 2005 AMONG THE ISSUER OF SUCH SECURITIES (THE “COMPANY”) AND CERTAIN OF THE COMPANY’S SHAREHOLDERS, AS AMENDED. A COPY OF SUCH SHAREHOLDER AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST.”
Any Person who acquires Shares which are not subject to the terms of this Agreement shall have the right to have such legend (or the applicable portion thereof) removed from certificates representing such Shares.
“THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY COUNTRY AND ARE BEING OFFERED AND SOLD IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE SECURITIES PURCHASED HEREUNDER ARE SUBJECT TO RESTRICTIONS ON TRANSFER AND RESALE UNDER A SHAREHOLDER AGREEMENT AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND OTHER APPLICABLE LAWS PURSUANT TO REGISTRATION OR EXEMPTION FROM REGISTRATION REQUIREMENTS THEREUNDER AND UNDER SUCH SHAREHOLDER AGREEMENT”
- 20 -
8.3 Stop Transfer Instruction. The Company will instruct any transfer agent not to register the Transfer of any Shares until the conditions specified in the foregoing legends and this Agreement are satisfied.
9. AMENDMENT, TERMINATION, ETC.
Notwithstanding the foregoing, if any amendment, modification, extension, termination or waiver (an “Amendment”) would (i) adversely change or affect the rights of a particular Sponsor in a manner disproportionate to the rights of the Sponsors approving such Amendment, or (ii) adversely impose any additional material obligations on a particular Sponsor, then the consent of such particular Sponsor shall also be required.
Each such Amendment shall be binding upon each party hereto and each Shareholder subject hereto. In addition, each party hereto and each Shareholder subject hereto may waive any right hereunder, as to itself, by an instrument in writing signed by such party or Shareholder. To the extent the Amendment of any Section of this Agreement would require a specific consent pursuant to this Section 9.2, any Amendment to definitions to the extent used in such Section shall also require the specified consent.
- 21 -
10. DEFINITIONS. For purposes of this Agreement:
(a) The words “hereof,” “herein,” “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular Section or provision of this Agreement, and reference to a particular Section of this Agreement shall include all subsections thereof;
(b) The word “including” shall mean including, without limitation;
(c) Definitions shall be equally applicable to both nouns and verbs and the singular and plural forms of the terms defined; and
(d) The masculine, feminine and neuter genders shall each include the other.
10.2 Definitions. The following terms shall have the following meanings:
“Acquisition” means the acquisition of the Semiconductor Products Group of Agilent pursuant to an Asset Purchase Agreement, and ancillary agreements, between the Company and Agilent dated August 14, 2005, as amended from time to time.
“Adverse Claim” shall have the meaning set forth in Section 8-102 of the applicable Uniform Commercial Code.
“Advisory Agreement” shall mean the Advisory Agreement made and entered into as of the Original Agreement Effective Date by and among the Company, Kohlberg Kravis Xxxxxxx & Co., L.P., a Delaware limited partnership, and Silver Lake Management Company, L.L.C., a Delaware limited liability company.
“Affiliate” shall mean, with respect to any Person, (i) any other Person which directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such Person (for the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise); provided, however, that neither the Company nor any of its controlled Affiliates shall be deemed an Affiliate of any of the Shareholders (and vice versa); provided, further, neither Integral Capital nor Capstone shall be deemed to be an Affiliate of any of Silver Lake, Avago Partners or KKR, (ii) if such Person is an investment fund, any other investment fund the primary investment advisor to which is the primary investment advisor to such Person or an Affiliate thereof and (iii) if such Person is a natural Person, any Family Member of such natural Person.
“Agilent” means Agilent Technologies, Inc., a Delaware corporation.
“Agreement” shall have the meaning set forth in the Preamble.
“Amended Agreement” shall have the meaning set forth in the Recitals.
“Amended Agreement Effective Date” shall have the meaning set forth in the Recitals.
- 22 -
“Amendment” shall have the meaning set forth in Section 9.2.
“Avago Partners” shall have the meaning set forth in the Preamble.
“Board” shall have the meaning set forth in the Recitals.
“Board Designator” has the meaning set forth in Section 2.2.1.
“Business Day” shall mean any day that is not a Saturday, a Sunday or other day on which banks are required or authorized by law to be closed in Singapore.
“Capstone” shall have the meaning set forth in the Preamble.
“Capstone Shareholder Agreement” shall mean the Shareholder Agreement, dated as of February 3, 2006, between the Company and Capstone.
“Change in Control” shall mean any transaction or series of related transactions (whether by merger, consolidation or sale or transfer of the Company Equity Shares or assets (including stock of its Subsidiaries), or otherwise) as a result of which an Independent Third Party obtains ownership, directly or indirectly, (i) of Company Equity Shares which represent more then 50% of the total voting power in the Company or (ii) by lease, license, sale or otherwise, of all or substantially all of the assets of the Company and its Subsidiaries on a consolidated basis.
“Charitable Organization” shall mean a charitable organization as described by Section 501(c)(3) of the Internal Revenue Code of 1986, as in effect from time to time.
“Co-Investor” shall mean any of Temasek, Geyser, Avago Partners, Integral Capital or Capstone.
“Company” shall have the meaning set forth in the Preamble.
“Company Articles of Association” shall mean the amended and restated articles of association of the Company, as amended from time to time.
“Company Equity Shares” shall mean the Company Shares and any other classes of ordinary or preferred shares of the Company.
“Company Memorandum of Association” shall mean the amended and restated memorandum of association of the Company, as amended from time to time.
“Company Shares” shall have the meaning set forth in the Recitals.
“Convertible Securities” shall mean any evidence of indebtedness, shares of stock or other securities or rights (other than Options and Warrants) which are directly or indirectly convertible into or exchangeable or exercisable for Company Shares.
“Current Percentage Ownership” of Silver Lake, KKR or a Sponsor means, as of a date of determination, the number of Shares owned by Silver Lake, KKR or such Sponsor, as the case may be, divided by the number of Silver Lake’s, KKR’s or such Sponsor’s, as the case may be,
- 23 -
Initial Shares. For purposes of calculating the Current Percentage Ownership of Silver Lake or KKR, each of Silver Lake and KKR shall be deemed to own its pro rata portion of the number of Shares owned by Luxco based upon their ownership of Luxco equity securities.
“Drag Along Notice” shall have the meaning set forth in Section 4.2.1.
“Drag Along Sale Percentage” shall have the meaning set forth in Section 4.2.
“Drag Along Sellers” shall have the meaning set forth in Section 4.2.1.
“Effective Date” shall have the meaning set forth in Section 1.
“Equivalent Shares” shall mean, at any date of determination, (a) as to any Outstanding Company Shares, such number of Outstanding Company Shares and (b) as to any outstanding Options, Warrants or Convertible Securities which constitute Shares, the number of Outstanding Company Shares for which or into which such Options, Warrants or Convertible Securities may at the time be exercised, converted or exchanged (or which will become exercisable, convertible or exchangeable on or prior to, or by reason of, the transaction or circumstance in connection with which the number of Equivalent Shares is to be determined).
“Exchange Act” shall mean the Securities Exchange Act of 1934, as in effect from time to time.
“Family Member” shall mean, with respect to any natural Person, such Person’s spouse and descendants (whether or not adopted) and any trust, family limited partnership or limited liability company that is and remains solely for the benefit of such Person’s spouse and/or descendants.
“Geyser” shall have the meaning set forth in the Preamble.
“Indemnitees” shall have the meaning set forth in Section 11.9.
“Independent Third Party” means any Person or group (within the meaning of Section 13(d)(3) of the Exchange Act) that is not one of the Majority Sponsors (or any Affiliate of such Majority Sponsor, or any officer, director, or employee of such Majority Sponsor or its Affiliates).
“Initial Public Offering” shall mean the initial firm commitment underwritten Public Offering registered under the Securities Act or equivalent foreign securities laws (other than a registration statement on Form F-4, Form S-4 or Form S-8 (or any similar or successor form or equivalent foreign form)).
“Initial Shares” shall mean, with respect to Silver Lake, KKR or any Sponsor, the number of Shares owned by Silver Lake, KKR or such Sponsor, as the case may be, on the date hereof, as set forth opposite such Person’s name on Schedule I attached hereto; which number of Shares shall be proportionally adjusted (and Schedule I shall be modified accordingly) for any stock split, combinations, stock dividend or other recapitalization affecting the Company Equity Shares. For purposes of calculating the number of Initial Shares held by each of Silver Lake and KKR, each of Silver Lake and
- 24 -
KKR shall be deemed to own its pro rata portion of the number of Company Shares owned by Luxco on the date hereof based upon their ownership of Luxco equity securities.
“Integral Capital” shall have the meaning set forth in the Preamble.
“KKR Designees” shall have the meaning set forth in Section 2.1.2(b).
“KKR” shall have the meaning set forth in the Preamble.
“KKR Europe” shall have the meaning set forth in the Preamble.
“KKR Europe II” shall have the meaning set forth in the Preamble.
“KKR Millennium” shall have the meaning set forth in the Preamble.
“Luxco” shall have the meaning set forth in the Preamble.
“Luxco Securities Subscription Agreement” shall mean the Securities Subscription Agreement made as of the Amended Agreement Effective Date between the Company and Luxco.
“Majority Sponsor Approval” means the written approval of Silver Lake and KKR.
“Majority Sponsors” shall mean Silver Lake and KKR, and for so long as Luxco holds Shares, Luxco.
“Management Equity Plan” shall have the meaning set forth in the Recitals.
“Management Shareholder Agreement” shall have the meaning set forth in the Recitals.
“Management Shareholders” shall have the meaning set forth in the Recitals.
“Observer” shall have the meaning set forth in Section 2.1.3.
“Options” shall mean any options to subscribe for, purchase or otherwise directly acquire Company Shares, other than any such option held by the Company or any right to purchase shares pursuant to this Agreement.
“Original Agreement” has the meaning set forth in the Recitals.
“Original Agreement Effective Date” shall have the meaning set forth in the Recitals.
“Outstanding Company Shares” shall mean as of the time of determination, the outstanding Company Shares as of such time, including any Company Shares into which the outstanding Convertible Securities as of such time are convertible (treating such Convertible Securities as a number of outstanding Company Shares for which or into which such Convertible Securities may at the time be converted for all purposes of this Agreement except as otherwise specifically set forth herein). Outstanding Company Shares does not include Company Shares
- 25 -
issuable upon exercise of Options or Warrants which have not actually been issued as of the time of determination. In determining Outstanding Company Shares owned by KKR or Silver Lake, in addition to the application of Section 11.1, (i) each of KKR, Silver Lake, Integral Capital, Capstone and Avago Partners shall be deemed to own their pro rata share of Company Equity Securities owned by Luxco based upon their ownership of Luxco equity securities and (ii) each of KKR and Silver Lake shall be deemed to own Company Equity Shares owned, or deemed owned pursuant to clause (i) above, by Avago Partners.
“Participating Seller” shall have the meaning set forth in Sections 4.1.2 and 4.2.1.
“Permitted Transferee” shall mean, with respect to any Shareholder, an Affiliate of such Shareholder (other than any “portfolio company” of such Shareholder or any entity controlled by any portfolio company of such Shareholder); provided that such transferee shall agree to be bound by the terms of this Agreement in accordance with Section 3.3. With respect to Temasek, Permitted Transferees of Temasek includes Affiliates of Temasek Holdings (Private) Limited.
“Person” shall mean any individual, partnership, corporation, company, association, trust, joint venture, limited liability company, unincorporated organization, entity or division, or any government, governmental department or agency or political subdivision thereof.
“Pro Rata Portion” shall mean, with respect to each Tag Along Seller, a number of Shares equal to the aggregate number of Shares of the applicable class that the Prospective Buyer is willing to purchase in the proposed Sale, multiplied by a fraction, the numerator of which is the aggregate number of Shares of the applicable class held by such Tag Along Seller and the denominator of which is the aggregate number of Shares of the applicable class held by all Tag Along Sellers.
“Prospective Buyer” shall mean any Person, including the Company or any of its Subsidiaries, proposing to purchase or otherwise acquire Shares from a Prospective Selling Shareholder.
“Prospective Selling Shareholder” shall mean:
(a) for purposes of Section 4.1, any Majority Sponsor that proposes to Transfer any Shares to any Prospective Buyer; and
(b) for purposes of Section 4.2, any Shareholder forming part of the group of Majority Sponsors that has elected to exercise the drag along right provided by such Section.
“Public Offering” shall mean a public offering and sale of Company Shares by the Company (or any successor) pursuant to an effective registration statement under the Securities Act and/or in compliance with equivalent applicable foreign securities laws.
“Registration Rights Agreement” shall have the meaning set forth in Section 11.4.
“Related Holder” shall have the meaning set forth in Section 3.4.
- 26 -
“Rule 144” shall mean Rule 144 under the Securities Act (or any successor rule).
“Sale” shall mean a Transfer for value and the terms “Sell” and “Sold” shall have correlative meanings.
“Securities Act” shall mean the United States Securities Act of 1933, as in effect from time to time.
“Securities Subscription Agreement” shall mean the Securities Subscription Agreement made as of the Original Agreement Effective Date among the Company and each of the investors listed on Schedule 1 thereto.
“Senior Manager” shall mean the chief executive officer (or if none, the highest ranking executive officer) of the Company, and any management employee of the Company that reports directly to the chief executive officer (or if none, the highest ranking executive officer) of the Company.
“Shareholders” shall have the meaning set forth in the Preamble.
“Shares” shall mean (a) all Outstanding Company Shares held by a Shareholder, whenever issued, including all Outstanding Company Shares issued upon the exercise, conversion or exchange of any Options, Warrants or Convertible Securities, and (b) all Options, Warrants and Convertible Securities held by a Shareholder (treating such Options, Warrants and Convertible Securities as a number of Company Shares equal to the number of Equivalent Shares represented by such Options, Warrants and Convertible Securities for all purposes of this Agreement except as otherwise specifically set forth herein).
“Silver Lake” shall have the meaning set forth in the Preamble.
“SLP” shall have the meaning set forth in the Preamble.
“SLP Cayman” shall have the meaning set forth in the Preamble.
“SLP Designees” shall have the meaning set forth in Section 2.1.2(a).
“Sponsor Designees” shall have the meaning set forth in Section 2.1.2(c).
“Sponsors” shall mean the Majority Sponsors and the Co-Investors.
“Subsidiary” means, with respect to any Person, any company, corporation, partnership, limited liability company, association, joint venture or other business entity of which (i) if a company or corporation, at least 50% of the total voting power of shares or stock entitled (irrespective of whether, at the time, stock of any other class or classes of such corporation shall have or might have voting power by reason of the happening 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 that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if a partnership, limited liability company, association, joint venture or other business entity, at least 50% of the partnership, joint venture or other similar ownership
- 27 -
interest thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, references to a “Subsidiary” of any Person shall be given effect only at such times that such Person has one or more Subsidiaries, and, unless otherwise indicated, the term “Subsidiary” refers to a Subsidiary of the Company.
“Tag Along Deadline” shall have the meaning set forth in Section 4.1.2.
“Tag Along Holder” shall have the meaning set forth in Section 4.1.1.
“Tag Along Notice” shall have the meaning set forth in Section 4.1.1.
“Tag Along Offer” shall have the meaning set forth in Section 4.1.2.
“Tag Along Sale Percentage” shall have the meaning set forth in Section 4.1.1(a).
“Tag Along Sellers” shall have the meaning set forth in Section 4.1.2.
“Temasek” shall have the meaning set forth in the Preamble.
“Temasek Designee” shall have the meaning set forth in Section 2.1.2(c).
“Third-Party Claim” shall have the meaning set forth in Section 11.9.
“Transaction Agreements” shall mean this Agreement, the Registration Rights Agreement, the Securities Subscription Agreement and the Luxco Securities Subscription Agreement.
“Transfer” shall mean any sale, pledge, assignment, encumbrance or other transfer or disposition of any Shares to any other Person, whether directly, indirectly, voluntarily, involuntarily, by operation of law, pursuant to judicial process or otherwise.
“Warrants” shall mean any warrants to subscribe for, purchase or otherwise directly acquire Company Equity Shares.
“Wholly Owned Subsidiary” means any Subsidiary of the Company of which all of the capital stock or other ownership interests (including any options, warrants, or other securities convertible into, or exercisable or exchangeable for, equity securities) are owned by the Company and/or one or more Wholly Owned Subsidiaries.
11.1 Aggregation of Shares. All Shares held by a Shareholder and its Affiliates shall be aggregated together for purposes of (a) determining the availability of any rights under Sections 2, 3.4, 4, 6 and 9.2 and (b) applying the defined terms “Initial Shares” and “Current Percentage Ownership”. Each of Silver Lake and KKR shall be deemed to own its own, its Affiliates’ and Avago Partners’ pro rata portion of the number of Outstanding Company Shares owned by Luxco, in addition to all Shares held directly by Avago Partners, for purposes of
- 28 -
determining the availability of any rights of Silver Lake and KKR under Section 2 and Section 6.1. Silver Lake shall also be deemed to own Integral Capital’s pro rata portion of the number of Outstanding Company Shares owned by Luxco, in addition to all Shares held directly by Integral Capital, for purposes of determining the availability of any rights of Silver Lake under Section 6.1. If the Shares held by a Sponsor are held by or transferred to one or more Affiliates or Permitted Transferees of such Sponsor, then for purposes of this Agreement, the vote or action of such Sponsor shall be made by the holder(s) of a majority of the Shares of the relevant class(es) held by such Sponsor, Affiliates and Permitted Transferees as to which such vote or action is to be made.
11.2 Authority; Effect. Each party hereto represents and warrants to and agrees with each other party that the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized on behalf of such party and do not violate any agreement or other instrument applicable to such party or by which its assets are bound. This Agreement does not, and shall not be construed to, give rise to the creation of a partnership among any of the parties hereto, or to constitute any of such parties members of a joint venture, group or other association.
If to the Company: | ||||
Avago Technologies Limited | ||||
Xx. 0 Xxxxxx Xxxxxx 0 | ||||
Xxxxxxxxx 000000 | ||||
Xxxxxxxxx | ||||
Facsimile: | (000) 000-0000 | |||
Attention: | Xxxx X. Xxx and Xxxxxxxx X. XxXxxx | |||
E-mail: | xxxx.xxx@xxxxxxxxx.xxx and xxxxxxxx@xxxxxxxxx.xxx |
- 29 -
with a copy to: | ||||
Kohlberg Kravis Xxxxxxx & Co. | ||||
0000 Xxxx Xxxx Xxxx, Xxxxx 000 | ||||
Xxxxx Xxxx, Xxxxxxxxxx 00000 | ||||
Facsimile: | (000) 000-0000 and (000) 000-0000 | |||
Attention: | Xxxxx X. Xxxxxx Xx. and Xxxx X. Xxxxxxx | |||
E-mail: | xxxxxxx@xxx.xxx and xxxx@xxx.xxx | |||
and with a copy to: | ||||
Silver Lake Partners | ||||
0000 Xxxx Xxxx Xxxx, Xxxxx 000 | ||||
Xxxxx Xxxx, Xxxxxxxxxx 00000 | ||||
Facsimile: | (000) 000-0000 | |||
Attention: | Xxxxx X. Xxxx, General Counsel | |||
E-mail: | Xxxxx.xxxx@xxxxxxxxxx.xxx | |||
and with a copy to: | ||||
Xxxxxx & Xxxxxxx LLP | ||||
000 Xxxxx Xxxxx | ||||
Xxxxx Xxxx, XX 00000 | ||||
Facsimile: | (000) 000-0000 | |||
Attention: | Xxxxx X. Xxxxxx | |||
E-mail: | xxxxx.xxxxxx@xx.xxx | |||
If to Luxco: | ||||
Bali Investments S.à x.x. | ||||
00, xxx xx Xxxxxxxxxxxxxx | ||||
X-0000 Xxxxxxxxxx | ||||
Xxxxxxxxxx | ||||
Facsimile: | x000 000 000 00 00 | |||
Attention: | Xx. Xxxxxxxx Xxxxxx | |||
E-mail: | Xxxxxxxx.Xxxxxx@xxxx-xxxxxxxxxxx.xx | |||
with a copy to: | ||||
Kohlberg Kravis Xxxxxxx & Co. | ||||
0000 Xxxx Xxxx Xxxx, Xxxxx 000 | ||||
Xxxxx Xxxx, Xxxxxxxxxx 00000 | ||||
Facsimile: | (000) 000-0000 and (000) 000-0000 | |||
Attention: | Xxxxx X. Xxxxxx Xx. and Xxxx X. Xxxxxxx | |||
E-mail: | xxxxxxx@xxx.xxx and xxxx@xxx.xxx | |||
and with a copy to: | ||||
Silver Lake Partners | ||||
0000 Xxxx Xxxx Xxxx, Xxxxx 000 | ||||
Xxxxx Xxxx, Xxxxxxxxxx 00000 | ||||
Facsimile: | (000) 000-0000 | |||
Attention: | Xxxxx X. Xxxx, General Counsel | |||
E-mail: | Xxxxx.xxxx@xxxxxxxxxx.xxx |
- 30 -
and with a copy to: | ||||
Xxxxxx & Xxxxxxx LLP | ||||
000 Xxxxx Xxxxx | ||||
Xxxxx Xxxx, XX 00000 | ||||
Facsimile: | (000) 000-0000 | |||
Attention: | Xxxxx X. Xxxxxx | |||
E-mail: | xxxxx.xxxxxx@xx.xxx | |||
If to Avago Partners: | ||||
Avago Investment Partners, Limited Partnership | ||||
c/o Walkers SPV Limited | ||||
XX Xxx 000XX | ||||
Xxxxxx Xxxx, Xxxxx Xxxxxx | ||||
Xxxxxx Xxxxxxx | ||||
Facsimile: | (000) 000-0000 | |||
Attention: | Xxxx XxXxxxx | |||
E-mail: | xxxxxxxx@xxxxxxx.xxx.xx | |||
with a copy to: | ||||
Kohlberg Kravis Xxxxxxx & Co. | ||||
0000 Xxxx Xxxx Xxxx, Xxxxx 000 | ||||
Xxxxx Xxxx, Xxxxxxxxxx 00000 | ||||
Facsimile: | (000) 000-0000 and (000) 000-0000 | |||
Attention: | Xxxxx X. Xxxxxx Xx. and Xxxx X. Xxxxxxx | |||
E-mail: | xxxxxxx@xxx.xxx and xxxx@xxx.xxx | |||
and with a copy to: | ||||
Silver Lake Partners | ||||
0000 Xxxx Xxxx Xxxx, Xxxxx 000 | ||||
Xxxxx Xxxx, Xxxxxxxxxx 00000 | ||||
Facsimile: | (000) 000-0000 | |||
Attention: | Xxxxx X. Xxxx, General Counsel | |||
E-mail: | Xxxxx.xxxx@xxxxxxxxxx.xxx |
- 31 -
and with a copy to: | ||||
Xxxxxx & Xxxxxxx LLP | ||||
000 Xxxxx Xxxxx | ||||
Xxxxx Xxxx, XX 00000 | ||||
Facsimile: | (000) 000-0000 | |||
Attention: | Xxxxx X. Xxxxxx | |||
E-mail: | xxxxx.xxxxxx@xx.xxx | |||
If to Silver Lake: | ||||
Silver Lake Partners II Cayman and | ||||
Silver Lake Technology Investors II Cayman | ||||
c/o Walkers SPV Limited | ||||
XX Xxx 000XX | ||||
Xxxxxx Xxxx, Xxxxx Xxxxxx | ||||
Xxxxxx Xxxxxxx | ||||
Facsimile: | (000) 000-0000 | |||
Attention: | Xxxx XxXxxxx | |||
E-mail: | xxxxxxxx@xxxxxxx.xxx.xx | |||
with a copy to: | ||||
Silver Lake Partners | ||||
0000 Xxxx Xxxx Xxxx, Xxxxx 000 | ||||
Xxxxx Xxxx, Xxxxxxxxxx 00000 | ||||
Facsimile: | (000) 000-0000 | |||
Attention: | Xxxxx X. Xxxx, General Counsel | |||
E-mail: | Xxxxx.xxxx@xxxxxxxxxx.xxx | |||
and with a copy to: | ||||
Xxxxxx & Xxxxxxx LLP | ||||
000 Xxxxx Xxxxx | ||||
Xxxxx Xxxx, XX 00000 | ||||
Facsimile: | (000) 000-0000 | |||
Attention: | Xxxxx X. Xxxxxx | |||
E-mail: | xxxxx.xxxxxx@xx.xxx | |||
If to KKR: | ||||
KKR Millennium Fund (Overseas), KKR European Fund, | ||||
KKR European Fund II and KKR Partners (International) | ||||
c/o Eeson & Woolstencroft LLP | ||||
Xxxxx 000, 000 - 0xx Xxxxxx X.X. | ||||
Xxxxxxx, Xxxxxxx | ||||
Xxxxxx | ||||
Facsimile: | (000) 000-0000 | |||
Attention: | Xxxx X. Xxxxxxxxxxxxx | |||
E-mail: | xxxx.xxxxxxxxxxxxx@xxxxxxx.xxx |
- 32 -
with a copy to: | ||||
Kohlberg Kravis Xxxxxxx & Co. | ||||
0000 Xxxx Xxxx Xxxx, Xxxxx 000 | ||||
Xxxxx Xxxx, Xxxxxxxxxx 00000 | ||||
Facsimile: | (000) 000-0000 and (000) 000-0000 | |||
Attention: | Xxxxx X. Xxxxxx Xx. and Xxxx X. Xxxxxxx | |||
E-mail: | xxxxxxx@xxx.xxx and xxxx@xxx.xxx | |||
and with a copy to: | ||||
Xxxxxx & Xxxxxxx LLP | ||||
000 Xxxxx Xxxxx | ||||
Xxxxx Xxxx, XX 00000 | ||||
Facsimile: | (000) 000-0000 | |||
Attention: | Xxxxx X. Xxxxxx | |||
E-mail: | xxxxx.xxxxxx@xx.xxx | |||
If to Integral Capital: | ||||
Integral Capital Partners | ||||
0000 Xxxx Xxxx Xxxx | ||||
Xxxx. 0, Xxxxx 000 | ||||
Xxxxx Xxxx, Xxxxxxxxxx 00000 | ||||
Facsimile: | (000) 000-0000 | |||
Attention: | Xxxxxx X. Xxxxxxx | |||
E-mail: | xxx@xxx.xxx | |||
If to Temasek: | ||||
Seletar Investments Pte. Ltd. | ||||
00X Xxxxxxx Xxxx | ||||
#00-00 | ||||
Tower 2 | ||||
The Atrium @ Orchard | ||||
Xxxxxxxxx 000000 | ||||
Xxxxxxxxx | ||||
Facsimile: | 000-00-0000-0000 | |||
Attention: | Xxx Xxxx Huat and Xxxxxx Xxxxxxxx | |||
E-mail: | xxxxxxxx@xxxxxxx.xxx.xx and xxxxxxxxxxxxxx@xxxxxxx.xxx.xx |
- 33 -
with a copy to: | ||||
Milbank, Tweed, Xxxxxx & XxXxxx LLP | ||||
00 Xxxxxxx Xxxxx | ||||
#00-00 Xxxxxx Xxxxx | ||||
Xxxxxxxxx 000000 | ||||
Xxxxxxxxx | ||||
Facsimile: | 000-00-0000-0000 and (000) 000-0000 | |||
Attention: | Xxxxx X. Xxxxxx and Xxxxxxxx X. Xxxxxxxxx | |||
E-mail: | xxxxxxx@xxxxxxx.xxx and xxxxxxxxxx@xxxxxxx.xxx | |||
If to Geyser: | ||||
Geyser Investment Pte Ltd | ||||
c/o GIC | ||||
000 Xxxxxxxx Xxxx | ||||
#00-00 Xxxxxxx Xxxxx | ||||
Xxxxxxxxx 000000 | ||||
Singapore | ||||
Facsimile: | 000-00-0000-0000 | |||
Attention: | Ng Xxx Xxx | |||
E-mail: | xxxxxxxx@xxx.xxx.xx | |||
with a copy to: | ||||
Geyser Investment Pte Ltd | ||||
c/o GIC Special Investments Pte. Ltd. | ||||
000 Xxxxxxxxx Xxxxx, Xxxxx 000 | ||||
Xxxxxxx Xxxx, XX 00000 | ||||
Facsimile: | (000) 000-0000 | |||
Attention: | Xxx Xxx Xxxx and Soo Yar Ping | |||
E-mail: | xxxxxxxxxx@xxx.xxx.xx and xxxxxxxxxx@xxx.xxx.xx | |||
and with a copy to: | ||||
Xxxxx Day | ||||
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx | ||||
Xxx Xxxxxxxxx, XX 00000-0000 | ||||
Facsimile: | (000) 000-0000 | |||
Attention: | Xxxxxxx X. Xxxxx | |||
E-mail: | xxxxxx@xxxxxxxx.xxx |
- 34 -
If to Capstone: | ||||
Capstone Equity Investors LLC | ||||
0 Xxxx 00xx Xxxxxx | ||||
Xxx Xxxx, Xxx Xxxx 00000 | ||||
Facsimile: | (000) 000-0000 | |||
Attention: | Xxxx Xxxxxx | |||
E-mail: | xxxxx@xxx.xxx |
11.4 Binding Effect, Etc. Except for the Company Memorandum of Association, the Company Articles of Association, the Management Shareholder Agreement, the Capstone Shareholder Agreement, the Securities Subscription Agreement, the Luxco Securities Subscription Agreement and the Registration Rights Agreement dated as of the Original Agreement Effective Date among the Company, the Sponsors and certain other Persons (as amended from time to time, the “Registration Rights Agreement”), this Agreement constitutes the entire agreement of the parties with respect to its subject matter, supersedes all prior or contemporaneous oral or written agreements or discussions with respect to such subject matter, including the term sheet dated August 14, 2005 among the Company, Temasek, Geyser and certain entities affiliated with KKR and Silver Lake, and shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, representatives, successors and permitted assigns. Except as otherwise expressly provided herein, no holder party hereto may assign any of its respective rights or delegate any of its respective obligations under this Agreement without the prior written consent of each of the Sponsors, and any attempted assignment or delegation in violation of the foregoing shall be null and void.
- 35 -
it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any current or future officer, agent or employee of any shareholder or any current or future member of any Shareholder or any current or future director, officer, employee, partner, shareholder, holder of beneficial interest or member of any Shareholder or of any Affiliate or assignee thereof, as such, for any obligation of any Shareholder under this Agreement or any documents or instruments delivered in connection with this Agreement for any claim based on, in respect of or by reason of such obligations or their creation.
- 36 -
the payment by the Company, and the receipt by certain Affiliates of KKR and SLP, of the amounts provided for by the Advisory Agreement; provided, however, no amendment to the Advisory Agreement that materially increases the financial benefits payable to KKR, Silver Lake or both thereunder shall be entered into without the prior written approval of a majority of the Company’s disinterested directors or a majority in interest of the Company’s disinterested shareholders.
- 37 -
PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE OR ACTION, CLAIM, CAUSE OF ACTION OR SUIT (IN CONTRACT, TORT OR OTHERWISE), INQUIRY, PROCEEDING OR INVESTIGATION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE TRANSACTIONS CONTEMPLATED HEREBY, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING. EACH PARTY HERETO ACKNOWLEDGES THAT IT HAS BEEN INFORMED BY THE OTHER PARTIES HERETO THAT THIS SECTION 12.3 CONSTITUTES A MATERIAL INDUCEMENT UPON WHICH THEY ARE RELYING AND WILL RELY IN ENTERING INTO THIS AGREEMENT. ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 12.3 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
* * Signature pages follow * *
- 38 -
COMPANY: | ||
AVAGO TECHNOLOGIES LIMITED | ||
By: | /s/ Xxxx X. Xxx | |
Name: | Xxxx X. Xxx | |
Title: | Chief Executive Officer |
Signature Page to Second Amended and Restated Shareholder Agreement for
Avago Technologies Limited
SPONSORS: | ||
BALI INVESTMENTS S.À X.X. | ||
By: | /s/ Xxxxx X. Xxxxxxxx | |
Name: | Xxxxx X. Xxxxxxxx | |
Title: | Manager |
Signature Page to Second Amended and Restated Shareholder Agreement for
Avago Technologies Limited
SILVER LAKE PARTNERS II CAYMAN, L.P. | ||
By: | Silver Lake Technology Associates II Cayman, L.P., its General Partner | |
By: | Silver Lake (Offshore) AIV XX XX, Ltd., its General Partner | |
By: | /s/ Xxxxx X. Xxxxxxxx | |
Name: | Xxxxx X. Xxxxxxxx | |
Title: | Director | |
SILVER LAKE TECHNOLOGY INVESTORS II CAYMAN, L.P. | ||
By: | Silver Lake (Offshore) AIV XX XX, Ltd., its General Partner | |
By: | /s/ Xxxxx X. Xxxxxxxx | |
Name: | Xxxxx X. Xxxxxxxx | |
Title: | Director |
Signature Page to Second Amended and Restated Shareholder Agreement for
Avago Technologies Limited
KKR MILLENNIUM FUND (OVERSEAS), LIMITED PARTNERSHIP | ||
By: | KKR Associates Millennium (Overseas), Limited Partnership, its General Partner | |
By: | KKR Millennium (Overseas), Limited, its General Partner | |
By: | /s/ Xxxxx X. Xxxxxx Xx. | |
Name: | Xxxxx X. Xxxxxx Xx. | |
Title: | Director | |
KKR EUROPEAN FUND, LIMITED PARTNERSHIP | ||
By: | KKR Associates Europe, Limited Partnership, its General Partner | |
By: | KKR Europe Limited, its General Partner | |
By: | /s/ Xxxxx X. Xxxxxx Xx. | |
Name: | Xxxxx X. Xxxxxx Xx. | |
Title: | Director | |
KKR EUROPEAN FUND II, LIMITED PARTNERSHIP | ||
By: | KKR Associates Europe II, Limited Partnership, its General Partner | |
By: | KKR Europe II Limited, its General Partner | |
By: | /s/ Xxxxx X. Xxxxxx Xx. | |
Name: | Xxxxx X. Xxxxxx Xx. | |
Title: | Director | |
KKR PARTNERS (INTERNATIONAL), LIMITED PARTNERSHIP | ||
By: | KKR 1996 Overseas, Limited | |
By: | /s/ Xxxxx X. Xxxxxx Xx. | |
Name: | Xxxxx X. Xxxxxx Xx. | |
Title: | Director |
Signature Page to Second Amended and Restated Shareholder Agreement for
Avago Technologies Limited
AVAGO INVESTMENT PARTNERS, LIMITED PARTNERSHIP | ||
By: | Avago Investment G.P., Limited, its General Partner | |
By: | /s/ Xxxx X Xxxxxxx | |
Name: | Xxxx X Xxxxxxx | |
Title: | KKR Officer | |
By: | /s/ Xxxxxxx X. Xxx | |
Name: | Xxxxxxx X. Xxx | |
Title: | SLP Officer |
Signature Page to Second Amended and Restated Shareholder Agreement for
Avago Technologies Limited
Schedule I
AVAGO TECHNOLOGIES LIMITED
Sponsor Ownership of Shares
Shareholder | Capital Contribution | Number of Ordinary Shares | |||
Sponsors | |||||
Bali Investments S.à x.x. | $ | 863,382,010 | 172,676,402 | ||
Silver Lake Partners II Cayman, L.P. | $ | 392,550,720 | 78,510,144 | ||
Silver Lake Technology Investors II Cayman, L.P. | $ | 1,115,970 | 223,194 | ||
Integral Capital Partners VII, L.P. | $ | 6,748,865 | 1,349,773 | ||
KKR Millennium Fund (Overseas), Limited Partnership | $ | 88,913,505 | 17,782,701 | ||
KKR European Fund, Limited Partnership | $ | 177,038,700 | 35,407,740 | ||
KKR European Fund II, Limited Partnership | $ | 118,742,725 | 23,748,545 | ||
KKR Partners (International), Limited Partnership | $ | 15,720,245 | 3,144,049 | ||
Avago Investment Partners, Limited Partnership | $ | 60,618,185 | 12,123,637 | ||
Capstone Equity Investors LLC | $ | 1,933,090 | 386,618 | ||
Seletar Investments Pte. Ltd. | $ | 113,354,585 | 22,670,917 | ||
Geyser Investment Pte Ltd | $ | 75,569,720 | 15,113,944 | ||
TOTAL | $ | 1,052,306,310 | 210,461,263 |