EXHIBIT 10.13
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STOCK PURCHASE AGREEMENT
by and among
SRA INTERNATIONAL, INC.,
GENERAL ATLANTIC PARTNERS 75, L.P.,
GAP COINVESTMENT PARTNERS II, L.P.,
GAPSTAR, LLC,
GAPCO GMBH & CO. KG
and
THE SELLING STOCKHOLDERS LISTED HEREIN
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Dated: April 22, 2002
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Table of Contents
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Page
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ARTICLE I DEFINITIONS............................................................................1
1.1 Definitions............................................................................1
ARTICLE II PURCHASE AND SALE OF CLASS A COMMON STOCK..............................................6
2.1 Purchase and Sale of Class A Common Stock from the Company.............................6
2.2 Purchase and Sale of Class A Common Stock from the Selling Stockholders................7
2.3 Use of Proceeds........................................................................7
2.4 Closing................................................................................7
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY..........................................8
3.1 Corporate Existence and Power..........................................................8
3.2 Authorization; No Contravention........................................................8
3.3 Governmental Authorization; Third Party Consents.......................................8
3.4 Binding Effect.........................................................................8
3.5 Litigation.............................................................................9
3.6 Compliance with Laws...................................................................9
3.7 Capitalization.........................................................................9
3.8 No Default or Breach; Contractual Obligations.........................................10
3.9 Reports; Financial Statements.........................................................11
3.10 Taxes.................................................................................11
3.11 No Material Adverse Change; Ordinary Course of Business...............................12
3.12 Private Offering......................................................................12
3.13 Employee Benefit Plans................................................................12
3.14 Liabilities...........................................................................13
3.15 Intellectual Property.................................................................13
3.16 Computer Back-up......................................................................14
3.17 Potential Conflicts of Interest.......................................................15
3.18 Broker's, Finder's or Similar Fees....................................................15
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS............................15
4.1 Power and Authority...................................................................15
4.2 Authorization; No Contravention.......................................................15
4.3 Title to Purchased Shares.............................................................16
4.4 Governmental Authorization; Third Party Consents......................................16
4.5 Binding Effect........................................................................16
4.6 Litigation............................................................................16
4.7 Private Offering......................................................................16
4.8 Broker's, Finder's or Similar Fees....................................................16
4.9 Company Representation................................................................17
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ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS......................................17
5.1 Existence and Power...................................................................17
5.2 Authorization; No Contravention.......................................................17
5.3 Governmental Authorization; Third Party Consents......................................17
5.4 Binding Effect........................................................................18
5.5 Purchase for Own Account..............................................................18
5.6 Restricted Securities.................................................................18
5.7 Broker's, Finder's or Similar Fees....................................................18
5.8 Accredited Investor...................................................................19
5.9 Group.................................................................................19
ARTICLE VI CONDITIONS TO THE OBLIGATION OF THE PURCHASERS TO CLOSE...............................19
6.1 Secretary's Certificate...............................................................19
6.2 Purchased Shares......................................................................19
6.3 Registration Rights Agreement.........................................................19
6.4 Stockholders Agreement................................................................20
6.5 Opinion of Counsel....................................................................20
6.6 Board of Directors....................................................................20
ARTICLE VII CONDITIONS TO THE OBLIGATION OF THE COMPANY AND THE SELLING STOCKHOLDERS TO CLOSE.....20
7.1 Payment of Purchase Price.............................................................20
7.2 Registration Rights Agreement.........................................................20
7.3 Stockholders Agreement................................................................20
7.4 Lock-up Agreement.....................................................................20
ARTICLE VIII INDEMNIFICATION.......................................................................20
8.1 Indemnification.......................................................................20
8.2 Notification..........................................................................21
8.3 Contribution..........................................................................22
8.4 Cap on Indemnification................................................................23
ARTICLE IX AFFIRMATIVE COVENANTS OF THE COMPANY..................................................23
9.1 Financial Statements and Other Information............................................23
ARTICLE X MISCELLANEOUS.........................................................................24
10.1 Survival of Representations and Warranties............................................24
10.2 Notices...............................................................................24
10.3 Successors and Assigns; Third Party Beneficiaries.....................................26
10.4 Amendment and Waiver..................................................................26
10.5 Counterparts..........................................................................27
10.6 Headings..............................................................................27
10.7 GOVERNING LAW ........................................................................27
10.8 Severability..........................................................................27
10.9 Rules of Construction.................................................................27
10.10 Entire Agreement......................................................................27
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10.11 Fees..................................................................................27
10.12 Confidentiality.......................................................................27
10.13 Public Announcements. ...............................................................28
10.14 Further Assurances....................................................................29
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EXHIBITS
A Form S-1/A
B Form of Registration Rights Agreement
C Form of Stockholders Agreement
D Form of Xxxx and Xxxx LLP Opinion
E Form of Lock-up Agreement
SCHEDULES
I Selling Stockholders
2.1 Company Purchased Shares, Stockholder Purchased Shares and Purchase Price
4.9 Exempt Selling Stockholders
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STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated April 22, 2002 (this
"Agreement"), by and among SRA International, Inc., a Delaware corporation (the
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"Company"), General Atlantic Partners 75, L.P., a Delaware limited partnership
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("GAP LP"), GAP Coinvestment Partners II, L.P., a Delaware limited partnership
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("GAP Coinvestment"), GAPCO GmbH & Co. KG, a German limited partnership ("GAPCO
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KG"), GapStar, LLC, a Delaware limited liability company ("GapStar" and,
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collectively with GAP LP, GAP Coinvestment and GAPCO KG, the "Purchasers"), and
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the Stockholders listed on Schedule I hereto (the "Selling Stockholders").
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WHEREAS, upon the terms and conditions set forth in this
Agreement, the Company proposes to issue and sell to each of the Purchasers the
aggregate number of shares of Class A Common Stock, par value $0.004 per share,
of the Company (the "Class A Common Stock"), set forth opposite such Purchaser's
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name on Schedule 2.1 hereto, for the aggregate purchase price set forth opposite
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such Purchaser's name on Schedule 2.1 hereto; and
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WHEREAS, upon the terms and conditions set forth in this
Agreement, the Selling Stockholders propose to sell to each of the Purchasers
the aggregate number of shares of Class A Common Stock set forth opposite such
Purchaser's name on Schedule 2.1 hereto, for the aggregate purchase price set
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forth opposite such Purchaser's name on Schedule 2.1 hereto.
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NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
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1.1 Definitions. As used in this Agreement, and unless the
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context requires a different meaning, the following terms have the meanings
indicated:
"Affiliate" shall mean any Person who is an "affiliate" as
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defined in Rule 12b-2 of the General Rules and Regulations under the Exchange
Act.
"Agreement" means this Agreement as the same may be amended,
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supplemented or modified in accordance with the terms hereof.
"Audited Financial Statements" has the meaning set forth in
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Section 3.9 of this Agreement.
"Board of Directors" means the Board of Directors of the
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Company.
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"Business Day" means any day other than a Saturday, Sunday or
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other day on which commercial banks in the State of New York are authorized or
required by law or executive order to close.
"By-laws" means the By-laws of the Company in effect on the
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date hereof.
"Certificate of Incorporation" means the Restated Certificate
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of Incorporation of the Company in effect on the date hereof.
"Claims" has the meaning set forth in Section 3.5 of this
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Agreement.
"Class A Common Stock" has the meaning set forth in the
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preamble to this Agreement.
"Class B Common Stock" means the Class B Common Stock, par
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value $0.004 per share, of the Company.
"Closing" has the meaning set forth in Section 2.4 of this
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Agreement.
"Closing Date" has the meaning set forth in Section 2.4 of
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this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended, or
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any successor statute thereto.
"Commission" means the United States Securities and Exchange
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Commission or any similar agency then having jurisdiction to enforce the
Securities Act.
"Commonly Controlled Entity" means any entity which is under
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common control with the Company within the meaning of Code Section 414(b), (c),
(m), (o) or (t).
"Company" has the meaning set forth in the preamble to this
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Agreement.
"Company Indemnifying Party" has the meaning set forth in
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Section 8.1 of this Agreement.
"Company Information" has the meaning set forth in Section
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10.12 of this Agreement.
"Company Plans" means each Plan that the Company and each of
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its Subsidiaries maintains or to which the Company and each of its Subsidiaries
contributes.
"Company Purchased Shares" has the meaning set forth in
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Section 2.1 of this Agreement.
"Condition of the Company" means the assets, business,
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properties, operations or condition (financial or otherwise) of the Company and
its Subsidiaries, taken as a whole.
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"Contractual Obligations" means, as to any Person, any
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provision of any security issued by such Person or of any agreement,
undertaking, contract, indenture, mortgage, deed of trust or other instrument to
which such Person is a party or by which it or any of its property is bound.
"Copyrights" means any foreign or United States copyright
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registrations and applications for registration thereof, and any non-registered
copyrights.
"Environmental Laws" means federal, state, local and foreign
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laws, principles of common laws, civil laws, regulations, and codes, as well as
orders, decrees, judgments or injunctions, issued, promulgated, approved or
entered thereunder relating to pollution, protection of the environment or
public health and safety.
"ERISA" means the Employee Retirement Income Security Act of
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1974, as amended.
"Exchange Act" means the Securities Exchange Act of 1934, as
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amended, and the rules and regulations of the Commission thereunder.
"GAAP" means United States generally accepted accounting
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principles in effect from time to time.
"GAP Coinvestment" has the meaning set forth in the preamble
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to this Agreement.
"GAP Group" has the meaning set forth in Section 5.9 of this
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Agreement.
"GAP LLC" means General Atlantic Partners, LLC, a Delaware
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limited liability company and the general partner of GAP LP and the managing
member of GapStar, and any successor to such entity.
"GAP LP" has the meaning set forth in the preamble to this
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Agreement.
"GAPCO KG" has the meaning set forth in the preamble to this
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Agreement.
"GapStar" has the meaning set forth in the preamble to this
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Agreement.
"Governmental Authority" means the government of any nation,
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state, city, locality or other political subdivision thereof, any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government, and any corporation or other entity
owned or controlled, through stock or capital ownership or otherwise, by any of
the foregoing, including, without limitation, the Defense Contract Audit Agency.
"Indemnified Party" has the meaning set forth in Section 8.1
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of this Agreement.
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"Indemnifying Party" has the meaning set forth in Section 8.1
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of this Agreement.
"Internet Assets" means any Internet domain names and other
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computer user identifiers and any rights in and to sites on the worldwide web,
including rights in and to any text, graphics, audio and video files and html or
other code incorporated in such sites.
"Liabilities" has the meaning set forth in Section 3.14 of
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this Agreement.
"Lien" means any mortgage, deed of trust, pledge,
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hypothecation, assignment, encumbrance, lien (statutory or other) or preference,
priority, right or other security interest or preferential arrangement of any
kind or nature whatsoever (excluding preferred stock and equity related
preferences).
"Lock-up Agreement" means a lock-up agreement in the form
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attached hereto as Exhibit E.
"Losses" has the meaning set forth in Section 8.1 of this
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Agreement.
"Material Contractual Obligations" has the meaning set forth
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in Section 3.8 of this Agreement.
"Material Intellectual Property" has the meaning set forth in
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Section 3.15 of this Agreement.
"Orders" has the meaning set forth in Section 3.2 of this
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Agreement.
"Patents" means any foreign or United States patents and
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patent applications, including any divisions, continuations,
continuations-in-part, substitutions or reissues thereof, whether or not patents
are issued on such applications and whether or not such applications are
modified, withdrawn or resubmitted.
"Permits" has the meaning set forth in Section 3.6 of this
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Agreement.
"Person" means any individual, firm, corporation, partnership,
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trust, incorporated or unincorporated association, joint venture, joint stock
company, limited liability company, Governmental Authority or other entity of
any kind, and shall include any successor (by merger or otherwise) of such
entity.
"Plan" means any employee benefit plan, arrangement, policy,
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program, agreement or commitment (whether or not an employee plan within the
meaning of section 3(3) of ERISA), including, without limitation, any
employment, consulting or deferred compensation agreement, executive
compensation, bonus, incentive, pension, profit-sharing, savings, retirement,
stock option, stock purchase or severance pay plan, any life, health, disability
or accident insurance plan, whether oral or written, whether or not subject to
ERISA, as to which the Company or any Commonly Controlled Entity has or in the
future could have any direct or indirect, actual or contingent liability.
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"Purchased Shares" has the meaning set forth in Section 2.2 of
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this Agreement.
"Purchaser Information" has the meaning set forth in Section
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10.12 of this Agreement.
"Purchasers" has the meaning set forth in the preamble to this
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Agreement.
"Registration Rights Agreement" means the Registration Rights
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Agreement in the form attached hereto as Exhibit B.
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"Requirement of Law" means, as to any Person, any law,
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Environmental Law, statute, treaty, rule, regulation, right, privilege,
qualification, license or franchise or determination of an arbitrator or a court
or other Governmental Authority or stock exchange, in each case applicable or
binding upon such Person or any of its property or to which such Person or any
of its property is subject or pertaining to any or all of the transactions
contemplated or referred to herein.
"Reverse Split" means the 1-for-1.273 reverse split of the
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Class A Common Stock and the Class B Common Stock (and the related amendment of
the Certificate of Incorporation) approved by the Board of Directors on April
22, 2002.
"SEC Reports" means the Company's Registration Statement on
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Form S-1 filed with the Commission on March 5, 2002 and Amendment No. 1 thereto
substantially in the form attached hereto as Exhibit A.
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"Securities Act" means the Securities Act of 1933, as amended,
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and the rules and regulations of the Commission thereunder.
"Secretary" has the meaning set forth in the Company's
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By-laws.
"Software" means any computer software programs, source code,
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object code, data and documentation, including, without limitation, any computer
software programs that incorporate and run the Company's pricing models,
formulae and algorithms.
"Stock Equivalents" means any security or obligation which is
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by its terms convertible into or exchangeable or exercisable for shares of
Common Stock or other capital stock of the Company, and any option, warrant or
other subscription or purchase right with respect to common stock or such other
capital stock.
"Stockholders Agreement" means the Stockholders Agreement in
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the form attached hereto as Exhibit C.
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"Stockholder Indemnifying Party" has the meaning set forth in
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Section 8.1 of this Agreement.
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"Stockholder Purchased Shares" has the meaning set forth in
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Section 2.2 of this Agreement.
"Stock Option Plans" means collectively, the Company's 1994
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Stock Option Plan, as amended, the 1985 Key Employee Incentive Plan, and the
2002 Stock Incentive Plan.
"Subsidiaries" means, as of the relevant date of
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determination, with respect to any Person, a corporation or other Person of
which 50% or more of the voting power of the outstanding voting equity
securities or 50% or more of the outstanding economic equity interest is held,
directly or indirectly, by such Person. Unless otherwise qualified, or the
context otherwise requires, all references to a "Subsidiary" or to
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"Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries of
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the Company.
"Taxes" means any federal, state, provincial, county, local,
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foreign and other taxes (including, without limitation, income, profits,
windfall profits, alternative, minimum, accumulated earnings, personal holding
company, capital stock, premium, estimated, excise, sales, use, occupancy, gross
receipts, franchise, ad valorem, severance, capital levy, production, transfer,
withholding, employment, unemployment compensation, payroll and property taxes,
import duties and other governmental charges and assessments), whether or not
measured in whole or in part by net income, and including deficiencies,
interest, additions to tax or interest, and penalties with respect thereto, and
including expenses associated with contesting any proposed adjustments related
to any of the foregoing.
"Trade Secrets" means any trade secrets, research records,
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processes, procedures, manufacturing formulae, technical know-how, technology,
blue prints, designs, plans, inventions (whether patentable and whether reduced
to practice), invention disclosures and improvements thereto.
"Trademarks" means any foreign or United States trademarks,
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service marks, trade dress, trade names, brand names, designs and logos,
corporate names, product or service identifiers, whether registered or
unregistered, and all registrations and applications for registration thereof.
"Transaction Documents" means, collectively, this Agreement,
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the Stockholders Agreement and the Registration Rights Agreement.
ARTICLE II
PURCHASE AND SALE OF CLASS A COMMON STOCK
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2.1 Purchase and Sale of Class A Common Stock from the
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Company. Subject to the terms and conditions herein set forth, the Company
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agrees to issue and sell to each Purchaser, and each Purchaser, severally and
not jointly, agrees to purchase from the Company, on the Closing Date the
aggregate number of shares of Class A Common
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Stock set forth opposite such Purchaser's name on Schedule 2.1 hereto (which
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share numbers are pre-Reverse Split), for the aggregate purchase price set forth
opposite such Purchaser's name on Schedule 2.1 hereto (all of the shares of
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Class A Common Stock being purchased pursuant to this Section 2.1 being referred
to herein as the "Company Purchased Shares").
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2.2 Purchase and Sale of Class A Common Stock from the Selling
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Stockholders. Subject to the terms and conditions herein set forth, the Selling
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Stockholders agree, severally and not jointly, to sell to each Purchaser, and
each Purchaser, severally and not jointly, agrees to purchase from the Selling
Stockholders, on the Closing Date the aggregate number of shares of Class A
Common Stock set forth opposite such Purchaser's name on Schedule 2.1 hereto
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(which share numbers are pre-Reverse Split), for the aggregate purchase price
set forth opposite such Purchaser's name on Schedule 2.1 hereto (all of the
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shares of Class A Common Stock being purchased pursuant to Section 2.2 being
referred to herein as the "Stockholder Purchased Shares"; and together with the
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Company Purchased Shares, the "Purchased Shares").
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2.3 Use of Proceeds. The Company shall use the proceeds from
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the sale of the Company Purchased Shares to the Purchasers for general corporate
purposes, including working capital, capital expenditures, repayment of
borrowings under its credit facility, acquisitions, and strategic investments.
2.4 Closing. The closing of the sale and purchase of the
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Purchased Shares (the "Closing") shall take place at the offices of Xxxx and
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Xxxx XXX, Xxxxxx, Xxxxxxxx, at 10:00 a.m., local time, on April 23, 2002, or at
such other time, place and date that the Company, the Selling Stockholders and
the Purchasers may agree in writing (the "Closing Date"). On the Closing Date,
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(a) the Company shall deliver to each of the Purchasers a certificate or
certificates in definitive form and registered in the name of each such
Purchaser, representing the Company Purchased Shares, (b) each Purchaser will
pay the aggregate purchase price for its Company Purchased Shares by wire
transfer of immediately available funds and (c) (i) each Selling Stockholder
shall deliver to each of the Purchasers certificates representing the
Stockholder Purchased Shares being purchased by such Purchaser from such Selling
Stockholder, duly endorsed in blank or accompanied by duly executed stock
powers, in proper form for transfer, (ii) each Purchaser will deliver to such
Selling Stockholder the aggregate purchase price for the Stockholder Purchased
Shares being sold by such Selling Stockholder by wire transfer of immediately
available funds and (iii) the Company shall (x) register the purchase and sale
of the Stockholder Purchased Shares by the Purchasers pursuant to this Agreement
and (y) in exchange for the certificates delivered to each Purchaser by each
Selling Stockholder pursuant to the preceding clause (i), deliver to each
Purchaser a certificate registered on the Company's stock ledger in the name of
such Purchaser representing the aggregate number of Stockholder Purchased Shares
being purchased by such Purchaser under this Agreement.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
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The Company represents and warrants to each of the Purchasers
on and as of the date hereof and the Closing Date as follows:
3.1 Corporate Existence and Power. The Company and each of its
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Subsidiaries (a) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its formation; (b) has all requisite power and
authority to own and operate its property, to lease the property it operates as
lessee and to conduct the business in which it is currently, or is proposed to
be, engaged; and (c) is duly qualified, licensed and in good standing under the
laws of each jurisdiction in which its ownership, lease or operation of property
or the conduct of its business requires such qualification, except where the
failure to be so qualified would not reasonably be expected to have a material
adverse effect on the Condition of the Company. The Company has the corporate
power and authority to execute, deliver and perform its obligations under this
Agreement and each of the other Transaction Documents.
3.2 Authorization; No Contravention. The execution, delivery
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and performance by the Company of this Agreement and each of the other
Transaction Documents and the transactions contemplated hereby and thereby (a)
have been duly authorized by all necessary corporate action of the Company; (b)
do not contravene the terms of the Certificate of Incorporation or the By-laws
or the organizational documents of any of the Subsidiaries; (c) do not violate,
conflict with or result in any breach, default or contravention of (or with due
notice or lapse of time or both would result in any breach, default or
contravention of), or the creation of any Lien under, any Contractual Obligation
of the Company or any of its Subsidiaries or any Requirement of Law applicable
to the Company or any of its Subsidiaries; and (d) do not violate any judgment,
injunction, writ, award, decree or order of any nature (collectively, "Orders")
known to the Company of any Governmental Authority against, or binding upon, the
Company or any of its Subsidiaries.
3.3 Governmental Authorization; Third Party Consents. No
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approval, consent, compliance, exemption, authorization or other action by, or
notice to, or filing with, any Governmental Authority or any other Person, and
no lapse of a waiting period under a Requirement of Law, is necessary or
required in connection with the execution, delivery or performance (including,
without limitation, the sale, issuance and delivery of the Purchased Shares) by,
or enforcement against, the Company of this Agreement and the other Transaction
Documents or the transactions contemplated hereby and thereby.
3.4 Binding Effect. This Agreement and each of the other
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Transaction Documents have been duly executed and delivered by the Company, and
constitute the legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance or transfer, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general
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principles of equity relating to enforceability (regardless of whether
considered in a proceeding at law or in equity).
3.5 Litigation. Except as disclosed in the SEC Reports, there
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are no actions, suits, proceedings, claims (including, without limitation,
claims involving the prior employment of any of the Company's or any of its
Subsidiaries' employees, their use in connection with the Company's or any of
its Subsidiaries' business of any information or techniques allegedly
proprietary to any of their former employers or their obligations under any
agreements with prior employers), complaints, disputes, arbitrations or
investigations (collectively, "Claims") pending or, to the knowledge of the
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Company, threatened, at law, in equity, in arbitration or before any
Governmental Authority against the Company or any of its Subsidiaries, that
would reasonably be expected to have a material adverse effect on the Condition
of the Company. To the knowledge of the Company, no Order has been issued by any
court or other Governmental Authority against the Company or any of its
Subsidiaries purporting to enjoin or restrain the execution, delivery or
performance of this Agreement or any of the other Transaction Documents.
3.6 Compliance with Laws.
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(a) The Company and each of its Subsidiaries is in
compliance in all material respects with all Requirements of Law and all Orders
issued by any court or Governmental Authority against the Company and each of
its Subsidiaries. To the knowledge of the Company, there is no Requirement of
Law which would reasonably be expected to materially prohibit or restrict the
Company or any of its Subsidiaries from, or otherwise materially adversely
effect the Company or any of its Subsidiaries in, conducting its business in any
jurisdiction in which it now conducts its business.
(b) The Company and each of its Subsidiaries has all
material licenses, permits and approvals of any Governmental Authority
(collectively, "Permits") that are necessary for the conduct of the business of
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the Company and each of its Subsidiaries; such Permits are in full force and
effect; and no material violations are or have been recorded in respect of any
Permit.
3.7 Capitalization.
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(a) On the Closing Date, after giving effect to the
transactions contemplated by this Agreement, the authorized capital stock of the
Company shall consist of (i) 125,000,000 shares of Class A Common Stock, of
which 9,520,370 shares are issued and outstanding, (ii) 37,500,000 shares of
Class B Common Stock, of which 15,610,610 shares are issued and outstanding and
(iii) 5,000,000 shares of preferred stock, par value $0.20 per share, none of
which are issued and outstanding. As of the date of this Agreement, after giving
effect to the transactions contemplated by this Agreement, the aggregate number
of options to purchase shares of Class A Common Stock which may be issued under
the Stock Option Plans is 18,124,699, of which 8,630,472 are outstanding. The
Board of Directors has approved the Reverse Split and expects to submit the
Reverse Split for approval by the Company's stockholders, and, if
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the Reverse Split is approved by the Company stockholders, to effect the Reverse
Split shortly after the Closing Date. There are no options (other than options
granted under the Stock Option Plans), warrants, conversion privileges,
subscription or purchase rights or other rights presently outstanding to
purchase or otherwise acquire (i) any authorized but unissued, unauthorized or
treasury shares of the Company's capital stock, (ii) any Stock Equivalents or
(iii) any other securities of the Company and there are no commitments,
contracts, agreements, arrangements or understandings by the Company to issue
any shares of the Company's capital stock or any Stock Equivalents or other
securities of the Company. The Company Purchased Shares are duly authorized, and
when issued and sold to the Purchasers after payment therefor, will be validly
issued, fully paid and non-assessable, will be issued in compliance with the
registration and qualification requirements of all applicable federal and state
securities laws and will be free and clear of all other Liens, other than those
(x) created by the Certificate of Incorporation or the other Transaction
Documents and (y) created by or arising because the Company Purchased Shares are
held by the Purchasers. All of the issued and outstanding shares of Class A
Common Stock, including the Stockholder Purchased Shares, are duly authorized,
validly issued, fully paid and non-assessable, and were issued in compliance
with the registration and qualification requirements of all applicable federal
and state securities laws.
(b) The Company directly or indirectly owns all of the
issued and outstanding capital stock or other equity interests of its
Subsidiaries, free and clear of all Liens. All of such shares of capital stock
are duly authorized, validly issued, fully paid and non-assessable, and were
issued in compliance with the registration and qualification requirements of all
applicable federal and state securities laws. There are no options, warrants,
conversion privileges, subscription or purchase rights or other rights presently
outstanding to purchase or otherwise acquire any authorized but unissued,
unauthorized or treasury shares of capital stock or other securities of, or any
proprietary interest in, any of the Subsidiaries, and there is no outstanding
security of any kind convertible into or exchangeable for such shares or
proprietary interest.
3.8 No Default or Breach; Contractual Obligations.
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(a) All of the Contractual Obligations filed as exhibits
or described in the SEC Reports or which are otherwise material to the Condition
of the Company (collectively, the "Material Contractual Obligations") are valid,
subsisting, in full force and effect and binding upon the Company or its
Subsidiaries, as the case may be, and, to the knowledge of the Company, the
other parties thereto, and, the Company and each of its Subsidiaries has paid in
full or accrued all material amounts due thereunder and has satisfied in full or
provided for all of its material liabilities and obligations thereunder. Except
as disclosed in the SEC Reports, neither the Company nor any of its Subsidiaries
has received notice of a default or is in default under, or with respect to, any
Material Contractual Obligation nor does any condition exist that with notice or
lapse of time or both would constitute a material default thereunder. Except as
disclosed in the SEC Reports, no other party to any such Material Contractual
Obligation is in default thereunder, nor, to the knowledge of the Company, does
any condition exist
11
that with notice or lapse of time or both would constitute a default by such
other party thereunder.
(b) No audit, investigation or review, including, without
limitation, by the Defense Contract Audit Agency, of any government contract or
agreement is expected by the Company to result in the disallowance of, or claim
for, any amount in excess of $500,000.00 paid or payable to or by the Company or
any of its Subsidiaries under such contract or agreement, whether as a result of
excess payments, excess profit recapture or otherwise. Neither the Company nor
any of its Subsidiaries has been terminated for default under any government
contract, subcontract or agreement. There is no event, circumstance or claim
known to the Company which will or could reasonably be expected to result in the
Company or any of its Subsidiaries receiving a termination for default under any
currently effective government contract, subcontract or agreement or a
termination for convenience under any currently effective Material Contractual
Obligation of the Company or any of its Subsidiaries.
3.9 Reports; Financial Statements.
-----------------------------
(a) The SEC Reports comply in all material respects with
the applicable requirements of the Securities Act and the rules and regulations
of the Commission promulgated thereunder. The SEC Reports do not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. To the
Company's knowledge, after due consideration to all correspondence with the
Commission prior to the date hereof, there exists no fact or circumstance, or
comment by the Commission with respect to its SEC Reports, that would reasonably
be expected to materially prevent the Company's registration statement on Form
S-1 from, or otherwise unreasonably delay the Company's registration statement
on Form S-1, being declared effective.
(b) The audited consolidated financial statements of the
Company and its Subsidiaries (balance sheet and statements of operations, cash
flow and stockholders' equity, together with the notes thereto) for the fiscal
years ended June 30, 2001 and June 30, 2000, and for the nine months ended March
31, 2002, which contain the unqualified report of Deloitte & Touche LLP (the
"Audited Financial Statements"), set forth in the SEC Reports are complete and
----------------------------
correct in all material respects and have been prepared in accordance with GAAP
applied on a consistent basis throughout the periods indicated and with each
other. The Audited Financial Statements fairly present in all material respects
the financial condition, operating results and cash flows of the Company and its
Subsidiaries as of the respective dates and for the respective periods indicated
in accordance with GAAP.
3.10 Taxes. (a) The Company and each of its Subsidiaries has
-----
paid all material Taxes which have come due and are required to be paid by it
through the date hereof, and all deficiencies or other additions to Tax,
interest and penalties owed by it in connection with any such Taxes, other than
Taxes being disputed by the Company and each of its Subsidiaries in good faith
for which adequate reserves have been made in
12
accordance with GAAP; (b) the Company and each of its Subsidiaries has timely
filed or caused to be filed all returns for Taxes that it is required to file on
and through the date hereof (including all applicable extensions), and all such
Tax returns are accurate and complete in all material respects; (c) with respect
to all Tax returns of the Company and each of its Subsidiaries, (i) to the
knowledge of the Company, there is no unassessed Tax deficiency proposed or, to
the knowledge of the Company or any of its Subsidiaries, threatened against the
Company or any of its Subsidiaries and (ii) no audit is in progress with respect
to any return for Taxes, no extension of time is in force with respect to any
date on which any return for Taxes was or is to be filed and no waiver or
agreement is in force for the extension of time for the assessment or payment of
any Tax; (d) all provisions for Tax liabilities of the Company and each of its
Subsidiaries with respect to the Financial Statements have been made in
accordance with GAAP consistently applied; and (e) there are no Liens for Taxes
on the assets of either the Company or any of its Subsidiaries.
3.11 No Material Adverse Change; Ordinary Course of Business.
-------------------------------------------------------
Except as set forth or reflected in the SEC Reports, since March 31, 2002, (a)
there has not been any material adverse change in the Condition of the Company,
(b) the Company and each of its Subsidiaries has not participated in any
transaction material to the Condition of the Company which is outside the
ordinary course of business, (c) the Company and each of its Subsidiaries has
not increased the compensation of any of its officers or the rate of pay of any
of its employees, except as part of regular compensation increases in the
ordinary course of business, (d) the Company and each of its Subsidiaries has
not created or assumed any Lien on a material asset of the Company or any of its
Subsidiaries, and (e) there has not occurred a material change in the Company's
or any of its Subsidiaries' accounting principles or practice except as required
by reason of a change in GAAP.
3.12 Private Offering. No form of general solicitation or
----------------
general advertising was used by the Company or its representatives in connection
with the offer or sale of the Purchased Shares. No registration of the Purchased
Shares, pursuant to the provisions of the Securities Act or any state securities
or "blue sky" laws, will be required by the offer, sale or issuance of the
Purchased Shares. The Company agrees that neither it, nor anyone acting on its
behalf, shall offer to sell the Purchased Shares or any other securities of the
Company so as to require the registration of the Purchased Shares pursuant to
the provisions of the Securities Act or any state securities or "blue sky" laws,
unless such Purchased Shares or other securities are so registered.
3.13 Employee Benefit Plans.
----------------------
(a) The SEC Reports disclose or describe each Company
Plan that is required to be disclosed or described in such SEC Reports pursuant
to the Securities Act. The Company and each of its Subsidiaries has no liability
under any Plans other than the Company Plans. Except as disclosed in the SEC
Reports, neither the Company, its Subsidiaries nor any Commonly Controlled
Entity maintains or contributes to, or has within the preceding six years
maintained or contributed to, or may have any liability with respect to any Plan
subject to Title IV of ERISA or Section 412 of the Code
13
or any "multiple employer plan" within the meaning of the Code or ERISA. Each
Company Plan (and related trust, insurance contract or fund) has been
established and administered in all material respects in accordance with its
terms, and complies in form and in operation in all material respects with the
applicable requirements of ERISA and the Code and other applicable Requirements
of Law.
(b) No Claim with respect to the administration or the
investment of the assets of any Company Plan (other than routine claims for
benefits) is pending.
(c) Each Company Plan that is intended to be qualified
under Section 401(a) of the Code is so qualified and has been so qualified
during the period since its adoption; and each trust created under any such Plan
is exempt from tax under Section 501(a) of the Code and has been so exempt since
its creation.
3.14 Liabilities. The Company and each of its Subsidiaries do
-----------
not have any direct or indirect obligation or liability (the "Liabilities")
-----------
other than (a) Liabilities fully and adequately reflected or reserved against on
the Financial Statements, (b) Liabilities incurred since March 31, 2002 in the
ordinary course of business and (c) Liabilities not required by GAAP to be set
forth on the Financial Statements.
3.15 Intellectual Property.
---------------------
(a) (i) The Company and each of its Subsidiaries is the
owner of all, or has a license under all of, the material Copyrights, Patents,
Trade Secrets, Trademarks, Internet Assets, Software and other proprietary
rights (collectively, such material items referred to as the "Material
--------
Intellectual Property") that are used in connection with its business as
---------------------
presently conducted, free and clear of all Liens.
(ii) None of the Material Intellectual Property
owned by the Company or any of its Subsidiaries is subject to any outstanding
Order, and no action, suit, proceeding, hearing, investigation, charge,
complaint, claim or demand is pending or, to the knowledge of the Company,
threatened, which challenges the validity, enforceability, use or ownership of
the item.
(iii) The Company and each of its Subsidiaries has
performed all material obligations imposed upon it under any material license,
material sublicenses, material distribution agreement or other material
agreement relating to any Material Intellectual Property not owned by the
Company or any of its Subsidiaries, and is not, nor to the knowledge of the
Company, is any other party thereto, in material breach of any material terms or
default of any material terms thereunder in any respect, nor is there any event
known to the Company which with notice or lapse of time or both would constitute
a default of any material term thereunder. All such Material Intellectual
Property licenses are valid, enforceable and in full force and effect, and will
continue to be so on identical terms immediately following the Closing except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar laws
affecting the enforcement of creditors' rights
14
generally and by general principles of equity relating to enforceability
(regardless of whether considered in a proceeding at law or in equity).
(iv) Except as disclosed in the SEC Reports, no
litigation is pending and no Claim has been made against the Company or any of
its Subsidiaries or, to the knowledge of the Company, is threatened, contesting
the right of the Company or any of its Subsidiaries to sell or license to any
Person or use the Material Intellectual Property presently sold or licensed to
such Person or used by the Company or any of its Subsidiaries.
(b) Except as disclosed in the SEC Reports, to the
knowledge of the Company, no Person is infringing upon or otherwise violating
the Material Intellectual Property rights of the Company or any of its
Subsidiaries.
(c) No former employer of any employee of the Company or
any of its Subsidiaries, and no client of any consultant of the Company or any
of its Subsidiaries, has made a claim against the Company or any of its
Subsidiaries or, to the knowledge of the Company, against any other Person, that
such employee or such consultant is utilizing Material Intellectual Property of
such former employer or client.
(d) To the knowledge of the Company, no employee of the
Company or any of its Subsidiaries is in violation of any employment agreement,
patent or invention disclosure agreement or other contract or agreement setting
forth the terms of employment of such employee with the Company or any of its
Subsidiaries or any prior employer, except as would not reasonably be expected
to have a material adverse effect on the Condition of the Company.
(e) To the knowledge of the Company, none of the material
Trade Secrets of the Company, wherever located, the value of which is contingent
upon maintenance of confidentiality thereof, has been disclosed to any Person
other than employees, representatives and agents of the Company or any of its
Subsidiaries or to other Persons who have executed appropriate nondisclosure
agreements, except as required pursuant to the filing of a patent application by
the Company or any of its Subsidiaries.
(f) All present key employees of the Company and each of
its Subsidiaries have executed and delivered invention agreements with the
Company or the applicable Subsidiary, and are obligated under the terms thereof
to assign all inventions made by them during the course of employment to the
Company or the applicable Subsidiary. No such key employee of the Company or any
of its Subsidiaries has excluded works or inventions made prior to his
employment with or work for the Company or any of its Subsidiaries from his
assignment of inventions pursuant to such proprietary invention agreements.
3.16 Computer Back-up. Except as would not reasonably be
----------------
expected to have a material adverse effect on the Condition of the Company, the
Company and each of its Subsidiaries has made back-ups of all material computer
Software and
15
databases utilized by it and maintain such Software and databases at a secure
off-site location.
3.17 Potential Conflicts of Interest. Except as disclosed in
-------------------------------
the SEC Reports, to the knowledge of the Company, no officer or director of the
Company, no stockholder beneficially owning in excess of five percent of the
outstanding Common Stock, and no spouse of any such officer or director (a)
owns, directly or indirectly, any interest in (excepting less than one percent
(1%) stock holdings for investment purposes in securities of publicly held and
traded companies), or is an officer, director, employee or consultant of, any
Person which is, or is engaged in business as, a competitor, (b) has any
relationship with any other Person that would be required to be disclosed in the
SEC Reports under Item 404 of Regulation S-K under the Securities Act; or (c)
owns, directly or indirectly, in whole or in part, any tangible or intangible
property material to the conduct of the business of the Company or its
Subsidiaries.
3.18 Broker's, Finder's or Similar Fees. There are no
----------------------------------
brokerage commissions, finder's fees or similar fees or commissions payable by
the Company or any of its Subsidiaries in connection with the transactions
contemplated hereby based on any agreement, arrangement or understanding with
the Company or any of its Subsidiaries or any action taken by any such Person.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE SELLING STOCKHOLDERS
---------------------------
Each of the Selling Stockholders represents and warrants,
severally and not jointly, to each of the Purchasers on and as of the date
hereof and the Closing Date as follows:
4.1 Power and Authority. Such Selling Stockholder has, as the
-------------------
case may be, (i) the legal capacity, or (ii) the power and authority to execute,
deliver and perform his or its obligations under this Agreement and each of the
other Transaction Documents to which he or it is a party.
4.2 Authorization; No Contravention. The execution, delivery
-------------------------------
and performance by such Selling Stockholder of this Agreement and each of the
other Transaction Documents to which it or he is a party and the transactions of
such Selling Stockholder contemplated hereby and thereby, including, without
limitation, the sale of the Stockholder Purchased Shares by such Selling
Stockholder (i) if applicable, have been duly authorized by all necessary action
of the Selling Stockholder, (ii) if applicable, do not contravene the terms of
the articles of incorporation or by-laws, or similar instrument of organization,
or any amendment thereof, of such Selling Stockholder, (iii) do not violate,
conflict with or result in any breach or contravention of, or the creation of
any Lien under, any Contractual Obligation of such Selling Stockholder, or any
Requirement of Law applicable to such Selling Stockholder, and (iv) do not
violate any Orders known to such Selling Stockholder against, or binding
16
upon, such Selling Stockholder. Such Selling Stockholder is not party to, or
bound by, any agreement that is currently in effect, granting rights to any
Person which are inconsistent with the rights to be granted by such Selling
Stockholder in this Agreement or any of the other Transaction Documents to which
it or he is a party.
4.3 Title to Purchased Shares. Such Selling Stockholder owns
-------------------------
beneficially and of record its Stockholder Purchased Shares being sold to the
Purchasers and has good and valid title to such Stockholder Purchased Shares,
free and clear of all Liens. Such Selling Stockholder has the unrestricted power
and authority to transfer its Stockholder Purchased Shares to the Purchasers.
Upon delivery to the Purchasers of the stock certificates representing such
Selling Stockholder's Stockholder Purchased Shares and payment therefor, the
Purchasers shall acquire good and valid title to such Purchased Shares, free and
clear of all Liens, other than those (x) created by the Certificate of
Incorporation or the other Transaction Documents and (y) created by or arising
because the Stockholder Purchased Shares are held by the Purchasers.
4.4 Governmental Authorization; Third Party Consents. No
------------------------------------------------
approval, consent, compliance, exemption, authorization, or other action by, or
notice to, or filing with, any Governmental Authority or any other Person, and
no lapse of a waiting period under a Requirement of Law is necessary or required
in connection with the execution, delivery or performance (including, without
limitation, the sale, issuance and delivery of the Stockholder Purchased
Shares), by or enforcement against such Selling Stockholder of this Agreement
and each of the other Transaction Documents to which it or he is a party or the
transactions of such Selling Stockholder contemplated hereby.
4.5 Binding Effect. This Agreement and each of the other
--------------
Transaction Documents to which such Selling Stockholder is a party have been
duly executed and delivered by such Selling Stockholder and constitute the
legal, valid and binding obligations of such Selling Stockholder, enforceable
against such Selling Stockholder in accordance with their terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity relating to enforceability (regardless of whether
considered in a proceeding at law or in equity).
4.6 Litigation. There are no Claims pending or, to the
----------
knowledge of such Selling Stockholder, threatened, at law, in equity, in
arbitration or before any Governmental Authority against such Selling
Stockholder purporting to enjoin or restrain the execution, delivery or
performance by such Selling Stockholder of this Agreement or any of the other
Transaction Documents to which it or he is a party.
4.7 Private Offering. No form of general solicitation or
----------------
general advertising was used by such Selling Stockholder or its representatives
in connection with its sale of the Stockholder Purchased Shares.
4.8 Broker's, Finder's or Similar Fees. There are no
----------------------------------
brokerage commissions, finder's fee or similar fees or commissions payable by
such Selling
17
Stockholder in connection with the transactions contemplated hereby based on any
agreement, arrangement or understanding with such Selling Stockholder or any
action taken by such Selling Stockholder.
4.9 Company Representations and Warranties. Except with
--------------------------------------
respect to the Selling Stockholders set forth on Schedule 4.9 hereto, to the
knowledge of such Selling Stockholder (which, in the case of The Volgenau Joint
Revocable Living Trust, shall specifically include the knowledge of Xxxxx
Xxxxxxxx), all of the representations and warranties of the Company set forth in
Article III of this Agreement are true and correct in all respects (without
giving effect to any qualifications as to knowledge set forth in such
representations and warranties).
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
------------------------------------------------
Each of the Purchasers hereby represents and warrants,
severally and not jointly, to the Company and the Selling Stockholders on and as
of the date hereof and the Closing Date as follows:
5.1 Existence and Power. Such Purchaser (a) is a limited
-------------------
partnership or limited liability company, as the case may be, duly organized and
validly existing under the laws of the jurisdiction of its formation and (b) has
the requisite partnership or limited liability company, as the case may be,
power and authority to execute, deliver and perform its obligations under this
Agreement and each of the other Transaction Documents.
5.2 Authorization; No Contravention. The execution, delivery
-------------------------------
and performance by such Purchaser of this Agreement and each of the other
Transaction Documents and the transactions contemplated hereby and thereby, (a)
have been duly authorized by all necessary partnership or limited liability
company, as the case may be, action, (b) do not contravene the terms of such
Purchaser's organizational documents, or any amendment thereof, (c) do not
violate, conflict with or result in any breach, default or contravention of, or
the creation of (or with due notice or lapse of time or both would result in any
breach, default or contravention of), any Lien under, any Contractual Obligation
of such Purchaser or a Requirement of Law applicable to such Purchaser (except
for the Lien created on the Purchased Shares purchased by GapStar to secure its
obligations under a bona fide loan made to acquire such Purchased Shares), and
(d) do not violate any Orders of any Governmental Authority against, or binding
upon, such Purchaser.
5.3 Governmental Authorization; Third Party Consents. No
------------------------------------------------
approval, consent, compliance, exemption, authorization or other action by, or
notice to, or filing with, any Governmental Authority or any other Person, and
no lapse of a waiting period under any Requirement of Law, is necessary or
required in connection with the execution, delivery or performance (including,
without limitation, the purchase of the Purchased Shares) by, or enforcement
against, such Purchaser of this Agreement and
18
each of the other Transaction Documents to which it is a party or the
transactions contemplated hereby and thereby.
5.4 Binding Effect. This Agreement and each of the other
--------------
Transaction Documents have been duly executed and delivered by such Purchaser
and constitutes the legal, valid and binding obligations of such Purchaser,
enforceable against it in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance or transfer, moratorium or similar laws affecting the enforcement of
creditors' rights generally or by general principles of equity relating to
enforceability (regardless of whether considered in a proceeding at law or in
equity).
5.5 Purchase for Own Account. The Purchased Shares to be
------------------------
acquired by such Purchaser pursuant to this Agreement are being acquired for its
own account for investment only, and not with a view to, or for sale in
connection with, any distribution of such Purchased Shares or any part thereof
in any transaction that would be in violation of the securities laws of the
United States of America, any state of the United States or any foreign
jurisdiction. Such Purchaser understands and agrees that such Purchased Shares
have not been registered under the Securities Act and are "restricted
securities" within the meaning of Rule 144 under the Securities Act; and that
the Purchased Shares cannot be sold, transferred or otherwise disposed of except
in compliance with the Securities Act and applicable state and foreign
securities laws, as then in effect. Such Purchaser agrees to the imprinting of a
legend on certificates representing all of its Purchased Shares to the following
effect:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY FOREIGN JURISDICTION.
THE SECURITIES MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT
REQUIRED.
5.6 Restricted Securities. Such Purchaser understands that
---------------------
the Purchased Shares will not be registered at the time of their issuance under
the Securities Act for the reason that the sale provided for in this Agreement
is exempt pursuant to Section 4(2) of the Securities Act and the so-called
"Section 4(1)(1/2) exception" and that the reliance of the Company on such
exemption is predicated in part on such Purchaser's representations set forth
herein.
5.7 Broker's, Finder's or Similar Fees. There are no
----------------------------------
brokerage commissions, finder's fees or similar fees or commissions payable by
such Purchaser in connection with the transactions contemplated hereby based on
any agreement, arrangement or understanding with such Purchaser or any action
taken by such Purchaser.
19
5.8 Accredited Investor. Such Purchaser is an "Accredited
-------------------
Investor" within the meaning of Rule 501 of Regulation D under the Securities
Act, as presently in effect.
5.9 Group. The Purchasers are Affiliates of each other and
-----
constitute a "group" (as defined in Rule 13d-5 promulgated under the Exchange
Act). The Purchasers are also members of a "group" of investment entities that
are Affiliates of GAP LLC (such group, the "GAP Group"). The GAP Group
beneficially owns assets with a fair market value in excess of $100 million.
ARTICLE VI
CONDITIONS TO THE OBLIGATION
OF THE PURCHASERS TO CLOSE
--------------------------
The obligation of the Purchasers to purchase the Purchased
Shares, to pay the purchase price therefor at the Closing and to perform any
obligations hereunder shall be subject to the satisfaction as determined by, or
waiver by, the Purchasers of the following conditions on or before the Closing
Date.
6.1 Secretary's Certificate. The Purchasers shall have
-----------------------
received a certificate from the Company, in form and substance satisfactory to
the Purchasers, dated the Closing Date and signed by the Secretary of the
Company, certifying (a) that the Company is in good standing with the Secretary
of State of the State of Delaware, (b) that the attached copies of the
Certificate of Incorporation, the By-laws, resolutions of the Board of Directors
approving this Agreement (and providing any necessary waivers under the
Certificate of Incorporation and By-laws) and each of the other Transaction
Documents and the transactions contemplated hereby and thereby, are all true,
complete and correct and remain unamended and in full force and effect and (c)
as to the incumbency and specimen signature of each officer of the Company
executing this Agreement, each other Transaction Document and any other document
delivered in connection herewith on behalf of the Company.
6.2 Purchased Shares. The Selling Stockholders shall have
----------------
delivered to each of the Purchasers certificates in definitive form, duly
endorsed in blank or accompanied by duly executed stock powers, representing the
number of Stockholder Purchased Shares set forth opposite such Purchaser's name
on Schedule 2.2 hereto and the Company shall have delivered to each of the
-------------------
Purchasers (i) certificates in definitive form representing the number of
Company Purchased Shares set forth opposite such Purchaser's name on Schedule
--------
2.1 hereto, registered in the name of such Purchaser and (ii) in exchange for
---
the certificates delivered to each of the Purchasers by the Selling
Stockholders, certificates in definitive form representing the number of
Stockholder Purchased Shares set forth opposite such Purchaser's name on
Schedule 2.2 hereto, registered in the name of such Purchaser.
------------
6.3 Registration Rights Agreement. The Company shall have
-----------------------------
duly executed and delivered the Registration Rights Agreement.
20
6.4 Stockholders Agreement. The Company and each of the
----------------------
Selling Stockholders that is a party to the Stockholders Agreement shall have
duly executed and delivered the Stockholders Agreement.
6.5 Opinion of Counsel. The Purchasers shall have received an
------------------
opinion of Xxxx and Xxxx LLP, dated the date hereof, relating to the
transactions contemplated by or referred to herein, substantially in the form
attached hereto as Exhibit D.
---------
6.6 Board of Directors. The Board of Directors shall be
------------------
comprised of six directors and Xxxxxx X. Xxxxxxx shall have been appointed to
the Board of Directors in accordance with the Certificate of Incorporation and
By-laws of the Company.
ARTICLE VII
CONDITIONS TO THE OBLIGATION
OF THE COMPANY AND THE SELLING STOCKHOLDERS TO CLOSE
----------------------------------------------------
The obligation of the Company to issue and sell the Company
Purchased Shares, the obligation of the Selling Stockholders to sell the
Stockholder Purchased Shares and the obligations of the Company and the Selling
Stockholders to perform their other obligations hereunder shall be subject to
the satisfaction as determined by, or waiver by, the Company and the Selling
Stockholders of the following conditions on or before the Closing Date (provided
that the conditions set forth in Sections 7.2 and 7.3 below, shall only be
conditions with respect to the obligations of those Selling Stockholders, if
any, who are parties to such Agreement):
7.1 Payment of Purchase Price. Each Purchaser shall be
-------------------------
prepared to pay the aggregate purchase price for the Purchased Shares to be
purchased by such Purchaser.
7.2 Registration Rights Agreement. Each Purchaser shall have
-----------------------------
duly executed and delivered the Registration Rights Agreement.
7.3 Stockholders Agreement. Each Purchaser shall have duly
----------------------
executed and delivered the Stockholders Agreement.
7.4 Lock-up Agreement. Each Purchaser shall have duly
-----------------
executed and delivered a Lock-up Agreement.
ARTICLE VIII
INDEMNIFICATION
---------------
8.1 Indemnification.
---------------
(a) Subject to the limitations set forth in Section 8.4,
the Company (the "Company Indemnifying Party") agrees to indemnify, defend and
----------------------------
hold
21
harmless each of the Purchasers and its Affiliates and their respective
officers, managers, directors, agents, employees, subsidiaries, partners,
members and controlling persons (each, an "Indemnified Party") to the fullest
-----------------
extent permitted by law from and against any and all losses, Claims, or written
threats thereof (including, without limitation, any Claim by a third party),
damages, expenses (including reasonable fees, disbursements and other charges of
counsel incurred by the Indemnified Party in any action between the Company
Indemnifying Party and the Indemnified Party or between the Indemnified Party
and any third party or otherwise in the manner described in Section 8.2 below)
or other liabilities (collectively, "Losses") resulting from or arising out of
------
any breach of any representation or warranty, covenant or agreement by the
Company in this Agreement.
(b) Subject to the limitations set forth in Section 8.4,
each Selling Stockholder (each, a "Stockholder Indemnifying Party" and together
------------------------------
with the Company Indemnifying Party, an "Indemnifying Party" and collectively,
------------------
the "Indemnifying Parties"), severally, and not jointly, agrees to indemnify,
--------------------
defend and hold harmless the Indemnified Parties to the fullest extent permitted
by law from and against any and all Losses resulting from or arising out of any
breach of any representation or warranty made by such Stockholder Indemnifying
Party in Article IV of this Agreement.
(c) In connection with the obligation of the
Indemnifying Parties to indemnify for expenses as set forth in clauses (a) and
(b) of this Section 8.1, the Indemnifying Parties shall upon presentation of
appropriate invoices containing reasonable detail, reimburse each Indemnified
Party for all such expenses (including reasonable fees, disbursements and other
charges of counsel incurred by the Indemnified Party in any action between the
Indemnifying Parties and the Indemnified Party or between the Indemnified Party
and any third party) as they are incurred by such Indemnified Party; provided,
--------
however, that if such expenses arise out of any action, investigation or other
-------
proceeding commenced by an Indemnified Party (other than as a result of any
action, Claim or written threat by a third party against the Indemnified Party),
the Indemnifying Parties shall reimburse such Indemnified Party for all such
expenses only (x) after the final resolution or disposition of such action,
investigation or other proceeding and (y) if such Indemnified Party prevails in
such action, investigation or other proceeding; and provided, further, that if
-------- -------
an Indemnified Party is reimbursed under this Article VIII for any expenses,
such reimbursement of expenses shall be refunded to the extent it is finally
judicially determined that such expenses resulted or arose primarily from the
gross negligence, bad faith, or willful misconduct of such Indemnified Party.
8.2 Notification. Each Indemnified Party under this Article
------------
VIII shall, promptly after the receipt of notice of the commencement of any
Claim against such Indemnified Party in respect of which indemnity may be sought
from the Indemnifying Parties under this Article VIII, notify the Indemnifying
Parties in writing of the commencement thereof. The omission of any Indemnified
Party to so notify the Indemnifying Party of any such action shall not relieve
the Indemnifying Parties from any liability which it may have to such
Indemnified Party under this Article VIII unless, and only to the extent that,
such omission results in such Indemnifying Party's forfeiture of substantive
rights or defenses, or otherwise materially prejudices such Indemnifying
22
Party's defense of such Claim. In case any such Claim shall be brought against
any Indemnified Party, and it shall notify the Indemnifying Parties of the
commencement thereof, the Indemnifying Parties shall be entitled to assume the
defense thereof at their own expense, with counsel satisfactory to such
Indemnified Party in its reasonable judgment; provided that any Indemnified
Party may, at its own expense, retain separate counsel to participate in such
defense. Notwithstanding the foregoing, in any Claim in which both the
Indemnifying Party, on the one hand, and an Indemnified Party, on the other
hand, are, or are reasonably likely to become, a party, such Indemnified Party
shall have the right to employ separate counsel and to control its own defense
of such Claim if, in the reasonable opinion of counsel to such Indemnified
Party, either (x) one or more defenses are available to the Indemnified Party
that are not available to the Indemnifying Parties or (y) a conflict or
potential conflict exists between the Indemnifying Party, on the one hand, and
such Indemnified Party, on the other hand, that would make such separate
representation advisable; provided, however, that (i) the Indemnifying Parties
-------- -------
shall not be liable for the fees and expenses of more than one counsel to all
Indemnified Parties, (ii) in any action between the Indemnifying Party and the
Indemnified Parties, the Indemnifying Party shall reimburse the Indemnified
Parties for such fees and expenses only (x) after the final resolution or
disposition of such action and (y) if the Indemnified Party prevails in such
action and (iii) in any action between the Indemnified Parties and any third
party, the Indemnifying Parties shall reimburse the Indemnified Parties for such
fees and expenses as such fees and expenses are incurred. The Indemnifying
Parties agree that they will not, without the prior written consent of the
Purchasers, settle, compromise or consent to the entry of any judgment in any
pending or threatened Claim relating to the matters contemplated hereby (if any
Indemnified Party is a party thereto or has been actually threatened to be made
a party thereto) unless such settlement, compromise or consent includes an
unconditional release of each Indemnified Party from all liability arising or
that may arise out of such Claim. The Indemnifying Parties shall not be liable
for any settlement of any Claim effected against an Indemnified Party without
its written consent, which consent shall not be unreasonably withheld.
8.3 Contribution. If the indemnification provided for in this
------------
Article VIII from an Indemnifying Party is unavailable to an Indemnified Party
hereunder in respect of any Losses for which such Indemnified Party would
otherwise be required to indemnify the Indemnified Party under this Article
VIII, then such 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 in such proportion as is appropriate to reflect the
relative fault of such Indemnifying Party and Indemnified Party in connection
with the actions which resulted in such Losses, as well as any other relevant
equitable considerations. The relative faults of such Indemnifying Party and
Indemnified Party 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 Party, 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 as a result of the Losses referred to above shall be
deemed to include any legal or other fees, charges or expenses reasonably
incurred by such party in connection with any investigation or proceeding.
23
8.4 Cap on Indemnification.
----------------------
(a) Absent fraud or willful or intentional misconduct,
the indemnification and contribution provided by the Company Indemnifying Party
and the Stockholder Indemnifying Parties pursuant to Sections 8.1(a), 8.1(b) and
8.3 shall be the sole and exclusive remedy for any Losses.
(b) The amount of any payment by the Company
Indemnifying Party to the Indemnified Parties under this Article VIII in respect
of Losses resulting from or arising out of any indemnification or contribution
claim made pursuant to Section 8.1(a) or 8.3 shall in no event exceed the
aggregate purchase price paid to the Company in consideration of the Company
Purchased Shares.
(c) The amount of any payment by a Stockholder
Indemnifying Party to the Indemnified Parties under this Article VIII in respect
of Losses resulting from or arising out of any indemnification or contribution
claim made pursuant to Section 8.1(b) or 8.3 shall in no event exceed the
aggregate purchase price paid to such Stockholder Indemnifying Party in
consideration of the Stockholder Purchased Shares sold by such Stockholder
Indemnifying Party; provided that the maximum amount of any such payment to be
made by The Volgenau Revocable Living Trust shall be increased by the aggregate
purchase price paid to The Xxxxxx Foundation in consideration of the Stockholder
Purchased Shares sold by The Xxxxxx Foundation.
ARTICLE IX
AFFIRMATIVE COVENANTS OF THE COMPANY
------------------------------------
The Company hereby covenants and agrees with each of the
Purchasers as follows:
9.1 Financial Statements and Other Information. If the
------------------------------------------
Company is not at any time subject to Section 13 or 15(d) of the Exchange Act,
it shall, during such time, deliver to each Purchaser, in form and substance
satisfactory to such Purchaser:
(a) as soon as available, but not later than ninety (90)
days after the end of each fiscal year of the Company, a copy of the audited
consolidated balance sheet of the Company and its Subsidiaries as of the end of
such fiscal year and the related statements of operations and cash flows for
such fiscal year, setting forth in each case in comparative form the figures for
the previous year, all in reasonable detail and accompanied by a management
summary and analysis of the operations of the Company for such fiscal year and
by the opinion of a nationally recognized independent certified public
accounting firm which report shall state without qualification that such
financial statements present fairly the financial condition as of such date and
results of operations and cash flows for the periods indicated in conformity
with GAAP applied on a consistent basis; and
24
(b) as soon as available, but in any event not later than
forty-five (45) days after the end of each of the first three fiscal quarters of
each fiscal year (beginning with the quarter ending September 30, 2002), the
unaudited consolidated balance sheet of the Company and its Subsidiaries, and
the related statements of operations and cash flows for such quarter and for the
period commencing on the first day of the fiscal year and ending on the last day
of such quarter, all certified by an appropriate officer of the Company as
presenting fairly the consolidated financial condition as of such date and
results of operations and cash flows for the periods indicated in conformity
with GAAP applied on a consistent basis, subject to normal year-end adjustments
and the absence of footnotes required by GAAP.
ARTICLE X
MISCELLANEOUS
-------------
10.1 Survival of Representations and Warranties. All of the
------------------------------------------
representations and warranties made herein shall survive the execution and
delivery of this Agreement until the date that is thirty (30) days after the
receipt by the Purchasers of audited consolidated financial statements of the
Company and its Subsidiaries for the fiscal year ending June 30, 2003 (or, if
such fiscal year changes and no such audited consolidated financial statements
are available, then the successor fiscal year), except for (a) the
representations and warranties in Section 4.3, which shall survive indefinitely
and (b) Section 3.10, which shall survive until the later to occur of (i) the
lapse of the statute of limitations with respect to the assessment of any Tax to
which such representation and warranty relates (including any extensions or
waivers thereof) and (ii) sixty (60) days after the final administrative or
judicial determination of the Taxes to which such representation and warranty
relates, and no claim with respect to Section 3.10 may be asserted thereafter
with the exception of claims arising out of any fact, circumstance, action or
proceeding to which the party asserting such claim shall have given notice to
the other parties to this Agreement prior to the termination of such period of
reasonable belief that a tax liability will subsequently arise therefrom.
10.2 Notices. All notices, demands and other communications
-------
provided for or permitted hereunder shall be made in writing and shall be by
registered or certified first-class mail, return receipt requested, telecopier,
courier service or personal delivery:
if to the Company:
SRA International, Inc.
0000 Xxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxx Xxxxxxxx
Chief Executive Officer
Xxxxxxx X. Xxxxxx
Chief Financial Officer
25
with a copy to:
Xxxx and Xxxx LLP
00000 Xxxxxxx Xxxxx
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
if to GAP LP, GAP Coinvestment or GapStar:
c/o General Atlantic Service Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
Xxxxxxx Xxxxxx
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
if to GAPCO KG:
c/o General Atlantic Partners GmbH
Xxxxxxxxxxx 00
00000 Xxxxxxxxxxx
Xxxxxxx
Telecopy: 011-49-211-602-888-89
Attention: Xxxxxx X. Xxxxxxx
Xxxxxxx Xxxxxx
with a copy to:
General Atlantic Service Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
Xxxxxxx Xxxxxx
26
and
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
All such notices, demands and other communications shall be
deemed to have been duly given (i) when delivered by hand, if personally
delivered; (ii) one Business Day after being sent, if sent via a reputable
nationwide overnight courier service guaranteeing next business day delivery;
(iii) five (5) Business Days after being sent, if sent by registered or
certified mail, return receipt requested, postage prepaid; and (iv) when receipt
is mechanically acknowledged, if telecopied. Any party may by notice given in
accordance with this Section 10.2 designate another address or Person for
receipt of notices hereunder. Any party may give any notice, request, consent or
other communication under this Agreement using any other means (including,
without limitation, personal delivery, messenger service, first class mail or
electronic mail), but no such notice, request, consent or other communication
shall be deemed to have been duly given unless and until it is actually received
by the party to whom it is given.
10.3 Successors and Assigns; Third Party Beneficiaries. This
-------------------------------------------------
Agreement shall inure to the benefit of and be binding upon the successors and
permitted assigns of the parties hereto. Subject to applicable securities laws
and the terms and conditions thereof, the Purchasers may assign any of their
rights under this Agreement or the other Transaction Documents to any of their
respective Affiliates. Neither the Company nor the Selling Stockholders may
assign any of their rights under this Agreement without the written consent of
the Purchasers. Except as provided in Article VIII, no Person other than the
parties hereto and their successors and permitted assigns is intended to be a
beneficiary of this Agreement.
10.4 Amendment and Waiver.
--------------------
(a) No failure or delay on the part of the Company, the
Selling Stockholders or the Purchasers in exercising any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy.
(b) Any amendment, supplement or modification of or to
any provision of this Agreement, any waiver of any provision of this Agreement,
and any consent to any departure by the Company or the Purchasers from the terms
of any provision of this Agreement, shall be effective (i) only if it is made or
given in writing and signed by the Company, the Selling Stockholders and the
Purchasers purchasing a majority of the Purchased Shares, and (ii) only in the
specific instance and for the specific purpose for which made or given. Except
where notice is specifically required by this
27
Agreement, no notice to or demand on the Company in any case shall entitle the
Company to any other or further notice or demand in similar or other
circumstances.
10.5 Counterparts. This Agreement may be executed in any
------------
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
10.6 Headings. The headings in this Agreement are for
--------
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
10.7 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
-------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
10.8 Severability. If any one or more of the provisions
------------
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired, unless the
provisions held invalid, illegal or unenforceable shall substantially impair the
benefits of the remaining provisions hereof.
10.9 Rules of Construction. Unless the context otherwise
---------------------
requires, references to sections or subsections refer to sections or subsections
of this Agreement.
10.10 Entire Agreement. This Agreement, together with the
----------------
exhibits and schedules hereto, and the other Transaction Documents are intended
by the parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein and therein.
There are no restrictions, promises, representations, warranties or
undertakings, other than those set forth or referred to herein or therein. This
Agreement, together with the exhibits and schedules hereto, and the other
Transaction Documents supersede all prior agreements and understandings between
the parties with respect to such subject matter.
10.11 Fees. Upon the Closing, the Company shall reimburse each
----
of the Purchasers for their fees, disbursements and other charges of counsel
incurred in connection with the transactions contemplated by this Agreement,
provided that the amount of such reimbursement shall not exceed in the aggregate
$35,000.
10.12 Confidentiality.
---------------
(a) The Company and the Selling Stockholders have
furnished and the Company will continue to furnish the Purchasers with certain
information which is either non-public, confidential or proprietary in nature
and which (i) is identified in writing as being proprietary and confidential,
(ii) is not already known to persons other than the Company, the Selling
Stockholders, their representatives and third parties which
28
have entered into written non-disclosure agreements with the Company or such
Selling Stockholder and (iii) has not been independently developed by the
Purchasers. All such information furnished to the Purchasers, their partners,
members, controlling persons, officers, employees, agents or representatives,
including, without limitation, attorneys, accountants, consultants, potential
lenders, investors and financial advisors (collectively "representatives"), by
the Company, the Selling Stockholders, or any of their respective
representatives, and all analyses, compilations, data, studies or other
documents prepared by the Purchasers or their representatives containing or
based in whole or in part on any such furnished information or reflecting the
Purchasers' review of, or interest in, the Company is hereinafter referred to as
"Company Information." Subject to the requirements of applicable law, the
Purchasers hereby agree to use the Company Information solely in connection with
-------------------
the consummation of the transactions contemplated by this Agreement and to
transmit the Company Information only to those representatives of the Purchasers
who need to know the Company Information.
(b) The Purchasers have furnished and may continue to
furnish the Company and the Selling Stockholders with certain information which
is either non-public, confidential or proprietary in nature and which (i) is
identified in writing as being proprietary and confidential, (ii) is not already
known to persons other than the Purchasers, their representatives and third
parties which have entered into written non-disclosure agreements with the
Purchasers and (iii) has not been independently developed by the Company or the
Selling Stockholders. All such information furnished to the Company, the Selling
Stockholders or their respective representatives by the Purchasers or their
respective representatives, and all analyses, compilations, data, studies or
other documents prepared by the Company or the Selling Stockholders or their
representatives containing or based in whole or in part on any such furnished
information or reflecting the Company's or the Selling Stockholders' review of,
or interest in, the Purchasers is hereinafter referred to as "Purchaser
---------
Information." Subject to the requirements of applicable law, the Company and the
-----------
Selling Stockholders hereby agree to use the Purchaser Information solely in
connection with the consummation of the transactions contemplated by this
Agreement and to transmit the Purchaser Information only to those
representatives of the Company and the Selling Stockholders who need to know the
Purchaser Information.
10.13 Public Announcements. Following the date hereof, the
--------------------
Company shall be permitted to issue a press release in compliance with Rule 135
under the Securities Act and file an amendment to its Form S-1 in the form
attached hereto as Exhibit A relating to the Transaction Documents and the
transactions contemplated thereby and to file the Transaction Documents with
such amendment or a subsequent amendment. The Purchasers shall have the
opportunity to review and comment on the press release prior to its issuance,
which review and comment shall be provided as expeditiously as possible and in
any event within 24 hours of delivery of such press release by the Company to
the Purchasers, and such press release shall be in form and substance reasonably
satisfactory to the Purchasers. Except as set forth in the previous sentence,
none of the Company, the Selling Stockholders or the Purchasers will issue any
press release or make any public statements with respect to this Agreement or
the transactions contemplated hereby without the prior written consent of the
other parties
29
hereto, except to the extent such party reasonably believes such press release
or public statement is required by applicable law or stock market regulations;
provided however that the Company, the Selling Stockholders and the Purchasers
may make reasonable public statements consistent with prior public statements
otherwise permitted under this Section 10.13; and provided further, that GAP LLC
----------------
may disclose on its worldwide web page, xxx.xxxxxxxxxx.xxx, the name of the
------------------
Company, the name of the Chief Executive Officer of the Company, a brief
description of the business of the Company, the Company's logo and the aggregate
amount of the Purchasers' investment in the Company. Notwithstanding the
foregoing, neither the Company nor the Selling Stockholders will use or refer to
the name of any Purchaser in any public statement or disclosure without the
consent of such Purchaser except to the extent that such party reasonably
believes such statement or disclosure is required by applicable law or stock
market regulations.
10.14 Further Assurances. Each of the parties shall execute
------------------
such documents and perform such further acts (including, without limitation,
obtaining any consents, exemptions, authorizations or other actions by, or
giving any notices to, or making any filings with, any Governmental Authority or
any other Person) as may be reasonably required or desirable to carry out or to
perform the provisions of this Agreement.
[Remainder of page intentionally left blank]
30
IN WITNESS WHEREOF, the undersigned have executed, or have
caused to be executed, this Stock Purchase Agreement on the date first written
above.
SRA INTERNATIONAL, INC.
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: President and Chief Executive Officer
GENERAL ATLANTIC PARTNERS 75, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC,
its General Partner
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: A Managing Member
GAP COINVESTMENT PARTNERS II, L.P.
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: A General Partner
GAPSTAR, LLC
By: GENERAL ATLANTIC PARTNERS, LLC,
its Managing Member
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: A Managing Member
GAPCO GMBH & CO. KG
By: GAPCO Management GMBH,
its General Partner
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
31
SELLING STOCKHOLDERS
/s/ Xxxxxxxx Xxxxx
--------------------------------------------------
Xxxxxxxx Xxxxx
/s/ Xxxxx Xxxxxxxxx
--------------------------------------------------
Xxxxx Xxxxxxxxx
/s/ Hatte Blejer
--------------------------------------------------
Hatte Blejer
/s/ Xxxx Xxxxx
--------------------------------------------------
Xxxx Xxxxx
/s/ Xxxxxxx Xxxxxx
--------------------------------------------------
Xxxxxxx Xxxxxx
/s/ Xxxx Xxxxxxx
--------------------------------------------------
Xxxx Xxxxxxx
/s/ Xxxxxxx Xxxxx
--------------------------------------------------
Xxxxxxx Xxxxx
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------------
Xxxxxxx X. Xxxxxxx
The Xxxxxxxx Living Trust
By: /s/ E. Xxxxx Xxxxxxxx
-----------------------------------------------
E. Xxxxx Xxxxxxxx, Trustee
32
/s/ Xxx Xxxxxxx
--------------------------------------------------
Xxx Xxxxxxx
/s/ Xxxxxx XxXxxxxxx
--------------------------------------------------
Xxxxxx XxXxxxxxx
/s/ Xxxxxxx Xxxxx
--------------------------------------------------
Xxxxxxx Xxxxx
/s/ Xxxxxxx Xxxxxx
--------------------------------------------------
Xxxxxxx Xxxxxx
/s/ Xxxxxxx Xxx
--------------------------------------------------
Xxxxxxx Xxx
/s/ Xxxxxx Xxxxx
--------------------------------------------------
Xxxxxx Xxxxx
Xxxxx X. Xxxxxxxx Revocable Trust
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------------
Xxxxx X. Xxxxxxxx, Trustee
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------------------
Xxxxxxx X. Xxxxxx
33
/s/ Xxxxx Xxxxxxxx
--------------------------------------------------
Xxxxx Xxxxxxxx
/s/ Xxxxx X. Xxxxxx
--------------------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxx X. Xxxxxx
--------------------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxx
--------------------------------------------------
Xxxxxxx X. Xxxxx
The Xxxxxx X. Xxxxxx Revocable Trust
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------------
Xxxxxx X. Xxxxxx, Trustee
/s/ Xxxxxxx Xxxxxx
--------------------------------------------------
Xxxxxxx Xxxxxx
/s/ Xxxxx Xxxxxxx
--------------------------------------------------
Xxxxx Xxxxxxx
34
The Volgenau Joint Revocable Living Trust
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------------
Xxxxx Xxxxxxxx, Trustee
Regents of the University of Michigan
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------------------
Xxxxxxx X. Xxxxxxxxx, Interim Treasurer
By: /s/ L. Xxxx Xxxxxxxx
-----------------------------------------------
L. Xxxx Xxxxxxxx, Chief Investment Officer
The Xxxxxxx X. and Xxxxxxx X. Xxxxx
Charitable Remainder UniTrust II
By: The Xxxxxx Foundation, Trustee
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx
Executive Director
The Xxxxxx Foundation
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxx
Executive Director
Schedule I
----------
SELLING STOCKHOLDERS
Xxxxxxxx Xxxxx
Xxxxx Xxxxxxxxx
Hatte Blejer
Xxxx Xxxxx
The Xxxxxxx X. and Xxxxxxx X. Xxxxx Charitable Remainder UniTrust II
Xxxxxxx Xxxxxx
Xxxx Xxxxxxx
Xxxxxxx Xxxxx
Xxxxxxx X. Xxxxxxx
The Xxxxxxxx Living Trust Agreement
Xxx Xxxxxxx
Xxxxxx XxXxxxxxx
Xxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxxx Xxx
Xxxxxx Xxxxx
Xxxxx X. Xxxxxxxx Revocable Trust
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxxx Xxxxxxxx
Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxx
The Xxxxxx X. Xxxxxx Revocable Trust
Xxxxxxx Xxxxxx
Xxxxx Xxxxxxx
The Xxxxxxxx Joint Revocable Living Trust
Regents of the University of Michigan
The Xxxxxx Foundation
Schedule 4.9
------------
Exempt Selling Stockholders
---------------------------
Regents of the University of Michigan
The Xxxxxxx X. and Xxxxxxx X. Xxxxx Charitable Remainder UniTrust II
The Xxxxxx Foundation
