Common use of VCOC Clause in Contracts

VCOC. (a) In the event that the Company ceases to qualify as an "operating company" (as defined in 29 C.F.R. ss. 2510.3-101(c)) (a "VCOC Event"), then the Company and each Stockholder Party will cooperate in good faith to take all reasonable action necessary to provide that the investment (or at least 51% of the investment valued at cost) of each Sponsor Stockholder, or other member of any Investor Group that qualifies as a "venture capital operating company" (as defined in 29 C.F.R. ss. 2510.3-101(d)) (a "VCOC Stockholder") shall continue to qualify as a "venture capital investment" (as defined in 29 C.F.R. ss. 2510.3-101(d)) (a "VC Investment"); provided that, to the extent any member of an Investor Group other than a Sponsor Stockholder is deemed to be a VCOC Stockholder, such VCOC Stockholder shall execute a counterpart of this Agreement. (b) Each VCOC Stockholder shall execute a side letter in the form attached hereto as Annex A and shall have the supplemental rights and obligations provided in such side letter. (c) Upon the occurrence of a VCOC Event, the Parent shall distribute to each VCOC Stockholder a number of shares of Common Stock held by the Parent sufficient to cause such VCOC Stockholder's investment in the Company to qualify as a VC Investment (a "VC Distribution"), in exchange for an amount of Class A Units of the Parent corresponding to such number of shares of Common Stock. The shares of Common Stock distributed in any VC Distribution shall participate pro rata with any shares of Common Stock held by the Parent in any sale or other disposition of such shares of Common Stock and may not be transferred without the written consent of the Parent other than to the Parent, in exchange for a number of Class A Units of the Parent corresponding to such number of shares of Common Stock, or to another VC Stockholder. (d) Following any VC Distribution, the shares of Common Stock distributed to each VCOC Stockholder shall be deemed to be held by such VCOC Stockholder's Investor Group for the purpose of determining the rights of such Investor Group to designate nominees to the Board. (e) It is understood and agreed that so long as (i) BCP IV (directly or indirectly) owns any Class A Units in the Parent and the BCP Investor Group shall be entitled to cause to be nominated by the Stockholder Parties one or more Directors (or to fill a vacancy as provided in Section 1.10(a)), BCP IV shall have the right to cause to be nominated at least one such BCP Nominee, (ii) Apollo V (directly or indirectly) owns any Class A Units in the Parent and the Apollo Investor Group shall be entitled to cause to be nominated by the Stockholder Parties one or more Directors (or to fill a vacancy as provided in Section 1.10(a)), Apollo V shall have the right to cause to be nominated at least one such Apollo Nominee and (iii) GSCP (directly or indirectly) owns any Class A Units in the Parent and the GS Investor Group shall be entitled to cause to be nominated by the Stockholder Parties one or more Directors (or to fill a vacancy as provided in Section 1.10(a)), GSCP shall have the right to cause to be nominated at least one such GSCP Nominee.