SEVENTH AMENDMENT TO STOCKHOLDERS’ AGREEMENT
Exhibit 10.26
SEVENTH AMENDMENT TO STOCKHOLDERS’ AGREEMENT
THIS SEVENTH AMENDMENT TO STOCKHOLDERS’ AGREEMENT (this “Amendment”) is
entered into as of September 22, 2010 (the “Seventh Amendment Date”), by and among
TrustWave Holdings, Inc., a Delaware corporation (the “Company”), and the persons signatory
hereto (the “Signatories”).
RECITALS
WHEREAS, the Company and its stockholders are parties to that certain Stockholders’ Agreement,
dated as of March 14, 2005, as amended through the date hereof (as so amended, the “Original
Agreement”); and
WHEREAS, all capitalized terms used in this Amendment which are not defined herein shall have
the respective meanings assigned to them in the Original Agreement; and
WHEREAS, the Signatories constitute the holders of at least a majority of the issued and
outstanding shares of Common Stock (on an as-converted basis); and
WHEREAS, the parties hereto desire to amend the Original Agreement as provided in this
Amendment.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises,
representations, warranties, covenants and conditions contained in this Amendment and for other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
1. Change in Director Description.
(a) Section 1.1(b)(vi) of the Original Agreement is hereby amended to read, in its entirety,
as follows:
(vi) one (1) individual (the “Other Director “) nominated by the Board of
Directors.
(b) Section 1.2(h) of the Original Agreement is hereby amended to read, in its entirety, as
follows:
(h) The Stockholders shall vote all of their shares of capital stock of the
Company to cause the Other Director to be removed during his or her
term of office, when and only when they are so directed to be removed in
writing by the Board of Directors or for Cause.
(c) Section 1.3(i) of the Original Agreement is hereby deleted.
(d) Section 4.4(a) of the Original Agreement is hereby amended to read in its entirety,
as follows:
a. Each certificate representing shares of capital stock that are subject to this
Agreement shall bear a legend in substantially the following form, until such time
as the shares of capital stock represented thereby are no longer subject to the
provisions hereof:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED FROM TIME TO TIME, (THE “ACT”) OR ANY
STATE SECURITIES LAWS. THE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY
NOT BE OFFERED, SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS
AND UNTIL REGISTERED UNDER THE ACT OR UNLESS THE TRANSACTION IS MADE
PURSUANT TO AND IN COMPLIANCE WITH RULE 144 OF THE ACT OR THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL OR OTHER EVIDENCE SATISFACTORY TO THE COMPANY
AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE ALSO FURTHER SUBJECT TO THE
PROVISIONS OF A STOCKHOLDERS’ AGREEMENT AMONG THE ISSUER OF SUCH SECURITIES
(THE “COMPANY”) AND CERTAIN OF THE COMPANY’S STOCKHOLDERS, AS THE SAME MAY
BE AMENDED FROM TIME TO TIME, A COPY OF WHICH IS AVAILABLE FOR INSPECTION AT
THE PRINCIPAL OFFICES OF THE COMPANY, AND, WITHOUT LIMITING THE GENERALITY
OF THE FOREGOING, NO SALE, ASSIGNMENT, TRANSFER OR OTHER DISPOSITION OF
THESE SHARES SHALL BE VALID OR EFFECTIVE UNLESS MADE IN COMPLIANCE WITH ALL
OF THE TERMS AND CONDITIONS OF SUCH AGREEMENT.
THE COMPANY WILL FURNISH WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO REQUESTS
THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL,
OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OF THE COMPANY OR SERIES
THEREOF AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH
PREFERENCES AND/OR RIGHTS.
(e) Section 4.9 of the Original Agreement is hereby amended to read in its entirety, as
follows:
Modification or Amendment. Neither this Agreement nor any provision hereof can be
modified, amended, changed, discharged or terminated except by an instrument in writing,
signed by at least a majority of the issued and outstanding shares of Common Stock (on an
as-converted basis); provided, that (x) Sections 1.1(b)(i), 1.2(b)
and 1.3(a) may not be modified, amended, changed, discharged or terminated without
the written consent of FTV, Sections 1.1(b)(iii), 1.2(c) and 1.3(b)
may not be modified, amended, changed, discharged or terminated without the written consent
of Xxxxxxx, Sections 1.1(b)(ii), 1.2(d) and 1.3(d) may not be
modified, amended, changed, discharged or terminated without the written consent of
TrustWave Majority Holders, Sections 1.1(b)(iv), 1.2(e) and 1.3(c)
may not be modified, amended, changed, discharged or terminated without the written consent
of MBK, and Sections 1.1(b)(v), 1.2(g), 1.3(g) and 1.3(h),
may not be modified, amended, changed, discharged or terminated without the written consent
of the SecurePipe Majority Holders and (y) Section 2.1 may not be modified, amended,
changed, discharged or terminated without the written consent of the holders of at least 66
⅔% of the then outstanding shares of Series A Preferred, Section 2.2 may not be
modified, amended, changed, discharged or terminated without the written consent of
TrustWave Majority Holders and Section 2.3 may not be modified, amended, changed,
discharged or terminated without the written consent of MBK; provided
further that, any such amendment, modification, change, discharge, termination or
waiver that would adversely affect the rights hereunder of any Stockholder in its capacity
as a Stockholder, without similarly affecting the rights hereunder of all Stockholders of
such class, in their capacities as Stockholders of such class, shall not be effective as to
such Stockholder without its prior approval. The inclusion of additional Persons as parties
to this Agreement pursuant to a counterpart signature page or joinder agreement approved by
the Company shall not require an amendment to this Agreement.
2. Removal of Director. The Stockholders shall vote all of their shares of capital
stock of the Company to cause the Elavon Director to be removed from office effective as of the
Seventh Amendment Date. The Board of Directors shall have the right to appoint a person to serve
as the Other Director by Section 1(a) above, which shall initially be Xxxxxx Xxxxxx, such person to
serve the remaining term of the removed Elavon Director.
3. No Other Amendments. Except as expressly amended by this Amendment, all of the
terms and provisions of the Original Agreement shall remain in full force and effect.
4. Counterparts. This Amendment may be executed by facsimile and in counterparts,
each of which shall be an original, but all of which together shall constitute one instrument.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the
Seventh Amendment Date.
| COMPANY: TRUSTWAVE HOLDINGS, INC. |
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| By: | /s/ Xxxxx XxXxxxxx | |||
| Name: | Xxxxxx XxXxxxxx | |||
| Title: | Chief Executive Officer | |||
| STOCKHOLDERS: Financial Technology Ventures II (Q), L.P. |
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| By: | Financial Technology Management, II, LLC | |||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Managing Member | |||
| Financial Technology Ventures II, L.P. | ||||
| By: | Financial Technology Management, II, LLC | |||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Managing Member | |||
| /s/ Xxxxxxx Xxxxxxx | ||||
| Xxxxxxx Xxxxxxx | ||||
| /s/ Xxxxx Xxxxxxxxx | ||||
| Xxxxx Xxxxxxxxx | ||||
| DBRC Investments, LLC. |
||||
| By: | /s/ Xxxxxx XxXxxxxx | |||
| Name: | ||||
| Title: | ||||
| /s/ Xxxxxx X. Xxxxxxxxx | ||||
| Xxxxxx X. Xxxxxxxxx | ||||
| /s/ Xxxxxxx X. Xxxxx | ||||
| Xxxxxxx X. Xxxxx | ||||
| Caledonia Investments, L.P. |
||||
| By: | /s/ Xxx Xxxxxxxxx | |||
| Name: | Xxx Xxxxxxxxx | |||
| Title: | ||||
| The Xxxxxxxxx Family Limited Partnership |
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| By: | /s/ Xxx Xxxxxxxxx | |||
| Name: | Xxx Xxxxxxxxx | |||
| Title: | ||||
| MBK Ventures, LLC |
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| By: | /s/ Xxxxxx XxXxxxxx | |||
| Name: | Xxxxxx XxXxxxxx | |||
| Title: | Manager | |||
| THE PRODUCTIVITY FUND, IV L.P. | |||||
| By: | First Analysis Management Company IV, | ||||
| L.L.C., its General Partner | |||||
| By: | First Analysis Venture Operations and | ||||
| Research, L.L.C., its Member | |||||
| By: | First Analysis Corporation, its Manager | ||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Xxxxxx X. Xxxxx, Managing Director | ||||
| THE PRODUCTIVITY FUND, IV ADVISORS FUND, L.P. | ||||
| By: | First Analysis Management Company IV, L.L.C., its General Partner |
|||
| By: | First Analysis Venture Operations and Research, L.L.C., its Member |
|||
| By: | First Analysis Corporation, its Manager | |||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Xxxxxx X. Xxxxx, Managing Director | ||||
| SRBA #5, L.P. |
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| By: | ||||
| It: | ||||
