AMENDMENT TO STOCKHOLDERS’ AGREEMENT
Exhibit 10.20
AMENDMENT TO STOCKHOLDERS’ AGREEMENT
THIS AMENDMENT TO STOCKHOLDERS’ AGREEMENT (this “Amendment”) is entered into
as of December 29, 2006 (the “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 (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. Addition of Stockholders. The stockholders listed on the attached Exhibit
D are hereby constituted as Other Stockholders and Stockholders for all purposes of the
Original Agreement, as amended by this Amendment.
2. Election of Directors. Section 1.1(b) of the Original Agreement is hereby amended
to read, in its entirety, as follows:
(b) the following individuals shall be elected to the Board:
(i) two (2) individuals (the “FTV Directors”) nominated by Financial
Technologies Management II LLC (including its Affiliates, “FTV”);
(ii) two (2) individuals (the “TrustWave Directors”) nominated by the
holders (the “TrustWave Majority Holders”) of a majority of the issued and
outstanding shares of Common Stock owned by the Persons listed on Exhibit C
attached hereto (the “TrustWave Common Holders”);
(iii) two (2) individuals (the “Xxxxxxx Directors”) nominated by
Xxxxxxx Xxxxxxx (“Xxxxxxx”);
(iv) two (2) individuals (the “MBK Directors”) nominated by MBK
Ventures, LLC, an Illinois limited liability company (“MBK”); and
(v) one (1) individual (the “SecurePipe Director”) nominated by the
holders (the “SecurePipe Majority Holders”) of either (A) a majority of the
issued and outstanding shares of Common Stock owned by the Persons listed on
Exhibit D attached hereto (the “SecurePipe Major Holders”) or, (B)
if such a majority of the SecurePipe Common Holders cannot be obtained, a plurality
of the issued and outstanding shares of Common Stock owned by the SecurePipe Major
Holders.
3. Election of SecurePipe Director. The undersigned hereby approve and elect
___________ to serve on the Board of Directors of the Company as the SecurePipe Director until his
successor is duly elected and qualified in accordance with the provisions of the Agreement, as
amended by this Amendment, and the Company’s Bylaws.
4. Vacancies and Removal. Section 1.2 of the Original Agreement is amended by
inserting a new subsection (g) to read, in its entirety, as follows:
(g) The Stockholders shall vote all of their shares of capital stock of the Company to
cause any SecurePipe 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 SecurePipe Majority Holders or for
Cause.
5. Right to Appoint Directors. Section 1.3 of the Original Agreement is amended by
inserting new subsections (g) and (h) to read, in their entireties, as follows:
(g) SecurePipe Common Holders. At such time as the holders of Common Stock who
received such Common Stock pursuant to that certain Agreement and Plan of Merger and
Reorganization by and among the Company, SecurePipe, Inc. and certain stockholders of
SecurePipe, Inc. the (“SecurePipe Common Holders”) hold less than twenty percent
(20%) of the shares of Common Stock held by the SecurePipe Common Holders on the date
hereof, the SecurePipe Majority Holders shall not be entitled to nominate any SecurePipe
Director to the Board pursuant to Section 1.1(b) and the obligations of the other
Stockholders to vote their shares in favor of election of the SecurePipe Majority Holders’
nominee under Section 1.1(b), and the obligations of the other Stockholders to vote to
remove any SecurePipe Director under Section 1.2, shall terminate and be of no further force
or effect. For so long as the SecurePipe Majority Holders are entitled to nominate a
SecurePipe Director to the Board pursuant to Section 1.1(b), the Board shall not create any
committee other than the Compensation Committee and the Audit Committee without offering to
include on any such committee the SecurePipe Director.
(h) SecurePipe Observer. The SecurePipe Majority Holders shall have the right
to appoint one representative (a “SecurePipe Observer”), who initially shall be
____________, from time to time who shall: (a) receive notice of all meetings of the Board
and each committee thereof (such notice to be delivered or mailed as specified
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herein at the same time as notice is given to the members of such Board and/or
committee); (b) be entitled to attend (or, in the case of telephone meetings, monitor) all
such meetings; (c) receive all notices, information and reports which are furnished to the
members of such board and/or committee at the same time and in the same manner as the same
is furnished to any such member; (d) be entitled to participate in all discussions conducted
at such meetings; and (e) receive as soon as available (but in any event prior to the next
succeeding meeting of such board and/or committee) copies of the minutes of all such
meetings. If any action is proposed to be taken by such Board and/or committee by written
consent in lieu of a meeting, the Company will give written notice thereof to such
SecurePipe Observer. The rights granted to the SecurePipe Majority Holders under this
Section may not be transferred by the SecurePipe Majority Holders to any party. All
expenses related to the SecurePipe Observer’s participation shall be borne exclusively by
the SecurePipe Majority Holders.
6. Definition of Eligible Stockholders. The definition of the term “Eligible
Stockholders” for purposes of Sections 3.2 and 3.3 of the Original Agreement, as amended by
this Amendment, is hereby amended to mean any Stockholder holding at least 100,000 Shares (as
adjusted for stock splits and on an as-converted basis) as of the Amendment Date and as of the date
of the Offer.
7. Modification or Amendment. Section 4.9 of the Original Agreement is hereby amended
to read, in its entirety, as follows:
4.9 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 2/3% 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
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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.
8. 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.
9. 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]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the
Amendment Date.
| COMPANY: | ||||||||
| TRUSTWAVE HOLDINGS, INC. | ||||||||
| By: | /s/ Xxxxxx XxXxxxxx | |||||||
| Name: | Xxxxxx XxXxxxxx | |||||||
| Title: | Chief Executive Officer | |||||||
| STOCKHOLDERS: | ||||||||
| Financial Technology Ventures II (Q), L.P. | ||||||||
| By: | Financial Technology Management II, LLC | |||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||||
| Name: | Xxxxxxx X. Xxxxxx | |||||||
| Title: | Chief Executive Officer | |||||||
| Financial Technology Ventures II, L.P. | ||||||||
| By: | Financial Technology Management II, LLC | |||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||||
| Name: | Xxxxxxx X. Xxxxxx | |||||||
| Title: | Chief Executive Officer | |||||||
| /s/ Xxxxxxx Xxxxxxx | ||||||||
| Xxxxxxx Xxxxxxx | ||||||||
| /s/ Xxxxx Xxxxxxxxx | ||||||||
| Xxxxx Xxxxxxxxx | ||||||||
| /s/ Xxxxxx X. Xxxxxxxxx | ||||||||
| Xxxxxx X. Xxxxxxxxx | ||||||||
SIGNATURE PAGE TO STOCKHOLDERS AGREEMENT
| /s/ Xxxxxxx X. Xxxxx | ||||
| Xxxxxxx X. Xxxxx | ||||
| MBK Ventures, LLC | ||||
| By: | /s/ Xxxxxx XxXxxxxx | |||
| Name: | Xxxxxx XxXxxxxx | |||
| Title: | Manager | |||
| [SECUREPIPE HOLDERS] |
||||
SIGNATURE PAGE TO STOCKHOLDERS AGREEMENT
| ARGENTUM CAPITAL PARTNERS II, L.P. By: Argentum Partners II, L.L.C. |
||||||||
| By: | /s/ Xxxxxx Xxxxxxxxxxx- | |||||||
| Its: | ||||||||
| PRISM OPPORTUNITY FUND IV, L.P. By: POF Partners SBIC, Inc., its General Partner |
||||||||
| By: | /s/ Xxxxxx X. Funkel | |||||||
| Its: | President | |||||||
| 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 | |||||||
| 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 | |||||||
| FA PRIVATE EQUITY FUND IV, L.P. By: FA Private Equity Management IV, L.L.C., its General Partner By: First Analysis Private Equity Management Company IV, L.L.C., its Managing Member By: First Analysis Venture Operations and Research, L.L.C., its Managing Member By: First Analysis Corporation, its Manager |
||||||||
| By: | /s/ Xxxxxx X. Xxxxx | |||||||
| /s/ Xxxxxx Xxxxx | ||||||||
| Xxxxxx Xxxxx | ||||||||
| /s/ Xxxxx Xxxxxxxxx | ||||||||
| Xxxxx Xxxxxxxxx | ||||||||
| /s/ Xxxxx Xxxx | ||||||||
| Xxxxx Xxxx | ||||||||
| /s/ Arch Xxxxxx | ||||||||
| Arch X. Xxxxxx | ||||||||
| /s/ Xxx Xxxxxxxx | ||||||||
| Xxx Xxxxxxxx | ||||||||
| /s/ Xxxxx Xxxxxxxx | ||||||||
| Xxxxx Xxxxxxxx | ||||||||
| /s/ Art Xxxxxx | ||||||||
| Art Xxxxxx | ||||||||
| /s/ Xxxxxxxx Xxxxxx | ||||||||
| Xxxxxxxx Xxxxxx | ||||||||
| /s/ Xxxxxxxx Xxxxxx | ||||||||
| Comet Capital LLC Xxxxxxxx Xxxxxx, Manager |
||||||||
| /s/ Xxxxxx X. Xxxxxx | ||||||||
| Xxxxxx X. Xxxxxx | ||||||||
| Xxxxxxx Xxx and Xxxxxxx Xxxxx Xxxxxx Revocable Trust dated November 15, 2002 |
||||||||
| By: | /s/ Xxxxxxx Xxx | |||||||
| Xxxxxx Xxxxxxxx, Trustee Xxxxxxxx Family Trust | ||||||||
| By: | /s/ Xxxxxx Xxxxxxx | |||||||
SIGNATURE PAGE TO STOCKHOLDERS AGREEMENT
| /s/ Xxxxxxx Xxxxxx | ||||||||
| Xxxxxxx Xxxxxx | ||||||||
| Xxxxx Family 2000 Trust, dated February 29, 2000 | ||||||||
| By: | /s/ Xxxxx X. Xxxxx, Trustee | |||||||
| Wonder Trust and Abundance Trust | ||||||||
| By: | /s/ Xxxxxxx X. Kiklenny, Trustee of Abundance Trust | |||||||
| By: | /s/ Xxxxxxxx X. Xxxxxx, Trustee of Wonder Trust | |||||||
| The Xxxxxx Family Trust, dated May 10, 1999 | ||||||||
| By: | /s/ [illegible signature] | |||||||
| /s/ Xxxxxxx X. Xxxxxx | ||||||||
| Xxxxxxx X. Xxxxxx | ||||||||
| /s/ Xxxxx X. Xxxxxxxx | ||||||||
| Xxxxx X. Xxxxxxxx | ||||||||
| /s/ Xxxxx X. Xxxxxxxx | ||||||||
| Xxxxx X. Xxxxxxxx | ||||||||
| /s/ Xxxxxx X. Xxxxxx | ||||||||
| /s/ Xxxxx X. X’Xxxxxxx | ||||||||
| Xxxxx X. X’Xxxxxxx | ||||||||
| /s/ Xxxxxxx X. Xxxxxx | ||||||||
| Xxxxxxx X. Xxxxxx | ||||||||
| /s/ Xxxxxxx X. Xxxxxx | ||||||||
| Xxxxxxx X. Xxxxxx | ||||||||
SIGNATURE PAGE TO STOCKHOLDERS AGREEMENT
| /s/ Xxxxxxx Xxxxxxxxx | ||||||||
| Xxxxxxx Xxxx | ||||||||
| /s/ Xxxx Xxxxx | ||||||||
| Xxxx Xxxxx | ||||||||
| /s/ Xxxxxxxxx Xxxxxxx | ||||||||
| Xxxxxxxxx Xxxxxxx | ||||||||
| Xxxxxxx Xxx and Xxxxxxx Xxxxx
Xxxxxx Revocable Trust, dated November 15, 2002 |
||||||||
| By: | /s/ Xxxxxxx Xxxxxx, Trustee | |||||||
| Xxxxxx Xxxxxxxx, Trustee Xxxxxxxx Family Trust | ||||||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||||||
SIGNATURE PAGE TO STOCKHOLDERS AGREEMENT
EXHIBIT D
List of SecurePipe Major Holders
