EXHIBIT 4.2
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT, dated as of [-], 2003 (this "Agreement"),
is entered into among Crystal Decisions, Inc. (the "Company"), New SAC ("New
SAC"), Silver Lake Technology Investors Cayman, L.P., Silver Lake Investors
Cayman, L.P., Silver Lake Partners Cayman, L.P., (collectively, "Silver Lake"),
SAC Investments, L.P. ("TPG"), August Capital III, L.P. ("August"), X.X. Xxxxxx
Partners (BHCA), L.P. ("X.X. Xxxxxx"), GS Capital Partners III, L.P., GS Capital
Partners III Offshore, L.P., Xxxxxxx, Xxxxx & Co. Verwaltungs GmbH, Stone Street
Fund 0000 X.X., Xxxxxx Xxxxxx Special Opportunities Fund 2000, L.P.
(collectively, "GS"), Staenberg Venture Partners II, L.P., Staenberg Seagate
Partners, LLC (collectively, "Staenberg"), Integral Capital Partners V, L.P.,
Integral Capital Partners V Side Fund, L.P. (collectively, "Integral") and the
individuals listed on the signature pages hereto. Each of the entities listed
above other than the Company and each of the individuals listed on the signature
pages hereto are sometimes referred to individually as a "Stockholder" and
together as the "Stockholders."
RECITALS:
A. The Company, a subsidiary of New SAC, and New SAC are proposing to
sell shares of the common stock, par value $0.001 per share (the "Shares"), of
the Company to the public in an initial Public Offering.
B. As of [-], 2003, New SAC has an aggregate of [11,416,152.39] voting
and non-voting ordinary shares (collectively, the "Ordinary Shares")
outstanding, and the ownership of such shares is as follows: Silver Lake holds
3,628,999 of the outstanding Ordinary Shares; TPG holds 2,520,000 of the
outstanding Ordinary Shares; August holds 1,300,000 of the outstanding Ordinary
Shares; Integral holds 191,000 of the outstanding Ordinary Shares; X.X. Xxxxxx
holds 750,000 of the outstanding Ordinary Shares; GS holds 250,000 of the
outstanding Ordinary Shares; Staenberg holds 100,000 of the outstanding Ordinary
Shares; and the remainder of the outstanding Ordinary Shares are held by certain
management employees of the Company and other individuals.
C. After the completion of the Company's initial Public Offering, it is
expected that New SAC will own approximately [-]% of the Company's issued and
outstanding Shares, which may be distributed to the other Stockholders on the
terms and conditions set forth herein.
D. Each of the Stockholders is a party to the New SAC Shareholders
Agreement, which grants to the Stockholders certain rights, and imposes certain
obligations, with respect to their ownership of shares of New SAC.
E. The Stockholders wish to provide for certain matters relating to
their respective current and future holdings of Shares and the governance of the
Company, including an agreement as to the manner in which they will exercise (or
refrain from exercising) their rights under the New SAC Shareholders Agreement
upon the consummation of the Company's initial Public Offering.
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NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
ARTICLE I. INTRODUCTORY MATTERS
1.1. Defined Terms.
In addition to the terms defined elsewhere herein, the following terms
have the following meanings when used herein with initial capital letters:
"AAA" has the meaning given that term in Section 5.12 of this
Agreement.
"Additional Director" means a Director who is nominated by the
Company's nominating and corporate governance committee and approved by a
majority of the Board.
"Affiliate" has the meaning given that term in Rule 405 promulgated
under the Securities Act; provided that officers, Directors or employees of the
Company will not be deemed to be Affiliates of a stockholder of the Company for
purposes hereof solely by reason of being officers, Directors or employees of
the Company.
"Agreement" means this Agreement, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with the
terms hereof.
"Assumption Agreement" means a writing substantially in the form of
Exhibit A hereto whereby a Permitted Transferee or other Transferee pursuant to
Section 2.4 becomes a party to, and agrees to be bound to the same extent as its
Transferor by, the terms of this Agreement.
"Board" means the Board of Directors of the Company.
"Business Day" means a day other than a Saturday, Sunday, federal or
New York or California state holiday or other day on which commercial banks in
New York City or San Francisco are authorized or required by law to close.
"Chief Executive Officer" has the meaning given that term in Section
4.1(a) of this Agreement.
"Company" means Crystal Decisions, Inc., a corporation organized and
existing under the laws of the State of Delaware.
"Demand Registration" has the meaning given that term in Section
3.2(a) of this Agreement.
"Determination Date" has the meaning given that term in Section 4.2(b)
of this Agreement.
"Director" means any member of the Board.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder, as the same may be amended
from time to time.
"Holder" has the meaning given that term in Section 3.6(a) of this
Agreement.
"Indemnified Parties" has the meaning given that term in Section 3.6(a)
of this Agreement.
"Initial Share Holding Period" has the meaning given to that term in
Section 2.1(a) of this Agreement.
"Initiating Holder" has the meaning given that term in Section 3.1(a)
of this Agreement.
"Legend" has the meaning given that term in Section 2.1(h) of this
Agreement.
"Management Shareholders" means, collectively, the parties identified
on the signature pages of the Management Shareholders Agreement as "Management
Shareholders" and each other individual who from time to time executes a Joinder
Agreement as contemplated by Section 7.2 of the Management Shareholders
Agreement.
"Management Shareholders Agreement" means that certain Management
Shareholders Agreement, dated as of November 22, 2000, among New SAC and the
Management Shareholders that are parties thereto.
"New SAC Designee" has the meaning given that term in Section 4.1(a) of
this Agreement.
"New SAC Shareholders Agreement" means that certain Shareholders
Agreement, dated as of November 22, 2000, among New SAC, Silver Lake, TPG,
August, X.X. Xxxxxx, GS, Xxxxxxxxx, Integral and the individuals listed on the
signature pages thereto.
"Permitted Transferee" means, in the case of any Stockholder, (A) any
controlled Affiliate (other than an individual) of such Stockholder, any
Affiliate (other than an individual) which is under common control with such
Stockholder or any Affiliate (other than an individual) which controls such
Stockholder (which, in the case of X.X. Xxxxxx, shall include any investment
fund managed by a controlled Affiliate of X.X. Xxxxxx Xxxxx & Co.), (B) any
general or limited partner, director, officer, managing or non-managing member
or employee of such Stockholder or controlled Affiliate of such Stockholder
(including, in the case of Silver Lake and TPG, the general or limited partners
of the general and limited partners of such Stockholders), (C) the heirs,
executors, administrators, testamentary trustees, legatees or beneficiaries of
any of the individuals referred to in clause (B), (D) for estate planning
purposes, any trust, the beneficiaries of which include only (1) such
Stockholder, (2) Permitted Transferees referred to in clauses (A), (B) and (C)
and (3) spouses and lineal descendants of Permitted Transferees referred to in
clause (B), and (E) a corporation, partnership, limited liability company or
similar entity, a majority of the equity of which is owned and controlled by
such Stockholder and/or Permitted Transferees referred to in clauses (A), (B),
(C) and (D).
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"Person" means any individual, corporation, limited liability company,
partnership, trust, joint stock company, business trust, unincorporated
association, joint venture, governmental authority or other legal entity of any
nature whatsoever.
"Proposed Sale" has the meaning given that term in Section 2.3(a) of
this Agreement.
"Proposed Transferee" has the meaning given that term in Section 2.3(a)
of this Agreement.
"Public Offering" means the sale of any class of common stock of the
Company or equivalent securities to the public pursuant to an effective
registration statement (other than a registration statement on Form S-4 or S-8
or any similar or successor form) filed under the Securities Act.
"Registrable Securities" means (i) any Shares held by a Stockholder or
any Permitted Transferees, (ii) any Shares issued as (or issuable upon the
conversion or exercise of any warrant, right, option or other convertible
security which is issued as) a dividend, stock split or other distribution,
recapitalization or reclassification with respect to, or in exchange for, or in
replacement of, such Shares, (iii) any Shares or any security convertible into,
or exchangeable or exercisable for, Shares which may be issued or distributed in
respect thereof by way of a stock dividend, stock split or other distribution,
recapitalization or reclassification, (iv) any Shares held by Management
Shareholders that were received directly from New SAC and not acquired pursuant
to an exercise of options and (v) any Shares held by the original parties to the
New SAC Shareholders Agreement who are not parties to this Agreement. For
purposes of this Agreement, with respect to any Stockholder, any Registrable
Securities held by such Stockholder will cease to be Registrable Securities when
(A) a registration statement covering such Registrable Securities has been
declared effective and such Registrable Securities have been disposed of
pursuant to such effective registration statement, (B) such Registrable
Securities shall have been offered and sold pursuant to Rule 144 (or any similar
provision then in effect) under the Securities Act, (C) all Registrable
Securities held by such Stockholder are eligible for transfer to the public
pursuant to Rule 144 (or any similar provision then in effect) under the
Securities Act, without restriction as to manner of sale or amount sold, (D)
such Registrable Securities are sold by a Person in a transaction in which
rights under the provisions of this Agreement are not assigned in accordance
with this Agreement or (E) such Registrable Securities cease to be outstanding.
"Registration Expenses" means any and all expenses incident to the
performance by the Company of its obligations under Sections 3.1 and 3.2,
including without limitation (i) all SEC, stock exchange, or National
Association of Securities Dealers, Inc. (the "NASD") registration and filing
fees (including, if applicable, the fees and expenses of any "qualified
independent underwriter," as such term is defined in Rule 2720 of the NASD, and
of its counsel), (ii) all fees and expenses of complying with securities or blue
sky laws (including fees and disbursements of counsel for the underwriters in
connection with blue sky qualifications of the Registrable Securities), (iii)
all printing, messenger and delivery expenses, (iv) all fees and expenses
incurred in connection with the listing of the Registrable Securities on any
securities exchange and all rating agency fees, (v) the fees and disbursements
of counsel for the Company and of its independent public accountants, including
the expenses of any special audits and/or "cold
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comfort" letters required by or incident to such performance and compliance,
(vi) any fees and disbursements of underwriters customarily paid by the issuers
or sellers of securities, including liability insurance if the Company so
desires or if the underwriters so require, and the reasonable fees and expenses
of any special experts retained in connection with the requested registration,
but excluding underwriting discounts and commissions and transfer taxes, if any,
(vii) the reasonable out-of-pocket expenses of not more than one law firm
incurred by all the Stockholders and their Permitted Transferees in connection
with any registration of Registrable Securities, and (viii) the costs and
expenses of the Company relating to analyst and investor presentations or any
"road show" undertaken in connection with any registration and/or marketing of
the Registrable Securities; provided that nothing in this clause (viii) shall
obligate the Company to engage or participate in any such presentations or road
show.
"Registration Rights Holders" means, collectively, the Stockholders and
their Permitted Transferees and also, for purposes of Section 3.1 only, (i) the
Management Shareholders and (ii) the parties to the New SAC Shareholders
Agreement who are not parties to this Agreement.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder, as the same may be amended from
time to time.
"Selling Holder" has the meaning given that term in Section 2.3 of this
Agreement.
"Shares" means, with respect to any stockholder of the Company, the
common stock, par value $0.001 per share, of the Company, whether now owned or
hereafter acquired (including upon exercise of options, warrants, rights,
including preemptive rights, or otherwise), held by such stockholder other than
shares acquired in a Public Offering or in the public market after the initial
Public Offering of the Company.
"Silver Lake Designee" has the meaning given that term in Section
4.1(a) of this Agreement.
"Special Audit" means an audit of the Company other than the regular
audit conducted by the Company at the end of its fiscal year.
"Stockholder" has the meaning given that term in the recitals to this
Agreement.
"Tagging Stockholder" has the meaning given that term in Section 2.3(a)
of this Agreement. "Target" has the meaning given that term in Section
4.2(b)(ii) of this Agreement.
"Target" has the meaning given that term in Section 4.2(b)(ii) of this
Agreement.
"TPG Designee" has the meaning given that term in Section 4.1(a) of
this Agreement.
"Transfer" means, with respect to any Share (or direct or indirect
economic or other interest therein), a transfer, sale, assignment, pledge,
hypothecation or other disposition, whether directly or indirectly (pursuant to
the creation of a derivative security or otherwise), the grant of an option or
other right or the imposition of a restriction on disposition or voting or by
operation
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of law. When used as a verb, "Transfer" shall have the correlative meaning. In
addition, "Transferred" and "Transferee" shall have the correlative meanings.
1.2. Construction.
The language used in this Agreement will be deemed to be the language
chosen by the parties to express their mutual intent, and no rule of strict
construction will be applied against any party. Unless the context otherwise
requires: (a) "or" is disjunctive but not exclusive, (b) words in the singular
include the plural, and in the plural include the singular, and (c) the words
"hereof", "herein" and "hereunder" and words of similar import when used in this
Agreement refer to this Agreement as a whole and not to any particular provision
of this Agreement, and Section and Exhibit references are to this Agreement
unless otherwise specified.
ARTICLE II. TRANSFERS; CERTAIN DISTRIBUTIONS
2.1. Limitations on Transfer.
(a) Unless Silver Lake, TPG and Xxxxxxx X. Xxxxx each consents in
writing, New SAC may not Transfer any Shares (including Transfers contemplated
by Section 2.2) prior to the date 18 months following the date of the initial
Public Offering of the Shares (such period, the "Initial Share Holding Period").
(b) From the end of the Initial Share Holding Period until the
fourth anniversary of the date of the initial Public Offering by the Company,
either Silver Lake or TPG may request in writing that all or a portion of the
Shares held by New SAC be distributed to the shareholders of New SAC in
accordance with the Memorandum and Articles of Association of New SAC. A copy of
any such request shall be delivered to each of the other Stockholders
contemporaneously with the delivery of such request to the Company. During such
period, if either Silver Lake or TPG requests in writing that New SAC distribute
a portion of its Shares, within 15 days of New SAC's receipt of such request the
other may request that New SAC increase the number of Shares to be so
distributed. Upon the receipt of any such request to distribute Shares, New SAC
shall take all actions necessary to ensure that any such distribution takes
place as promptly as practicable.
(c) After the fourth anniversary of the date of the initial Public
Offering of the Company, any of Silver Lake, TPG, August, X.X. Xxxxxx, GS,
Staenberg or Integral may request that New SAC distribute all, but not less than
all, of its remaining Shares pro rata to the shareholders of New SAC. Upon the
receipt of any such request to distribute Shares, New SAC shall use all
commercially reasonable efforts to take all actions necessary to ensure that any
such distribution takes place as promptly as practicable.
(d) Notwithstanding anything to the contrary in this Section 2.1, in
no event shall New SAC be required to make more than one distribution of Shares
in any three-month period.
(e) After the Initial Share Holding Period, Silver Lake, TPG or
August may demand that the Company effect the registration under the Securities
Act of all or a portion of
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the Shares held by New SAC, consummate such sale, and distribute the proceeds of
such sale pro rata to the shareholders of New SAC; provided that Silver Lake,
TPG or August may exercise its demand right under this Section 2.1(e) only if at
the time of such exercise it would be entitled to exercise a demand pursuant to
the terms of Section 3.2(a)(ii). Any party exercising its rights under this
Section 2.1(e) shall be deemed to have exercised a demand for its own account
and the number of demand requests that such party is entitled to pursuant to
Section 3.2 shall be reduced by one. The Demand Registration procedures set
forth in Sections 3.2, 3.3, 3.4 and 3.5 shall apply to any demand request made
pursuant to this Section 2.1(e).
(f) Stockholders may Transfer Shares only in accordance with, and
subject to the applicable provisions of, both Article II and Article III hereof.
(g) In the event of any purported Transfer by a Stockholder of any
Shares in violation of the provisions of this Agreement, such purported Transfer
will be void and of no effect, and the Company will not give effect to such
Transfer.
(h) Each certificate representing Shares held by a Stockholder,
including, without limitation, New SAC, will bear a legend on the face thereof
substantially to the following effect (with such additions thereto or changes
therein as the Company may be advised by counsel are required by law or
necessary to give full effect to this Agreement, the "Legend"):
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
STOCKHOLDERS AGREEMENT AMONG CRYSTAL DECISIONS, INC., NEW SAC AND
THE STOCKHOLDERS PARTY THERETO, DATED AS OF [-], 2003, AS AMENDED
AND SUPPLEMENTED FROM TIME TO TIME IN ACCORDANCE WITH THE TERMS
THEREOF, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF CRYSTAL
DECISIONS, INC. THE STOCKHOLDERS AGREEMENT CONTAINS, AMONG OTHER
THINGS, CERTAIN PROVISIONS RELATING TO THE VOTING AND TRANSFER OF
THE SHARES SUBJECT TO THE AGREEMENT. NO TRANSFER, SALE, ASSIGNMENT,
PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE, DIRECTLY OR INDIRECTLY, MAY BE MADE
EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SUCH STOCKHOLDERS
AGREEMENT. THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE OF THIS
CERTIFICATE, AGREES TO BE BOUND BY ALL OF THE PROVISIONS OF SUCH
STOCKHOLDERS AGREEMENT."
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THEY HAVE BEEN
REGISTERED UNDER THAT ACT OR AN EXEMPTION FROM REGISTRATION IS
AVAILABLE."
The Legend will be removed by the Company, with respect to any certificate
representing Shares, by the delivery of substitute certificates without such
Legend in the event of a Transfer permitted by this Agreement and in which the
Transferee is not required to enter into an Assumption Agreement pursuant to
Section 2.4; provided, however, that the second paragraph of the Legend will
only be removed if at such time it is no longer required for purposes of
applicable securities laws.
2.2. Transfer to Permitted Transferees.
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(a) Subject to the limitations set forth in Section 2.1, any
Stockholder may Transfer any or all of the Shares held by it to any Permitted
Transferee of such Stockholder who duly executes and delivers an Assumption
Agreement, provided that such Transfer shall not be effective unless and until
the Company shall have been furnished with information reasonably satisfactory
to it demonstrating that such Transfer is exempt from or not subject to the
provisions of Section 5 of the Securities Act and any other applicable
securities laws.
(b) Each Permitted Transferee of any Stockholder to which Shares are
transferred shall, and such Stockholder shall cause such Permitted Transferee
to, transfer back to such Stockholder (or to another Permitted Transferee of
such Stockholder) any Shares it owns prior to such Permitted Transferee ceasing
to be a Permitted Transferee of such Stockholder.
(c) This Section 2.2 shall not apply to the grant by X.X. Xxxxxx of
a participation interest to one or more other investment funds managed by a
controlled Affiliate of X.X. Xxxxxx Chase & Co. without change in record
ownership.
2.3. Tag-Along Rights.
(a) So long as this Agreement remains in effect, in the case of a
proposed Transfer of Shares in excess of [-] [NOTE: to equal 3% of the
outstanding Crystal shares post-IPO] of the issued and outstanding Shares (as
adjusted for any dividend, stock split or other distribution, recapitalization
or reclassification with respect to, or in exchange for, or in replacement of,
such Shares) in a single transaction or related series of transactions by Silver
Lake, TPG or August (a "Selling Holder") (other than (i) pursuant to Section 2.2
hereof, (ii) following the initial Public Offering by the Company pursuant to
the exercise of rights set forth in Article III or (iii) in a bona fide sale to
the public pursuant to Rule 144 under the Securities Act) (a "Proposed Sale"),
Silver Lake, TPG, August or Integral (each of such Stockholders who exercises
their rights under this Section 2.3(a), a "Tagging Stockholder") shall have the
right to require the proposed Transferee (a "Proposed Transferee") to purchase
from such Tagging Stockholder up to the number of Shares of the same class
proposed to be Transferred equal to the product (rounded up to the nearest whole
Share) of (i) the quotient determined by dividing (A) the aggregate number of
Shares of such class owned by such Tagging Stockholder by (B) the aggregate
number of Shares of such class owned by the Selling Holder and all Tagging
Stockholders and (ii) the total number of Shares of such class proposed to be
directly or indirectly Transferred to the Proposed Transferee in the Proposed
Sale, at the same price per Share and upon the same terms and conditions
(including, without limitation, time of payment and form of consideration) as to
be paid and given to the Selling Holder; provided that in order to be entitled
to exercise its right to sell Shares to the Proposed Transferee pursuant to this
Section 2.3, each Tagging Stockholder must agree to make to the Proposed
Transferee the same representations, warranties, covenants, indemnities and
agreements as the Selling Holder agrees to make in connection with the Proposed
Sale and agree to the same conditions to the Proposed Sale as the Selling Holder
agrees (except that, in the case of representations, warranties, conditions,
covenants, indemnities and agreements pertaining specifically to the Selling
Holder, each Tagging Stockholder shall make comparable representations,
warranties, covenants, indemnities and agreements and shall agree to comparable
conditions, in each case to the extent applicable and pertaining specifically to
itself and only to itself); provided that all representations, warranties,
covenants, indemnities and agreements (other than those referred to
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in the immediately preceding exception) shall be made by the Selling Holder and
each Tagging Stockholder severally and not jointly and that any liability to the
Selling Holder and the Tagging Stockholders thereunder shall be borne by each of
them on a pro rata basis determined according to the number of Shares sold by
each of them. Each Tagging Stockholder will be responsible for its proportionate
share of the costs of the Proposed Sale to the extent not paid or reimbursed by
the Proposed Transferee or the Company.
(b) The Selling Holder will give notice to each Tagging Stockholder
of each Proposed Sale not later than five days after the execution of the
definitive agreement relating to the Proposed Sale, setting forth the number of
Shares proposed to be so Transferred, the name and address of the Proposed
Transferee, the proposed amount and form of consideration (and if such
consideration consists in part or in whole of property other than cash, the
Selling Holder will provide such information, to the extent reasonably available
to the Selling Holder, relating to such non-cash consideration as the Tagging
Stockholders together may reasonably request in order to evaluate such non-cash
consideration) and other terms and conditions of payment offered by the Proposed
Transferee. The Selling Holder will deliver or cause to be delivered to each
Tagging Stockholder copies of all transaction documents relating to the Proposed
Sale as the same become available. The tag-along rights provided by this Section
2.3 must be exercised by the Tagging Stockholders within five Business Days
following receipt of the notice required by the preceding sentence by delivery
of a written notice to the Selling Holder indicating its desire to exercise its
rights and specifying the number of Shares it desires to sell.
(c) If any Tagging Stockholder exercises its rights under Section
2.3(a), the closing of the purchase of the Shares with respect to which such
rights have been exercised will take place concurrently with the closing of the
sale of the Selling Holder's Shares to the Proposed Transferee.
2.4. Rights and Obligations of Transferees.
Any Transferee of Shares (other than Transferees who acquire Shares (i)
pursuant to Section 2.2, (ii) pursuant to the exercise of rights set forth in
Article III, (iii) following the initial Public Offering by the Company, in a
bona fide sale to the public pursuant to Rule 144 under the Securities Act or
(iv) a Public Offering) will be required, at the time of and as a condition to
such Transfer, to become a party to this Agreement by executing and delivering
an Assumption Agreement and, upon executing and delivering an Assumption
Agreement, will be treated as a Stockholder for all purposes hereof; provided,
however, that no such Transferee will acquire any rights (but will be subject to
the obligations) under Article IV unless it acquires all of the Shares held by
either Silver Lake and its Permitted Transferees, TPG and its Permitted
Transferees or August and its Permitted Transferees, as the case may be.
ARTICLE III. REGISTRATION RIGHTS
3.1. Piggyback Rights.
(a) If the Company at any time following the initial Public Offering
by the Company proposes to register any of the Shares under the Securities Act
(other than a registration on Form S-4 or S-8, or any successor or other forms
promulgated for similar
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purposes), whether or not for sale for its own account (including pursuant to
Section 3.3), it will, at each such time, give prompt written notice to the
Registration Rights Holders of its intention to do so and of the Registration
Rights Holders' rights under this Section 3.1. Upon the written request of any
Registration Rights Holder made within 14 days after the receipt of any such
notice (which request shall specify the number of Registrable Securities
intended to be disposed of by such Registration Rights Holder), the Company will
use its reasonable best efforts to effect the registration under the Securities
Act of all Registrable Securities which the Registration Rights Holders have so
requested to be registered; provided that (i) if, at any time after giving
written notice of its intention to register any securities and prior to the
effective date of the registration statement filed in connection with such
registration, the Company or any other holder of securities that initiated such
registration (an "Initiating Holder") shall determine for any reason not to
proceed with the proposed registration of the securities to be sold by it, the
Company or such Initiating Holder may, at its election, give written notice of
such determination to the Registration Rights Holders and, thereupon, the
Company shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from its obligation to
pay the Registration Expenses incurred in connection therewith), and (ii) if
such registration involves an underwritten offering, the Registration Rights
Holders of Registrable Securities requesting to be included in the registration
must sell their Registrable Securities to the underwriters selected by the
Company, on the same terms and conditions as apply to the Company or the
Initiating Holders, as the case may be, with, in the case of a combined primary
and secondary offering, such differences, including any with respect to
indemnification and liability insurance, as may be customary or appropriate in
combined primary and secondary offerings. If a registration requested pursuant
to this Section 3.1(a) involves an underwritten public offering, any
Registration Rights Holder requesting to be included in such registration may
elect, in writing prior to the effective date of the registration statement
filed in connection with such registration, not to register all or any portion
of such securities in connection with such registration. Nothing in this Section
3.1(a) shall operate to limit the right of a Registration Rights Holder to (i)
request the registration of Registrable Securities that consist of Shares
issuable upon conversion, exercise or exchange of convertible, exercisable or
exchangeable securities, as applicable, held by such Registration Rights Holder
notwithstanding the fact that at the time of request such Registration Rights
Holder holds only such securities and not the underlying Shares or (ii) request
the registration at one time of Registrable Securities that consist of both
Shares and securities convertible into or exercisable or exchangeable for
Shares.
(b) The Company will pay all Registration Expenses in connection
with each registration of Registrable Securities requested pursuant to this
Section 3.1.
(c) If a registration pursuant to this Section 3.1 involves an
underwritten offering and the managing underwriter advises the Company in
writing that, in its opinion, the number of Registrable Securities and other
securities requested to be included in such registration exceeds the number
which can be sold in such offering, so as to be reasonably likely to have an
adverse effect on the price, timing or distribution of the securities offered in
such offering, then the Company will include in such registration (i) first,
100% of the securities, if any, the Company proposes to sell for its own
account, provided that the registration of Shares contemplated by this Section
3.1 was initiated by the Company with respect to shares intended to be
registered for sale for its own account, (ii) second, the number of securities
requested to be included by New SAC, if any, in such registration which in the
opinion of the managing
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underwriter, can be sold, without having the adverse effect referred to above,
and (iii) third, such number of Registrable Securities requested to be included
in such registration which, in the opinion of such managing underwriter, can be
sold without having the adverse effect referred to above, which number of
Registrable Securities shall be allocated pro rata among all such requesting
holders of Registrable Securities, based on the relative number of Registrable
Securities then held by each such requesting holder of Registrable Securities.
In the event that (i) the Company did not initiate the registration of
securities intended to be registered for sale for its own account and (ii) the
number of Registrable Securities and Shares of other holders, in each case
entitled to registration rights with respect to such Shares requested to be
included in such registration is less than the number which, in the opinion of
the managing underwriter, can be sold, the Company may include in such
registration securities it proposes to sell for its own account up to the number
of securities that, in the opinion of the underwriter, can be sold.
3.2. Demand Registration.
(a) At any time after the 180th day following the initial Public
Offering by the Company and, in the case of Silver Lake, TPG or August, after
New SAC has distributed Shares pursuant to Section 2.1, upon the written request
of any of New SAC, TPG, Silver Lake or August (a "Demand Party") requesting that
the Company effect the registration (a "Demand Registration") under the
Securities Act of all or part of such Demand Party's Registrable Securities and
specifying the amount and intended method of disposition thereof, the Company
will promptly give written notice of such requested registration to the other
holders of Registrable Securities and other holders of securities entitled to
notice of such registration and thereupon will, as expeditiously as possible,
file a registration statement to effect the registration under the Securities
Act of:
(i) such Registrable Securities which the Company has been so
requested to register by the Demand Party;
(ii) the Registrable Securities of other Registration Rights Holders
which the Company has been requested to register by written request given to the
Company within 14 days after the giving of such written notice by the Company
(which request shall specify the amount and intended method of disposition of
such securities);
all to the extent necessary to permit the disposition (in accordance with the
intended method thereof as aforesaid) of the Registrable Securities and such
other securities so to be registered; provided that the Company shall not be
required to effect the registration of Registrable Securities (i) at the request
of New SAC under this Section 3.2(a) on more than six occasions, (ii) at the
request of Silver Lake under this Section 3.2(a) or under Section 2.1(e) on more
than three occasions, (iii) at the request of TPG under this Section 3.2(a) or
under Section 2.1(e) on more than three occasions, or (iv) at the request of
August under this Section 3.2(a) or under Section 2.1(e) on more than one
occasion; provided, that the Company shall not be obligated to file a
registration statement relating to any registration request under this Section
3.2(a):
(x) within a period of 180 days (or such lesser period as the
managing underwriters in an underwritten offering may permit) after the
effective date of any other
12
registration statement relating to any registration request under this Section
3.2(a), Section 2.1(e) or relating to any registration effected under Section
3.1;
(y) if with respect thereto the managing underwriter, the SEC, the
Securities Act, or the form on which the registration statement is to be filed,
would require the conduct of a Special Audit, in which case the filing may be
delayed until the completion of such Special Audit (and the Company shall, upon
request of TPG, Silver Lake or August, as the case may be, use its reasonable
best efforts to cause such Special Audit to be completed expeditiously and
without unreasonable delay); or
(z) if the Company is in possession of material non-public
information and the Board determines in good faith that disclosure of such
information would not be in the best interests of the Company and its
stockholders, in which case the filing of the registration statement may be
delayed until the earlier of the second Business Day after such conditions shall
have ceased to exist and the 90th day after receipt by the Company of the
written request from TPG, Silver Lake or August, as the case may be, to register
Registrable Securities under this Section 3.2(a).
Nothing in this Section 3.2(a) shall operate to limit the right of a
Registration Rights Holder to (i) request the registration of Registrable
Securities that consist of Shares issuable upon conversion, exercise or exchange
of convertible, exercisable or exchangeable securities, as applicable, held by
such Registration Rights Holder notwithstanding the fact that at the time of
request such Registration Rights Holder holds only such securities and not the
underlying Shares or (ii) request the registration at one time of Registrable
Securities that consist of both Shares and securities convertible into or
exercisable or exchangeable for Shares.
(b) The Company will pay all Registration Expenses in connection
with each registration of Registrable Securities requested pursuant to this
Section 3.2.
(c) A registration requested pursuant to this Article III will not
be deemed to have been effected unless the registration statement filed by the
Company with the SEC in connection with such registration has been declared
effective by the SEC; provided that, if, within 180 days after it has become
effective, the offering of Registrable Securities pursuant to such registration
is interfered with by any stop order, injunction or other order or requirement
of the SEC or other governmental agency or court, then such registration will be
deemed not to have been effected.
(d) If a requested registration pursuant to this Section 3.2
involves an underwritten offering and regardless of whether the Company is
registering any securities therein, the Board shall have the right to select the
investment banker or bankers and managers to administer the offering, including
the lead managing underwriter.
(e) If a requested registration pursuant to this Section 3.2
involves an underwritten offering and the managing underwriter advises the
Company in writing that, in its opinion, the number of Registrable Securities
requested to be included in such registration exceeds the number which can be
sold in such offering, so as to be reasonably likely to have an adverse effect
on the price, timing or distribution of the securities offered in such offering,
then
13
the Company will include in such registration such number of Registrable
Securities requested to be included in such registration which, in the opinion
of such managing underwriter, can be sold without having the adverse effect
referred to above, which number shall be allocated pro rata among all such
holders of Registrable Securities requesting to be included in such registration
based on the relative number of Registrable Securities then held by each such
holder of Registrable Securities. In the event that the number of Registrable
Securities and Shares of other holders, in each case entitled to registration
rights with respect to such Shares requested to be included in such registration
is less than the number which, in the opinion of the managing underwriter, can
be sold, the Company may include in such registration securities it proposes to
sell for its own account up to the number of securities that, in the opinion of
the underwriter, can be sold.
(f) August agrees not to exercise any Demand Registration rights it
may have pursuant to Section 3.2 of the New SAC Shareholders Agreement without
first obtaining the written consent of each of Silver Lake and TPG. Each of
Silver Lake and TPG agree not to exercise any Demand Registration rights it may
have pursuant to Section 3.2 of the New SAC Shareholders Agreement without first
obtaining the written consent of TPG, in the case of Silver Lake, or Silver
Lake, in the case of TPG.
3.3. Form S-3 Registration.
If the Company receives from New SAC, Silver Lake, TPG or August a
written request or requests that the Company effect a registration on Form S-3
(or any successor to Form S-3) and any related qualification or compliance with
respect to all or a part of the Registrable Securities owned by such Stockholder
or Stockholders, the Company will:
(a) promptly give notice of the proposed registration, and any
related qualification or compliance, to the other Registration Rights Holders
who hold Registrable Securities; and
(b) as expeditiously as possible, effect such registration and all
such qualifications and compliances as may be so requested and as would permit
or facilitate the sale and distribution of all or such portion of such
Registration Rights Holder's or Registration Rights Holders' Registrable
Securities as are specified in such request, together with all or such portion
of the Registrable Securities of any other Registration Rights Holder or
Registration Rights Holders joining in such request as are specified in a
written request given within fourteen (14) days after receipt of such written
notice from the Company; provided, however, that the Company shall not be
obligated to effect any such registration, qualification or compliance pursuant
to this Section 3.3:
(i) if Form S-3 (or any successor form) is not available for such
offering by the Registration Rights Holders; or
(ii) if the Registration Rights Holders, together with the holders
of any other securities of the Company entitled to inclusion in such
registration, propose to sell Registrable Securities and such other securities
(if any) at an aggregate price to the public of less than $500,000; or
14
(iii) if the Company shall furnish to the Registration Rights
Holders a certificate signed by the chairman of the Board stating that in the
good faith judgment of the Board, it would not be in the best interests of the
Company for such Form S-3 Registration to be effected at such time, in which
event the Company shall have the right to defer the filing of the Form S-3
registration statement for a period of not more than ninety (90) days after
receipt of the request of the Registration Rights Holder or Registration Rights
Holders under this Section 3.3; provided, that such right to delay a request
shall be exercised by the Company not more than once in any twelve (12) month
period; or
(iv) if the Company has, within the twelve (12) month period
preceding the date of such request, already effected two (2) registrations on
Form S-3 for the Registration Rights Holders pursuant to this Section 3.3; or
(v) in any particular jurisdiction in which the Company would be
required to qualify to do business or to execute a general consent to service of
process in effecting such registration, qualification or compliance unless the
Company is already subject to service in such jurisdiction and except as may be
required by the Securities Act; or
(vi) if with respect thereto the managing underwriter, the SEC, the
Securities Act, or the form on which the registration statement is to be filed,
would require the conduct of a Special Audit, in which case the Company shall
have the right to defer the filing of the Form S-3 registration statement until
the completion of such Special Audit (and the Company shall, upon the request of
New SAC, TPG, Silver Lake or August, as the case may be, use its reasonable best
efforts to cause such Special Audit to be completed expeditiously and without
unreasonable delay).
(c) Subject to the foregoing, the Company shall file a Form S-3
registration statement covering the Registrable Securities and other securities
so requested to be registered as expeditiously as possible after receipt of the
request or requests of the Registration Rights Holders. Registrations effected
pursuant to this Section 3.3 shall not be counted as demands for registration or
registrations effected pursuant to Section 3.2.
(d) The Company will pay all Registration Expenses in connection
with each registration of Registrable Securities requested pursuant to this
Section 3.3.
3.4. Registration Procedures.
If and whenever the Company is required to file a registration
statement with respect to, or to use its reasonable best efforts to effect or
cause the registration of, any Registrable Securities under the Securities Act
as provided in this Agreement the Company will as expeditiously as possible:
(a) prepare and, in any event within 120 days after the end of the
period within which a request for registration may be given to the Company
pursuant to Section 3.2, file with the SEC a registration statement on an
appropriate form with respect to such Registrable Securities and use its
reasonable efforts to cause such registration statement to be declared effective
by the SEC; provided however, that the Company may discontinue any registration
of securities as to which it is the Initiating Party at any time prior to the
effective date of the
15
registration statement relating thereto (and, in such event, the Company shall
pay the Registration Expenses incurred in connection therewith); provided,
further, that not less than five (5) Business Days before filing a registration
statement or prospectus, or any amendments or supplements thereto, the Company
will furnish to counsel for the sellers of Registrable Securities covered by
such registration statement copies of all documents proposed to be filed, which
documents will be subject to the review and input of such counsel;
(b) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective for a period not
in excess of 270 days (unless such registration statement relates to an
underwritten Public Offering, in which event the registration statement shall
not be required to remain effective at the request of the Registration Rights
Holders for a period of in excess of 45 days) and to comply with the provisions
of the Securities Act and the Exchange Act with respect to the disposition of
all securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statement; provided that not less than
five (5) Business Days before filing a registration statement or prospectus, or
any amendments or supplements thereto, the Company will furnish to counsel for
the sellers of Registrable Securities covered by such registration statement
copies of all documents proposed to be filed, which documents will be subject to
the review and input of such counsel;
(c) furnish to each seller of such Registrable Securities such
number of copies of such registration statement and of each amendment and
supplement thereto (in each case including all exhibits filed therewith,
including any documents incorporated by reference), such number of copies of the
prospectus included in such registration statement (including each preliminary
prospectus and summary prospectus), in conformity with the requirements of the
Securities Act, and such other documents as such seller may reasonably request
in order to facilitate the disposition of the Registrable Securities by such
seller;
(d) use its reasonable efforts to register or qualify such
Registrable Securities covered by such registration in such jurisdictions as
each seller shall reasonably request, and do any and all other acts and things
which may be reasonably necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of the Registrable Securities
owned by such seller, except that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign corporation in any
jurisdiction where, but for the requirements of this subsection (d), it would
not be obligated to be so qualified, to subject itself to taxation in any such
jurisdiction or to consent to general service of process in any such
jurisdiction;
(e) use its reasonable best efforts to cause such Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the seller or sellers thereof to consummate the disposition of such
Registrable Securities;
(f) notify each seller of any such Registrable Securities covered by
such registration statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act within the appropriate period
mentioned in Section 3.4(b), of the
16
Company's becoming aware that the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing, and at the request of any such seller, prepare and furnish to
such seller a reasonable number of copies of an amended or supplemental
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing;
(g) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its security
holders, as soon as reasonably practicable (but not more than 18 months) after
the effective date of the registration statement, an earnings statement which
shall satisfy the provisions of Section 11(a) of the Securities Act;
(h) (i) use its reasonable best efforts to list such Registrable
Securities on any securities exchange on which the Shares are then listed if
such Registrable Securities are not already so listed and if such listing is
then permitted under the rules of such exchange; (ii) if such Registrable
Securities are convertible, exchangeable or exercisable into Shares, upon the
reasonable request of sellers of a majority of such Registrable Securities, use
its reasonable best efforts to list such securities and, if requested, the
Shares underlying such securities, notwithstanding that at the time of request
such sellers hold only such securities, on any securities exchange so requested,
if such Registrable Securities are not already so listed and if such listing is
then permitted under the rules of such exchange; and (iii) use its reasonable
efforts to provide a transfer agent and registrar for such Registrable
Securities covered by such registration statement not later than the effective
date of such registration statement;
(i) enter into such customary agreements (including an underwriting
agreement in customary form), which may include indemnification provisions in
favor of underwriters and other Persons in addition to, or in substitution for
the indemnification provisions hereof, and take such other actions as sellers of
a majority of shares of such Registrable Securities included in such
registration statement or the underwriters, if any, reasonably request in order
to expedite or facilitate the disposition of such Registrable Securities;
(j) obtain a "cold comfort" letter or letters from the Company's
independent public auditors in customary form and covering matters of the type
customarily covered by "cold comfort" letters as the seller or sellers of a
majority of shares of such Registrable Securities included in such registration
statement shall reasonably request;
(k) make available for inspection by any seller of such Registrable
Securities covered by such registration statement, by any underwriter
participating in any disposition to be effected pursuant to such registration
statement and by any attorney, accountant or other agent retained by any such
seller or any such underwriter, all pertinent financial and other records,
pertinent corporate documents and properties of the Company, and cause all of
the Company's officers, Directors and employees to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement;
17
(l) notify counsel for the holders of Registrable Securities
included in such registration statement and the managing underwriter or agent,
immediately, and confirm the notice in writing (i) when the registration
statement, or any post-effective amendment to the registration statement, shall
have been declared effective by the SEC, or any supplement to the prospectus or
any amendment to the prospectus shall have been filed, (ii) of the receipt of
any comments from the SEC, (iii) of any request of the SEC to amend the
registration statement or amend or supplement the prospectus or for additional
information, and (iv) of the issuance by the SEC of any stop order suspending
the effectiveness of the registration statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the registration statement for offering or sale in any
jurisdiction, or of the institution or threatening of any proceedings for any of
such purposes;
(m) use its reasonable best efforts to prevent the issuance of any
stop order suspending the effectiveness of the registration statement or of any
order preventing or suspending the use of any preliminary prospectus and, if any
such order is issued, to obtain the withdrawal of any such order at the earliest
possible moment;
(n) if requested by the managing underwriter or agent or any holder
of Registrable Securities covered by the registration statement, promptly
incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriter or agent or such holder reasonably
requests to be included therein, including, with respect to the number of
Registrable Securities being sold by such holder to such underwriter or agent,
the purchase price being paid therefor by such underwriter or agent and with
respect to any other terms of the underwritten offering of the Registrable
Securities to be sold in such offering (unless the Company, after consultation
with counsel, reasonably concludes that such information would be materially
misleading to prospective buyers in the Public Offering); and make all required
filings of such prospectus supplement or post-effective amendment as soon as
practicable after being notified of the matters incorporated in such prospectus
supplement or post-effective amendment;
(o) cooperate with the holders of Registrable Securities covered by
the registration statement and the managing underwriter or agent, if any, to
facilitate the timely preparation and delivery of certificates (not bearing any
restrictive legends) representing securities to be sold under the registration
statement, and enable such securities to be in such denominations and registered
in such names as the managing underwriter or agent, if any, or the Registration
Rights Holders that sellers may request;
(p) obtain for delivery to the holders of Registrable Securities
being registered and to the underwriter or agent an opinion or opinions from
counsel for the Company in customary form and in form, substance and scope
reasonably satisfactory to such holders, underwriters or agents and their
counsel; and
(q) cooperate with each seller of Registrable Securities and each
underwriter or agent participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings required
to be made with the NASD.
3.5. Other Registration-Related Matters.
18
(a) The Company may require any Person that is selling Shares in a
Public Offering pursuant to Sections 3.1, 3.2 or 3.3 to furnish to the Company
in writing such information regarding such Person and pertinent to the
disclosure requirements relating to the registration and the distribution of the
Registrable Securities which are included in such Public Offering as the Company
may from time to time reasonably request in writing.
(b) Each Registration Rights Holder agrees, severally and not
jointly, that, upon receipt of any notice from the Company of the happening of
any event of the kind described in Section 3.4(f), it will forthwith discontinue
disposition of Registrable Securities pursuant to the registration statement
covering such Registrable Securities until its receipt of the copies of the
amended or supplemented prospectus contemplated by Section 3.4(f) and, if so
directed by the Company, each Registration Rights Holder will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in their possession, of the prospectus covering such Registrable Securities
current at the time of receipt of such notice. In the event the Company gives
any such notice, the period for which the Company will be required to keep the
registration statement effective will be extended by the number of days during
the period from and including the date of the giving of such notice pursuant to
Section 3.4(f) to and including the date when each seller of Registrable
Securities covered by such registration statement has received the copies of the
supplemented or amended prospectus contemplated by Section 3.4(f).
(c) Each holder of Registrable Securities will, in connection with
an underwritten Public Offering of the Company's securities, upon the request of
the Company or of the underwriters managing any underwritten offering of the
Company's securities, agree in writing not to effect any sale, disposition or
distribution of Registrable Securities (other than those included in the Public
Offering) without the prior written consent of the managing underwriter for such
period of time commencing 7 days before and ending 30 days (or such earlier date
as the managing underwriter shall agree) after the effective date of such
registration. No Stockholder shall be released from such lock-up period by the
managing underwriter unless all of the Stockholders are so released.
3.6. Indemnification.
(a) In the event of any registration of any securities of the
Company under the Securities Act pursuant to Section 3.1, 3.2 or 3.3, the
Company hereby indemnifies and agrees to hold harmless, to the extent permitted
by law, the sellers of any Registrable Securities covered by such registration
statement (each a "Holder"), each Affiliate of such Holder and their respective
directors and officers, members or general and limited partners (and the
directors, officers, employees, affiliates and controlling Persons of any of the
foregoing), each other Person who participates as an underwriter in the offering
or sale of such securities and each other Person, if any, who controls such
Holder or any such underwriter within the meaning of the Securities Act
(collectively, the "Indemnified Parties"), against any and all losses, claims,
damages or liabilities, joint or several, and expenses to which such Indemnified
Party may become subject under the Securities Act, common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof, whether or not such Indemnified Party is a party
thereto) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which
19
such securities were registered under the Securities Act, any preliminary, final
or summary prospectus contained therein, or any amendment or supplement thereto,
or (ii) any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in light of the circumstances when they were made, and the Company
will reimburse such Indemnified Party for any legal or other expenses reasonably
incurred by it in connection with investigating or defending any such loss,
claim, liability, action or proceeding; provided that the Company will not be
liable to any Indemnified Party in any such case to the extent that any such
loss, claim, damage, liability (or action or proceeding in respect thereof) or
expense arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement,
in any such preliminary, final or summary prospectus, or any amendment or
supplement thereto in reliance upon and in conformity with written information
with respect to such Indemnified Party furnished to the Company by such
Indemnified Party expressly for use in the preparation thereof. Such indemnity
will remain in full force and effect regardless of any investigation made by or
on behalf of such Holder or any Indemnified Party and will survive the Transfer
of such securities by such Holder.
(b) The Company may require, as a condition to including any
Registrable Securities in any registration statement filed in accordance with
Section 3.1, 3.2 or 3.3 that the Company shall have received an undertaking
reasonably satisfactory to it from the Holder of such Registrable Securities or
any prospective underwriter to indemnify and hold harmless (in the same manner
and to the same extent as set forth in Section 3.6(a)) the Company, all other
Holders or any prospective underwriter, as the case may be, and any of their
respective Affiliates, directors, officers and controlling Persons, with respect
to any untrue statement in or omission from such registration statement, any
preliminary, final or summary prospectus contained therein, or any amendment or
supplement, if such untrue statement or omission was made in reliance upon and
in conformity with written information with respect to such Holder or
underwriter furnished to the Company by such Holder or underwriter expressly for
use in the preparation of such registration statement, preliminary, final or
summary prospectus or amendment or supplement, or a document incorporated by
reference into any of the foregoing. Such indemnity will remain in full force
and effect regardless of any investigation made by or on behalf of the Company
or any of the Holders, or any of their respective affiliates, directors,
officers or controlling Persons and will survive the Transfer of such securities
by such Holder. In no event shall the liability of any selling Holder of
Registrable Securities hereunder be greater in amount than the dollar amount of
the net proceeds actually received by such Holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation.
(c) Promptly after receipt by an Indemnified Party hereunder of
written notice of the commencement of any action or proceeding with respect to
which a claim for indemnification may be made pursuant to this Section 3.6, such
Indemnified Party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such action; provided that the failure of the Indemnified Party to give notice
as provided herein will not relieve the indemnifying party of its obligations
under Section 3.6(a) or 3.6(b), except to the extent that the indemnifying party
is actually prejudiced by such failure to give notice. In case any such action
is brought against an Indemnified Party, unless in such Indemnified Party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, the indemnifying party
will be
20
entitled to participate in and to assume the defense thereof, jointly
with any other indemnifying party similarly notified to the extent that it may
wish, with counsel reasonably satisfactory to such Indemnified Party, and after
notice from the indemnifying party to such Indemnified Party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
Indemnified Party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than reasonable costs of
investigation. If, in such Indemnified Party's reasonable judgment, having
common counsel would result in a conflict of interest between the interests of
such indemnified and indemnifying parties, then such Indemnified Party may
employ separate counsel reasonably acceptable to the indemnifying party to
represent or defend such Indemnified Party in such action, it being understood,
however, that the indemnifying party will not be liable for the reasonable fees
and expenses of more than one separate firm of attorneys at any time for all
such Indemnified Parties (and not more than one separate firm of local counsel
at any time for all such Indemnified Parties) in such action. No indemnifying
party will consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
of such claim or litigation.
(d) If the indemnification provided for hereunder from the
indemnifying party is unavailable to an Indemnified Party hereunder in respect
of any losses, claims, damages, liabilities or expenses referred to herein, then
the indemnifying party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages, liabilities or expenses in such proportion as
is appropriate to reflect the relative fault of the indemnifying party and
Indemnified Parties in connection with the actions which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
Indemnified Parties shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
Indemnified Parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party under this Section 3.6(d) as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such party in
connection with any investigation or proceeding. In no event shall the liability
of any selling Holder of Registrable Securities hereunder be greater in amount
than the dollar amount of the net proceeds actually received by such Holder upon
the sale of the Registrable Securities giving rise to such contribution
obligation.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 3.6(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
(e) Indemnification similar to that specified in this Section 3.6
(with appropriate modifications) shall be given by the Company and each seller
of Registrable
21
Securities with respect to any required registration or other qualification of
securities under any law or with any governmental entity other than as required
by the Securities Act.
(f) The obligations of the parties under this Section 3.6 will be in
addition to any liability which any party may otherwise have to any other party.
ARTICLE IV. CORPORATE GOVERNANCE MATTERS
4.1. Board of Directors.
(a) Directors of the Company shall be elected annually. After the
consummation of the initial Public Offering, the Board shall initially be
comprised of nine members, provided that the Board may elect by a resolution
(passed in accordance with the terms of Section 4.2(b) hereof) to increase the
size of the Board to ten members. The members of the Board shall consist of one
designee of Silver Lake (the "Silver Lake Designee"), one designee of TPG (the
"TPG Designee"), two designees of New SAC (each a "New SAC Designee") (who shall
initially be Xxxxxx X. Xxxxx and Xxxxxxx X. Xxxxx), four Additional Directors
(who shall initially be Xxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxxx
and Xxxx X. Xxxxxxxx) and the chief executive officer of the Company from time
to time serving (the "Chief Executive Officer"), provided that if the size of
the Board is increased to ten members, then the total number of Additional
Directors shall be increased to five. Members of the Board who are not required
to be designated by a Stockholder pursuant to the rights provided in this
Agreement shall be nominated and elected in accordance with the certificate of
incorporation and bylaws of the Company.
(b) A member of the Board designated by a Stockholder pursuant to
the rights provided in this Agreement may only be removed by such Stockholder.
Any other member of the Board may be removed with or without cause by vote of a
majority of the Stockholders of the Company.
If, following an election to the Board pursuant to this Section 4.1,
any Silver Lake Designee shall resign or be removed or be unable to serve for
any reason prior to the expiration of his or her term as a Director, Silver Lake
shall notify the Board in writing of a replacement Silver Lake Designee and each
of the Company and all of the Stockholders hereby agree to take such actions
provided for under the terms of the Shares held by them as will result in the
appointment of such Silver Lake Designee to the Board. If Silver Lake requests
that any Silver Lake Designee be removed as a Director (with or without cause)
by written notice thereof to the Company, then each of the Company and all of
the Stockholders shall take all actions provided for under the terms of the
Shares held by them necessary to effect such removal upon such request.
If, following an election to the Board pursuant to this Section 4.1,
any TPG Designee shall resign or be removed or be unable to serve for any reason
prior to the expiration of his or her term as a Director, TPG shall notify the
Board in writing of a replacement TPG Designee and each of the Company and all
of the Stockholders hereby agree to take such actions provided for under the
terms of the Shares held by them as will result in the appointment of such TPG
Designee to the Board. If TPG requests that any TPG Designee be removed as a
Director (with
22
or without cause) by written notice thereof to the Company, then each of the
Company and all of the Stockholders shall take all actions provided for under
the terms of the Shares held by them necessary to effect such removal upon such
request.
If, following an election to the Board pursuant to this Section 4.1,
any New SAC Designee shall resign or be removed or be unable to serve for any
reason prior to the expiration of his or her term as a Director, New SAC shall
notify the Board in writing of a replacement New SAC Designee and each of the
Company and all of the Stockholders hereby agree to take such actions provided
for under the terms of the Shares held by them as will result in the appointment
of such New SAC Designee to the Board. If New SAC requests that any New SAC
Designee be removed as a Director (with or without cause) by written notice
thereof to the Company, then each of the Company and all of the Stockholders
shall take all actions provided for under the terms of the Shares held by them
necessary to effect such removal upon such request.
If, following an election to the Board pursuant to this Section 4.1,
any Additional Director shall resign or be removed or be unable to serve for any
reason prior to the expiration of his or her term as a Director, the nominating
and corporate governance committee of the Company shall notify the Board in
writing of a replacement and, provided that such replacement Additional Director
satisfies all the criteria set forth in the definition of "Additional Director"
herein, each of the Company and all of the Stockholders hereby agree to take
such actions provided for under the terms of the Shares held by them as will
result in the appointment of such replacement Additional Director to the Board.
Any Director who is no longer designated by Silver Lake, TPG or New SAC
shall be designated instead by the other members of the Board and shall be
considered a "Board Designee" for all purposes hereunder. If any Board Designee
shall resign or be removed or be unable to serve for any reason prior to the
expiration of his or her term as a Director, then the nominating and corporate
governance committee of the Company will take such actions provided for under
the terms of the Shares as will result in the appointment to the Board of an
individual designated by the Board. If the Board requests that any Board
Designee be removed as a Director (with or without cause) by written notice
thereof to the Company, then each of the Company and each Stockholder shall take
all actions provided for under the terms of the Shares necessary to effect such
removal upon such request.
(c) The Company will pay all reasonable out-of-pocket expenses
incurred by the Directors in connection with their participation in meetings of
the Board (and committees thereof). Each of the Silver Lake Designee, the TPG
Designee and the New SAC Designees will receive the same compensation, in the
form of cash and options to purchase Shares, that the Company pays to its
Additional Directors, which amount will be determined by the Company and the
Board from time to time.
(d) Notwithstanding anything in this Agreement to the contrary, the
Board and all of the committees of the Board will operate in such a way to
permit the Company to comply with applicable law and maintain its listing on The
New York Stock Exchange or the NASDAQ National Market system, as applicable.
23
4.2. Actions by the Board of Directors.
(a) The Stockholders and the Company shall use their reasonable best
efforts to take all actions necessary (including amending the certificate of
incorporation and bylaws of the Company, if necessary) to provide that, for so
long as this Agreement is in effect, a quorum for any meeting of the Board shall
require the presence of (x) Directors constituting at least a majority of the
entire Board, and (y) at least two of the following four Directors: (i) the
Silver Lake Designee, (ii) the TPG Designee and (iii) the New SAC Designees.
Unless agreed to by unanimous consent of the Board in writing, subject to
applicable law, no action by the Board will be valid unless approved by a
majority of the Directors at a meeting properly convened at which a quorum is
present. The Company and the Stockholders shall use their reasonable best
efforts to take such further action to provide that the certificate of
incorporation and/or bylaws of the Company will provide that they may not be
amended by action of the Board unless such amendment is approved in the manner
set forth in the immediately preceding sentence. The Company and the
Stockholders shall take (or shall cause the Directors appointed by them to take)
such action as is necessary to cause (i) the Board to establish audit, strategic
and financial transactions, compensation and nominating and corporate governance
committees of the Board, the duties of which shall be determined by the Board,
(ii) the Silver Lake Designee to serve on the strategic and financial
transactions, compensation and nominating and corporate governance committees,
(iii) the TPG Designee to serve on the strategic and financial transactions and
nominating and corporate governance committees and (iv) the Chief Executive
Officer of the Company to serve as the Chairman of the strategic and financial
transactions committee. The Stockholders and the Company shall use their
reasonable best efforts to take all necessary action to cause the certificate of
incorporation and bylaws of the Company to provide that no action by a committee
of the Board of a type referred to in Section 4.2(b) below shall be valid unless
approved in the same manner as required by action of the entire Board, as
provided in this paragraph (a).
(b) Subject to applicable law, the Company shall not take any of the
actions set forth in items (i) through (viii) below without the prior consent of
at least six of the nine (or ten, as the case may be) Directors, including the
affirmative vote of each of the Silver Lake Designee and the TPG Designee.
(i) voluntarily commence any proceeding or file any petition seeking
relief under Title 11 of the United States Code as now constituted or hereafter
amended, or any other federal, state or foreign bankruptcy, insolvency or
similar law;
(ii) merge or consolidate with any other Person other than a
subsidiary of the Company (the "Target") if the book value of the assets of the
Target as of the end of its most recently ended fiscal quarter preceding the
earlier of the date the Company enters into definitive agreements in respect of
such transaction or publicly announces such transaction (the "Determination
Date") would exceed 15% of the consolidated assets of the Company;
(iii) sell, transfer or otherwise dispose of (including by merger,
dividend or other distribution, formation of a joint venture or otherwise) any
assets in one or a series of related transactions if the book value of such
assets exceeds 15% of the consolidated assets of the
24
Company as of the end of the Company's most recent fiscal quarter preceding the
Determination Date;
(iv) increase or decrease the number of Directors that comprise the
entire Board;
(v) authorize, issue or sell (including by merger or otherwise) any
shares, options, warrants or rights to acquire shares of the Company in excess
of 15% of the Company's outstanding shares (other than issuances of Shares
pursuant to options to acquire the Company's common stock issued pursuant to
plans approved by the Board);
(vi) pay, declare or set aside any sums or other property for the
payment of any dividends on, or make any other distributions in respect of
(including by merger or otherwise), any shares of the Company, or any warrants,
options, rights or securities convertible into, exchangeable or exercisable for,
shares of the Company in excess of 15% of the net income of the Company for the
most recently completed fiscal year preceding the Determination Date (excluding
purchases from employees pursuant to employee benefit plans or arrangements);
(vii) redeem, purchase or otherwise acquire (including by merger or
otherwise), any shares of the Company or any warrants, options and rights or
securities convertible into, exchangeable or exercisable for, shares of the
Company in excess of 5% of the stockholders' equity, or redeem or purchase
otherwise acquire or make any payments with respect to any share appreciation
rights or phantom share plans in excess of 5% of the net income of the Company
for the most recently completed fiscal year preceding the Determination Date
(excluding purchases from employees pursuant to employee benefit plans or
arrangements); or
(viii) amend, modify or repeal any of the provisions of the
certificate of incorporation or bylaws of the Company, except as required to
comply with its obligations under Section 4.1 of this Agreement.
Finally, the prior consent of at least six of the nine (or ten, as
the case may be) Directors (including the affirmative vote of each of the Silver
Lake Designee and the TPG Designee and other than the Chief Executive Officer,
who shall be required to abstain) shall be required to hire or terminate the
employment contract of the Chief Executive Officer. Notwithstanding the
foregoing, nothing in this Section 4.2 shall limit the rights of any Stockholder
under Article III.
(c) Unless otherwise agreed by a majority of the Board (including
the affirmative vote of each of the Silver Lake Designee, the TPG Designee and
each New SAC Designee), the Board shall follow the following procedures:
(i) Special meetings of the Board may be held at any time upon the
call of the Chairman of the Board, the Chief Executive Officer, the president of
the Company or a majority of the members of the Board then in office by notice
given by the secretary of the Company personally or by telephone, or sent by
first-class mail, overnight mail, courier service or telegram. If the notice is
mailed, it shall be deposited in the United States mail at least four (4)
calendar days before the time of the holding of the meeting. If the notice is
delivered by telegram, overnight mail or courier, it shall be deemed adequately
delivered when the telegram is
25
delivered to the telegraph company or the notice is delivered to the overnight
mail or courier service company at least forty-eight (48) hours before such
meeting. If by facsimile transmission, such notice shall be deemed adequately
delivered when the notice is transmitted at least twelve (12) hours before such
meeting. If by telephone or hand delivery the notice shall be given at least
twelve (12) hours prior to the time set for the meeting. Any oral notice given
personally or by telephone may be communicated either to the director or to a
person at the office of the director who the person giving the notice has reason
to believe will promptly communicate it to the director. Reasonable efforts
shall be made to ensure that each Director actually receives timely notice of
any meeting.
(ii) A reasonably detailed agenda shall be supplied to each Director
reasonably in advance of each meeting of the Board, together with other
appropriate documentation with respect to agenda items calling for board action,
to inform adequately Directors regarding matters to come before the board. Any
Director wishing to place a matter on the agenda for any meeting of the
applicable board of directors may do so by communicating with the chairman of
the Board sufficiently in advance of the meeting of the Board so as to permit
timely dissemination to all Directors of information with respect to the agenda
items.
4.3. Voting of Shares; Action by the Company.
At any annual or special meeting of stockholders of the Company or in
any written consent executed in lieu of such a meeting of stockholders, the
Stockholders shall take all other action provided for under the terms of the
Shares held by them, including by way of voting their Shares, to give effect to
the agreements contained in this Agreement. In order to effectuate the
provisions of this Article IV, each Stockholder hereby agrees that when any
action or vote is required to be taken by such Stockholder pursuant to this
Agreement, such Stockholder shall use his or its best efforts to call, or cause
the appropriate officers and Directors of the Company to call, a special or
annual meeting of stockholders of the Company, as the case may be, or execute or
cause to be executed a consent in writing in lieu of any such meetings pursuant
to applicable provisions of the Delaware General Corporations Law and the common
law of the State of Delaware. In addition, the Company shall use its
commercially reasonable best efforts to take all actions to give effect to the
agreements contained in this Agreement.
ARTICLE V. MISCELLANEOUS
5.1. Competition.
Any Stockholder and any Affiliate of such Stockholder may engage in or
possess an interest in other investments, business ventures or entities of any
nature or description, independently or with others, similar or dissimilar to,
or that compete with, the investments or business of the Company, and may
provide advice and other assistance to any such investment, business venture or
entity, and the Company and the Stockholders shall have no rights by virtue of
this Agreement in and to such investments, business ventures or entities or the
income or profits derived therefrom, and the pursuit of any such investment or
venture, even if competitive with the business of the Company, shall not be
deemed wrongful or improper. Upon the written request of the Company (which
request shall not be made more than once in any 90-day period),
26
each Stockholder shall, subject to applicable law and the terms of any
applicable confidentiality agreement or similar agreement or arrangement, use
its reasonable efforts to disclose, as soon as reasonably practicable and on a
confidential basis, to the Board any such interest, investment or business
venture that involves the enterprise reporting software business that is owned
by such Stockholder; provided, however, that no Stockholder shall be required to
disclose passive minority interests in such interest, investment or business
venture if such passive minority interests are immaterial to such Stockholder.
No Stockholder nor any Affiliate thereof shall be obligated to present any
particular investment or business opportunity to the Company even if such
opportunity is of a character that, if presented to the Company, could be taken
by the Company, and any Stockholder or any Affiliate thereof shall have the
right to take for its own account (individually or as a partner or fiduciary) or
to recommend to others any such particular investment opportunity.
5.2. Effective Date.
This Agreement shall become effective on the date of the consummation
of the Company's initial Public Offering and prior to such time shall have no
force or effect. If the Company's initial Public Offering is abandoned or is not
consummated for any reason by March 31, 2004, this Agreement shall terminate
without any further action of the parties hereto and neither party shall have
any liability to the other with the respect to the provisions contained herein.
5.3. Exercise of Certain Rights Under the New SAC Shareholders
Agreement.
(a) Each of Silver Lake and TPG agree to refrain from exercising
their rights under Section 2.7 of the New SAC Shareholders Agreement.
(b) Each of Silver Lake and TPG (i) agree that the composition of
the Board as provided herein is acceptable to them and (ii) agree not to
exercise their rights under Section 5.1(d) of the New SAC Shareholders Agreement
to cause the Board to be comprised in the same manner as the board of directors
of New SAC.
(c) Each of the Stockholders agrees to waive its rights under
Section 5.2(d) of the New SAC Shareholders Agreement to require the amendment of
the certificate of incorporation and bylaws of the Company.
(d) Each of Silver Lake, TPG, August and New SAC agree that (i) New
SAC shall not cause the Company to make, and the Company shall not be required
to make, any distributions as a result of Section 6.5 of the New SAC
Shareholders Agreement and (ii) the New SAC shareholders shall have no
obligation to cause New SAC to make any distributions referred to in Section 6.5
of the New SAC Shareholders Agreement to the extent such distributions relate to
the incurrence of "Subpart F Income" (within the meaning of Section 952 of the
Internal Revenue Code of 1986, as amended) or other phantom income by a New SAC
shareholder as a result of the investment by New SAC in the Company or any
subsidiary of the Company.
(e) Pursuant to the provisions of Section 6.6(b) of the New SAC
Shareholders Agreement, each of Silver Lake and TPG agree that New SAC shall
have no obligation to avoid
27
the incurrence of Subpart F Income with respect to the business and operations
of the Company or any subsidiary of the Company.
5.4. Additional Securities Subject to Agreement.
Each Stockholder agrees that any other equity securities of the Company
which it hereafter acquires by means of a stock split, stock dividend,
distribution, exercise of options or warrants or otherwise (other than shares
acquired in a Public Offering, in the public market or otherwise from persons
other than the Company or another Stockholder after the initial Public Offering
of the Company) will be subject to the provisions of this Agreement to the same
extent as if held on the date hereof.
5.5. Termination.
Other than as specified below, the provisions of this Agreement will
terminate and be of no further force and effect upon the date on which at least
50% of the number of issued and outstanding shares of the Company have been
publicly distributed or sold (including shares issued upon the exercise of
employee stock options), or are being actively traded on a national securities
exchange or interdealer quotation system. Notwithstanding the foregoing, (i)
Article III of this Agreement shall survive the termination of this Agreement
until such time as all Registrable Securities held by the Stockholders cease to
be Registrable Securities, (ii) Article IV of this Agreement shall survive until
the earlier of (x) such time as the Company is no longer qualified as a
"controlled company" under the rules of the NASDAQ or (y) the date on which at
least 50% of the number of the issued and outstanding shares of the Company have
been publicly distributed or sold (including shares issued upon the exercise of
employee stock options), or are being actively traded on a national securities
exchange or interdealer quotation system and (iii) Section 5.3 of this Agreement
shall survive the termination of this Agreement until such time as the
termination of the New SAC Shareholders Agreement.
5.6. Notices.
All notices, consents, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) by delivery in
person, by courier service, by cable, by telecopy, by telegram, by telex or
registered or certified mail (postage prepaid, return receipt requested) as
follows (or at such other address for a party as shall be specified in a notice
given in accordance with this Section 5.6):
(a) if to the Company:
Crystal Decisions, Inc.
000 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Esq., General Counsel
Telecopy: (000) 000-0000
28
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx, Esq.
Xxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
(b) if to Silver Lake:
Silver Lake Partners, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
(c) if to TPG:
SAC Investments, L.P.
c/o Texas Pacific Group
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Telecopy: (000) 000-0000
with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
29
(d) if to August:
August Capital
0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
(e) if to X.X. Xxxxxx:
X.X. Xxxxxx Partners, L.L.C.
00 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Telecopy: (000) 000-0000
with copies to:
X.X. Xxxxxx Partners, L.L.C.
Official Notices Clerk
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
-and-
Xxxxxx & Xxxxxxx
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
(f) if to GS:
GS Capital Partners III, L.P.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
Telecopy: (000) 000-0000
30
with a copy to:
Xxxxxxxx & Xxxxxxxx
0000 Xxxxxxxxxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
(g) if to Staenberg:
Staenberg Venture Partners
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx & Whitney LLP
U.S. Bank Centre
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: [_____________]
Telecopy: [_____________]
(h) if to Integral:
Integral Capital Partners
0000 Xxxx Xxxx Xx.
Xxxxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telecopy: 000-000-0000
(i) if to New SAC:
New SAC
c/o Silver Lake Partners, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxxxxx X, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxx
Telecopy: (000) 000-0000
31
with copies to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
-and-
Xxxxxxx Xxxxxxx & Xxxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
-and-
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
5.7. Further Assurances.
The parties hereto will sign such further documents, cause such
meetings to be held, resolutions passed, exercise their votes and do and perform
and cause to be done such further acts and things as may be necessary in order
to give full effect to this Agreement and every provision hereof.
5.8. Assignment.
This Agreement will inure to the benefit of and be binding on the
parties hereto and their respective successors and permitted assigns. Except as
specifically provided herein, this Agreement may not be assigned by any party
hereto without the express prior written consent of the other parties, and any
attempted assignment, without such consents, will be null and void.
5.9. Amendment; Waiver.
This Agreement may be amended, supplemented or otherwise modified only
by a written instrument executed by the parties hereto; provided, however, that
this Agreement may be amended, supplemented or otherwise modified by a written
instrument executed only by the Stockholders so long as any such amendment,
supplement or modification does not impose any material additional burdens on
the Company. No waiver by any party of any of the provisions hereof will be
effective unless explicitly set forth in writing and executed by the party so
waiving. Except as provided in the preceding sentence, no action taken pursuant
to this Agreement, including without limitation, any investigation by or on
behalf of any party, will be
32
deemed to constitute a waiver by the party taking such action of compliance with
any covenants or agreements contained herein. The waiver by any party hereto of
a breach of any provision of this Agreement will not operate or be construed as
a waiver of any subsequent breach.
5.10. Third Parties.
Except as otherwise set forth herein, this Agreement does not create
any rights, claims or benefits inuring to any person that is not a party hereto
nor create or establish any third party beneficiary hereto; provided that the
Management Shareholders shall be third party beneficiaries only with respect to
the provisions of Sections 3.1, 3.4, 3.6 and related definitions of this
Agreement.
5.11. Governing Law.
This Agreement will be governed by, and construed in accordance with,
the laws of the State of Delaware.
5.12. Binding Arbitration.
Any controversy, dispute or claim arising out of, in connection with,
or in relation to, the construction, performance, or breach of this Agreement
shall be adjudicated by arbitration conducted in accordance with the existing
rules for commercial arbitration of the American Arbitration Association, or any
successor organization in New York or California (the "AAA"), as determined by
the party initiating the arbitration. The demand for arbitration shall be
delivered in accordance with the notice provisions of this Agreement.
Arbitration hereunder shall be conducted by a single arbitrator selected jointly
by the parties hereto. If within thirty (30) days after a demand for arbitration
is made, the parties hereto are unable to agree on a single arbitrator, three
arbitrators shall be appointed. Each party shall select one arbitrator and those
two arbitrators shall then select within thirty (30) days a third neutral
arbitrator. If the arbitrators selected by the parties cannot agree on the third
arbitrator, they shall discuss the qualifications of such third arbitrator with
the AAA prior to selection of such arbitrator, which selection shall be in
accordance with the existing rules of the AAA. If an arbitrator cannot continue
to serve, a successor to an arbitrator selected by the parties shall be also
selected by the same party, and a successor to a neutral arbitrator shall be
selected as specified above. A full rehearing will be held only if the neutral
arbitrator is unable to continue to serve or if the remaining arbitrators
unanimously agree that such a rehearing is appropriate. Any discovery in
connection with arbitration hereunder shall be limited to information directly
relevant to the controversy or claim in arbitration. Judgment upon any
arbitration award rendered may be entered in any court of competent
jurisdiction. EACH PARTY HERETO UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY
SUIT, ACTION OR PROCEEDING RELATING TO THIS AGREEMENT.
5.13. Specific Performance.
Without limiting or waiving in any respect any rights or remedies of
the parties hereto under this Agreement now or hereinafter existing at law or in
equity or by statute, each of the parties hereto will be entitled to seek
specific performance of the obligations to be performed by the other in
accordance with the provisions of this Agreement, including during such time
prior to the final and binding decision in any arbitration contemplated by
Section 5.12.
33
5.14. Entire Agreement.
This Agreement sets forth the entire understanding of the parties
hereto with respect to the subject matter hereof.
5.15. Titles and Headings.
The section headings contained in this Agreement are for reference
purposes only and will not affect the meaning or interpretation of this
Agreement.
5.16. Severability.
If any provision of this Agreement is declared by any court of
competent jurisdiction to be illegal, void or unenforceable, all other
provisions of this Agreement will not be affected and will remain in full force
and effect.
5.17. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which will be deemed to be an original and all of which together will be deemed
to be one and the same instrument.
5.18. Regulatory Matters.
Each of New SAC, the Company and the Stockholders severally agrees to
cooperate with X.X. Xxxxxx in all reasonable respects in the event that any
proposed distribution of Shares to X.X. Xxxxxx pursuant to this Agreement or
other transaction by the Company or New SAC would reasonably be expected by X.X.
Xxxxxx to result in a Regulatory Problem (as such term is defined in the
Regulatory Sideletter between New SAC and the predecessor of X.X. Xxxxxx dated
as of November 22, 2000) for the purpose of avoiding or otherwise structuring
around such a Regulatory Problem. Anything contained in this Section 5.18 to the
contrary, neither any Stockholder nor the Company shall be required under this
Section to take any action that would adversely affect such Person's rights
under this Agreement or as a stockholder of the Company. X.X. Xxxxxx agrees to
notify the Company as to whether or not it would have a Regulatory Problem
promptly (and in any event within five Business Days) after receipt of written
notice of the specifics of a proposed transaction. Failure to respond within
such five Business Day period shall be deemed to be a response that such
transaction will not result in a Regulatory Problem. X.X. Xxxxxx represents
that, as of the date hereof and based on present law, the ownership by it of
4.9% or less of the outstanding voting stock of any class of stock of the
Company would not constitute a Regulatory Problem.
5.19. Notice and Assistance Regarding Distributions.
In the event that New SAC at any time determines that it will make a
distribution of Shares in kind to the Stockholders, New SAC will use its
reasonable best efforts to provide advance notice of such event to all
Stockholders. In the event that such a distribution could reasonably be expected
by New SAC to require further action by a Stockholder to permit it to receive
such Shares or a Stockholder apprises New SAC of such (including, by way of
example,
34
any further filing under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended), New SAC and the Company will use its respective reasonable
best efforts to cooperate and assist with such action including, without
limitation, making any related government filings required of any of them on a
prompt and timely basis. Any such cooperation and assistance shall be provided
in the same manner in all material respects to each Stockholder requesting the
same.
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement
or caused this Agreement to be executed on its behalf as of the date first
written above.
CRYSTAL DECISIONS, INC.
By:
--------------------------------------
Name:
Title:
NEW SAC
By:
--------------------------------------
Name:
Title:
SILVER LAKE TECHNOLOGY INVESTORS
CAYMAN, L.P.
By: Silver Lake (Offshore) AIV GP Ltd., its
General Partner
By:
--------------------------------------
Name:
Title:
SILVER LAKE INVESTORS CAYMAN, L.P.
By: Silver Lake Technology Associates
Cayman, L.P., its General Partner
By: Silver Lake (Offshore) AIV GP Ltd., its
General Partner
By:
--------------------------------------
Name:
Title:
SILVER LAKE PARTNERS CAYMAN, L.P.
By: Silver Lake Technology Associates
Cayman, L.P., its General Partner
By: Silver Lake (Offshore) AIV GP Ltd., its
General Partner
By:
--------------------------------------
Name:
Title:
SAC INVESTMENTS, L.P.
By: TPG SAC Advisors III Corp., its General
Partner
By:
--------------------------------------
Name:
Title:
AUGUST CAPITAL III, L.P.
By:
--------------------------------------
Name:
Title:
X.X. XXXXXX PARTNERS (BHCA), L.P.
By: JPMP MASTER FUND MANAGER, its General
Partner
By: JPMP CAPITAL CORP, its General Partner
By:
--------------------------------------
Name:
Title: Managing Director
GS CAPITAL PARTNERS III, L.P.
By: GS Advisors III, L.L.C., its General
Partner
By:
--------------------------------------
Name:
Title:
GS CAPITAL PARTNERS III OFFSHORE, L.P.
By: GS Advisors III, L.L.C., its General
Partner
By:
--------------------------------------
Name:
Title:
XXXXXXX, SACHS & CO. VERWALTUNGS GmbH
By:
--------------------------------------
Name:
Title:
and
By:
--------------------------------------
Name:
Title:
XXXXX XXXXXX XXXX 0000 L.P.
By: Stone Street 2000, L.L.C., its General
Partner
By:
--------------------------------------
Name:
Title:
XXXXXX XXXXXX XXXXXXX XXXXXXXXXXXXX XXXX
0000, L.P.
By: Bridge Street Special Opportunities
Fund 2000, L.L.C., its General Partner
By:
--------------------------------------
Name:
Title:
STAENBERG VENTURE PARTNERS II, L.P.
By:
--------------------------------------
Name:
Title:
STAENBERG SEAGATE PARTNERS, LLC
By:
--------------------------------------
Name:
Title:
INTEGRAL CAPITAL PARTNERS V, L.P.
By: Integral Capital Management V, LLC, its
General Partner
By:
--------------------------------------
Name:
Title:
INTEGRAL CAPITAL PARTNERS V SIDE FUND, L.P.
By: ICP Management V, LLC, its General
Partner
By:
--------------------------------------
Name:
Title:
------------------------------------------
Xxxxxxx Xxxxxxx
