THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Exhibit 4.2
THIRD AMENDED AND RESTATED
THIS THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (the “Agreement”) made
as of July 18, 2007 between Ulta Salon, Cosmetics & Fragrance, Inc., a Delaware
corporation (the “Company”), and the stockholders set forth on the signature pages hereto
(collectively, the “Investors”), amends and restates that certain Second Amended and
Restated Registration Agreement, made as of December 18, 2000 (the “Prior Agreement”) and
shall replace the Prior Agreement and become effective only in the event and upon the consummation
of a Qualified Public Offering (as defined herein). All capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to them in the Second Amended and Restated
Reclassification and Sale of Shares Agreement (the “Reclassification Agreement”), dated
December 18, 2000, among the parties thereto.
WHEREAS, pursuant to Section 7(i) (Mandatory Conversion) of the Company’s Restated Certificate
of Incorporation, the Company may require the conversion of all shares of outstanding Convertible
Preferred Stock into shares of Conversion Common Stock (as defined below) upon the consummation of
a Qualified Public Offering (such conversion of Convertible Preferred Stock, the
“Conversion”);
WHEREAS, the Company intends to effect a Qualified Public Offering and, in connection
therewith, the Conversion; and
WHEREAS, in connection with such intended Qualified Public Offering, the Company and the
Investors desire to amend certain provisions of the Prior Agreement to become effective only in the
event and upon the consummation of a Qualified Public Offering.
NOW, THEREFORE, the parties hereto agree as follows:
1 Effective Time of Agreement. This Agreement shall become effective only in the
event and upon the consummation of a Qualified Public Offering. For the sake of clarity, prior to
the consummation of a Qualified Public Offering, the Prior Agreement shall remain in effect until
otherwise amended or terminated and this Agreement shall be of no force or effect whatsoever.
2 Demand Registrations.
(a) Requests for Registration of Conversion Registrable Securities. Subject to any
lock-up requirements of the Company’s underwriters and any other provision of this Agreement, at
any time the holders of at least a majority with respect to a Long-Form Registration, and
twenty-five percent (25%) with respect to a Short-Form Registration, of the Conversion Common Stock
then unregistered may request registration under the Securities Act of all or part of their
Conversion Registrable Securities on such appropriate registration form of the Securities and
Exchange Commission (the “SEC”) (i) as shall be selected by the Company and as shall be
reasonably acceptable to the holders exercising their demand registration rights hereunder and (ii)
as shall permit the disposition of such Conversion Registrable Securities in
accordance with the intended method or methods of disposition specified in the holders’
request for such registration; provided, that with respect to any demands for registration
on Form S-1 or any similar long-form registration (a “Long-Form Registration”) the
anticipated aggregate offering price of the Conversion Registrable Securities covered by such
registration exceeds twenty million dollars ($20 million) net of underwriting discounts and
commissions; and provided, further, that with respect to any demands for
registration on Form S-3 or any similar short-form registration (a “Short-Form
Registration”) the anticipated aggregate offering price of the Conversion Registrable
Securities covered by such registration exceeds five million dollars ($5 million) net of
underwriting discounts and commissions. Notwithstanding the foregoing, if, in connection with any
registration under this Paragraph 2(a) which is proposed by the Company to be a Short-Form
Registration, the managing underwriter, if any, shall advise the Company in writing that in its
opinion the use of another permitted form is of material importance to the success of the offering,
then such registration shall be on such other permitted form.
(b) Demand Registrations. All registrations requested pursuant to Paragraph
2(a) are referred to herein as “Demand Registrations.”
(c) Notice. Within ten (10) days after receipt of any Demand Registration, the
Company will give written notice of such request to all other holders of Registrable Securities and
will include in such registration all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within ten (10) days after the receipt of the
Company’s notice.
(d) Limits on Demand Registrations. The Company shall not be obligated to take any
action to effect any Long-Form Registration after the Company has effected three (3) Long-Form
Registrations and shall not be obligated to take any action to effect any Short-Form Registration
after the Company has effected three (3) Short-Form Registrations. A registration will not count
as a Demand Registration (i) unless a registration statement with respect thereto has become
effective and remained effective in compliance with the provisions of the Securities Act until the
earlier of (x) such time as all of such Registrable Securities have been disposed of in accordance
with the intended methods of disposition by the seller or sellers thereof set forth in such
registration statement and (y) 120 days after the effective date of such registration statement,
(ii) if after it has become effective, such registration is interfered with by any stop order,
injunction or other order or requirement of the SEC or other governmental agency or court for any
reason not attributable to the selling holders and has not thereafter become effective, (iii) if
the conditions to closing specified in the underwriting agreement, if any, entered into in
connection with such registration are not satisfied or waived, other than by reason of a failure on
the part of the holders of the Registrable Securities to be registered thereunder, or (iv) if
either any securities are sold by the Company pursuant to such registration or the holders of
Registrable Securities are not able to register and sell at least 80% of the Registrable Securities
requested to be included in such registration (unless the failure to register and sell such
securities is due principally to the action or failure to take action by the holders requesting
registration).
(e) Demand Registration Expenses. The Registration Expenses of the holders of
Registrable Securities will be paid by the Company in all Demand Registrations.
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(f) Priority on Demand Registrations. The Company will not include in any Demand
Registration any securities which are not Registrable Securities without the written consent of the
holders of a majority of the Registrable Securities included in such registration. If the managing
underwriters advise the Company in writing that in their opinion the number of Registrable
Securities and other securities requested to be included exceeds the number of Registrable
Securities and other securities which can be sold in such offering in an orderly manner in such
offering within a price range acceptable to the holders of a majority of the Registrable Securities
included in such registration (a “Cut-back Request”), the Company will include in such
registration prior to the inclusion of any securities which are not Registrable Securities, (i)
first, the number of Conversion Registrable Securities requested to be included which in the
opinion of such underwriters can be sold, pro rata among the respective holders on the basis of the
amount of Registrable Securities owned, and (ii) second, the number, if any, of Executive
Registrable Securities requested to be included which in the opinion of such underwriters can be
sold in addition to all Conversion Registrable Securities requested to be included, pro rata among
the respective holders on the basis of the amount of Executive Registrable Securities owned.
Notwithstanding the foregoing, in the event of a Demand Registration which is initiated by the
holders of the Conversion Registrable Securities relating to converted Series I Preferred Stock,
Series IV Preferred Stock, Series V Preferred Stock or Series V-1 Preferred Stock (the “Series
I/IV/V/V-1 Registrable Securities”), the Company will, in the event of a Cut-back Request,
include in such offering (i) first, the number of Series I/IV/V/V-1 Registrable Securities which in
the opinion of such underwriters can be sold, pro rata among the respective holders on the basis of
the amount of Registrable Securities owned, (ii) second, the number of Conversion Registrable
Securities relating to converted Series II Preferred Stock which in the opinion of such
underwriters can be sold, pro rata among the respective holders on the basis of the amount of
Registrable Securities owned, and (iii) third, the Executive Registrable Securities requested to be
included that can be sold, pro rata among the respective holders on the basis of the amount of
Registrable Securities owned.
(g) Selection of Underwriters. The Company will have the right to select the
investment banker(s) and manager(s) to administer the offering, subject to the approval of the
holders of a majority in interest of the Registrable Securities included in such Demand
Registration, which approval will not be unreasonably withheld.
(h) Other Registration Rights. Except as provided in this Agreement, the Company will
not grant to any Persons the right to request the Company to register any equity securities of the
Company, or any securities convertible or exchangeable into or exercisable for such securities,
without the written consent of the holders of a majority of the Conversion Registrable Securities;
provided, that the Company may grant rights to employees of the Company and its
subsidiaries to participate in Piggyback Registrations and Demand Registrations so long as such
rights are subordinate to the rights of the holders of Registrable Securities with respect to such
Piggyback Registrations and Demand Registrations.
3 Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any of its Common
Stock or other securities convertible or exchangeable into or exercisable for
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Common Stock under the Securities Act and the registration form to be used may be used for the
registration of Registrable Securities (a “Piggyback Registration”), the Company will give
prompt written notice (in any event within ten (10) business days after its receipt of a Demand
Registration) to all holders of Registrable Securities of its intention to effect such a
registration and, subject to Paragraphs 3(c) and 3(d) below, will include in such
registration all Registrable Securities with respect to which the Company has received written
requests for inclusion therein within ten (10) days after the receipt of the Company’s notice.
(b) Piggyback Expenses. The Registration Expenses of the holders of Registrable
Securities will be paid by the Company in all Piggyback Registrations.
(c) Priority on Primary Registrations. If a Piggyback Registration is an underwritten
primary registration on behalf of the Company, and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in an orderly manner in such offering within a
price range acceptable to the Company, the Company will include in such registration (i) first, the
securities the Company proposes to sell, (ii) second, the Conversion Registrable Securities
requested to be included in such registration, pro rata among the holders of such Conversion
Registrable Securities on the basis of the number of shares owned by such holders, (iii) third, the
Executive Registrable Securities requested to be included in such registration, pro rata among the
holders of such Executive Registrable Securities on the basis of the number of shares owned by such
holders, and (iv) fourth, other securities requested to be included in such registration.
(d) Priority on Secondary Registrations. If a Piggyback Registration is an
underwritten secondary registration on behalf of holders of the Company’s securities, and a
Cut-back Request is made, the Company will include Registrable Securities in such registration in
the manner contemplated by Paragraph 2(f) above, or if Paragraph 2(f) is not
applicable, the Company will include in such registration (i) first, the securities requested to be
included therein by the holders requesting such registration pursuant to Paragraph 2, (ii)
second, the Conversion Registrable Securities requested to be included in such registration
pursuant to Paragraph 3, pro rata among the holders of such securities on the basis of the
number of securities so requested to be included therein owned by each such holder, (iii) third,
the Executive Registrable Securities requested to be included in such registration, pro rata among
the holders of Executive Registrable Securities based on the number of shares owned by such holder,
and (iv) fourth, other securities requested to be included in such registration.
(e) Selection of Underwriters. If any Piggyback Registration is a primary
underwritten offering, the Company will have the right to select the investment banker(s) and
manager(s) for the offering subject to the approval by the holders of a majority in interest of the
Registrable Securities included in such Piggyback Registration if the number of such Registrable
Securities is greater than the number of primary shares of Common Stock being registered by the
Company. Such approval will not be unreasonably withheld.
(f) Other Registrations. If the Company has previously filed a registration statement
with respect to Registrable Securities pursuant to Paragraph 2 or pursuant
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to this Paragraph 3, and if such previous registration has not been withdrawn or
abandoned, the Company will not file or cause to be effected any other registration of any of its
equity securities or securities convertible or exchangeable into or exercisable for its equity
securities under the Securities Act (except on Form S-4 or Form S-8 or any successor forms),
whether on its own behalf or at the request of any holder or holders of such securities, until a
period of at least one hundred eighty (180) days has elapsed from the effective date of such
previous registration.
4 Holdback Agreements.
(a) Each holder of Registrable Securities agrees not to effect any public sale or distribution
of equity securities of the Company, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven (7) days prior to and the one hundred eighty
(180) day period beginning on the effective date of any underwritten Demand Registration or any
underwritten Piggyback Registration in which Registrable Securities are included (except as part of
such underwritten registration), unless the underwriters managing the registered public offering
otherwise agree.
(b) The Company agrees (i) not to effect any public sale or distribution of its equity
securities, or any securities convertible into or exchangeable or exercisable for such securities,
during the seven (7) days prior to and during the one hundred eighty (180) day period beginning on
the effective date of any underwritten Demand Registration or any underwritten Piggyback
Registration (except as part of such underwritten registration or pursuant to registrations on Form
S-4 or S-8 or any successor forms), unless the underwriters managing the registered public offering
otherwise agree, and (ii) to cause each current holder of its equity securities, or any securities
convertible into or exchangeable or exercisable for such securities, and any purchaser of such
securities from the Company at any time after the date of this Agreement (other than in the
registered public offering) to agree not to effect any public sale or distribution of any such
securities during such period (except as part of such underwritten registration, if otherwise
permitted), unless the underwriters managing the registered public offering otherwise agree.
5 Registration Procedures. Whenever the holders of Registrable Securities have
requested that any Registrable Securities be registered pursuant to this Agreement, the Company
will use its best efforts to effect the registration and the sale of such Registrable Securities in
accordance with the intended method of disposition thereof, and pursuant thereto the Company will
as expeditiously as possible:
(a) prepare and file with the SEC a registration statement with respect to such Registrable
Securities and use its best efforts to cause such registration statement to become effective
(provided that before filing a registration statement or prospectus or any amendments or
supplements thereto, the Company will furnish to the counsel selected by the holders of a majority
of the Registrable Securities covered by such registration statement copies of all such documents
proposed to be filed, which documents will be subject to the review of such counsel);
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(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 of not less than six (6) months or until such time as
all of the securities covered by such registration statement have been sold and comply with the
provisions of the Securities 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 sellers thereof set forth in such registration statement;
(c) furnish to each seller of Registrable Securities such number of copies of such
registration statement, each amendment and supplement thereto, the prospectus included in such
registration statement (including each preliminary prospectus) and such other documents as such
seller may reasonably request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its best efforts to register or qualify such Registrable Securities under such other
securities or blue sky laws of such jurisdictions as any seller reasonably requests 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
(provided that the Company will not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this subparagraph, (ii)
subject itself to taxation in any such jurisdiction or (iii) consent to general service of process
in any such jurisdiction);
(e) notify each seller of such Registrable Securities, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the happening of any event as a
result of which the prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein not misleading, and,
at the request of any such seller, the Company will prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such
prospectus will not contain any untrue statement of a material fact or omit to state any fact
necessary to make the statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each securities exchange on which
similar securities issued by the Company are then listed and, if not so listed, to be listed on the
NASDAQ Stock Market.
(g) provide a transfer agent and registrar for all such Registrable Securities not later than
the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting agreements in customary form)
and take all such other actions as the holders of a majority of the Registrable Securities being
sold or the underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities (including, without limitation, effecting a stock split
or a combination of shares);
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(i) make available for inspection by any seller of Registrable Securities, any underwriter
participating in any disposition pursuant to such registration statement, and any attorney,
accountant or other agent retained by any such seller or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, and cause the Company’s
officers, directors, employees and independent accountants to supply all information reasonably
requested by any such seller, underwriter, attorney, accountant or agent in connection with such
registration statement;
(j) otherwise use its 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, an earnings
statement covering the period of at least twelve (12) months beginning with the first day of the
Company’s first full calendar quarter after the effective date of the registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder; and
(k) obtain a comfort letter from the Company’s independent public accountants in customary
form and covering such matters of the type customarily covered by comfort letters as the holders of
a majority of the Registrable Securities being sold reasonably request (provided that such
Registrable Securities constitute at least ten percent (10%) of the securities covered by such
registration statement).
6 Registration Expenses.
(a) All expenses incident to the Company’s performance of or compliance with this Agreement,
including without limitation all registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, printing expenses, messenger and delivery expenses, and fees and
disbursements of counsel for the Company and all independent certified public accountants,
underwriters (excluding discounts and commissions) and other Persons retained by the Company (all
such expenses being herein called “Registration Expenses”), will be borne as provided in
this Agreement, except that the Company will, in any event, pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit or quarterly review, the expense of any
liability insurance and the expenses and fees for listing the securities to be registered on each
securities exchange on which similar securities issued by the Company are then listed on an
exchange or on the NASDAQ Stock Market.
(b) In connection with each Demand Registration and each Piggyback Registration, the Company
will reimburse the holders of Registrable Securities covered by such registrations for the
reasonable fees and disbursements of one counsel chosen by the holders of a majority of the
Registrable Securities included in such registration.
(c) To the extent Registration Expenses are not required to be paid by the Company, each
holder of securities included in any registration hereunder will pay those Registration Expenses
allocable to the registration of such holder’s securities so included on the basis of the number of
securities of such holder included in such registration as compared to the total number of
securities included in the registration.
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7 Indemnification.
(a) The Company agrees to indemnify, to the extent permitted by law, each holder of
Registrable Securities, its officers and directors and each Person who controls such holder (within
the meaning of the Securities Act) against all losses, claims, damages, liabilities and expenses
caused by any untrue or alleged untrue statement of material fact contained in any registration
statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or
any omission or alleged omission of a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as the same are caused by or contained
in any information furnished in writing to the Company by such holder expressly for use therein or
by such holder’s failure to deliver a copy of the registration statement or prospectus or any
amendments or supplements thereto after the Company has furnished such holder with a sufficient
number of copies of the same. In connection with an underwritten offering, the Company will
indemnify such underwriters, their officers, directors and agents and each Person who controls such
underwriters (within the meaning of the Securities Act) to the same extent as provided above with
respect to the indemnification of the holders of Registrable Securities.
(b) In connection with any registration statement in which a holder of Registrable Securities
is participating, each such holder will furnish to the Company in writing such information and
affidavits as the Company reasonably requests for use in connection with any such registration
statement or prospectus and, to the extent permitted by law, will indemnify the Company, its
directors, officers and agents and each Person who controls the Company (within the meaning of the
Securities Act) against any losses, claims, damages, liabilities and expenses resulting from any
untrue or alleged untrue statement of material fact contained in the registration statement,
prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission
or alleged omission of a material fact required to be stated therein or necessary to make the
statements therein not misleading, but only to the extent that such untrue statement or omission is
contained in any information or affidavit so furnished in writing by such holder; provided that the
obligation to indemnify will be several, not joint and several, among such holders of Registrable
Securities and the liability of each such holder of Registrable Securities will be in proportion to
and limited to the net amount received by such holder from the sale of Registrable Securities
pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder will (i) give prompt written notice to
the indemnifying party of any claim with respect to which it seeks indemnification and (ii) unless
in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume
the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such
defense is assumed, the indemnifying party will not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent will not be unreasonably
withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a
claim will not be obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim, unless in the reasonable
judgment of any indemnified party a conflict of
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interest may exist between such indemnified party and any other of such indemnified parties
with respect to such claim.
(d) The indemnification provided for under this Agreement will remain in full force and effect
regardless of any investigation made by or on behalf of the indemnified party or any officer,
director or controlling Person of such indemnified party and will survive the transfer of
securities. The Company also agrees to make such provisions, as are reasonably requested by any
indemnified party, for contribution to such party in the event the Company’s indemnification is
unavailable for any reason.
8 Participation in Underwritten Registrations. No Person may participate in any
registration hereunder which is underwritten unless such Person (a) agrees to sell such Person’s
securities on the basis provided in any underwriting arrangements approved by the Person or Persons
entitled hereunder to approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents required under the
terms of such underwriting arrangements, provided, however, that any such
agreements will only contain indemnification obligations which are consistent with Paragraph
7 above.
9 Definitions.
“Conversion Common Stock” mean (i) the Common Stock received upon the conversion of
all shares of outstanding Convertible Preferred Stock, and (ii) any securities issued or issuable
with respect to the Common Stock received upon the conversion of all shares of outstanding
Convertible Preferred Stock by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other reorganization.
“Conversion Registrable Securities” means (i) the Conversion Common Stock, and (ii)
any other shares of Common Stock held by Persons holding Conversion Common Stock.
“Convertible Preferred Stock” means any outstanding Series I Preferred Stock, Series
II Preferred Stock, Series IV Preferred Stock, Series V Preferred Stock and Series V-1 Preferred
Stock.
“Executive Registrable Securities” means (i) any shares of Common Stock held by
Xxxxxxx X. Xxxxxx and Xxxxx X. Xxxxxx as of the date hereof or acquired hereafter and (ii) any
securities issued or issuable with respect to the Common Stock referred to in clause (i) by way of
a stock dividend or stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization.
“Public Offering” means any offering by the Company of its equity securities to the
public, in a firm commitment underwriting, pursuant to an effective registration statement under
the Securities Act; provided, that a Public Offering will not include an offering made in
connection with a business acquisition or an employee benefit plan.
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“Qualified Public Offering” means a Public Offering in which (i) the aggregate cash
proceeds received by the Company for the shares sold in such offering is at least fifteen million
dollars ($15 million); (ii) the price per share paid by the public for the shares sold in such
offering implies a total equity valuation of the Company of at least on hundred million dollars
($100 million); and (iii) the shares sold in such offering are listed on the American Stock
Exchange or the New York Stock Exchange or are quoted on the NASDAQ Stock Market.
“Registrable Securities” means the Executive Registrable Securities and the Conversion
Registrable Securities. As to any particular Registrable Securities, such securities will cease to
be Registrable Securities when (i) they have been distributed to the public through a broker,
dealer or market purchaser in compliance with Rule 144 under the Securities Act (or any similar
rule then in force) or (ii) such securities become transferable without any restrictions in
accordance with Rule 144(k) under the Securities Act (or any similar rule then in force). For
purposes of this Agreement, a Person will be deemed to be a holder of Registrable Securities
whenever such Person has the right to acquire such Registrable Securities (by conversion or
otherwise, but disregarding any legal restrictions upon the exercise of such right), whether or not
such acquisition has actually been effected.
Unless otherwise stated, other capitalized terms contained herein have the meanings set forth
in the Reclassification Agreement.
10 Miscellaneous.
(a) No Inconsistent Agreements. The Company will not hereafter enter into any
agreement with respect to its securities which is inconsistent with the rights granted to the
holders of Registrable Securities in this Agreement.
(b) Adjustments Affecting Registrable Securities. The Company will not take any
action, or permit any change to occur, with respect to its securities which would materially and
adversely affect the ability of the holders of Registrable Securities to include such Registrable
Securities in a registration undertaken pursuant to this Agreement or which would materially and
adversely affect the marketability of such Registrable Securities in any such registration
(including, without limitation, effecting a stock split or a combination of shares).
(c) Remedies. Any Person having rights under any provision of this Agreement will be
entitled to enforce such rights specifically, to recover damages caused by reason of any breach of
any provision of this Agreement and to exercise all other rights granted by law. The parties
hereto agree and acknowledge that money damages may not be adequate remedy for any breach of the
provisions of this Agreement and that any party may in its sole discretion apply to any court of
law or equity of competent jurisdiction (without posting any bond or other security) for specific
performance and for other injunctive relief in order to enforce or prevent violation of the
provisions of this Agreement.
(d) Amendments and Waivers. Except as otherwise provided herein, the provisions of
this Agreement may be amended and the Company may take any action herein prohibited, or omit to
perform any act herein required to be performed by it, only if the Company has obtained the written
consent of holders of a majority of the Registrable Securities.
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(e) Successors and Assigns. All covenants and agreements in this Agreement by or on
behalf of any of the parties hereto will bind and inure to the benefit of the respective successors
and assigns of the parties hereto whether so expressed or not. In addition, whether or not any
express assignment has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and enforceable by,
any subsequent holder of Registrable Securities.
(f) Severability. Whenever possible, each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be prohibited by or invalid under applicable law, such provision will
be ineffective only to the extent of such prohibition or invalidity, without invalidating the
remainder of this Agreement.
(g) Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, any one of which need not contain the signatures of more than one party, but all such
counterparts taken together will constitute one and the same Agreement.
(h) Descriptive Headings. The descriptive headings of this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.
(i) Governing Law. The corporate law of Delaware will govern all issues concerning
the relative rights of the Company and its stockholders. All other questions concerning the
construction, validity and interpretation of this Agreement and the exhibits and schedules hereto
will be governed by the internal law, and not the law of conflicts, of Illinois.
(j) Notices. All notices, demands or other communications to be given or delivered
under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to
have been given when delivered personally to the recipient, sent to the recipient by reputable
express courier service (charges prepaid) or mailed to the recipient by certified or registered
mail, return receipt requested and postage prepaid. Such notices, demands and other communications
will be sent to each stockholder at the address indicated on the records of the Company and to the
Company at the address indicated below:
Ulta Salon, Cosmetics & Fragrance, Inc.
Xxxxxxx Lakes Business Park
0000 Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxx
Xxxxxxx Lakes Business Park
0000 Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxx
or to such other address or to the attention of such other person as the recipient party has
specified by prior written notice to the sending party.
(k) Entire Agreement. This Agreement constitutes the complete and final agreement of
the parties concerning the matters referred to herein, and supersedes all prior agreements and
understandings, including, without limitation, the Prior Agreement.
11
[SIGNATURE PAGE FOLLOWS]
12
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first
written above.
Common: |
947,583.00 | |||
Series I: |
149,853.00 | |||
Series II: |
10,709.00 | |||
Series IV: |
119,174.00 | |||
Series V: |
10.00 | |||
Series V-1: |
— | |||
Total: |
1,227,329.00 | |||
Common: |
123,894.00 | |||
Series I: |
5,784,138.00 | |||
Series II: |
1,769,369.00 | |||
Series IV: |
4,829,853.00 | |||
Series V: |
4,024,442.00 | |||
Series V-1: |
920,000.00 | |||
Total: |
17,451,696.00 | |||
Common: |
125,296.00 | |||
Series I: |
154,322.00 | |||
Series II: |
2,487.00 | |||
Series IV: |
170.00 | |||
Series V: |
670.00 | |||
Series V-1: |
— | |||
Total: |
282,945.00 | |||
| ULTA SALON, COSMETICS
& FRAGRANCE, INC. |
||
By: |
||
Its: |
||
| Xxxxx X. Xxxxxx | ||
| DOUBLEMOUSSE B.V. | ||
By: |
||
| Xxxxxxx Xxxxxxxxx, | ||
| its Authorized Agent | ||
| Yves Sisteron | ||
S-13
Common: |
161,676.00 | |||
Series I: |
181,386.00 | |||
Series II: |
284,706.00 | |||
Series IV: |
4,719,547.00 | |||
Series V: |
4,323,908.00 | |||
Series V-1: |
— | |||
Total: |
9,671,223.00 | |||
Common: |
4,060.00 | |||
Series I: |
4,555.00 | |||
Series II: |
7,150.00 | |||
Series IV: |
118,531.00 | |||
Series V: |
108,594.00 | |||
Series V-1: |
— | |||
Total: |
242,890.00 | |||
Common: |
13,150.00 | |||
Series I: |
— | |||
Series II: |
— | |||
Series IV: |
4,274,311.00 | |||
Series V: |
354,292.00 | |||
Series V-1: |
— | |||
Total:: |
4,641,753.00 | |||
Common: |
3,918.00 | |||
Series I: |
— | |||
Series II: |
— | |||
Series IV: |
1,273,657.00 | |||
Series V: |
105,571.00 | |||
Series V-1: |
— | |||
Total: |
1,383,146.00 | |||
| OAK INVESTMENT PARTNERS VII | ||
By: |
||
| Xxxxxx X. Xxxxxxxxx, General Partner Managing Member of Oak Associates VII, LLC, The General Partner of Oak Investment Partners VII, Limited Partnership | ||
| OAK VII AFFILIATES FUND, LIMITED PARTNERSHIP | ||
By: |
||
| Xxxxxx X. Xxxxxxxxx, General Partner Managing Member of Oak VII Affiliates, LLC, The General Partner of Oak VII Affiliates Fund Limited Partnership | ||
| GLOBAL RETAIL PARTNERS, L.P. | ||
By:
|
GLOBAL RETAIL PARTNERS, INC., | |
| General Partner | ||
By: |
||
| Xxxxxx X. Xxxxx | ||
Its: |
||
| DLJ DIVERSIFIED PARTNERS, L.P. | ||
By:
|
DLJ DIVERSIFIED PARTNERS, INC., | |
| General Partner | ||
By: |
||
| Xxxxxx X. Xxxxx | ||
Its: |
||
S-14
Common: |
1,455.00 | |||
Series I: |
— | |||
Series II: |
— | |||
Series IV: |
472,998.00 | |||
Series V: |
39,093.00 | |||
Series V-1: |
— | |||
Total: |
513,546.00 | |||
Common: |
27,485.00 | |||
Series I: |
327,085.00 | |||
Series II: |
59,324.00 | |||
Series IV: |
10,042.00 | |||
Series V: |
422,650.00 | |||
Series V-1: |
— | |||
Total: |
846,586.00 | |||
Common: |
854.00 | |||
Series I: |
— | |||
Series II: |
— | |||
Series IV: |
277,863.00 | |||
Series V: |
22,700.00 | |||
Series V-1: |
— | |||
Total: |
301,417.00 | |||
Common: |
905.00 | |||
Series I: |
— | |||
Series II: |
— | |||
Series IV: |
294,276.00 | |||
Series V: |
24,392.00 | |||
Series V-1: |
— | |||
Total: |
319,573.00 | |||
| DLJ DIVERSIFIED PARTNERS-A, L.P. | ||
By:
|
DLJ DIVERSIFIED PARTNERS, INC. | |
| its General Partner | ||
By: |
||
| Xxxxxx X. Xxxxx | ||
Its: |
||
| GRP II INVESTORS, L.P. | ||
By:
|
Merchange Capital, Inc. | |
| Its General Partner | ||
By: |
||
| Xxxxxx X. Xxxxx, its Chairman | ||
| GRP PARTNERS, L.P. | ||
By:
|
GLOBAL RETAIL PARTNERS, INC., | |
| its General Partner | ||
By: |
||
| Xxxxxx X. Xxxxx | ||
Its: |
||
| GLOBAL RETAIL PARTNERS FUNDING, INC. | ||
By: |
||
| Xxxxxx X. Xxxxx | ||
Its: |
||
S-15
Common: |
386,415.00 | |||
Series I: |
3,651,938.00 | |||
Series II: |
785,684.00 | |||
Series IV: |
140,273.00 | |||
Series V: |
5,996,914.00 | |||
Series V-1: |
— | |||
Total: |
10,961,224.00 | |||
Common: |
9,938.00 | |||
Series I: |
122,588.00 | |||
Series II: |
24,474.00 | |||
Series IV: |
3,616.00 | |||
Series V: |
150,683.00 | |||
Series V-1: |
— | |||
Total: |
311,299.00 | |||
Common: |
1,461.00 | |||
Series I: |
51,804.00 | |||
Series II: |
2,343.00 | |||
Series IV: |
26,863.00 | |||
Series V: |
47,744.00 | |||
Series V-1: |
— | |||
Total: |
130,215.00 | |||
Common: |
1,461.00 | |||
Series I: |
51,804.00 | |||
Series II: |
2,343.00 | |||
Series IV: |
26,863.00 | |||
Series V: |
47,744.00 | |||
Series V-1: |
— | |||
Total: |
130,215.00 | |||
| GRP II, L.P. | ||
By:
|
GRPVC, L.P., its General Partner | |
By:
|
GRP Management Services Corp., its | |
| General Partner | ||
By: |
||
| Xxxxxx X. Xxxxx | ||
Its: |
||
| GRP II PARTNERS, L.P. | ||
By:
|
GRPVC, L.P., its General Partner | |
By:
|
GRP Management Services Corp., its | |
| General Partner | ||
By: |
||
| Xxxxxx X. Xxxxx | ||
Its: |
||
| THE XXXXXXX XXXXX
XXXXX IRREVOCABLE TRUST |
||
By: |
||
| Xxxxxx X. Xxxxx, Trustee | ||
By: |
||
| Xxxxx Xxxxx Xxxxx, Trustee | ||
| THE XXXXXXX XXXXXX
XXXXX IRREVOCABLE TRUST |
||
By: |
||
| Xxxxxx X. Xxxxx, Trustee | ||
By: |
||
| Xxxxx Xxxxx Xxxxx, Trustee | ||
S-16
Common: |
13,124.00 | |||
Series I: |
688,353.00 | |||
Series II: |
18,435.00 | |||
Series IV: |
160,657.00 | |||
Series V: |
145,254.00 | |||
Series V-1: |
— | |||
Total: |
1,025,823.00 | |||
Common: |
942,992.00 | |||
Series I: |
— | |||
Series II: |
— | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
924,992.00 | |||
Common: |
928,598.00 | |||
Series I: |
— | |||
Series II: |
— | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
928,598.00 | |||
Common: |
125,000.00 | |||
Series I: |
— | |||
Series II: |
— | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
125,000.00 | |||
Common: |
125,000.00 | |||
Series I: |
— | |||
Series II: |
— | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
125,000.00 | |||
| XXXXXX AND XXXXX XXXXX TRUST | ||
| dated 12-16-02 | ||
By: |
||
Its: |
||
| Xxxxxx XxXxxxxxxx | ||
| Xxxxxx Xxx | ||
| Xxxxxxx Xxxxxxxxx | ||
| Xxxxxx Xxxxx | ||
S-17
Common: |
400,000.00 | |||
Series I: |
— | |||
Series II: |
— | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
400,000.00 | |||
Common: |
4,000,000.00 | |||
Series I: |
— | |||
Series II: |
— | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
4,000,000.00 | |||
Common: |
— | |||
Series I: |
1,786.00 | |||
Series II: |
— | |||
Series IV: |
— | |||
Series V: |
98,095.00 | |||
Series V-1: |
— | |||
Total: |
99,881.00 | |||
Common: |
481.00 | |||
Series I: |
561.00 | |||
Series II: |
773.00 | |||
Series IV: |
202.00 | |||
Series V: |
40,872.00 | |||
Series V-1: |
— | |||
Total: |
42,889.00 | |||
Common: |
380,100.00 | |||
Series I: |
29,940.00 | |||
Series II: |
— | |||
Series IV: |
44,761.00 | |||
Series V: |
33,333.00 | |||
Series V-1: |
— | |||
Total: |
488,134.00 | |||
| XXXXXX FAMILY INVESTMENTS, L.P. | ||||
By:
|
||||
| Xxxxx X. Xxxxxx, | ||||
| Managing General Partner | ||||
| Xxx Xxxxx | ||||
| XXXXXX X. XXXXXXXX LIVING TRUST | ||||
| dtd March 1, 1990 as amended | ||||
By: |
||||
| Xxxxxx X. Xxxxxxxx, Trustee | ||||
| XXXXXX & XXXXXXX LLP | ||||
By:
|
, a Member | |||
| Xxxx Xxxxxxxx | ||||
S-18
Common: |
— | |||
Series I: |
89,712.00 | |||
Series II: |
32,081.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
121,793.00 | |||
Common: |
965.00 | |||
Series I: |
234.00 | |||
Series II: |
26,750.00 | |||
Series IV: |
12,398.00 | |||
Series V: |
74,949.67 | |||
Series V-1: |
— | |||
Total: |
115,296.67 | |||
Common: |
3,612.00 | |||
Series I: |
52,392.00 | |||
Series II: |
15,220.00 | |||
Series IV: |
30,157.00 | |||
Series V: |
95,228.67 | |||
Series V-1: |
— | |||
Total: |
196,609.67 | |||
Common: |
— | |||
Series I: |
938,887.00 | |||
Series II: |
394,448.00 | |||
Series IV: |
— | |||
Series V: |
195,604 | |||
Series V-1: |
— | |||
Total: |
1,528,939.00 | |||
Common: |
— | |||
Series I: |
122,859.00 | |||
Series II: |
51,731.00 | |||
Series IV: |
— | |||
Series V: |
25,569.00 | |||
Series V-1: |
— | |||
Total: |
200,159 | |||
| THE XXXXXXX FAMILY PARTNERSHIP | ||
By: |
||
Its: |
||
| Xxxxxxx X. Xxxxxxx | ||
| THE 1991 XXXXXXX CHILDREN’S TRUST | ||
By: |
||
Its: |
||
| DRAKE & CO. FOR CITIVENTURE III | ||
By: |
||
It: |
||
| MUNICIPAL EMPLOYEES
ANNUITY AND BENEFIT FUND OF CHICAGO (f/k/a Booth & Co. (Mun. Empl. Fund)) |
||
By: |
||
Its: |
||
S-19
Common: |
— | |||
Series I: |
76,684.00 | |||
Series II: |
32,332.00 | |||
Series IV: |
— | |||
Series V: |
15,980.00 | |||
Series V-1: |
— | |||
Total: |
124,996.00 | |||
Common: |
— | |||
Series I: |
385,338.00 | |||
Series II: |
161,659.00 | |||
Series IV: |
— | |||
Series V: |
79,903.00 | |||
Series V-1: |
— | |||
Total: |
626,900.00 | |||
Common: |
— | |||
Series I: |
15,392.00 | |||
Series II: |
6,467.00 | |||
Series IV: |
— | |||
Series V: |
3,196.00 | |||
Series V-1: |
— | |||
Total: |
25,055.00 | |||
Common: |
— | |||
Series I: |
263,040.00 | |||
Series II: |
99,875.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
362,915.00 | |||
| BOOTH & CO. (a/k/a
Municipal Employees Annuity & Benefit Fund of Chicago (Policeman’s Fund)) |
||
By: |
||
Its: |
||
| CHANCELLOR VENTURE
CAPITAL I L.P. (f/k/a MAC & Co.) |
||
By:
|
Chancellor LGT Venture Partners, L.P., its | |
| general partner | ||
By:
|
Chancellor Venture LGT Partners, Inc., its | |
| general partner | ||
By: |
||
Their: |
||
| FOCUS & CO. FOR XXXXXX | ||
| INTERNATIONAL CORP. | ||
By: |
||
Its: |
||
| MARCH FOUNDATION | ||
By: |
||
Its: |
||
S-20
Common: |
— | |||
Series I: |
158,024.00 | |||
Series II: |
59,925.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
217,949.00 | |||
Common: |
256.00 | |||
Series I: |
160,465.00 | |||
Series II: |
61,768.00 | |||
Series IV: |
95.00 | |||
Series V: |
7.00 | |||
Series V-1: |
— | |||
Total: |
222,591.00 | |||
Common: |
— | |||
Series I: |
263,040.00 | |||
Series II: |
99,875.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
362,915.00 | |||
Common: |
— | |||
Series I: |
131,020.00 | |||
Series II: |
49,938.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
180,958.00 | |||
Common: |
10.00 | |||
Series I: |
4.00 | |||
Series II: |
2,515.00 | |||
Series IV: |
9.00 | |||
Series V: |
57.00 | |||
Series V-1: |
— | |||
Total: |
2,595.00 | |||
| Xxxxx-Xxxxxx Xxxxxxxx | ||
| Xxxxxxx Xxxxxxxx | ||
| Xxxxxx Xxxxxxx | ||
| APPOMATTOX FOUNDATION | ||
By: |
||
Its: |
||
| WALLINGTON INVESTMENT
HOLDINGS LTD. (f/k/a Bamse NV) |
||
By: |
||
Its: |
||
S-21
Common: |
— | |||
Series I: |
35,014.00 | |||
Series II: |
31,027.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
66,041.00 | |||
Common: |
— | |||
Series I: |
35,014.00 | |||
Series II: |
31,027.00 | |||
Series IV: |
30,663.00 | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
96,704.00 | |||
Common: |
— | |||
Series I: |
6,854.00 | |||
Series II: |
6,250.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
13,104.00 | |||
Common: |
2,086.00 | |||
Series I: |
6,082.00 | |||
Series II: |
5,930.00 | |||
Series IV: |
327.00 | |||
Series V: |
3,864.00 | |||
Series V-1: |
— | |||
Total: |
18,289.00 | |||
Common: |
367.00 | |||
Series I: |
151.00 | |||
Series II: |
323.00 | |||
Series IV: |
6,180.00 | |||
Series V: |
574.00 | |||
Series V-1: |
— | |||
Total: |
7,595.00 | |||
| KME VENTURE II | ||
By:
|
SAFAT Ltd., its Investment Manager | |
By: |
||
Its: |
||
| KME VENTURE III, L.P. | ||
By:
|
SAFAT Ltd., its General Partner | |
By: |
||
Its: |
||
| Xxxxxx Xxxx | ||
| Xxxxx X. Xxxxxxx | ||
| XXXXX XXXXXX XXX f/b/o Xxxxx Xxxxxxx | ||
By: |
||
| Xxxxx X. Xxxxxxx | ||
Its: |
||
S-22
Common: |
— | |||
Series I: |
1,141.00 | |||
Series II: |
1,041.00 | |||
Series IV: |
19,047.00 | |||
Series V: |
3,226.00 | |||
Series V-1: |
— | |||
Total: |
24,455.00 | |||
Common: |
1,688.00 | |||
Series I: |
1,237.00 | |||
Series II: |
5,077.00 | |||
Series IV: |
48,561.00 | |||
Series V: |
13,458.00 | |||
Series V-1: |
— | |||
Total: |
70,021.00 | |||
Common: |
4.00 | |||
Series I: |
1,141.00 | |||
Series II: |
1,041.00 | |||
Series IV: |
1,013.00 | |||
Series V: |
310.00 | |||
Series V-1: |
— | |||
Total: |
3,509.00 | |||
Common: |
24.00 | |||
Series I: |
35.00 | |||
Series II: |
2,548.00 | |||
Series IV: |
13.00 | |||
Series V: |
57.00 | |||
Series V-1: |
— | |||
Total: |
2,677.00 | |||
Common: |
— | |||
Series I: |
5,708.00 | |||
Series II: |
5,206.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
10,914 | |||
| Xxxxx X. Xxxxxxxx | ||
| Xxxxxx Xxxxx | ||
| Xxxxx XxXxxxxx | ||
| Xxxxxxx Xxxxx, JT Ten with Xxxxxx Xxxxx | ||
| Xxxxxx Xxxxx, JT Ten with Xxxxxxx Xxxxx | ||
| Xxxxxxx X. Xxxxxx, XX Ten with Xxxxx Xxxxxx | ||
| Xxxxx Xxxxxx, JT Ten with Xxxxxxx X. Xxxxxx | ||
S-23
Common: |
738.00 | |||
Series I: |
— | |||
Series II: |
— | |||
Series IV: |
— | |||
Series V: |
1,598,074.00 | |||
Series V-1: |
— | |||
Total: |
1,598,812.00 | |||
Common: |
— | |||
Series I: |
6,004.00 | |||
Series II: |
5,000.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
11,004.00 | |||
Common: |
— | |||
Series I: |
773,017.00 | |||
Series II: |
613,000.00 | |||
Series IV: |
190,476.00 | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
1,576,493.00 | |||
Common: |
6,849.00 | |||
Series I: |
128,357.00 | |||
Series II: |
114,147.00 | |||
Series IV: |
109,824.00 | |||
Series V: |
31,415.00 | |||
Series V-1: |
— | |||
Total: |
390,592.00 | |||
Common: |
1,453.00 | |||
Series I: |
3,456.00 | |||
Series II: |
4,338.00 | |||
Series IV: |
191,274.00 | |||
Series V: |
4,394.00 | |||
Series V-1: |
— | |||
Total: |
204,915.00 | |||
| PICTET & CIE f/b/o Xxxxx Xxxxxxxx | ||
By: |
||
Its: |
||
| XXXXXX TRADING CO. | ||
By: |
||
Its: |
||
| THE XXXX X. & XXXXXXXXX X. XXXXXXXXX FOUNDATION | ||
By: |
||
Its: |
||
| ARABELLA, S.A. | ||
By: |
||
Its: |
||
| XXXXX X. XXXXXXX, XX. (Shennan Family Partnership) | ||
By: |
||
| Xxxxx X. Xxxxxxx, Xx. | ||
Its: |
||
S-24
Common: |
405.00 | |||
Series I: |
400.00 | |||
Series II: |
552.00 | |||
Series IV: |
23,953.00 | |||
Series V: |
5,404.00 | |||
Series V-1: |
— | |||
Total: |
30,714.00 | |||
Common: |
352.00 | |||
Series I: |
1,600.00 | |||
Series II: |
1,208.00 | |||
Series IV: |
142,919.00 | |||
Series V: |
5.00 | |||
Series V-1: |
— | |||
Total: |
146,084.00 | |||
Common: |
1,360.00 | |||
Series I: |
348.00 | |||
Series II: |
1,692.00 | |||
Series IV: |
143,611.00 | |||
Series V: |
24,868.00 | |||
Series V-1: |
— | |||
Total: |
171,879.00 | |||
Common: |
— | |||
Series I: |
49,900.00 | |||
Series II: |
— | |||
Series IV: |
46,165.00 | |||
Series V: |
3,410.00 | |||
Series V-1: |
— | |||
Total: |
99,475.00 | |||
Common: |
640.00 | |||
Series I: |
401,667.00 | |||
Series II: |
154,424.00 | |||
Series IV: |
237.00 | |||
Series V: |
18.00 | |||
Series V-1: |
— | |||
Total: |
556,986.00 | |||
| C. XXXXXX XXXXXX AND XXXXX XXXXXX REV. LIVING TRUST dtd 8/5/93 | ||
By: |
||
Its: |
||
| STRATEGIC GLOBAL PARTNERS, LLC | ||
By: |
||
Its: |
||
| XXXXXX X. XXXXXX, XXXXXX X. XXXX, XX., AND R. XXXXXX XXXXXXX, current Co-Trustees or their successors in trust under the Xxxxxx X. Xxxxxx Trust Agreement dated July 2, 1985, as heretofore and hereafter amended | ||
By: |
||
Its: |
||
| GREENHOUSE CAPITAL PARTNERS | ||
By: |
||
Its: |
||
| XX XXXXX | ||
By: |
||
Its: |
||
S-25
Common: |
640.00 | |||
Series I: |
401,668.00 | |||
Series II: |
154,425.00 | |||
Series IV: |
237.00 | |||
Series V: |
18.00 | |||
Series V-1: |
— | |||
Total: |
556,988.00 | |||
Common: |
615.00 | |||
Series I: |
35,059.00 | |||
Series II: |
626.00 | |||
Series IV: |
26,020.00 | |||
Series V: |
1,396.00 | |||
Series V-1: |
— | |||
Total: |
63,716.00 | |||
Common: |
26.00 | |||
Series I: |
22,707.00 | |||
Series II: |
190.00 | |||
Series IV: |
10.00 | |||
Series V: |
1.00 | |||
Series V-1: |
— | |||
Total: |
22,934.00 | |||
Common: |
696.00 | |||
Series I: |
670.00 | |||
Series II: |
749.00 | |||
Series IV: |
201.00 | |||
Series V: |
51,153.00 | |||
Series V-1: |
— | |||
Total: |
53,469.00 | |||
Common: |
943.00 | |||
Series I: |
2,231.00 | |||
Series II: |
2,497.00 | |||
Series IV: |
667.00 | |||
Series V: |
170,508.00 | |||
Series V-1: |
— | |||
Total: |
176,846.00 | |||
| FIDAS BUSINESS S.A. | ||
By: |
||
Its: |
||
| XXXXX X. XXXX REVOCABLE TRUST | ||
| u/a/d 6/8/90 | ||
By: |
||
Its: |
||
| SEP for the benefit of Yves Sisteron, Xxxxxxxxx Lufkin Xxxxxxxx Securities Corporation as custodian | ||
By: |
||
Its: |
||
| XXXXX FAMILY LIMITED PARTNERSHIP L.L.P. | ||
By: |
||
Its: |
||
| XXXXX XXXXX XXXXX, Trustee | ||
| u/w Xxxxxx X. Xxxxx | ||
By: |
||
| Xxxxx Xxxxx Xxxxx, Trustee | ||
S-26
Common: |
296.00 | |||
Series I: |
110.00 | |||
Series II: |
688.00 | |||
Series IV: |
237.00 | |||
Series V: |
68,201.00 | |||
Series V-1: |
— | |||
Total: |
69,532.00 | |||
Common: |
1,913.00 | |||
Series I: |
6,440.00 | |||
Series II: |
12,493.00 | |||
Series IV: |
1,439.00 | |||
Series V: |
348,834.00 | |||
Series V-1: |
— | |||
Total: |
371,119.00 | |||
Common: |
854.00 | |||
Series I: |
39,821.00 | |||
Series II: |
38,815.00 | |||
Series IV: |
8,140.00 | |||
Series V: |
36,302.00 | |||
Series V-1: |
— | |||
Total: |
123,932.00 | |||
Common: |
231.00 | |||
Series I: |
18,617.00 | |||
Series II: |
16,286.00 | |||
Series IV: |
97,636.00 | |||
Series V: |
12,033.00 | |||
Series V-1: |
— | |||
Total: |
144,803.00 | |||
Common: |
110.00 | |||
Series I: |
4,479.00 | |||
Series II: |
3,914.00 | |||
Series IV: |
22,850.00 | |||
Series V: |
2,807.00 | |||
Series V-1: |
— | |||
Total: |
34,160.00 | |||
| LAZARUS FAMILY INVESTORS LLC | ||
By: |
||
Its: |
||
| CMS PEP XIV CO-INVESTMENT SUBPARTNERSHIP | ||
By: |
||
Its: |
||
| XXXXXXX AND XXXXXXX XXXXX FAMILY TRUST dated 10-02-90 | ||
By: |
||
Its: |
||
| XXXXX XXXXX XXXXX REVOCABLE TRUST dated 03-03-86 | ||
By: |
||
Its: |
||
| XXXXXXXX XXXXXXXX TRUST | ||
By: |
||
Its: |
||
S-27
Common: |
8.00 | |||
Series I: |
618.00 | |||
Series II: |
541.00 | |||
Series IV: |
3,233.00 | |||
Series V: |
402.00 | |||
Series V-1: |
— | |||
Total: |
4,802.00 | |||
Common: |
6.00 | |||
Series I: |
618.00 | |||
Series II: |
541.00 | |||
Series IV: |
3,233.00 | |||
Series V: |
402.00 | |||
Series V-1: |
— | |||
Total: |
4,800.00 | |||
Common: |
8.00 | |||
Series I: |
618.00 | |||
Series II: |
537.00 | |||
Series IV: |
3,233.00 | |||
Series V: |
402.00 | |||
Series V-1: |
— | |||
Total: |
4798.00 | |||
Common: |
28.00 | |||
Series I: |
3,115.00 | |||
Series II: |
2,715.00 | |||
Series IV: |
16,272.00 | |||
Series V: |
2,007.00 | |||
Series V-1: |
— | |||
Total: |
24,137.00 | |||
Common: |
669.00 | |||
Series I: |
9,293.00 | |||
Series II: |
7,963.00 | |||
Series IV: |
47,734.00 | |||
Series V: |
6,014.00 | |||
Series V-1: |
— | |||
Total: |
71,673.00 | |||
| Xx. Xxxxxx Xxxx Xxxxx | ||
| Xxxxxxxxx Xxxxxxx | ||
| Xxxxx Xxxx | ||
| Xxxx Xxxxxx, JT Ten with Xxxxxxx Xxxxxx | ||
| Xxxxxxx Xxxxxx, JT Ten with Xxxx Xxxxxx | ||
| NINER HOLDINGS, L.L.L.P. | ||
By: |
||
Its: |
||
S-28
Common: |
— | |||
Series I: |
2,850.00 | |||
Series II: |
2,515.00 | |||
Series IV: |
16,262.00 | |||
Series V: |
2,006.00 | |||
Series V-1: |
— | |||
Total: |
23,633.00 | |||
Common: |
— | |||
Series I: |
33,494.00 | |||
Series II: |
14,822.00 | |||
Series IV: |
27,195.00 | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
75,511.00 | |||
Common: |
— | |||
Series I: |
6,340.00 | |||
Series II: |
9,274.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
15,614.00 | |||
Common: |
— | |||
Series I: |
39,627.00 | |||
Series II: |
57,966.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
97,593.00 | |||
Common: |
— | |||
Series I: |
12,680.00 | |||
Series II: |
18,548.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
31,228.00 | |||
| XXXX X. XXXXXXXXX as trustee Xxxx and Xxxxxx Xxxxxxxxx Family Trust | ||
By: |
||
| Xxxx X. Xxxxxxxxx, Trustee | ||
| XXXXXX X. XXXXX REVOCABLE TRUST | ||
| u/a/d 10/16/01 as Amended 1/22/02 | ||
By: |
||
Its: |
||
| XXXX ATLANTIC MASTER TRUST | ||
By: |
||
Its: |
||
| HONEYWELL INTERNATIONAL INC. MASTER RETIREMENT TRUST | ||
By: |
||
Its: |
||
| XXXX ATLANTIC PENSION TRUST | ||
By: |
||
Its: |
||
S-29
Common: |
— | |||
Series I: |
8,481.00 | |||
Series II: |
12,405.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
20,886.00 | |||
Common: |
— | |||
Series I: |
7,371.00 | |||
Series II: |
10,782.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
18,153.00 | |||
Common: |
— | |||
Series I: |
12,694.00 | |||
Series II: |
18,569.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
31,263.00 | |||
Common: |
— | |||
Series I: |
5,792.00 | |||
Series II: |
8,472.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
14,264.00 | |||
Common: |
— | |||
Series I: |
2,436.00 | |||
Series II: |
3,564.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
6,000.00 | |||
| GM HOURLY RATE EMPLOYEES PENSION TRUST | ||
By: |
||
Its: |
||
| GM SALARIED NON-CONTRIBUTORY RETIREMENT TRUST | ||
By: |
||
Its: |
||
| Xxxxxx Xxxxx | ||
| Xxxx Xxxxxxxx | ||
| Xxxx Xxxxxxxx, Xx. | ||
S-30
Common: |
— | |||
Series I: |
2,436.00 | |||
Series II: |
3,564.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
6,000.00 | |||
Common: |
— | |||
Series I: |
4,060.00 | |||
Series II: |
5,940.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
10,000.00 | |||
Common: |
— | |||
Series I: |
12,171.00 | |||
Series II: |
17,804.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
29,975.00 | |||
Common: |
— | |||
Series I: |
7,890.00 | |||
Series II: |
11,541.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
19,431.00 | |||
Common: |
— | |||
Series I: |
5,123.00 | |||
Series II: |
7,494.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
12,617.00 | |||
| Xxxx X. Xxxxx | ||
| Xxxxxxx X. Xxxxxxxx, III | ||
| X. Xxxxxx Xxxxxxx | ||
| Xxxxxxxx X. Xxxxxx, Xx. | ||
| Xxxxxxx X. Xxxx | ||
S-31
Common: |
4,542.00 | |||
Series I: |
151,098.00 | |||
Series II: |
6,833.00 | |||
Series IV: |
117,652.00 | |||
Series V: |
99,841.00 | |||
Series V-1: |
— | |||
Total: |
379,966.00 | |||
Common: |
95,205.00 | |||
Series I: |
252,494.00 | |||
Series II: |
3,192.00 | |||
Series IV: |
363.00 | |||
Series V: |
8.00 | |||
Series V-1: |
— | |||
Total: |
351,262.00 | |||
Common: |
— | |||
Series I: |
19,190.00 | |||
Series II: |
10,000.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
29,190.00 | |||
Common: |
— | |||
Series I: |
2,742.00 | |||
Series II: |
2,500.00 | |||
Series IV: |
9,523.00 | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
14,765.00 | |||
Common: |
— | |||
Series I: |
3,002.00 | |||
Series II: |
2,500.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
5,502.00 | |||
| XXXXXX X. AND XXXXXX XXXXXX FAMILY TRUST dtd September 10, 1982 | ||
By: |
||
Its: |
||
| Xxxxxx X. Xxxxxx | ||
| Xxxx Xxxxxxxxxx | ||
| Xxxxxxx X. Xxxxxxx | ||
| Xxxxx Xxxxx | ||
S-32
Common: |
— | |||
Series I: |
24,954.00 | |||
Series II: |
2,500.00 | |||
Series IV: |
— | |||
Series V: |
1,860.00 | |||
Series V-1: |
— | |||
Total: |
29,314.00 | |||
Common: |
— | |||
Series I: |
9,980.00 | |||
Series II: |
— | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
9,980.00 | |||
Common: |
172,497.00 | |||
Series I: |
19,960.00 | |||
Series II: |
— | |||
Series IV: |
76,190.00 | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
268,647.00 | |||
Common: |
— | |||
Series I: |
249,539.00 | |||
Series II: |
— | |||
Series IV: |
238,095.00 | |||
Series V: |
17,360.00 | |||
Series V-1: |
— | |||
Total: |
504,994.00 | |||
Common: |
— | |||
Series I: |
— | |||
Series II: |
47,028.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
47,028.00 | |||
| Xxxxx Xxxxxxxxxx | ||
| Xxxxx Xxxxxxxx | ||
| Xxx Xxxxxxxxxx | ||
| XXXXX 1997 DYNASTY TRUST | ||
By: |
||
Its: |
||
| BANKAMERICA CAPITAL | ||
By: |
||
Its: |
||
S-33
Common: |
— | |||
Series I: |
— | |||
Series II: |
397,335.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
397,335.00 | |||
Common: |
— | |||
Series I: |
— | |||
Series II: |
331,096.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
331,096.00 | |||
Common: |
— | |||
Series I: |
— | |||
Series II: |
30,794.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
30,794.00 | |||
Common: |
— | |||
Series I: |
— | |||
Series II: |
5,000.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
5,000.00 | |||
Common: |
— | |||
Series I: |
— | |||
Series II: |
1,041.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
1,041.00 | |||
| BANKAMERICA VENTURES | ||
By: |
||
Its: |
||
| KCB BV, L.P. | ||
By:
|
KCB BV, Inc., its General Partner | |
By: |
||
Its: |
||
| THE JEWISH COMMUNAL FUND | ||
By: |
||
Its: |
||
| CALCOM PENSION PLAN | ||
By: |
||
Its: |
||
| Xxxxx Xxxxxxx | ||
S-34
Common: |
21.00 | |||
Series I: |
— | |||
Series II: |
— | |||
Series IV: |
7,923.00 | |||
Series V: |
2,556.00 | |||
Series V-1: |
— | |||
Total: |
10,500.00 | |||
Common: |
— | |||
Series I: |
— | |||
Series II: |
2,000.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
2,000.00 | |||
Common: |
— | |||
Series I: |
— | |||
Series II: |
2,000.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
2,000.00 | |||
Common: |
— | |||
Series I: |
— | |||
Series II: |
915,022.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
915,022.00 | |||
Common: |
— | |||
Series I: |
— | |||
Series II: |
30,844.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
30,844.00 | |||
| XXXXXXX X. AND XXXXX XXXXXX | ||
| Trustees under the Moelis Family Trust | ||
By: |
||
| Xxxxxxx X. Xxxxxx, Trustee | ||
By: |
||
| Xxxxx Xxxxxx, Trustee | ||
| XXXXXX X. XXX AND XXXXXXX X. XXXX as Trustees for the Woo Family Trustee for the Woo Family Trust dated November 20, 1998 | ||
By: |
||
| Xxxxxx X. Xxx, Trustee | ||
By: |
||
| Xxxxxxx X. Xxxx, Trustee | ||
| Xxxxx X. Spangenbergh | ||
| GRP MANAGEMENT SERVICES CORP., as Escrow Agent for GRP II, L.P. | ||
By: |
||
Its: |
||
| GRP MANAGEMENT SERVICES CORP., as Escrow Agent for GRP II Partners, L.P. | ||
By: |
||
Its: |
||
S-35
Common: |
— | |||
Series I: |
— | |||
Series II: |
82,249.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
82,249.00 | |||
Common: |
1,191.00 | |||
Series I: |
— | |||
Series II: |
2,184.00 | |||
Series IV: |
502.00 | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
3,877.00 | |||
Common: |
— | |||
Series I: |
— | |||
Series II: |
6,250.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
6,250.00 | |||
Common: |
— | |||
Series I: |
— | |||
Series II: |
5,000.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
5,000.00 | |||
Common: |
— | |||
Series I: |
— | |||
Series II: |
3,500.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
3,500.00 | |||
| GRP MANAGEMENT SERVICES CORP., as Escrow Agent for GRP II Investors, L.P. | ||
By: |
||
Its: |
||
| XXXXXX X. XXXXXXXX CHILDREN’S TRUST dated 12/28/95 — Xxxxxx X. Xxxxxx — Trustee 04/24/07 | ||
By: |
||
Its: |
||
| Xxxxxx Xxxxxxx | ||
| Xxxx X. Xxxxx | ||
| Xxxxx Xxxxx | ||
S-36
Common: |
— | |||
Series I: |
— | |||
Series II: |
2,000.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
2,000.00 | |||
Common: |
— | |||
Series I: |
— | |||
Series II: |
5,000.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
5,000.00 | |||
Common: |
— | |||
Series I: |
— | |||
Series II: |
5,000.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
5,000.00 | |||
Common: |
200,795.00 | |||
Series I: |
— | |||
Series II: |
16,583.00 | |||
Series IV: |
— | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
217,378.00 | |||
Common: |
3,000.00 | |||
Series I: |
— | |||
Series II: |
— | |||
Series IV: |
56,549.00 | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
59,549.00 | |||
| Xxxx Xxxxxxx | ||
| Xxxxx X. Xxxxxx | ||
| Xxxxxxxx Xxxxxx | ||
| Xxxxxxx X. Xxxxxx | ||
| Xxxxxxxx X. Xxxxxxx | ||
S-37
Common: |
— | |||
Series I: |
— | |||
Series II: |
— | |||
Series IV: |
476,190.00 | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
476,190.00 | |||
Common: |
— | |||
Series I: |
— | |||
Series II: |
— | |||
Series IV: |
23,809.00 | |||
Series V: |
775.00 | |||
Series V-1: |
— | |||
Total: |
24,584.00 | |||
Common: |
228.00 | |||
Series I: |
— | |||
Series II: |
— | |||
Series IV: |
73,561.00 | |||
Series V: |
6,541.00 | |||
Series V-1: |
— | |||
Total: |
80,330.00 | |||
Common: |
— | |||
Series I: |
— | |||
Series II: |
— | |||
Series IV: |
— | |||
Series V: |
2,333,333.00 | |||
Series V-1: |
— | |||
Total: |
2,333,333.00 | |||
Common: |
331.00 | |||
Series I: |
— | |||
Series II: |
— | |||
Series IV: |
— | |||
Series V: |
116,667.00 | |||
Series V-1: |
— | |||
Total: |
116,998.00 | |||
| INTERNET TECHNOLOGY VENTURES, LLC | ||
By: |
||
Its:
|
Managing Member | |
| Xxxxxxx X. Xxxxxxx | ||
| DLJ ESC II, L.P. | ||
By:
|
DLJ LBO PLANS MANAGEMENT CORPORATION | |
| General Partner | ||
By: |
||
Its: |
||
| ANNAPOLIS VENTURES LLC | ||
By:
|
Annapolis Operations, LLC | |
| its Managing Member | ||
By: |
||
Its: |
||
| XXXXXX XXXXXX PARTNERS, LLC | ||
By: |
||
Its: |
||
S-38
Common: |
93.00 | |||
Series I: |
12,084.00 | |||
Series II: |
10,227.00 | |||
Series IV: |
23.00 | |||
Series V: |
— | |||
Series V-1: |
— | |||
Total: |
22,427.00 | |||
| BANQUE CANTONALE DE GENEVE | ||
By: |
||
Its: |
||
S-39
Common Stockholders |
||||
Total Common Voting Shares: |
11,743,817.00 | |||
Total Common Shares Voted: |
||||
Series I Preferred Stockholders |
||||
Total Preferred Voting Shares: |
16,768,882.00 | |||
Total Preferred Shares Voted: |
||||
Series II Preferred Stockholders |
||||
Total Preferred Voting Shares: |
7,420,130.00 | |||
Total Preferred Shares Voted: |
||||
Series IV Preferred Stockholders |
||||
Total Preferred Voting Shares: |
19,145,558.00 | |||
Total Preferred Shares Voted: |
||||
Series V Preferred Stockholders |
||||
Total Preferred Voting Shares: |
21,447,959.34 | |||
Total Preferred Shares Voted: |
||||
Series V-I Preferred Stockholders |
||||
Total Preferred Voting Shares: |
920,000.00 | |||
Total Preferred Shares Voted: |
||||
Total Voting Shares: |
77,446,346.34 | |||
Total Shares Voted: |
||||
S-40
