Exhibit 10.9.1
SECURITYHOLDERS AGREEMENT
dated as of
May 3, 2001
among
THE NASDAQ STOCK MARKET, INC.,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ CAPITAL PARTNERS IV, L.P.,
and
THE OTHER SECURITYHOLDERS LISTED
ON THE SIGNATURE PAGES HEREOF
TABLE OF CONTENTS
Page
ARTICLE 1
Definitions
Section 1.01. Definitions............................................1
ARTICLE 2
Rights and Obligations with Respect to Transfer
Section 2.01. Transfer by Holders....................................4
Section 2.02. Restrictive Legends....................................5
ARTICLE 3
Registration Rights
Section 3.01. Demand Registration....................................6
Section 3.02. Piggyback Registration.................................7
Section 3.03. Reduction of Offering..................................7
Section 3.04. Registration Procedures................................8
Section 3.05. Registration Expenses.................................11
Section 3.06. Indemnification by the Company........................11
Section 3.07. Indemnification by Selling Holders....................12
Section 3.08. Conduct of Indemnification Proceedings................13
Section 3.09. Contribution..........................................14
Section 3.10. Participation in Underwritten Registrations...........15
Section 3.11. Rule 144..............................................15
Section 3.12. Holdback Agreements...................................15
Section 3.13. Transfer of Registration Rights.......................16
ARTICLE 4
Pre-emptive Rights
Section 4.01. Pre-emptive Rights....................................16
ARTICLE 5
Board Appointment Obligation; Information Rights; voting rights
Section 5.01. Board Appointment Obligation..........................18
Section 5.02. Information Rights....................................18
Section 5.03. Additional Rights of the Holders......................19
Section 5.04. Voting Rights.........................................19
ARTICLE 6
Miscellaneous
Section 6.01. Notices...............................................20
Section 6.02. Amendments; Waivers...................................20
Section 6.03. Termination...........................................20
Section 6.04. Successors, Assigns, Transferees......................20
Section 6.05. Headings..............................................21
Section 6.06. No Inconsistent Agreements............................21
Section 6.07. Severability..........................................21
Section 6.08. Recapitalization, Etc.................................21
Section 6.09. Specific Performance..................................21
Section 6.10. Other Agreements......................................21
Section 6.11. New York Law..........................................22
Section 6.12. Counterparts..........................................22
Section 6.13. Entire Agreement......................................22
SECURITYHOLDERS AGREEMENT
SECURITYHOLDERS AGREEMENT dated as of May 3, 2001 (this
"Agreement") among The Nasdaq Stock Market, Inc., a Delaware corporation,
(together with any successor thereto, the "Company"), ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Capital Partners IV, L.P., a Delaware limited partnership ("HFCP IV"), and
the other securityholders listed on the signature pages hereof (together
with HFCP IV and their respective successors and permitted assigns, the
"Holders").
WHEREAS, the Company and the Holders have entered into a
Securities Purchase Agreement dated as of March 23, 2001 (the "Securities
Purchase Agreement"); and
WHEREAS, it is a condition precedent to the closing of the
transactions contemplated by the Securities Purchase Agreement that the
parties hereto execute and deliver this Agreement;
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises and covenants set forth herein, the parties hereto agree as
follows:
ARTICLE 1
Definitions
Section 1.01. Definitions. (a) The following terms, as used
herein, have the following meanings:
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. For the purposes of this definition, "control" when used with
respect to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing. Notwithstanding the foregoing, for
purposes of this Agreement, no NASD member shall be considered an
"Affiliate" of the NASD.
"Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in the City of New York are authorized by law
to close.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the common stock, par value $.01 per share,
of the Company.
"Competitor" means any Person that is principally engaged in
transaction services, market information services, or issuer services
related to securities trading on an exchange or similar market.
"Equity Securities" means the Notes and the Note Shares.
"Event of Default" has the meaning set forth in Section 4.1 of the
Notes.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Initial Public Offering" means the first underwritten public
offering by the Company under the Securities Act.
"NASD" means the National Association of Securities Dealers, Inc.
and its successors.
"Note Shares" means the shares of Common Stock issued, or to be
issued, upon conversion of the Notes in accordance with their terms, and
any shares of Common Stock issued pursuant to a stock dividend, stock
split, or recapitalization in respect of such shares.
"Notes" means the 4.0% Convertible Subordinated Notes due 2006 of the
Company.
"Person" means an individual or a corporation, partnership,
association, trust, or any other entity or organization, including a
government or political subdivision or an agency or instrumentality
thereof.
"Preferred Stock" means the preferred stock, par value $0.01 per
share, of the Company.
"Registrable Securities" means the Note Shares; provided, that
such securities shall cease to be Registrable Securities when (i) a
registration statement relating to such securities shall have been declared
effective by the Commission and such securities shall have been disposed of
pursuant to such effective registration statement or (ii) such securities
have been disposed of pursuant to Rule 144 or may be disposed of pursuant
to Rule 144(k).
"Registration Expenses" means all (i) registration and filing
fees, (ii) fees and expenses of compliance with securities or blue sky laws
(including reasonable fees and disbursements of a qualified independent
underwriter, if any, counsel in connection therewith and the reasonable
fees and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities), (iii) printing expenses,
(iv) internal expenses of the Company (including, without limitation, all
salaries and expenses of officers and employees performing legal or
accounting duties), (v) fees and disbursements of counsel for the Company,
(vi) customary fees and expenses for independent certified public
accountants retained by the Company (including the expenses of any comfort
letters or costs associated with the delivery by independent certified
public accountants of a comfort letter or comfort letters), (vii) fees and
expenses of any special experts retained by the Company in connection with
such registration, (viii) reasonable fees and expenses of one counsel for
the Holders, (ix) fees and expenses of listing the Registrable Securities
on a securities exchange or on the Nasdaq National Market System, (x)
rating agency fees, (xi) reasonable fees and expenses of counsel for the
Underwriter, (xii) reasonable fees and expenses of the Underwriter
(excluding discounts or commissions relating to the distribution of the
Registrable Securities) and (xiii) out-of-pocket expenses of the Company
(including the expenses of any "roadshow" or similar marketing activity
undertaken in connection with the distribution of the Registrable
Securities).
"Rule 144" means Rule 144 under the Securities Act, as such rule
may be amended from time to time.
"Securities Act" means the Securities Act of 1933, as amended.
"Selling Holder" means a Holder who proposes to Transfer
Registrable Securities pursuant to Article 3.
"Subsidiary" means, with respect to any Person, any corporation or
other entity of which a majority of the capital stock or other ownership
interests having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are at the time
directly or indirectly owned by such Person.
"Third Party" means a prospective purchaser of Equity Securities
from a Holder in an arm's-length transaction where such purchaser is not
the Company, an Affiliate of the Company or an Affiliate of such Holder.
"Underwriter" means a securities dealer who purchases any
Registrable Securities as a principal in connection with a distribution of
such Registrable Securities and not as part of such dealer's market-making
activities.
(b) Each of the following terms is defined in the Section set
forth opposite each term:
Term Section
---- -------
ATS 2.01(b)
Board 5.01(a)
Damages 3.06
Demand Registrant 3.01(a)
Demand Registration 3.01(a)
ECN 2.01(b)
H&F Designee 5.01(a)
Indemnified Party 3.08
Indemnifying Party 3.08
NASD Priority Termination Date 3.03
New Securities 4.01(a)
Piggyback Registration 3.02
Preemptive Rights 4.01(a)
Proportionate Percentage 4.01(a)
Registration Request 3.01(a)
Shelf Demand 3.01(a)
Shelf Registration 3.01(a)
Transfer 2.01(a)(ii)
ARTICLE 2
Rights and Obligations with Respect to Transfer
Section 2.01. Transfer by Holders. (a) Subject to Section 3.12,
until the earlier of (i) the effective date of the registration statement
filed in connection with the Company's Initial Public Offering, or (ii)
June 28, 2002, without the prior written consent of the Company, no Holder
shall transfer, sell, assign, or otherwise dispose of ("Transfer") its
Equity Securities, in whole or in part, other than to its Affiliates.
(b) Following the expiration of the period set forth in Section
2.01(a):
(i) without the prior written consent of the Company, no
Holder shall Transfer any Equity Securities (other than in a
registered public offering or in compliance with Rule 144) to
another securities exchange, alternative trading system ("ATS"),
electronic communications network ("ECN"), the NASD, any
Competitor, or any Affiliate of any of the foregoing; and
(ii) with respect to any Transfer of Equity Securities by
a Holder other than (A) a Transfer to an Affiliate or a Transfer
in a registered public offering or in compliance with Rule 144,
and (B) a Transfer in accordance with Section 2.01(b)(i), the
Holder shall consult with the Company in good faith prior to such
Transfer, taking into account the circumstances of such proposed
Transfer.
(c) Subject to compliance with all applicable securities laws and
this Agreement, each Holder may Transfer its Equity Securities, in whole or
in part, without restriction; provided that, the transferee (other than in
a Transfer pursuant to a registered public offering under the Securities
Act or in compliance with Rule 144) shall have executed and delivered to
each other party hereto an instrument confirming that such transferee
agrees to be bound by the terms of this Agreement applicable to the
transferor, whereupon such transferee shall become a Holder for purposes of
this Agreement.
Section 2.02. Restrictive Legends. (a) Each certificate for Equity
Securities issued to any Holder or to a subsequent transferee shall (unless
otherwise permitted by the provisions of Section 2.02(b)) include a legend
in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY STATE OR
FOREIGN JURISDICTION AND MAY NOT BE OFFERED OR SOLD EXCEPT IN
COMPLIANCE WITH APPLICABLE FEDERAL, STATE OR FOREIGN SECURITIES
LAWS. THIS SECURITY IS ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON
TRANSFER, AS SET FORTH IN THE SECURITYHOLDERS AGREEMENT, DATED AS
OF MAY 3, 2001, A COPY OF WHICH MAY BE OBTAINED FROM THE NASDAQ
STOCK MARKET, INC.
(b) In connection with a proposed Transfer of any Equity
Securities permitted under Section 2.01, any Holder may, (i) upon providing
evidence reasonably satisfactory to the Company that such Equity Security
is not a "restricted security" (as defined in Rule 144) or (ii) after
expiration of the applicable holding period under Rule 144, exchange the
certificate representing such Equity Security for a new certificate that
does not bear the legend set forth in Section 2.02(a).
ARTICLE 3
Registration Rights
Section 3.01. Demand Registration. (a) Request for Registration.
At any time beginning 180 days after the consummation of the Company's
Initial Public Offering, for so long as any Holder owns any Registrable
Securities, any Holder of Notes (a "Demand Registrant") may make a written
request (the "Registration Request") for registration under the Securities
Act of Registrable Securities having a value (based on the average closing
sale price per Common Share for 10 trading days preceding the Registration
Request) of not less than $50,000,000 (or, if less, all of the Registrable
Securities then held by the Holders) (a "Demand Registration"), unless
otherwise agreed by the Company and the Selling Holders. Notwithstanding
the foregoing, the Company shall not be required to file a registration
statement pursuant to a Registration Request within 90 days of the
effective date of any other registration statement filed by the Company
pursuant to the Securities Act, excluding registration statements filed on
Form S-4 or S-8 (or any substitute form that may be adopted by the
Commission). Any Registration Request will specify the number of
Registrable Securities proposed to be sold and the intended method of
disposition thereof. The Holders shall be entitled to request: (i) two
Demand Registrations on Form S-1 or any equivalent registration form;
provided, however, that if on or before July 1, 2002, the Company is
eligible to register securities on Form S-3, the Holders shall only be
entitled to request one Demand Registration on Form S-1 or any equivalent
registration form and (ii) unlimited Demand Registrations on Form S-3 or
any equivalent registration form (but no more than two in any twelve-month
period); and provided further, that if the NASD makes a demand to the
Company for the filing of a shelf registration statement pursuant to a
contractual right of registration, then the Company shall provide notice to
the Holders of such demand by the NASD and, if requested by the Holders (a
"Shelf Demand"), the Company shall file a shelf registration statement
pursuant to Section 415 of the Securities Act covering open market sales of
the Registrable Securities (the "Shelf Registration"), which Shelf
Registration shall be considered a Demand Registration for purposes of this
Agreement. The Holders shall be entitled to request only one Shelf Demand
pursuant to this Agreement.
(b) Effective Registration. A registration requested pursuant to
this Section 3.01 shall not be deemed to be effected (i) if a registration
statement with respect thereto shall not have become effective (other than
due to any action or inaction by a Holder), (ii) if, after it has become
effective, such registration is interfered with for any reason (other than
due to any action or inaction by a Holder) by any stop order, injunction or
other order or requirement of the Commission or any other governmental
agency or any court, and the result of such interference is to prevent the
Holder from disposing of the Registrable Securities to be sold thereunder
in accordance with the intended methods of disposition or (iii) if the
conditions to closing specified in the purchase agreement or underwriting
agreement entered into in connection with any underwritten registration
shall not be satisfied or waived with the consent of the Company, the
Demand Registrant or the lead Underwriter, as applicable (other than due to
any action or inaction by a Holder).
(c) Underwriting. The offering of Registrable Securities pursuant
to any Demand Registration shall be in the form of an underwritten
offering, a block trade or an open market transaction, as determined by the
Demand Registrant. The Demand Registrant shall, if applicable, select the
lead Underwriter and any additional investment bankers and managers in
connection with the offering from a list of nationally-recognized
investment banks reasonably agreed to between the Company and the Demand
Registrant.
Section 3.02. Piggyback Registration. If the Company proposes to
file a registration statement under the Securities Act with respect to an
offering of its equity securities (i) for its own account (other than a
registration statement on Form S-4 or S-8 (or any substitute form that may
be adopted by the Commission)) or (ii) for the account of any holders
(other than the Holders) of its securities, then the Company shall give
written notice of such proposed filing to the Holders as soon as
practicable (but in any event not less than 10 days before the anticipated
filing date), and such notice shall offer the Holders the opportunity to
register (a "Piggyback Registration") any or all of the Registrable
Securities. If any Holder wishes to register securities of the same class
or series as covered by the applicable Piggyback Registration, such
registration shall be on the same terms and conditions as such Piggyback
Registration. If, at any time after giving written notice of its intention
to register any equity securities and prior to the effective date of a
registration statement filed in connection with such registration, the
Company shall determine for any reason not to register such equity
securities, the Company may, at its election, give written notice of such
determination to each Holder and, thereupon, shall not be obligated to
register any Registrable Securities in connection therewith.
Section 3.03. Reduction of Offering. Notwithstanding any provision
to the contrary contained herein, if the lead Underwriter of an offering
described in Section 3.01 or 3.02 delivers a written opinion to the Company
that the offering price of the securities proposed to be included in such
offering would be materially and adversely affected by inclusion of all the
securities of each class requested to be included, the number of securities
to be registered by each holder shall be reduced to the extent recommended
by such lead Underwriter; provided, that (i) priority in a registration
initiated by a holder of the Company's securities exercising a contractual
right to demand such registration, including, without limitation, by any
Holder making a Registration Request, for a Demand Registration pursuant to
Section 3.01 shall be (a) first, the securities offered for the account of
such holder, (b) second, with respect to a registration for which a
registration statement is filed prior to the NASD Priority Termination Date
only, securities requested to be registered by the NASD pursuant to a
contractual right of registration, and (c) third, pro rata among any other
securities of the Company requested to be registered for its own account or
pursuant to a contractual right of registration, and (ii) priority in a
registration initiated by the Company for its own account pursuant to
Section 3.02 shall be (a) first, securities offered for the account of the
Company, (b) second, with respect to a registration for which a
registration statement is filed prior to the NASD Priority Termination Date
only, securities requested to be registered by the NASD pursuant to a
contractual right of registration, and (c) third, pro rata among other
securities of the Company requested to be registered pursuant to a
contractual right of registration. For purposes of this Section 3.03, "NASD
Priority Termination Date" shall mean the earlier of (i) the date which is
six months after the date on which the Initial Public Offering is
consummated, and (ii) December 31, 2002.
Section 3.04. Registration Procedures. Whenever the Company is
required to effect the registration of Registrable Securities pursuant to
Section 3.01, the Company will use its reasonable best efforts to effect
the registration and the sale of such Registrable Securities in accordance
with the intended method of disposition thereof as promptly as practicable,
and in connection with any such Registration Request:
(a) The Company will as expeditiously as possible prepare and file
with the Commission a registration statement (including any necessary
amendments and supplements), subject to Section 3.01(a), on any form for
which the Company then qualifies or which counsel for the Company shall
deem appropriate and which form shall be available for the sale of the
Registrable Securities to be registered thereunder in accordance with the
intended method of distribution thereof, and the prospectus used in
connection therewith and use its reasonable best efforts to cause such
filed registration statement to become and remain effective, in the case of
registration that is not a Shelf Registration, for a period of 90 days or
such shorter period as necessary to complete the disposition of all
securities covered by such registration statement in accordance with the
intended method or methods of disposition thereof or, in the case of a
Shelf Registration, on a continuous basis until the earlier of (i) the date
on which all of the Registrable Securities covered by such Shelf
Registration are sold and (ii) the date on which the securities covered by
the Shelf Registration cease to be Registrable Securities; provided that if
the Company shall furnish to the Demand Registrant a certificate signed by
either its Chairman, President, or a Vice-President stating that in the
good faith judgment of its Board of Directors, the filing or effectiveness
of such registration statement would materially interfere with any proposed
acquisition, disposition, financing or other transaction involving the
Company or its subsidiaries, notwithstanding anything in this Section 3.04
to the contrary, the Company may postpone for up to 120 days in any
twelve-month period the filing or effectiveness of a registration statement
pursuant to a Holder's Registration Request; however, the Company will
during any such postponement take all action reasonably necessary or
desirable in order to be able to promptly file or request effectiveness of
the registration statement, as the case may be, upon termination of any
such postponement period.
(b) The Company will, if requested, prior to filing a registration
statement or prospectus or any amendment or supplement thereto, furnish to
each Selling Holder and each Underwriter, if any, such number of copies of
such registration statement, each amendment and supplement thereto (in each
case including all exhibits thereto and documents incorporated by reference
therein), the prospectus included in such registration statement (including
each preliminary prospectus) and such other documents as the Selling Holder
or such Underwriter may reasonably request in order to facilitate the sale
of the Registrable Securities. The Company will provide the Selling Holders
and the Underwriters reasonable time to review such documents and the
Company will consider in good faith incorporating any comments or other
information in such documents as the Selling Holder or the lead Underwriter
reasonably requests.
(c) After the filing of the registration statement, the Company
will promptly notify the Selling Holder of any stop order issued or
threatened by the Commission and take all reasonable actions required to
prevent the entry of such stop order or to remove it if entered.
(d) The Company will use its reasonable best efforts to (i)
register or qualify the Registrable Securities under such other securities
or blue sky laws of such jurisdictions in the United States as the Selling
Holder reasonably requests to keep such registration or qualification in
effect for so long as such registration statement remains in effect, and to
take any other action which may be reasonably necessary or advisable to
enable the Selling Holder to consummate the disposition in such
jurisdictions of the securities owned by the Selling Holder and (ii) cause
such Registrable Securities to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Company, to enable the Selling Holder to
consummate the disposition of such Registrable Securities; provided, that
the Company will not be required to (i) qualify generally to do business in
any jurisdiction where it would not otherwise be required to qualify but
for this paragraph (d), (ii) subject itself to taxation in any such
jurisdiction other than taxation arising with respect to the registration
of securities or (iii) consent to general service of process in any such
jurisdiction.
(e) At any time when a prospectus relating to the sale of
Registrable Securities is required to be delivered under the Securities
Act, the Company will immediately notify the Selling Holder of the
occurrence of an event requiring the preparation of a supplement or
amendment to such prospectus so that, as thereafter delivered to the
Holders of such Registrable Securities, such prospectus will not contain an
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading and promptly make available to the Selling Holder and the
Underwriters any such supplement or amendment. The Selling Holder agrees
that, upon receipt of any notice from the Company of the happening of any
event of the kind described in the preceding sentence, the Selling Holder
will forthwith discontinue the offer and sale of Registrable Securities
pursuant to the registration statement covering such Registrable Securities
until receipt of the copies of such supplemented or amended prospectus and,
if so directed by the Company, the Selling Holder will deliver to the
Company all copies, other than permanent file copies then in the possession
of the Selling Holder, of the most recent prospectus covering such
Registrable Securities at the time of receipt of such notice. In the event
the Company shall give such notice, the Company shall extend the period
during which such registration statement shall be maintained effective as
provided in Section 3.04(a) by the number of days during the period from
and including the date of the giving of such notice to the date when the
Company shall make available to the Selling Holder such supplemented or
amended prospectus.
(f) The Company will enter into customary agreements (including an
underwriting agreement in customary form) and take such other actions as
are reasonably required in order to expedite or facilitate the disposition
of such Registrable Securities, including without limitation furnishing the
Underwriters and Selling Holders with reasonable access to, and causing the
cooperation of, all personnel reasonably requested by the Underwriters and
the Selling Holders subject to appropriate confidentiality agreements to
assist in arranging such meetings with third parties as the Underwriters
and the Selling Holders may reasonably request, including without
limitation any "roadshow" or other similar marketing activity undertaken in
connection with the distribution of the Registrable Securities.
(g) The Company will furnish to the Selling Holder and to each
Underwriter, if any, a signed counterpart, addressed to the Selling Holder
or such Underwriter, of (i) an opinion or opinions of counsel to the
Company and (ii) a comfort letter or comfort letters from the Company's
independent public accountants, each in customary form and covering such
matters as are customarily covered by opinions and comfort letters, as the
Selling Holder or the lead Underwriter therefor reasonably requests.
(h) The Company will otherwise use its reasonable best efforts to
comply with all applicable rules and regulations of the Commission, and
make available to its securityholders, as soon as reasonably practicable,
an earnings statement covering a period of 12 months, beginning within
three months after the effective date of the registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act.
(i) The Company will provide and cause to be maintained a transfer
agent and registrar for all Registrable Securities covered by such
registration statement from and after a date not later than the effective
date of such registration statement.
(j) The Company will use its reasonable best efforts (i) to cause
all Registrable Securities covered by such registration statement to be
listed on any national securities exchange (if such Registrable Securities
are not already listed), and on each other securities exchange, on which
similar securities issued by the Company are then listed, if the listing of
such Registrable Securities is then permitted under the rules of such
exchange; or (ii) to secure the designation of all such Registrable
Securities covered by such registration statement as a Nasdaq "national
market system security" within the meaning of Rule 11Aa2-1 of the
Commission or, failing that, to secure Nasdaq authorization for such
Registrable Securities, in each case if the Registrable Securities so
qualify, and, without limiting the generality of the foregoing, to arrange
for at least two market makers to register as such with respect to such
Registrable Securities with the NASD or the Company, as applicable, if
requested by the Holder or by the lead Underwriter.
(k) Subject to the provisions of Section 3.03, the Company may
include in such registration shares of Common Stock for its own account as
well as shares of Common Stock requested to be included in such
registration by any holder of Common Stock (other than the Holders)
pursuant to a contractual right of registration.
Section 3.05. Registration Expenses. Registration Expenses (other
than underwriting discounts and commissions on the Holders' Registrable
Securities) incurred in connection with any registration made or requested
to be made pursuant to this Article 3 will be borne by the Company, whether
or not any such registration statement becomes effective.
Section 3.06. Indemnification by the Company. To the extent
permitted by applicable law, the Company agrees to indemnify and hold
harmless each Selling Holder, its officers, directors and agents, and each
Person, if any, who controls each such Selling Holder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, from
and against any and all losses, claims, damages, liabilities and expenses
(collectively, "Damages") caused by any untrue statement or alleged untrue
statement of a material fact contained in any registration statement or
prospectus relating to the Registrable Securities (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
expenses are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information furnished in writing to
the Company by or on behalf of any such Selling Holder expressly for use
therein. In addition, the indemnification provided in this Section 3.06
shall not inure to the benefit of any Selling Holder, if the Selling Holder
(or any underwriter or underwriters of the offering) failed to send or give
a copy of the final prospectus or any such amendment thereof or supplement
thereto, whichever is most recent, to the person asserting any such Damages
at or prior to the written confirmation of the sale of the securities by
such underwriter or underwriters to such person if there would have been no
liability if the final prospectus or any such amendment thereof or
supplement thereto had been delivered. The Company also agrees, to the
extent permitted by applicable law, to indemnify any Underwriters of the
Registrable Securities, their officers and directors and each Person who
controls such underwriters on substantially the same basis as that of the
indemnification of the Selling Holders provided in this Section 3.06.
Section 3.07. Indemnification by Selling Holders. To the extent
permitted by applicable law, each Selling Holder agrees, severally but not
jointly, to indemnify and hold harmless the Company, its officers,
directors and agents and each Person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act, to the same extent as the foregoing indemnity from the
Company to such Selling Holder, but only with reference to information
related to such Selling Holder furnished in writing by or on behalf of such
Selling Holder expressly for use in any registration statement or
prospectus relating to the Registrable Securities, or any amendment or
supplement thereto, or any preliminary prospectus. Each Selling Holder also
agrees, to the extent permitted by applicable law, to indemnify and hold
harmless Underwriters of the Registrable Securities, their officers and
directors and each Person who controls such Underwriters on substantially
the same basis as that of the indemnification of the Company provided in
this Section 3.07.
Section 3.08. Conduct of Indemnification Proceedings. In case any
proceeding (including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought pursuant
to Section 3.06 or 3.07, such Person (the "Indemnified Party") shall
promptly notify the Person against whom such indemnity may be sought (the
"Indemnifying Party") in writing. Notwithstanding the foregoing, the
failure so to give prompt notice to such person will not relieve such
Indemnifying Party from liability, except to the extent such failure or
delay materially prejudices such Indemnifying Party. The Indemnifying Party
shall be entitled to participate in any such action and to assume the
defense thereof, at the Indemnifying Party's expense and with counsel
reasonably satisfactory to the Indemnified Party. After notice from the
Indemnifying Party to such Indemnified Party of its election so to assume
the defense thereof, the Indemnified Party shall have the right to
participate in such action and to retain its own counsel, but the
Indemnifying Party shall not be liable to such Indemnified Party hereunder
for any legal expenses of other counsel or any other expenses, in each
case, subsequently incurred by such Indemnified Party, in connection with
the defense thereof other than reasonable costs of investigation, unless
(i) the Indemnifying Party has agreed to pay such fees and expenses, (ii)
the Indemnifying Party shall have failed to employ counsel reasonably
satisfactory to the Indemnified Party in a timely manner or (iii) the
Indemnified Party shall have been advised by outside counsel that
representation of the Indemnified Party by counsel provided by the
Indemnifying Party pursuant to the foregoing would be inappropriate due to
an actual or potential conflicting interest between the Indemnifying Party
and the Indemnified Party, including situations in which there are one or
more legal defenses available to the Indemnified Party that are different
from or additional to those available to the Indemnifying Party; provided
however, that the Indemnifying Party shall not, in connection with any one
such action or proceeding or separate but substantially similar actions or
proceedings arising out of the same general allegations, be liable for the
fees and expenses of more than one firm of attorneys at one time for the
Indemnified Party. The Indemnifying Party shall not be liable for any
settlement of any proceeding effected without its consent, but if settled
with such consent, or if there be a final judgment for the plaintiff, the
Indemnifying Party shall indemnify and hold harmless such Indemnified
Parties from and against any loss or liability (to the extent stated above)
by reason of such settlement or judgment. No Indemnifying Party shall,
without the prior written consent of the Indemnified Party, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Party is or could have been a party and indemnity could have
been sought hereunder by such Indemnified Party, unless such settlement (x)
includes an unconditional release of such Indemnified Party from all
liability arising out of such proceeding and (y) provides that such
Indemnified Party does not admit any fault or guilt with respect to the
subject matter of such proceeding.
Section 3.09. Contribution. (a) If the indemnification provided
for herein is for any reason unavailable to the Indemnified Parties in
respect of any losses, claims, damages or liabilities referred to herein,
then each such Indemnifying Party, to the extent permitted by applicable
law, in lieu of indemnifying such Indemnified Party, shall contribute to
the amount paid or payable by such Indemnified Party as a result of such
losses, claims, damages or liabilities (i) as between the Company and any
Selling Holder on the one hand and the Underwriters on the other, in such
proportion as is appropriate to reflect the relative benefits received by
the Company and such Selling Holder on the one hand and the Underwriters on
the other from the offering of the securities, or if such allocation is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits but also the relative fault of the
Company and such Selling Holder on the one hand and of the Underwriters on
the other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations and (ii) as between the Company on the one hand
and any Selling Holder on the other, in such proportion as is appropriate
to reflect the relative fault of the Company and of such Selling Holder in
connection with such statements or omissions, as well as any other relevant
equitable considerations. The relative benefits received by the Company and
any Selling Holder on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total proceeds from the
offering (net of underwriting discounts and commissions but before
deducting expenses) received by the Company and such Selling Holder bear to
the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of
the prospectus. The relative fault of the Company and any Selling Holder on
the one hand and of the Underwriters on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company and such
Selling Holder or by the Underwriters. The relative fault of the Company on
the one hand and any Selling Holder on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by such party, and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
(b) The Company and each Selling Holder agree that it would not be
just and equitable if contribution pursuant to this Section 3.09 were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an
Indemnified Party as a result of the losses, claims, damages or liabilities
referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 3.09, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Registrable Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission, and no
Selling Holder shall be required to contribute any amount in excess of the
amount by which the total price at which the Registrable Securities of such
Selling Holder were offered to the public (less underwriters' discounts and
commissions) exceeds the amount of any damages which such Selling Holder
has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. 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.
Section 3.10. Participation in Underwritten Registrations. No
Person may participate in any underwritten registration hereunder unless
such Person (a) agrees to sell such Person's securities on the basis
provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements
and other documents reasonably required under the terms of such
underwriting arrangements and these registration rights.
Section 3.11. Rule 144. If the Company shall have filed a
registration statement pursuant to the requirements of Section 12 of the
Exchange Act or a registration statement pursuant to the requirements of
the Securities Act relating to any class of equity securities, the Company
covenants that it will file any reports required to be filed by it under
the Securities Act and the Exchange Act and will take such further action
as the Selling Holder shall reasonably request, all to the extent required
from time to time to enable the Selling Holders to sell Registrable
Securities without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144 under the Securities
Act, as such Rule is amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the Commission.
Section 3.12. Holdback Agreements. (a) Restrictions on Public Sale
by Holders. If and to the extent requested of all shareholders of the
Company by the lead Underwriter of an underwritten public offering of
equity securities of the Company, the Holders agree not to effect, except
as part of such registration, any offer, sale, pledge, transfer or other
distribution or disposition or any agreement with respect to the foregoing,
of the issue being registered or a similar security of the Company, or any
securities convertible into or exchangeable or exercisable for such
securities, including a sale pursuant to Rule 144, during the seven day
period prior to, and during such period that the lead Underwriter may
reasonably request, no greater than 90 days (or 180 days following the
Initial Public Offering), beginning on, the effective date of such
registration statement.
(b) Restrictions on Public Sale by the Company. The Company agrees
(i) not to effect any public sale or distribution of any securities similar
to those being registered in accordance with Section 3.01 or Section 3.02,
or any securities convertible into or exchangeable or exercisable for such
securities, during the seven days prior to, and during such period as the
lead Underwriter may reasonably request, no greater than 90 days (or 180
days following the Initial Public Offering), beginning on, the effective
date of any registration statement (except as part of such registration
statement and except pursuant to registrations on Form S-4 or S-8 or any
successor or similar form thereto); and (ii) that any agreement entered
into after the date of this Agreement pursuant to which the Company issues
or agrees to issue any privately placed securities shall contain a
provision under which holders of such securities agree not to effect any
public sale or distribution of any such securities during the periods
described in (i) above, in each case including a sale pursuant to Rule 144
(except as part of any such registration, if permitted).
Section 3.13. Transfer of Registration Rights. The rights of each
Holder under this Article 3 are transferable to each transferee of such
Holder to whom the transferor assigns its rights pursuant to a Transfer
that complies with the terms of Section 2.01(c).
ARTICLE 4
Pre-emptive Rights
Section 4.01. Pre-emptive Rights. (a) Prior to the Initial Public
Offering, if the Company shall propose to issue or sell New Securities (as
hereinafter defined) or enter into any contracts, commitments, agreements,
understandings or arrangements of any kind relating to the issuance or sale
of any New Securities, in any such case the primary purpose of which (as
determined in good faith by the Company's Board of Directors) is for the
Company to raise capital, then the Company's Board of Directors shall
consider in good faith the desirability and appropriateness of permitting
the Holders to participate in such offerings of New Securities (the
"Preemptive Rights") including granting each Holder the right to purchase
up to that number of New Securities, at the same price and on the same
terms proposed to be issued or sold by the Company, so that each Holder
would, after the issuance or sale of all such New Securities, hold the same
proportionate interest of the issued and outstanding equity securities of
the Company (calculated a fully-diluted basis) as was held by each Holder
(on a fully-diluted basis) immediately prior to the issuance or sale of
such New Securities (the "Proportionate Percentage"). "New Securities"
means any Common Stock or options, warrants or other securities or rights
convertible or exchangeable into or exercisable for any Common Stock or any
other such equity securities; provided, however, that "New Securities"
shall not include: (i) any securities issued or issuable on conversion of
the Convertible Subordinated Notes or pursuant to the exercise of any
rights, warrants, options or other agreements outstanding on the date of
this Agreement including, without limitation, any security convertible or
exchangeable, with or without consideration, into or for any stock, options
and warrants; (ii) options and securities issued to management, directors
or employees of the Company or its Subsidiaries in the ordinary course of
business and equity securities issuable upon exercise thereof; or (iii)
securities issued in consideration for, or in connection with, any merger,
consolidation or other acquisition of all or substantially all of the
assets constituting a business.
(b) The Company shall give each Holder written notice of its
intention to issue and sell New Securities, describing the type of New
Securities, the price and the general terms and conditions upon which the
Company proposes to issue the same. If the Company's Board of Directors
decides to grant the Holders Preemptive Rights, each Holder shall have 10
days from the giving of such notice to agree to purchase all (or any part)
of its Proportionate Percentage of New Securities for the price and upon
the terms and conditions specified in the notice by giving written notice
to the Company and stating therein the quantity of New Securities to be
purchased. In the event that fewer than all Holders elect to purchase their
portion of the New Securities in the manner described above, those Holders
electing to purchase New Securities shall be offered the opportunity to
purchase the unsubscribed portion, pro rata on the basis of the number of
shares of Common Stock owned by each such Holder (on an as-converted
basis).
(c) If the Holders fail to exercise in full their Preemptive
Rights within such 10 days, the Company shall have 90 days thereafter to
enter into a binding agreement to sell the remainder of the New Securities
in respect of which such Holders' Preemptive Rights were not exercised, at
a price and upon general terms and conditions no more favorable to the
purchasers thereof than specified in the Company's notice to the Holders
pursuant to clause (b) of this Section 4.01. If the Company has not entered
into a binding agreement to sell the New Securities within such 90 days,
the Company shall not thereafter agree to issue or sell any New Securities,
without again offering each Holder the right to purchase its Proportionate
Percentage of the New Securities in the manner provided above.
(d) Notwithstanding anything in this Agreement to the contrary,
each Holder shall have the right to assign its rights under this Article 4
to one or more of its Affiliates; provided that each such Affiliate shall
have agreed to be bound by the terms of this Agreement.
ARTICLE 5
Board Appointment Obligation; Information Rights; voting rights
Section 5.01. Board Appointment Obligation. (a) For so long as the
initial Holders beneficially own Equity Securities representing at least
50% of the number of shares of Common Stock (on an as-converted basis)
initially acquired by such Holders, such Holders shall have the right to
designate one person reasonably acceptable to the Company (the "H&F
Designee") for nomination as director to the board of directors (the
"Board") of the Company. The Company hereby agrees to (i) include the H&F
Designee as one of the nominees to the Board on each slate of nominees for
election to the Board proposed by management of the Company, (ii) to
recommend the election of the H&F Designee to the shareholders of the
Company, and (iii) without limiting the foregoing, to otherwise use its
best efforts to cause the H&F Designee to be elected to the Board. The
Company hereby agrees to use its best efforts to cause the appointment of
the H&F Designee to the Finance Committee of the Board. The initial H&F
Designee shall be F. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
(b) In the event that the H&F Designee for any reason ceases to
serve as a director during his term of office, to the extent Holders are
entitled to designate an H&F Designee, the resulting vacancy on the Board
shall be filled by a director designated by the initial Holders reasonably
acceptable to the Company.
Section 5.02. Information Rights. Subject to appropriate
confidentiality arrangements, the Company will provide HFCP IV, or such
other Holder as the Holders shall designate:
(a) as soon as available and in any event within 90 days after the
end of each fiscal year of the Company, a balance sheet of the Company as
of the end of such fiscal year and the related statements of profit and
loss and cash flows for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, and accompanied
by a report thereon of Ernst & Young LLP or other independent public
accountants of nationally recognized standing;
(b) as soon as available and in any event within 45 days after the
end of each of the first three quarters of each fiscal year of the Company,
a balance sheet of the Company as of the end of such quarter and the
related statements of profit and loss and cash flows for such quarter and
for the portion of the Company's fiscal year then ended, setting forth in
each case in comparative form the figures for the corresponding quarter and
the corresponding portion of the Company's previous fiscal year, all
certified (subject to normal year-end adjustments) as to fairness of
presentation, consistency and, except for the absence of footnotes,
generally accepted accounting principles by the chief financial officer or
the chief accounting officer of the Company;
(c) to the extent prepared by the Company and provided to
management of the Company, as soon as available and in any event within 10
days after the end of each month, a balance sheet of the Company as of the
end of such month and the related statements of profit and loss and cash
flows for such month, setting forth in each case, in comparative form the
figures for the corresponding month of the Company's previous fiscal year;
and
(d) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the
chief financial officer or the chief accounting officer of the Company
stating whether any Event of Default exists on the date of such certificate
and, if any Event of Default then exists, setting forth the details thereof
and the action which the Company is taking or proposes to take with respect
thereto.
Section 5.03. Additional Rights of the Holders. For so long as the
initial Holders beneficially own Equity Securities representing at least
25% of the number of shares of Common Stock (on an as-converted basis)
initially acquired by such Holders, promptly upon a request by any Holder
to the chief executive officer, the chief financial officer, the general
counsel or the chief information officer of the Company, the Company will,
subject to appropriate confidentiality arrangements, provide reasonable
access at reasonable times to such aforementioned officers of the Company
and the Company's public accountants to discuss such financial, operating
and other information regarding the business of the Company and its
Subsidiaries as such Holder may reasonably request.
Section 5.04. Voting Rights. If the Board of Directors of the
Company approves an exemption for any Person from the limitation on voting
rights set forth in Section C(2) of Article Fourth of the Company
certificate of incorporation (other than an exemption granted in connection
with the establishment of a strategic alliance with another exchange or
similar market), the Company shall simultaneously grant a similar exemption
to the holders of the Equity Securities and shall use its best efforts to
obtain the concurrence of the Securities and Exchange Commission with
respect thereto.
ARTICLE 6
Miscellaneous
Section 6.01. Notices. Any notice, request, instruction or other
document to be given hereunder by any party hereto to another party hereto
shall be in writing (including fax or similar writing) and shall be given
to such party at its address or telecopier number set forth on its
signature page, or to such other address as the party to whom notice is to
be given may provide in a written notice to the party giving such notice, a
copy of which written notice shall be on file with the Secretary of the
Company. Each such notice, request or other communication shall be
effective (i) if given by fax, when such fax is transmitted to the fax
number specified in this Section and confirmation of receipt is received or
(ii) if given by mail, 72 hours after such communication is deposited in
the mails with first class postage prepaid addressed as aforesaid or (iii)
if given by any other means, when delivered at the address specified in
this Section 6.01.
Section 6.02. Amendments; Waivers. (a) No failure or delay on the
part of any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of
any other right, power or privilege.
(b) Neither this Agreement nor any term or provision hereof may be
amended or waived in any manner other than by instrument in writing signed,
in the case of an amendment, by the Holders and the Company, or in the case
of a waiver, by the party against whom the enforcement of such waiver is
sought.
Section 6.03. Termination. This Agreement shall terminate and be
of no further force or effect with respect to each Holder upon such date
that such Holder no longer holds any Equity Securities; provided, that the
rights and obligations of the Company and the Holders under Section 3.06
through 3.09 shall survive any such termination.
Section 6.04. Successors, Assigns, Transferees. The provisions of
this Agreement shall be binding upon and accrue to the benefit of the
parties hereto and their respective heirs, successors and assigns. Neither
this Agreement nor any provision hereof shall be construed so as to confer
any right or benefit upon any Person other than the parties to this
Agreement and their respective successors and permitted assigns.
Section 6.05. Headings. The headings in this Agreement are for
convenience of reference only and shall not control or affect the meaning
or construction of any provisions hereof.
Section 6.06. No Inconsistent Agreements. The Company will not
hereafter enter into any agreement with respect to its securities which is
inconsistent with or grant rights superior to the rights granted to the
Holders of Equity Securities in this Agreement. The Company represents and
warrants to each Holder that it has not previously entered into any
agreement with respect to any of its debt or equity securities granting any
registration rights to any Person, except for an agreement with the NASD.
Section 6.07. Severability. The invalidity or unenforceability of
any provisions of this Agreement in any jurisdiction shall not affect the
validity, legality or enforceability of the remainder of this Agreement in
such jurisdiction or the validity, legality or enforceability of this
Agreement, including any such provision, in any other jurisdiction, it
being intended that all rights and obligations of the parties hereunder
shall be enforceable to the fullest extent permitted by law.
Section 6.08. Recapitalization, Etc. In the event that any capital
stock or other securities are issued in respect of, in exchange for, or in
substitution of, any shares of Common Stock by reason of any
reorganization, recapitalization, reclassification, merger, consolidation,
spin-off, partial or complete liquidation, stock dividend, split-up, sale
of assets, distribution to stockholders or combination of the shares of
Common Stock or any other change in capital structure of the Company,
appropriate adjustments shall be made with respect to the relevant
provisions of this Agreement so as to fairly and equitably preserve, the
original rights and obligations of the parties hereto under this Agreement.
Section 6.09. Specific Performance. The parties hereto agree that
if any of the provisions of this Agreement were not performed in accordance
with their specific terms or were otherwise breached, irreparable damage
would occur, no adequate remedy at law would exist and damages would be
difficult to determine, and that the parties shall be entitled to specific
performance of the terms hereof and immediate injunctive relief, without
the necessity of proving the inadequacy of money damages as a remedy, in
addition to any other remedy at law or equity.
Section 6.10. Other Agreements. Nothing contained in this
Agreement shall be deemed to be a waiver of, or release from, any
obligations any party hereto may have under, or any restrictions on the
transfer of shares of Common Stock or other securities of the Company or
any direct or indirect subsidiary of the Company imposed by, any other
agreement.
Section 6.11. New York Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York without
giving effect to the conflicts of laws principles thereof.
Section 6.12. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original with the same
effect as if the signatures thereto and hereto were upon the same
instrument.
Section 6.13. Entire Agreement. This Agreement, together with the
Securities Purchase Agreement, the Notes and the amendment to the Company's
certificate of incorporation, constitutes the entire agreement and
understanding of the parties hereto in respect of the subject matter
contained herein and therein, and there are no restrictions, promises,
representations, warranties, covenants, or undertakings with respect to the
subject matter hereof, other than those expressly set forth or referred to
herein or therein. This Agreement, the Securities Purchase Agreement, the
Notes and the amendment to the Company's certificate of incorporation
supersede all prior agreements and understandings between the parties
hereto with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
THE NASDAQ STOCK MARKET, INC.
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Executive Officer
The Nasdaq Stock Market, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ CAPITAL PARTNERS IV, L.P.
by its General Partner, H&F Investors IV, LLC
by its Managing Member, H&F Investors III, Inc.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Address: c/o Hellman & ▇▇▇▇▇▇▇▇ LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
H&F EXECUTIVE FUND IV, L.P.
by its General Partner, H&F Investors IV, LLC
by its Managing Member, H&F Investors III, Inc.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Address: c/o Hellman & ▇▇▇▇▇▇▇▇ LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
H&F INTERNATIONAL PARTNERS IV-A, L.P.
by its General Partner, H&F Investors IV, LLC
by its Managing Member, H&F Investors III, Inc.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Address: c/o Hellman & ▇▇▇▇▇▇▇▇ LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
H&F INTERNATIONAL PARTNERS IV-B, L.P.
by its General Partner, H&F Investors IV, LLC
by its Managing Member, H&F Investors III, Inc.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Address: c/o Hellman & ▇▇▇▇▇▇▇▇ LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
