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EXHIBIT 10.26
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (this "Stockholders Agreement") dated as of
May 26, 1999, is entered into by and among Cooperative Computing Holding
Company, Inc., a Delaware corporation (the "Company"), and the securityholders
listed on the signature pages hereof.
WHEREAS, Hicks, Muse, Xxxx & Xxxxx Equity Fund III, L.P., a Delaware
limited partnership ("HMTF Fund III"), HM3 Coinvestors, L.P., a Delaware limited
partnership and affiliate of HMTF Fund III, Xxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx,
Xx., A. Xxxxxxxx Xxxxx, and Cooperative Computing Holding Company, Inc., a Texas
corporation ("Parent"), are parties to that certain Stockholders Agreement dated
effective as of February 27, 1999 (the "Parent Stockholders Agreement");
WHEREAS, pursuant to the terms of a letter agreement, dated as of May
13, 1999, among HMTF Fund III, Xxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx, Xx. and a
letter agreement, dated as of May 17, 1999, between HMTF Fund III and Parent
(such letter agreements being referred to collectively herein as the "Commitment
Letter"), HMTF Fund III has agreed to committed to make an equity investment in
Parent, subject to the terms and conditions set forth in the Commitment Letter;
WHEREAS, the Commitment Letter required, among other things, as a
condition precedent to the HMTF Fund III's obligation to make the referenced
equity investment in Parent that all existing documents pertaining to the
corporate governance of Parent (including, without limitation, Parent's articles
of incorporation and bylaws and the Parent Stockholders Agreement) be amended
to, among other things, (A) create an Executive Committee having sole authority
over the strategic, operating and financial decisions of the Company as well as
any sale or recapitalization of the Company and (B) modify certain minority
stockholder rights presently provided for therein;
WHEREAS, Parent, Messrs. Xxxxx Xxxxxx and Xxxxxxx Xxxxxx, and HMTF Fund
III determined (i) that it is desirable to reincorporate Parent as a Delaware
corporation by merging Parent with and into the Company, with the Company being
the surviving corporation of such merger (the "Surviving Corporation"), (ii) to
effect the equity investment in Parent contemplated by the Commitment Letter by
means of an investment in the Surviving Corporation, and (iii) to effect the
referenced changes to the documents pertaining to the corporate governance of
Parent through the certificate of incorporation and bylaws of the Surviving
Corporation and by entering into this Stockholders Agreement as a novation of
the Parent Stockholders Agreement; and
WHEREAS, the Board of Directors of the Company has deemed this
Agreement to be advisable and in the best interests of the Company and its
stockholders;
NOW, THEREFORE, in consideration of the premises, mutual covenants and
agreements hereinafter contained and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
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ARTICLE 1
DEFINITIONS
SECTION 1.1 Definitions.
"ACCREDITED INVESTOR" means an "Accredited Investor," as defined in
Regulation D, or any successor rule then in effect.
"ACCREDITED OFFEREE" shall have the meaning provided in Section 4.1.1
hereof.
"ADVICE" shall have the meaning provided in Section 3.5 hereof.
"AFFILIATE" means, with respect to any Person, any Person who, directly
or indirectly, controls, is controlled by or is under common control with that
Person.
"AFFILIATED SUCCESSOR" shall have the meaning provided in Section 4.1.1
hereof.
"BUSINESS DAY" means a day that is not a Legal Holiday.
"CCI" means Cooperative Computing, Inc, a Delaware corporation and
wholly-owned Subsidiary of the Company.
"CLASS A COMMON STOCK" means shares of the Class A Common Stock, par
value $.000125 per share, of the Company, and any capital stock into which such
Class A Common Stock thereafter may be changed.
"COMMON STOCK" means shares of the Common Stock, par value $.000125 per
share, of the Company, and any capital stock into which such Common Stock
thereafter may be changed.
"COMMON STOCK EQUIVALENTS" means, without duplication with any other
Common Stock or Common Stock Equivalents, any rights, warrants, options,
convertible securities or indebtedness, exchangeable securities or indebtedness,
or other rights, exercisable for or convertible or exchangeable into, directly
or indirectly, Common Stock of the Company and securities convertible or
exchangeable into Common Stock of the Company, whether at the time of issuance
or upon the passage of time or the occurrence of some future event.
"COMPANY" shall have the meaning set forth in the introductory
paragraph hereof.
"DEMAND REGISTRATION" shall have the meaning set forth in Section 3.1.1
hereof.
"DEMAND REQUEST" shall have the meaning set forth in Section 3.1.1
hereof.
"DESIGNATED STOCKHOLDERS" means, collectively, Xxxxx X. Xxxxxx and
Xxxxxxx X. Xxxxxx. Any action required to be taken or right which is exercisable
by the Designated Stockholders hereunder, unless otherwise specified, will be
determined by the Designated Stockholders owning a majority of the Common Stock
then owned by all Designated Stockholders.
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"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"EXCLUDED REGISTRATION" means a registration under the Securities Act
of (i) securities pursuant to one or more Demand Registrations pursuant to
Section 3 hereof, (ii) securities registered on Form S-8 or any similar
successor form and (iii) securities registered to effect the acquisition of or
combination with another Person.
"FULLY-DILUTED COMMON STOCK" means, at any time, the then outstanding
Common Stock of the Company plus (without duplication) all shares of Common
Stock issuable, whether at such time or upon the passage of time or the
occurrence of future events, upon the exercise, conversion, or exchange of all
then-outstanding Common Stock Equivalents.
"HMC GROUP" means HMTF and its Affiliates and its and their respective
officers, directors, and employees (and members of their respective families and
trusts for the primary benefit of such family members).
"HMC GROUP DESIGNEE" shall have the meaning set forth in Section 2.1.1.
"HMTF" means Hicks, Muse, Xxxx & Xxxxx Incorporated, a Texas
corporation.
"HMTF FUND III" shall have the meaning set forth in the recitals
hereto.
"HOLDER" means (i) a securityholder listed on the signature page hereof
and (ii) any direct or indirect transferee of any such securityholder who shall
become a party to this Stockholders Agreement.
"INDEPENDENT DIRECTOR" means a Person who is not (i) a member of the
HMC Group, (ii) a Designated Stockholder or (iii) an employee of the Company or
any of its Subsidiaries or a member of the family of any such employee.
"LEGAL HOLIDAY" shall have the meaning provided in Section 9.2 hereof.
"MATERIAL ADVERSE EFFECT" shall have the meaning provided in Section
3.1.4 hereof.
"NASD" shall have the meaning provided in Section 3.6 hereof.
"OFFERED SECURITIES" shall have the meaning provided in Section 4.1.1
hereof.
"OFFER NOTICE" shall have the meaning provided in Section 4.1.1 hereof.
"PARTICIPATION OFFER" shall have the meaning provided in Section 4.3.1
hereof.
"PERSON OR PERSON" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or other agency or political
subdivision thereof.
"PREEMPTIVE RIGHTS OFFER" shall have the meaning provided in Section
4.1.1 hereof.
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"PREEMPTIVE RIGHTS TRANSACTION" shall have the meaning provided in
Section 4.1.1 hereof.
"QUALIFIED IPO" means a firm commitment underwritten public offering of
Common Stock pursuant to a registration statement under the Securities Act, the
proceeds of which to the Company (prior to deducting any underwriters' discounts
and commissions) exceed $30 million.
"REGISTRABLE SHARES" means at any time the Common Stock of the Company
owned by the Holders, whether owned on the date hereof or acquired hereafter;
provided, however, that Registrable Shares shall not include any shares (i) the
sale of which has been registered pursuant to the Securities Act and which
shares have been sold pursuant to such registration, or (ii) which have been
sold to the public pursuant to Rule 144 or 144A of the SEC under the Securities
Act.
"REGISTRATION EXPENSES" shall have the meaning provided in Section 3.6
hereof.
"REGULATION D" means Regulation D promulgated under the Securities Act
by the SEC.
"REQUIRED FILING DATE" shall have the meaning provided in Section
3.1.1(b) hereof.
"REQUIRED HOLDERS" means Holders who then own beneficially more than
66-2/3% of the aggregate number of shares of Common Stock subject to this
Stockholder Agreement.
"SEC" means the Securities and Exchange Commission.
"SECURITIES" means the Common Stock.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
"SELLER AFFILIATES" shall have the meaning provided in Section 3.7.1
hereof.
"STOCKHOLDERS AGREEMENT" means this Stockholders Agreement, as such
from time to time may be amended.
"SUBSIDIARY" of any Person means (i) a corporation a majority of whose
outstanding shares of capital stock or other equity interests with voting power,
under ordinary circumstances, to elect directors, is at the time, directly or
indirectly, owned by such Person, by one or more subsidiaries of such Person or
by such Person and one or more subsidiaries of such Person, and (ii) any other
Person (other than a corporation) in which such Person, a subsidiary of such
Person or such Person and one or more subsidiaries of such Person, directly or
indirectly, at the date of determination thereof, has (x) at least a majority
ownership interest or (y) the power to elect or direct the election of the
directors or other governing body of such Person.
"SUSPENSION NOTICE" shall have the meaning provided in Section 3.5
hereof.
"TRANSFER" means any disposition of any Security or any interest
therein that would constitute a "sale" thereof within the meaning of the
Securities Act.
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"TRANSFER NOTICE" shall have the meaning provided in Section 5.3
hereof.
SECTION 1.2 Rules of Construction.
Unless the context otherwise requires
(1) a term has the meaning assigned to it;
(2) "or" is not exclusive;
(3) words in the singular include the plural, and words in the
plural include the singular;
(4) provisions apply to successive events and transactions;
and
(5) "herein," "hereof" and other words of similar import refer
to this Agreement as a whole and not to any particular Article, Section
or other subdivision.
ARTICLE 2
MANAGEMENT OF THE COMPANY AND CERTAIN ACTIVITIES
SECTION 2.1 Board of Directors.
2.1.1 Board Representation. Subject to Section 2.1.4, the HMC Group
shall be entitled to designate to each of the Boards of Directors of the Company
and CCI (i) four individuals at all such times as the HMC Group owns, in the
aggregate, at least ten percent (10%) of the outstanding shares of the Company's
voting capital stock and (ii) one individual at all such times as the HMC Group
owns, in the aggregate, at least five percent (5%) but less than ten percent
(10%) of the outstanding shares of the Company's voting capital stock (such
designees being referred to herein individually as an "HMC Designee" and
collectively as the "HMC Designees"). Subject to Section 2.1.4., the Designated
Stockholders shall be entitled to designate to each of the Boards of Directors
of the Company and CCI (i) two individuals at all such times as the Designated
Stockholders own, in the aggregate, at least ten percent (10%) of the
outstanding shares of the Company's voting capital stock and (ii) one individual
at all such times as the Designated Stockholders own, in the aggregate, at least
five percent (5%) but less than ten percent (10%) of the outstanding shares of
the Company's voting capital stock (such designees being referred to herein
individually as a "Designated Stockholders Designee" and collectively as the
"Designated Stockholders Designees", and together with the HMC Designees, as the
"Designees"). The remaining positions on each of the Boards of Directors of the
Company and CCI shall be filled by Independent Directors mutually acceptable to
HMTF and the Designated Stockholders. Each Holder and the Company shall vote his
or its shares of Common Stock, Class A Common Stock or capital stock of CCI, as
the case may be, at any regular or special meeting of stockholders of the
Company or CCI, as the case may be, or in any written consent executed in lieu
of such a meeting of stockholders and shall take all other actions necessary to
give effect to the agreements contained in this Agreement (including, without
limitation, the election of Persons designated by the HMC Group or the
Designated Stockholders to be elected
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as directors as described in the preceding sentences) and to ensure that the
certificate of incorporation and bylaws of the Company and CCI do not at any
time conflict in any respect with the provisions of this Stockholders Agreement.
In order to effectuate the provisions of this Section 2, each Holder and the
Company hereby agree that when any action or vote is required to be taken by
such Holder or the Company pursuant to this Stockholders Agreement, such Holder
or the Company, as the case may be, shall use his or its best efforts to call,
or cause the appropriate officers and directors of the Company or CCI, as the
case may be, to call, a special or annual meeting of stockholders of the Company
or CCI, as the case may be, or execute or cause to be executed a consent in
writing in lieu of any such meetings pursuant to the applicable provisions of
the General Corporation Law of the State of Delaware.
2.1.2 Vacancies. If, prior to his election to the Board of Directors
of the Company pursuant to Section 2.1.1 hereof, any Designee shall be unable or
unwilling to serve as a director of the Company, the Holder or Holders who
nominated such Designee shall be entitled to nominate a replacement who shall
then be a Designee for purposes of this Section 2. If, following an election to
the Board of Directors of the Company pursuant to Section 2.1.1 hereof, any
Designee shall resign or be removed or be unable to serve for any reason prior
to the expiration of his term as a director of the Company, the Holder or
Holders who nominated such director shall, within 30 days of such event, notify
the Board of Directors of the Company in writing of a replacement Designee, and
either (i) the Holders shall vote their shares of Common Stock, at any regular
or special meeting called for the purpose of filling positions on the Board of
Directors of the Company or in any written consent executed in lieu of such a
meeting of stockholders, and shall take all such other actions necessary to
ensure the election to the Board of Directors of the Company of such replacement
Designee to fill the unexpired term of the Designee who such new Designee is
replacing or (ii) the Board of Directors shall elect such replacement Designee
to fill the unexpired term of the Designee who such new Designee is replacing.
If the HMC Group requests that any HMC Designee, or the Designated Stockholders
request that any Designated Stockholder Designee, be removed as a director (with
or without cause), by written notice thereof to the Company, then the Company
shall take all actions necessary to effect, and each of the Holders shall vote
all its or his capital stock in favor of, such removal upon such request.
2.1.3 Executive Committee. Subject to Section 2.1.1, the Company and
the Holders shall cause the Executive Committee of the Board of Directors of the
Company to be comprised of three HMC Designees and two Designated Stockholders
Designees.
2.1.4 Termination of Rights. The right of the HMC Group to designate
directors under Section 2.1.1, and the obligation of the Holders to vote their
shares as provided herein, shall terminate upon the first to occur of (i) the
termination or expiration of this Stockholders Agreement or this Article 2, (ii)
such time as the HMC Group elects in writing to terminate its rights under this
Article 2, or (iii) such time as the HMC Group ceases to own any shares of the
Company's capital stock. The right of the Designated Stockholders to designate
directors under Section 2.1.1, and the obligation of the Holders to vote their
shares as provided herein, shall terminate upon the first to occur of (i) the
termination or expiration of this Stockholders Agreement or this Article 2, (ii)
such time as a majority in interest of the Designated Stockholders elect in
writing to terminate their rights under this Article 2, or (iii) such time as
the Designated Stockholders cease to own any shares of Common Stock.
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2.1.5 Costs and Expenses. The Company will pay all reasonable
out-of-pocket expenses incurred by Designees in connection with their
participation in meetings of the Board of Directors (and committees thereof) of
the Company and the Boards of Directors (and committees thereof) of the
Subsidiaries of the Company.
SECTION 2.2 Voting of Capital Stock.
To the extent any Holder owns shares of any class or series of capital
stock of the Company or any Subsidiary of the Company which it may vote on any
particular matter which comes before such corporation's stockholders, as a class
or series separate from the common stock of such corporation ordinarily entitled
to vote for the election of directors, such Holder shall vote all such shares on
such matter in such separate class or series vote as holders of a majority of
the outstanding shares of common stock of such corporation vote thereon;
provided, however, that such Holder may nevertheless vote such shares as a
separate class or series without regard to the provisions of this Section 2.2 in
respect of (a) amendments to the certificate of incorporation of such
corporation, or the certificate of designation which created such class or
series, which change the provisions thereof expressly applicable to such
separate class or series, and (b) any matter as to which such class or series is
expressly entitled to vote as a separate class or series pursuant to such
corporation's certificate of incorporation or the certificate of designation
which created such class or series; provided further, however, that any
statement in such certificate of incorporation or certificate of designation
that such class or series may vote as a separate class or series "as required by
law" or similar language shall not permit such class or series to be voted
without regard to the provisions of this Section 2.2.
SECTION 2.3 Other Activities of the Holders; Fiduciary Duties.
It is understood and accepted that the Holders and their Affiliates
have interests in other business ventures which may be in conflict with the
activities of the Company and its Subsidiaries and that, subject to applicable
law and Article 8 of this Agreement, nothing in this Stockholders Agreement
shall limit the current or future business activities of the Holders whether or
not such activities are competitive with those of the Company and its
Subsidiaries. Nothing in this Agreement, express or implied, shall relieve any
officer or director of the Company or any of its Subsidiaries, or any Holder, of
any fiduciary or other duties or obligations they may have to the Company's
stockholders.
ARTICLE 3
REGISTRATION RIGHTS
SECTION 3.1 Demand Registration.
3.1.1 Request for Registration.
(a) At any time after the earlier of the consummation of a
Qualified IPO or February 27, 2002, either (i) members of the HMC Group owning
35% or more of the aggregate number of Registrable Shares then owned by the HMC
Group or (ii) Designated Stockholders owning a majority of the Registrable
Shares then owned by the Designated Stockholders may
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request the Company, in writing (a "Demand Request"), to effect the registration
under the Securities Act of all or part of its or their Registrable Shares (a
"Demand Registration"); provided, however, that the Designated Holders may not
make a Demand Request pursuant to this Section 3.1.1 until the HMC Group shall
have made a Demand Request.
(b) Each Demand Request shall specify the number of
Registrable Shares proposed to be sold. Subject to Section 3.1.6, the
Company shall file the Demand Registration within 90 days after
receiving a Demand Request (the "Required Filing Date") and shall use
all commercially reasonable efforts to cause the same to be declared
effective by the SEC as promptly as practicable after such filing;
provided, however, that the Company need effect only three Demand
Registrations at the request of the HMC Group and three Demand
Registrations at the request of the Designated Stockholders.
3.1.2 Effective Registration and Expenses. A registration will not
count as a Demand Registration until it has become effective (unless the
Requesting Holders withdraw all their Registrable Shares and the Company has
performed its obligations hereunder in all material respects, in which case such
demand will count as a Demand Registration unless the Requesting Holders pay all
Registration Expenses, as hereinafter defined, in connection with such withdrawn
registration); provided, however, that if, after it has become effective, an
offering of Registrable Shares pursuant to a registration is interfered with by
any stop order, injunction, or other order or requirement of the SEC or other
governmental agency or court, such registration will be deemed not to have been
effected and will not count as a Demand Registration.
3.1.3 Selection of Underwriters. The offering of Registrable Shares
pursuant to a Demand Registration shall be in the form of a "firm commitment"
underwritten offering. The Requesting Holders of a majority of the Registrable
Shares to be registered in a Demand Registration shall select the investment
banking firm or firms to manage the underwritten offering; provided, however,
that such selection shall be subject to the consent of the Company, which
consent shall not be unreasonably withheld.
3.1.4 Priority on Demand Registrations. No securities to be sold for
the account of any Person (including the Company) other than a Requesting Holder
shall be included in a Demand Registration unless the managing underwriter or
underwriters shall advise the Company or the Requesting Holders in writing that
the inclusion of such securities will not materially and adversely affect the
price or success of the offering (a "Material Adverse Effect"). Furthermore, in
the event the managing underwriter or underwriters shall advise the Company or
the Requesting Holders that even after exclusion of all securities of other
Persons pursuant to the immediately preceding sentence, the amount of
Registrable Shares proposed to be included in such Demand Registration by
Requesting Holders is sufficiently large to cause a Material Adverse Effect, the
Registrable Shares of the Requesting Holders to be included in such Demand
Registration shall equal the number of shares which the Company is so advised
can be sold in such offering without a Material Adverse Effect and such shares
shall be allocated pro rata among the Requesting Holders on the basis of the
number of Registrable Shares requested to be included in such registration by
each such Requesting Holder; provided, however, that if any Registrable Shares
of the HMC Group or the Designated Holders (as a group) (each of the foregoing,
a "Holder Group") requested to be registered pursuant to a Demand Request under
Section 3.1.1 are excluded from a registration pursuant to this Section 3.1.4,
such Holder Group
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having shares so excluded shall have the right to withdraw all, but not less
than all, such shares from such registration and such registration will not
count as a Demand Registration with respect to such Holder Group.
3.1.5 Rights of Nonrequesting Holders. Upon receipt of any Demand
Request, the Company shall promptly (but in any event within 10 days) give
written notice of such proposed Demand Registration to all other Holders
entitled to registration rights under this Section 3.1, who shall have the
right, exercisable by written notice to the Company within 20 days of their
receipt of the Company's notice, to elect to include in such Demand Registration
such portion of their Registrable Securities as they may request. All Holders
requesting to have their Registrable Shares included in a Demand Registration in
accordance with the preceding sentence shall be deemed to be "Requesting
Holders" for purposes of this Section 3.1 (other than Section 3.1.1); provided,
however, if any member of any Holder Group participates as a Requesting Holder
in a Demand Registration such Holder's participation shall be counted as a
Demand Request of such Holder's respective Holder Group.
3.1.6 Deferral of Filing. The Company may defer the filing (but not
the preparation) of a registration statement required by Section 3.1 until a
date not later than 180 days after the Required Filing Date (or, if longer, 180
days after the effective date of the registration statement contemplated by
clause (ii) below) if (i) at the time the Company receives the Demand Request,
the Company or any of its Subsidiaries are engaged in confidential negotiations
or other confidential business activities, disclosure of which would be required
in such registration statement (but would not be required if such registration
statement were not filed), and the Board of Directors of the Company determines
in good faith that such disclosure would be materially detrimental to the
Company and its stockholders or would have a material adverse effect on any such
confidential negotiations or other confidential business activities, or (ii)
prior to receiving the Demand Request, the Board of Directors had determined to
effect a registered underwritten public offering of the Company's securities for
the Company's account and the Company had taken substantial steps (including,
but not limited to, selecting a managing underwriter for such offering) and is
proceeding with reasonable diligence to effect such offering. A deferral of the
filing of a registration statement pursuant to this Section 3.1.6 shall be
lifted, and the requested registration statement shall be filed forthwith, if in
the case of a deferral pursuant to clause (i) of the preceding sentence, the
negotiations or other activities are disclosed or terminated, or, in the case of
a deferral pursuant to clause (ii) of the preceding sentence, the proposed
registration for the Company's account is abandoned. In order to defer the
filing of a registration statement pursuant to this Section 3.1.6, the Company
shall promptly (but in any event within 10 days), upon determining to seek such
deferral, deliver to each Requesting Holder a certificate signed by an executive
officer of the Company stating that the Company is deferring such filing
pursuant to this Section 3.1.6 and a general statement of the reason for such
deferral and an approximation of the anticipated delay. Within 20 days after
receiving such certificate, the holders of a majority of the Registrable Shares
held by the Requesting Holders and for which registration was previously
requested may withdraw such Demand Request by giving notice to the Company; if
withdrawn, the Demand Request shall be deemed not to have been made for all
purposes of this Agreement. The Company may defer the filing of a particular
registration statement pursuant to this Section 3.1.6 only once.
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SECTION 3.2 Piggyback Registrations.
3.2.1 Right to Piggyback. Each time the Company proposes to register
any of its equity securities (other than pursuant to an Excluded Registration)
under the Securities Act for sale to the public (whether for the account of the
Company or the account of any securityholder of the Company) and the form of
registration statement to be used permits the registration of Registrable
Shares, the Company shall give prompt written notice to each Holder of
Registrable Shares (which notice shall be given not less than 30 days prior to
the effective date of the Company's registration statement), which notice shall
offer each such Holder the opportunity to include any or all of its or his
Registrable Shares in such registration statement, subject to the limitations
contained in Section 3.2.2 hereof. Each Holder who desires to have its or his
Registrable Shares included in such registration statement shall so advise the
Company in writing (stating the number of shares desired to be registered)
within 20 days after the date of such notice from the Company. Any Holder shall
have the right to withdraw such Holder's request for inclusion of such Holder's
Registrable Shares in any registration statement pursuant to this Section 3.2.1
by giving written notice to the Company of such withdrawal. Subject to Section
3.2.2 below, the Company shall include in such registration statement all such
Registrable Shares so requested to be included therein; provided, however, that
the Company may at any time withdraw or cease proceeding with any such
registration if it shall at the same time withdraw or cease proceeding with the
registration of all other equity securities originally proposed to be
registered.
3.2.2 Priority on Registrations. If the Registrable Shares requested
to be included in the registration statement by any Holder differ from the type
of securities proposed to be registered by the Company and the managing
underwriter advises the Company that due to such differences the inclusion of
such Registrable Shares would cause a Material Adverse Effect, then (i) the
number of such Holder's or Holders' Registrable Shares to be included in the
registration statement shall be reduced to an amount which, in the judgment of
the managing underwriter, would eliminate such Material Adverse Effect or (ii)
if no such reduction would, in the judgment of the managing underwriter,
eliminate such Material Adverse Effect, then the Company shall have the right to
exclude all such Registrable Shares from such registration statement provided no
other securities of such type are included and offered for the account of any
other Person in such registration statement. Any partial reduction in the number
of Registrable Shares to be included in the registration statement pursuant to
clause (i) of the immediately preceding sentence shall be effected pro rata
based on the ratio which such Holder's requested shares bears to the total
number of shares requested to be included in such registration statement by all
Persons (including Requesting Holders) who have requested (pursuant to
contractual registration rights) that their shares be included in such
registration statement. If the Registrable Shares requested to be included in
the registration statement are of the same type as the securities being
registered by the Company and the managing underwriter advises the Company that
the inclusion of such Registrable Shares would cause a Material Adverse Effect,
the Company will be obligated to include in such registration statement, as to
each Requesting Holder, only a portion of the shares such Holder has requested
be registered equal to the ratio which such Holder's requested shares bears to
the total number of shares requested to be included in such registration
statement by all Persons (including Requesting Holders) who have requested
(pursuant to contractual registration rights) that their shares be included in
such registration statement. If as a result of the provisions of this Section
3.2.2 any Holder shall not be entitled to
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include all Registrable Securities in a registration that such Holder has
requested to be so included, such Holder may withdraw such Holder's request to
include Registrable Shares in such registration statement. No Person may
participate in any registration statement hereunder unless such Person (x)
agrees to sell such person's Registrable Shares on the basis provided in any
underwriting arrangements approved by the Company and (y) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements,
and other documents reasonably required under the terms of such underwriting
arrangements; provided, however, that no such Person shall be required to make
any representations or warranties in connection with any such registration other
than representations and warranties as to (i) such Person's ownership of his or
its Registrable Shares to be sold or transferred free and clear of all liens,
claims, and encumbrances, (ii) such Person's power and authority to effect such
transfer, and (iii) such matters pertaining to compliance with securities laws
as may be reasonably requested; provided further, however, that the obligation
of such Person to indemnify pursuant to any such underwriting arrangements shall
be several, not joint and several, among such Persons selling Registrable
Shares, and the liability of each such Person will be in proportion to, and
limited to, the net amount received by such Person from the sale of his or its
Registrable Shares pursuant to such registration.
SECTION 3.3 Holdback Agreement.
Unless the managing underwriter otherwise agrees, each Holder and the
Company agrees (and the Company agrees, in connection with any underwritten
registration, to use its reasonable efforts to cause its Affiliates to agree)
not to effect any public sale or private offer or distribution of any Common
Stock or Common Stock Equivalents during the ten business days prior to the
effectiveness under the Securities Act of any underwritten registration and
during such time period after the effectiveness under the Securities Act of any
underwritten registration (not to exceed 180 days) (except, if applicable, as
part of such underwritten registration) as the Company and be managing
underwriter may agree.
SECTION 3.4 Registration Procedures.
Whenever any Holder has requested that any Registrable Shares be
registered pursuant to this Stockholders Agreement, the Company will use its
commercially reasonable efforts to effect the registration and the sale of such
Registrable Shares in accordance with the intended method of disposition
thereof, and pursuant thereto the Company will as expeditiously as possible:
3.4.1 Prepare and file with the SEC a registration statement on any
appropriate form under the Securities Act with respect to such Registrable
Shares and use its commercially reasonable efforts to cause such registration
statement to become effective;
3.4.2 Prepare and file with the SEC such amendments, post-effective
amendments, and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement effective for a period of not less than 180 days (or such lesser
period as is necessary for the underwriters in an underwritten offering to sell
unsold allotments) and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement during such period in
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accordance with the intended methods of disposition by the sellers thereof set
forth in such registration statement;
3.4.3 Furnish to each seller of Registrable Shares and the
underwriters of the securities being registered such number of copies of such
registration statement, each amendment and supplement thereto, the prospectus
included in such registration statement (including each preliminary prospectus),
any documents incorporated by reference therein and such other documents as such
seller or underwriters may reasonably request in order to facilitate the
disposition of the Registrable Shares owned by such seller or the sale of such
securities by such underwriters (it being understood that, subject to Section
3.5 and the requirements of the Securities Act and applicable state securities
laws, the Company consents to the use of the prospectus and any amendment or
supplement thereto by each seller and the underwriters in connection with the
offering and sale of the Registrable Shares covered by the registration
statement of which such prospectus, amendment or supplement is a part);
3.4.4 Use its commercially reasonable efforts to register or qualify
such Registrable Shares under such other securities or blue sky laws of such
jurisdictions as the managing underwriter reasonably requests, use its
commercially reasonable efforts to keep each such registration or qualification
(or exemption therefrom) effective during the period in which such registration
statement is required to be kept effective, and do any and all other acts and
things which may be reasonably necessary or advisable to enable each seller to
consummate the disposition of the Registrable Shares owned by such seller in
such jurisdictions (provided, however, that the Company will not be required to
(A) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph or (B) consent to
general service of process in any such jurisdiction);
3.4.5 Promptly notify each seller and each underwriter and (if
requested by any such Person) confirm such notice in writing (A) when a
prospectus or any prospectus supplement or post-effective amendment has been
filed and, with respect to a registration statement or any post-effective
amendment, when the same has become effective, (B) of the issuance by any state
securities or other regulatory authority of any order suspending the
qualification or exemption from qualification of any of the Registrable Shares
under state securities or "blue sky" laws or the initiation of any proceedings
for that purpose, and (C) of the happening of any event which makes any
statement made in a registration statement or related prospectus untrue or which
requires the making of any changes in such registration statement, prospectus or
documents so that they will not contain any 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, as promptly as practicable
thereafter, prepare and file with the SEC and furnish a supplement or amendment
to such prospectus so that, as thereafter deliverable to the purchasers of such
Registrable Shares, such prospectus will not contain any untrue statement of a
material fact or omit a material fact necessary to make the statement therein,
in light of the circumstances under which they were made, not misleading;
3.4.6 Make generally available to the Company's securityholders an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act no later than 30 days after the end of the 12-month period beginning with
the first day of the Company's first fiscal quarter commencing after the
effective date of a registration statement, which earnings statement shall
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cover said 12-month period, and which requirement will be deemed to be satisfied
if the Company timely files complete and accurate information on Forms 10-Q,
10-K and 8-K under the Exchange Act and otherwise complies with Rule 158 under
the Securities Act;
3.4.7 If requested by the managing underwriter or any seller
promptly incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriter or any seller reasonably requests to be
included therein, including, without limitation, with respect to the Registrable
Shares being sold by such seller, the purchase price being paid therefor by the
underwriters and with respect to any other terms of the underwritten offering of
the Registrable Shares to be sold in such offering, and promptly make all
required filings of such prospectus supplement or post-effective amendment;
3.4.8 As promptly as practicable after filing with the SEC of any
document which is incorporated by reference into a registration statement (in
the form in which it was incorporated), deliver a copy of each such document to
each seller;
3.4.9 Cooperate with the sellers and the managing underwriter to
facilitate the timely preparation and delivery of certificates (which shall lot
bear any restrictive legends unless required under applicable law) representing
securities sold under any registration statement, and enable such securities to
be in such denominations and registered in such names as the managing
underwriter or such sellers may request and keep available and make available to
the Company's transfer agent prior to the effectiveness of such registration
statement a supply of such certificates;
3.4.10 Promptly make available for inspection by any seller, any
underwriter participating in any disposition pursuant to any registration
statement, and any attorney, accountant or other agent or representative
retained by any such seller or underwriter (collectively, the "Inspectors"), all
financial and other records, pertinent corporate documents and properties of the
Company (collectively, the "Records"), as shall be reasonably necessary to
enable them to exercise their due diligence responsibility, and cause the
Company's officers, directors and employees to supply all information requested
by any such Inspector in connection with such registration statement; provided,
however, that unless the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in the registration statement or the release
of such Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction, the Company shall not be required to provide any
information under this subparagraph (x) if (A) the Company believes, after
consultation with counsel for the Company, that to do so would cause the Company
to forfeit an attorney-client privilege that was applicable to such information
or (B) if either (1) the Company has requested and been granted from the SEC
confidential treatment of such information contained in any filing with the SEC
or documents provided supplementally or otherwise or (2) the Company reasonably
determines in good faith that such Records are confidential and so notifies the
Inspectors in writing unless prior to furnishing any such information with
respect to (A) or (B) such Holder of Registrable Securities requesting such
information agrees to enter into a confidentiality agreement in customary form
and subject to customary exceptions; provided further, however, that each Holder
of Registrable Securities agrees that it will, upon learning that disclosure of
such Records is sought in a court of competent jurisdiction, give notice to the
Company and allow the
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Company at its expense, to undertake appropriate action and to provide
disclosure of the Records deemed confidential;
3.4.11 Furnish to each seller underwriter a signed counterpart of (A)
an opinion or opinions of counsel to the Company, and (B) a comfort letter or
comfort letters from the Company's independent public accountants, each in
Customary form and covering such matters of the type customarily covered by
opinions or comfort letters, as the case may be, as the sellers or managing
underwriter reasonably requests;
3.4.12 Cause the Registrable Shares included in any registration
statement to be (A) listed on each securities exchange, if any, on which similar
securities issued by the Company are then listed, or (B) authorized to be quoted
and/or listed (to the extent applicable) on the Nasdaq Stock Market's if the
Registrable Shares so qualify;
3.4.13 Provide a CUSIP number for the Registrable Shares included in
any registration statement not later than the effective date of such
registration statement;
3.4.14 Cooperate with each seller and each underwriter participating
in the disposition of such Registrable Shares and their respective counsel in
connection with any filings required to be made with the National Association of
Securities Dealers, Inc. (the "NASD");
3.4.15 During the period when the prospectus is required to be
delivered under the Securities Act, promptly file all documents required to be
filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act;
3.4.16 Notify each seller of Registrable Shares promptly of any
request by the SEC for the amending or supplementing of such registration
statement or prospectus or for additional information;
3.4.17 Prepare and file with the SEC promptly any amendments or
supplements to such registration statement or prospectus which, in the opinion
of counsel for the Company or the managing underwriter, is required in
connection with the distribution of the Registrable Shares;
3.4.18 Enter into such agreements (including underwriting agreements
in the managing underwriter's customary form) as are customary in connection
with an underwritten registration; and
3.4.19 Advise each seller of such Registrable Shares, promptly after
it shall receive notice or obtain knowledge thereof, of the issuance of any stop
order by the SEC suspending the effectiveness of such registration statement or
the initiation or threatening of any proceeding for such purpose and promptly
use its best efforts to prevent the issuance of any stop order or to obtain its
withdrawal at the earliest possible moment if such stop order should be issued.
SECTION 3.5 Suspension of Dispositions.
Each Holder agrees by acquisition of any Registrable Shares that, upon
receipt of any notice (a "Suspension Notice") from the Company of the happening
of any event of the kind described in Section 3.4.5(C), such Holder will
forthwith discontinue disposition of Registrable
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Shares until such Holder's receipt of the copies of the supplemented or amended
prospectus, or until it is advised in writing (the "Advice") by the Company that
the use of the prospectus may be resumed, and has received copies of any
additional or supplemental filings which are incorporated by reference in the
prospectus, and, if so directed by the Company, such Holder will deliver to the
Company all copies, other than permanent file copies then in such Holder's
possession, of the prospectus covering such Registrable Shares current at the
time of receipt of such notice. In the event the Company shall give any such
notice, the time period regarding the effectiveness of registration statements
set forth in Section 3.4.2 hereof shall be extended by the number of days during
the period from and including the date of the giving of the Suspension Notice to
and including the date when each seller of Registrable Shares covered by such
registration statement shall have received the copies of the supplemented or
amended prospectus or the Advice. The Company shall use its commercially
reasonable efforts and take such actions as are reasonably necessary to render
the Advice as promptly as practicable.
SECTION 3.6 Registration Expenses.
All expenses incident to the Company's performance of or compliance
with this Article 3 including, without limitation, all registration and filing
fees, all fees and expenses associated with filings required to be made with the
NASD (including, if applicable, the fees and expenses of any "qualified
independent underwriter" as such term is defined in Schedule E of the By-Laws of
the NASD, and of its counsel), as may be required by the rules and regulations
of the NASD, fees and expenses of compliance with securities or "blue sky" laws
(including reasonable fees and disbursements of counsel in connection with "blue
sky" qualifications of the Registrable Shares), rating agency fees, printing
expenses (including expenses of printing certificates for the Registrable Shares
in a form eligible for deposit with Depository Trust Company and of printing
prospectuses if the printing of prospectuses is requested by a holder of
Registrable Shares), messenger and delivery expenses, the Company's internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the fees and
expenses incurred in connection with any listing of the Registrable Shares, fees
and expenses of counsel for the Company and its independent certified public
accountants (including the expenses of any special audit or "cold comfort"
letters required by or incident to such performance), securities acts liability
insurance (if the Company elects to obtain such insurance), the fees and
expenses of any special experts retained by the Company in connection with such
registration, and the fees and expenses of other persons retained by the Company
and reasonable fees and expenses of one firm of counsel for the sellers (which
shall be selected by the holders of a majority of the Registrable Shares being
included in any particular registration statement) (all such expenses being
herein called "Registration Expenses") will be borne by the Company whether or
not any registration statement becomes effective; provided, however, that in no
event shall Registration Expenses include any underwriting discounts,
commissions, or fees attributable to the sale of the Registrable Shares or any
counsel, accountants, or other persons retained or employed by the Holders.
SECTION 3.7 Indemnification.
3.7.1 The Company agrees to indemnify and reimburse, to the fullest
extent permitted by law, each seller of Registrable Shares, and each of its
employees, advisors, agents, representatives, partners, officers, directors,
members and each Person who controls such seller
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(within the meaning of the Securities Act or the Exchange Act) and any agent or
investment advisor thereof (collectively, the "Seller Affiliates") (A) against
any and all losses, claims, damages, liabilities, and expenses, joint or several
(including, without limitation, attorneys' fees and disbursements except as
limited by 3.7.3) based upon arising out of, related to or resulting from any
untrue or alleged untrue statement of a material fact contained in any
registration statement, prospectus, or preliminary prospectus or any amendment
thereof or supplement thereto, or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (B) against any and all loss, liability, claim, damage, and
expense whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation or investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever based upon,
arising out of, related to or resulting from any such untrue statement or
omission or alleged untrue statement or omission, and (C) against any and all
costs and expenses (including reasonable fees and disbursements of counsel) as
may be reasonably incurred in investigating, preparing, or defending against any
litigation, or investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon, arising out of,
related to or resulting from any such untrue statement or omission or alleged
untrue statement or omission, to the extent that any such expense or cost is not
paid under subparagraph (A) or (B) above, except insofar as the same are made in
reliance upon and in strict conformity with information furnished in writing to
the Company by such seller or any Seller Affiliate for use therein or arise from
such seller's or any Seller Affiliate's failure to deliver a copy of the
registration statement or prospectus or any amendments or supplements thereto
after the Company has furnished such seller or Seller Affiliate with a
sufficient number of copies of the same. The reimbursements required by this
Section 3.7.1 will be made by periodic payments during the course of the
investigation or defense, as and when bills are received or expenses incurred.
3.7.2 In connection with any registration statement in which a
seller of Registrable Shares is participating, each such seller will furnish to
the Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the fullest extent permitted by law, each such seller will
indemnify the Company and its directors and officers and each Person who
controls the Company (within the meaning of the Securities Act or the Exchange
Act) against any and all losses, claims, damages, liabilities, and expenses
(including, without limitation, reasonable attorneys' fees and disbursements
except as limited by Section 3.7.3) resulting from any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement, prospectus, or any preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission is contained in any information or
affidavit so furnished in writing by such seller or any of its Seller Affiliates
specifically for inclusion in the registration statement; provided, however,
that the obligation to indemnify will be several, not joint and several, among
such sellers of Registrable Shares, and the liability of each such seller of
Registrable Shares will be in proportion to, and limited to, the net amount
received by such seller from the sale of Registrable Shares pursuant to such
registration statement; provided further, however, that such seller of
Registrable Shares shall not be liable in any such case to the extent that prior
to the filing of any such registration statement or prospectus or amendment
thereof or supplement hereto, such seller has furnished in writing to the
Company
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information expressly for use in such registration statement or prospectus or
any amendment thereof or supplement thereto which corrected or made not
misleading information previously furnished to the Company.
3.7.3 Any Person entitled to indemnification hereunder will (A) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give such notice
shall not limit the rights of such Person) and (B) unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; provided, however, that any person
entitled to indemnification hereunder shall have the right to employ separate
counsel and to participate in the defense of such claim, but the fees and
expenses of such counsel shall be at the expense of such person unless (X) the
indemnifying party has agreed to pay such fees or expenses, or (Y) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such person. If such defense is not
assumed by the indemnifying party as permitted hereunder, the indemnifying party
will not be subject to any liability for any settlement made by the indemnified
party without its consent (consent may not be unreasonably withheld). If such
defense is assumed by the indemnifying party pursuant to the provisions hereof,
such indemnifying party shall not settle or otherwise compromise the applicable
claim unless (1) such settlement or compromise contains a full and unconditional
release of the indemnified party or (2) the indemnified party otherwise consents
in writing. An indemnifying party who is not entitled to, or elects not to,
assume the defense of a claim will not be obligated to pay the fees and expenses
of more than one counsel for all parties indemnified by such indemnifying party
with respect to such claim, unless in the reasonable judgment of any indemnified
party, a conflict of interest may exist between such indemnified party and any
other of such indemnified parties with respect to such claim, in which event the
indemnifying party shall be obligated to pay the reasonable fees and
disbursements of such additional counsel or counsels.
3.7.4 Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 3.7.1 or Section 3.7.2 are
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, claims, damages, liabilities, or expenses (or actions in respect
thereof) referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
claims, liabilities, or expenses (or actions in respect hereof) in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and the indemnified party in connection with the actions which resulted in
the losses, claims, damages, liabilities or expenses as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 3.7.4 were determined by pro
rata allocation (even if the Holders or any underwriters or all of them 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 this
Section 3.7.4. The amount paid or payable by an indemnified party as a result of
the losses,
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claims, damages, liabilities, or expenses (or actions in respect thereof)
referred to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such indemnified party in connection with investigating
or, except as provided in Section 3.7.3, defending any such action or claim.
Notwithstanding the provisions of this Section 3.7.4, no Holder shall be
required to contribute an amount greater than the dollar amount by which the
proceeds received by such Holder with respect to the sale of any Registrable
Shares exceeds the amount of damages which such Holder has otherwise been
required to pay by reason of such statement or 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. The Holders' obligations in this
Section 3.7.4 to contribute shall be several in proportion to the amount of
Registrable Shares registered by them and not joint. If indemnification is
available under this Section 3.7, the indemnifying parties shall indemnify each
indemnified party to the full extent provided in Section 3.7.1 and Section 3.7.2
without regard to the relative fault of said indemnifying party or indemnified
party or any other equitable consideration provided for in this Section 3.7.4.
3.7.5 The indemnification and contribution provided for under this
Stockholders Agreement will remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or any officer,
director or controlling Person of such indemnified party and will survive the
transfer of securities.
ARTICLE 4
TRANSFERS OF SECURITIES
SECTION 4.1 Preemptive Rights.
4.1.1 Rights to Participate in Future Sales. In case the Company or
any Affiliated Successor (as hereinafter defined) proposes to issue or sell any
shares of Common Stock or Common Stock Equivalents (the "Offered Securities"),
the Company shall, no later than twenty days prior to the consummation of such
transaction (a "Preemptive Rights Transaction"), give notice in writing (the
"Offer Notice") to each Holder of such Preemptive Rights Transaction. The Offer
Notice shall describe the proposed Preemptive Rights Transaction, identify the
proposed purchaser, and contain an offer (the "Preemptive Rights Offer") to sell
to each Holder who certifies (to the reasonable satisfaction of the Company)
that such Holder is an Accredited Investor (an "Accredited Offeree"), at the
same price and for the same consideration to be paid by the proposed purchaser,
all or part of such Accredited Offeree's pro rata portion of the Offered
Securities (which shall be the percentage ownership of the Fully-Diluted Common
Stock held by such Holder, excluding, for the purposes of such calculation, any
shares of Common Stock issuable upon exercise of any Common Stock Equivalents
granted pursuant to any employee, officer or director benefit plan or
arrangement). As used herein, the term "Affiliated Successor" means a successor
entity to the Company (whether by merger, consolidation, reorganization, or
otherwise) in which the HMC Group owns at least the same percentage of the
fully-diluted common stock of such entity (after giving effect to the merger,
consolidation, reorganization, or other transaction) as the HMC Group owns of
the Fully-Diluted Common Stock of the Company. If any such Holder fails to
accept such offer by written notice fifteen days after its receipt of the Offer
Notice, the Company or such Affiliated Successor may proceed
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with the proposed issue or sale of the Offered Securities, free of any right on
the part of any Holder under this Section 4.1.1 in respect thereof.
4.1.2 Exceptions to Preemptive Rights. This Section 4.1 shall not
apply to (i) issuances or sales of Common Stock or Common Stock Equivalents to
employees, officers, and/or directors of the Company and/or any of its
Subsidiaries pursuant to employee benefit or similar plans or arrangements of
the Company and/or its Subsidiaries, (ii) issuances or sales of Common Stock or
Common Stock Equivalents upon exercise of any Common Stock Equivalent which,
when issued, was subject to or exempt from the preemptive rights under this
Section 4.1, (iii) securities distributed or set aside ratably to all holders of
Common Stock and Common Stock Equivalents (or any class or series thereof) on a
per share equivalent basis, or (iv) issuances or sales of Common Stock or Common
Stock Equivalents pursuant to a registered underwritten public offering, a
merger of the Company or a subsidiary of the Company into or with another entity
or an acquisition by the Company of a subsidiary of the Company or another
business or corporation. In the event of any issuances or sales of Common Stock
or Common Stock Equivalents as a unit with any other security of the Company or
its Subsidiaries, the preemptive rights under this Section shall be applicable
to the entire unit rather than only the Common Stock or Common Stock Equivalent
included in the unit.
SECTION 4.2 Tag Along Rights.
4.2.1 Applicability. In the event the HMC Group or the Designated
Stockholders (or any one of the Designated Stockholders) desires to effect a
Transfer, then at least 30 days prior to such Transfer, the party or parties
desiring to effect the Transfer shall make an offer (the "Participation Offer")
to each non-selling Holder (each, a "Co-Seller") to include in the proposed
Transfer a portion of such Co-Seller's Common Stock which represents the same
percentage of such Co-Seller's Fully-Diluted Common Stock as the shares proposed
to be sold in the Transfer by the HMC Group or the Designated Stockholders (as
the case may be, the "Tag Seller Group") represent of the Tag Seller Group's
aggregate Fully-Diluted Common Stock; provided, however, that, if the HMC Group
is the Tag Seller Group and the consideration to be received by the HMC Group
includes any securities, only Co-Sellers who have certified to the reasonable
satisfaction of HMTF that they are Accredited Investors shall be entitled to
participate in such transfer, unless the transferee consents otherwise.
4.2.2 Terms of Participation Offer. The Participation Offer shall
describe the terms and conditions of the proposed Transfer and shall be
conditioned upon (i) the consummation of the transactions contemplated in the
Participation Offer with the transferee named therein, and (ii) each Co-Seller's
execution and delivery of all agreements and other documents that members of the
Tag Seller Group are required to execute and deliver in connection with such
Transfer (provided, however, that the Co-Seller shall not be required to make
any representations or warranties in connection with such sale or transfer other
than representations and warranties as to (A) such Co-Seller's ownership of his
Common Stock to be sold or transferred free and clear of all liens, claims and
encumbrances, (B) such Co-Seller's power and authority to effect such transfer
and (C) such matters pertaining to compliance with securities laws as the
transferee may reasonably require). If any Co-Seller shall accept the
Participation Offer, the Tag Seller Group shall reduce, to the extent necessary,
the number of shares of Common Stock it otherwise would have sold in the
proposed transfer so as to permit those Co-Sellers who have accepted the
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Participation Offer to sell the number of shares of Common Stock that they are
entitled to sell under this Section 4.2, and the Tag Seller Group and such
Co-Sellers shall transfer the number of shares Common Stock specified in the
Participation Offer to the proposed transferee in accordance with the terms of
such transfer as set forth in the Participation Offer.
SECTION 4.3 Certain Events Not Deemed Transfers.
In no event shall any exchange, reclassification, or other conversion
of shares into any cash, securities, or other property pursuant to a merger or
consolidation of the Company or any Subsidiary with, or any sale or transfer by
the Company or any Subsidiary of all or substantially all its assets to, any
Person constitute a Transfer of shares of Common Stock by the HMC Group or the
Designated Stockholders for purposes of Section 4.2. In addition, Section 4.2
hereof shall not apply to any transfer, sale, or disposition of shares of Common
Stock solely among members of the HMC Group.
SECTION 4.4 Transfer and Exchange.
When Securities are presented to the Company with a request to register
the transfer of such Securities or to exchange such Securities for Securities of
other authorized denominations, the Company shall register the transfer or make
the exchange as requested if the requirements of this Stockholders Agreement for
such transaction are met; provided, however, that the Securities surrendered for
transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Company, duly executed by the
Holder thereof or its attorney and duly authorized in writing. No service charge
shall be made for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith.
SECTION 4.5 Replacement Securities.
If a mutilated Security is surrendered to the Company or if the Holder
of a Security claims and submits an affidavit or other evidence, satisfactory to
the Company, to the effect that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue a replacement Security if the
Company's requirements are met. If required by the Company, such Securityholder
must provide an indemnity bond, or other form of indemnity, sufficient in the
judgment of the Company to protect the Company against any loss which may be
suffered. The Company may charge such Securityholder for its reasonable
out-of-pocket expenses in replacing a Security which has been mutilated, lost,
destroyed or wrongfully taken.
ARTICLE 5
LIMITATION ON TRANSFERS
SECTION 5.1 Restrictions on Transfer.
The Securities shall not be Transferred or otherwise conveyed, assigned
or hypothecated before satisfaction of (i) the conditions specified in this
Section 5.1 and Sections 5.2 and 5.3, which conditions are intended to ensure
compliance with the provisions of the Securities Act
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with respect to the Transfer of any Security and (ii) if applicable, Article 4
hereof. Any purported Transfer in violation of this Article 5 and/or, if
applicable, Article 4 hereof shall be void ab initio and of no force or effect.
Other than Transfers subject to Section 4.2 hereof and other than Transfers to
the public pursuant to an effective registration statement or sales to the
public pursuant to Rule 144 under the Securities Act otherwise permitted
hereunder, each Holder shall cause any proposed transferee of any Security or
any interest therein held by it to agree to take and hold such securities
subject to the provisions and upon the conditions specified in this Stockholders
Agreement.
SECTION 5.2 Restrictive Legends.
5.2.1 Securities Act Legend. Except as otherwise provided in Section
5.4 hereof, each Security held by a Holder, and each Security issued to any
subsequent transferee of such Security, shall be stamped or otherwise imprinted
with a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, NOR
PURSUANT TO THE SECURITIES OR "BLUE SKY" LAWS OF ANY STATE.
SUCH SECURITIES MAY NOT BE OFFERED, SOLD, TRANSFERRED PLEDGED,
HYPOTHECATED OR OTHERWISE ASSIGNED, EXCEPT PURSUANT TO (1) A
REGISTRATION STATEMENT WITH RESPECT TO SUCH SECURITIES WHICH
IS EFFECTIVE UNDER SUCH ACT, (2) RULE 144 UNDER SUCH ACT, OR
(3) ANY OTHER EXEMPTION FROM REGISTRATION UNDER SUCH ACT.
5.2.2 Other Legends. Except as otherwise permitted by the last
sentence of Section 5.1, each Security issued to each Holder or a subsequent
transferee shall include a legend in substantially the following form:
THIS SECURITY IS SUBJECT TO RESTRICTIONS ON TRANSFER, VOTING
AND OTHER TERMS AND CONDITIONS SET FORTH IN THE STOCKHOLDERS
AGREEMENT DATED AS OF MAY 26, 1999 A COPY OF WHICH MAY BE
OBTAINED FROM COOPERATIVE COMPUTING HOLDING COMPANY, INC. AT
ITS PRINCIPAL EXECUTIVE OFFICE.
SECTION 5.3 Notice of Proposed Transfers.
Prior to any Transfer or attempted Transfer of any Security, the Holder
of such Security shall (i) give ten days' prior written notice (a "Transfer
Notice") to the Company of such Holder's intention to effect such Transfer,
describing the manner and circumstances of the proposed Transfer, and (ii)
either (A) provide to the Company an opinion reasonably satisfactory to the
Company from counsel to such Holder who shall be reasonably satisfactory to the
Company, (or supply such other evidence reasonably satisfactory to the
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Company) that the proposed Transfer of such Security may be effected without
registration under the Securities Act, or (B) certify to the Company that the
Holder reasonably believes the proposed transferee is a "qualified institutional
buyer" and that such Holder has taken reasonable steps to make the proposed
transferee aware that such Holder may rely on Rule 144A under the Securities Act
in effecting such Transfer. After receipt of the Transfer Notice and opinion (if
required), the Company shall, within five days thereof, so notify the Holder of
such Security and such Holder shall thereupon be entitled to Transfer such
Security in accordance with the terms of the Transfer Notice. Each Security
issued upon such Transfer shall bear the restrictive legend set forth in Section
5.2, unless in the opinion of such counsel such legend is not required in order
to ensure compliance with the Securities Act. The Holder of the Security giving
the Transfer Notice shall not be entitled to Transfer such Security until
receipt of the notice from the Company under this Section 5.3.
SECTION 5.4 Termination of Certain Restrictions.
Notwithstanding the foregoing provisions of this Section 5, the
restrictions imposed by Section 5.2.1 upon the transferability of the Securities
and the legend requirements of Section 5.2.1 shall terminate as to any Security
(i) when and so long as such Security shall have been effectively registered
under the Securities Act and disposed of pursuant thereto or (ii) when the
Company shall have received an opinion of counsel reasonably satisfactory to it
that such Security may be transferred without registration thereof under the
Securities Act and that such legend may be removed. Whenever the restrictions
imposed by Section 5.2 shall terminate as to any Security, the Holder thereof
shall be entitled to receive from the Company, at the Company's expense, a new
Security not bearing the restrictive legend set forth in Section 5.2.
ARTICLE 6
OPTION BY CERTAIN UNACCREDITED HOLDERS
SECTION 6.1 Grant of Option.
Each Holder acknowledges HMTF Fund III's desire that each holder of the
Securities of the Company qualify as an Accredited Investor so that no
disclosure document will be required in order to exempt (pursuant to Regulation
D) any future issuances of securities to the stockholders of the Company.
Accordingly, upon the occurrence of an Option Transaction (as defined in Section
6.2 hereof) with respect to the Company, each Holder (other than a transferee of
a Designated Stockholder that is an Accredited Investor) shall be deemed to have
granted to Xxxxx, Xxxx XX Partners, L.P., a Texas limited partnership ("HMGP"),
an option ( each an "Option") to purchase, upon the terms and conditions set
forth herein, all Securities held by such Holder and all shares, notes, or other
securities now or hereafter issued or issuable in respect of any such Securities
(whether issued or issuable by the Company or any other person or entity)
(collectively, the "Option Securities"), and each Holder that is a transferee,
directly or indirectly, of a Designated Stockholder that is an Accredited
Investor shall be deemed to have granted an Option to such Designated
Stockholder to purchase such Holder's Option Securities; provided, however, that
if such Designated Stockholder has not notified the optionor and HMGP at least
ten days prior to the Closing of the applicable Option Transaction of its intent
to exercise such
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Option (in which event such Option shall expire), then HMGP shall be deemed to
have an Option to purchase such Option Securities underlying such expired
Option. For purposes of this Article 6, each of HMGP and the Designated
Stockholders are sometimes referred to individually as an "Optionee."
SECTION 6.2 Option Transaction.
An Option may he exercised only if (a) the Company is engaged in or
proposes to engage in a transaction in which any shares, notes, or other
securities will be issued to such Holder in a transaction constituting a "sale"
within the meaning of Section 2(3) of the Securities Act (whether through a
merger, consolidation, exchange, or purchase), (b) the Holder is not an
Accredited Investor at the time of the respective transaction (an "Unaccredited
Holder"), (c) no security holder (except for such Unaccredited Holder or any
other person granting a similar option to an Optionee) of the Company involved
in the respective transaction fails at the time of such transaction to qualify
as an Accredited Investor, and (d) the issuer of the shares, notes, or other
securities involved in such transaction (as conclusively evidenced by any notice
signed in good faith by an Optionee or an executive officer or other authorized
representative thereof) has not prepared and is not expected to prepare in
connection with such transaction appropriate disclosure documents that are
sufficient to register such shares, notes, or other securities under the
Securities Act or to exempt such registration in accordance with Regulation D.
Each transaction for which an Option may be exercised as provided in this
Section 6.2 is herein referred to as an "Option Transaction."
SECTION 6.3 Exercise of Option.
An Optionee may exercise an Option solely with respect to all, but not
less than all, of an Unaccredited Holder's Option Securities involved in the
respective Option Transaction. An Option may be exercised with respect to such
Option Securities at any time before the consummation of the respective Option
Transaction for which the Option is then exercisable. The exercise of the Option
will be timely and effectively made if the Optionee provides written notice of
such exercise to such Unaccredited Holder before such consummation of the
respective Option Transaction. The earliest date on which such notice is so
mailed or delivered will constitute the respective exercise date of the Option
to which such notice relates.
SECTION 6.4 Closing.
Unless otherwise agreed by the Optionee and the Unaccredited Holder,
the closing of each exercise of an Option will take place at the principal place
of business of the Optionee, on the fifth business day after notice of the
Option's exercise is mailed or delivered in accordance with Section 6.3. At the
closing, the Optionee will pay the exercise price to such Unaccredited Holder in
cash (by certified or cashier's check) solely upon such Unaccredited Holder's
delivering to the Optionee valid certificates evidencing all Option Securities
then being purchased pursuant to the exercise of the Option. Such certificates
will be duly endorsed (with signature guaranteed) for transfer to the Optionee,
and upon delivery of such certificates to the Optionee, such Unaccredited Holder
will be deemed to represent and warrant to the Optionee that the transferred
Option Securities are owned by such Unaccredited Holder free and clear of all
liens, adverse claims, and other encumbrances other than as provided in this
Stockholders
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Agreement. Payment of the exercise price for the Option Securities is not
required in order to effect the timely exercise of the Option. In order to
ensure the transfer of the Option Securities purchased upon exercise of the
Option, each Unaccredited Holder hereby severally appoints the Optionee as his
or her attorney in fact for the purpose of effecting any such transfer, and each
Unaccredited Holder acknowledges and agrees that such power of attorney is
coupled with an interest and is irrevocable. Moreover, the Optionee and each
Unaccredited Holder will promptly perform, whether before or after any Option
closing, such additional acts (including, without limitation, executing and
delivering additional documents) as are reasonably required by either such party
to effect more fully the transactions contemplated hereby.
SECTION 6.5 Exercise Price.
The exercise price for each Option Security will equal the price per
share (or, in the case of securities other than capital stock, other applicable
denomination) to be paid in connection with the Option Transaction as determined
in good faith by the Board of Directors or such other governing body (or
authorized committee thereof) of either (a) the issuer of such Option Security
or (b) the Optionee if no such issuer determination is made, it being understood
that determinations made by the issuer or the Optionee pursuant to this Section
6.5 will be final and conclusive.
SECTION 6.6 Assignment of Option.
An Option may be assigned or transferred in whole or in part by HMGP
without any consent or other action on the part of any Holder and all references
herein to "the Optionee" will include without limitation each assignee or
transferee of all or any part of the Option.
ARTICLE 7
TERMINATION
The provisions of this Agreement shall terminate on February 27, 2007;
provided, however, that Sections 4.1, 4.2, Article 5 (other than Sections 5.2
and 5.4) and Article 6 of this Agreement shall terminate upon the earlier
consummation of a Qualified IPO.
ARTICLE 8
MISCELLANEOUS
SECTION 8.1 Confidentiality; Covenant Not to Compete.
8.1.1 For a period of five years from the date hereof, each
Designated Stockholder shall hold in confidence and not directly or indirectly
disclosure or use or copy or make lists of any confidential information or
proprietary data of the Company or any of its Subsidiaries (including, without
limitation, trade secrets), except to the extent (i) authorized in writing by
the Board of Directors of the Company, (ii) required by any court or
administrative agency, or (iii) reasonably necessary or appropriate in
connection with the performance by the Designated Stockholder of his duties (if
any) as an officer or director, as the case may be, of the Company or any of its
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Subsidiaries. Confidential information shall not include any information known
generally to the public. All records, files, documents and materials, or copies
thereof, relating to the business of the Company and its Subsidiaries which the
Designated Stockholder shall prepare, or use, or come into contact with, shall
be and remain the sole property of the Company or its Subsidiaries, as the case
may be, and shall be promptly returned by the Designated Stockholder to the
owner upon termination of the Designated Stockholder's employment with the
Company.
8.1.2 Except with the prior written approval of the Board of
Directors, for a period of five years from the date hereof, each Designated
Stockholder agrees that it shall not, directly or indirectly:
(i) solicit, entice, persuade or induce any employee
of the Company or any of its Subsidiaries to terminate his employment by the
Company or any of its Subsidiaries or to become employed by any Person other
than the Company or any of its Subsidiaries; or
(ii) authorize or assist in the taking of such
actions by any third party.
8.1.3 For a period of five years from the date hereof, each
Designated Stockholder agrees that it shall not, directly or indirectly, engage,
participate, make any financial investment in, or become employed by or render
advisory or other services to or for any Person or other business enterprise
which is engaged, directly or indirectly, in competition with the Company or any
of its Subsidiaries; provided, however, that the foregoing covenant shall not
continue to apply to the Designated Stockholder from and after the sale of all
or substantially all of the capital stock of the Company or all or substantially
all of the assets of the Company unless the Company shall notify the Designated
Stockholder in writing at or prior to such sale that the Company has elected to
continue the application of such covenant (the "Noncompetition Election"). The
foregoing covenant shall not be construed to preclude the Designated Stockholder
from making any investments in the securities of any company, whether or not
engaged in competition with the Company or any of its Subsidiaries, to the
extent that such securities are actively traded on a national securities
exchange or in the over-the-counter market in the United States or any foreign
securities exchange and such investment does not exceed five percent of the
issued and outstanding shares of such company or give the Designated Stockholder
the right or power to control or participate directly in making the policy
decisions of such company.
8.1.4 If any court determines that any portion of this Section 8.1
is invalid or unenforceable, the remainder of this Section 8.1 shall not thereby
be affected and shall be given full effect without regard to the invalid
provisions. If any court construes any of the provisions of this Section 8.1, or
any part thereof, to be unreasonable because of the duration or scope of such
provision, such court shall have the power to reduce the duration or scope of
such provision and to enforce such provision as so reduced.
8.1.5 Each Designated Stockholder hereby acknowledges and agrees
that damages will not be an adequate remedy for his breach of any of his
covenants contained in this Section 8.1, and further agrees that the Company and
its Subsidiaries shall be entitled to obtain appropriate
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injunctive and/or other equitable relief for any such breach, without the
posting of any bond or other security.
8.1.6 For a period of five years from the date hereof, each
Designated Stockholder shall diligently devote substantially all his working
time, attention, knowledge and skills solely to the business and interest of the
Company and shall discharge the duties and assume the responsibilities assigned
to him from time to time by the Board of Directors of Company (or its Executive
Committee, as the case may be).
ARTICLE 9
SECTION 9.1 Notices.
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
by telex, by telecopier or registered or certified mail, postage prepaid, return
receipt requested, addressed as follows (or at such other address as may be
substituted by notice given as herein provided):
If to the Company:
Cooperative Computing Holding Company, Inc.
0000 Xxx Xxxx Xxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxx
Copies to:
Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxx
Xxxx X. Xxxx
Xxxx X. Xxxxx
Xxxxxxxx X. Xxxxxx, Xx.
Weil, Gotshal & Xxxxxx
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxx X. Xxxx, Esq.
Cooperative Computing Holding Company, Inc.
0000 Xxx Xxxx Xxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxx Xxxxxx, Esq.
If to any Holder, at its address listed on the signature pages hereof.
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Any notice or communication hereunder shall be deemed to have been
given or made as of the date so delivered if personally delivered; when answered
back, if telexed; when receipt is acknowledged, if telecopied; and five calendar
lays after mailing if sent by registered or certified mail (except that a notice
of change of address shall not be deemed to have been given until actually
received by the addressee).
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. If a notice
or communication is mailed in the manner provided above, it is duly given,
whether or not the addressee receives it.
SECTION 9.2 Legal Holidays.
A "Legal Holiday" used with respect to a particular place of payment is
a Saturday, a Sunday or a day on which banking institutions at such place are
not required to be open. If a payment date is a Legal Holiday at such place,
payment may be made at such place on the next succeeding day that is not a Legal
Holiday, and no interest on the amount of such payment shall accrue for the
intervening period.
SECTION 9.3 Governing Law; Jurisdiction.
THIS PURCHASE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW.
SECTION 9.4 Successors and Assigns.
Whether or not an express assignment has been made pursuant to the
provisions of this Stockholders Agreement, provisions of this Stockholders
Agreement that are for the Holders' benefit as the holders of any Securities are
also for the benefit of, and enforceable by, all subsequent holders of
Securities, except as otherwise expressly provided herein. This Stockholders
Agreement shall be binding upon the Company, each Holder, and their respective
successors and assigns.
SECTION 9.5 Duplicate Originals.
All parties may sign any number of copies of this Stockholders
Agreement. Each signed copy shall be an original, but all of them together shall
represent the same agreement.
SECTION 9.6 Severability.
In case any provision in this Stockholders Agreement shall be held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and the
remaining provisions shall not in any way be affected or impaired thereby.
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SECTION 9.7 No Waivers; Amendments.
9.7.1 No failure or delay on the part of the Company or any Holder
in exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or farther exercise thereof or the exercise of any
other right, power or remedy. The remedies provided for herein are cumulative
and are not exclusive of any remedies that may be available to the Company or
any Holder at law or in equity or otherwise.
9.7.2 Any provision of this Stockholders Agreement may be amended or
waived if, but only if, such amendment or waiver is in writing and is signed by
the Company and the Required Holders; provided, however, that no such amendment
or waiver shall, (i) unless signed by all of the Holders, amend the provisions
of Section 2.1 and (ii) unless signed by all of the Holders affected, (A) amend
the provisions of this Section 9.7.2 or (B) change the number of Holders which
shall be required for the Holders or any of them o take any action under this
Section 9.7.2 or any other provision of this Stockholders Agreement.
9.7.3 Actions of Designated Stockholders.
Any action required to be taken or right which is exercisable by the
Designated Stockholders hereunder, unless otherwise specified, may be taken or
exercised by the Designated Stockholders owning a majority of the Common Stock
then owned by all Designated Stockholders on behalf of all the Designated
Stockholders.
9.7.4 Novation.
This Stockholders Agreement shall constitute a novation of the Existing
Stockholders Agreement.
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SIGNATURES TO STOCKHOLDERS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Stockholders
Agreement to be duly executed, all as of the date first written above.
COOPERATIVE COMPUTING HOLDING
COMPANY, INC
By: /s/ XXXXX X. XXXXXXX
----------------------------------------
Name: Xxxxx X. Xxxxxxx
--------------------------------------
Title: Vice President
-------------------------------------
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SIGNATURES TO STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
/s/ XXXXX X. XXXXXX
-------------------------------------------
XXXXX X. XXXXXX
Address:
0000 Xxx Xxxx Xxxx
Xxxxxx, Xxxxx 00000-0000
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SIGNATURES TO STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
/s/ XXXXXXX X. XXXXXX, XX.
------------------------------------------
XXXXXXX X. XXXXXX, XX.
Address:
0000 Xxx Xxxx Xxxx
Xxxxxx, Xxxxx 00000-0000
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SIGNATURES TO STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
HICKS, MUSE, XXXX & XXXXX EQUITY FUND III.
L.P.
By: HM3/GP Partners III, L.P., as General Partner
By: Xxxxx, Muse GP Partners, L.P., its General Partner
By: Xxxxx, Muse Fund III Incorporated, its
General Partner
By: /s/ XXXXXXX X. XXXXX
------------------------------------------
Xxxxxxx X. Xxxxx
Senior Vice President
HM3 COINVESTORS, L.P.
By: Xxxxx Muse GP Partners III, L.P., its General Partner
By: Xxxxx Muse Fund III Incorporated, its
General Partner
By: /s/ XXXXXXX X. XXXXX
----------------------------------------------
Xxxxxxx X. Xxxxx
Senior Vice President
Address: c/o Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Fax: 000-000-0000
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SIGNATURES TO STOCKHOLDERS AGREEMENT
NAME OF HOLDER:
/s/ A. XXXXXXXX XXXXX
------------------------------------------------
A. Xxxxxxxx Xxxxx
Address:
0000 Xxxxxxx Xxxxx Xxxx
------------------------------------------------
Suite 240
------------------------------------------------
Xxxxxxx, XX 00000
------------------------------------------------
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