AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT AMONG CORPORATE OFFICE PROPERTIES, L.P., FRANK DERWIN, FREDERICK FUNK, GEF CAPITAL COMPANY HOLDINGS, LLC, THE HANNON FAMILY, LLC, JOHN G. HANNON REVOCABLE TRUST U/A DATED MARCH 9, 2004, LEONARD E....
AMENDED
AND RESTATED STOCKHOLDERS’ AGREEMENT
AMONG
CORPORATE
OFFICE PROPERTIES, L.P.,
▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇
▇▇▇▇,
GEF
CAPITAL COMPANY HOLDINGS, LLC,
THE
▇▇▇▇▇▇ FAMILY, LLC,
▇▇▇▇
▇. ▇▇▇▇▇▇ REVOCABLE TRUST U/A DATED MARCH 9, 2004,
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇,
THUNDERCLAP
HOLDINGS, LLC,
VEDANTA
OPPORTUNITES FUND, L.P.,
ALPHA
TECHNOLOGY LTD.,
▇▇▇▇▇▇
▇▇▇▇▇▇,
W.
▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇
▇▇▇▇▇▇▇▇,
AND
THE
KEYW CORPORATION
DATED
AS OF MAY 29, 2009
AMENDED
AND RESTATED STOCKHOLDERS’ AGREEMENT
THIS AMENDED AND RESTATED
STOCKHOLDERS’ AGREEMENT (this “Agreement” or the
“Stockholders’
Agreement”) is entered into as of May
29, 2009, by and among each of the following parties (each, a “Party”): (i) The KEYW
Corporation, a Maryland corporation (the “Company”), (ii)
Corporate Office Properties, L.P. (“COPLP”), (iii) ▇▇▇▇▇
▇▇▇▇▇▇, (iv) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, (v) GEF Capital Company Holdings, LLC (“GEF”), (vi) The
▇▇▇▇▇▇ Family, LLC (the “▇▇▇▇▇▇ Family”),
(vii) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, (viii) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, and (ix) Thunderclap
Holdings, LLC (“Thunderclap”)
(collectively, excluding the Company, the “Existing
Stockholders”), (x) ▇▇▇▇▇▇ ▇▇▇▇▇▇, (xi) W. ▇▇▇▇▇▇ ▇▇▇▇▇, and (xii) ▇▇▇▇▇
▇▇▇▇▇▇▇▇ (collectively, the “Acquisition
Stockholders”), and (xiii) Vedanta Opportunities Fund, L.P. (“VOF”), (xiv) Alpha
Technology Ltd., and (xv) the ▇▇▇▇ ▇. ▇▇▇▇▇▇ Revocable Trust u/a dated March 9,
2004 (collectively, the “New Stockholders”,
and together with the Existing Stockholders and the Acquisition Stockholders,
the “Stockholders”). The
Stockholders and any other persons who shall hereafter acquire Equity Securities
(as hereinafter defined) of the Company pursuant to the provisions of, and
subject to the restrictions and rights set forth in, this Agreement, are
referred to herein collectively as the “Stockholders” and
individually as a “Stockholder.”
WHEREAS, the Company and the Existing Stockholders are
party to a Stockholders’ Agreement dated as of August 22, 2008 (the “Original Agreement”)
which was entered into in connection with the private placement of an aggregate
of 5,897,250 shares of Common Stock and warrants to purchase up to an aggregate
of 2,948,625 shares of Common Stock from the Company (the “2008 Warrants”);
WHEREAS, as of May 11, 2009, the
Company conducted a private placement to certain of its Existing Stockholders,
the ▇▇▇▇ ▇. ▇▇▇▇▇▇ Revocable Trust u/a dated March 9, 2004, and certain other
individuals and entities (the “May 2009 Private Placement
Stockholders”) in which the May 2009 Private Placement Stockholders
acquired an aggregate of 3,581,360 shares of Common Stock and warrants to
purchase up to an aggregate of 1,790,680 shares of Common Stock from the Company
(the “May 2009
Warrants”) pursuant to subscription agreements (such purchase, the “May 2009 Private
Placement”);
WHEREAS, as of May 29, 2009, the
Company conducted an additional private placement to VOF, an affiliate of
VOF, and certain other investors in which they acquired an aggregate
of 1,558,458 shares of Common Stock and warrants to purchase up to an aggregate
of 779,229 shares of Common Stock from the Company (together with the 2008
Warrants and the May 2009 Warrants, the “Warrants”) pursuant
to subscription agreements (such purchase, together with the May 2009 Private
Placement, the “Investment”);
WHEREAS, the Company, the Existing
Stockholders, the Acquisition Stockholders and the New Stockholders desire to
amend and restate the Original Agreement to include the New Stockholders in connection with
the Investment, to include the Acquisition Stockholders, and to provide for,
among other things, certain restrictions relating to the transfer of the Equity
Securities and other rights and responsibilities as set forth
herein.
NOW, THEREFORE, for and in
consideration of the foregoing and of the mutual covenants and agreements
hereinafter set forth, the Parties agree as follows:
1. DEFINITIONS
For all purposes of this Agreement,
certain capitalized terms specified in Exhibit A shall have
the meanings set forth in Exhibit A, except as
otherwise expressly provided.
2. DIRECTORS
OF THE COMPANY
2.1. Board
of Directors
The Board of Directors shall serve in
accordance with the By-Laws, subject to the terms of this Section
2. The Company and each Stockholder (for so long as such
Stockholder owns any Equity Securities of the Company) shall take or cause to be
taken all such action within its respective power and authority as may be
required:
(a) to
maintain the size of the Board of Directors of the Company at no more than nine
(9) directors;
(b) to
cause to be elected to the Board of Directors one person designated by the
holders of a majority of the Equity Securities (on an as-converted into Common
Stock basis) owned by GEF, Thunderclap and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, with the designee
pursuant to this Section 2.1(b) to be ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇;
(c) to
cause to be elected to the Board of Directors one person designated by COPLP,
with the designee pursuant to this Section 2.1(c) to be ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇;
(d) to
maintain the current composition of the Board of Directors which currently
consists of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ Money, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (or, if he is unable
to serve, a nominee who is mutually acceptable to the Company and VOF); provided
that the Board may be increased in connection with future acquisitions and any
additional directors appointed in connection with such acquisitions or as a
replacement for any director upon his or her resignation shall require the
approval of the majority of the Board of Directors under this Section 2.1(d) in
order to be a nominee for director; provided, further, that in
the event that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ is no longer serving on the Board of Directors
and VOF and the Company have not agreed upon a replacement, the director
position shall remain vacant until such time as VOF makes such
designation;
(e) to
maintain the voting requirements for actions of the Board of Directors at a
majority of directors present at a meeting at which there is a quorum, except in
respect of such matters as this Agreement, the Charter or the By-Laws may impose
a greater voting requirement;
(f) to
cause to be removed forthwith from the Board of Directors any director when
removal is requested for any reason, with or without cause, by the Stockholder
or group of Stockholders designating the election of such director (the “Designating
Stockholder”), and not to remove any director for any other reason other
than cause; and
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(g) in
case of the death, resignation, or other removal as herein provided of any
director, to elect another person designated by the Designating Stockholder
(subject to the approval rights set forth above) to fill the vacancy created
thereby.
2.2. Board
Meetings
Each of the Company and each
Stockholder shall use its commercially reasonable efforts to take, or cause the
Board of Directors to take, all such actions necessary to hold meetings of the
Board of Directors at least once each calendar quarter in accordance with the
By-Laws.
2.3 Board
Observer Rights
Each of (a) GEF and Thunderclap,
acting together, and (b) COPLP (but, with respect to COPLP, only at such times
that COPLP does not have a representative on the Board of Directors) shall be
entitled to appoint one individual (in each case, the “Observer”) to attend, or
have one individual attend on its behalf, all meetings of the Board of
Directors, and the Observer shall be permitted to attend all meetings of
committees thereof to the extent practicable, in each case as an observer, and
the Company shall provide the Observer with all information provided to its
Board of Directors; provided that the
Observer shall agree in writing to maintain the confidentiality of all
information which he or she learns of as a result of the rights provided by this
Section 2.3 and
to use the information only for the purposes reasonably related to the Company’s
business; provided, further, that the
Company reserves the right to exclude the Observer from a meeting or from
receiving any information if the Observer’s presence at the meeting or receipt
of the information would jeopardize any privilege of the Company or involve
highly confidential or sensitive information of the Company or otherwise be
deemed by a majority of the Board of Directors of the Company to be detrimental
to the Company or the Board of Directors’ deliberations. GEF and
Thunderclap hereby appoint as their Observer, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or
▇▇▇▇▇ ▇▇▇▇▇.
2.4. Expenses
The Company shall reimburse the
members of the Board of Directors and any Observer (or the individual attending
on the Observer’s behalf) for such individual’s reasonable out-of-pocket
expenses incurred by the individual for the purpose of attending meetings of the
Board of Directors or committees thereof.
2.5. Board
Committees
The Company and each Stockholder
shall take, or cause the Board of Directors to take, all actions reasonably
necessary to cause the Board of Directors to create and maintain a compensation
committee and an audit committee, each consisting of three members, provided, that each
committee shall be entitled, at the sole discretion of the committee, to meet in
executive session without the presence of any observer who is personally
interested in the matter being deliberated or who has oversight responsibility
for management of the relevant function under discussion.
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3. TRANSFER
OF EQUITY SECURITIES
Until the earlier of (i) the closing of
the first Qualified Public Offering or (ii) at the time as none of the
Stockholders hold any Equity Securities, the following restrictions shall apply
to the transfer of Equity Securities:
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3.1.
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Restrictions
on Transfer of Shares of Common Stock by the
Stockholders
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No
Stockholder shall
Transfer any Equity Securities except pursuant to this Section 3 other
than transfers in
connection with a
public offering under the Act or a Transfer pursuant to a sale of the
Company. No Transfer of Equity Securities in violation of this
Agreement shall be made or recorded on the books of the Company, and any such
attempted Transfer shall be void ab initio and of no
effect.
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3.2.
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Rights
of First Refusal
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3.2.1. First
Refusal Rights
No Stockholder shall Transfer any
Equity Securities now or hereafter held or acquired by that Stockholder to any
individual or entity except upon receipt of a bona fide Third Party Offer and
after any such Stockholder desiring to make the Transfer (each, a “Selling Stockholder”)
shall first deliver a written notice (the “Transfer Notice”) to
the Company and to each other Stockholder specifying (i) the name and address of
the individual or entity making the Third Party Offer, (ii) the number and class
or series of Equity
Securities which the Selling Stockholder wishes to sell (the “Offered Shares”),
(iii) the cash or other purchase price offered for the Offered Shares (the
“Offer Price”),
(iv) any other material terms and conditions of the Transfer and (v) a copy of
the Third Party Offer. The Transfer Notice shall constitute an
irrevocable offer by the Selling Stockholder to sell to the Company and to each
other Stockholder (a “Non-Transferring
Stockholder”) the Offered Shares at the price under the same terms and
conditions contained in the Transfer Notice.
3.2.2. Company
Rights
Within ten (10) Business Days following
its receipt of the Transfer Notice, the Company shall notify each
Non-Transferring Stockholder and the Selling Stockholder as to the number of the
Offered Shares, if any, that the Company is electing to purchase (each such
notice being a “Company
Acceptance”). Each Company Acceptance shall be deemed to be an
irrevocable commitment to purchase from the Selling Stockholder that number of
the Offered Shares which the Company has elected to purchase pursuant to its
Company Acceptance.
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3.2.3. Stockholder
Rights
If the Company does not elect to
purchase all of the Offered Shares (or fails to give a Company Acceptance within
the time period set forth in Section 3.2.2), the
Non-Transferring Stockholders shall have the right to purchase all, but not less
than all, of the remaining Offered Shares that the Company has not agreed to
purchase (the “Remaining Offered
Shares”). Within ten (10) Business Days following its receipt
of the Company Acceptance or the expiration of the Company’s period in which to
elect to purchase the Offered Shares, as the case may be, each Non-Transferring
Stockholder shall notify the Company and the Selling Stockholder as to the
number of Remaining Offered Shares, if any, that the Non-Transferring
Stockholder is electing to purchase (each such notice being an “Investor
Acceptance”). If the number of Remaining Offered Shares is
less than the total number included in all Investor Acceptances (as verified by
the Company), then the number of Remaining Offered Shares shall be allocated
among each Non-Transferring Stockholder who elected to purchase Remaining
Offered Shares in the proportion that the number of issued and outstanding
Equity Securities owned by such Non-Transferring Stockholder (on an as-converted
into Common Stock basis) represents to all of the issued and outstanding Equity
Securities (on an as-converted into Common Stock basis) owned by all
Non-Transferring Stockholders electing to purchase Remaining Offered
Shares. Each Investor Acceptance shall be deemed to be an irrevocable
commitment to purchase from the Selling Stockholder that number of the Remaining
Offered Shares which the notifying Non-Transferring Stockholder has elected to
purchase pursuant to its Investor Acceptance plus any additional Remaining
Offered Shares allocated pursuant to the preceding sentence.
3.2.4. Sale
by Selling Stockholder
If the
Company and/or Non-Transferring Stockholders fail to deliver to the Selling
Stockholder a Company Acceptance and/or an Investor Acceptance to purchase all
of the Offered Shares within the time frames set forth in Sections 3.2.2 and
3.2.3 above,
the Selling Stockholder (a) shall be under no obligation to sell any of the
Offered Shares to the Company or the Non-Transferring Stockholders, unless the
Selling Stockholder so elects, and (b) may, within a period of 120 days from the
date of the Transfer Notice, sell all, but not less than all, of the Offered
Shares to one or more Third Parties identified in the Transfer Notice (each a
“Third Party
Transferee”) for cash or other consideration substantially on the terms
specified in the Transfer Notice; provided that if
there is more than one Third Party Transferee, the Selling Stockholder shall use
commercially reasonable efforts obtain binding and definitive commitments to
purchase all the Offered Shares within the 120-day period before any sale to a
Third Party Transferee of the Offered Shares may take place. Any
Third Party Transferee to whom Offered Shares are Transferred pursuant to and in
compliance with this Section 3.2 shall,
upon consummation of such Transfer, and as a condition to such Transfer, execute
and deliver to the Company and, if requested, to each other Stockholder, a
Counterpart and Joinder to this Agreement in substantially the form attached
hereto as Exhibit
C (a “Joinder”). Upon
such execution and delivery, Exhibit B hereto
shall be deemed to be amended to include the name of such Third Party Transferee
and such transferee shall be joined as a Party to this Agreement as a “Stockholder” for all
purposes hereof. If the Selling Stockholder does not complete the
sale of the Offered Shares within the 120-day period, the provisions of this
Section 3.2
shall again apply, and no Transfer of Equity Securities held by the Selling
Stockholder shall be made otherwise than in accordance with the terms of this
Agreement.
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3.2.5. Closing
The
closing of purchases of Offered Shares by the Company (or its designee) and the
Remaining Offered Shares by the Non-Transferring Stockholders (or their
designees) pursuant to this Section 3.2 shall
take place within sixty (60) days after the date of the Transfer Notice at 11:00
A.M. local time at the principal offices of the Company (as may reasonably be
extended if an appraisal of non-cash consideration is required), or at such
other date, time or place as the parties to the sale may agree. At
least five (5) Business Days prior to the closing, the Company shall notify the
Selling Stockholder(s) in writing of the name and number of purchasers and the
portion of the Offered Shares to be purchased by the Company and the Remaining
Offered Shares to be purchased by the Non-Transferring
Stockholders. At the closing, the Selling Stockholder(s) shall sell,
transfer and deliver to the Company and the Non-Transferring Stockholders full
right, title and interest in and to the Offered Shares or the Remaining Offered
Shares so purchased, free and clear of all liens, security interests or adverse
claims of any kind and nature (except as otherwise set forth in the Charter and
this Agreement and applicable securities laws) and shall deliver to the Company
or the Non-Transferring Stockholders, as applicable, a certificate or
certificates representing the Offered Shares and the Remaining Offered Shares
sold, in each case duly endorsed for transfer or accompanied by appropriate
stock transfer powers duly endorsed with signatures guaranteed by a commercial
bank, trust company or registered broker dealer. Simultaneously with
delivery of the certificates, the Company or the Non-Transferring Stockholders,
as applicable, shall deliver to the Selling Stockholder(s), in full payment of
the purchase price of the Offered Shares and the Remaining Offered Shares
purchased, (a) any cash consideration for the shares by wire transfer of
immediately available funds to the bank and the account designated by the
Selling Stockholder(s) and/or (b) any non-cash consideration for the shares to
the Selling Stockholder(s) at closing in accordance with the Transfer
Notice. The Company and the Non-Transferring Stockholders shall have
the absolute right to substitute cash consideration of equal value to any
non-cash consideration proposed to be paid by the Third Party Transferee for
such non-cash consideration. The parties shall agree on the value of
the non-cash consideration within ten (10) Business Days of the date required
for delivery of the Investor Acceptance. If the Selling Stockholder
and the parties who have delivered Investor Acceptances are unable to agree on
the value of the non-cash consideration within such ten (10) Business Day
period, the parties shall select an appraiser of recognized national standing to
conduct an independent appraisal of the non-cash consideration. Any
appraisal conducted pursuant to this section shall be completed no later than
thirty (30) Business Days after request therefor and costs related to the
appraisal shall be borne equally among the Selling Stockholder and the parties
who have delivered acceptance notices.
4. PREEMPTIVE
RIGHTS
4.1. The
Company hereby grants to the Preemptive Stockholders the right (but not the
obligation) to purchase up to its pro rata
share of any New Securities that the Company may, from time to time, propose to
sell and issue. A pro rata share of any New Securities is the portion
of the New Securities obtained by multiplying the total New Securities proposed
to be issued by a fraction, the numerator of which is the number of shares of
Common Stock then held by the Preemptive Stockholder (assuming the conversion
and exercise into Common Stock of all
Equity Securities then held by the Preemptive Stockholder), and the denominator
of which is the total number of shares of Common Stock then outstanding
(assuming the conversion and exercise into Common Stock of all
Equity Securities outstanding on such date). Each Preemptive
Stockholder shall have a right of over allotment such that if any Preemptive
Stockholder fails to exercise its purchase rights hereunder, the other
Preemptive Stockholders may elect to purchase such non-purchasing Preemptive
Stockholder’s allotment on a pro rata basis.
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4.2. In
the event the Company proposes to undertake an issuance of New Securities, it
shall give each of the Preemptive Stockholders written notice of its intention,
describing the type of New Securities, the price and the general terms upon
which the Company proposes to issue the same. A Preemptive
Stockholder shall have fifteen (15) Business Days from the date of receipt of
any such notice to notify the Company of its intent to purchase all or a portion
of its pro rata share of the New Securities for the price and upon the general
terms specified in the notice by giving written notice to the Company and
stating therein the quantity of New Securities to be purchased.
4.3. In
the event and to the extent a Preemptive Stockholder does not notify the Company
of its decision to exercise the rights granted hereunder within the fifteen (15)
Business Day period, the Company shall notify any Preemptive Stockholders that
have elected to exercise their rights and such Preemptive Stockholders shall
have ten (10) Business Days from the date of receipt of such further notice to
notify the Company of their intent to exercise their respective over allotment
rights with respect to the New Securities that the other Preemptive Stockholders
have declined to purchase. In the event and to the extent that the
Preemptive Stockholders do not exercise the rights granted hereunder with
respect to the New Securities, the Company shall have ninety (90) days from the
date notice is provided to the Preemptive Stockholders pursuant to Section 4.2 to effect
the sale of the New Securities at a price and on terms no more favorable to the
purchasers thereof than those offered to the Preemptive
Stockholders. In the event the sale is not effected within the ninety
(90) day period, the Company shall not issue or sell the New Securities without
first offering the New Securities to the Preemptive Stockholders in the manner
provided in this Section
4.
4.4. Notwithstanding
the foregoing, in no event shall the Company be required to sell any New
Securities to a Stockholder that is not an “accredited investor” as such term is
defined under the Act at the time of such proposed sale.
5. DRAG-ALONG
RIGHTS
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5.1.
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Rights
Generally
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In the event that (a) a majority of the
Board of Directors and (b) Stockholders holding a majority of the issued and
outstanding Equity Securities, voting together as a single class (on an
as-converted into Common Stock basis, if applicable), then held by all Company
Stockholders (collectively, the “Initiating
Stockholders”), approve either:
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(A) a
transaction in which a Third Party would acquire from Stockholders shares
representing fifty percent (50%) or more of the outstanding voting power of the
Company, including for these purposes shares acquired by such Third Party in a
Related Transaction, or
(B) a
transaction with a Third Party that qualifies as a Liquidation (such events
described in subsections (A) and (B) are referred to in this Agreement as a
“Sale of the
Company”),
each
Stockholder agrees with respect to all Equity Securities that such Stockholder
holds:
(i) in
the event such transaction requires the approval of Stockholders, (a) if the
matter is to be brought to a vote at a stockholder meeting, after receiving
proper notice of any meeting of Stockholders, to vote on the approval of a Sale
of the Company, to be present, in person or by proxy, as a holder of Equity
Securities (to the extent such Equity Securities grant such right to the holder
thereof), at all such meetings and be counted for the purposes of determining
the presence of a quorum at such meetings and (b) to vote (in person, by proxy
or by action by written consent, as applicable) all Equity Securities (to the
extent such Equity Securities grant such right to the holder thereof) in favor
of such Sale of the Company and in opposition of any and all other proposals
that could reasonably be expected to delay or impair the ability of the Company
to consummate such Sale of the Company;
(ii) in
the event that the Sale of the Company is to be effected by the sale of Equity
Securities held by the Stockholders without the need for Stockholder approval,
to sell all Equity Securities beneficially held by such Stockholder (or in the
event that the Initiating Stockholders are selling fewer than all of their
Equity Securities, Equity Securities in the same proportion as the Initiating
Stockholders are selling) to the Third Party to whom the Initiating Stockholders
propose to sell their Equity Securities, on the same terms and conditions as the
Initiating Stockholders (subject to Section 5.2(ii)
below), except that Stockholders will not be required to sell their shares
unless (A) the liability for indemnification, if any, of each Stockholder in
such Sale of the Company is several, not joint, and is pro rata in accordance
with such Stockholder’s relative stock ownership of the Company, and will not
exceed the consideration payable to such Stockholder, if any, in such
transaction (except in the case of potential liability for fraud or willful
misconduct by such Stockholder) and (B) the Stockholders are required to make
only representations and warranties that are equivalent to those made by the
Initiating Stockholders;
(iii) to
refrain from exercising any dissenters’ rights or rights of appraisal under
applicable law at any time with respect to such Sale of the
Company;
(iv) to
execute and deliver all related documentation and take such other action in
support of the Sale of the Company as shall reasonably be requested by the
Company; and
(v) not
to deposit, and to use diligent efforts to cause their Affiliates not to
deposit, except as provided in this Agreement, any voting securities owned by
such Party or Affiliate in a voting trust or subject any such voting securities
to any arrangement or agreement with respect to the voting of such shares of
capital stock, unless specifically requested to do so by the acquirer in
connection with a Sale of the Company.
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5.2. Conditions
The
obligations of the Stockholders pursuant to this Section 5 are subject
to the satisfaction of the following conditions:
(i) all
Stockholders shall participate in the Sale of the Company on a pro rata
basis;
(ii) the
consideration to be received by each Stockholder shall be the same amount of
consideration per share to be received by the Initiating Stockholders for the
corresponding class or series of stock (on an-as converted into Common Stock
basis) after taking into account the rights, privileges and preferences of any
class of Equity Securities outstanding and treating the Stockholders as if a
Liquidation had occurred, but not taking into account any discount for
illiquidity or lack of control;
(iii) if
any Initiating Stockholder is given an option as to the form and amount of
consideration to be received with respect to a class or series of securities it
holds, all Stockholders will be given the same option; and
(iv) no
Stockholder shall be obligated to make any out-of-pocket expenditure prior to
the consummation of the Sale of the Company and no Stockholder shall be
obligated to pay more than its pro rata share (based upon the amount of
consideration received) of reasonable expenses incurred in connection with a
consummated Sale of the Company to the extent such costs are incurred for the
benefit of all Stockholders and are not otherwise paid by the Company or the
purchaser (costs incurred by or on behalf of a Stockholder for its sole benefit
will not be considered costs of the transaction hereunder).
6.
TAG-ALONG
RIGHTS
6.1. Subject
to Section 3.2,
in the event that one or more of the Stockholders (the “Selling Investors”)
receives a bona fide Third Party Offer to purchase fifty percent (50%) or more
of the issued and outstanding Equity Securities of the Company in a single
transaction (or a transaction preceded by one or more Related Transactions
within a 12-month period), the Selling Investors shall deliver a written notice
(the “Investor
Transfer Notice”) to the Company (such Investor Transfer Notice, in
the event of a single transaction, to be delivered in connection with such
transaction, and such Investor Transfer Notice, in connection with a transaction
preceded by one or more Related Transactions, to be delivered in connection with
the transaction pursuant to which the prospective transferee (the “Purchase Offeror”)
shall acquire 50% or more of the issued and outstanding Equity
Securities). The Investor Transfer Notice will state (i) the Selling
Investors’ bona fide intention to Transfer, (ii) the aggregate number of shares
of Equity Securities to be Transferred to the Purchase Offeror (taking into
account any preceding Related Transactions) (the “Investor Shares”),
(iii) the expected closing date of the transaction, and (iv) confirmation that
the Purchase Offeror has been informed of the provisions of this Section
6. The Company shall promptly, and in any event within five
(5) Business Days after receipt of such Investor Transfer Notice, deliver a copy
of such Investor Transfer Notice to the other Stockholders (each a “Non-Recipient
Stockholder”).
-9-
6.2. Any
Non-Recipient Stockholder may elect to participate in the Transfer contemplated
by Section 6.1
above by delivering a written notice (a “Tag-Along Notice”) to
the Selling Investors and the Company within five (5) Business Days after
receipt of such Investor Transfer Notice, and each such Non-Recipient
Stockholder (each a “Co-Seller”) may elect
to Transfer in such contemplated Transfer up to that number of shares of the
Company (referred to herein as “Tag-Along Shares”)
that is equal to the product of (a) the aggregate number of Investor Shares sold
or proposed to be sold by the Selling Investors (taking into account any
preceding related transactions) multiplied by (b) a fraction, the numerator of
which is the total number of Equity Securities owned by such Co-Seller, on an
as-converted into Common Stock basis, and the denominator of which is the total
number of shares of Equity Securities, on an as-converted into Common Stock
basis, issued and/or issuable to the Selling Investors and to all Co-Sellers
after taking into account the rights, privileges and preferences of the Investor
Shares as if a Liquidation with respect to all of the Investor Shares and
Tag-Along Shares had occurred but not taking into account any discount for
illiquidity or lack of control. If any Non-Recipient Stockholder
fails to deliver a Tag-Along Notice by the close of business on the fifth (5th)
Business Day after receipt of an Investor Transfer Notice, such Stockholder
shall be deemed to have elected not to participate in the Transfer covered by
such Investor Transfer Notice.
6.3. Each
Co-Seller participating in a Transfer shall deliver to the Purchase Offeror at a
closing to be held at the offices of the Company (or such other place as the
parties agree), one or more certificates, properly endorsed for Transfer, which
represent the number of Tag-Along Shares which the Co-Seller elects to Transfer,
and may Transfer, pursuant to this Section
6. Such certificates shall be transferred by the Co-Seller to
the Purchase Offeror simultaneously with the consummation of the Transfer of the
Investor Shares pursuant to the terms and conditions specified in the Investor
Transfer Notice against receipt by the Co-Sellers of the proceeds of the
Transfer of their respective Tag-Along Shares. If there is to be an
agreement of sale or similar instrument with respect to the proposed Transfer (a
“Sale
Agreement”), the Selling Investors will furnish a copy of the Sale
Agreement in its then current form to the Company with the Investor Transfer
Notice, and the Company shall furnish a copy thereof to the Non-Recipient
Stockholders. As promptly as practicable after receipt of a Tag-Along
Notice, if the Sale Agreement has not previously been executed, the Selling
Investors shall furnish the Co-Sellers with successive drafts of the Sale
Agreement, if any, as they become available. As a condition to making
a Co-Sale Notice and being eligible to participate in a Transfer, each Co-Seller
shall represent and warrant to the Purchase Offeror with respect to the
Tag-Along Shares being disposed of by such Co-Seller that the transferee of the
Tag-Along Shares (or interests therein) is receiving such Tag-Along Shares (or
interests therein), free and clear of all pledges, security interests or other
liens created by such Co-Seller. Each Co-Seller shall accept a
proportionate delegation of any duties of the Selling Investors under any Sale
Agreement (including any indemnification obligation); provided, however, that (a) no
Co-Seller need accept joint liability with respect to representations,
warranties or covenants (including without limitation indemnification
obligations) of the Selling Investors or any other Co-Sellers, it being agreed
that such Sale Agreement shall provide that the liability of such Co-Seller in
connection with the sale shall be several only and shall not in any event exceed
such Co-Seller’s pro rata share of any net proceeds received in such sale and
(b) each Co-Seller shall be required only to make representations or warranties
to, or enter into indemnification or contribution arrangements with, the
Purchase Offeror relating to the Sale Agreement which are reasonable in the
context of the proposed sale including, without limitation, a representation and
warranty with respect to the shares or other equity interests being disposed of
by such Co-Seller that the transferee of the shares or other equity interests
evidenced thereby is receiving such shares or other equity interests, free and
clear of all pledges, security interests or other liens. In the event
that any prospective transferee or transferees prohibit assignment and
delegation of such Sale Agreement or otherwise refuse to purchase any Tag-Along
Shares from a Co-Seller, the Selling Investors shall purchase the Tag-Along
Shares from each Co-Seller on the same terms and conditions as the proposed
transfer described in the Investor Transfer Notice in an amount sufficient to
allow the full exercise by the Co-Sellers of the right of co-sale granted
hereby; provided, however, that such
obligation shall not apply in the event that the Selling Investors fail to
consummate the transaction described in the Investor Transfer
Notice.
-10-
6.4. Any
Transfer made pursuant to this Section 6 shall be
consummated on the terms set forth in the Investor Transfer
Notice. The Company shall use commercially reasonable efforts to aid
such closing, including, but not limited to, exchanging the Co-Seller’s
certificates for new certificates in requested denominations.
7. COVENANTS
OF THE COMPANY
7.1 At
any time when shares of Equity Securities are held by Stockholders, the Company
shall not, either directly or indirectly by amendment, merger, consolidation or
otherwise, do any of the following without (in addition to any other vote
required by law or the Charter) the written consent or affirmative vote of the
Stockholders holding a majority of the Equity Securities (on an as-converted
into Common Stock basis) then held by all of the Stockholders, which vote must
include the affirmative votes of both (a) COPT, but only to the extent it then
holds at least 25% of the number of shares of Common Stock it purchased on the
date of this Agreement and (b) a Stockholder designated by the holders of a
majority of the Equity Securities (on an as-converted into Common Stock basis)
then held by GEF, the ▇▇▇▇▇▇ Family, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and Thunderclap, such
designee to initially be ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, but only to the extent that GEF, the
▇▇▇▇▇▇ Family, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and Thunderclap, as a group, then hold at least
25% of the number of shares of Common Stock they purchased on the date of this
Agreement:
(i)
liquidate,
dissolve or wind-up the business and affairs of the Company, effect any
Liquidation, or consent to any of the foregoing;
(ii) amend,
alter or repeal any provision of the Charter or Bylaws of the
Company;
(iii) create,
or authorize the creation of, or issue or obligate itself to issue any New
Securities, or increase the authorized number of shares of Equity
Securities;
-11-
(iv) purchase
or redeem (or permit any Subsidiary to purchase or redeem) or pay or declare any
dividend or make any distribution on, any shares of capital stock of the Company
other than (1) dividends or other distributions payable on the Common Stock
solely in the form of additional shares of Common Stock and (2) repurchases of
stock from former employees, officers, directors, consultants or other persons
who performed services for the Company or any Subsidiary in connection with the
cessation of such employment or service at the lower of the original purchase
price or the then-current fair market value thereof;
(v) create,
or authorize the creation of, or issue, or authorize the issuance of any debt
security in excess of $1,000,000 in the aggregate, or permit any Subsidiary to
take any such action with respect to any debt security in excess of $1,000,000
in the aggregate;
(vi) create,
or hold capital stock in, any Subsidiary that is not wholly owned (either
directly or through one or more other Subsidiaries) by the Company, or sell,
transfer or otherwise dispose of any capital stock of any direct or indirect
Subsidiary of the Company, or permit any direct or indirect Subsidiary to sell,
lease, transfer, exclusively license or otherwise dispose (in a single
transaction or series of related transactions) of all or substantially all of
the assets of such Subsidiary;
(vii) make, or
permit any Subsidiary to make, any loan or advance to, or own any stock or other
securities of, any Subsidiary or other corporation, partnership, or other entity
unless it is wholly owned by the Company, or to any person, including any
employee or director of the Company or any Subsidiary, except advances and
similar expenditures in the ordinary course of business or under the terms of an
employee stock or option plan approved by the Board of
Directors;
(viii) guarantee,
directly or indirectly, or permit any Subsidiary to guarantee, directly or
indirectly, any indebtedness in excess of $1,000,000 except for trade accounts
of the Company or any Subsidiary arising in the ordinary course of
business;
(ix) incur any
aggregate indebtedness in excess of $1,000,000 that is not already included in a
budget approved by the Board of Directors, other than trade credit incurred in
the ordinary course of business;
(x) otherwise
enter into or be a party to any transaction with any director, officer, or
employee of the Company or any “associate” (as defined in Rule 12b-2 promulgated
under the Securities Exchange Act of 1934, as amended) of any such person,
except for transactions contemplated by this Agreement and the Subscription
Agreements; transactions resulting in payments to or by the Company in an
aggregate amount less than $120,000 per year; or transactions made in the
ordinary course of business and pursuant to reasonable requirements of the
Company’s business and upon fair and reasonable terms that are approved by a
majority of the Board of Directors;
-12-
(xi) change
the principal business of the Company;
(xii) sell,
assign, license, pledge, or encumber any material intellectual property, other
than licenses granted in the ordinary course of business;
(xiii) acquire
the operations or assets of another business (including any corporation, limited
liability company, limited partnership or other entity and including, without
limitation, by merger, consolidation, sale of assets, sale of control, leasing
or licensing) in a single transaction or series of related transactions, provided that such
consent shall not be required for the acquisitions of S&H Enterprises of
Central Maryland, Inc. and Integrated Computer Concepts, Inc.
8. ADDITIONAL
COVENANTS OF THE COMPANY
The Company hereby covenants as set
forth in the following subsections with each Stockholder as
follows:
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8.1.
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Books
and Records
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The Company shall keep and maintain
adequate and proper books and records of account, in which complete entries are
made in accordance with generally accepted accounting principles consistently
applied and in accordance with all applicable laws, rules, and regulations,
reflecting all financial and other transactions of the Company normally or
customarily included in books and records of account of companies engaged in the
same or similar businesses and activities as the Company.
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8.2.
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Financial
and Business Information
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The Company shall furnish to each
Stockholder owning at least 25% of the number of shares of Common Stock they
purchased on the date of this Agreement:
(i) as
soon as available and in any event within ninety (90) days after the end of each
fiscal year of the Company, a copy of the audited consolidated balance sheet of
the Company as of the end of such fiscal year and the related audited
consolidated statements of income, cash flows and changes in equity for the
fiscal year, all prepared in reasonable detail, and certified by independent
certified public accountants of recognized national standing as presenting
fairly in all material respects the financial position of the Company and
approved by the Board of Directors, including footnotes and setting forth in
comparative form the corresponding figures for the corresponding period of the
preceding fiscal year.
(ii) as
soon as available and in any event within forty-five (45) days after the end of
each fiscal quarter of the Company (other than the last quarter of each fiscal
year) in the case of quarterly statements and within thirty (30) days after the
close of each month of each fiscal year in the case of monthly statements, a
copy of the unaudited consolidated balance sheet of the Company as of the end of
the quarter or month and the related unaudited consolidated statements of income
and cash flows of the Company for the periods commencing at the end of the
previous quarter or month and ending at the end of the quarter or month and
commencing at the beginning of the fiscal year and ending at the end of the
quarter or month, in each case setting forth in comparative form the
corresponding figures for the corresponding period of the preceding fiscal year
and the figures for the period set forth in the operating plan and budget
delivered by the Company pursuant to subsection (3) hereof;
-13-
(iii) as
soon as available and in any event no later than forty-five (45) days prior to
the first day of each fiscal year beginning after the date hereof, an annual
operating plan and budget (including cash flow data) for the Company for the
fiscal year, each prepared in reasonable detail, which operating plan and budget
shall have been, prior to such time, approved by the holder of a majority of the
outstanding Equity Securities then held by the Stockholders;
(iv) at
least annually, letters from the Company’s independent accountants regarding the
sufficiency of internal controls and other matters customarily addressed in
“management letters”; and
(v) promptly,
from time to time, such other information regarding the business, operations,
financial condition, prospects, assets, liabilities or properties (including,
without limitation, Company federal, state and local tax returns) of the Company
that any Stockholder may reasonably request.
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8.3.
|
Subsidiaries
|
The
Company shall do all things necessary (including but not limited to removing and
replacing the board of directors of each Subsidiary) to cause its Subsidiaries
to refrain from taking any action that would be prohibited by the Charter or
By-Laws if the Company were to take such action.
8.4 TRS
Tax Election
(i) COPLP
and the Company have signed and filed a joint election for the Company to become
a taxable REIT subsidiary (a “TRS”) of COPLP under
section 856(e) of the Internal Revenue Code of 1986, as amended (the “TRS Election”).
(ii) The
Company agrees (1) to revoke the TRS Election promptly (but no later than three
(3) Business Days following receipt of such form from COPLP) upon receipt of a
completed IRS revocation form from COPLP; provided that all of
the information is complete and accurate as to the Company and (2) not to
engage, either directly or indirectly, in the management of lodging or
healthcare facilities. In the case of any breach by the Company of
either of such covenants in a manner that is materially adverse to COPLP, the
Company shall (A) indemnify COPLP for any losses, damages, liabilities,
reasonable costs and expenses incurred by COPLP in connection with any such
breach and (B) upon notice from COPLP, repurchase all of the Equity Securities
then held by COPLP at a price equal to the then fair market value of such Equity
Securities, as determined by an independent third party valuation professional
selected by COPLP and reasonably acceptable to the Company, plus all expenses
(including reasonable attorneys’ fees) incurred by COPLP in connection with such
subsequent repurchase. The Company shall close such repurchase
promptly, but in no event later than thirty (30) days, after completion of the
such independent valuation, which such repurchase shall be paid in cash at
the closing.
-14-
8.5 Reservation of
Shares
The Company shall maintain a sufficient
number of common shares in reserve for issuance upon exercise of the
Warrants.
9. MISCELLANEOUS
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9.1.
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Legend
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Prior to the closing of a Qualified
Public Offering or so long as such securities
are “restricted
securities”, the certificates or other evidence representing the Equity
Securities shall bear a legend in substantially the following form:
“THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR STATE
SECURITIES LAWS AND CANNOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF REGISTRATION OR THE AVAILABILITY OF AN EXEMPTION FROM REGISTRATION
UNDER THE ACT AND REGULATIONS PROMULGATED THEREUNDER AND APPLICABLE STATE
SECURITIES LAWS, AND PRIOR TO ANY SUCH PROPOSED SALE OR TRANSFER BY ANY HOLDER
OF THE SHARES REPRESENTED HEREBY IN RELIANCE ON ANY SUCH EXEMPTION OR EXEMPTIONS
FROM REGISTRATION, IF REQUESTED BY THE ISSUER HEREOF, SUCH SHAREHOLDER SHALL
HAVE PROVIDED THE ISSUER HEREOF WITH A WRITTEN OPINION FROM LEGAL COUNSEL
REASONABLY ACCEPTABLE TO THE ISSUER HEREOF TO THE EFFECT THAT AN EXEMPTION FROM
REGISTRATION UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS IS AVAILABLE
WITH RESPECT TO THE PROPOSED SALE OR TRANSFER AND THAT NO SUCH REGISTRATION IS
REQUIRED.
THE
VOTING RIGHTS WITH RESPECT TO, AND SALE OR OTHER DISPOSITION OF, THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED BY AND SUBJECT TO THE PROVISIONS
OF AN AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT DATED AS OF MAY 29, 2009, A
COPY OF WHICH IS AVAILABLE FOR INSPECTION AT THE OFFICES OF THE
COMPANY.”
-15-
Promptly
following the execution of this Agreement, to the extent not done so prior
hereto, the Company and each Stockholder shall cause the foregoing legend to be
affixed to each certificate representing outstanding shares of Common
Stock.
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9.2.
|
Specific
Performance
|
In
addition to any other remedies which the Stockholders may have at law or in
equity, the Parties hereby acknowledge that the harm which might result to the
Stockholders from breaches by the other Parties of their respective obligations
to take all necessary actions with respect to the election and the removal of
directors of the Company cannot be adequately compensated by
damages. Accordingly, each Stockholder shall have the right to have
all obligations and undertakings set forth in Sections 2.1 and
2.2 and, with
respect to the board of directors of any Subsidiary of the Company, Section 8.3, specifically
performed by the other Parties and that any other Party shall have the right to
obtain an order or decree of such specific performance in any of the courts of
the United States of America or of any state or other political subdivision
thereof.
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9.3.
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Termination
|
All
agreements, covenants and obligations of the Parties hereunder shall forthwith
become wholly void and of no effect upon the earlier to occur of the following:
(i) the closing date of the first Qualified Public Offering by the Company, or (ii) a
Liquidation.
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9.4.
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Assignment
|
No Party shall assign this Agreement,
in whole or in part, whether by operation of law or otherwise, unless (a) such
person shall have obtained the prior written consent of all the other Parties,
(b) such assignment is in connection with a Transfer of Equity Securities
described in Section
3 hereof, or (c) in the case of the Stockholders, such assignment is to
an Affiliate of such Stockholder. In each case, as a condition to
such assignment, the assignee shall execute and deliver to the Company a Joinder
to this Agreement. Any purported assignment of this Agreement
contrary to the terms hereof shall be null and void and of no force and
effect.
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9.5.
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Entire
Agreement; Amendment
|
This Agreement, including the
exhibits hereto, constitutes the entire agreement among the Parties with respect
to the matters provided for herein, and supersedes all prior oral or written
agreements, commitments or understandings with respect to the matters provided
for herein. This Agreement may not be amended without the written
consent of the Company and the Stockholders holding a majority of the Equity
Securities (on an as-converted into Common Stock basis) held by all of the
Stockholders; provided that, any
amendment of Section 2.1 to the specific
detriment of any Stockholder shall require the additional consent of such
Stockholder; provided, further, that any
amendment to Section
4 may be made with the written consent of only the Company and holders of
a majority of the Equity Securities (on an as-converted into Common Stock basis)
held by the Preemptive Stockholders, and that any amendment to Section 7 must
include the affirmative vote of both (A) COPLP to the extent it then holds
Equity Securities and (B) the Stockholder designated by the holders of a
majority of the Equity Securities (on an as-converted into Common Stock basis)
then held by GEF, the ▇▇▇▇▇▇ Family, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and
Thunderclap.
-16-
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9.6.
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Waiver
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No delay or failure on the part of
any Party in exercising any right, power or privilege under this Agreement or
under any other instruments given in connection with or pursuant to this
Agreement shall impair any such right, power or privilege or be construed as a
waiver of any default or any acquiescence therein. No single or
partial exercise of any such right, power or privilege shall preclude the
further exercise of such right, power or privilege, or the exercise of any other
right, power or privilege. No waiver shall be valid against any Party
unless made in writing and signed by the Party against whom enforcement of such
waiver is sought and then only to the extent expressly specified
therein.
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9.7.
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No
Third Party Beneficiaries
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It is the explicit intention of the
Parties that no person or entity other than a Party is or shall be entitled to
bring any action to enforce any provision of this Agreement against any of the
Parties, and the covenants, undertakings and agreements set forth in this
Agreement shall be solely for the benefit of, and shall be enforceable only by,
the Parties or their respective successors, heirs, executors, administrators,
legal representatives and permitted assigns.
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9.8.
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Binding
Effect
|
This Agreement shall be binding upon
and shall inure to the benefit of the Parties and their respective successors,
heirs, executors, administrators, legal representatives and permitted
assigns.
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9.9.
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Governing
Law
|
This Agreement, the rights and
obligations of the Parties, and any claims or disputes relating thereto, shall
be governed by and construed in accordance with the laws of the State of
Maryland (excluding the choice of law rules thereof).
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9.10.
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Notices
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All notices, demands, requests, or
other communications which may be or are required to be given, served, or sent
by any Party to any other Party pursuant to this Agreement shall be in writing
and shall be hand-delivered or mailed by first-class, registered or certified
mail, return receipt requested, postage prepaid, addressed as
follows:
-17-
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(i)
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If
to the Company:
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile:
▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, CEO
with
a copy (which shall not constitute notice) to:
▇▇▇▇▇
& ▇▇▇▇▇▇▇ L.L.P.
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention:
A. ▇▇▇▇▇ ▇▇▇▇▇▇▇
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(ii)
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If to the Stockholders, to each at its address set forth on Exhibit B. |
Each
Party may designate by notice in writing a new address to which any notice,
demand, request or communication may thereafter be so given, served or
sent. Each notice, demand, request, or communication which shall be
hand-delivered or mailed in the manner described above, shall be deemed
sufficiently given, served, sent, received or delivered for all purposes at such
time as it is delivered to the addressee (with the return receipt or the
delivery receipt, being deemed conclusive, but not exclusive, evidence of such
delivery) or at such time as delivery is refused by the addressee upon
presentation.
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9.11.
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Execution
in Counterparts
|
To facilitate execution, this
Agreement may be executed in as many counterparts as may be required; and it
shall not be necessary that the signatures of, or on behalf of, each Party, or
that the signatures of all persons required to bind any Party, appear on each
counterpart; but it shall be sufficient that the signature of, or on behalf of,
each Party, or that the signatures of the persons required to bind any Party,
appear on one or more of the counterparts. All counterparts shall
collectively constitute a single agreement. It shall not be
necessary in making proof of this Agreement to produce or account for more than
a number of counterparts containing the respective signatures of, or on behalf
of, all of the Parties hereto.
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9.12
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Consent
to Jurisdiction
|
(a) This
Agreement duties and obligations of the Parties hereunder shall be enforceable
against any Party in any Maryland state court or any Federal court located in
the State of Maryland. For such purpose, each Party hereby
irrevocably submits to the non-exclusive jurisdiction of any such
court. All claims in respect of this Agreement may be heard and
determined in any such court.
(b) A
final judgment of any court specified above in any action or proceeding relating
to this Agreement shall be conclusive and may be enforced in other jurisdictions
by suit on the judgment or in any other manner provided by law.
-18-
[remainder
of page intentionally left blank]
-19-
IN WITNESS WHEREOF, the undersigned
have duly executed this Stockholders’ Agreement, or have caused this
Stockholders’ Agreement to be duly executed on their behalf, as of the day and
year first set forth above.
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COMPANY:
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THE
KEYW CORPORATION
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By:
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/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
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Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title:
Chief Executive
Officer
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EXISTING
STOCKHOLDERS:
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CORPORATE
OFFICE PROPERTIES, L.P.
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| By: | Corporate Office Properties Trust, its general partner | |
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By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
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Name:
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
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Title:
|
President
and Chief Executive Officer
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GEF
CAPITAL COMPANY HOLDINGS, LLC
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By:
|
/s/
H. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
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Title:
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||
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THE
▇▇▇▇▇▇ FAMILY, LLC
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By:
|
/s/
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name:
|
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
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Title:
|
Director
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THUNDERCLAP
HOLDINGS, LLC
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By:
|
/s/
H. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
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||
|
Title:
|
||
|
/s/
▇▇▇▇▇ ▇▇▇▇▇▇
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||
|
▇▇▇▇▇
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[signatures
continue on the following page]
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NEW
STOCKHOLDERS:
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VEDANTA
OPPORTUNITIES FUND, L.P.
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| By: Vedanta Associates, LP, its general partner | ||
| By: Vedanta Partners, LLC, its general partner | ||
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By:
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/s/
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Name:
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Title:
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Managing
Partner
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ALPHA
TECHNOLOGY LTD.
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By:
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By:
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By:
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/s/
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Name:
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Title:
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Director
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▇▇▇▇
▇. ▇▇▇▇▇▇ REVOCABLE TRUST U/A DATED MARCH 9, 2004
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W.
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EXHIBIT
A
DEFINITIONS
“Act” shall mean the
Securities Act of 1933, as amended.
“Affiliate” shall mean: (a)
with respect to an individual, (i) a spouse, lineal ancestor or descendant,
father, mother, father or mother-in-law, brother or sister, brother or
sister-in-law, aunts, uncles, nieces, nephews of such person; (ii) a transferee
of such person by way of will or the laws of descent and distribution; (iii) a
trust for the benefit of such person or an Affiliate of such person; (iv) a
family limited partnership or family limited liability company organized by such
person or an Affiliate of such person; or (v) any strategic advisor to the
Company or any of its Affiliates; (b) with respect to an entity, (i) any officer
or director of such entity, or (ii) any stockholder, partner, member or investor
holding not less than 15% of the voting power, directly or indirectly, with
respect to such entity; and (c) with respect to an individual or entity, any
individual or entity which directly or indirectly, through one or more
intermediaries, Controls, is Controlled by, or is under common Control with such
individual or entity, including, without limitation, any venture capital fund
now or hereafter existing which Controls, is Controlled by or under common
Control with one or more general partners or shares the same management
company.
“Business Day” shall
mean Monday through Friday and shall exclude any federal or religious
holidays.
“By-Laws” shall mean
the By-Laws of the Company, as amended from time to time as of the date
hereof.
“Charter” shall mean
the Amended and Restated Articles of Incorporation of the Company as filed on
August 22, 2008 with the Maryland State Department of Assessments and Taxation,
as amended from time to time as of the date hereof.
“Common Stock” shall
mean up to thirty five million (35,000,000) shares of the Company’s capital
stock issued as common stock of the Company, par value of one tenth of one cent
($0.001) per share.
“Control” shall mean
possession, directly or indirectly, of power to direct or cause the direction of
management or policies (whether through ownership of voting securities, by
Agreement or otherwise).
“Equity Securities”
shall mean the capital stock of the Company, including the Common Stock and the
Preferred Stock, and any warrants or other rights to subscribe for or to
purchase, or any options for the purchase of, capital stock, any security
convertible into or exchangeable for capital stock (including convertible debt
securities) or any other security or interest in the Company whether or not
convertible into or exchangeable for capital stock of the
Company.
“Liquidation” shall
mean: (i) the liquidation, dissolution or winding-up of the Company, (ii) the
sale or lease of all or substantially all of the assets of the Company or (iii)
a share exchange, reorganization, recapitalization, or merger or consolidation
of the Company with or into any other corporation or corporations (or other form
of business entity) or of any other corporation or corporations (or other form
of business entity) with or into the Company, but excluding any merger effected
exclusively for the purpose of changing the domicile of the Company); provided, however, that a Liquidation
shall not include a share exchange, reorganization, recapitalization, merger or
consolidation involving the Company or a subsidiary in which the holders of
shares of the Company’s voting stock outstanding immediately prior to such
transaction continue to hold at least a majority, by voting power, of the
capital stock of (1) the surviving or resulting corporation (or other form of
business entity) or (2) if the surviving or resulting corporation (or other
form of business entity) is a wholly owned subsidiary of another corporation (or
other form of business entity) immediately following such transaction, the
parent corporation (or other form of business entity) of such surviving or
resulting corporation (or other form of business entity).
“New Securities” shall
mean any Equity Securities of the Company, whether now authorized or not, but
shall not include: (a) shares of Common Stock to be issued upon the exercise of
warrants or options which were outstanding as of the date of Closing, (b) shares
of Common Stock issued to officers, directors or employees of the Company upon
the exercise of options issued to such persons, under any stock option or other
equity incentive plan approved by the Board of Directors, (c) securities offered
as consideration for any business combination between the Company and another
corporation or entity approved by the Board of Directors or (d) securities
offered in an Qualified Public Offering.
“Preemptive
Stockholders” shall mean each of the Stockholders.
“Preferred Stock”
shall mean up to five million (5,000,000) shares of the Company’s capital stock,
par value of one tenth of one cent ($0.001) per share, in one or more classes or
series and with rights, preferences and privileges established by the Board of
Directors.
“Qualified Public
Offering” shall mean a firm commitment underwritten public offering of
shares of Common Stock through a nationally recognized underwriter in which the
aggregate proceeds to the Company from the sales of such shares to the public is
at least (a) $30,000,000, but only if the price per share of Common Stock is at
least $8.00 and the Common Stock is listed on a national stock exchange or (b)
$50,000,000.
“Related Transaction”
shall mean the acquisition of any Equity Securities that have voting privileges
by a Third Party or any Affiliate of such Third Party during the twenty-four
month period preceding the date for which a determination is to be made under
Section 5.1(A).
-2-
“Subsidiary” shall
mean, with respect to any person, any corporation, limited liability company,
partnership, association or other entity (a) of which securities or other
ownership interests representing more than fifty percent (50%) of the equity or
more than fifty percent (50%) of the ordinary voting power or, in the case of a
partnership, any general partnership interests are, as of such date, owned,
Controlled or held by such person or one or more Subsidiaries of such person or
by such person and one or more Subsidiaries of such person, or (b) that is, as
of such date, otherwise Controlled by such person or one or more Subsidiaries of
such person or by such person and one or more Subsidiaries of such
person.
“Third Party” shall
mean any person or entity excluding each of the following: (a) the
Company and any Affiliate or associate of the Company or (b) each of the
Stockholders and any of their respective successors, officers, directors,
Affiliates or associates, and partners (limited and general).
“Third Party Offer”
shall mean an offer by a Third Party to acquire any of the Equity
Securities.
“Transfer” shall mean
the sale, gift, mortgage, pledge, exchange, assignment or other disposition or
transfer, including a disposition under judicial order, legal process,
execution, attachment or enforcement of an encumbrance, but shall not include a
transfer by a Stockholder to an Affiliate or any limited or general partner
thereof; provided that the
transferee shall hold the Equity Securities subject to the terms of this
Agreement and, as a condition precedent to such transfers, shall be required to
execute and deliver a Joinder to this Agreement.
-3-
EXHIBIT
B
STOCKHOLDERS
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Name
|
Address
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Corporate
Office Properties, L.P.
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c/o
Corporate Office Properties Trust
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
General Counsel
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▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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The
▇▇▇▇▇▇ Family, LLC
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▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇,
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GEF
Capital Company Holdings, LLC
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Thunderclap
Holdings, LLC
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▇▇▇▇
▇. ▇▇▇▇▇▇ Revocable Trust u/a dated March 9, 2004
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Vedanta
Opportunities Fund, L.P.
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▇▇▇
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Alpha
Technology Ltd.
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c/o
UBS International
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EXHIBIT
C
FORM
OF COUNTERPART AND JOINDER AGREEMENT
The
undersigned hereby joins the Amended and Restated Stockholders’ Agreement, dated
as of May 29, 2009 (the “Stockholders’ Agreement”), by and
among The KEYW Corporation, a Maryland corporation (the “Company”), and
certain stockholders of the Company. The undersigned acknowledges and
agrees that the undersigned shall be deemed a Stockholder under the
Stockholders’ Agreement, subject to the terms and conditions of the
Stockholders’ Agreement.
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STOCKHOLDER:
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[Stockholder]
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ACCEPTED
AND AGREED:
THE
KEYW CORPORATION
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By:
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Name:
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Title:
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Date:
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JOINDER
AGREEMENT
The
undersigned hereby join the Amended and Restated Stockholders’ Agreement, dated
as of May 29, 2009 (the “Stockholders’
Agreement”), by and among The KEYW Corporation, a Maryland corporation
(the “Company”), and
certain stockholders of the Company which Stockholders’ Agreement has been
assigned to and assumed by The KEYW Holding Corporation, a Maryland corporation
(“HoldCo”), in
connection with a reorganization effected on December 29, 2009. The
undersigned acknowledge and agree that the undersigned shall be deemed
Stockholders under the Stockholders’ Agreement, subject to the terms and
conditions of the Stockholders’ Agreement.
The
undersigned hereby join the Amended and Restated Registration Rights Agreement,
dated as of May 29, 2009 (the “Registration Rights
Agreement”), by and among the Company and certain investors of the
Company which Registration Rights Agreement has been assigned to and assumed by
HoldCo in connection with a reorganization effected on December 29,
2009. The undersigned acknowledge and agree that the undersigned
shall be deemed Investors under the Registration Rights Agreement, subject to
the terms and conditions of the Registration Rights Agreement.
The
parties hereto hereby acknowledge and agree that this Joinder Agreement shall
not be effective unless and until shares of HoldCo common stock are issued to
the undersigned and/or their affiliates.
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STOCKHOLDERS/INVESTORS:
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/s/
▇▇▇▇▇ ▇. Wilshere
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▇▇▇▇▇
▇. Wilshere
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/s/
D. ▇▇▇▇▇▇▇ ▇▇▇▇▇
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D.
▇▇▇▇▇▇▇ ▇▇▇▇▇
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ACCEPTED
AND AGREED:
THE
KEYW HOLDING CORPORATION
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By:
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/s/
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Chief
Financial Officer
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Date:
February 22,
2010
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JOINDER
AGREEMENT
The
undersigned hereby joins the Amended and Restated Stockholders’ Agreement, dated
as of May 29, 2009 (the “Stockholders’
Agreement”), by and among The KEYW Corporation, a Maryland corporation
(the “Company”), and
certain stockholders of the Company which Stockholders’ Agreement has been
assigned to and assumed by The KEYW Holding Corporation, a Maryland corporation
(“HoldCo”), in
connection with a reorganization effected on December 29, 2009. The
undersigned acknowledges and agrees that the undersigned shall be deemed a
Stockholder under the Stockholders’ Agreement, subject to the terms and
conditions of the Stockholders’ Agreement.
The
undersigned hereby joins the Amended and Restated Registration Rights Agreement,
dated as of May 29, 2009 (the “Registration Rights
Agreement”), by and among the Company and certain investors of the
Company which Registration Rights Agreement has been assigned to and assumed by
HoldCo in connection with a reorganization effected on December 29,
2009. The undersigned acknowledges and agrees that the undersigned
shall be deemed an Investor under the Registration Rights Agreement, subject to
the terms and conditions of the Registration Rights Agreement.
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STOCKHOLDER/INVESTOR:
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/s/
▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇
▇▇▇▇
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ACCEPTED
AND AGREED:
THE
KEYW HOLDING CORPORATION
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/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Chief
Executive Officer
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Date:
March 15,
2010
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