EXHIBIT 9.1
VOTING TRUST AGREEMENT
Relating to Shares of
COMMVAULT SYSTEMS, INC.
THIS VOTING TRUST AGREEMENT (the "AGREEMENT") is made and entered into
as of September [-], 2006,1 by and among Sprout CEO Fund, L.P. ("SPROUT CEO
FUND"), DLJ Capital Corporation ("DLJ CAPITAL"), Sprout Growth II, L.P. ("SPROUT
GROWTH II"), Sprout Capital VII, L.P. ("SPROUT CAPITAL VII"), Sprout Capital IX,
L.P. ("SPROUT CAPITAL IX"), Sprout Entrepreneurs' Fund, L.P. ("SPROUT
ENTREPRENEURS' FUND"), Sprout IX Plan Investors, L.P. ("SPROUT IX PLAN
INVESTORS"), DLJ Merchant Banking Partners, L.P. ("DLJ MERCHANT BANKING
PARTNERS"), DLJ International Partners, C.V. ("DLJ INTERNATIONAL PARTNERS"), DLJ
Offshore Partners, C.V. ("DLJ OFFSHORE PARTNERS"), DLJMB Funding, Inc. ("DLJMB
FUNDING"), DLJ First ESC, L.P. ("DLJ FIRST ESC") and DLJ ESC II, L.P. ("DLJ ESC
II" and, together with Sprout CEO Fund, DLJ Capital, Sprout Growth II, Sprout
Capital VII, Sprout Capital IX, Sprout Entrepreneurs' Fund, Sprout IX Plan
Investors, DLJ Merchant Banking Partners, DLJ International Partners, DLJ
Offshore Partners, DLJMB Funding and DLJ First ESC, the "STOCKHOLDERS"), Wells
Fargo Bank, N.A., as trustee (together with its successors in such capacity, the
"TRUSTEE"), Credit Suisse First Boston Private Equity, Inc., a Delaware
corporation, and its successors ("CS PRIVATE EQUITY") and Credit Suisse
Securities (USA) LLC, a Delaware limited liability company, and its successors
("CS SECURITIES").
WHEREAS, the parties hereto desire to record their arrangements with
respect to shares of common stock, par value $.01 per share ("COMMON STOCK"), of
CommVault Systems, Inc., a Delaware corporation (the "CORPORATION"), Series A
Preferred Stock, par value $.01 per share ("SERIES A PREFERRED STOCK"), of the
Corporation, Series B Preferred Stock, par value $.01 per share ("SERIES B
PREFERRED STOCK"), of the Corporation, Series C Preferred Stock, par value $.01
per share ("SERIES C PREFERRED STOCK"), of the Corporation, Series D Preferred
Stock, par value $.01 per share ("SERIES D PREFERRED STOCK"), of the
Corporation, Series E Preferred Stock, par value $.01 per
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(1) To be executed at the closing of the initial public offering.
share ("SERIES E PREFERRED STOCK" and, together with the Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock and Series D Preferred
Stock, the "SERIES A - E PREFERRED STOCK"), of the Corporation, Series AA
Preferred Stock, par value $.01 per share ("SERIES AA PREFERRED STOCK"), of the
Corporation, Series BB Preferred Stock, par value $.01 per share ("SERIES BB
PREFERRED STOCK"), of the Corporation, and Series CC Preferred Stock, par value
$.01 per share ("SERIES CC PREFERRED STOCK" and, together with the Series A - E
Preferred Stock, Series AA Preferred Stock and Series BB Preferred Stock, the
"PREFERRED STOCK"), of the Corporation.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Certain Definitions. In this Agreement:
(a) "CAPITAL STOCK" of any person means any and all shares, interests
(including partnership interests), rights to purchase, warrants, options,
participations or other equivalents of or interests in (however designated)
equity of such person, but excluding debt securities convertible into such
equity.
(b) "COMMON SHARE" means a share of Common Stock.
(c) "CONTROL AFFILIATE" means CS Private Equity (as defined above) and
any person controlling, controlled by or under common control with, directly or
indirectly, CS Private Equity.
(d) "CS AFFILIATE" means any person who is a Control Affiliate,
Employee Affiliate or Other Affiliate.
(e) "CS PARENT" means Credit Suisse (USA) Inc., a Delaware corporation,
and its successors.
(f) "EMPLOYEE AFFILIATE" means any person employed by (or who is the
spouse, relative or relative of a spouse, in each case residing in the home of a
person employed by) a Control Affiliate.
(g) "EXCHANGE ACT" means the Securities Exchange Act of 1934.
(h) "EXCLUDED CAPITAL STOCK" means shares of Capital Stock of the
Corporation that any CS Affiliate owns (or has the right to acquire within 60
days) that are not subject to this Agreement.
(i) "HOLDER" means from time to time, any person for whom Shares are
held hereunder by the Trustee.
(j) "LOCKUP AGREEMENTS" means collectively the agreements between each
of the parties to this Agreement (other than the Trustee, CS Private Equity and
CS Securities)
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and CS Securities and Goldman, Sachs & Co., in each case dated as of [January
17] 2, 2006.
(k) "NEW REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of September [-], 2006,3 among the Corporation, each of the
Stockholders, Thomas J. Barry, Larry Cormier, Randy Fodero, Robert
Freiburghouse, Bob Gailus, N. Robert Hammer, David H. Ireland, Lou Miceli, Tom
Miller and Scotty R. Neal.
(l) "OTHER AFFILIATE" means any person that has a substantial business
relationship with a Control Affiliate and which is not itself a Control
Affiliate.
(m) "PERSON" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
(n) "PREFERRED SHARE" means a share of Preferred Stock.
(o) "SECURITIES ACT" means the Securities Act of 1933.
(p) "SERIES AA REGISTRATION RIGHTS AGREEMENT" means the Amended and
Restated Registration Rights Agreement, dated as of September 2, 2003, entered
into by and among the Corporation and certain of its stockholders, related to
shares of Series AA Preferred Stock.
(q) "SERIES BB REGISTRATION RIGHTS AGREEMENT" means the Amended and
Restated Registration Rights Agreement, dated as of September 2, 2003, entered
into by and among the Corporation and certain of its stockholders, related to
shares of Series BB Preferred Stock.
(r) "SERIES CC REGISTRATION RIGHTS AGREEMENT" means the Amended and
Restated Registration Rights Agreement, dated as of September 2, 2003, entered
into by and among the Corporation and certain of its stockholders, related to
shares of Series CC Preferred Stock.
(s) "SHARE" means a Common Share, Preferred Share or any other Share
Equivalent.
(t) "SHARE EQUIVALENT" means at any time any security convertible into,
exchangeable for, or carrying the right to acquire Common Stock or
subscriptions, warrants, options, rights or other arrangements obligating the
Corporation to issue or
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(2) CS Private Equity to confirm.
(3) To be executed at the closing of the initial public offering.
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dispose of any of shares of Common Stock, regardless whether such security is
convertible, exchangeable or exercisable at such time.
(u) "STOCKHOLDERS AGREEMENT" means the Amended and Restated
Stockholders Agreement dated as of May 22, 2006, among the Corporation, each of
the Stockholders, Thomas J. Barry, Larry Cormier, Randy Fodero, Robert
Freiburghouse, Bob Gailus, N. Robert Hammer, David H. Ireland, Lou Miceli, Tom
Miller and Scotty R. Neal.
(v) "VOTING STOCK" of a person means all classes of Capital Stock of
such person then outstanding and normally entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof.
SECTION 2. Deposit.
(a) Each of the Stockholders hereby duly assigns and delivers or has
caused to be duly assigned and delivered to the Trustee to be held pursuant to
this Agreement the number of Shares set forth opposite its name on Schedule A
attached hereto (the "INITIAL DEPOSIT"). Upon the request of CS Securities, each
of the Stockholders shall assign and deliver such number of Shares from time to
time owned by such Stockholder such that, when together with all other Excluded
Capital Stock owned by CS Affiliates, the Excluded Capital Stock owned by such
Stockholder does not represent five percent (5%) or more in the aggregate of the
total voting power of the Voting Stock of the Corporation outstanding at such
time. Subject to the provisions of Section 2(b) below, each of the parties to
this Agreement (other than the Trustee) shall from time to time deliver or cause
to be delivered by entities under its control to the Trustee all Shares owned by
any CS Affiliate or acquired by any CS Affiliate such that Excluded Capital
Stock owned by CS Affiliates does not represent five percent (5%) or more in the
aggregate of the total voting power of the Voting Stock of the Corporation
outstanding at such time.
(b) For purposes of determining whether five percent (5%) or more in
the aggregate of the total number of shares of the Voting Stock of the
Corporation at any time outstanding are owned by CS Affiliates, there shall be
excluded, and no deposit of Shares shall be required hereunder as a consequence
of, any Shares:
(i) held by CS Securities or any other Control Affiliate that
is registered as a broker-dealer under the Exchange Act, if such shares
are held in connection with its normal trading activities as a
broker-dealer; provided, however, that CS Parent shall cause CS
Securities or such other Control Affiliate to agree that it will not
vote such shares,
(ii) held by CS Securities or any other Control Affiliate that
is a registered broker-dealer under the Exchange Act, if such shares
are held in a syndicate or trading account and were acquired by it in
its capacity as an underwriter or placement agent, whether in an
offering registered under the Securities Act or otherwise; provided,
however, that CS Parent shall cause CS Securities or such other Control
Affiliate to agree that it will not vote such shares,
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(iii) held by CS Securities for the account of any person
other than a Control Affiliate or Employee Affiliate or in the name of
a customer account, which customer is a person other than a Control
Affiliate or Employee Affiliate; provided, however, that CS Securities
may vote the shares only when instructed by the beneficial owner
thereof or as otherwise permitted under the rules of the primary
national securities exchange on which the Shares are listed, if any,
(iv) held in an investment advisory account as to which a
Control Affiliate is an investment advisor, the assets of which account
are not owned by a Control Affiliate, or
(v) held by an Employee Affiliate other than a person holding
the position of Managing Director or above (or performing the
comparable function) of CS Securities or any of its subsidiaries or
held by an Other Affiliate, unless in either case a contract or other
arrangement (other than this Agreement) regarding the voting of such
Shares exists between such Employee Affiliate or Other Affiliate and
any Control Affiliate.
(c) From time to time after the date hereof, any Holder or any CS
Affiliate may deposit additional Shares to be held pursuant to this Agreement by
assigning and delivering such Shares to the Trustee.
(d) The Trustee hereby acknowledges that the Shares deposited with the
Trustee pursuant to the Initial Deposit are subject to the Lockup Agreements.
SECTION 3. Transfer on Books of Corporation. The Trustee shall, to the
extent applicable, cause all Shares transferred to or deposited with it in its
capacity as Trustee hereunder (such Shares, the "TRUST SHARES") to be registered
as transferred to it as Trustee on the books of the Corporation and will issue
and deliver by first class mail or overnight courier to each Holder a Voting
Trust Certificate (a "TRUST CERTIFICATE") for the number of Shares so
transferred to the Trustee.
SECTION 4. Form. Trust Certificates shall be in substantially the
following form (with such modifications as may be appropriate if the applicable
Trust Certificate represents Share Equivalents):
"THIS VOTING TRUST CERTIFICATE MAY BE TRANSFERRED TO A CS
AFFILIATE (AS DEFINED IN THE VOTING TRUST AGREEMENT (AS
DEFINED BELOW) AND IS SUBJECT TO TERMS AND CONDITIONS SET
FORTH IN THE VOTING TRUST AGREEMENT DATED AS OF SEPTEMBER [-],
2006 (THE "VOTING TRUST AGREEMENT"), A COPY OF WHICH HAS BEEN
FILED IN THE REGISTERED OFFICE IN THE STATE OF DELAWARE OF
COMMVAULT SYSTEMS, INC., A DELAWARE
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CORPORATION (THE "CORPORATION"). SUCH COPY IS OPEN TO
INSPECTION DAILY DURING BUSINESS HOURS BY ANY STOCKHOLDER OF
THE CORPORATION OR ANY BENEFICIARY OF THE VOTING TRUST CREATED
PURSUANT TO SUCH VOTING TRUST AGREEMENT.
CommVault Systems, Inc.
VOTING TRUST CERTIFICATE
Certificate No. ____ No. of Shares ______
This certifies that ____________ (the "HOLDER") has transferred to the
undersigned Trustee the above-stated number of shares of Common Stock, par value
$.01 per share, of CommVault Systems, Inc., a Delaware corporation (the
"CORPORATION"), to be held by the Trustee pursuant to the terms of the Voting
Trust Agreement dated as of September [-], 2006 (the "VOTING TRUST AGREEMENT"),
a copy of which agreement has been delivered to the above-named Holder and filed
in the registered office of the Corporation in the State of Delaware. The
Holder, or his or its registered assigns, will be entitled (i) to receive
payments equal to any and all cash dividends collected by the Trustee on the
above-stated number of shares, (ii) to receive all other dividends or
distributions except to the extent that property received is required to be
deposited in the trust created by the Voting Trust Agreement and (iii) to the
delivery of a certificate or certificates for that number of shares on the
termination of the Voting Trust Agreement, in accordance with its provisions. At
all times prior to the termination of the Voting Trust Agreement, the Trustee
has the exclusive right to vote the above-stated number of shares, or give
written consent, in person or by proxy, at all meetings of stockholders of the
Corporation, and in all proceedings in which the vote or consent, written or
otherwise, of the holders of securities of the Corporation may be required or
authorized by law.
This Voting Trust Certificate is transferable to any CS Affiliate (as
defined in the Voting Trust Agreement) on the books maintained by the Trustee at
the principal corporate trust office of the Trustee by the Holder hereof, in
person or by duly authorized attorney, and upon surrender hereof; and until so
transferred the Trustee may treat the registered Holder hereof as the absolute
owner hereof for all purposes.
The Holder, by the acceptance of this Voting Trust Certificate, agrees
to be bound by all of the provisions of the Voting Trust Agreement as fully as
if its terms were set forth in this Voting Trust Certificate.
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EXECUTED this ___ day of ___________, ____
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By:_____________________
Name:___________________
Title:__________________
[Form of Assignment for Reverse of Voting Trust Certificate]
For value received, ___________ hereby sells, assigns, and transfers
unto ____________ the within Voting Trust Certificate and all rights and
interests represented thereby, and does hereby irrevocably constitute and
appoint _______ attorney to transfer such Voting Trust Certificate on the books
of the within-named Trustee with full power of substitution in the premises.
Date: ________________________
Signed: *"
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[*Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Trustee, which requirements include membership
or participation in STAMP or such other "signature guarantee program" as may be
determined by the Trustee in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.]
SECTION 5. Additional Trust Certificates. Any Holder may at any time
deposit with the Trustee additional certificates (or the equivalent evidence of
ownership in the case of Share Equivalents) for Shares. Any CS Affiliate
acquiring Shares may at any time become a Holder by (a) depositing, or causing
to be deposited, certificates (or the equivalent evidence of ownership in the
case of Share Equivalents) for Shares, duly endorsed for transfer, with the
Trustee and (b) accepting a Voting Trust Certificate in respect of such Shares.
SECTION 6. Voting; Powers.
(a) At all times prior to the termination of the voting trust created
herein, the Trustee shall have the exclusive right to vote the Trust Shares, or
give written consent, in person or by proxy, at all meetings of stockholders of
the Corporation, and in all proceedings in which the vote or consent, written or
otherwise, of the holders of Shares may be required or authorized by law.
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The Trustee shall vote all Trust Shares in accordance with this
Agreement. The Trustee shall have full power and authority, and it is hereby
empowered and authorized, to vote the Trust Shares, and to do any and all other
things and take any and all other actions as fully as any stockholder of the
Corporation might do if personally present at a meeting of the stockholders of
the Corporation. To effect the foregoing (and to avoid any potential timing
problems that might otherwise be caused if the Trustee were required to wait
until all votes are tallied before voting the Trust Shares), the Trustee may
give instructions to the Corporation to the effect that the Trust Shares are
being voted on such matter "on a pro rata basis proportionate to all other votes
actually cast." The Trustee shall vote the Trust Shares on a pro rata basis
proportionate to all other votes, other than the Trust Shares, actually cast on
the particular matter, except with respect to matters that under current or
future Delaware law require approval by a class of outstanding shares of the
Corporation, which class includes the Trust Shares, the Trust Shares shall be
voted on a pro rata basis proportionate to all other votes of Shares of such
class actually cast, other than Trust Shares, actually voting on the particular
matter.
(b) The Trustee shall take all necessary action to ensure that the
Trust Shares are represented at all stockholder meetings of the Corporation such
that the Trust Shares are counted as present for purposes of determining the
existence of a quorum at such meeting under the Delaware General Corporation Law
and the Corporation's Certificate of Incorporation and By-laws; provided,
however, that this clause (b) shall not obligate the Trustee to vote on any
matter.
(c) Each Holder agrees that it will not communicate with the Trustee in
connection with any proceeding in which the vote or consent of the holders of
Shares may be required or authorized by law or otherwise seek to influence the
Trustee in the exercise of its right to vote or consent in any such proceedings.
Notwithstanding anything herein to the contrary, the Trustee shall vote the
Trust Shares (and use its power or right, if any, to designate or remove
directors of the Corporation) to prevent the election of more than one CS
Affiliate as a director of the Corporation. The duties of the Trustee under this
Agreement shall include exercising reasonable effort under this Agreement in a
manner that ensures that no CS Affiliate exercises control over the Corporation.
CS Private Equity shall promptly provide to the Trustee from time to time, upon
request, such information as is reasonably necessary (including certificates or
other documents) in order to enable the Trustee to carry out the foregoing
obligations; provided that the Trustee shall not be held responsible for
identifying a person as a CS Affiliate unless it has actual knowledge that such
person is a CS Affiliate.
SECTION 7. Dividends. If the Corporation pays or issues dividends or
makes other distributions on the Trust Shares, the Trustee shall accept and
receive such dividends and distributions. Upon receipt of dividends and
distributions the same shall be prorated among the Holders that have a
beneficial interest hereunder in the Trust Shares with respect to which such
dividend or other distribution was made in accordance with their interests and,
subject to the next sentence, the amount shall be distributed promptly pursuant
to transfer instructions set forth on Schedule B attached hereto. If the
dividend or distribution is in Shares, such Shares shall be held by the Trustee
under the
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voting trust created herein and new Trust Certificates representing the Shares
received shall be issued to the applicable Holders. Holders entitled to receive
such dividends or distributions, or Trust Certificates in respect thereof,
described in this Section 7 shall be those Holders registered as such on the
transfer books of the Trustee at the close of business on the day fixed by the
Corporation for the taking of a record to determine those holders of its stock
entitled to receive such dividends or distributions. In the performance of its
duties to deliver cash dividends under this Agreement, the Trustee shall not be
obligated to risk its own funds and will not be liable for taxes or other
charges related to the delivery of such dividends or distributions.
SECTION 8. Retention of Registration Rights. Each Holder, if such
Holder is a party to the Series AA Registration Rights Agreement, Series BB
Registration Rights Agreement, the Series CC Registration Rights Agreement, the
Stockholders Agreement or the New Registration Rights Agreement, retains, after
depositing any Shares with the Trustee pursuant to this Agreement, the rights
granted to such Holder in any of the above-mentioned agreements to which such
Holder is a party, and shall retain the right to agree, in respect of Shares
subject to such agreements, to any amendments to such agreements.
SECTION 9. Termination. The voting trust created herein shall terminate
on the earliest to occur of:
(a) ten years from the date hereof;
(b) the written election of CS Private Equity, CS Securities
or the Holders of Trust Certificates representing fifty percent (50%)
or more of the Trust Shares represented thereby; provided that (i) if
CS Private Equity or CS Securities delivers the written election, CS
Private Equity or CS Securities, as applicable, delivers (or such
Holders deliver) to the Trustee an opinion of independent nationally
recognized counsel who are experts in matters involving the federal
securities law, that, immediately after giving effect to such
termination, no CS Affiliate should be an affiliate of the Corporation
within the meaning of Rule 144 under the Securities Act and (ii) the
Trustee shall have received a certificate of an officer of CS Private
Equity or CS Securities, as applicable, (on which it may rely
conclusively) to the effect that clause (b)(i) has been satisfied,
together with a copy of the opinion called for thereby; or
(c) transfer of, or request for, all of the Trust Shares in
accordance with Section 10 or 11, as applicable.
Subject to CS Private Equity's delivery of the officer's certificate
and the opinion of counsel described in Section 9(b) above, an election pursuant
to Section 9(b) shall be effective upon delivery of notice thereof to the
Trustee.
Upon the termination of the voting trust herein created, the Holders
shall surrender their Trust Certificates to the Trustee, and the Trustee shall
deliver by first class mail or overnight courier to the Holders certificates (or
the equivalent evidence of
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ownership in the case of Share Equivalents) for Shares, properly endorsed for
transfer (to the extent possible), equivalent to the number and type of Shares
represented by the respective Trust Certificates surrendered.
SECTION 10. Transfers of Trust Shares.
(a) Except as provided in Sections 9, 11 and 12 and in subsections (a),
(b) and (c) of this Section 10, certificates (or the equivalent evidence of
ownership in the case of Share Equivalents) for Trust Shares may not be
delivered to a Holder, a Holder's designee or any other person. A Holder may
notify the Trustee in writing that the Holder desires to cause a certificate or
certificates (or the equivalent evidence of ownership in the case of Share
Equivalents) for Trust Shares in which the Holder has a beneficial interest
hereunder to be distributed or transferred to any person, including such Holder,
only if such transfer is an Eligible Transfer, which is defined as any transfer
meeting the requirements set forth in clause (a)(i), (a)(ii) or (a)(iii) below
or as otherwise permitted pursuant to clause (c) below or Section 9, 11 or 12.
Any person that acquires Trust Shares pursuant to an Eligible Transfer is
hereinafter referred to as an "ELIGIBLE TRANSFEREE".
(i) Transfer of Trust Shares to any Control Affiliate or any
Employee Affiliate holding the Position of Managing Director or Above.
An "ELIGIBLE TRANSFER" for purposes of this clause (a)(i) means any
distribution or transfer of Trust Shares to any Control Affiliate or
any Employee Affiliate holding the position of Managing Director or
above (or performing the comparable function) of any Control Affiliate
(including by way of a distribution by a Holder to its limited
partners); provided that either (A) (x) a contract or other arrangement
(other than this Agreement) regarding the voting of such Trust Shares
does not exist between any CS Affiliate and such transferee and (y)
immediately after giving effect to such distribution or transfer, CS
Affiliates will not own in the aggregate Excluded Capital Stock
amounting to 5% or more of the total voting power of the Voting Stock
of the Corporation then outstanding or (B) the Trust Shares distributed
or transferred to such Control Affiliate or Employee Affiliate shall be
subject to this Agreement and shall be automatically deposited with the
Trustee in accordance with Section 2. In connection with any
distribution or transfer pursuant to this clause (a)(i), CS Private
Equity shall deliver a certificate of an officer of CS Private Equity
certifying that, immediately after giving effect to such transfer, the
conditions of either clause (i)(A) or (i)(B) are satisfied.
(ii) Transfer of Trust Shares to any Employee Affiliate not
holding the Position of Managing Director or Above. An "ELIGIBLE
TRANSFER" for purposes of this clause (a)(ii) means any distribution or
transfer of Trust Shares to any Employee Affiliate not holding the
position of Managing Director or above of any Control Affiliate
(including by way of a distribution by a Holder to its limited
partners); provided that (A) a contract or other arrangement (other
than this Agreement) regarding the voting of such Trust Shares does not
exist between any CS Affiliate and such transferee and (B) any proposed
distribution or transfer will
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not be an Eligible Transfer if, immediately after giving effect to such
distribution or transfer, the proposed distributee or transferee,
together with its affiliates, would be an affiliate of the Corporation
within the meaning of Rule 144 of the Securities Act. In connection
with any distribution or transfer pursuant to this clause (a)(ii), CS
Private Equity shall deliver a certificate of an officer of CS Private
Equity certifying that, immediately after giving effect to such
transfer, the conditions of clause (a)(ii)(A) and (B) are satisfied.
(iii) Transfer of Trust Shares to Other Affiliates and Third
Parties Not Affiliated with CS Private Equity. An "ELIGIBLE TRANSFER"
for purposes of this clause (a)(iii) means any distribution or transfer
of Trust Shares to any Other Affiliate or any third party not
affiliated with CS Private Equity (including by way of a distribution
by a Holder to its limited partners); provided that (A) a contract or
other arrangement (other than this Agreement) regarding the voting of
such Trust Shares does not exist between any CS Affiliate and such
transferee and (B) any proposed distribution or transfer will not be an
Eligible Transfer if, immediately after giving effect to such
distribution or transfer, the proposed distributee or transferee,
together with its affiliates, would be an affiliate of the Corporation
within the meaning of Rule 144 of the Securities Act. In connection
with any distribution or transfer pursuant to this clause (a)(iii), (x)
in the case of a distribution or transfer to an Other Affiliate, CS
Private Equity shall deliver a certificate of an officer of CS Private
Equity certifying that, immediately after giving effect to such
distribution or transfer, the conditions of clause (a)(iii)(A) and (B)
are satisfied and (y) in the case of a distribution or transfer to a
third party not affiliated with CS Private Equity, CS Private Equity or
such distributee or transferee shall deliver an opinion of independent
nationally recognized counsel who are experts in matters involving the
federal securities law, that, immediately after giving effect to such
transfer, such distributee or transferee, together with its affiliates,
should not be an affiliate of the Corporation within the meaning of
Rule 144 of the Securities Act; provided, however, that in the case of
any distribution of Trust Shares under this clause (a)(iii) by any
Holder that is a limited partnership (a "LIMITED PARTNERSHIP") to its
limited partners so long as (I) the Limited Partnership has more than
150 limited partners (or, if such Limited Partnership has less than 150
limited partners, such distribution of Trust Shares is made
simultaneously with the distribution of Trust Shares by a Holder that
is a Limited Partnership that has more than 150 limited partners), (II)
the distribution to each limited partner is in proportion to such
limited partners' interests in the Limited Partnership, (III) each
limited partner, together with its affiliates, will receive Trust
Shares representing less than 0.5% of the total voting power of the
Voting Stock of the Corporation then outstanding, (IV) the Limited
Partnership is distributing all Trust Shares owned by such Limited
Partnership and (V) the Limited Partnership will be fully divested of
dispositive and voting power over such Trust Shares being distributed
after such distribution, CS Private Equity shall deliver a certificate
of an officer of CS Private Equity certifying that each of the
conditions of this proviso to clause (a)(iii) are satisfied and that,
immediately after
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giving effect to such distribution, CS Private Equity has no reason to
believe that any such limited partner, together with its affiliates,
should be an affiliate of the Corporation within the meaning of Rule
144 of the Securities Act.
(iv) Notwithstanding the foregoing, if a tender offer to
purchase all the outstanding shares of Common Stock has been made in
accordance Section 14(d) and Regulation 14D of the Exchange Act, then a
Holder may notify the Trustee in writing that the Holder desires to
cause a certificate or certificates for Trust Shares in which the
Holder has a beneficial interest hereunder to be tendered in such
tender offer pursuant to the procedures set forth in the applicable
Schedule TO (or any successor form). The Trustee shall tender Trust
Shares in accordance with such Holder's written instructions; provided
that after such Trust Shares have been tendered and prior to
consummation of the tender offer, such Trust Shares shall remain
subject to this Agreement. If the tender offer is not consummated, such
tendered Trust Shares shall be delivered to the Trustee and shall be
subject to this Agreement.
(b) The notice delivered pursuant to Section 10(a) shall name such
Eligible Transferee and shall state
(i) its mailing address;
(ii) the proposed transfer date (which date shall be not less
than five days after the Trustee's receipt of such notice);
(iii) the number and type of Shares to be transferred; and
(iv) the consideration, if any, to be paid by such Eligible
Transferee therefor.
The notice to the Trustee shall also contain a representation that such
distributee or transferee is an Eligible Transferee and shall be accompanied by
a Trust Certificate or Certificates of the Holder, duly endorsed for transfer,
representing not less than the number of Shares of the type to be transferred to
the Eligible Transferee. On the date specified in such notice, and upon receipt
by the Trustee from such Eligible Transferee of the specified consideration, if
any, the Trustee shall deliver: (i) to the Eligible Transferee, a certificate
(or the equivalent evidence of ownership in the case of Share Equivalents) for
the number of Shares of the type specified in such notice, registered in the
name of the Trustee and duly endorsed for transfer, and (ii) to the Holder, (A)
a Trust Certificate representing a number of Shares, if any, equal to the number
of Shares of the type represented by the surrendered Trust Certificate less the
number of Shares of the type transferred to such Eligible Transferee, and (B)
the consideration, if any, received from such Eligible Transferee. Such
consideration shall be distributed promptly to such Holder pursuant to the
transfer instructions set forth on Schedule B attached hereto.
12
(c) A Holder may at any time direct the Trustee by notice in writing to
transfer a certificate or certificates (or the equivalent evidence of ownership
in the case of Share Equivalents) for Shares in which the Holder has a
beneficial interest hereunder (i) to an underwriter (including CS Private
Equity) in connection with a public offering of the Shares registered under the
Securities Act or (ii) in connection with sales made pursuant to Rule 144 (other
than subsection (k) thereof) under the Securities Act through a broker-dealer
(including CS Private Equity). Such notice shall state (A) the underwriter's or
broker dealer's mailing address, (B) the proposed transfer date (which date
shall not be less than three days after the Trustee's receipt of such notice),
(C) the number and type of Shares to be transferred, and (D) the consideration,
if any, to be paid. The notice shall also be accompanied by a certificate of an
officer of the Holder certifying that such request is being made solely for
sales made in connection with a public offering of the Shares registered under
the Securities Act or sales made pursuant to Rule 144 (other than subsection (k)
thereof) under the Securities Act and a Trust Certificate or Certificates of the
Holder, duly endorsed for transfer, representing not less than the number of
Shares of the type to be transferred. The Trustee shall be entitled to
conclusively rely upon such certificate. On the date specified in such notice,
and upon receipt by the Trustee from such underwriter or such other transferee
of the specified consideration, if any, the Trustee shall deliver: (x) to the
underwriter or such other transferee, a certificate (or the equivalent evidence
of ownership in the case of Share Equivalents) for the number of Shares of the
type specified in such notice, registered in the name of the Trustee and duly
endorsed for transfer, and (y) to the Holder, a Trust Certificate representing a
number of Shares, if any, equal to the number of Shares represented by the
surrendered Trust Certificate less the number of Shares transferred to such
underwriter or such other transferee, and (z) to the Holder, the consideration,
if any, received from such underwriter or such other transferee. Such
consideration shall be distributed promptly to the Holder pursuant to the
transfer instructions set forth on Schedule B attached hereto.
Notwithstanding the foregoing, if the Holder intends to transfer Shares
pursuant to the exercise of the over-allotment option granted to the
underwriters in connection with a public offering of Shares, the transfer date
in the notice may be less than five but shall not be less than two days after
the Trustee's receipt of such notice; provided that if the transfer date in the
notice is less than five days after the Trustee's receipt of the notice, the
Trustee shall only be obligated to use its reasonable best efforts to effect the
transfer of such Shares by such transfer date.
Nothing in this Section 10 or elsewhere in this Agreement shall
prohibit a Holder from transferring Trust Certificates in accordance with the
terms of the Trust Certificates.
SECTION 11. Requests for Shares. A Holder (hereinafter referred to as a
"REQUESTING PARTY" for the purpose of this Section 11) may request of the
Trustee in writing that the Trustee transfer to such Requesting Party a
certificate or certificates (or the equivalent evidence of ownership in the case
of Share Equivalents) for Shares in which the Requesting Party has a beneficial
interest hereunder, which Shares shall not be subject to this Agreement;
provided, however, that (a) the Trustee shall not honor such request if
immediately after giving effect thereto CS Affiliates will own in the aggregate
13
Excluded Capital Stock amounting to 5% or more of the total voting power of the
Voting Stock of the Corporation then outstanding; (b) the Trustee shall not
honor such request if immediately after giving effect thereto, the Requesting
Party, together with its affiliates, will be an affiliate of the Corporation
within the meaning of Rule 144 of the Securities Act; and (c) if the Requesting
Party is not CS Private Equity, the Trustee shall not honor such request unless
CS Private Equity consents in writing to such request. Such written request
shall name such Requesting Party and shall state (i) the proposed transfer date
(which date shall be not less than five days after the Trustee's receipt of such
request) and (ii) the number and type of Shares to be transferred. The notice to
the Trustee shall also be accompanied by (A) a Trust Certificate or Certificates
of the Requesting Party, duly endorsed for transfer, representing not less than
the number of Shares of the type to be transferred to the Requesting Party, (B)
a certificate of an officer of CS Private Equity certifying that immediately
after giving effect to such request all CS Affiliates will own in the aggregate
Excluded Capital Stock amounting to less than 5% of the total voting power of
the Voting Stock of the Corporation then outstanding and (C) if the Requesting
Party is not a CS Affiliate, an opinion of independent nationally recognized
counsel who are experts in matters involving the federal securities law, that,
immediately after giving effect to such request, such Requesting Party, together
with its affiliates, should not be an affiliate of the Corporation within the
meaning of Rule 144 of the Securities Act. The Trustee shall be entitled to
conclusively rely upon such certificate or legal opinion. On the date specified
in such request, and upon receipt by the Trustee from the Requesting Party of
such certificates and legal opinions, as applicable, the Trustee shall deliver
to the Requesting Party a certificate (or the equivalent evidence of ownership
in the case of Share Equivalents) for the number of Shares of the type specified
in such notice, registered in the name of the Trustee and duly endorsed for
transfer.
SECTION 12. Exercise, Conversion, Exchange or Cancellation of Shares.
The Trustee shall, upon written instruction of a Holder, submit to the
Corporation for exercise, conversion, exchange or cancellation any Share in
which such Holder has a beneficial interest hereunder. Such notice shall state
(a) whether such Shares are to be exercised, converted, exchanged or cancelled,
(b) the date on which such Shares are to be submitted to the Corporation (which
date shall not be less than five days after the Trustee's receipt of such
notice), (c) the number and type of Shares to be submitted to the Corporation
and (d) the consideration, if any, to be received upon such exercise,
conversion, exchange or cancellation from the Corporation. The notice shall be
accompanied by (i) a Trust Certificate or Certificates of the Holder, duly
endorsed for transfer, representing not less than the number of Shares of the
type to be submitted to the Corporation and (ii) any exercise price or other
payment and any agreement, certificate or other documentation required in
connection with such exercise, conversion, exchange or cancellation. On the date
specified in such notice, and against receipt from the Corporation of the
specified consideration, if any, the Trustee shall deliver by first class mail:
(A) to the Corporation, (x) a certificate or certificates for the number of
Shares of the type specified in such notice, registered in the name of the
Trustee and duly endorsed for transfer and (y) any exercise price or other
payment and any agreement, certificate or other documentation delivered to the
Trustee by such Holder with such notice and (B) to
14
the Holder, (x) a Trust Certificate representing a number of Shares equal to the
number of Shares represented by the surrendered Trust Certificate or
Certificates less the number of Shares submitted to the Corporation and (y) the
consideration, if any, received by the Trustee pursuant to such exercise,
conversion, exchange or cancellation; provided that if such consideration
includes Shares, such Shares shall be retained and held by the Trustee pursuant
to this Agreement and new Trust Certificates representing such Shares shall be
issued to such Holder.
SECTION 13. Increase or Decrease in Number of Shares. In the event of
an increase in the number of Shares by virtue of a stock split or the decrease
in the number of Shares because of a contraction of Shares or a change in the
number of outstanding Shares as a result of some other recapitalization in which
the Corporation receives no consideration for the issuance of the additional or
reduced number of Shares, the new additional or changed number of Shares shall
be held by the Trustee and new Trust Certificates representing the appropriate
changed number of Shares shall be issued to Holders upon surrender of the then
existing Trust Certificates.
SECTION 14. Successor Trustee. There shall initially be one Trustee of
the voting trust created herein. Upon the liquidation, dissolution, winding-up,
suspension, incapacity, resignation or removal (in accordance with Section 15
below) of the initial Trustee, CS Private Equity or the Holders of Trust
Certificates representing fifty percent (50%) or more of the Trust Shares shall
appoint a successor Trustee; provided, however, that such successor Trustee may
not be a CS Affiliate. In the event a successor Trustee shall not have been
appointed within 30 days of such removal, the Trustee may petition a court of
competent jurisdiction to appoint such a successor. In the event that the
Trustee consolidates with, merges with or converts into, or transfers all or
substantially all of its corporate trust assets to, another corporation that is
a bank or trust company, the surviving or transferee corporation (unless it is a
CS Affiliate) may become the successor Trustee upon notice to the signatories
hereto but without further action by the signatories or any Holder.
SECTION 15. Removal / Resignation of Trustee.
(a) A Trustee may be removed by CS Private Equity, CS Securities or the
Holders of Trust Certificates representing fifty percent (50%) or more of the
Trust Shares:
(i) if it is determined by a court of competent jurisdiction
that either (A) the Trustee has willfully and materially violated the
terms of the trust created herein, or (B) the Trustee has been guilty
of malfeasance, misfeasance or dereliction of duty hereunder;
(ii) if the Trustee shall have commenced a voluntary case or
other proceeding seeking liquidation, reorganization or other relief
with respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect, or seeking the
appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, or
15
shall have consented to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other
proceeding commenced against it, or shall have made a general
assignment for the benefit of creditors, or shall have failed generally
to pay its debts as they become due, or shall have taken any corporate
action to authorize any of the foregoing; or
(iii) if an involuntary case or other proceeding shall have
been commenced against the Trustee seeking liquidation, reorganization
or other relief with respect to it or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect, or seeking
the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, and
such involuntary case or other proceeding shall have remained
undismissed and unstayed for a period of 60 days; or an order for
relief shall have been entered against the Trustee under the federal
bankruptcy laws as now or hereafter in effect.
(b) If CS Private Equity, CS Securities or the Holders of Trust
Certificates representing fifty percent (50%) or more of the Trust Shares then
deposited hereunder determine that a basis exists for removal of the Trustee
under Section 15(a) above, they shall deliver written notice of such
determination to the Trustee stating the basis for such removal.
(c) The Trustee may resign its position as such (i) upon ten days'
written notice to CS Private Equity and CS Securities, but only if a successor
Trustee, appointed as provided for in Section 14 above, has agreed to serve as
such effective upon the effectiveness of the resignation of the Trustee then
acting, or (ii) in any event upon thirty days' written notice to CS Private
Equity and CS Securities.
SECTION 16. Trustee May Own Shares. Nothing in this Agreement shall
prevent the Trustee from owning Shares or options to purchase Shares in its
individual capacity or in any capacity other than as Trustee hereunder or for
any CS Affiliate.
SECTION 17. Trustee Not an Affiliate. The Trustee represents that it is
a bank or trust company that is not a CS Affiliate.
SECTION 18. Compensation; Expenses. Reasonable expenses lawfully
incurred in the administration of the Trustee's duties hereunder shall be
reimbursed to it by CS Securities on behalf of the Holders. During the period of
its services hereunder, the Trustee shall receive a fee from CS Securities as
follows: (i) an initial fee of $4,500, and (ii) thereafter, during the period of
its services hereunder, a fee of $3,000 per annum payable quarterly in arrears.
The provisions of this Section 18 shall survive the termination of this
Agreement.
SECTION 19. Merger, Etc. Upon any merger, consolidation, reorganization
or dissolution of the Corporation or the sale of all or substantially all of the
assets of the Corporation pursuant to which shares of capital stock or other
voting securities of another
16
corporation are to be issued in payment or exchange for or upon conversion of
Shares and other voting securities, the shares of said other corporation shall
automatically be and become subject to the terms of this Agreement and be held
by the Trustee hereunder in the same manner and upon the same terms as the Trust
Shares, and in such event the Trustee shall issue to the Holders that have
deposited Shares with the Trustee new Trust Certificates in lieu of the old
Trust Certificates for the appropriate number of shares and other voting
securities of such other corporation.
At the request of any Holder, the Trustee may transfer, sell or
exchange or join with the Holder in such transfer, sale or exchange of Shares
and other voting securities in exchange for shares of another corporation, and
in said event the shares and other voting securities of the other corporation
received by the transferor shall be and become subject to this Agreement and be
held by the Trustee hereunder in the same manner as the Trust Shares.
SECTION 20. Notices. All notices, reports, statements and other
communications directed to the Trustee from the Corporation, other than
communications pertaining solely to the voting of the Trust Shares, shall be
forwarded promptly by the Trustee to CS Private Equity, CS Securities and each
Holder. All notices, notices of election and other communications required
herein shall be given in writing by overnight courier, telegram or facsimile
transmission and shall be addressed, or sent, to the appropriate addresses as
set forth beneath the signature of each party hereto (and if to the Corporation,
to 2 Crescent Place, Oceanport, NJ 07757-0900), or at such other address as to
which notice is given in accordance with this Section 20.
SECTION 21. Indemnity, Etc. The Trustee shall be indemnified by CS
Securities from and against any and all loss, liability, claim, damage and
expense whatsoever (including, but not limited to, any and all expense
whatsoever reasonably incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claims whatsoever) (the
"INDEMNIFIED CLAIMS") arising out of or based upon this Agreement or the actions
or failures to act of the Trustee hereunder or thereunder, except to the extent
such loss, liability, claim, damage or expense is caused by or results from the
Trustee's negligence or willful misconduct (as determined by a final and
unappealable order of a court of competent jurisdiction). CS Securities agrees
on behalf of the Holders that it will indemnify and hold harmless the Trustee
from and against any Indemnified Claims. CS Securities' obligation hereunder
shall survive the transfer of all or any portions of its respective shares and
interests, the termination of the voting trust created herein, or the
resignation or removal of the Trustee.
The Trustee shall be entitled to the prompt reimbursement for its
out-of-pocket expenses (including reasonable attorneys' fees and expenses)
incurred in investigating, preparing or defending against any litigation,
commenced or threatened, arising out of or based upon this Agreement, or the
actions or failures to act of the Trustee hereunder or thereunder, without
regard to the outcome of such litigation; provided, however, that the Trustee
shall be obligated to return any such reimbursement if it is subsequently
determined by a final and unappealable order of a court of competent
jurisdiction that the
17
Trustee was negligent or engaged in willful misconduct in the matter in
question.
If a claim under this Section 21 is not paid in full within 30 days
after a written claim has been submitted by the Trustee, the Trustee may at any
time thereafter bring suit to recover the unpaid amount of the claim and, if
successful in whole or in part, the Trustee shall be entitled to be paid also
the expense of prosecuting such claims.
The Trustee is authorized and empowered to construe this Agreement and
its construction of the same, made in good faith, shall be final, conclusive,
and binding upon all Holders and all other parties interested. The Trustee may,
in its discretion, consult with counsel to be selected and employed by it, and
the reasonable fees and expenses of such counsel shall be an expense for which
the Trustee is entitled to indemnity hereunder.
The Trustee hereby accepts the trust created hereby and agrees to carry
out the terms and provisions hereof, but assumes no responsibility for the
management of the Corporation or for any action taken by it, by any person
elected as a director of the Corporation or by the Corporation pursuant to any
vote cast or consent given by the Trustee. The Trustee, whether or not acting
upon the advice of counsel, shall incur no liability because of any error of law
or fact, mistake of judgment or any matter or thing done or omitted under this
Agreement, except its own negligence or willful misconduct. Anything done or
suffered in good faith by the Trustee in accordance with the advice of counsel
chosen as indicated above shall be conclusive in favor of the Trustee against
the Holders and any other interested party.
The Trustee shall not be liable in any event for acts or defaults of
any other trustee or trustees (under this or any other voting trust of the
Corporation's securities) or for acts or defaults of any employee, agent, proxy
or attorney-in-fact of any other trustee or trustees. The Trustee shall be
protected and free from liability in acting upon any notice, request, consent,
certificate, declaration, guarantee, affidavit or other paper or document or
signature reasonably believed by it to be genuine and to have been signed by the
proper party or parties or by the party or parties purporting to have signed the
same.
No provision of this Agreement shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
SECTION 22. Certain Calculations.
(a) For all purposes of this Agreement, in determining whether CS
Affiliates will own in the aggregate Capital Stock of the Corporation amounting
to 5% or more of the total voting power of the Voting Stock of the Corporation
then outstanding, (i) shares of Voting Stock underlying Share Equivalents owned
by a CS Affiliate shall be deemed to be outstanding and owned by such CS
Affiliate and (ii) Shares held pursuant to this Agreement shall be excluded.
18
(b) For purposes of Sections 10, 11, 14, 15, 18 and 21, a Holder owning
a Trust Certificate representing Share Equivalents shall, in respect of such
ownership, be deemed to be the Holder of a Trust Certificate representing the
number of shares of Common Stock that the Trustee, acting on behalf of such
Holder, may acquire, whether by exercise, conversion, subscription or otherwise,
pursuant to or by reason of ownership of such Shares.
SECTION 23. Further Assurances. Each of the parties to this Agreement
will execute any and all further documents, agreements and instruments, and take
all such further actions (including the filing and recording of any other
documents), which may be required under any applicable law, or which the Trustee
may reasonably request, to give effect to the Initial Deposit, any deposit of
Shares after the Initial Deposit, the registration of such Trust Shares as
transferred to the trust created herein, the termination of the trust created
herein pursuant to Section 9 of this Agreement and any transfer of Trust Shares
or Shares pursuant to Section 10 or 11 of this Agreement.
SECTION 24. Counterparts. This Agreement may be executed in multiple
counterparts all of which counterparts together shall constitute one agreement.
Upon execution of this Agreement and the establishment of the voting trust
created herein, the Trustee shall cause a copy of this Agreement to be filed in
the registered office of the Corporation in the State of Delaware and the
Agreement shall be open to inspection in the manner provided for inspection
under the laws of the State of Delaware.
SECTION 25. Choice of Law. This Agreement is intended by the parties to
be a voting trust agreement under Section 218 of the General Corporation Law of
the State of Delaware and shall be governed and construed in accordance with the
laws of the State of Delaware except that the Trustee's rights and obligations
shall be governed and construed in accordance with the laws of the State of New
York.
SECTION 26. Bond. The Trustee shall not be required to provide any bond
to secure the performance of its duties hereunder.
SECTION 27. Reliance. CS Private Equity and each Holder acknowledges
that CS Private Equity and CS Securities will rely on this Agreement in
complying with the federal securities laws. The Trustee acknowledges that CS
Private Equity and CS Securities will rely on the Trustee abiding by the terms
of this Agreement, including, without limitation, that (x) the Trustee will
exercise independent judgment in voting the shares and will not consult with any
CS Affiliate regarding the voting of such shares and (y) the Trustee will not
consent to any amendment or waiver of this Agreement prohibited by Section 28
hereof whether or not such amendment or waiver is approved by each of the
parties hereto and all of the Holders.
SECTION 28. Amendments and Waivers. This Agreement may not be amended
or waived in any material respect unless CS Securities shall have delivered to
the Trustee an opinion of independent nationally recognized counsel who are
experts in matters involving the federal securities law, that, immediately after
such amendment or waiver,
19
CS Securities, together with its affiliates, should not be an "affiliate" of the
Corporation within the meaning of Rule 144 under the Securities Act. Subject to
the foregoing, this Agreement may be amended with the written consent of the
Trustee, the Corporation, CS Private Equity, CS Securities and the Holders of
Trust Certificates representing the beneficial interest in fifty percent (50%)
or more of the Shares then deposited hereunder, and if so amended then this
Agreement (as so amended) shall bind all of the parties hereto and all of the
Holders.
SECTION 29. Benefits and Assignment. Nothing in this Agreement,
expressed or implied, shall give or be construed to give any person, other than
the Corporation and the parties hereto and their successors and assigns, any
legal claim under any covenant, condition or provision hereof, all the
covenants, conditions and provisions contained in this Agreement being for the
sole benefit of the Corporation and the parties hereto and their successors and
assigns. No party may assign any of its rights or obligations under this
Agreement without the written consent of all the other parties (except as
provided in Section 14), which consent may be withheld in the sole discretion of
the party whose consent is sought.
SECTION 30. Severability. In case any provision in this Agreement shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
20
EXECUTED as of the date and year first above written.
WELLS FARGO BANK, N.A., as Trustee,
By:_______________________________________
Name:
Title:
Address: 6th St. & Marquette Ave.
MAC N9303-110
Minneapolis, MN 55479
Attention:
Telephone:
Facsimile:
21
CREDIT SUISSE FIRST BOSTON
PRIVATE EQUITY, INC.,
By: ______________________
Name:
Title:
Address: 11 Madison Avenue
New York, NY 10010
Attention:
Telephone: (212) 325-2000
Facsimile:
22
CREDIT SUISSE SECURITIES (USA) LLC,
By: ______________________
Name:
Title:
Address: 11 Madison Avenue
New York, NY 10010
Attention:
Telephone: (212) 325-2000
Facsimile:
23
SPROUT CEO FUND, L.P.,
By: DLJ Capital Corporation
Its: General Partner
By:________________________________
Name:
Title:
Address: c/o Sprout Group
11 Madison Avenue
13th Floor
New York, NY 10010
Attention:
Telephone: (212) 325-2000
Facsimile:
DLJ CAPITAL CORPORATION,
By:________________________________
Name:
Title:
Address: c/o Sprout Group
11 Madison Avenue
13th Floor
New York, NY 10010
Attention:
Telephone: (212) 325-2000
Facsimile:
24
SPROUT GROWTH II, L.P.,
By: DLJ Capital Corporation
Its: Managing General Partner
By: ______________________
Name:
Title:
Address: c/o Sprout Group
11 Madison Avenue
13th Floor
New York, NY 10010
Attention:
Telephone: (212) 325-2000
Facsimile:
SPROUT CAPITAL VII, L.P.,
By: DLJ Capital Corporation
Its: Managing General Partner
By: ______________________
Name:
Title:
Address: c/o Sprout Group
11 Madison Avenue
13th Floor
New York, NY 10010
Attention:
Telephone: (212) 325-2000
Facsimile:
25
SPROUT CAPITAL IX, L.P.,
By: DLJ Capital Corporation
Its: Managing General Partner
By: ______________________
Name:
Title:
Address: c/o Sprout Group
11 Madison Avenue
13th Floor
New York, NY 10010
Attention:
Telephone: (212) 325-2000
Facsimile:
SPROUT ENTREPRENEURS' FUND, L.P.,
By: DLJ Capital Corporation
Its: General Partner
By: ______________________
Name:
Title:
Address: c/o Sprout Group
11 Madison Avenue
13th Floor
New York, NY 10010
Attention:
Telephone: (212) 325-2000
Facsimile:
26
SPROUT IX PLAN INVESTORS, L.P.,
By: DLJ LBO Plans Management Corp. II
Its: General Partner
By: ______________________
Name:
Title:
Address: c/o Sprout Group
11 Madison Avenue
13th Floor
New York, NY 10010
Attention:
Telephone: (212) 325-2000
Facsimile:
27
DLJ MERCHANT BANKING PARTNERS, L.P.,
By: DLJ Merchant Banking Partners, Inc.
Its: General Partner
By: ______________________
Name:
Title:
Address: 11 Madison Avenue
New York, NY 10010
Attention:
Telephone: (212) 325-2000
Facsimile:
DLJ INTERNATIONAL PARTNERS, C.V.,
By: DLJ Merchant Banking Partners, Inc.
Its: General Partner
By: ______________________
Name:
Title:
Address: 11 Madison Avenue
New York, NY 10010
Attention:
Telephone: (212) 325-2000
Facsimile:
28
DLJ OFFSHORE PARTNERS, C.V.,
By: DLJ Merchant Banking Partners, Inc.
Its: General Partner
By: ______________________
Name:
Title:
Address: 11 Madison Avenue
New York, NY 10010
Attention:
Telephone: (212) 325-2000
Facsimile:
DLJMB FUNDING, INC.,
By: ______________________
Name:
Title:
Address: 11 Madison Avenue
New York, NY 10010
Attention:
Telephone: (212) 325-2000
Facsimile:
DLJ FIRST ESC, L.P.,
By: DLJ LBO Plans Management
Its: General Partner
By: ______________________
Name:
Title:
Address: 11 Madison Avenue
New York, NY 10010
Attention:
Telephone: (212) 325-2000
Facsimile:
29
DLJ ESC II, L.P.,
By: DLJ LBO Plans Management
Its: General Partner
By: ______________________
Name:
Title:
Address: 11 Madison Avenue
New York, NY 10010
Attention:
Telephone: (212) 325-2000
Facsimile:
30
SCHEDULE A
Initial Deposit
COMMON STOCK
------------
Sprout CEO Fund, L.P. 23,281
DLJ Capital Corporation 337,123
Sprout Growth II, L.P. 1,640,940
Sprout Capital VII, L.P. 2,007,123
Sprout Capital IX, L.P. 1,373,746
Sprout Entrepreneurs' Fund, L.P. 5,414
Sprout IX Plan Investors, L.P. 63,440
DLJ Merchant Banking Partners, L.P. 4,195,158
DLJ International Partners, C.V. 2,054,114
DLJ Offshore Partners, C.V. 109,692
DLJMB Funding, Inc. 1,648,872
DLJ First ESC, L.P. 1,107,132
DLJ ESC II, L.P. 11,824
A-1
SCHEDULE B
TRANSFER INSTRUCTIONS
SPROUT CEO FUND, L.P.
All payments shall be made by check mailed to:
Sprout Group
11 Madison Avenue
13th Floor
New York, NY 10010
Attention: Amy M. Yeung
DLJ CAPITAL CORPORATION
All payments shall be made by check mailed to:
Sprout Group
11 Madison Avenue
13th Floor
New York, NY 10010
Attention: Amy M. Yeung
SPROUT GROWTH II, L.P.
All payments shall be made by check mailed to:
Sprout Group
11 Madison Avenue
13th Floor
New York, NY 10010
Attention: Amy M. Yeung
SPROUT CAPITAL VII, L.P.
All payments shall be made by check mailed to:
Sprout Group
11 Madison Avenue
13th Floor
New York, NY 10010
Attention: Amy M. Yeung
B-1
SPROUT CAPITAL IX, L.P.
All payments shall be made by check mailed to:
Sprout Group
11 Madison Avenue
13th Floor
New York, NY 10010
Attention: Amy M. Yeung
SPROUT ENTREPRENEURS' FUND, L.P.
All payments shall be made by check mailed to:
Sprout Group
11 Madison Avenue
13th Floor
New York, NY 10010
Attention: Amy M. Yeung
SPROUT IX PLAN INVESTORS, L.P.
All payments shall be made by check mailed to:
Sprout Group
11 Madison Avenue
13th Floor
New York, NY 10010
Attention: Amy M. Yeung
DLJ MERCHANT BANKING PARTNERS, L.P.
All payments shall be made by check mailed to:
DLJ Merchant Banking Partners, L.P.
11 Madison Avenue
13th Floor
New York, NY 10010
Attention: Kenneth Lohsen
DLJ INTERNATIONAL PARTNERS, C.V.
All payments shall be made by check mailed to:
DLJ International Partners, C.V.
11 Madison Avenue
13th Floor
New York, NY 10010
Attention: Kenneth Lohsen
B-2
DLJ OFFSHORE PARTNERS, C.V.
All payments shall be made by check mailed to:
DLJ Offshore Partners, C.V.
11 Madison Avenue
13th Floor
New York, NY 10010
Attention: Kenneth Lohsen
DLJMB FUNDING, INC.
All payments shall be made by check mailed to:
DLJMB Funding, Inc.
11 Madison Avenue
13th Floor
New York, NY 10010
Attention: Kenneth Lohsen
DLJ FIRST ESC, L.P.
All payments shall be made by check mailed to:
DLJ First ESC, L.P.
11 Madison Avenue
13th Floor
New York, NY 10010
Attention: Kenneth Lohsen
DLJ ESC II, L.P.
All payments shall be made by check mailed to:
DLJ ESC II., L.P.
11 Madison Avenue
13th Floor
New York, NY 10010
Attention: Kenneth Lohsen
B-3