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SECURITYHOLDERS AGREEMENT
AMONG
GARTNER GROUP, INC.,
SILVER LAKE PARTNERS, L.P.
AND
THE SECURITYHOLDERS SIGNATORY HERETO
DATED AS OF APRIL 17, 2000
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TABLE OF CONTENTS
PAGE
RECITALS.......................................................................1
ARTICLE I DEFINITIONS..................................................1
SECTION 1.1 Certain Defined Terms........................................1
SECTION 1.2 Other Definitional Provisions................................6
ARTICLE II CORPORATE GOVERNANCE.........................................7
SECTION 2.1 Board Representation.........................................7
SECTION 2.2 Committees...................................................7
SECTION 2.3 Consent Rights...............................................7
SECTION 2.4 Available Financial Information..............................9
SECTION 2.5 Board Expenses..............................................10
SECTION 2.6 Termination of Director Designees and Related Rights........10
ARTICLE III TRANSFERS...................................................10
SECTION 3.1 Investor Securityholder Transferees.........................10
SECTION 3.2 Transfer Restrictions.......................................10
SECTION 3.3 Legends.....................................................11
ARTICLE IV REGISTRATION RIGHTS........................................12
SECTION 4.1 Incidental Registrations....................................12
SECTION 4.2 Registration on Request.....................................13
SECTION 4.3 Registration Procedures.....................................15
SECTION 4.4 Information Supplied.......................................19
SECTION 4.5 Restrictions on Disposition................................19
SECTION 4.6 Indemnification............................................19
SECTION 4.7 Required Reports...........................................22
SECTION 4.8 Selection of Counsel.......................................22
SECTION 4.9 Holdback Agreement.........................................22
SECTION 4.10 No Inconsistent Agreements.................................22
ARTICLE V EQUITY PURCHASE RIGHTS......................................22
SECTION 5.1 Subsidiary Purchase Rights..................................22
SECTION 5.2 Acquisition of Additional Shares of Common Stock............23
ARTICLE VI CERTAIN COVENANTS...........................................24
SECTION 6.1 HSR Approval................................................24
SECTION 6.2 Convertible Preferred Stock.................................25
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SECTION 6.3 Common Stock Repurchases....................................25
ARTICLE VII MISCELLANEOUS...............................................25
SECTION 7.1 Silver Lake Indemnification.................................25
SECTION 7.2 Termination.................................................26
SECTION 7.3 Amendments and Waivers......................................26
SECTION 7.4 Successors, Assigns and Transferees.........................26
SECTION 7.5 Notices.....................................................26
SECTION 7.6 Further Assurances..........................................26
SECTION 7.7 Entire Agreement............................................27
SECTION 7.8 Delays or Omissions.........................................27
SECTION 7.9 Governing Law; Jurisdiction; Waiver of Jury Trial...........27
SECTION 7.10 Severability................................................27
SECTION 7.11 Effective Date..............................................27
SECTION 7.12 Enforcement.................................................27
SECTION 7.13 Titles and Subtitles........................................28
SECTION 7.14 No Recourse.................................................28
SECTION 7.15 Counterparts; Facsimile Signatures..........................28
ii
GARTNER GROUP, INC.
SECURITYHOLDERS AGREEMENT
THIS SECURITYHOLDERS AGREEMENT (this "AGREEMENT") is entered as of
April 17, --------- 2000, among GARTNER GROUP, INC., a Delaware corporation (the
"COMPANY"), Silver Lake ------- Partners, L.P., a Delaware limited partnership,
Silver Lake Investors, L.P., a Delaware limited partnership, and Silver Lake
Technology Investors, L.L.C., a Delaware limited liability company (together
with successor entities, "SILVER LAKE"), and Integral Capital -----------
Partners IV, L.P., a Delaware limited partnership, and Integral Capital Partners
IV MS Side Fund, L.P., a Delaware limited partnership.
RECITALS
WHEREAS, the Company, Silver Lake and certain other Investor
Securityholders (as defined below) have entered into a Securities Purchase
Agreement, dated as of March 21, 2000, as amended, supplemented or otherwise
modified from time to time (the "SECURITIES PURCHASE AGREEMENT"), pursuant to
which Silver Lake and other Investor Securityholders will purchase $300.0
million aggregate principal amount of 6% convertible subordinated notes due 2005
of the Company (the "NOTES") and the Options (as defined below), for an
aggregate purchase price of $300.0 million; and
WHEREAS, the parties hereto desire to enter into certain arrangements
relating to the Company, the Notes, the Class A Common Stock and the Convertible
Preferred Stock, to be effective as of the Closing (each as defined below).
NOW, THEREFORE, in consideration of the foregoing recitals and of the
mutual promises hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION I.1 CERTAIN DEFINED TERMS. As used herein, the following terms
shall have the following meanings:
"AFFILIATE" means, with respect to any Person, any other Person that
directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with, such specified Person, for so
long as such Person remains so associated to the specified Person; provided that
beneficial ownership of 10% or more of voting interests of a Person shall be
deemed "control".
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"AS CONVERTED" means, with respect to any Equity Securities owned by
any Investor Securityholder and its Affiliates that are convertible into, or
exchangeable or exercisable for Class A Common Stock, such Equity Securities on
an as converted, exchanged or exercised basis.
"BENEFICIAL OWNER" or "BENEFICIALLY OWN" has the meaning given such
term in Rule 13d-3 under the Exchange Act and a Person's beneficial ownership of
Common Stock or Preferred Stock or other Voting Securities of the Company shall
be calculated in accordance with the provisions of such Rule; PROVIDED, HOWEVER,
that for purposes of determining beneficial ownership, (i) a Person shall be
deemed to be the beneficial owner of any security which may be acquired by such
Person whether within 60 days or thereafter, upon the conversion, exchange or
exercise of any warrants, options, rights or other securities and (ii) no Person
shall be deemed to beneficially own any security solely as a result of such
Person's execution of this Agreement.
"BOARD" means the Board of Directors of the Company.
"BUSINESS DAY" means any day that is not a Saturday, a Sunday or other
day on which banks are required or authorized by law to be closed in The City of
New York.
"BYLAWS" means the Bylaws of the Company, as in effect on the date
hereof and as the same may be amended, supplemented or otherwise modified from
time to time in accordance with the terms thereof and the terms of the Restated
Certificate.
"CAPITAL STOCK" means, with respect to any Person at any time, any and
all shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of capital stock, partnership interests (whether
general or limited) or equivalent ownership interests in or issued by such
Person, and with respect to the Company includes, without limitation, any and
all shares of Common Stock and preferred stock.
"CERTIFICATE OF DESIGNATION" means the Certificate of Designation with
respect to the Company's Convertible Preferred Stock.
"CLAIMS" has the meaning assigned to such term in Section 4.6(a).
"CLASS A COMMON STOCK" means the Common Stock, Class A, par value
$0.0005 per share, of the Company and any securities issued in respect thereof,
or in substitution therefor, in connection with any stock split, dividend or
combination, or any reclassification, recapitalization, merger, consolidation,
exchange or other similar reorganization.
"CLASS B COMMON STOCK" means the Common Stock, Class B, par value
$0.0005 per share, of the Company and any securities issued in respect thereof,
or in substitution therefor, in connection with any stock split, dividend or
combination, or any reclassification, recapitalization, merger, consolidation,
exchange or other similar reorganization.
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"CLOSING" has the meaning assigned to such term in the Securities
Purchase Agreement.
"COMMON STOCK" means, collectively, the Class A Common Stock and the
Class B Common Stock.
"CONTROL" (including the terms "CONTROLLED BY" and "UNDER COMMON
CONTROL with"), with respect to the relationship between or among two or more
Persons, means the possession, directly or indirectly, of the power to direct or
cause the direction of the affairs or management of a Person, whether through
the ownership of voting securities, as trustee or executor, by contract or
otherwise.
"CONVERTIBLE PREFERRED STOCK" means the Company's Series C Junior
Convertible Participating Preferred Stock, into which the Notes maybe
convertible and having the designations set forth in the Certificate of
Designations (as defined in the Letter Agreement).
"CREDIT AGREEMENT" has the meaning assigned to such term in the Notes.
"DEMAND PARTY" has the meaning assigned to such term in Section
4.2(a).
"DIRECTOR" means any member of the Board.
"DIVESTITURE" has the meaning assigned to such term in Section
2.3(vi).
"EQUITY SECURITIES" means any and all shares of Capital Stock of the
Company, securities of the Company convertible into, or exchangeable or
exercisable for, such shares, and options, warrants or other rights to acquire
such shares (including the Notes and the Convertible Preferred Stock).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"EXEMPT ACQUISITION" means any acquisition (whether through merger,
consolidation or otherwise) which has a purchase price (including any assumed
indebtedness and valuing any non-cash consideration at its Fair Market Value) of
less than $75.0 million.
"EXEMPT DIVESTITURE" means any Divestiture pursuant to which the value
of the assets being divested (including any assumed indebtedness and valuing any
non-cash consideration at its Fair Market Value) is less than $75.0 million.
"FAIR MARKET VALUE" has the meaning assigned to such term in Section
4(d)(iv) of the Note.
"FULLY-DILUTED BASIS" with respect to Voting Securities means the
number of shares of Voting Securities which are issued and outstanding or owned
or held, as applicable, at the date
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of determination plus the number of shares of Voting Securities issuable
pursuant to any securities (other than Voting Securities), warrants, rights or
options then outstanding, convertible into or exchangeable or exercisable for
(whether or not subject to contingencies or passage of time, or both), Voting
Securities (including the Convertible Preferred Stock and the Notes).
"GAAP" means generally accepted accounting principles, as in effect in
the United States of America from time to time.
"GROUP" has the meaning assigned to such term in Section 13(d)(3) of
the Exchange Act.
"HOLDER" means Silver Lake and any other holder of Registrable
Securities (including any direct or indirect Transferees of Silver Lake or its
Affiliates) entitled to the rights, and bound by the obligations, under this
Agreement in accordance with Section 3.1(b).
"HSR ACT" means the Hart-Scott Rodino Antitrust Improvements Act of
1976, as amended.
"INCUR" means, directly or indirectly, to incur, refinance, create,
assume, guarantee or otherwise become liable with respect to.
"INDEMNIFIED PARTIES" has the meaning assigned to such term in Section
4.6(a).
"INVESTOR SECURITYHOLDER" means Silver Lake, each other securityholder
that purchased Notes from the Company on the Closing Date and any Transferee of
the foregoing.
"ISSUANCE NOTICE" has the meaning assigned to such term in Section
5.1(b).
"LAW" has the meaning assigned to such term in the Securities Purchase
Agreement.
"LETTER AGREEMENT" shall mean the letter agreement dated the date
hereof with respect to the possible issuance of the Convertible Preferred Stock.
"LOSSES" has the meaning assigned to such term in Section 7.1.
"NASD" means the National Association of Securities Dealers, Inc.
"NOTES" means the Company's 6% convertible subordinated notes due
2005.
"NYSE" means the New York Stock Exchange, Inc.
"OTHER HOLDERS" means Persons other than Holders who, by virtue of
agreements with the Company, are entitled to include their securities in certain
registrations hereunder.
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"OTHER SECURITIES" means securities of the Company, other than
Registrable Securities which, by virtue of agreements between Other Holders and
the Company, are entitled to be included in certain registrations hereunder.
"PERMITTED TRANSFEREE" means, with respect to each Investor
Securityholder (A) such Investor Securityholder's officers, employees or
consultants, (B) any corporation or corporations, partnership or partnerships
(or other entity for collective investment, such as a fund) which is (and
continues to be) an Affiliate of such Investor Securityholder and (C) the
partners of such Investor Securityholder and the general or limited partners of
such partners in the case of a distribution by such Investor Securityholder. In
addition, with respect to Silver Lake, Permitted Transferee shall include one or
more limited partners of Silver Lake who may purchase up to $100 million
aggregate principal amount of Notes, subject to the prior approval of the
Company (which approval may not be unreasonably withheld).
"PERSON" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, governmental
authority or other entity.
"REFINANCING RIGHT" has the meaning assigned to such term in Section
4(j) of the Notes.
"REGISTRABLE SECURITIES" means (i) any shares of Class A Common Stock
issuable upon conversion of (x) the Notes or (y) the Convertible Preferred Stock
and (ii) the shares of Convertible Preferred Stock, in each case held by any
Holder. As to any particular Registrable Securities, once issued, such
Registrable Securities shall cease to be Registrable Securities when (a) a
registration statement with respect to the sale by the Holder of such securities
shall have become effective under the Securities Act and such securities shall
have been disposed of in accordance with such registration statement, (b) such
securities shall have been distributed to the public pursuant to Rule 144 (or
any successor provision) under the Securities Act, or (c) such securities shall
have ceased to be outstanding. For purposes of this Agreement, any required
calculation of the amount of, or percentage of, Registrable Securities shall be
based on the number of shares of Common Stock or Convertible Preferred Stock, as
the case may be, which are Registrable Securities, including shares issuable
upon the conversion, exchange or exercise of any security convertible,
exchangeable or exercisable into Common Stock or Convertible Preferred Stock, as
the case may be.
"REGISTRATION EXPENSES" means any and all expenses incident to
performance of or compliance with Article IV of this Agreement, including (a)
all SEC and securities exchange or NASD registration and filing fees (including,
if applicable, the fees and expenses of any "qualified independent underwriter,"
as such term is defined in Schedule E to the bylaws of the NASD, and of its
counsel), (b) all fees and expenses of complying with securities or blue sky
laws (including fees and disbursements of counsel for the underwriters in
connection with blue sky qualifications of the Registrable Securities), (c) all
printing, messenger and delivery expenses, (d) all fees and expenses incurred in
connection with the listing of the Registrable Securities on any securities
exchange or NASD pursuant to Section 4.3(h)(i) and all rating agency fees, (e)
the fees and disbursements of counsel for the Company and of its independent
public accountants, including
6
the expenses of any special audits and/or "cold comfort" letters required by or
incident to such performance and compliance, (f) the reasonable fees and
disbursements of counsel selected pursuant to Section 4.8, (g) any fees and
disbursements of underwriters customarily paid by the issuers or sellers of
securities, including liability insurance if the Company so desires or if the
underwriters so require, and the reasonable fees and expenses of any special
experts retained in connection with the requested registration, but excluding
underwriting discounts and commissions and transfer taxes, if any, and (h)
expenses incurred in connection with any road show (including the reasonable
out-of-pocket expenses of any Investor Securityholder).
"REQUIRED COMPANY VOTE" means the affirmative vote of holders of
shares of Common Stock representing a majority of the total votes cast at a
meeting of the holders of outstanding shares of Common Stock.
"RESTATED CERTIFICATE" means the Amended and Restated Certificate of
Incorporation of the Company, as in effect on the date hereof and as the same
may be amended, supplemented or otherwise modified from time to time in
accordance with the terms thereof and the terms of this Agreement.
"SEC" means the U.S. Securities and Exchange Commission or any other
federal agency then administering the Securities Act or the Exchange Act and
other federal securities laws.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"SILVER LAKE DIRECTOR" means any Director nominated for election to
the Board by Silver Lake pursuant to Section 2.1 of this Agreement.
"SILVER LAKE INDEMNITEE" has the meaning assigned to such term in
Section 7.1.
"SUBSIDIARY" means (i) any corporation of which a majority of the
securities entitled to vote generally in the election of directors thereof, at
the time as of which any determination is being made, are owned by another
entity, either directly or indirectly, and (ii) any joint venture, general or
limited partnership, limited liability company or other legal entity in which an
entity is the record or beneficial owner, directly or indirectly, of a majority
of the voting interests or the general partner.
"TRANSFER" means, directly or indirectly, to sell, transfer, assign,
pledge, encumber, hypothecate or similarly dispose of, either voluntarily or
involuntarily, or to enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, assignment, pledge,
encumbrance, hypothecation or similar disposition of, any shares of Equity
Securities beneficially owned by a Person or any interest in any shares of
Equity Securities beneficially owned by a Person.
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"TRANSFEREE" means any Person to whom any Investor Stockholder or any
of its Affiliates or any Transferee thereof Transfers Equity Securities of the
Company in accordance with the terms hereof.
"VOTING SECURITIES" means, at any time, shares of any class of Equity
Securities of the Company which are then entitled to vote in the election of
Directors.
SECTION I.2 OTHER DEFINITIONAL PROVISIONS. (a) The words "hereof",
"herein" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Article and Section references are to this Agreement unless
otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
ARTICLE II
CORPORATE GOVERNANCE
SECTION II.1 BOARD REPRESENTATION. (a) Effective as of the Closing,
the Board shall be comprised of ten (10) Directors. Silver Lake shall be
entitled to recommend two (2) nominees to fill vacancies on the Board.
(b) The Company shall take such action as may be required under
applicable law, the Restated Certificate and the Bylaws to cause the Board to
consist of the number of Directors specified in clause (a) and to include in the
slate of nominees recommended by the Board two persons recommended by Silver
Lake. The Company shall also take such action as may be required under
applicable law, the Restated Certificate and the Bylaws to cause nominees of
Silver Lake who are elected to the Board to be divided as equally as practicable
among each class of Directors.
(c) In the event that a vacancy is created at any time by the death,
disability, retirement, resignation or removal (with or without cause) of any
Silver Lake Director, Silver Lake may recommend another person to be elected to
fill the vacancy created thereby, and the Company hereby agrees to take, at any
time and from time to time, all actions necessary to accomplish the same.
(d) Without the prior written consent of Silver Lake, the Company
agrees not to take any action that would cause the number of Directors
constituting the entire Board to be other than ten (10) from and after the
Closing.
SECTION II.2 COMMITTEES. If requested by Silver Lake, the Company
shall cause any executive committee, compensation committee, audit committee,
investment
8
committee, governance committee, nominating committee or other committee of the
Board to include at least one Silver Lake Director.
SECTION II.3 CONSENT RIGHTS. So long as Silver Lake, together with its
Affiliates, shall own Notes, shares of Convertible Preferred Stock or shares of
Class A Common Stock that, on an as converted basis, represent more than 20% of
the shares of Class A Common Stock into which the Notes purchased by Silver
Lake, together with its Affiliates, were convertible on the Closing Date, in
addition to any vote or consent of the Board or the stockholders of the Company
required by law or the Restated Certificate, the Notes or the Certificate of
Designation, the consent in writing of Silver Lake shall be necessary for
authorizing, effecting or validating the following actions by the Company:
a. entering into any direct or indirect transaction by the Company or
any of its Subsidiaries with an Affiliate of the Company (including without
limitation, the purchase, sale, lease or exchange of any property, or
rendering of any service or modification or amendment of any existing
agreement or arrangement) except (a) transactions in the ordinary course of
business that are on terms and conditions no less favorable to the Company
or such Subsidiary than could be obtained on an arm's length basis from
unrelated third parties, (b) transactions between the Company and any of
its wholly-owned Subsidiaries not involving any other Affiliate, (c) any
transactions between the Company or any Subsidiary of the Company and SI
Ventures that are currently required by existing written agreements.
b. any increase in the number of Directors or any change in the
composition or structure of the Board if such change would adversely affect
the rights of Silver Lake;
c. any amendment, alteration or change to the rights, preferences,
privileges or powers of the Notes, the Convertible Preferred Stock or the
Class A Common Stock;
d. any increase or decrease in the (x) aggregate principal amount of
Notes authorized or issued or (y) the total number of authorized or issued
shares of Convertible Preferred Stock other than in accordance with the
terms thereof;
e. any acquisition of securities or assets of another Person by the
Company or any Subsidiary, (whether any such acquisition was effectuated by
merger, consolidation or otherwise) whether in a single transaction or
series of related transactions, other than Exempt Acquisitions;
f. any sale, lease, transfer or disposition (a "DIVESTITURE") of
securities or assets of the Company or any of its Subsidiaries (including
any spin-off or in-kind distribution to stockholders of the Company),
whether in a single transaction or series of related transactions, other
than Exempt Divestitures;
g. any incurrence by the Company or any Subsidiary of additional
indebtedness for borrowed money in excess of $100 million, except (a)
indebtedness incurred to fund the
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Refinancing Right provided in the Notes, (b) indebtedness incurred under
the Credit Agreement in amounts not to exceed $500.0 million in the
aggregate or (c) any refinancing of existing indebtedness or existing
commitments thereunder, provided that (i) the aggregate principal amount of
"refinancing indebtedness" or commitments does not exceed the principal
amount or commitment amount of the indebtedness refinanced, (ii) the
"refinancing indebtedness" has a final maturity and "average life" later
than that of the indebtedness being refinanced and (iii) the refinancing
indebtedness is on terms (taken as a whole) that are as favorable to the
holders of the Notes as those governing the refinanced indebtedness;
h. the dissolution or liquidation of, or filing for bankruptcy by, the
Company or any significant Subsidiary (as defined in Rule 1-02(w) of
Regulation S-X promulgated under the Exchange Act);
i. (A) declaring or paying any dividend or making any distribution to
the holders of the capital stock of the Company (other than dividends or
distributions payable in shares of Common Stock) or (B) purchasing,
redeeming or otherwise acquiring or retiring for value any capital stock of
the Company or any Subsidiary (other than pursuant to employee plans) or
(C) paying, redeeming, repurchasing or defeasing or otherwise retiring for
value prior to any scheduled maturity, scheduled sinking fund or mandatory
redemption payment, indebtedness of the Company or any Subsidiary which is
subordinate (whether pursuant to its terms or by operation of law) in right
of payment to the Notes and which was scheduled to mature on or after the
maturity of the Notes, except to the extent permitted under the Credit
Agreement as in effect on the date hereof; or
j. any arrangement or contract to do any of the foregoing.
SECTION II.4 AVAILABLE FINANCIAL INFORMATION. (a) The Company will
deliver, or will cause to be delivered, the following to each Silver Lake
Director (or, if no Silver Lake Directors are then serving on the Board, to
Silver Lake): an annual budget, a business plan and financial forecasts for the
Company for the next fiscal year of the Company, no later than thirty (30) days
before the beginning of the Company's next fiscal year, in such manner and form
as approved by the Board, which shall include at least a projection of income
and a projected cash flow statement for each fiscal quarter in such fiscal year
and a projected balance sheet as of the end of each fiscal quarter in such
fiscal year. Any material changes in such business plan shall be delivered to
the Silver Lake Directors or Silver Lake, as the case may be, as promptly as
practicable after such changes have been approved by the Board.
(b) The Company will promptly deliver to each Investor Securityholder
when available one copy of each annual report on Form 10-K and quarterly report
on Form 10-Q of the Company, as filed with the SEC. In the event an annual
report on Form 10-K or quarterly report on Form 10-Q is unavailable, the Company
may, in lieu of the requirements of the preceding sentence, deliver, or cause to
be delivered, the following to each Investor Securityholder:
10
(i) as soon as practicable after the end of each fiscal year of the
Company, and in any event within ninety (90) days thereafter, a
consolidated balance sheet of the Company and its Subsidiaries as of the
end of such fiscal year, and consolidated statements of income and cash
flows of the Company and its Subsidiaries for such year, prepared in
accordance with GAAP and setting forth in each case in comparative form the
figures for the previous fiscal year, all in reasonable detail and followed
promptly thereafter (to the extent not available) such financial statements
accompanied by the opinion of independent public accountants of recognized
national standing selected by the Company, and a Company-prepared
comparison to the Company's business plan for such year as approved by the
Board; and
(ii) as soon as practicable after the end of the first, second and
third quarterly accounting periods in each fiscal year of the Company, and
in any event within forty-five (45) days thereafter, a consolidated balance
sheet of the Company and its Subsidiaries as of the end of each such
quarterly period, and consolidated statements of income and cash flows of
the Company and its Subsidiaries for such period and for the current fiscal
year to date, prepared in accordance with GAAP and setting forth in
comparative form the figures for the corresponding periods of the previous
fiscal year and to the Company's business plan then in effect and approved
by the Board, subject to changes resulting from normal year-end audit
adjustments, all in reasonable detail and certified by the principal
financial or accounting officer of the Company, except that such financial
statements need not contain the notes required by GAAP.
SECTION II.5 BOARD EXPENSES. The Company shall reimburse the Silver
Lake Directors for their reasonable out-of-pocket expenses incurred by them for
the purpose of attending meetings of the Board or committees thereof in
accordance with the Company's current reimbursement policy.
SECTION II.6 TERMINATION OF DIRECTOR DESIGNEES AND RELATED RIGHTS.
Notwithstanding Sections 2.1 and 2.3, at such time as Silver Lake, together with
its Affiliates, shall cease to own Notes, shares of Convertible Preferred Stock
or shares of Class A Common Stock that, on an as converted basis, represent less
than 20% of the shares of Class A Common Stock into which the Notes purchased by
Silver Lake, together with its Affiliates, were convertible on the Closing Date,
Silver Lake and its Affiliates shall cease to have the right to (i) nominate for
election any Directors pursuant to Section 2.1 or (ii) consent to certain
corporate actions provided in Section 2.3.
ARTICLE III
TRANSFERS
SECTION III.1 INVESTOR SECURITYHOLDER TRANSFEREES. (a) Subject to
Section 3.1(b), no Transferee of any Investor Securityholder shall be obligated,
or entitled to rights, under this Agreement.
(b) No Transferee shall have any rights or obligations under this
Agreement, except that an Investor Securityholder may assign all or a portion of
the rights and obligations of
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the Investor Securityholder under Article IV to any Transferee (and such rights
shall be further transferable to any further Transferee subject to this Section
3.1).
(c) Prior to the consummation of a Transfer from an Investor
Securityholder, to the extent rights and obligations are to be assigned, and as
a condition thereto, the applicable Transferee shall (i) agree in writing with
the other parties hereto to be bound by the terms and conditions of this
Agreement to the extent described in Section 3.1(b) and (ii) provide the Company
and the other parties to this Agreement at such time complete information for
notices under this Agreement.
SECTION III.2 TRANSFER RESTRICTIONS. (a) On or before the third
anniversary of the Closing, no Investor Securityholder shall Transfer any Notes
other than as expressly permitted by, and in compliance with, the terms and
conditions of, this Agreement. Any attempt to transfer any Notes in violation of
the preceding sentence shall be null and void.
(b) Notwithstanding anything to the contrary in this Agreement, any
transfer permitted or required by this Agreement shall be in compliance with
federal and state securities laws, including without limitation the Securities
Act.
(c) Notwithstanding Section 3.2(a), an Investor Securityholder may
Transfer any or all of its Notes to any Permitted Transferee of such Investor
Securityholder, provided that the rights granted to Silver Lake pursuant to
Article II and Section 5 may not be assigned by Silver Lake. As a condition
precedent to any such transfer, the Permitted Transferee shall execute an
instrument pursuant to which such Permitted Transferee agrees to be bound by and
to comply with the terms of this Agreement, and obtains the rights and benefits
that inure to, the transferor Investor Securityholder as though the Permitted
Transferee were such transferor. Upon execution of such instrument, the
Permitted Transferee shall be deemed an Investor Securityholder hereunder with
respect to such Notes. Any transfer to a Permitted Transferee not made in full
compliance with this Section 3.2(c) shall be void and of no effect.
SECTION III.3 LEGENDS. Each certificate representing shares of Class A
Common Stock and the Convertible Preferred Stock into which the Notes are
convertible will bear a legend on the face thereof substantially to the
following effect (with such additions thereto or changes therein as the Company
may be advised by counsel are required by law or necessary to give full effect
to this Agreement, the "LEGEND"):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED OR ANY STATE SECURITIES OR BLUE SKY
LAWS. THESE SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR A VALID EXEMPTION THEREFROM UNDER SAID ACT OR
LAWS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT
TO CERTAIN RESTRICTIONS AS MORE PARTICULARLY DESCRIBED IN THAT CERTAIN
SECURITYHOLDERS AGREEMENT DATED AS OF APRIL
12
17, 2000 (AS SUCH AGREEMENT MAY BE AMENDED, MODIFIED OR OTHERWISE
SUPPLEMENTED FROM TIME TO TIME, THE "SECURITYHOLDERS AGREEMENT") AMONG
THE ISSUER OF SUCH SECURITIES (THE "ISSUER") AND THE OTHER PARTIES
THERETO. A COPY OF SUCH SECURITYHOLDERS AGREEMENT WILL BE FURNISHED
WITHOUT CHARGE BY THE ISSUER TO THE HOLDER HEREOF UPON WRITTEN
REQUEST."
The Legend will be removed by the Company by the delivery of substitute
certificates without such Legend in the event the legend is no longer required
for purposes of applicable securities laws.
ARTICLE IV
REGISTRATION RIGHTS
SECTION IV.1 INCIDENTAL REGISTRATIONS. (a) If the Company at any time
after the date hereof proposes to register Equity Securities under the
Securities Act (other than a registration on Form S-4 or S-8, or any successor
or other forms promulgated for similar purposes), whether or not for sale for
its own account, in a manner which would permit registration of Registrable
Securities for sale to the public under the Securities Act, it will, at each
such time, give prompt written notice to all Holders of its intention to do so
and of such Holders' rights under this Article IV. Upon the written request of
any such Holder made within 15 days after the receipt of any such notice (which
request shall specify the Registrable Securities intended to be disposed of by
such Holder), the Company will use its reasonable best efforts to effect the
registration under the Securities Act of all Registrable Securities which the
Company has been so requested to register by the Holders thereof; PROVIDED, that
(a) if, at any time after giving written notice of its intention to register any
securities, the Company shall determine for any reason not to proceed with the
proposed registration of the securities to be sold by it, the Company may, at
its election, give written notice of such determination to each Holder and,
thereupon, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from its obligation to
pay the Registration Expenses in connection therewith), and (b) if such
registration involves an underwritten offering, all Holders requesting to be
included in the Company's registration must sell their Registrable Securities to
the underwriters selected by the Company on the same terms and conditions as
apply to the Company, with such differences, including any with respect to
indemnification and liability insurance, as may be customary or appropriate in
combined primary and secondary offerings. If a registration requested pursuant
to this Section involves an underwritten public offering, any Holder requesting
to be included in such registration may elect, in writing prior to the effective
date of the registration statement filed in connection with such registration,
not to register all or any part of such securities in connection with such
registration. Nothing in this Section shall operate to limit the right of any
Holder to request the registration of Common Stock issuable upon conversion,
exchange or exercise of securities held by such Holder notwithstanding the fact
that at the time of request such Holder does not hold the Common Stock
underlying such securities. The registrations provided for in this Section 4.1
are in addition to, and not in lieu of, registrations made upon the request of
any Investor Securityholder in accordance with Section 4.2.
13
(b) EXPENSES. The Company will pay all Registration Expenses in
connection with each registration of Registrable Securities requested pursuant
to this Section 4.1.
(c) PRIORITY IN INCIDENTAL REGISTRATIONS. If a registration pursuant
to this Section 4.1 involves an underwritten offering and the managing
underwriter advises the Company in writing that, in its opinion, the number of
Registrable Securities requested to be included in such registration would be
likely to have an adverse effect on the price, timing or distribution of the
securities to be offered in such offering as contemplated by the Company (other
than the Registrable Securities), then the Company shall include in such
registration (a) FIRST, 100% of the securities the Company proposes to sell, (b)
SECOND, any Other Securities requested to be registered by any Other Holders
exercising a demand registration right, and (c) THIRD, to the extent of the
amount of Registrable Securities and Other Securities requested to be included
in such registration which, in the opinion of such managing underwriter, can be
sold without having the adverse effect referred to above, the amount of
Registrable Securities and Other Securities which the Holders and the Other
Holders have requested to be included in such registration, such amount to be
allocated pro rata among all requesting Holders and the Other Holders on the
basis of the relative amount of Registrable Securities and Other Securities then
held by each such Holder and Other Holder (PROVIDED, that any such amount
thereby allocated to any such Holder or Other Holder that exceeds such Holder's
or Other Holder's request shall be reallocated among the remaining requesting
Holders and Other Holders in like manner).
SECTION IV.2 REGISTRATION ON REQUEST. (a) At any time after the date
hereof, upon the written request of Silver Lake or any Transferee of Silver
Lake; PROVIDED that no Transferee of Silver Lake or its Affiliates or of any
Transferee shall be permitted to request a registration pursuant to this Section
4.2 unless the right to make such a request was transferred to such Transferee
pursuant to Section 3.1(b) (the "DEMAND PARTY") requesting that the Company
effect the registration under the Securities Act of all or part of such Demand
Party's Registrable Securities and specifying the amount and intended method of
disposition thereof, including without limitation, pursuant to a shelf
registration statement utilizing Rule 415 under the Securities Act, the Company
will promptly give written notice of such requested registration to all other
Holders, and thereupon will, as expeditiously as possible, use its reasonable
best efforts to effect the registration under the Securities Act of:
(i) the Registrable Securities which the Company has been so requested
to register by the Demand Party; and
(ii) all other Registrable Securities which the Company has been
requested to register by any other Holder thereof by written request given
to the Company within 15 days after the giving of such written notice by
the Company (which request shall specify the amount and intended method of
disposition of such Registrable Securities), all to the extent necessary to
permit the disposition (in accordance with the intended method thereof as
aforesaid) of the Registrable Securities so to be registered; PROVIDED,
that in no event shall the Company be required to effect more than three
registrations pursuant to this Section 4.2 (which number shall be increased
to four in the event any shares of Convertible Preferred Stock are issued);
and PROVIDED, FURTHER, that, in the event the
14
Company shall not have postponed the filing of a registration statement
required by this Section 4.2 pursuant to Section 4.2(g) hereof within a
period of 360 days from the date of a demand notice under Section 4.2(a),
the Company shall not be obligated to file a registration statement
relating to any registration request under this Section 4.2 (other than a
registration statement on Form S-3 or any successor or similar short-form
registration statement) within a period of 90 days after the effective date
of any other registration statement relating to any registration request
under this Section 4.2 or to any registration effected under Section 4.1,
in either case which was not effected on Form S-3 (or any successor or
similar short-form registration statement). Nothing in this Section 4.2
shall operate to limit the right of any Holder to request the registration
of Common Stock issuable upon conversion of the Notes or the Convertible
Preferred Stock or the conversion, exchange or exercise of any other
securities held by such Holder notwithstanding the fact that at the time of
request such Holder does not hold the Common Stock underlying such
securities.
(b) REGISTRATION STATEMENT FORM. The Company shall select the
registration statement form for any registration pursuant to this Section 4.2;
PROVIDED, that if any registration requested pursuant to this Section 4.2 which
is proposed by the Company to be effected by the filing of a registration
statement on Form S-3 (or any successor or similar short-form registration
statement) shall be in connection with an underwritten public offering, and if
the managing underwriter shall advise the Company in writing that, in its
opinion, the use of another form of registration statement is of material
importance to the success of such proposed offering, then such registration
shall be effected on such other form.
(c) EXPENSES. The Company will pay all Registration Expenses in
connection with registrations of each class or series of Registrable Securities
pursuant to this Section 4.2.
(d) EFFECTIVE REGISTRATION STATEMENT. A registration requested
pursuant to this Section 4.2 will not be deemed to have been effected unless it
has become effective and all of the Registrable Securities registered thereunder
have been sold.
(e) SELECTION OF UNDERWRITERS. If a requested registration pursuant to
this Section 4.2 involves an underwritten offering, the investment banker(s),
underwriter(s) and manager(s) for such registration shall be selected by the
Holders of a majority of the Registrable Securities which the Company has been
requested to register; PROVIDED, HOWEVER, that such investment banker(s),
underwriter(s) and manager(s) shall be reasonably satisfactory to the Company.
(f) PRIORITY IN REQUESTED REGISTRATIONS. If a requested registration
pursuant to this Section 4.2 involves an underwritten offering and the managing
underwriter advises the Company in writing that, in its opinion, the number of
securities to be included in such registration (including securities of the
Company which are not Registrable Securities) would be likely to have an adverse
effect on the price, timing or distribution of the securities to be offered in
such offering as contemplated by the Holders (an "ADVERSE EFFECT"), then the
Company shall include in such registration (a) FIRST, 100% of the Registrable
Securities requested to be included in such registration by the Demand Party and
all other Holders of Registrable Securities pursuant to this
15
Section 4.2 (to the extent that the managing underwriter believes that all such
Registrable Securities can be sold in such offering without having an Adverse
Effect; PROVIDED, that if they cannot and the Demand Party does not exercise its
right set forth in the second succeeding sentence of this clause (f), such
lesser number of Registrable Securities as specified by the Demand Party) and
(B) SECOND, to the extent the managing underwriter believes additional
securities can be sold in the offering without having an Adverse Effect, the
amount of Other Securities requested to be included by Other Holders in such
registration, allocated pro rata among all requesting Other Holders on the basis
of the relative amount of all Other Securities then held by each such Other
Holder (PROVIDED, that any such amount thereby allocated to any such Other
Holder that exceeds such Other Holder's request shall be reallocated among the
remaining requesting Other Holders in like manner). In the event that the number
of Registrable Securities and Other Securities to be included in such
registration is less than the number which, in the opinion of the managing
underwriter, can be sold without having an Adverse Effect, the Company may
include in such registration the securities the Company proposes to sell up to
the number of securities that, in the opinion of such managing underwriter, can
be sold without having an Adverse Effect. If the managing underwriter of any
underwritten offering shall advise the Holders participating in a registration
pursuant to this Section 4.2 that the Registrable Securities covered by the
registration statement cannot be sold in such offering within a price range
acceptable to the Demand Party, then the Demand Party shall have the right to
notify the Company that it has determined that the registration statement be
abandoned or withdrawn, in which event the Company shall abandon or withdraw
such registration statement.
(g) POSTPONEMENTS IN REQUESTED REGISTRATIONS. Notwithstanding Section
4.2(f), (i) if the Board determines, in its good faith judgment, that the
registration and offering otherwise required by this Section 4.2 would have an
adverse effect on a then contemplated public offering of the Company's Equity
Securities, the Company may postpone the filing (but not the preparation) of a
registration statement required by this Section 4.2, during the period starting
with the 30th day immediately preceding the date of the anticipated filing of,
and ending on a date 60 days following the effective date of, the registration
statement relating to such other public offering and (ii) if the Company shall
at any time furnish to the Holders a certificate signed by its chairman of the
board, chief executive officer, president or any other of its authorized
officers stating that the Company or any Subsidiary of the Company has pending
or in process a material transaction, the disclosure of which would, in the good
faith judgment of the Board, after consultation with its outside securities
counsel, materially and adversely affect the Company or such Subsidiary, the
Company may postpone the filing (but not the preparation) of a registration
statement required by this Section 4.2 for up to 90 days; PROVIDED, that, the
Company shall at all times in good faith use its reasonable best efforts to
cause any registration statement required by this Section 4.2 to be filed as
soon as possible thereafter and; PROVIDED, FURTHER, that, the Company shall not
be permitted to postpone registration pursuant to this Section 4.2(g) more than
once in any 360-day period. The Company shall promptly give the Holders
requesting registration thereof pursuant to this Section 4.2 written notice of
any postponement made in accordance with the preceding sentence. If the Company
gives the Holders such a notice, the Holders shall have the right, within 15
days after receipt thereof, to withdraw their request in which case, such
request will not be counted for purposes of this Section 4.2.
16
(h) ADDITIONAL RIGHTS. If the Company at any time grants to any other
holders of capital stock any rights to request the Company to effect the
registration under the Securities Act of any such shares of capital stock on
terms more favorable to such holders than the terms set forth in this Article
IV, the terms of this Article IV shall be deemed amended or supplemented to the
extent necessary to provide the Holders such more favorable rights and benefits.
The Company shall provide the Holders prior written notice of any such deemed
amendment or supplement to the terms of this Article IV.
SECTION IV.3 REGISTRATION PROCEDURES. If and whenever the Company is
required to use its reasonable best efforts to effect or cause the registration
of any Registrable Securities under the Securities Act as provided in this
Agreement, the Company will promptly:
(a) prepare and, in any event within 45 days after the end of the
period within which a request for registration may be given to the Company,
file with the SEC a registration statement with respect to such Registrable
Securities and use its reasonable best efforts to cause such registration
statement to become effective within 90 days of the initial filing;
(b) prepare and file with the SEC such amendments and supplements to
such registration statement (including Exchange Act documents incorporated
by reference into the registration statement) and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for a period not in excess of 180 days (or such longer
period as may be requested by the Holders in the event of a shelf
registration statement) and to comply with the provisions of the Securities
Act and the Exchange Act with respect to the disposition of all securities
covered by such registration statement during such period in accordance
with the intended methods of disposition by the seller or sellers thereof
set forth in such registration statement; PROVIDED, that before filing a
registration statement or prospectus, or any amendments or supplements
thereto in accordance with Sections 4.3(a) or (b), the Company will furnish
to counsel selected pursuant to Section 4.8 hereof copies of all documents
proposed to be filed, which documents will be subject to the review of such
counsel;
(c) furnish to each seller of such Registrable Securities such number
of copies of such registration statement and of each amendment and
supplement thereto (in each case including all exhibits filed therewith,
including any documents incorporated by reference), such number of copies
of the prospectus included in such registration statement (including each
preliminary prospectus and summary prospectus), in conformity with the
requirements of the Securities Act, and such other documents as such seller
may reasonably request in order to facilitate the disposition of the
Registrable Securities by such seller;
(d) use its reasonable best efforts to register or qualify such
Registrable Securities covered by such registration in such jurisdictions
as each seller shall reasonably request, and do any and all other acts and
things which may be reasonably necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller, except that the Company shall not for any
such purpose
17
be required to qualify generally to do business as a foreign corporation in
any jurisdiction where, but for the requirements of this subsection (d), it
would not be obligated to be so qualified, to subject itself to taxation in
any such jurisdiction or to consent to general service of process in any
such jurisdiction;
(e) use its reasonable best efforts to cause such Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental authorities as may be necessary to
enable the seller or sellers thereof to consummate the disposition of such
Registrable Securities;
(f) notify each seller of any such Registrable Securities covered by
such registration statement, at any time when a prospectus relating thereto
is required to be delivered under the Securities Act, of the Company's
becoming aware that the prospectus included in such registration statement,
as then in effect, includes an untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of the circumstances
then existing, and at the request of any such seller, prepare and furnish
to such seller a reasonable number of copies of an amended or supplemental
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing;
(g) otherwise use its best efforts to comply with all applicable rules
and regulations of the SEC, and make available to its security holders, as
soon as reasonably practicable (but not more than 18 months) after the
effective date of the registration statement, an earnings statement which
shall satisfy the provisions of Section 11(a) of the Securities Act;
(h) (i) use its reasonable best efforts to list such Registrable
Securities on any securities exchange on which the Common Stock is then
listed if such Registrable Securities are not already so listed and if such
listing is then permitted under the rules of such exchange; and (ii) use
its best efforts to provide a transfer agent and registrar for such
Registrable Securities covered by such registration statement not later
than the effective date of such registration statement;
(i) enter into such customary agreements (including an underwriting
agreement in customary form), which may include indemnification provisions
in favor of underwriters and other Persons in addition to, or in
substitution for the provisions of Section 4.6 hereof, and take such other
actions as sellers of a majority of shares of such Registrable Securities
or the underwriters, if any, reasonably requested in order to expedite or
facilitate the disposition of such Registrable Securities;
(j) obtain a "cold comfort" letter or letters from the Company's
independent public accounts in customary form and covering matters of the
type customarily covered by "cold
18
comfort" letters as the seller or sellers of a majority of shares of such
Registrable Securities shall reasonably request;
(k) make available for inspection by any seller of such Registrable
Securities covered by such registration statement, by any underwriter
participating in any disposition to be effected pursuant to such
registration statement and by any attorney, accountant or other agent
retained by any such seller or any such underwriter, all pertinent
financial and other records, pertinent corporate documents and properties
of the Company, and cause all of the Company's officers, directors and
employees to supply all information reasonably requested by any such
seller, underwriter, attorney, accountant or agent in connection with such
registration statement;
(l) notify counsel (selected pursuant to Section 4.8 hereof) for the
Holders of Registrable Securities included in such registration statement
and the managing underwriter or agent, immediately, and confirm the notice
in writing (i) when the registration statement, or any post-effective
amendment to the registration statement, shall have become effective, or
any supplement to the prospectus or any amendment to the prospectus shall
have been filed, (ii) of the receipt of any comments from the SEC, (iii) of
any request of the SEC to amend the registration statement or amend or
supplement the prospectus or for additional information, and (iv) of the
issuance by the SEC of any stop order suspending the effectiveness of the
registration statement or of any order preventing or suspending the use of
any preliminary prospectus, or of the suspension of the qualification of
the registration statement for offering or sale in any jurisdiction, or of
the institution or threatening of any proceedings for any of such purposes;
(m) make reasonable best efforts to prevent the issuance of any stop
order suspending the effectiveness of the registration statement or of any
order preventing or suspending the use of any preliminary prospectus and,
if any such order is issued, to obtain the withdrawal of any such order as
soon as practicable;
(n) if requested by the managing underwriter or agent or any Holder of
Registrable Securities covered by the registration statement, promptly
incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriter or agent or such Holder reasonably
requests to be included therein, including, with respect to the number of
Registrable Securities being sold by such Holder to such underwriter or
agent, the purchase price being paid therefor by such underwriter or agent
and with respect to any other terms of the underwritten offering of the
Registrable Securities to be sold in such offering; and make all required
filings of such prospectus supplement or post-effective amendment as soon
as practicable after being notified of the matters incorporated in such
prospectus supplement or post-effective amendment;
(o) cooperate with the Holders of Registrable Securities covered by
the registration statement and the managing underwriter or agent, if any,
to facilitate the timely preparation and delivery of certificates (not
bearing any restrictive legends) representing securities to be sold under
the registration statement, and enable such
19
securities to be in such denominations and registered in such names as the
managing underwriter or agent, if any, or such Holders may request;
(p) obtain for delivery to the Holders of Registrable Securities being
registered and to the underwriter or agent an opinion or opinions from
counsel for the Company in customary form and in form, substance and scope
reasonably satisfactory to such Holders, underwriters or agents and their
counsel;
(q) cooperate with each seller of Registrable Securities and each
underwriter or agent participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings
required to be made with the NASD;
(r) use its reasonable best efforts to make available the executive
officers of the Company to participate with the Holders of Registrable
Securities and any underwriters in any "road shows" or other selling
efforts that may be reasonably requested by the Holders in connection with
the methods of distribution for the Registrable Securities; and
(s) if at any time a shelf registration statement requested to be used
by the Holders to dispose of the Registrable Securities ceases to be
effective, use its reasonable best efforts to file and cause to become
effective a new "evergreen" shelf registration statement providing for an
offering to be made on a continuous basis of the Registrable Securities.
SECTION IV.4 INFORMATION SUPPLIED. The Company may require each seller
of Registrable Securities as to which any registration is being effected to
furnish the Company with such information regarding such seller and pertinent to
the disclosure requirements relating to the registration and the distribution of
such securities as the Company may from time to time reasonably request.
SECTION IV.5 RESTRICTIONS ON DISPOSITION. Each Holder agrees that,
upon receipt of any notice from the Company of the happening of any event of the
kind described in Section 4.3(f), such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the registration statement
covering such Registrable Securities until such Holder's receipt of the copies
of the supplemented or amended prospectus contemplated by Section 4.3(f), and,
if so directed by the Company, such Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the prospectus covering such Registrable Securities
current at the time of receipt of such notice. In the event the Company shall
give any such notice, the period mentioned in Section 4.3(b) shall be extended
by the number of days during the period from and including the date of the
giving of such notice pursuant to Section 4.3(f) and to and including the date
when each seller of Registrable Securities covered by such registration
statement shall have received the copies of the supplemented or amended
prospectus contemplated by Section 4.3(f).
SECTION IV.6 INDEMNIFICATION. (a) In the event of any registration of
any securities of the Company under the Securities Act pursuant to Section 4.1
or 4.2, the Company shall, and it hereby does, indemnify and hold harmless, to
the extent permitted by law, the seller of
20
any Registrable Securities covered by such registration statement, each
Affiliate of such seller and their respective directors, officers, members or
general and limited partners (and any director, officer, and controlling Person
of any of the foregoing), each Person who participates as an underwriter in the
offering or sale of such securities and each other Person, if any, who controls
such seller or any such underwriter within the meaning of the Securities Act
(collectively, the "INDEMNIFIED PARTIES"), against any and all losses, claims,
damages or liabilities, joint or several, actions or proceedings (whether
commenced or threatened) in respect thereof ("CLAIMS") and expenses (including
reasonable attorney's fees and reasonable expenses of investigation) to which
such Indemnified Party may become subject under the Securities Act, common law
or otherwise, insofar as such Claims or expenses arise out of, relate to or are
based upon (a) any untrue statement or alleged untrue statement of any material
fact contained in any registration statement under which such securities were
registered under the Securities Act, any preliminary, final or summary
prospectus contained therein, or any amendment or supplement thereto, or (b) any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they were made) not
misleading; PROVIDED, that the Company shall not be liable to any Indemnified
Party in any such case to the extent that any such Claim or expense arises out
of, relates to or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in such registration statement or amendment
or supplement thereto or in any such preliminary, final or summary prospectus in
reliance upon and in conformity with written information furnished to the
Company by or behalf of such seller specifically stating that it is for use in
the preparation thereof. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of any Indemnified Party
and shall survive the transfer of securities by any seller.
(b) The Company may require, as a condition to including any
Registrable Securities in any registration statement filed in accordance with
Section 4.2 or 4.3 herein, that the Company shall have received an undertaking
reasonably satisfactory to it from the prospective seller of such Registrable
Securities or any underwriter to indemnify and hold harmless (in the same manner
and to the same extent as set forth in Section 4.6(a)) the Company and all other
prospective sellers or any underwriter, as the case may be, with respect to any
untrue statement or alleged untrue statement in or omission or alleged omission
from such registration statement, any preliminary, final or summary prospectus
contained therein, or any amendment or supplement thereto, if such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company by or on behalf of such seller or underwriter specifically stating that
it is for use in the preparation of such registration statement, preliminary,
final or summary prospectus or amendment or supplement, or a document
incorporated by reference into any of the foregoing. Such indemnity shall remain
in full force and effect regardless of any investigation made by or on behalf of
the Company or any of the prospective sellers, or any of their respective
Affiliates, directors, officers or controlling Persons and shall survive the
transfer of securities by any seller. In no event shall the liability of any
selling Holder of Registrable Securities hereunder be greater in amount than the
dollar amount of the proceeds received by such Holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation.
21
(c) Promptly after receipt by an indemnified party hereunder of
written notice of the commencement of any action or proceeding with respect to
which a claim for indemnification may be made pursuant to this Section 4.6, such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such action or proceeding; PROVIDED, that the failure of the indemnified party
to give notice as provided herein shall not relieve the indemnifying party of
its obligations under Section 4.6, except to the extent that the indemnifying
party is materially prejudiced by such failure to give notice. In case any such
action or proceeding is brought against an indemnified party, unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such action or
proceeding (in which case the indemnified party shall have the right to assume
or continue its own defense and the indemnifying party shall be liable for any
reasonable expenses therefor, but in no event will bear the expenses for more
than one firm of counsel for all indemnified parties in each jurisdiction who
shall be approved by the majority of the participating Holders in the
registration in respect of which such indemnification is sought), the
indemnifying party will be entitled to participate in and to assume the defense
thereof (at its expense), jointly with any other indemnifying party similarly
notified to the extent that it may wish, with counsel reasonably satisfactory to
such indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party for any legal or
other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation and shall have no
liability for any settlement made by the indemnified party without the consent
of the indemnifying party, such consent not to be unreasonably withheld. No
indemnifying party will settle any action or proceeding or consent to the entry
of any judgment without the prior written consent of the indemnified party,
unless such settlement or judgment (i) includes as an unconditional term thereof
the giving by the claimant or plaintiff of a release to such indemnified party
from all liability in respect of such action or proceeding and (ii) does not
involve the imposition of equitable remedies or the imposition of any
obligations on such indemnified party and does not otherwise adversely affect
such indemnified party, other than as a result of the imposition of financial
obligations for which such indemnified party will be indemnified hereunder.
(d) (i) If the indemnification provided for in this Section 4.6 from
the indemnifying party is unavailable to an indemnified party hereunder in
respect of any Claim or expenses referred to herein, then the indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such Claim or
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and indemnified party in connection with the actions
which resulted in such Claim or expenses, as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party under this Section 4.6(d) as a result of the Claim and
expenses referred to above shall be
22
deemed to include any legal or other fees or expenses reasonably incurred by
such party in connection with any action or proceeding.
(ii) The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Section 4.6(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in Section 4.6(d)(i). No Person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
(e) Indemnification similar to that specified in this Section 4.6
(with appropriate modifications) shall be given by the Company and each seller
of Registrable Securities with respect to any required registration or other
qualification of securities under any Law or with any governmental authority
other than as required by the Securities Act.
(f) The obligations of the parties under this Section 4.6 shall be in
addition to any liability which any party may otherwise have to any other party.
SECTION IV.7 REQUIRED REPORTS. The Company covenants that it will file
the reports required to be filed by it under the Securities Act and the Exchange
Act (or, if the Company is not required to file such reports, it will, upon the
request of any Holder, make publicly available such information), and it will
take such further action as any Holder may reasonably request, all to the extent
required from time to time to enable such Holder to sell shares of Registrable
Securities and Notes without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144 under the Securities Act,
as such Rule may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the SEC. Upon the request of any Holder, the
Company will deliver to such Holder a written statement as to whether it has
complied with such requirements.
SECTION IV.8 SELECTION OF COUNSEL. In connection with any registration
of Registrable Securities pursuant to Sections 4.1 and 4.2 hereof, the Holders
of a majority of the Registrable Securities covered by any such registration may
select one counsel to represent all Holders of Registrable Securities covered by
such registration; PROVIDED, HOWEVER, that in the event that the counsel
selected as provided above is also acting as counsel to the Company in
connection with such registration, the remaining Holders shall be entitled to
select one additional counsel to represent all such remaining Holders.
SECTION IV.9 HOLDBACK AGREEMENT. If any registration hereunder shall
be in connection with an underwritten public offering, each Holder agrees not to
effect any public sale or distribution, including any sale pursuant to Rule 144
under the Securities Act, of any Equity Securities of the Company (in each case,
other than as part of such underwritten public offering), within 10 days before,
or subject to Section 4.2(g) in the case of a requested registration that has
been postponed pursuant to clause (i) thereof, 180 days (or such lesser period
as the managing underwriters may require or permit) after, the effective date of
such registration (except as part of such registration), and the Company hereby
also agrees to use its reasonable best efforts to
23
have each other holder of any Equity Security of the Company purchased from the
Company (at any time other than in a public offering) to so agree.
SECTION IV.10 NO INCONSISTENT AGREEMENTS. The Company represents and
warrants that it is not a party to, will not enter into, or cause or permit any
of its Subsidiaries to enter into, any agreement which conflicts with or limits
or prohibits the exercise of the rights granted to the Holders of Registrable
Securities in this Article IV.
ARTICLE V
EQUITY PURCHASE RIGHTS
SECTION V.1 SUBSIDIARY PURCHASE RIGHTS. (a) The Company hereby grants
to the Purchasers, as defined in the Securities Purchase Agreement (such
Purchasers referred to in this Section 5.1 as the "PURCHASERS"), an option (the
"TECHREPUBLIC OPTION") to purchase up to 5.00% (as may be allocated among the
Purchasers in their discretion) of the fully diluted capital stock of
TechRepublic, Inc. ("TECHREPUBLIC") (after giving effect to all the transactions
contemplated by the Agreement and Plan of Reorganization dated March 21, 2000
between the Company, TechRepublic and the other parties thereto (the
"TECHREPUBLIC Agreement")) pursuant to the general terms and conditions
applicable to the Company set forth in the TechRepublic Agreement and at a price
which values TechRepublic at the lesser of (a) the value assigned to
TechRepublic in connection with the Company's purchase, or (b) $90.0 million. In
the event TechRepublic issues to the Company any options, warrants, convertible
securities or capital stock subsequent to the consummation of the transactions
contemplated by the TechRepublic Agreement, the Purchasers shall receive options
to purchase additional shares of TechRepublic capital stock in an amount
sufficient to permit it to maintain its 5% stake of TechRepublic on a fully
diluted basis (giving effect to all options, warrants or convertible securities
issued to the Company on an as converted basis) at an exercise price equal to
(i) the per share price received by TechRepublic in connection with such
issuance or (ii) the per share exercise price or conversion price of the
options, warrants or convertible securities issued, as the case may be. Prior to
any contribution of assets (other than cash) by the Company to TechRepublic, the
Company shall notify the Purchasers and the Company and the Purchasers shall
negotiate in good faith to agree upon the value to the assets to be contributed.
The Company and the Purchasers will use reasonable best efforts to enable the
Company to include TechRepublic in its consolidated group for federal income tax
purposes.
(b) In the event that a Purchaser elects to purchase shares of the
capital stock of TechRepublic during the term of this Article V, such Purchaser
shall give the Company written notice of such election, which notice shall
specify the number of shares of capital stock such Purchaser is electing to
purchase, provided that the total number of shares of capital stock purchased by
all Purchasers shall not exceed 5.00% of the fully diluted capital stock of
TechRepublic (after giving effect to all of the transactions contemplated by the
TechRepublic Agreement).
24
(c) The Company hereby grants to the Purchasers the right (the "SPIN
Right"; together with the TechRepublic Option, the "OPTION") to purchase up to
5.00% (as may be allocated among the Purchasers in their discretion) of the
fully diluted common stock of any Subsidiary of the Company whose shares of
common stock are (i) distributed to stockholders of the Company ("SPUN-OFF") or
(ii) sold by the Company in a public offering ("SPUN-OUT") at a per share price
equal to (x) 80.0% of the initial public offering price in the case of a
spun-out Subsidiary and (y) 80.0% of the first day's closing price in the case
of a spun-off subsidiary.
(d) In the event that the Company effects either a spun-off or
spun-out subsidiary transaction during the term of this Article V, the Company
shall give each Purchaser written notice of such transaction at least 30
business days prior to the consummation of the spin-off or spin-out, as the case
may be. If timely notice has been received, on or prior to ten business days
prior to the consummation of the spin-off or spin-out, as the as may be, each
Purchaser shall notify the Company in writing of the number of shares of common
stock, if any, such Purchaser is electing to purchase in such transaction (each
a "Response"), provided that the total number of shares of common stock
purchased by all Purchasers in each such transaction shall not exceed 5.00% of
the fully diluted common stock of the subject subsidiary. An election by a
Purchaser to purchase shares of common stock shall be deemed to be an
irrevocable commitment from such Purchaser to purchase the number of shares of
common stock specified in such Purchaser's Response. If a Purchaser shall have
received timely notice of a spin-off or spin-out, as the case may be, and does
not provide a Response to the Company on or prior to the tenth business day
prior to the consummation of the spin-off or spin-out, as the case may be, such
Purchaser shall be deemed to have declined to purchase shares of common stock in
such transaction.
SECTION V.2 ACQUISITION OF ADDITIONAL SHARES OF COMMON STOCK. So long
as each of Silver Lake's nominees to the Board are elected to, and not removed
from, the Board, each Investor Securityholder agrees that for so long as such
Investor Securityholder holds either Notes, shares of Convertible Preferred
Stock or shares of Class A Common Stock, such Investor Securityholder shall not
increase his, her or its ownership of Common Stock or Equity Securities
exercisable or exchangeable for, or convertible into, shares of Common Stock
from the number of shares of Common Stock held by such Investor Securityholder
(on an as converted basis) as of the date hereof, except for any increase that
results solely from (i) any adjustment to the Conversion Price (as defined in
the Notes) in accordance with the provisions of Section 4 of the Notes, (ii) any
adjustment to the Adjustment Number (as defined in the Certificate of
Designation) in accordance with Section 6(c) of the Certificate of Designation
or (iii) any stock dividend, stock split, reclassification, combination or
similar event.
ARTICLE VI
CERTAIN COVENANTS
SECTION VI.1 HSR APPROVAL. (a) The Company shall promptly make any and
all filings which it is required to make under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the "HSR ACT"), for the sale or issuance
of the Notes, the Conversion Shares (as defined in the Securities Purchase
Agreement), and the Convertible Preferred Stock and the Company agrees to
furnish Silver Lake or any Transferee with such necessary information
25
and reasonable assistance as Silver Lake or any Transferee may reasonably
request in connection with its preparation of any necessary filings or
submissions to the Federal Trade Commission ("FTC") or the Antitrust Division of
the U.S. Department of Justice (the "ANTITRUST DIVISION"), including, without
limitation, any filings or notices necessary under the HSR Act. Any such
actions, if necessary, with respect to the conversion of the Notes or the
Convertible Preferred Stock into Conversion Shares shall be taken by the Company
three months prior to the first date on which Investor Securityholders are first
able to convert the Notes into shares of Class A Common Stock and at such times
thereafter as Silver Lake or any Transferee shall reasonably request. The
Company shall, at its own expense, use all reasonable efforts to respond to any
request for additional information, or other formal or informal request for
information, witnesses or documents which may be made by any governmental
authority pertaining to the Company with respect to the sale of the Notes and
the issuance of the Convertible Preferred Stock and shares of Class A Common
Stock issuable upon conversion of the Notes and the Convertible Preferred Stock
and shall keep Silver Lake and any relevant Transferee fully apprised of its
actions with respect thereto.
(b) Each of Silver Lake and any relevant Transferee shall promptly
make any and all filings which it is required to make under the HSR Act with
respect to the purchase or issuance of the Notes, the Conversion Shares and the
Convertible Preferred Stock and Silver Lake agrees (and any relevant Transferee
will agree) to furnish the Company with such necessary information and
reasonable assistance as it may request in connection with its preparation of
any necessary filings or submissions to the FTC or the Antitrust Division,
including, without limitation, any filings or notices necessary under the HSR
Act. Silver Lake and the relevant Transferees shall, at their own expense, use
all reasonable efforts to respond promptly to any request for additional
information, or other formal or informal request for information, witnesses or
documents which may be made by any governmental authority pertaining to Silver
Lake or the relevant Transferee, as case may be, with respect to the sale of the
Notes and the issuance of, the Convertible Preferred Stock and shares of Class A
Common Stock issuable upon conversion of the Notes and the Convertible Preferred
Stock and shall keep the Company fully apprised of its actions with respect
thereto.
(c) Each of the parties hereto shall use their commercially reasonable
efforts to give such notices and obtain all other authorizations, consents,
orders and approvals of all governmental authorities and other third parties
that may be or become necessary for its execution and delivery of, and the
performance of its obligations pursuant to this Agreement and will cooperate
fully with the other parties hereto in promptly seeking to obtain all such
authorizations, consents, orders and approvals.
(d) The Company shall pay all expenses and fees payable to
governmental authorities in connection with filings made pursuant to this
Section 6.1.
SECTION VI.2 CONVERTIBLE PREFERRED STOCK. In the event that any shares
of Convertible Preferred Stock are issued pursuant to the terms of the Notes,
the Company hereby agrees to use its reasonable best efforts (i) to eliminate
any and all contractual, legal or other prohibitions on the ability of the
Company to redeem the shares of Convertible Preferred Stock
26
for cash consideration in accordance with the provisions of the Certificate of
Designation; (ii) to duly call, give notice of, convene and hold a meeting of
its stockholders for the purpose of obtaining the Required Company Vote
necessary under the rules of the NYSE (or any successor securities exchange on
which the Common Stock may then be listed) to approve the issuance of shares of
Class A Common Stock upon the conversion of shares of Convertible Preferred
Stock (the "SHARE ISSUANCE"); and (iii) to solicit from stockholders of the
Company proxies in favor of the approval of the Share Issuance and to secure the
Required Company Vote; and the Board shall recommend approval of the Share
Issuance.
SECTION VI.3 COMMON STOCK REPURCHASES. The Company hereby agrees not
to effect any repurchases or redemptions of shares of Common Stock at any time
at which the result of such repurchases or redemptions would be to cause the
shares of Class A Common Stock held by the Investor Securityholders on an as
converted basis to trigger a change of control provision pursuant to the Credit
Agreement or any other material contract of the Company.
ARTICLE VII
MISCELLANEOUS
SECTION VII.1 SILVER LAKE INDEMNIFICATION. The Company agrees to
indemnify and hold harmless Silver Lake, its respective directors and officers
and its Affiliates (and the directors, officers, partners, Affiliates and
controlling persons thereof, each, a "SILVER LAKE INDEMNITEE") from and against
any and all liability, including, without limitation, all obligations, costs,
fines, claims, actions, injuries, demands, suits, judgments, proceedings,
investigations, arbitrations (including stockholder claims, actions, injuries,
demands, suits, judgments, proceedings, investigations or arbitrations) and
expenses, including, without limitation, accountant's and attorney's fees and
expenses (together the "LOSSES"), incurred by Silver Lake or a Silver Lake
Indemnitee before or after the date of this Agreement and arising out of,
resulting from, or relating to (i) any third party claims (other than third
party claims by an Affiliate, partner, director, officer or employee of Silver
Lake) in connection with (a) Silver Lake's purchase of the Equity Securities and
(b) the transactions contemplated by the Securities Purchase Agreement, the
Notes and the Securityholders Agreement or (ii) any litigation to which Silver
Lake or a Silver Lake Indemnitee is made a party in its capacity as a
stockholder or owner of securities (or a partner, director, officer, Affiliate
or controlling person of Silver Lake) of the Company other than any losses
incurred by Silver Lake as a result of its gross negligence or willful
misconduct.
SECTION VII.2 TERMINATION. The provisions of Article II of this
Agreement shall terminate as provided in Section 2.6. The provisions of Article
V of this Agreement shall terminate simultaneously with the termination of the
provisions of Article II of this Agreement. The provisions of Article IV of this
Agreement (other than Section 4.6 thereof) shall terminate at such time as there
shall be no Registrable Securities outstanding. The provisions of Articles I,
III, VI and VII and Section 4.6 of this Agreement shall not terminate. Nothing
herein shall relieve any party from any liability for the breach of any of the
agreements set forth in this Agreement.
SECTION VII.3 AMENDMENTS AND WAIVERS. Except as otherwise provided
herein, no modification, amendment or waiver of any provision of this Agreement
shall be
27
effective against the Company or any Holder unless such modification, amendment
or waiver is approved in writing by the Company, Silver Lake (so long as it is
entitled to its rights under Article II hereof) and those Investor Security
holders who hold a majority of the outstanding Class A Common Stock and all
shares of Class A Common Stock issuable (without regard to any present
restrictions on such issuance) upon conversion of the Notes or Preferred Stock.
The failure of any party to enforce any of the provisions of this Agreement
shall in no way be construed as a waiver of such provisions and shall not affect
the right of such party thereafter to enforce each and every provision of this
Agreement in accordance with its terms.
SECTION VII.4 SUCCESSORS, ASSIGNS AND TRANSFEREES. This Agreement
shall bind and inure to the benefit of and be enforceable by the parties hereto
and their respective successors and permitted assigns. This Agreement may not be
assigned by any party hereto (except as described in the next sentence) without
the prior written consent of the other parties. Silver Lake and its Affiliates
may assign their respective rights and obligations hereunder to any Affiliate or
Affiliates thereof and, subject to the Transfer provisions herein, to any other
third party.
SECTION VII.5 NOTICES. All notices required or permitted hereunder
shall be in writing and shall be deemed effectively given: (a) upon personal
delivery to the party to be notified; (b) when sent by confirmed telex or
facsimile if sent during normal business hours of the recipient, if not, then on
the next business day; (c) five (5) days after having been sent by registered or
certified mail, return receipt requested, postage prepaid; or (d) one (1)
business day after deposit with a nationally recognized overnight courier,
specifying next day delivery, with written verification of receipt. All
communications shall be sent, with respect to the Company and Silver Lake, to
their respective addresses specified in the Securities Purchase Agreement (or at
such other address as any such party may specify by like notice) and, with
respect to any other Holder, to the address of such Holder as shown in the stock
record books of the Company (or at such other address as any such Holder may
specify to all of the above by like notice).
SECTION VII.6 FURTHER ASSURANCES. At any time or from time to time
after the date hereof, the parties agree to cooperate with each other, and at
the request of any other party, to execute and deliver any further instruments
or documents and to take all such further action as the other party may
reasonably request in order to evidence or effectuate the consummation of the
transactions contemplated hereby and to otherwise carry out the intent of the
parties hereunder.
SECTION VII.7 ENTIRE AGREEMENT. Except as otherwise expressly set
forth herein, this document, the Notes and the Stock Purchase Agreement embody
the complete agreement and understanding among the parties hereto with respect
to the subject matter hereof and supersede and preempt any prior understandings,
agreements or representations by or among the parties, written or oral, that may
have related to the subject matter hereof in any way.
SECTION VII.8 DELAYS OR OMISSIONS. It is agreed that no delay or
omission to exercise any right, power or remedy accruing to any party, upon any
breach, default or noncompliance by another party under this Agreement, shall
impair any such right, power or remedy, nor shall it be construed to be a waiver
of any such breach, default or noncompliance, or any acquiescence therein, or of
or in any similar breach, default or noncompliance thereafter
28
occurring. It is further agreed that any waiver, permit, consent or approval of
any kind or character on the part of any party hereto of any breach, default or
noncompliance under this Agreement or any waiver on such party's part of any
provisions or conditions of this Agreement, must be in writing and shall be
effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement, by law, or otherwise afforded to any
party, shall be cumulative and not alternative.
SECTION VII.9 GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL. This
Agreement shall be governed in all respects by the laws of the State of New
York. No suit, action or proceeding with respect to this Agreement may be
brought in any court or before any similar authority other than in a court of
competent jurisdiction in the State of New York, and the parties hereto hereby
submit to the exclusive jurisdiction of such courts for the purpose of such
suit, proceeding or judgment. The parties hereto hereby irrevocably waives any
right which they may have had to bring such an action in any other court,
domestic or foreign, or before any similar domestic or foreign authority. Each
of the parties hereto hereby irrevocably and unconditionally waives trial by
jury in any legal action or proceeding in relation to this Agreement and for any
counterclaim therein.
SECTION VII.10 SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
SECTION VII.11 EFFECTIVE DATE. This Agreement shall become effective
immediately upon the Closing.
SECTION VII.12 ENFORCEMENT. Each party hereto acknowledges that money
damages would not be an adequate remedy in the event that any of the covenants
or agreements in this Agreement are not performed in accordance with its terms,
and it is therefore agreed that in addition to and without limiting any other
remedy or right it may have, the non-breaching party will have the right to an
injunction, temporary restraining order or other equitable relief in any court
of competent jurisdiction enjoining any such breach and enforcing specifically
the terms and provisions hereof.
SECTION VII.13 TITLES AND SUBTITLES. The titles of the sections and
subsections of this Agreement are for convenience of reference only and are not
to be considered in construing this Agreement.
SECTION VII.14 NO RECOURSE. Notwithstanding anything that may be
expressed or implied in this Agreement, the Company and each Holder covenant,
agree and acknowledge that no recourse under this Agreement or any documents or
instruments delivered in connection with this Agreement shall be had against any
current or future director, officer, employee, general
29
or limited partner or member of Silver Lake or of any Affiliate or assignee
thereof, whether by the enforcement of any assessment or by any legal or
equitable proceeding, or by virtue of any statute, regulation or other
applicable law, it being expressly agreed and acknowledged that no personal
liability whatsoever shall attach to, be imposed on or otherwise be incurred by
any current or future officer, agent or employee of Silver Lake or any current
or future member of Silver Lake or any current or future director, officer,
employee, partner or member of Silver Lake or of any Affiliate or assignee
thereof, as such for any obligation of Silver Lake under this Agreement or any
documents or instruments delivered in connection with this Agreement for any
claim based on, in respect of or by reason of such obligations or their
creation.
SECTION VII.15 COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may
be executed in any number of counterparts, each of which shall be an original,
but all of which together shall constitute one instrument. This Agreement may be
executed by facsimile signature(s).
IN WITNESS WHEREOF, the parties hereto have executed the
SECURITYHOLDERS AGREEMENT as of the date set forth in the first paragraph
hereof.
GARTNER GROUP, INC.
BY:
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have executed the
SECURITYHOLDERS AGREEMENT as of the date set forth in the first paragraph
hereof.
SILVER LAKE PARTNERS, L.P.
By: Silver Lake Technology Associates, L.L.C.,
its general partner
By: _____________________________________
Name:
Title:
SILVER LAKE INVESTORS, L.P.
By: Silver Lake Technology Associates, L.L.C.,
its general partner
By: _____________________________________
Name:
Title:
SILVER LAKE TECHNOLOGY INVESTORS, L.L.C.
By: __________________________________________
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have executed the
SECURITYHOLDERS AGREEMENT as of the date set forth in the first paragraph
hereof.
INTEGRAL CAPITAL PARTNERS IV, L.P.
By: Integral Capital Management IV, LLC
its general partner
By: _____________________________________
Name: Pamela K. Hagenah
Title: a Manager
INTEGRAL CAPITAL PARTNERS IV MS SIDE FUND, L.P.
By: Integral Capital Partners NBT, LLC
its general partner
By: _____________________________________
Name: Pamela K. Hagenah
Title: a Manager