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EXHIBIT 10.2
SECOND AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
among
ECLIPSYS CORPORATION
and
CERTAIN STOCKHOLDERS OF ECLIPSYS CORPORATION
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Dated: January ___, 1998
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TABLE OF CONTENTS
Page
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1. Definitions.....................................................................................2
2. Restrictions on Transfer of Shares.............................................................13
2.1 Limitation on Transfer................................................................13
2.2 Permitted Transfers...................................................................13
2.3 Permitted Transfer Procedures.........................................................14
2.4 Transfers in Compliance with Law; Substitution of Transferee..........................14
3. Transfers by Partners Stockholders, Xxxxxx Stockholders or Motorola
Stockholders Prior to Certain Date.............................................................15
3.1 Transfers by Partners Stockholders or Xxxxxx Stockholders Prior
to May 3, 1999........................................................................15
3.1.1 Proposed Transfers...........................................................15
3.1.2 Consent to Transfer of Shares................................................15
3.1.3 No Consent to Transfer of Shares.............................................16
3.1.4 Transfers After May 3, 1999..................................................16
3.2 Transfers by Motorola Stockholders Prior to Second
Anniversary of this Agreement.........................................................16
4. Voluntary and Involuntary Transfers............................................................16
4.1 Proposed Voluntary Transfers..........................................................16
4.1.1 Offering Notice..............................................................16
4.1.2 Company Option; Exercise.....................................................17
4.1.3 Stockholder Option; Exercise.................................................17
4.1.4 Closing......................................................................18
4.1.5 Sale to a Third Party Purchaser..............................................18
4.1.6 Tag-Along Rights.............................................................19
4.2 Involuntary Transfers.................................................................20
4.2.1 Rights of First Offer upon Involuntary Transfer..............................21
4.2.2 Fair Value...................................................................21
4.2.3 Closing......................................................................21
4.2.4 General......................................................................22
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4.3 Proposed Transfers of Series B Preferred Stock, Series C Preferred
Stock and Warrants....................................................................22
4.3.1 Notice of Sale...............................................................22
4.3.2 Company Option; Exercise.....................................................23
4.3.3 Sale to Prospective Purchaser................................................24
4.3.4 Closing......................................................................25
5. Future Issuance of Capital Stock...............................................................25
5.1 Offering Notice; Right of First Offer.................................................25
5.2 General Atlantic Stockholder Option...................................................26
5.3 New Issuance Rightholder Option.......................................................27
5.4 Exercise of Options...................................................................28
5.5 Closing...............................................................................29
5.6 Sale to Subject Purchaser.............................................................30
6. After-Acquired Securities......................................................................31
7. Corporate Governance...........................................................................31
7.1 General...............................................................................31
7.2 Stockholders Actions..................................................................31
7.3 Election of Directors, Number and Composition.........................................32
7.4 Reduction of Directors................................................................33
7.5 Removal and Replacement of Directors..................................................33
7.5.1 Removal of Partners Directors................................................33
7.5.2 Removal of General Atlantic Directors........................................33
7.5.3 Removal of Xxxxxx Director...................................................34
7.5.4 Removal of Alltel Director...................................................34
7.5.5 Removal of Motorola Director.................................................34
7.5.6 Replacement of Directors.....................................................34
7.6 Designation of General Atlantic Observer and St. Xxxx Observer........................35
7.7 Reimbursement of Expenses.............................................................35
7.8 Actions of the Board of Directors: Extraordinary Events...............................35
7.8.1 Consent of Partners Director.................................................35
7.8.2 Consent of General Atlantic Director.........................................36
7.9 Holders of Non-Voting Shares..........................................................37
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8. Partners Put...................................................................................37
8.1 Exercise..............................................................................37
8.2 Purchase Price........................................................................38
8.2.1 Put in Second Year...........................................................38
8.2.2 Put After Second Year........................................................38
8.3 Partners Put Termination Date.........................................................37
8.4 Closing...............................................................................38
8.4.1 Delivery of Put Securities...................................................38
8.4.2 Payment of Purchase Price....................................................39
9. Alltel Put.....................................................................................39
9.1 Exercise..............................................................................39
9.2 Purchase Price........................................................................40
9.3 Closing...............................................................................40
10. Alltel Non-Competition: Change of Control......................................................40
10.1 Removal from Board of Directors and Sale of Shares....................................40
10.2 Exceptions to Restricted Business.....................................................41
11. Financial Statements and Other Information.....................................................42
12. Inspection of Properties: Designation of FUCP Observer, BT Observer
and Motorola Observer..........................................................................44
13. Restrictive Provisions.........................................................................45
14. Stock Certificate Legend.......................................................................45
15. Intentionally omitted..........................................................................46
16. Miscellaneous..................................................................................46
16.1 Notices...............................................................................46
16.2 Amendment and Waiver..................................................................50
16.3 Specific Performance..................................................................51
16.4 Headings..............................................................................51
16.5 Severability..........................................................................51
16.6 Entire Agreement......................................................................51
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16.7 Effectiveness; Term of Agreement......................................................52
16.8 Variations in Pronouns................................................................52
16.9 Governing Law ........................................................................52
16.10 Further Assurances....................................................................52
16.11 Successors and Assigns................................................................52
16.12 Counterparts..........................................................................53
16.13 Xxxxxx Stockholders and Xxxxxxx Stockholders..........................................53
EXHIBITS
A Amended and Restated Certificate of Incorporation
B By-laws
C Form of Transfer Agreement (Previously Issued Shares)
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SECOND AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
AGREEMENT, dated as of January ___, 1998 (this "Agreement"), among
Eclipsys Corporation, a Delaware corporation (the "Company"), General Atlantic
Partners 38, L.P., a Delaware limited partnership ("GAP 38"), General Atlantic
Partners 28, L.P., a Delaware limited partnership ("GAP 28"), GAP Coinvestment
Partners, L.P., a New York limited partnership ("GAP Coinvestment"), General
Atlantic Partners 47, L.P., a Delaware limited partnership ("GAP 47"), Partners
HealthCare System, Inc., a Massachusetts not-for-profit corporation
("Partners"), Xxxxxx X. Xxxxxx ("Xxxxxx"), Wilfam Ltd., a Florida limited
partnership ("Wilfam"), ALLTEL Information Services, Inc., an Arkansas
corporation ("Alltel"), First Union Corporation, a North Carolina corporation
("FUCP"), BT Investment Partners, Inc., a Delaware corporation ("BT"), Xxxxx
Xxxxxx Associates IHS L.P., a Delaware limited partnership ("Xxxxx Xxxxxx"),
Xxxxxx Xxxxxxxxxx ("Xxxxxxxxxx"), St. Xxxx Venture Capital IV, L.L.C., a
Delaware limited liability company ("St. Xxxx"), Xxxxx Xxxxxxxx, Jr.
("Karmanos"), the Xxxxxxx Stockholders (as hereinafter defined), and Motorola,
Inc., a Delaware corporation ("Motorola").
WHEREAS, pursuant to the Stockholders Agreement, dated May 3, 1996 (the
"Original Stockholders Agreement"), the Company, GAP 28, GAP Coinvestment,
Partners, Xxxxxx, Wilfam, Xxxxx Xxxxxx and Manolovici entered into certain
agreements with respect to the transfer of Shares (as hereinafter defined) and
first officer, corporate governance and certain other rights set forth therein;
WHEREAS, the Company, Partners, GAP 38, GAP 28, GAP Coinvestment,
Xxxxxx, Wilfam, Alltel, FUCP, BT, Brean Murray, Manolovici, St. Xxxx and
Karmanos amended and restated the Original Stockholders Agreement as of January
24, 1997 (the "First Restated Stockholders Agreement"), which was amended as of
June 27, 1997 to include the Xxxxxxx Stockholders as parties thereto; and
WHEREAS, the Company and Motorola are entering into an Asset Purchase
Agreement, dated on or about January 30, 1998 (the "Motorola Purchase
Agreement"), pursuant to which the Company is issuing to Motorola, as of the
date of the Motorola Purchase Agreement, shares of the Class A Common Stock (as
hereinafter defined); and
WHEREAS, the Company, GAP Coinvestment and GAP 47 expect to enter into
a Preferred Stock Purchase Agreement (the "GAP 47 Purchase Agreement"), pursuant
to which the Company will be selling to GAP Coinvestment and GAP 47, as of the
date of the GAP 47 Purchase Agreement, shares of the Series G Preferred Stock
(as hereinafter defined); and
WHEREAS, the parties wish to enter into this Agreement in order to
allow Motorola to become a party hereto upon the effective date of the Motorola
Purchase Agreement, and to allow GAP 47 to become a party hereto upon the
effective date of the GAP 47 Purchase Agreement, and to amend and restate the
First Restated Stockholders Agreement, as amended.
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NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein, the adequacy of which are hereby acknowledged, the parties
hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Affiliate" means any Person (other than the Company or any of
its Subsidiaries) who is an "affiliate" as defined in Rule 12b-2 of the General
Rules and Regulations under the Exchange Act. In addition, the following shall
be deemed to be Affiliates of GAP 38: (a) GAP LLC, the members of GAP LLC, the
limited partners of GAP 38, the limited partners of GAP 28 and the limited
partners of GAP 47; (b) any Affiliate of GAP LLC, the members of GAP LLC, the
limited partners of GAP 38, the limited partners of GAP 28 and the limited
partners of GAP 47; and (c) any limited liability company or partnership a
majority of whose members or partners, as the case may be, are members, former
members, consultants or key employees of GAP LLC. In addition, GAP 38, GAP 28,
GAP 47 and GAP Coinvestment shall be deemed to be Affiliates of one another.
"AHIS" mean Alltel Healthcare Information Services, Inc.
"Alltel" has the meaning assigned to such term in the recital
to this Agreement.
"Alltel Director" has the meaning set forth in Section 7.3(e)
of this Agreement.
"Alltel Put" has the meaning set forth in Section 9.1 of this
Agreement.
"Alltel Put Price" has the meaning set forth in Section 9.2 of
this Agreement.
"Alltel Put Securities" has the meaning set forth in Section
9.1 of this Agreement.
"Alltel Stockholders" means Alltel and any Permitted
Transferee thereof to which Shares are transferred in accordance with Section
2.2, and the term "Alltel Stockholder" shall mean any such Person.
"Xxxxx Xxxxxx" has the meaning assigned to such term in the
recital to this Agreement.
"Xxxxx Xxxxxx Stockholders" means Xxxxx Xxxxxx and any
Permitted Transferee thereof to which Shares are transferred in accordance with
Section 2.2, and the term "Xxxxx Xxxxxx Stockholder" shall mean any such Person.
"Board of Directors" means the Board of Directors of the
Company.
"BT" has the meaning assigned to such term in the recital to
this Agreement.
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"BT Observer" has the meaning set forth in Section 12(b) of
this Agreement.
"BT Warrant" means a warrant to purchase, subject to the terms
and conditions thereof, an aggregate of up to 1,012,339 shares of Class B Common
Stock.
"BT Stockholders" means BT and any Permitted Transferee
thereof to which Shares are transferred in accordance with Section 2.2, and the
term "BT Stockholder" shall mean any such Person.
"Business Day" means any day other than a Saturday, Sunday or
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, as amended from
time to time and as in effect on the date hereof, a copy of which is attached
hereto as Exhibit B.
"Certificate of Incorporation" means the Amended and Restated
Certificate of Incorporation of the Company, as amended from time to time and as
in effect on the date hereof, a copy of which is attached hereto as Exhibit A.
"Charter Documents" means the Certificate of Incorporation and
the By- laws.
"Class A Common Stock" means the Common Stock, par value $.01
per share, of the Company, and any other capital stock of the Company into which
such stock is reclassified or reconstituted.
"Class B Common Stock" means the Non-Voting Common Stock, par
value $.01 per share, of the Company, and any other capital stock of the Company
into which such stock is reclassified or reconstituted.
"Commission" means the Securities and Exchange Commission or
any similar agency then having jurisdiction to enforce the Securities Act.
"Common Stock" means (a) the Class A Common Stock, (b) the
Class B Common Stock, (c) any other common stock of any class or series
hereafter issued by the Company and (d) any other capital stock into which such
stock is reclassified or reconstituted.
"Common Stock Equivalent" means any security or obligation
which is by its terms convertible into or exercisable for shares of Common
Stock, including, without limitation, the Series D Preferred Stock, the Series E
Preferred Stock, the Series F Preferred Stock, the Warrants and any option,
warrant or other subscription or purchase right with respect to Common Stock.
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"Company" has the meaning assigned to such term in the recital
to this Agreement.
"Company Note" has the meaning set forth in Section 8.4.2(a)
of this Agreement.
"Company Offer" has the meaning set forth in Section 4.3.2(a)
of this Agreement.
"Company Option" has the meaning set forth in Section 4.1.2 of
this Agreement.
"Company Option Period" has the meaning set forth in Section
4.1.2 of this Agreement.
"Contract Date" has the meaning set forth in Section 4.1.5 of
this Agreement.
"Excess New Securities" has the meaning set forth in Section
5.3 of this Agreement.
"Excess Offered Securities" has the meaning set forth in
Section 4.1.3(a) of this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder.
"Family Member" has the meaning set forth in Section 2.2 of
this Agreement.
"First General Atlantic Director" has the meaning set forth in
Section 7.3(b) of this Agreement.
"First Restated Stockholders Agreement" has the meaning
assigned to such term in the recital to this Agreement.
"FUCP" has the meaning assigned to such term in the recital to
this Agreement.
"FUCP Observer" has the meaning set forth in Section 12(b) of
this Agreement.
"FUCP Stockholders" means FUCP and any Permitted Transferee
thereof to which Shares are transferred in accordance with Section 2.2, and the
term "FUCP Stockholder" shall mean any such Person.
"FUCP Warrant" means a warrant to purchase, subject to the
terms and conditions thereof, an aggregate of up to 1,687,233 shares of Class B
Common Stock.
"GAAP" means generally accepted United States accounting
principles in effect from time to time.
"GAP Coinvestment" has the meaning assigned to such term in
the recital to this Agreement.
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"GAP 47" has the meaning assigned to such term in the recital
to this Agreement.
"GAP LLC" means General Atlantic Partners, LLC, a Delaware
limited liability company and the general partner of GAP 38, GAP 28 and GAP 47,
and any successor to such entity.
"GAP Notice" has the meaning set forth in Section 5.4(a) of
this Agreement.
"GAP Series D/G Preferred Director" has the meaning set forth
in Section 7.3(c) of this Agreement.
"GAP Series F Preferred Director" has the meaning set forth in
Section 7.3(b) of this Agreement.
"GAP 38" has the meaning assigned to such term in the recital
to this Agreement..
"GAP 28" has the meaning assigned to such term in the recital
to this Agreement.
"General Atlantic Directors" has the meaning set forth in
Section 7.3(c) of this Agreement.
"General Atlantic Observer" has the meaning set forth in
Section 7.6 of this Agreement.
"General Atlantic Stockholders" means GAP 47, GAP 38, GAP 28,
GAP Coinvestment and any Permitted Transferee of any of them to which Shares are
transferred in accordance with Section 2.2, and the term "General Atlantic
Stockholder" shall mean any such Person.
"Governmental Authority" means the government of any nation,
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.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended.
"Initiating Stockholder" has the meaning set forth in Section
4.1.6(a) of this Agreement.
"Involuntary Transfer" means any transfer, proceeding or
action by or in which a Stockholder shall be deprived or divested of any right,
title or interest in or to any of the Shares, including, without limitation, any
seizure under levy of attachment or execution, any transfer in
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connection with bankruptcy (whether pursuant to the filing of a voluntary or an
involuntary petition under the United States Bankruptcy Code of 1978, or any
modifications or revisions thereto) or other court proceeding to a debtor in
possession, trustee in bankruptcy or receiver or other officer or agency, any
transfer to a state or to a public officer or agency pursuant to any statute
pertaining to escheat or abandoned property and any transfer pursuant to a
divorce or separation agreement or a final decree of a court in a divorce
action.
"Involuntary Transferee" has the meaning assigned such term in
Section 4.2.1 of this Agreement.
"IPO Effectiveness Date" means the date upon which the Company
consummates its initial Public Offering.
"Karmanos" has the meaning assigned to such term in the
recital to this Agreement.
"Karmanos Stockholders" means Karmanos and any Permitted
Transferee thereof to which Shares are transferred in accordance with Section
2.2 and the term "Karmanos Stockholder" shall mean any such Person.
"Xxxxxxx Stockholders" means collectively, (i) Xxxxxxx X.
Xxxxxxx; (ii) Xxxxxxx Xxxxxxx; (iii) Xxxxxxx X. Xxxxx and Xxxxxxx X. Xxxxxxx as
Trustees of the Xxxxxxx X. Xxxxxxx Family Trust u/t/a dated September 3, 1993;
(iv) Xxxxxxx X. Xxxxxxx as Trustee of the Xxx X. Xxxxxxx 1990 Trust u/t/a dated
December 28, 1990; (v) Xxxxxxx X. Xxxxxxx as Trustee of the Xxx X. Xxxxxxx 1990
Trust u/t/a dated December 28, 1990; and (vi) Xxxxx X. Xxxxxxx as Trustee of the
Xxxxxxx X. Xxxxxxx Trust pursuant to a Trust Agreement dated June 30, 1976, and
any Permitted Transferee of any thereof to which Shares are transferred in
accordance with Section 2.2, and the term "Xxxxxxx Stockholder" shall mean any
such Person.
"Liens" has the meaning assigned such term in Section 4.1.4 of
this Agreement.
"Manolovici" has the meaning assigned to such term in the
recital to this Agreement.
"Manolovici Stockholders" means Manolovici and any Permitted
Transferee thereof to which Shares are transferred in accordance with Section
2.2, and the term "Manolovici Stockholder" shall mean any such Person.
"Merger Agreement" means the Agreement of Merger among Alltel,
AHIS, the Company and Eclipsys Solutions Corp.
"Motorola" has the meaning assigned to such term in the
recital to this Agreement.
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"Motorola Director" has the meaning assigned to such term in
Section 7.3(f) of this Agreement.
"Motorola Observer" has the meaning assigned to such term in
Section 12(c) of this Agreement.
"Motorola Purchase Agreement" has the meaning assigned to such
term in the recital to this Agreement.
"Motorola Shares" means the 1,500,000 shares of Class A Common
Stock issued by the Company to Motorola as of the date of this Agreement.
"Motorola Stockholders" means Motorola and any Permitted
Transferee thereof to which Shares are transferred in accordance with Section
2.2, and the term "Motorola Stockholder" shall mean any such Person.
"New Issuance Notice" has the meaning set forth in Section 5.1
of this Agreement.
"New Issuance Percentage" has the meaning set forth in Section
5.2(b) of this Agreement.
"New Issuance Rightholder" has the meaning set forth in
Section 5.3 of this Agreement.
"New Securities" has the meaning set forth in Section 5.1 of
this Agreement.
"Notice of Sale" has the meaning set forth in Section 4.3.1 of
this Agreement.
"Offer Price" has the meaning assigned such term in Section
4.1.1 of this Agreement.
"Offered Securities" has the meaning assigned such term in
Section 4.1.1 of this Agreement.
"Offering Notice" has the meaning assigned such term in
Section 4.1.1 of this Agreement.
"Offering Price" has the meaning set forth in Section 4.3.1 of
this Agreement.
"Offering Stockholder" has the meaning set forth in Section
4.3.1 of this Agreement.
"Option Period" has the meaning set forth in Section 4.1.3(a)
of this Agreement.
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"Original Stockholders Agreement" has the meaning assigned to
such term in the recital to this Agreement.
"Other Stockholder" means any transferee of a Partners
Stockholder, a General Atlantic Stockholder, an Alltel Stockholder, a FUCP
Stockholder, a BT Stockholder, a Xxxxxx Stockholder, a Xxxxx Xxxxxx Stockholder,
a Manolovici Stockholder, a St. Xxxx Stockholder, a Karmanos Stockholder or a
Motorola Stockholder who has agreed to be bound by the terms and conditions of
this Agreement in accordance with Section 2.4 and to whom Shares have been
transferred in accordance with Section 4.
"Partners" has the meaning assigned to such term in the
recital to this Agreement.
"Partners Director" has the meaning set forth in Section
7.3(a) of this Agreement.
"Partners Put" has the meaning set forth in Section 8.1 of
this Agreement.
"Partners Stockholders" means Partners and any Permitted
Transferee thereof to which Shares are transferred in accordance with Section
2.2, and the term "Partners Stockholder" shall mean any such Person.
"Permitted Transferee" has the meaning set forth in Section
2.2 of this Agreement.
"Person" mean any individual, corporation, partnership,
limited liability company, firm, joint venture, association, joint stock
company, trust, unincorporated organization, governmental body or other entity.
"Preferred Securities" has the meaning set forth in Section
4.3.1 of this Agreement.
"Prime Rate" means, as of any date, the rate of interest
publicly announced from time to time by the Company's primary bank in Charlotte,
North Carolina as its prime lending rate for United States dollars or, if the
Company does not have a primary bank, the rate announced from time to time by
the BankBoston, N.A., Boston, Massachusetts, as its prime rate.
"Proportionate Percentage" has the meaning set forth in
Section 5.3 of this Agreement.
"Proposed Price" has the meaning set forth in Section 5.1 of
this Agreement.
"Prospective Purchaser" has the meaning set forth in Section
4.3.3(a) of this Agreement.
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"Public Offering" means any offer for sale of shares of Common
Stock pursuant to an effective Registration Statement.
"Purchase Option Period" has the meaning set forth in Section
4.3.2(a) of this Agreement.
"Put Exercise Date" has the meaning set forth in Section 8.1
of this Agreement.
"Put Notice" has the meaning set forth in Section 8.1 of this
Agreement.
"Put Purchase Price" has the meaning set forth in Section 8.2
of this Agreement.
"Put Securities" has the meaning set forth in Section 8.1 of
this Agreement.
"Put Trigger Event" has the meaning set forth in Section 8.1
of this Agreement.
"Registration Statement" means a registration statement filed
pursuant to the Securities Act.
"Requirement of Law" means, as to any Person, any law,
statute, treaty, rule, regulation, right, privilege, qualification, license or
franchise or determination of an arbitrator or a court or other Governmental
Authority, 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.
"Rightholder" has the meaning set forth in Section 4.1.3(a) of
this Agreement.
"Second General Atlantic Director" has the meaning set forth
in Section 7.3(c) of this Agreement.
"Second Restated Stockholders Agreement" means this Agreement.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated by the Commission thereunder.
"Selling Stockholder" has the meaning set forth in Section
4.1.1 of this Agreement.
"Series B Preferred Stock" means the Series B 8.5% Cumulative
Redeemable Preferred Stock, par value $.01 per share, of the Company.
"Series C Preferred Stock" means the Series C 8.5% Cumulative
Redeemable Preferred Stock, par value $.01 per share, of the Company.
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"Series D Preferred Stock" means the Series D Convertible
Preferred Stock, par value $.01 per share, of the Company.
"Series E Preferred Stock" means the Series E Convertible
Preferred Stock, par value $.01 per share, of the Company.
"Series F Preferred Stock" means the Series F Convertible
Preferred Stock, par value $.01 per share, of the Company.
"Series G Preferred Stock" means the Series G Convertible
Preferred Stock, par value $.01 per share, of the Company.
"Services Agreement" means the Management and Services
Agreement, dated as of the date hereof, between Alltel and the Company.
"Shares" means, with respect to each Stockholder, all shares,
whether now owned or hereafter acquired, of Common Stock and Common Stock
Equivalents owned or held hereby; provided; however, that for the purposes of
any computation of the number of Shares either outstanding, owned or held by any
Stockholder or otherwise to be determined pursuant to Sections 2, 3, 4, 5, 6, 7,
8, 9, 10 and 14.2(b), (a) the shares of Common Stock issuable upon conversion or
exercise of all Common Stock Equivalents shall be deemed outstanding whether or
not such conversion, exercise or exchange has actually been effected and (b)
there shall be no distinction between classes or series of shares in such
computation.
"St. Xxxx" has the meaning assigned to such term in the
recital to this Agreement.
"St. Xxxx Observer" has the meaning set forth in Section 7.6
of this Agreement.
"St. Xxxx Stockholders" means St. Xxxx and any Permitted
Transferee thereof to which Shares are transferred in accordance with Section
2.2, and the term "St. Xxxx Stockholder" shall mean any such Person.
"Stockholders Meeting" has the meaning set forth in Section
7.1.
"Subject Purchaser" has the meaning set forth in Section 5.1
of this Agreement.
"Subsidiary" means, as of the relevant date of determination,
with respect to any Person, a corporation or other entity 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.
"Tag-Along Rightholder" has the meaning set forth in Section
4.1.6(a) of this Agreement.
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"Terms and Conditions" has the meaning set forth in Section
4.3.1 of this Agreement.
"Third Party Offer" has the meaning set forth in Section
4.3.2(a) of this Agreement.
"Transfer" has the meaning set forth in Section 2.1 of this
Agreement.
"Transferred Shares" has the meaning set forth in Section
4.2.1 of this Agreement.
"Third Party Purchaser" has the meaning set forth in Section
4.1.1 of this Agreement.
"Warrants" means the BT Warrant and the FUCP Warrant.
"Wilfam" has the meaning assigned to such term in the recital
to this Agreement.
"Xxxxxx Directors" has the meaning set forth in Section 7.3(d)
of this Agreement.
"Xxxxxx Employment Agreement" means the Employment Agreement,
dated May 3, 1996, between the Company and Xxxxxx, relating to the terms and
conditions of the employment of Xxxxxx by the Company.
"Xxxxxx Stockholders" means Xxxxxx, Wilfam, the Xxxxxxx
Stockholders and any Permitted Transferee thereof to which Shares are
transferred in accordance with Section 2.2, and the term "Xxxxxx Stockholder"
shall mean any such Person.
"Written Consent" has the meaning set forth in Section 7.2 of
this Agreement.
2. Restrictions on Transfer of Shares.
2.1 Limitation on Transfer. No Stockholder shall sell, give,
assign, hypothecate, pledge, encumber, grant a security interest in or otherwise
dispose of (whether by operation of law or otherwise) (each a "transfer") any
Shares or any right, title or interest therein or thereto, except for transfers
made in accordance with the provisions of this Agreement, and in such event, any
transferee obtaining any record or beneficial interest or right to vote such
Shares hereunder shall agree to be bound by this Agreement and shall comply with
Section 2.4. Any attempt to transfer any Shares or any rights thereunder in
violation of the preceding sentence shall be null and void ab initio and the
Company shall not register any such transfer.
2.2 Permitted Transfers. Notwithstanding anything to the
contrary contained in this Agreement, but subject to Sections 2.3, 2.4, and 3.
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(a) Xxxxxx and Wilfam may transfer Shares
to or among (i) each other, (ii) a member of Xxxxxx'x immediate family which
shall include his spouse, siblings, children or grandchildren ("Family Members")
or (iii) a trust, corporation, partnership or limited liability company, all of
the beneficial interests in which shall be held by Xxxxxx or Wilfam or one or
more Family Members of Xxxxxx or which would otherwise be an Affiliate of
Xxxxxx; provided, however, that such transfer by Xxxxxx may be effected solely
for estate planning purposes; and provided further, that if any such transfer is
made prior to the third anniversary of the date hereof, then during the period
prior to the third anniversary of the date hereof that any such Family Member or
any such trust, corporation, partnership or limited liability company holds any
right, title or interest in any Shares, no Person other than Xxxxxx (or in the
event of his death, his legal representative) may exercise, directly or
indirectly, voting rights with respect to such Shares;
(b) Manolovici may transfer Shares to or
among (i) his Family Members or (ii) a trust, corporation, partnership or
limited liability company, all of the beneficial interests in which shall be
held by Manolovici or one or more Family Members of Manolovici or which would
otherwise be an Affiliate of Manolovici;
(c) Karmanos may transfer Shares to or
among (i) his Family Members or (ii) a trust, corporation, partnership or
limited liability company, all of the beneficial interests in which shall be
held by Karmanos or one or more Family Members of Karmanos or which would
otherwise be an Affiliate of Karmanos;
(d) the Xxxxxxx Stockholders may transfer
Shares to or among (i) each other, (ii) their Family Members or (iii) a trust,
corporation, partnership or limited liability company, all of the beneficial
interests in which shall be held by a Xxxxxxx Stockholder or one or more Family
Members of a Xxxxxxx Stockholder or which would otherwise be an Affiliate of a
Xxxxxxx Stockholder, or (iv) as to a Xxxxxxx Stockholders that is a trust, to
its beneficiaries;
(e) each of Partners, GAP 47, GAP 28, GAP
38, GAP Coinvestment, Alltel, FUCP, BT, Xxxxx Xxxxxx, St. Xxxx and Motorola may
transfer its Shares to its Affiliates; and
(f) Motorola may transfer its Shares to
the Company in satisfaction of its indemnification obligations under the
Motorola Purchase Agreement (each of the Persons referred to in the preceding
clauses (a), (b), (c), (d), (e) and (f) are hereinafter referred to as a
"Permitted Transferee").
2.3 Permitted Transfer Procedures. If any Stockholder wishes
to transfer Shares to a Permitted Transferee under Section 2.2, such Stockholder
shall give notice to the Company of its intention to make any transfer permitted
under Section 2.2 not less than ten (10) days prior to effecting such transfer,
which notice shall state the name and address of each
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Permitted Transferee to whom such transfer is proposed and the number of Shares
proposed to be transferred to such Permitted Transferee.
2.4 Transfers in Compliance with Law; Substitution of
Transferee. Notwithstanding any other provision of this Agreement, no transfer
may be made pursuant to this Section 2, Section 3 or Section 4 unless (a) the
transferee has agreed in writing to be bound by the terms and conditions of this
Agreement pursuant to an instrument substantially in the form attached hereto as
Exhibit C, (b) the transfer complies in all respects with the applicable
provisions of this Agreement and (c) the transfer complies in all respects with
applicable federal and state securities laws, including, without limitation, the
Securities Act. If requested by the Company in its reasonable judgment, an
opinion of counsel to such transferring Stockholder (which shall be reasonably
acceptable to counsel to the Company) shall be supplied to the Company at such
transferring Stockholder's expense, to the effect that such transfer complies
with the applicable federal and state securities laws. Upon becoming a party to
this Agreement, (i) the Permitted Transferee of a General Atlantic Stockholder
shall be substituted for, and shall enjoy the same rights and be subject to the
same obligations as, the transferring General Atlantic Stockholder hereunder,
(ii) the Permitted Transferee of Partners shall be substituted for, and shall
enjoy the same rights and be subject to the same obligations as, Partners
hereunder, (iii) the Permitted Transferee of Xxxxxx shall be substituted for,
and shall enjoy the same rights and be subject to the same obligations as,
Xxxxxx, (iv) the Permitted Transferee of Wilfam shall be substituted for, and
shall enjoy the rights and be subject to the same obligations as, Wilfam, (v)
the Permitted Transferee of an Alltel Stockholder shall be substituted for, and
shall enjoy the same rights and be subject to the same obligations as, the
transferring Alltel Stockholder hereunder, (vi) the Permitted Transferee of a
FUCP Stockholder shall be substituted for, and shall enjoy the same rights and
be subject to the same obligations as, the transferring FUCP Stockholder
hereunder, (vii) the Permitted Transferee of a BT Stockholder shall be
substituted for, and shall enjoy the same rights and be subject to the same
obligations as, the transferring BT Stockholder hereunder, (viii) the Permitted
Transferee of a Xxxxx Xxxxxx Stockholder shall be substituted for, and shall
enjoy the same rights and be subject to the same obligations as, the
transferring Xxxxx Xxxxxx Stockholder hereunder, (ix) the Permitted Transferee
of a Manolovici Stockholder shall be substituted for, and shall enjoy the same
rights and be subject to the same obligations as, the transferring Manolovici
Stockholder hereunder, (x) the Permitted Transferee of a St. Xxxx Stockholder
shall be substituted for, and shall enjoy the same rights and be subject to the
same obligations as, the transferring St. Xxxx Stockholder hereunder, (xi) the
Permitted Transferee of a Karmanos Stockholder shall be substituted for, and
shall enjoy the same rights and be subject to the same obligations as, the
transferring Karmanos Stockholder hereunder, (xii) the Permitted Transferee of a
Xxxxxxx Stockholder shall be substituted for, and shall enjoy the same rights
and be subject to the same obligations as, the transferring Xxxxxxx Stockholder
hereunder, (xiii) the Permitted Transferee of a Motorola Stockholder shall be
substituted for, and shall enjoy the same rights and be subject to the same
obligations as, the transferring Motorola Stockholder hereunder, and (xiv) the
Permitted Transferee of an Other Stockholder shall be substituted for, and shall
be subject to the same obligations as, the transferring Other Stockholder
hereunder.
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3. Transfers by Partners Stockholders, Xxxxxx Stockholders or Motorola
Stockholders Prior to Certain Date.
3.1 Transfers by Partners Stockholders or Xxxxxx Stockholders
Prior to May 3, 1999.
3.1.1 Proposed Transfers. Notwithstanding Sections 2.2 and
2.4, none of the Partners Stockholders or Xxxxxx Stockholders
(excluding the Xxxxxxx Stockholders) shall at any time prior to May
3, 1999 transfer any of its or his Shares to any Person unless (a)
such Partners Stockholder or such Xxxxxx Stockholder (excluding the
Xxxxxxx Stockholders), as the case may be, first sends written
notice to Xxxxxx (in the case of a proposed transfer by a Partners
Stockholder) or Partners (in the case of a proposed transfer by a
Xxxxxx Stockholder), as the case may be, which notice shall state
the number of Shares proposed to be sold and (b) Partners (in the
case of a proposed transfer by a Xxxxxx Stockholder) or Xxxxxx (in
the case of a proposed transfer by a Partners Stockholder), as the
case may be, consents in writing to such proposed transfer.
3.1.2 Consent to Transfer of Shares. If Partners (in the
case of a proposed transfer by a Xxxxxx Stockholder other than a
Xxxxxxx Stockholder) or Xxxxxx (in the case of a proposed transfer
by a Partners Stockholder), as the case may be, consents to the
proposed transfer of Shares by a Xxxxxx Stockholder or a Partners
Stockholder, as the case may be, pursuant to Section 3.1.1, then
such Shares may be transferred by such Xxxxxx Stockholder or such
Partners Stockholder, as the case may be, in accordance with
Section 4 hereof.
3.1.3 No Consent to Transfer of Shares. If Partners (in
the case of a proposed transfer by a Xxxxxx Stockholder other than
a Xxxxxxx Stockholder) or Xxxxxx (in the case of a proposed
transfer by a Partners Stockholder), as the case may be, does not
consent to a proposed transfer of Shares by a Xxxxxx Stockholder
(other than a Xxxxxxx Stockholder) or a Partners Stockholder, as
the case may be, pursuant to Section 3.1.1, then such Shares may
not be transferred by such Xxxxxx Stockholder or such Partners
Stockholder, as the case may be, until May 3, 1999 and then in
accordance with Section 4 hereof. Any attempt to transfer such
Shares or any rights thereunder in violation of this Section 3.1.3
shall be null and void ab initio and the Company shall not register
any such transfer.
3.1.4 Transfers After May 3, 1999. Subject to Section 2.2,
if at any time after May 3, 1999 any Partners Stockholder or any
Xxxxxx Stockholder (other than a Xxxxxxx Stockholder) wishes to
transfer any portion of its or his Shares to any Person, then such
transfer shall be made in accordance with Section 4 hereof.
Transfers by Xxxxxxx Stockholders shall at all times be subject to
Section 4 hereof and shall in no event be subject to Section 3.
3.2 Transfers by Motorola Stockholders Prior to Second Anniversary
of this Agreement. Except as provided in Section 2.2 of this
Agreement or pursuant to the Registration Rights Agreement of the Company, no
Motorola Stockholder shall at any time prior to the second anniversary of this
Agreement transfer any of its Shares to any Person. Subject to
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Section 2.2, if at any time after the second anniversary of this Agreement any
Motorola Stockholder wishes to transfer any portion of its Shares to any Person,
then such transfer shall be made in accordance with Section 4 hereof.
4. Voluntary and Involuntary Transfers.
4.1 Proposed Voluntary Transfers.
4.1.1 Offering Notice. Subject to Sections 2 and 3,
if any Stockholder (a "Selling Stockholder") wishes to transfer all or any
portion of its or his Shares to any Person (other than to a Permitted
Transferee) (a "Third Party Purchaser"), such Selling Stockholder shall offer
such Shares first to the Company by sending written notice (the "Offering
Notice") to the Company and the other Stockholders which shall state (a) the
number of Shares proposed to be transferred (the "Offered Securities") and (b)
the proposed purchase price per Share which the Selling Stockholder is willing
to accept (the "Offer Price"). Upon delivery of the Offering Notice, such offer
shall be irrevocable unless and until the rights of first offer provided for
herein shall have been waived or shall have expired.
4.1.2 Company Option; Exercise. For a period of
thirty (30) days after the giving of the Offering Notice pursuant to Section
4.1.1 (the "Company Option Period"), the Company shall have the right (the
"Company Option") to purchase any or all of the Offered Securities at a purchase
price equal to the Offer Price and upon the terms and conditions set forth in
the Offering Notice. The right of the Company to purchase any or all of the
Offered Securities under this Section 4.1.2 shall be exercisable by delivering
written notice of the exercise thereof, prior to the expiration of the 30-day
period referred to above, to the Selling Stockholder with a copy to the other
Stockholders, which notice shall state the number of Offered Securities proposed
to be purchased by the Company. The failure of the Company to respond within
such 30-day period shall be deemed to be a waiver of the Company's rights under
Section 4.1. The Company may waive its rights under Section 4.1 prior to the
expiration of the 30-day period by notice to the Stockholders.
4.1.3 Stockholder Option; Exercise.
(a) If the Company does not elect to purchase
all of the Offered Securities pursuant to Section 4.2.1, then for a period of
thirty (30) days after the earlier to occur of (a) the expiration of the Company
Option Period pursuant to Section 4.1.2 and (b) the date upon which the Company
shall have sent to the Selling Stockholder and the other Stockholders written
notice of exercise of the Company Option pursuant to Section 4.1.2 or its waiver
thereof (the "Option Period"), the Partners Stockholders, the General Atlantic
Stockholders, the Xxxxxx Stockholders, the Alltel Stockholders, the FUCP
Stockholders, the BT Stockholders, the Xxxxx Xxxxxx Stockholders, the Manolovici
Stockholders, the St. Xxxx Stockholders, the Karmanos Stockholders and the
Motorola Stockholders (each, a "Rightholder") shall have the right to purchase
all, but not less than all, of the remaining Offered Securities at a purchase
price equal to the Offer Price and upon the terms and conditions set
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forth in the Offering Notice. Each such Rightholder shall have the right to
purchase that percentage of the Offered Securities determined by dividing (i)
the total number of Shares then owned by such Rightholder by (ii) the total
number of Shares then owned by all such Rightholders. If any Rightholder does
not fully subscribe for the number or amount of Offered Securities it or he is
entitled to purchase, then each other participating Rightholder shall have the
right to purchase that percentage of the Offered Securities not so subscribed
for (for the purposes of this Section 4.1.3, the "Excess Offered Securities")
determined by dividing (x) the total number of Shares then owned by such fully
participating Rightholder by (y) the total number of Shares then owned by all
fully participating Rightholder who elected to purchase Offered Securities. The
procedure described in the preceding sentence shall be repeated until there are
no remaining Excess Offered Securities. If the Company and/or the Rightholders
do not purchase all, but not less than all, of Offered Securities pursuant to
Section 4.1.2 and/or Section 4.1.3, then the Selling Stockholder may, subject to
Section 4.1.6, sell the Offered Securities to a Third Party Purchaser in
accordance with Section 4.1.5 without any of the obligations set forth in
Section 4.1.2 and 4.1.3.
(b) The right of each Rightholder under
subsection (a) above shall be exercisable by delivering written notice of the
exercise thereof, prior to the expiration of the 30-day period referred to in
subsection (a) above, to the Selling Stockholder with a copy to the Company and
the other Stockholders. Each such notice shall state (i) the number of Shares
held by such Rightholder and (ii) the number of Shares that such Rightholder is
willing to purchase pursuant to this Section 4.1.3. The failure of a Rightholder
to respond within such 30-day period to the Selling Stockholder shall be deemed
to be a waiver of such Rightholder's rights under Section 4.1. A Rightholder may
waive its rights hereunder by notice to the Company and the other Stockholders.
4.1.4 Closing. The closing of the purchases of
Offered Securities subscribed for by the Company under Section 4.1.2 or the
Rightholders under Section 4.1.3 shall be held at the principal office of the
Company at 11:00 a.m. local time, on the 90th day after the giving of the
Offering Notice pursuant to Section 4.1.1 or at such other time and place as the
parties to the transaction may agree. At such closing, the Selling Stockholder
shall deliver certificates representing the Offered Securities, duly endorsed
for transfer and accompanied by all requisite transfer taxes, if any, and such
Offered Securities shall be free and clear of any liens, claims, options,
charges, encumbrances or rights ("Liens") (other than those arising hereunder
and those attributable to actions by the purchasers) and the Selling Stockholder
shall so represent and warrant, and further represent and warrant that it is the
sole beneficial and record owner of such Offered Securities. The Company or each
Rightholder, as the case may be, purchasing Offered Securities shall deliver at
the closing payment in full in immediately available funds for the Offered
Securities purchased by it or him. At such closing, all of the parties to the
transaction shall execute such additional documents as are otherwise necessary
or appropriate.
4.1.5 Sale to a Third Party Purchaser. Unless the
Company or the Rightholders elect to purchase all, but not less than all, of the
Offered Securities under Sections 4.1.2 and 4.1.3, the Selling Stockholder may,
subject to Section 4.1.6, sell the Offered
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Securities to a Third Party Purchaser on the terms and conditions set forth in
the Offering Notice; provided, however, that such sale is bona fide and made
pursuant to a contract entered into within 120 days of the earlier to occur of
(i) the waiver by the Company and the Rightholders of their options to purchase
the Offered Securities and (ii) the expiration of the Option Period (the earlier
of such dates being offered herein as the "Contract Date"); and provided
further, that such sale shall not be consummated unless and until all of the
following conditions are met:
(a) The Selling Stockholder shall deliver
to the Company a certificate of Third Party Purchaser stating that (i) such
Third Party Purchaser is aware of the rights of the Company, the Partners
Stockholders, the General Atlantic Stockholders, the Xxxxxx Stockholders, the
Alltel Stockholders, the FUCP Stockholders, the BT Stockholders, the Xxxxx
Xxxxxx Stockholders, the Manolovici Stockholders, the St. Xxxx Stockholders, the
Karmanos Stockholders and the Motorola Stockholders contained in this Section
4.1 and (ii) prior to the purchase by such Third Party Purchaser of any such
Offered Securities, such Third Party Purchaser shall become a party to this
Agreement and agree to be bound by the terms and conditions hereof in accordance
with Section 2.4 hereof.
(b) The consummation of such sale to a
Third Party Purchaser shall not be subject to any conditions (other than
necessary filings under the HSR Act), except that it may be conditioned upon the
truth as of the closing of the proposed purchase of customary representations
and warranties and the delivery of stock certificates and a customary legal
opinion.
(c) A Third Party Purchaser shall have
furnished evidence satisfactory to the Company, in its reasonable judgment, as
to the financial ability of such Third Party Purchaser to consummate the
proposed purchase.
If such sale is not consummated within forty-five (45) days of the Contract Date
for any reason, then the restrictions provided for herein shall again become
effective, and no transfer of such Offered Securities may be made thereafter by
the Selling Stockholder without again offering the same to the Company, the
Partners Stockholders, the General Atlantic Stockholders, the Xxxxxx
Stockholders, the Alltel Stockholders, the FUCP Stockholders, the BT
Stockholders, the Xxxxx Xxxxxx Stockholders, the Manolovici Stockholders, the
St. Xxxx Stockholders, the Karmanos Stockholders and the Motorola Stockholders
in accordance with this Section 4.1.
4.1.6 Tag-Along Rights.
(a) If any Xxxxxx Stockholder, Partners
Stockholder, General Atlantic Stockholder, Alltel Stockholder, FUCP Stockholder,
BT Stockholder, or Motorola Stockholder as the case may be (an "Initiating
Stockholder"), is transferring Offered Securities to a Third Party Purchaser
pursuant to Section 4.1.5, then each Xxxxxx Stockholder, each Partners
Stockholder, each General Atlantic Stockholder, each Alltel Stockholder, each
FUCP Stockholder, each BT Stockholder and each Motorola Stockholder (other than
the Initiating
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Stockholder) (each a "Tag-Along Rightholder") shall have the right to sell to
such Third Party Purchaser, upon the terms set forth in the Offering Notice,
that number of Shares held by such Tag-Along Rightholder equal to that
percentage of the Offered Securities determined by dividing (x) the total number
of Shares then owned by such Tag-Along Rightholder by (y) the total number of
Shares then owned by all Tag-Along Rightholders exercising their rights pursuant
to this Section 4.1.6(a) plus the total number of Shares then owned by the
Initiating Stockholder. The Initiating Stockholder and the Tag-Along Rightholder
shall effect the sale of the Offered Securities and such Tag-Along Rightholder
shall sell the number of Offered Securities required to be sold pursuant to this
Section 4.1.6(a), and the number of Offered Securities to be sold to a Third
Party Purchaser by the Initiating Stockholder shall be reduced accordingly.
(b) In order to exercise its right to sell
Shares to a Third Party Purchaser pursuant to Section 4.1.6(a), a Tag-Along
Rightholder must agree to make substantially the same representations,
warranties, covenants and indemnities and other similar agreements as the
Initiating Stockholder agrees to make in connection with the proposed sale by it
of Offered Securities to a Third Party Purchaser; provided, however, that no
Tag-Along Rightholder shall be required to make any representations and
warranties concerning the business of the Company, any representations and
warranties made by the Tag-Along Rightholders shall be several and not joint and
any liability for indemnities given by a Tag-Along Rightholder shall be capped
at the amount received by such Tag-Along Rightholder for its Shares. Each
Initiating Stockholder shall give notice to each Tag-Along Rightholder of each
proposed sale by it of Offered Securities which gives rise to the rights of the
Tag-Along Rightholders set forth in this Section 4.1.6, at least third (30) days
prior to the proposed consummation of such sale, setting forth the name of such
Initiating Stockholder, the number of Offered Securities, the percent of Shares
that such Tag-Along Rightholder may sell to such Third Party Purchaser
(determined in accordance with Section 4.1.6(a)), and a representation that such
Third Party Purchaser has been informed of the "tag-along" rights provided for
in this Section 4.1.6 and has agreed to purchase Shares in accordance with the
terms hereof. The tag-along rights provided by this Section 4.1.6 must be
exercised by such Tag-Along Rightholder wishing to sell its Shares within
fifteen (15) days following receipt of the notice required by the preceding
sentence, by delivery of a written notice to such Initiating Stockholder
indicating such Tag-Along Rightholder's wish to exercise its rights and
specifying the number of Shares (up to the maximum number of Shares owned by
such Tag-Along Rightholder required to be purchased by such Third Party
Purchaser) it wishes to sell. If such Third Party Purchaser fails to purchase
Shares from any Tag-Along Rightholder that has properly exercised its tag-along
rights pursuant to this Section 4.1.6, then such Initiating Stockholder shall
not be permitted to consummate the proposed sale of the Offered Securities, and
any such attempted sale shall be null and void and the Company shall not
register any such transfer.
4.2 Involuntary Transfers.
4.2.1 Rights of First Offer upon Involuntary
Transfer. If an Involuntary Transfer of any Shares (the "Transferred Shares")
owned by any Stockholder shall occur, then
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the Company, the Partners Stockholders, the General Atlantic Stockholders, the
Xxxxxx Stockholders, the Alltel Stockholders, the FUCP Stockholders, the BT
Stockholders, the Xxxxx Xxxxxx Stockholders, the Manolovici Stockholders, the
St. Xxxx Stockholders, the Karmanos Stockholders and the Motorola Stockholders
(other than the Stockholder who suffered the Involuntary Transfer) shall have
the same rights as specified in Sections 4.1.2 and 4.1.3, respectively, with
respect to such Transferred Shares as if the Involuntary Transfer had been a
proposed voluntary transfer by a Selling Stockholder and shall be governed by
Section 4.1 except that (a) the time periods shall run from the date of receipt
by the Company of actual notice of the Involuntary Transfer (and the Company
shall immediately give notice to the Rightholders of the date of receipt of such
notice), (b) such rights shall be exercised by notice to the transferee of such
Transferred Shares (the "Involuntary Transfer") rather than to the Stockholder
who suffered or will suffer the Involuntary Transfer and (c) the purchase price
per Transferred Share shall be agreed upon by the Involuntary Transferee and the
Company or the purchasing Rightholders, as the case may be; provided, however,
that if such parties fail to agree as to such purchase price, the purchase price
shall be the Fair Value thereof as determined in accordance with Section 4.2.2.
4.2.2 Fair Value. If the parties fail to agree
upon the purchase price of the Transferred Shares in accordance with Section
4.2.1 hereof, then the Company or the Rightholders, as the case may be, shall
purchase the Transferred Shares at a purchase price equal to the Fair Value (as
hereinafter defined) thereof. The Fair Value of the Transferred Shares shall be
determined by an independent appraiser, which shall be a nationally recognized
investment banking firm or a nationally recognized expert experienced in the
valuation of corporations engaged in the business conducted by the Company and
its Subsidiaries, selected by the Board of Directors in its reasonable judgment.
Such appraiser shall conduct its determination as promptly as practicable. The
Involuntary Transferee and the Company shall each share half the fees and
expenses of such appraiser. For purposes of this Section 4.2.2., the "Fair
Value" of the Transferred Shares means the fair market value of such Transferred
Shares determined in accordance with this Section 4.2.2 based upon all
considerations that the appraiser determines to be relevant.
4.2.3 Closing. The closing of any purchase under
this Section 4.2 shall be held at the principal office of the Company at 11:00
a.m., local time on the earlier to occur of (a) the fifth Business Day after the
purchase price per Transferred Share shall have been agreed upon by the
Involuntary Transferee and the Company or the purchasing Rightholders, as the
case may be, in accordance with Section 4.2.1(c) or (b) the fifth Business Day
after the determination of the Fair Value of the Transferred Shares in
accordance with Section 4.2.2, or at such other time and place as the parties to
the transaction may agree. At such closing, the Involuntary Transferee shall
deliver certificates, if applicable, or other instruments or documents
representing the Transferred Shares being purchased under this Section 4.2 duly
endorsed with a signature guarantee for transfer and accompanied by all
requisite transfer and accompanied by all requisite transfer taxes, if any, and
such Transferred Shares shall be free and clear of any Liens (other than those
arising hereunder) arising through the action or inaction of the Involuntary
Transferee and the Involuntary Transferee shall so represent and warrant, and
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further represent and warrant that it is the beneficial owner of such
Transferred Shares. The Company or each Rightholder, as the case may be,
purchasing such Transferred Shares shall deliver at closing payment in full in
immediately available funds for such Transferred Shares. At such closing, all
parties to the transaction shall execute such additional documents as are
otherwise necessary or appropriate.
4.2.4 General. In the event that the provisions
of this Section 4.2 shall be held to be unenforceable with respect to any
particular Involuntary Transfer, the Company and the Rightholders shall have the
rights specified in Sections 4.1.2 and 4.1.3, respectively, with respect to any
transfer by an Involuntary Transferee of such Shares, and each Rightholder
agrees that any Involuntary Transfer shall be subject to such rights, in which
case the Involuntary Transferee shall be deemed to be the Selling Stockholder
for purposes of Section 4.1 of this Agreement and shall be found by the
provisions of Section 4.1 and other related provisions of this Agreement.
4.3 Proposed Transfers of Series B Preferred Stock,
Series C Preferred Stock and Warrants.
4.3.1 Notice of Sale. Subject to Section 2.1, if
any FUCP Stockholder or BT Stockholder wishes to transfer all or any portion of
its shares of Series B Preferred Stock to any Person (other than to a Permitted
Transferee thereof) or any Alltel Stockholder wishes to transfer all or any
portion of its shares of Series C Preferred Stock to any Person (other than to a
Permitted Transferee thereof), such Stockholder shall offer such Preferred
Securities (as hereinafter defined) first to the Company by sending written
notice (the "Notice of Sale") to the Company which shall state (a) the number of
shares of Series B Preferred Stock or Series C Preferred Stock, as the case may
be, proposed to be transferred (the "Preferred Securities"), (b) the purchase
price per share which such FUCP Stockholder, BT Stockholder or Alltel
Stockholder, as the case may be, (each, an "Offering Stockholder") is willing to
accept (the "Offering Price") and (c) that such transfer is not subject to any
other terms other than customary representations, warranties and covenants and
is not subject to any conditions other than the delivery of the stock
certificates, payment of the purchase price therefor and customary legal
opinions (the "Terms and Conditions"). Upon delivery of the Notice of Sale, such
offer shall be irrevocable unless and until the rights provided for in this
Section 4.3 shall have been waived or shall have expired. From and after the
date hereof until and including the earlier of (A) the date on which the Company
effects a Complete Redemption (as defined in the Warrants) or a Qualified Final
Redemption (as defined in the Warrants) and (B) December 31, 1999, (i) any FUCP
Stockholder or BT Stockholder transferring Preferred Securities pursuant to this
Section 4.3 shall transfer a pro rata portion of such Stockholder's Warrants
with the Preferred Securities being transferred and the Notice of Sale and Terms
and Conditions shall also include all applicable information in the foregoing
subsections (a), (b) and (c) above concerning such Warrants and (ii) the
Warrants may not be transferred to any Person (other than to a Permitted
Transferee in accordance with Section 2.2) except with the Preferred Securities
in accordance with the preceding clause (i). From and after January 1, 2000, if
any FUCP Stockholder or BT Stockholder is transferring its Preferred Securities,
then such FUCP Stockholder or BT
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Stockholder, as the case may be, may transfer its Preferred Securities pursuant
to this Section 4.3.1 without transferring any portion of such Stockholder's
Warrants. From and after the earlier of (A) the date on which the Company
effects a Complete Redemption or a Qualified Final Redemption and (B) January 1,
2000, the Warrants may be transferred to any Person without the Preferred
Securities, provided that, except as provided in Section 2.2, such Warrants
shall be transferred in accordance with Section 4.1 and in any such transfer,
the Warrants or portion thereof so transferred must be exercisable for shares of
Class B Common Stock representing not less than 1% of the Common Stock of the
Company on a fully diluted basis.
4.3.2 Company Option; Exercise.
(a) For a period of twenty (20) days after
the giving of the Notice of Sale pursuant to Section 4.3.1 (the "Purchase Option
Period"), the Company shall have the right to (a) make a bona fide written offer
to purchase all of the Preferred Securities and the Warrants, if applicable,
being transferred at a purchase price not less than the Offering Price and upon
the Terms and Conditions (the "Company Offer") or (b) obtain from one or more
Persons a bona fide written offer to purchase all of the Preferred Securities
and the Warrants, if applicable, being transferred at a purchase price not less
than the Offering Price and upon the Terms and Conditions (the "Third Party
Offer"). The failure of the Company to deliver to the Offering Stockholder the
Company Offer or the Third Party Offer prior to the expiration of the Purchase
Option Period shall be deemed to be a waiver of the Company's rights under this
Section 4.3, provided that the Company may waive its rights under this Section
4.3 prior to the expiration of the Purchase Option Period by notice to the
Offering Stockholder.
(b) If the Company elects to make the
Company Offer pursuant to Section 4.3.2(a), then (i) the Company shall exercise
such right by delivering such Company Offer, prior to the expiration of the
Purchase Option Period, to the Offering Stockholder and (ii) the Company and the
Offering Stockholder shall close the sale of the Preferred Securities and the
Warrants, if applicable, by the Offering Stockholder to the Company in
accordance with the Company Offer within 30 days after the date of delivery of
the Company Offer. If the Company elects to obtain from any Person or Persons
such Third Party Offer, then (i) the Company shall deliver such Third Party
Offer, prior to the expiration of the Purchase Option Period, to the Offering
Stockholder and (ii) the Offering Stockholder and such Person or Persons shall
close the sale of the Preferred Securities and the Warrants, if applicable, by
the Offering Stockholder to such Person or Persons in accordance with the Third
Party Offer within 30 days after the date of delivery of the Third Party Offer.
If such closing does not occur within any such 30- day period, then such failure
shall be deemed to be a waiver of the Company's rights or such Person's or
Persons' rights under this Section 4.3 unless the Offering Stockholder and the
Company or the Offering Stockholder and such Person or Persons, as the case may
be, shall have agreed prior to the expiration of such 30-day period to extend
the closing date.
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4.3.3 Sale to Prospective Purchaser.
(a) If the Company does not deliver the
Company Offer or the Third Party offer or waives its rights pursuant to Section
4.3.2(a) or if the 30-day period described in Section 4.3.2(b) shall have
expired (without an extension thereof) without the closing of the Company Offer
or the Third Party Offer, as the case may be, then for a period of ninety (90)
days after the earliest to occur of (i) the expiration of the Purchase Option
Period pursuant to Section 4.3.2(a) without the Offering Stockholder having
received the Company Offer or the Third Party Offer, (ii) the waiver by the
Company of its rights under Section 4.3.2(a) and (iii) the expiration (without
an extension) of the 30-day period described in Section 4.3.2(b) without the
closing of the Company Offer or the Third Party Offer, as the case may be, the
Offering Stockholder may solicit from any Person (a "Prospective Purchaser") a
bona fide written offer to purchase all of the Preferred Securities and the
Warrants, if applicable, being transferred at a price not less than the Offering
Price and upon the Terms and Conditions. If the Offering Stockholder obtains a
bona fide written offer from a Prospective Purchaser during such 90-day period,
then it shall deliver a copy of such offer to the Company and it may sell all of
the Preferred Securities and the Warrants, if applicable, being transferred to
such Prospective Purchaser; provided, however, that such sale is bona fide and
made pursuant to a contract entered into within 30 days of the date upon which
such Prospective Purchaser delivers its bona fide written offer to the Offering
Stockholder; and provided further, that such sale shall not be consummated
unless and until the Offering Stockholder delivers to the Company a certificate
of the Prospective Purchaser stating that (i) such Prospective Purchaser is
aware of the rights of the Company and the Stockholders set forth in this
Agreement and (ii) prior to the purchase by such Prospective Purchaser of such
Preferred Securities and the Warrants, if applicable, such Prospective Purchaser
shall become a party to this Agreement and agree to be bound by the terms and
conditions of this Section 4.3.
(b) If the Offering Stockholder does not
obtain a bona fide written offer from a Prospective Purchaser within such 90-day
period or such contract is not entered into within such 30-day period for any
reason, then the restrictions provided for in this Section 4.3 shall again
become effective.
4.3.4 Closing. The closing of the purchase and
sale of Preferred Securities and the Warrants, if applicable, under Section
4.3.2 or Section 4.3.3 shall be held at the place, time and date mutually agreed
upon by the parties within 30 days after the delivery of the Company Offer or
the Third Party Offer, as the case may be. At such closing, the Offering
Stockholder shall deliver certificates representing the Preferred Securities and
the Warrants, if applicable, duly endorsed for transfer and accompanied by all
requisite transfer taxes, if any, and such Preferred Securities and the
Warrants, if applicable, shall be free and clear of any Liens (other than those
arising hereunder and those attributable to actions by the purchasers) and the
Offering Stockholder shall so represent and warrant, and further represent and
warrant that it is the sole beneficial and record owner of such Preferred
Securities and the Warrants, if applicable. The Company of the Person of
Persons, as the case may be, purchasing the Preferred Securities and the
Warrants, if applicable, shall deliver at the closing payment in full in
immediately available funds for the Preferred Securities and the Warrants, if
applicable, purchased by it. At such closing, the Person or Persons purchasing
the Preferred Securities and the Warrants, if
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applicable (in the event that the Company is not the purchaser thereof) shall
agree in writing to be bound by the terms and conditions of this Section 4.3
pursuant to an instrument in form and substance reasonably satisfactory to the
Company and all of the parties to the transaction shall execute such additional
documents as are otherwise necessary or appropriate.
5. Future Issuance of Capital Stock.
5.1 Offering Notice; Right of First Offer. Except for (a)
capital stock of the Company which may be issued to employees, consultants or
directors of the Company pursuant to a stock option plan or other employee or
consultant benefit arrangement approved by the Board of Directors, (b) a
dividend on the outstanding shares of Common Stock in capital stock of the
Company or a subdivision of the outstanding shares of Common Stock into a larger
number of shares of Common Stock, (c) capital stock of the Company issued in
consideration of the acquisition by the Company or any of its Subsidiaries of
another Person or (d) capital stock of the Company issued upon the conversation
or exercise of all Common Stock Equivalents, if the Company wishes to issue any
shares of capital stock or any other security convertible into or exchangeable
for capital stock of the Company (collectively, "New Securities") to any Person
(the "Subject Purchaser") prior to the IPO Effectiveness Date, then the Company
shall offer such New Securities first to the General Atlantic Stockholders by
sending written notice (the "New Issuance Notice") to the General Atlantic
Stockholders, with a copy to the other Stockholders, which shall state (i) the
number of New Securities proposed to be issued and (ii) the proposed purchase
price per share of the New Securities that the Company is willing to accept (the
"Proposed Price"). Upon delivery of the New Issuance Notice, such offer shall be
irrevocable unless and until the rights provided for in Sections 5.2 and 5.3
shall have been waived or shall have expired.
5.2 General Atlantic Stockholder Option.
(a) For a period of fifteen (15) days
after the giving of the New Issuance Notice pursuant to Section 5.1, the General
Atlantic Stockholders shall have the right to purchase, subject to Section
5.2(b), all of the New Securities.
(b) If the General Atlantic Stockholders
elect to purchase all of the New Securities pursuant to subsection (a) hereof,
then the General Atlantic Stockholders shall purchase, and each of the Partners
Stockholders, the Xxxxxx Stockholders, the Alltel Stockholders, the FUCP
Stockholders, the BT Stockholders, the Xxxxx Xxxxxx Stockholders, the Manolovici
Stockholders, the St. Xxxx Stockholders, the Karmanos Stockholders and the
Motorola Stockholders shall have the right to purchase, at a purchase price
equal to the Proposed Price and upon the terms and conditions set forth in the
New Issuance Notice, that percentage of the New Securities determined by
dividing (a) the total number of Shares then owned by the General Atlantic
Stockholders (in the case of the purchase by the General Atlantic Stockholders)
or the Partners Stockholders (in the case of the purchase by the Partners
Stockholders) or the Xxxxxx Stockholders (in the case of the purchase by the
Xxxxxx Stockholders) or the Alltel Stockholders (in the case of the purchase by
the Alltel Stockholders) or the FUCP
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Stockholders (in the case of the purchase by the FUCP Stockholders) or the BT
Stockholders (in the case of the purchase by the BT Stockholders) or the Xxxxx
Xxxxxx Stockholders (in the case of the purchase by the Xxxxx Xxxxxx
Stockholders) or the Manolovici Stockholders (in the case of the purchase by the
Manolovici Stockholders) or the St. Xxxx Stockholders (in the case of the
purchase by the St. Xxxx Stockholders) or the Karmanos Stockholders (in the case
of the purchase by the Karmanos Stockholders) or the Motorola Stockholders (in
the case of the purchase by the Motorola Stockholders), as the case may be, by
(b) the total number of Shares then owned by the General Atlantic Stockholders
plus the total number of Shares then owned by the Partners Stockholders plus the
total number of Shares then owned by the Alltel Stockholders plus the total
number of shares then owned by the Xxxxxx Stockholders plus the total number of
Shares then owned by the FUCP Stockholders plus the total number of Shares then
owned by the BT Stockholders plus the total number of Shares then owned by the
Xxxxx Xxxxxx Stockholders plus the total number of Shares then owned by the
Manolovici Stockholders plus the total number of Shares then owned by the St.
Xxxx Stockholders plus the total number of Shares then owned by the Karmanos
Stockholders plus the total number of shares then owned by the Motorola
Stockholders (the "New Issuance Percentage"). If the Partners Stockholders, the
Xxxxxx Stockholders, the Alltel Stockholders, the FUCP Stockholders, the BT
Stockholders, the Xxxxx Xxxxxx Stockholders, the Manolovici Stockholders, the
St. Xxxx Stockholders, the Karmanos Stockholders or the Motorola Stockholders,
as the case may be, do not fully subscribe for the amount of New Securities that
they are entitled to purchase pursuant to the preceding sentence, then the
General Atlantic Stockholders shall purchase all of the remaining New Securities
not so subscribed for by the Partners Stockholders, the Xxxxxx Stockholders, the
Alltel Stockholders, the FUCP Stockholders, the BT Stockholders, the Xxxxx
Xxxxxx Stockholders, the Manolovici Stockholders, the St. Xxxx Stockholders, the
Karmanos Stockholders or the Motorola Stockholders, as the case may be.
5.3 New Issuance Rightholder Option. If the General Atlantic
Stockholders do not elect to purchase all, but not less than all, of the New
Securities pursuant to Section 5.2(a), then for a period of fifteen (15) days
after the earlier to occur of (a) the expiration of the 15-day period referred
to in Section 5.2(a) and (b) the date upon which the Company shall have received
written notice from the General Atlantic Stockholders stating that the General
Atlantic Stockholders do not intend to exercise their option to purchase all of
the New Securities pursuant to Section 5.2(a), the General Atlantic
Stockholders, the Partners Stockholders, the Xxxxxx Stockholders, the Alltel
Stockholders, the FUCP Stockholders, the BT Stockholders, the Xxxxx Xxxxxx
Stockholders, the Manolovici Stockholders, the St. Xxxx Stockholders, the
Karmanos Stockholders and Motorola Stockholders (each, a "New Issuance
Rightholder") shall have the right to purchase its or his Proportionate
Percentage (as hereinafter defined) of the New Securities at a purchase price
equal to the Proposed Price and upon the terms and conditions set forth in the
New Issuance Notice. Each such New Issuance Rightholder shall have the right to
purchase that percentage of the New Securities determined by dividing (a) the
total number of Shares then owned by such New Issuance Rightholder exercising
its rights under this Section 5.3 by (b) the total number of Shares then owned
by all of the New Issuance Rightholders exercising their rights under this
Section 5.3 (the "Proportionate Percentage"). If any Partners Stockholder, any
Xxxxxx Stockholder, any Alltel Stockholder, any FUCP Stockholder, any BT
Stockholder,
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any Xxxxx Xxxxxx Stockholder, any Manolovici Stockholder, any St. Xxxx
Stockholder, any Karmanos Stockholder or any Motorola Stockholder, as the case
may be, does not fully subscribe for the number of amount of New Securities that
it or he is entitled to purchase pursuant to the preceding sentence, then the
General Atlantic Stockholders shall have the right to purchase any or all of the
remaining New Securities not so subscribed for by any such Partners Stockholder,
Xxxxxx Stockholder, Alltel Stockholder, FUCP Stockholder, BT Stockholder, Xxxxx
Xxxxxx Stockholder, Manolovici Stockholder, St. Xxxx Stockholder, Karmanos
Stockholder or Motorola Stockholder, as the case may be. To the extent that the
General Atlantic Stockholders do not subscribe for any or all of such remaining
New Securities not so subscribed for by any such Partners Stockholder, Xxxxxx
Stockholder, Alltel Stockholder, FUCP Stockholder, BT Stockholder, Xxxxx Xxxxxx
Stockholder, Manolovici Stockholder, St. Xxxx Stockholder, Karmanos Stockholder
or Motorola Stockholder, as the case may be, each Partners Stockholder, Xxxxxx
Stockholder, Alltel Stockholder, FUCP Stockholder, BT Stockholder, Xxxxx Xxxxxx
Stockholder, Manolovici Stockholder, St. Xxxx Stockholder, Karmanos Stockholder
or Motorola Stockholder, as the case may be, who elected to purchase New
Securities shall have the right to purchase that percentage of the remaining New
Securities not so subscribed for by the General Atlantic Stockholders (for the
purposes of this Section 5.3., the "Excess New Securities") determined by
dividing (x) the total number of Share then owned by such fully participating
Partners Stockholder, Xxxxxx Stockholder, Alltel Stockholder, FUCP Stockholder,
BT Stockholder, Xxxxx Xxxxxx Stockholder, Manolovici Stockholder, St. Xxxx
Stockholder, Karmanos Stockholder or Motorola Stockholder, as the case may be,
by (y) the total number of Shares then owned by all fully participating Partners
Stockholders, Xxxxxx Stockholders, Alltel Stockholders, FUCP Stockholders, BT
Stockholders, Xxxxx Xxxxxx Stockholders, Manolovici Stockholders, St. Xxxx
Stockholders, Karmanos Stockholders or Motorola Stockholders, as the case may
be, who elected to purchase New Securities.
5.4 Exercise of Options.
(a) The right of the General Atlantic
Stockholders to purchase all of the New Securities under Section 5.2 shall be
each exercisable by delivering written notice (the "GAP Notice") of the exercise
thereof, prior to the expiration of the 15-day period referred to in Section
5.2(a), to the Company with a copy to the Partners Stockholders, the Xxxxxx
Stockholders, the Alltel Stockholders, the FUCP Stockholders, the BT
Stockholders, the Xxxxx Xxxxxx Stockholders, the Manolovici Stockholders, the
St. Xxxx Stockholders, the Karmanos Stockholders and the Motorola Stockholders,
which notice shall state that the General Atlantic Stockholders elect to
purchase subject to Section 5.2(b), all of the New Securities. The failure of
the General Atlantic Stockholders to respond within such 15-day period shall be
deemed to be a waiver of the General Atlantic Stockholders' rights under Section
5.2.
(b) The right of the Partners
Stockholders, the Xxxxxx Stockholders, the Alltel Stockholders, the FUCP
Stockholders, the BT Stockholders, the Xxxxx Xxxxxx Stockholders, the Manolovici
Stockholders, the St. Xxxx Stockholders, the Karmanos Stockholders and the
Motorola Stockholders to purchase their New Issuance Percentage under Section
5.2(b) shall be exercisable by delivering written notice of exercise thereof,
prior to the
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expiration of fifteen (15) days after the General Atlantic Stockholders shall
have sent the GAP Notice to the Partners Stockholders, the Xxxxxx Stockholders,
the Alltel Stockholders, the FUCP Stockholders, the BT Stockholders, the Xxxxx
Xxxxxx Stockholders, the Manolovici Stockholders, the St. Xxxx Stockholders, the
Karmanos Stockholders and the Motorola Stockholders, to the Company and the
General Atlantic Stockholders with a copy to the other Stockholders, which
notice shall state the number of New Securities proposed to be purchased by the
Partners Stockholders, the Xxxxxx Stockholders, the Alltel Stockholders, the
FUCP Stockholders, the BT Stockholders, the Xxxxx Xxxxxx Stockholders, the
Manolovici Stockholders, the St. Xxxx Stockholders, the Karmanos Stockholders or
the Motorola Stockholders, as the case may be. The failure of the Partners
Stockholders (in the case of such failure by the Partners Stockholders) or the
Xxxxxx Stockholders (in the case of such failure by the Xxxxxx Stockholders) or
the Alltel Stockholders (in the case of such failure by the Alltel Stockholders)
or the FUCP Stockholders (in the case of such failure by the FUCP Stockholders)
or the BT Stockholder (in the case of such failure by the BT Stockholders) or
the Xxxxx Xxxxxx Stockholders (in the case of such failure by the Xxxxx Xxxxxx
Stockholders) or the Manolovici Stockholders (in the case of such failure by the
Manolovici Stockholders) or the St. Xxxx Stockholders (in the case of such
failure by the St. Xxxx Stockholders) or the Karmanos Stockholders (in the case
of such failure by the Karmanos Stockholders) or the Motorola Stockholders (in
the case of such failure by the Motorola Stockholders) to respond within such
15-day period shall be deemed to be a waiver of the Partners Stockholders'
rights (in the case of such failure by the Partners Stockholders) or the Xxxxxx
Stockholders' rights (in the case of such failure by the Xxxxxx Stockholders) or
the Alltel Stockholders' rights (in the case of such failure by the Alltel
Stockholders) or the FUCP Stockholders' rights (in the case of such failure by
the FUCP Stockholders) or the BT Stockholders' rights (in the case of such
failure by the BT Stockholders) or the Xxxxx Xxxxxx Stockholders' rights (in the
case of such failure by the Xxxxx Xxxxxx Stockholders) or the Manolovici
Stockholders' rights (in the case of such failure by the Manolovici
Stockholders) or the St. Xxxx Stockholders' rights (in the case of such failure
by the St. Xxxx Stockholders) or the Karmanos Stockholders' rights (in the case
of such failure by the Karmanos Stockholders) or the Motorola Stockholders'
rights (in the case of such failure by the Motorola Stockholders), as the case
may be, under Section 5.2(b).
(c) The right of each New Issuance
Rightholder to purchase the New Securities under Section 5.3 shall be
exercisable by delivering written notice of the exercise thereof, prior to the
expiration of the 15-day period referred to in Section 5.3, to the Company,
which notice shall state the amount of New Securities that such New Issuance
Rightholder elects to purchase. The failure of a New Issuance Rightholder to
respond within such 15-day period shall be deemed to be a waiver of such New
Issuance Rightholder's rights under Section 5.3.
5.5 Closing. The Closing of the purchase of New Securities
subscribed for under Section 5.2 or Section 5.3, as the case may be, shall be
held at the principal office of the Company at 11:00 a.m., local time, on (a)
the 45th day after the giving of the New Issuance Notice pursuant to Section
5.1, if the General Atlantic Stockholders elect to purchase all of the New
Securities pursuant to Section 5.2(a), (b) the 60th day after the giving of the
New Issuance
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Notice pursuant to Section 5.1, if the New Issuance Rightholders elect to
purchase any of the New Securities under Section 5.3 or (c) at such other time
and place as the parties to the transaction may agree. At such closing, the
Company shall deliver certificates representing the New Securities, and such New
Securities shall be issued free and clear of all Liens and the Company shall so
represent and warrant, and further represent and warrant that such New
Securities shall be upon issuance thereof to (i) the General Atlantic
Stockholders (in the case of their election pursuant to Section 5.2(a) or
Section 5.3), (ii) the Partners Stockholders (in the case of their election
pursuant to Section 5.2(b) or Section 5.3), (iii) the Xxxxxx Stockholders (in
the case of their election pursuant to Section 5.2(b) or Section 5.3), (iv) the
Alltel Stockholders (in the case of their election pursuant to Section 5.2(b) or
Section 5.3), (v) the FUCP Stockholders (in the case of their election pursuant
to Section 5.2(b) or Section 5.3), (vi) the BT Stockholders (in the case of
their election pursuant to Section 5.2(b) or Section 5.3), (vii) the Xxxxx
Xxxxxx Stockholders (in the case of their election pursuant to Section 5.2(b) or
Section 5-2), (viii) the Manolovici Stockholders (in the case of their election
pursuant to Section 5.2(b) or Section 5.3), (ix) the St. Xxxx Stockholders (in
the case of their election pursuant to Section 5.2(b) or Section 5.3), (x) the
Karmanos Stockholders (in the case of their election pursuant to Section 5.2(b)
or Section 5.3), or (xi) the Motorola Stockholders (in the case of their
election pursuant to Section 5.2(b) or Section 5.3), as the case may be, and
after payment therefor, duly authorized, validly issued, fully paid and
nonassessable. The General Atlantic Stockholders (in the case of their election
pursuant to Section 5.2(a) or Section 5.3), the Partners Stockholders (in the
case of their election pursuant to Section 5.2(b) or Section 5.3), the Xxxxxx
Stockholders (in the case of their election pursuant to Section 5.2(b) or
Section 5.3), the Alltel Stockholders (in the case of their election pursuant to
Section 5.2(b) or Section 5.3), the FUCP Stockholders (in the case of their
election pursuant to Section 5.2(b) or Section 5.3), the BT Stockholders (in the
case of their election pursuant to Section 5.2(b) or Section 5.3), the Xxxxx
Xxxxxx Stockholders (in the case of their election pursuant to Section 5.2(b) or
Section 5.3), the Manolovici Stockholders (in the case of their election
pursuant to Section 5.2(b) or Section 5.3), the St. Xxxx Stockholders (in the
case of their election pursuant to Section 5.2(b) or Section 5.3), the Karmanos
Stockholders (in the case of their election pursuant to Section 5.2(b) or
Section 5.3) or the Motorola Stockholders (in the case of their election
pursuant to Section 5.2(b) or Section 5.3), as the case may be, purchasing the
New Securities shall deliver at the closing payment in full in immediately
available funds for the New Securities purchased by him or it. At such closing,
all of the parties to the transaction shall execute such additional documents as
are otherwise necessary or appropriate.
5.6 Sale to Subject Purchaser. Unless all of the New
Securities are purchased pursuant to Section 5.2 or Section 5.3, the Company may
sell to the Subject Purchaser all of the New Securities not purchased by the New
Issuance Rightholders pursuant to Section 5.3 on terms and conditions that are
no more favorable to the Subject Purchaser than those set forth in the New
Issuance Notice; provided, however, that such sale is bona fide and made
pursuant to a contract entered into within six (6) months of the earlier to
occur of (a) the waiver by the New Issuance Rightholders of their option to
purchase all of the New Securities pursuant to Section 5.2 or Section 5.3 and
(b) the expiration of the 15-day period referred to in Section 5.3. If such sale
is not consummated within such six (6) month period for any reason, then the
restrictions
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provided for herein shall again become effective, and no issuance and sale of
New Securities may be made thereafter by the Company without again offering the
same in accordance with this Section 5. The closing of any issue and purchase
pursuant to this Section 5.6 shall be held at the time and place as the parties
to the transaction may agree.
6. After-Acquired Securities. All of the provisions of this
Agreement shall apply to all of the Shares or Common Stock Equivalents now owned
or which may be issued or transferred hereafter to a Stockholder in consequence
of any additional issuance, purchase, exchange or reclassification of any of
such Shares or Common Stock Equivalents, corporate reorganization, or any other
form of recapitalization, consolidation, merger, share split or share dividend,
or which are acquired by a Stockholder in any other manner.
7. Corporate Governance.
7.1 General. From and after the execution of this Agreement,
each Stockholder shall vote its or his voting Shares at any regular or special
meeting of stockholders of the Company (a "Stockholders Meeting") or in any
written consent executed in lieu of such a meeting of stockholders (a "Written
Consent") and shall take all other actions necessary to give effect to the
provisions of this Agreement (including, without limitation, Section 7.3 hereof)
and to ensure that the Charter Documents do not, at any time hereafter, conflict
in any respect with the provisions of this Agreement. In addition, each
Stockholder shall vote its or his voting Shares at any Stockholders Meeting or
act by Written Consent with respect to such voting Shares, upon any matter
submitted for action by the Company's stockholders or with respect to which such
Stockholder may vote or act by Written Consent, in conformity with the specific
terms and provisions of this Agreement and the Charter Documents.
7.2 Stockholders Actions. In order to effectuate the
provisions of this Section 7, each Stockholder (a) hereby agrees that when any
action or vote is required to be taken by such Stockholder pursuant to this
Agreement, such Stockholder shall use its best efforts to call, or cause the
appropriate officer and directors of the Company to call, a Stockholders Meeting
or to execute or cause to be executed a Written Consent to effectuate such
stockholder action, (b) shall use its best efforts to cause the Board of
Directors to adopt, either at a meeting of the Board of Directors or by
unanimous written consent of the Board of Directors, all the resolutions
necessary to effectuate the provisions of this Agreement and (c) shall use its
best efforts to cause the Board of Directors to cause the Secretary of the
Company, or if there be no Secretary, such other officer of the Company as the
Board of Directors may appoint to fulfill the duties of Secretary, not to record
any vote or consent contrary to the terms of this Section 7.
7.3 Election of Directors, Number and Composition. Each
Stockholder shall vote its or his voting Shares at any Stockholders Meeting, or
act by Written Consent with respect to such voting Shares, and take all other
actions necessary to ensure that the number of directors constituting the entire
Board of Directors shall be not less than seven nor greater than nine. Each
Stockholder shall vote its or his voting Shares at any Stockholders Meeting
called for the purpose of filling the positions on the Board of Directors, or in
any Written Consent executed for
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such purpose, and to take all other actions necessary to ensure the election to
the Board of Directors of the following individuals:
(a) one individual designated by Partners (who shall
initially be Xxx Xxxxxx) (the "Partners Director");
(b) one individual designated by the General Atlantic
Stockholders (who shall initially be Xxxxxxx X. Xxxx) (the "First General
Atlantic Director") unless the General Atlantic Stockholders are entitled to
elect one director of the Company by virtue of their rights as holders of
Series F Preferred Stock (the "GAP Series F Preferred Director"):
(c) a second individual designated by the General
Atlantic Stockholders (who shall initially be Xxxxxx X. Xxxxxxx) (the "Second
General Atlantic Director") unless the General Atlantic Stockholders are
entitled to elect one director of the Company by virtue of their rights as
holders of Series D Preferred Stock and Series G Preferred Stock (the "GAP
Series D/G Preferred Director"; and the First General Atlantic Director, if
any, the Second General Atlantic Director, if any, the GAP Series F Preferred
Director, if any, and the GAP Series D/G Preferred Director, if any, are
hereinafter referred to as the "General Atlantic Directors");
(d) two individuals designated by the Xxxxxx
Stockholders, one of whom shall be Xxxxxx and a second individual to be
designated in writing by Xxxxxx, with a copy to the Stockholders (the "Xxxxxx
Directors");
(e) one individual designated by the Alltel Stockholders
(who shall initially be Xxxxxxx X. Xxx) (the "Alltel Director"); and
(f) one individual designated by the Motorola
Stockholders (who shall initially be Xxxxxxx X. Xxxxxxx) (the "Motorola
Director"), provided, however, that if the size of the Board of Directors
increases to twelve then the number of individuals Motorola may designate shall
increase to two and the size of the Board of Directors shall be further
increased to thirteen to accommodate such second Motorola Director.
All other directors of the Company shall be elected to the Board of Directors in
accordance with the Certificate of Incorporation and the By-laws.
7.4 Reduction of Directors. Notwithstanding anything to the
contrary contained in this Agreement, if at any time (a) the Partners
Stockholders own Shares representing (after giving effect to any adjustments)
less than 5% of the total number of shares of Common Stock outstanding on an as
converted and an as exercised basis, then Partners shall no longer be entitled
to designate the Partners Director pursuant to Section 7.3(a), (b) the General
Atlantic Stockholders own Shares representing (after giving effect to any
adjustments) (i) less than 10%, but not less than 5%, of the total number of
shares of Common Stock outstanding on an as converted and an as exercised basis,
then the General Atlantic Stockholders shall no longer be entitled to designate
the Second General Atlantic Director pursuant to Section 7.3(c) and (ii) less
than 5% of the total number of shares of Common Stock outstanding on an as
converted and an as exercised basis, then the General Atlantic Stockholders
shall no longer be
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entitled to designate the First General Atlantic Director pursuant to Section
7.3(b), (c) the Xxxxxx Stockholders own Shares representing (after giving effect
to any adjustments) (i) less than 10%, but not less than 5% of the total number
of shares of Common Stock outstanding on an as converted and an as exercised
basis, then the Xxxxxx Stockholders shall be entitled to designate one Xxxxxx
Director pursuant to Section 7.3(d) and (ii) less than 5% of the total number of
shares of Common Stock outstanding on an as converted and an as exercised basis,
then the Xxxxxx Stockholders shall no longer be entitled to designate and Xxxxxx
Directors pursuant to Section 7.3(d), (d) the Alltel Stockholders own Shares
representing (after giving effect to any adjustments) less than 5% of the total
number of shares of Common Stock outstanding on an as converted and an as
exercised basis, then the Alltel Stockholders shall no longer be entitled to
designate the Alltel Director pursuant to Section 7.3(e) and (e) the Motorola
Stockholders own Shares representing (after giving effect to any adjustments)
less than 3.5% of the total number of Shares of Common Stock outstanding on an
as converted and an as exercised basis, then the Motorola Stockholders shall no
longer be entitled to designate the Motorola Director pursuant to Section
7.3(f).
7.5 Removal and Replacement of Directors.
7.5.1 Removal of Partners Directors. If at any
time Partners notifies the other Stockholders of its wish to remove at any time
and for any reason (or no reason) the Partners Director, then each Stockholder
shall vote all of its or his voting Shares so as to remove such Partner's
Director.
7.5.2 Removal of General Atlantic Directors. If
at any time the General Atlantic Stockholders notify the other Stockholders of
their wish to remove at any time and for any reason (or no reason) any General
Atlantic Director, then each Stockholder shall vote all of its or his voting
Shares so as to remove such General Atlantic Director.
7.5.3 Removal of Xxxxxx Director. If at any
time the Xxxxxx Stockholders notify the other Stockholders of their wish to
remove at any time and for any reason (or no reason) any Xxxxxx Director, then
each Stockholder shall vote all of its or his voting Shares so as to remove such
Xxxxxx Director.
7.5.4 Removal of Alltel Director. If at any time
the Alltel Stockholders notify the other Stockholders of their wish to remove at
any time and for any reason (or no reason) the Alltel Director, then each
Stockholder shall vote all of its or his voting Shares so as to remove such
Alltel Director.
7.5.5 Removal of Motorola Director. If at any
time the Motorola Stockholders notify the other Stockholders of their wish to
remove at any time and for any reason (or no reason) the Motorola Director(s),
then each Stockholder shall vote all of its or his voting Shares so as to remove
such Motorola Director(s).
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7.5.6 Replacement of Directors.
(a) If at any time a vacancy is created
on the Board of Directors by reason of the death, removal or resignation of the
Partners Director, then Partners shall designate an individual who shall be
elected to fill such vacancy until the next Stockholders Meeting.
(b) If at any time, a vacancy is created
on the Board of Directors by reason of the death, removal or resignation of the
First General Atlantic Director or the Second General Atlantic Director as the
case may be, then the General Atlantic Stockholders shall designate an
individual (reasonably acceptable to Xxxxxx and the Company) who shall be
elected to fill such vacancy until the next Stockholders Meeting. Any vacancy
created on the Board of Directors by reason of the death, removal or resignation
of the GAP Series F Preferred Director or the GAP Series D/G Preferred Director,
as the case may be, shall be filled in accordance with the Charter Documents.
(c) If at any time, a vacancy is created
on the Board of Directors by reason of the death, removal or resignation of any
Xxxxxx Director, then the Xxxxxx Stockholders shall designate an individual who
shall be elected to fill such vacancy until the next Stockholders Meeting.
(d) Subject to Section 10, if at any
time, a vacancy is created on the Board of Directors by reason of the death,
removal or resignation of the Alltel Director, then the Alltel Stockholders
shall designate an individual (reasonably acceptable to Xxxxxx and the Company)
who shall be elected to fill such vacancy until the next Stockholders Meeting.
(e) If at any time, a vacancy is created
on the Board of Directors by reason of the death, removal or resignation of the
Motorola Director(s), then Motorola shall designate an individual(s) who shall
be elected to fill such vacancy until the next Stockholders Meeting.
(f) Upon receipt of notice of the
designation of a nominee, each Stockholder shall, as soon as practicable after
the date of such notice, take action, including the voting of its or his voting
Shares, to elect the director designated by Partners, the General Atlantic
Stockholders, the Xxxxxx Stockholders, the Alltel Stockholders or the Motorola
Stockholders, as the case may be, to fill such vacancy.
7.6 Designation of General Atlantic Observer and St. Xxxx
Observer. So long as a General Atlantic Director serves on the Board of
Directors, the General Atlantic Stockholders shall be entitled to designate one
individual to attend and observe any regular or special meeting of the Board of
Directors (the "General Atlantic Observer"). The St. Xxxx Stockholders shall be
entitled to designate one individual (who shall be Xxxx Xxxxxxxx) to attend and
observe any regular or special meeting of the Board of Directors (the "St. Xxxx
Observer").
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7.7 Reimbursement of Expenses. Notwithstanding anything
to the contrary contained in this Agreement, the Company shall reimburse (a) GAP
LP and GAP Coinvestment, or their designee, for all reasonable travel and
accommodation expenses incurred by the General Atlantic Director(s) and, so long
as the General Atlantic Stockholders are entitled to designate the General
Atlantic Observer in accordance with Section 7.6, the General Atlantic Observer,
if the participation of the General Atlantic Observer at a meeting of the Board
of Directors to which such expenses relate shall have been requested by the
Board of Directors, (b) the Partners Stockholders for all reasonable travel and
accommodation expenses incurred by the Partners Director, (c) the Xxxxxx
Stockholders for all reasonable travel and accommodation expenses incurred by
the Xxxxxx Directors, (d) the Alltel Stockholders for all reasonable travel and
accommodation expenses incurred by the Alltel Director, (e) the Motorola
Stockholders for all reasonable travel and accommodation expenses incurred by
the Motorola Director(s) and (f) the St. Xxxx Stockholders for all reasonable
travel and accommodation expenses incurred by the St. Xxxx Observer.
7.8 Actions of the Board of Directors; Extraordinary
Events.
7.8.1 Consent of Partners Director.
Notwithstanding anything to the contrary contained in this Agreement, the Board
of Directors shall not take, approve or otherwise ratify any of the following
actions except with the consent of at least a majority of the directors
constituting the entire Board of Directors, which majority shall include,
without limitation, the Partners Director:
(a) any voluntary filing of a petition
in bankruptcy (or similar law of the United States or any other jurisdiction
which relates to liquidation or reorganization of companies or to the
modification or alteration of the rights of creditors); the making of an
assignment, or so-called trust mortgage or the like, for the benefit of
creditors or the making of a proposal to creditors under any bankruptcy act, the
appointment of a receiver or trustee (or other Person performing a similar
function) for all or a substantial part of the Company's property; or the
calling of a meeting of creditors, appointment of a committee of creditors or
liquidating agents or offering of a composition or extension to creditors;
(b) a material change in the line or
lines of business activity in which the Company is engaged on January 31, 1998
(the parties hereto acknowledging and agreeing that the line or lines of
business activity conducted by the Company and its Subsidiaries as a result of
the consummation of the transactions contemplated by the Motorola Purchase
Agreement do not constitute such a material change);
(c) an amendment to the Xxxxxx Employment
Agreement relating to Xxxxxx'x duties to the Company, Xxxxxx'x noncompetition
covenants or a reduction in Xxxxxx'x initial three-year term of employment by
the Company; or
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(d) the initial Public Offering of the
Company occurring prior to the third anniversary of May 3, 1996.
7.8.2 Consent of General Atlantic Director.
Notwithstanding anything to the contrary contained in this Agreement, the Board
of Directors shall not take, approve or otherwise ratify any of the following
actions without the consent of at least one General Atlantic Director, unless
the entire Board of Directors other than the General Atlantic Director, or
General Atlantic Directors if more than one, votes or acts by written consent in
favor of such action:
(a) other than capital stock of the
Company that may be issued to employees, consultants or directors of the Company
pursuant to a stock option plan or other employee benefit arrangement approved
by the Board of Directors of the Company or any capital stock of the Company
that may be issued upon the conversion or exercise of Common Stock Equivalents,
any issuance of or agreement to issue (i) any shares of capital stock of the
Company or rights of any kind convertible into or exchangeable for, any shares
of capital stock of the Company, or any option, warrant, or other subscription
or purchase right with respect to shares of capital stock and (ii) any long term
indebtedness of the Company in excess of an aggregate of $5,000,000;
(b) (i) any single capital expenditure by
the Company in excess of $2,500,000 other than the purchase of computer-related
equipment for resale in the ordinary course of business and (ii) any material
expenditure by the Company in any single year in excess of $1,500,000 that is
not provided for in the annual operating budget of the Company for such year;
(c) any material changes in accounting
principles or policies of the Company, including any material change in the
criteria for evaluating the Company's financial conditions and results of
operations; or
(d) any amendment, modification or
restatement of the Charter Documents, any modification of the number of
directors constituting the entire Board of Directors pursuant to Section 7.3 or
any amendment or modification of this Section 7.8.2 that, in each case, in the
reasonable judgment of a General Atlantic Director, adversely impairs or effects
the rights of the General Atlantic Stockholders.
7.9 Holders of Non-Voting Shares. The parties hereto
acknowledge and agree that (a) the FUCP Stockholders and the BT Stockholders are
the holders of non-voting Shares and shall have no rights or obligations
whatsoever under this Section 7, and (b) the Xxxxxxx Stockholders shall have no
rights or obligations whatsoever under this Section 7, notwithstanding their
inclusion in the definition of "Xxxxxx Stockholders," and all references in this
Section 7 to the Xxxxxx Stockholders shall be deemed to mean the "Xxxxxx
Stockholders other than the Xxxxxxx Stockholders."
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8. Partners Put.
8.1 Exercise. Notwithstanding anything to the contrary
contained in this Agreement, but subject to any restrictions contained in any
loan agreements and instruments of indebtedness entered into by the Company, if
there shall be any Requirement of Law applicable to Partners or any Affiliate
thereof which, in the reasonable judgment of Partners, would (a) prohibit
Partners or any Affiliate thereof from holding any of its Shares or (b) subject
Partners or any Affiliate thereof to any material restrictions in the conduct of
its business as a result of its holding of its Shares (each, a "Put Trigger
Event"), then the Partners Stockholders shall have the right and option (the
"Partners Put") to require the Company to purchase all, but not less than all,
of the Shares held by the Partners Stockholders (the "Put Securities") Partners,
on behalf of itself and the other Partners Stockholders, shall deliver promptly
to the Company, with a copy to the other Stockholders, notice (the "Put Notice")
of (a) the occurrence of a Put Trigger Event, (b) the exercise by the Partners
Stockholders of the Partners Put and (c) the number of Put Securities held by
the Partners Stockholders (the date on which Partners gives the Put Notice being
hereinafter referred to as the ("Put Exercise Date"). Notwithstanding the
foregoing, upon the consent of Partners, which consent may not be unreasonably
withheld, the Company may delegate to another Person (the "Company Transferee")
on commercially reasonable terms and conditions, the Company's obligation to
purchase the Put Securities pursuant to this Section 8.
8.2 Purchase Price. If the Partners Stockholders shall
exercise the Partners Put, the Company or the Company Transferee, as the case
may be, shall purchase, and the Partners Stockholders shall sell, all of the Put
Securities held by the Partners Stockholders at the purchase price (the "Put
Purchase Price") set forth below:
8.2.1 Put in Second Year. If the Partners Stockholders
exercise the Partners Put on or after May 3, 1997, but prior to May 3, 1998, the
aggregate Put Purchase Price of the Put Securities shall be equal to $0.67467
per share (which price has been adjusted to reflect the 1997 stock dividend and
which shall be adjusted from time to time for any other stock splits, stock
dividends, combinations or the like).
8.2.2 Put After Second Year. If the Partners
Stockholders exercise the Partners Put on or after May 3, 1998, the aggregate
Put Purchase Price of the Put Securities shall be equal to $1.34933 per share
(which price has been adjusted to reflect the 1997 stock dividend and which
shall be adjusted from time to time for any other stock splits, stock dividends,
combinations or the like).
8.3 Partners Put Termination Date. The Partners Stockholders
shall have no right to exercise the Partners Put with respect to and the
Partners Put shall terminate and be of no further force and effect with respect
to any Put Securities that may be distributed to the public without any
restrictions pursuant to Rule 144 (or any successor provision then in effect)
under the Securities Act.
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8.4 Closing.
8.4.1 Delivery of Put Securities. The closing of
the Partners Put exercised by the Partners Stockholders pursuant to this Section
8 shall be held at the principal office of the Company at 11:00 a.m., local
time, on the date mutually agreed upon by the Company or the Company Transferee,
as the case may be, and Partners, provided that in no event shall such closing
occur more than thirty (30) days after the Put Exercise Date. At such closing,
Partners shall deliver, on behalf of itself and the other Partners Stockholders,
certificates representing the Put Securities, duly endorsed for transfer and
accompanied by all requisite transfer taxes, if any, and such Put Securities
shall be free and clear of any Liens and Partners shall so represent and warrant
on behalf of itself and the other Partners Stockholders, and further represent
and warrant that each of the Partners Stockholders is the sole beneficial and
record owner of the Put Securities owned by it. At such closing, all of the
parties to the transaction shall execute such additional documents as are
otherwise necessary or appropriate.
8.4.2 Payment of Purchase Price. If the Company
delegates its obligations under this Section 8 to the Company Transferee, then
the Company Transferee shall deliver to Partners at the closing payment in full
in immediately available funds for all of the Put Securities or shall make other
arrangements for payment satisfactory to Partners. If the Company does not
delegate its obligations under this Section 8 to the Company Transferee, then
the Put Purchase Price for the Put Securities being purchased shall be paid in
full by the Company at the closing as follows:
(a) The Company shall make and issue to
Partners at the closing a non-negotiable promissory note (the "Company Note") in
favor of Partners in the aggregate principal amount of the Put Purchase Price,
bearing interest quarterly from and after the Put Exercise Date at the Prime
Rate plus one percent.
(b) The Company shall have no obligation
to make any payments of principal or interest on the Company Note until (i) the
fiscal quarter following the close of the first fiscal year after the exercise
of the Partners Put in which the Company's net earnings after taxes, as stated
on the Company's audited financial statement for such fiscal year, are positive
and (ii) such payments of principal and/or interest on the Company Note shall be
made only to the extent of 20 percent of the net earnings after taxes for such
fiscal year; provided, however, that any such payments shall be payable in
consecutive equal quarterly installments due forty-five (45) days after the end
of each of the first three fiscal quarters of the fiscal year in which such
payments are made and ninety (90) days after the end of the fiscal year in which
such payments are made; provided further, that if the Company's net earnings
after taxes, as stated on the Company's audited financial statement for any
fiscal year succeeding a fiscal year in which net earnings after taxes are
positive, are negative, then (x) the obligation of the Company to make payments
of principal and/or interest on the Company Note shall be suspended without
penalty and (y) the restrictions provided for in the first clause of this
sentence and the preceding proviso shall again become effective; and provided
further, that the Company Note shall be prepayable in whole or in part at the
option of the Company.
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9. Alltel Put.
9.1 Exercise. Notwithstanding anything to the contrary set
forth in this Agreement, at one or more times after the date hereof but on or
prior to December 31, 1999, the Alltel Stockholders shall have the right and
option (the "Alltel Put") to require the Company to purchase all or a portion of
the Shares held by the Alltel Stockholders (the "Alltel Put Securities").
Alltel, on behalf of itself and the other Alltel Stockholders, shall deliver to
the Company, with a copy to the other Stockholders, notice of (a) the exercise
by the Alltel Stockholders of the Alltel Put and (b) the number of Alltel Put
Securities.
9.2 Purchase Price. If the Alltel Stockholders shall exercise
the Alltel Put, then the Company shall purchase, and the Alltel Stockholders
shall sell, the Alltel Put Securities held by the Alltel Stockholders at the
purchase price per share equal to $.01 (the "Alltel Put Price").
9.3 Closing. The closing of the Alltel Put exercised by the
Alltel Stockholders pursuant to this Section 9 shall be held at the principal
office of the Company at 11:00 a.m., local time, on a date agreed upon by the
Company and Alltel, or at such other place, time and date as agreed upon by the
Company and Alltel, provided that in no event shall such closing occur more than
thirty (30) days or less than fifteen (15) days after Alltel gives notice to the
Company pursuant to Section 9.1 of the exercise of the Alltel Put. At such
closing, Alltel shall deliver, on behalf of itself and the other Alltel
Stockholders, certificates representing the Alltel Put Securities, duly endorsed
for transfer and accompanied by all requisite transfer taxes, if any, and such
Alltel Put Securities shall be free and clear of any Liens and Alltel shall so
represent and warrant on behalf of itself and the other Alltel Stockholders, and
further represent and warrant that each of the Alltel Stockholders is the sole
beneficial and record owner of the Alltel Put Securities owned by it. The
Company shall pay in full the Alltel Put Price for the Alltel Put Securities by
delivery of a check therefor or by such other method of payment as agreed upon
by the Company and Alltel. At such closing, the parties, shall execute such
additional documents as are otherwise necessary or appropriate.
10. Alltel Non-Competition: Change of Control.
10.1 Removal from Board of Directors and Sale of Shares.
Notwithstanding anything to the contrary contained in this Agreement, (a) if at
any time from and after the second anniversary of the date hereof until the
fourth anniversary of the date hereof, Alltel or any of its Subsidiaries engages
in the business of outsourcing comprehensive information systems and software to
medium and large hospitals (over 150 beds) and developing, selling and
implementing clinical, financial, administrative and decision support software
for application in the medium and large hospital (over 150 beds) market and
developing, selling and implementing physician billing services in the physician
practice management market (the "Restricted Business"), including, without
limitation, developing the Restricted Business on its own or acquiring,
partnering with or otherwise contracting with any Person to acquire the
Restricted Business or (b) if at any time from and after the date hereof until
the fourth anniversary of the date hereof, there shall occur (i) the voluntary
or involuntary liquidation, dissolution or winding
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up of Alltel, (ii) a sale of all or substantially all of the assets of Alltel to
a competitor of the Company or (iii) the acquisition by any competitor of the
Company, directly or indirectly, in one or a series of related transactions, of
50% or more of the voting securities of Alltel pursuant to, without limitation,
a sale of voting securities, merger, tender offer, exchange offer,
reorganization or other business combination (each of the foregoing (i), (ii)
and (iii), a "Change of Control"), then (1) the Alltel Director shall be
immediately removed as a director of the Company and each of the Stockholders
shall vote its or his voting Shares so as to remove the Alltel Director, (2) the
Alltel Stockholders shall have no right to designate any individual to fill such
vacancy pursuant to Section 7.5.5(d), (3) the Alltel Stockholders shall no
longer be entitled to designate the Alltel Director pursuant to Section 7.3(e),
(4) any such vacancy created on the Board of Directors by reason of the removal
of the Alltel Director shall be filled in accordance with the Charter Documents
and (5) the Company shall have the right and option to require the Alltel
Stockholders to sell to the Company or any Person designated by the Company, and
the Alltel Stockholders shall sell to the Company or such Person, all or any
portion of the Shares held by the Alltel Stockholders at the purchase price per
Share equal to the fair market value thereof (as determined by the Board of
Directors in its reasonable judgment or, if such determination is not reasonably
satisfactory to Alltel, by a nationally recognized investment banking firm
selected by Alltel and the Company, the expenses for which shall be borne
equally by Alltel and the Company). The right of the Company to require the
Alltel Stockholders to sell all or any portion of their Shares to the Company or
its designee shall be exercisable by delivering to Alltel written notice of the
exercise thereof, prior to the expiration of 180 days after the occurrence of
the event set forth in subsection (a) of the first sentence of this Section 10.1
or a Change of Control, as the case may be. Such notice shall state (i) the
number of Shares to be purchased by the Company or its designee, (ii) the
purchase price per Share and (iii) the closing date of the purchase and sale of
the such Shares, which date shall not be more than 15 Business Days after the
later of the delivery of such written notice and the determination of the fair
market value as described above. At such closing, Alltel shall deliver, on
behalf of itself and the other Alltel Stockholders, certificates representing
the Shares being purchased, duly endorsed for transfer and accompanied by all
requisite transfer taxes, if any, and such Shares shall be free and clear of an'
Liens and Alltel shall so represent and warrant on behalf of itself and the
other Alltel Stockholders, and further represent and warrant that each of the
Alltel Stockholders is the sole beneficial and record owner of the Shares owned
by it. The Company or its designee shall pay in full the purchase price for such
Shares by wire transfer of immediately available funds to an account
designated by Alltel. At such closing, all of the parties to the transaction
shall execute such additional documents as are otherwise necessary or
appropriate.
10.2 Exceptions to Restricted Business. Notwithstanding
anything to the contrary set forth in Section 10.1(a) neither Alltel nor any of
its Subsidiaries shall be deemed to be engaged in the Restricted Business if
Alltel or the particular Subsidiary acquires a Person engaged in, or a Person
owning or having a Subsidiary, segment or division engaged in, the Restricted
Business so long as (i) less than 15% of the revenues of such acquired Person on
a consolidated basis (including such Subsidiary, segment or division, if any) is
derived from the Restricted Business and (ii) at no time after the consummation
of any acquisition permitted by the preceding clause (i) shall Alltel and its
Subsidiaries on a consolidated basis derive greater than
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10% of their aggregate revenues from the Restricted Businesses so acquired and
(b) this Section 10 shall not prevent or otherwise limit the ability of Alltel
or any of its Subsidiaries to (u) provide the Network Services (as defined in
the Services Agreement), the Professional Services (as defined in the Services
Agreement), the Software Services (as defined in the Services Agreement), the
Carrier Services (as defined in the Services Agreement) and the Carrier Services
(as defined in the Services Agreement) to the medium and large hospital (over
150 beds) market and the physician practice management market, (v) provide any
service or activity requested by or sold to any customer of Alltel or any of its
Subsidiaries, including, without limitation, any of the exclusions set forth in
the foregoing clause (u), (w) provide the services currently provided by Alltel
or any of its Subsidiaries (other than by AHIS and its Subsidiaries), (x)
provide all products and services pursuant to the ADMIT Contract (as defined in
the Merger Agreement) and/or the IMN Contracts (as defined in the Merger
Agreement) to the medium and large hospital (over 150 beds) market and the
physician practice management market, (y) engage in the Restricted Business to
the extent necessary to perform under the Contracts (as that term is defined in
that certain letter between Alltel and the Company dated as of the date hereof
(the "Letter"), in the event that Alltel exercises its right to cause the
Company to assign the Contracts to Alltel under the Letter or (z) engage in the
Restricted Business in the event (1) there shall occur (A) the voluntary or
involuntary liquidation, dissolution or winding up of the Company or the
Acquisition Sub, (B) the sale of all or substantially all of the assets of the
Company or the Acquisition Sub or (C) the acquisition by any person, directly or
indirectly, in one or a series of related transactions, of 50% or more of the
voting securities of the Company pursuant to, without limitation, a sale of
voting securities, merger, tender offer, exchange offer, reorganization or other
business combination and (2) Xxxxxx Xxxxxx shall cease to be the President of
the Company.
11. Financial Statements and Other Information. The Company shall
deliver to each of the Partners Stockholders, the General Atlantic Stockholders,
the Alltel Stockholders, the FUCP Stockholders, the BT Stockholders, the Xxxxx
Xxxxxx Stockholders, the Xxxxxx Stockholders, the St. Xxxx Stockholders, the
Karmanos Stockholders and the Motorola Stockholders the following:
(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 balance
sheet of the Company and its Subsidiaries as of the end of such 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;
(b) commencing with the fiscal period ending on March 31, 1998, as
soon as available, but in any event not later than forty-five (45) days after
the end of each of the first three
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fiscal quarters of each fiscal year, the unaudited 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 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;
(c) as soon as available, but in any event not later than
thirty (30) days after the end of each of the first eleven (11) months of each
fiscal year of the Company, the unaudited consolidated balance sheets of the
Company and its Subsidiaries as of the end of such month and unaudited
consolidated and consolidating statements of income, retained earnings and cash
flows for the Company and its Subsidiaries for the month then ended and for that
portion of the fiscal year then ended, all prepared in accordance with GAAP
(subject to the absence of footnotes required by GAAP and subject to normal
year-end adjustments) applied on a basis consistent with that of the preceding
month or containing disclosure of the effect on the financial condition or
results of operations of any change in the application of accounting principles
and practices during such month and certified by an appropriate officer of the
Company as fairly presenting in all material respects the financial condition
and results of operations of the Company and its Subsidiaries on a consolidated
basis as of the dates and for the periods indicated;
(d) as soon as available, but in any event not more than 30
days prior to the end of each fiscal year of the Company, an annual operating
budget of the Company for the next fiscal year: and
(e) from time to time, such other financial data and
information about the Company as is reasonably available to the Company and as
any of the Partners Stockholders, the Xxxxxx Stockholders, the General Atlantic
Stockholders, the Alltel Stockholders, the FUCP Stockholders, the BT
Stockholders the Xxxxx Xxxxxx Stockholders, the Manolovici Stockholders, the St.
Xxxx Stockholders, the Karmanos Stockholders or the Motorola Stockholders may
reasonably request.
12. Inspection of Properties; Designation of FUCP Observer, BT
Observer and Motorola Observer.
(a) (i) With respect to the FUCP Stockholders, so long as the
FUCP Stockholders own any shares of Series B Preferred Stock or Shares
representing (after giving effect to any adjustments) at least 50% of the Shares
owned by FUCP on the date hereof and (ii) with respect to the BT Stockholders,
so long as the BT Stockholders own any shares of Series B Preferred Stock or
Shares representing (after giving effect to any adjustments) at least 50% of the
Shares owned by BT on the date hereof, the Company shall permit representatives
of such Stockholder, from time to time, as often as may be reasonably requested
but only during normal business hours, to visit and inspect its properties;
inspect audit and make extracts from its books, records and files, including,
but not limited to, management letters prepared by independent
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accountants; and discuss with its principal officers and its independent
accountants, its business, assets, liabilities, financial condition, results of
operations and business prospects.
(b) So long as (i) the FUCP Stockholders own any shares of
Series B Preferred Stock or Shares representing (after giving effect to any
adjustments) at least 50% of the Shares owned by FUCP on the date hereof, the
FUCP Stockholders shall be entitled to designate one individual to attend and
observe any regular or special meeting of the Board of Directors (the "FUCP
Observer") and (ii) the BT Stockholders own any shares of Series B Preferred
Stock or Shares representing (after giving effect to any adjustments) at least
50% of the Shares owned by BT on the date hereof, the BT Stockholders shall be
entitled to designate one individual to attend and observe any regular or
special meeting of the Board of Directors (the "BT Observer"). Notwithstanding
anything to the contrary set forth in this Agreement, the Company shall
reimburse (x) the FUCP Stockholders for all reasonable travel and accommodation
expenses incurred by the FUCP Observer and (y) the BT Stockholders for all
reasonable travel and accommodation expenses incurred by the BT Observer.
(c) From and after the IPO Effectiveness Date, so long as the
Motorola Stockholders own (after giving effect to any adjustments) at least 3.5%
of the total number of Shares of Common Stock outstanding on an as converted and
an as exercised basis, then the Motorola Stockholders shall be entitled to
designate one individual to attend and observe any regular or special meeting of
the Board of Directors (the "Motorola Observer"), and the Company shall
reimburse Motorola for travel and accommodation expenses incurred by such
individual in connection with attending such meetings. Notwithstanding the
foregoing, the Board of Directors may exclude the Motorola Observer from
attendance at any regular or special meeting(s) of the Board if the Board
determines or is advised by counsel that such exclusion is necessary or
desirable to protect the Company's or the Board's interests including without
limitation (i) that such exclusion is necessary or desirable for the Board's
exercise of any of its fiduciary duties to the Company or (ii) that the
attendance of the Motorola Observer might cause the waiver of a privilege.
(d) Notwithstanding anything to the contrary set forth in this
Agreement, the FUCP Stockholders may not transfer any of their rights under this
Section 12 to any Person other than among the FUCP Stockholders and the BT
Stockholders may not transfer any of their rights under this Section 12 to any
Person other than among the BT Stockholders.
13. Restrictive Provisions. Notwithstanding anything in this Agreement
to the contrary, the Company shall not make any payment of cash, property or
assets in respect of any of its capital stock, or purchase retire, redeem or
otherwise acquire for value any shares of its capital stock or any warrants,
rights or options to acquire its capital stock, or set aside funds for any of
the foregoing, for so long as any such transaction is prohibited by any
provision of the Credit Agreement, dated as of January 24, 1997, between the
Company, certain lenders, and First Union National Bank of North Carolina, as
Agent (as amended, restated, modified or supplemented from time to time, the
"Credit Agreement"), except to the extent that any such provision has been
waived; provided, that in no event shall any extension or renewal of the
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46
Credit Agreement have the effect of prohibiting during any renewal or extension
period the Company from making such payment or purchasing, retiring, redeeming
or otherwise acquiring for value any such capital stock or setting aside funds
for any of the foregoing. If, but for any provision or provisions of the Credit
Agreement, the Company would be obligated under this Agreement to make such
payment, purchase, retire, redeem or otherwise acquire for value such capital
stock or set aside such funds for any of the foregoing, then the Company shall
request the agent and/or lenders, as appropriate, under the Credit Agreement to
waive such restrictive provision or provisions.
14. Stock Certificate Legend. A copy of this Agreement shall be filed
with the Secretary of the Company and kept with the records of the Company. Each
certificate representing Shares now held or hereafter acquired by any
Stockholder shall for as long as this Agreement is effective bear legends
substantially in the following forms:
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. THE SECURITIES MAY NOT BE TRANSFERRED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT
AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS
OR PURSUANT TO A WRITTEN OPINION OF COUNSEL FOR THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.
THE SALE, ASSIGNMENT, HYPOTHECATION, PLEDGE, ENCUMBRANCE OR OTHER
DISPOSITION (EACH A "TRANSFER") AND VOTING OF ANY OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED BY THE TERMS OF THE
SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT, DATED JANUARY __,
1998, AMONG ECLIPSYS CORPORATION, PARTNERS HEALTHCARE SYSTEM, INC.,
GENERAL ATLANTIC PARTNERS 47, L.P., GENERAL ATLANTIC PARTNERS 38, L.P.,
GENERAL ATLANTIC PARTNERS 28, L.P., GAP COINVESTMENT PARTNERS, L.P,
XXXXXX X. XXXXXX, WILFAM LTD., ALLTEL INFORMATION SERVICES, INC., FIRST
UNION CORPORATION, BT INVESTMENT PARTNERS, INC., XXXXX XXXXXX
ASSOCIATES IHS L.P., XXXXXX XXXXXXXXXX, ST. XXXX VENTURE CAPITAL IV,
L.L.C., XXXXX XXXXXXXX, JR., THE XXXXXXX STOCKHOLDERS (AS DEFINED
THEREIN) AND MOTOROLA, INC., A COPY OF WHICH MAY BE INSPECTED AT THE
COMPANY'S PRINCIPAL OFFICE. THE COMPANY WILL NOT REGISTER THE TRANSFER
OF SUCH SECURITIES ON THE BOOKS OF THE COMPANY UNLESS AND UNTIL THE
TRANSFER HAS BEEN
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MADE IN COMPLIANCE WITH THE TERMS OF THE STOCKHOLDERS AGREEMENT.
15. Intentionally omitted.
16. Miscellaneous.
16.1 Notices. All notices, demands or 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, overnight mail or personal delivery:
(a) if the Company:
Eclipsys Corporation
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxx 00000
Telecopy: (000)000-0000
Attention: Xx. Xxxxxx X. Xxxxxx
with a copy to:
Goulston & Storrs
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
(b) if to Partners:
Partners HealthCare System, Inc.
Prudential Tower, Suite 1150
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xx. Xxx Xxxxxx
(c) if to any of the General Atlantic Stockholders:
c/o General Atlantic Service Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxxx
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48
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, Esq.
(d) if to Xxxxxx or Wilfam:
000 Xxxxx Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xx. Xxxxxx X. Xxxxxx
with a copy to:
Xxxxxxx X. Xxxxxxx
000 Xxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopy: (000) 000-0000
(e) if to Alltel:
ALLTEL Information Services, Inc.
0000 Xxxxxx Xxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: President, with a copy to the General Counsel
of Alltel
(f) if to FUCP:
First Union Corporation
Xxx Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xx. Xxxxxxxxx X. Xxxxxx, XX
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49
with a copy to:
Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx L.L.P.
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
(g) if to BT:
BT Investment Partners, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Mr. Xxxxxx Xxxx
with a copy to:
Winston & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy: (000)000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.
(h) if to Xxxxx Xxxxxx:
Xxxxx Xxxxxx Associates IHS L.P.
c/o Xxxxx Xxxxxx & Co.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xx. X. Xxxxx Xxxxxx
with a copy to:
Xxxxx, Raysznan & Xxxxxxxxx
000 Xxxx Xxxxx-Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxxx, Esq.
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50
(i) if to Manolovici:
Gilder, Gagnon, Xxxx & Co.
0000 Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
if to St. Xxxx:
St. Xxxx Venture Capital
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xx. Xxxxxxx Xxx
(k) if to Karmanos:
Compuware Corporation
00000 Xxxxxxxxxxxx Xxxxxxx
Xxxxxxxxxx Xxxxx Xxxxxxxx 00000
Telecopy: (000) 000-0000
(l) if to the Xxxxxxx Stockholders:
Xxxxxxx X. Xxxxxxx
000 Xxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopy: (000) 000-0000
(m) if to Motorola:
Land Mobile Products Sector
Motorola, Inc.
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxx
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with a copy to:
Corporate Law Department
Motorola, Inc.
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxxxx Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. XxXxxxxx, Esq.
(n) if to any other Stockholder, at its address as it appears
on the record books of the Company.
Any party may by notice given in accordance with this Section 16.1 designate
another address or person for receipt of notices hereunder. All such notices and
communications shall be deemed to have been duly given when delivered by hand,
if personally delivered; when delivered by courier or overnight mail, if
delivered by commercial courier service or overnight mail; five (5) Business
Days after being deposited in the mail, postage prepaid, if mailed; and when
receipt is mechanically acknowledged, if telecopied.
16.2 Amendment and Waiver.
(a) No failure or delay on the part of any party
hereto 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. The remedies provided for herein are
cumulative and are not exclusive of any remedies that may be available to the
parties hereto at law, in equity or otherwise.
(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 any party from the terms of any
provision of this Agreement, shall be effective (i) only if it is made or given
in writing, (ii) only in the specific instance and for the specific purpose for
which made or given and (iii) only if signed by (1) the Company, (2) the
Partners Stockholders holding a majority of the Shares owned by all of the
Partners Stockholders, (3) the General Atlantic Stockholders holding a majority
of the Shares owned by all of the General Atlantic Stockholders, (4) the Xxxxxx
Stockholders (other than Wilfam and the Xxxxxxx Stockholders) holding a majority
owned by all of the Xxxxxx Stockholders (other than Wilfam and the Xxxxxxx
Stockholders) (5) the Alltel Stockholders holding a majority of the Shares owned
by all of the Alltel Stockholders, (6) the FUCP Stockholders holding a majority
owned by all of the FUCP Stockholders, (7) the BT Stockholders holding a
majority of the Shares owned by all of the BT Stockholders, (8) the Motorola
Stockholders holding a majority of the Shares owned by all of the Motorola
Stockholders; and (9) the holders of Shares representing (after giving effect to
any adjustments) at least a majority of (v) the Shares owned by Wilfam plus (w)
the Shares owned by all of the Xxxxx Xxxxxx Stockholders plus (x) the Shares
owned by all of the
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52
Manolovici Stockholders plus (y) the Shares owned by all of the St. Xxxx
Stockholders plus (z) the Shares owned by all of the Karmanos Stockholders plus
(zz) the Shares owned by all of the Xxxxxxx Stockholders; provided, however,
that in no event shall the FUCP Stockholders, the BT Stockholders or the Xxxxxxx
Stockholders have the right to consent to any amendment, supplement,
modification or waiver of Section 7 of this Agreement. Any such written consent
shall be binding upon the Company and all of the Stockholders.
16.3 Specific Performance. The parties hereto intend that each
of the parties have the right to seek damages or specific performance in the
event that any other party hereto fails to perform such party's obligations
hereunder. Therefore, if any party shall institute any action or proceeding to
enforce the provisions hereof, any party against whom such action or proceeding
is brought hereby waives any claim or defense therein that the plaintiff party
has an adequate remedy at law.
16.4 Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
16.5 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.
16.6 Entire Agreement. This Agreement, together with the
exhibits and schedules hereto, is 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,
warranties or undertakings, other than those set forth or referred to herein or
therein. This Agreement, together with the exhibits hereto, supersede all prior
agreements and understandings between the parties with respect to such subject
matter, including, without limitation, the First Restated Stockholders
Agreement, as amended.
16.7 Effectiveness; Term of Agreement. This Second Restated
Stockholders Agreement shall become effective (a) as to all parties to the First
Restated Stockholders Agreement, as amended, upon the execution hereof by the
Company and the parties specified in Section 16.2 of the First Restated
Stockholders Agreement, as amended, (b) as to Motorola, upon the execution
hereof by the Company, Motorola, and the parties specified in Section 16.2 of
the First Restated Stockholders Agreement, as amended, and (c) as to GAP 47,
upon the execution hereof by the Company, GAP 47, and the parties specified in
Section 16.2 of the First Restated Stockholders Agreement, as amended. This
Agreement shall terminate upon the IPO Effectiveness Date, except for (i)
Section 3.2, which shall terminate on the second anniversary of this Agreement,
(ii) Section 10, which shall terminate on January 24, 2001, and (iii) Section
12(c), which shall terminate at such time as the Motorola Stockholders cease to
own (after giving effect
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53
to adjustments) at least 3.5% of the total number of Shares of Common Stock
outstanding on an as converted and an as exercised basis.
16.8 Variations in Pronouns. All pronouns and any variations
thereof refer to the masculine, feminine or neuter, singular or plural, as the
context may require.
16.9 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE,
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF, EXCEPT FOR THE
PROVISIONS OF THIS AGREEMENT THAT ARE GOVERNED BY THE GENERAL CORPORATION LAW OF
THE STATE OF DELAWARE (THE "DGCL"), WHICH PROVISIONS SHALL BE GOVERNED BY THE
DGCL
16.10 Further Assurances. Each of the parties shall, and shall
cause their respective Affiliates to, execute such instruments and take such
action as may be reasonably required or desirable to carry out the provisions
hereof and the transactions contemplated hereby.
16.11 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective successors,
heirs, legatees and legal representatives. This Agreement is not assignable
except in connection with a transfer of Shares in accordance with this
Agreement.
16.12 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, and all of which
taken together shall constitute one and the same instrument.
16.13 Xxxxxx Stockholders and Xxxxxxx Stockholders. With
respect to any rights or obligations of the Xxxxxx Stockholders, the Xxxxxxx
Stockholders shall, except as to Sections 3 and 7 hereof, share such rights or
obligations with the other Xxxxxx Stockholders, allocated among all the Xxxxxx
Stockholders (including the Xxxxxxx Stockholders) as a group on a pro rata
basis, calculated with reference to the total number of Shares owned by the
Xxxxxxx Stockholders as compared to the total number of shares owned by the
Xxxxxx Stockholders as a group.
IN WITNESS WHEREOF, the undersigned have executed, or have cause to be
executed, this Agreement on the date first written above.
ECLIPSYS CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
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54
Name: Xxxxxx X. Xxxxxx
Title: President
PARTNERS HEALTHCARE SYSTEM, INC.
By: /s/ Xxx X. Xxxxxx
----------------------------------------
Name: Xxx X. Xxxxxx
Title: Vice President
GENERAL ATLANTIC PARTNERS 28, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC,
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: A Managing Member
GENERAL ATLANTIC PARTNERS 38, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC,
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: A Managing Member
GENERAL ATLANTIC PARTNERS 47, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC,
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: A Managing Member
GAP COINVESTMENT PARTNERS, L.P.
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55
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: A General Member
/s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx
WILFAM LTD.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
ALLTEL INFORMATION SERVICES, INC.
By: /s/ Xxxxxxx X. Xxx
----------------------------------------
Name: Xxxxxxx X. Xxx
Title: President
FIRST UNION CORPORATION
By: /s/ Xxxxxxxxx X. Xxxxxx XX
----------------------------------------
Name: Xxxxxxxxx X. Xxxxxx XX
Title: Senior Vice President
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56
BT INVESTMENT PARTNERS, INC.
By: /s/ Xxxxxxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxxxxxx Xxxxxx
Title: Principal
XXXXX XXXXXX ASSOCIATES IHS L.P.
By: /s/ A. Xxxxx Xxxxxx
----------------------------------------
Name: A. Xxxxx Xxxxxx
Title:
/s/ Xxxxxx Xxxxxxxxxx
-------------------------------------------
Xxxxxx Xxxxxxxxxx
ST. XXXX VENTURE CAPITAL IV, L.L.C.
By: /s/ Xxxxxxx X. Xxx
----------------------------------------
Name: Xxxxxxx X. Xxx
Title: General Partner
/s/ Xxxxx Xxxxxxxx, Jr.
-------------------------------------------
Xxxxx Xxxxxxxx, Jr.
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx Xxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxx
Xxxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxx,
Trustees of the Xxxxxxx X. Xxxxxxx Family
Trust u/t/a dated 9/3/93
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxxx, Trustee
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57
Xxxxxxx X. Xxxxxxx, Trustee of the Xxx X.
Xxxxxxx 1990 Trust u/t/a December 28, 1990
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxxx, Trustee
Xxxxxxx X. Xxxxxxx, Trustee of the Xxx X.
Xxxxxxx 1990 Trust u/t/a December 28, 1990
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxxx, Trustee
Xxxxx X. Xxxxxxx or her successor in Trust,
as Trustee of the Xxxxxxx X. Xxxxxxx Trust
pursuant to a Trust Agreement Dated June
30, 1976
/s/ Xxxxx X. Xxxxxxx
-------------------------------------------
Xxxxx X. Xxxxxxx, Trustee
MOTOROLA, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:
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