Exhibit 10.16


 


WINDY
CITY INVESTMENTS HOLDING, L.L.C.


 


AMENDED
AND RESTATED UNITHOLDERS AGREEMENT


 


THIS AMENDED AND RESTATED UNITHOLDERS AGREEMENT (this “Agreement”)
is made as of December 14, 2007, effective as of November 13, 2007
(the “Effective Date”), by and among Windy City Investments Holdings,
L.L.C., a Delaware limited liability company (the “Company”) and certain
employees of the Company or its Subsidiaries (each, an “Executive” and
collectively, the “Executives”) as well as any other Person who, at any
time, acquires Units in accordance with the terms of this Agreement and the LLC
Agreement as determined by the Board (each, an “Other Unitholder” and
collectively, the “Other Unitholders”). 
The Executives and the Other Unitholders are collectively referred to
herein as the “Unitholders” and individually as a “Unitholder.”  Except as otherwise provided herein or
defined in the LLC Agreement (as defined below), capitalized terms used herein
are defined in Section 5 hereof.


 


WHEREAS, (i) on the Effective Date certain
Executives acquired Class A Units pursuant to Class A Purchase and
Exchange Agreements between each of them and the Company, (ii) certain
Executives are acquiring Class A Units on December 14, 2007 pursuant
to the separate Class A Purchase Agreements, and (iii) the Executives
are receiving Class B Units on December 14, 2007 pursuant to the
separate Class B Unit Grant Agreements;


 


WHEREAS, certain Other Unitholders may purchase Units
or other equity securities or interests in the Company from time to time in the
future;


 


WHEREAS, the Unitholders are parties to the LLC
Agreement;


 


WHEREAS, certain Unitholders and the Company entered
into this Agreement on November 13, 2007 and now desire to amend and
restate this Agreement as set forth herein;


 


WHEREAS, the Company has issued additional Units to
new Unitholders and such parties desire to enter into this Agreement to be
applicable to all Units issued since the Effective Date for the purposes, among
others, of (i) assuring continuity in the management and ownership of the
Company and (ii) limiting the manner and terms by which Units may be
transferred.


 


NOW, THEREFORE, in consideration of the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties to this
Agreement hereby agree as follows:


 


1.                                       Representations and Warranties. 
Each Executive represents and warrants that (a) such Executive is
the record owner of the number of the Units that he has been granted or has
elected to acquire as indicated on the Offering Schedule, (b) this
Agreement has been duly authorized, executed and delivered by such Executive
and constitutes the valid and binding obligation of such Executive, enforceable
in accordance with its terms, (c) such Executive has not granted and is
not a party to any proxy, voting trust or other agreement which is inconsistent
with, conflicts with, or violates any provision of this Agreement and (d) such
Executive has no claim in respect of, and waives any claim related to, equity
securities issued by Nuveen or its 


 

















 


predecessors prior to the date hereof other than those claims for
payments in respect of such securities in the applicable amount calculated
pursuant to Section 2.2 or Section 2.5 of the Merger Agreement, and
waives any claim related to the promised issuance of equity securities of
Nuveen in the future pursuant to any agreement entered into prior to the
Restatement Date.


 


2.                                       Restrictions on Transfer of Units. 
The following transfer restrictions shall apply to any issued and
outstanding Class B Units and Stock (as defined below) in addition to, and
not in substitution for, any other transfer restrictions:


 


(a)                                  Transfer of Securities. 
No Executive shall Transfer any interest in Class B Units or Stock
(as defined below) without the prior written consent of the Board, except for
Transfers of Vested Class B Units (i) to a Permitted Transferee in
accordance with Section 2(c) hereof, (ii) in connection
with a Sale of the Company in accordance with the LLC Agreement, (iii) in
connection with any repurchase rights provided in Section 4, or (iv) with
respect to a Transfer of Stock, in accordance with Section 2(b)


 


(b)                                 Transfers Following an IPO by Executives. 
Shares of stock or other securities distributed in respect of, or
received on account of, the Class B Units (and any other shares of stock
or property subsequently received in respect of such stock or securities)
(collectively, “Stock”) held by an Executive or any Permitted Transferee
of such Executive (“Applicable Shares of Stock”) shall be subject to the
following restrictions on Transfer (in addition to, and not in substitution
for, any other restriction on Transfer applicable to such Applicable Shares of
Stock of such Executive or such Permitted Transferee): (i) no unvested
Applicable Shares of Stock may be Transferred, (ii) no Applicable Shares
of Stock may be Transferred during any Underwriter’s Restriction Period, (iii) commencing
upon the expiration of the Underwriter’s Restriction Period, if any, imposed in
connection with an IPO, no more than 33% of the aggregate number of shares of
Applicable Shares of Stock held by an Executive or his Permitted Transferee at
the end of the Underwriter’s Restriction Period may be Transferred by such Executive
or Permitted Transferee during any 12 consecutive months other than to a
Permitted Transferee, (iv) in the event an Executive’s employment with the
Company and its Subsidiaries is terminated at any time prior to an IPO in a
Disqualifying Termination, the initial 12-month period specified in clause (iii) above
applicable to such Executive and such Executive’s Permitted Transferees shall
commence on the six-month anniversary of the expiration of the Underwriter’s
Restriction Period imposed on other Executives in connection with the IPO and (v) in
the event an Executive’s employment with the Company (including as the “Company,”
the issuer of the Stock) and its Subsidiaries terminates after the IPO in a
Disqualifying Termination and prior to the third anniversary of the expiration
of the Underwriter’s Restriction Period, no vested Applicable Shares of Public
Stock held by such Executive and such Executive’s Permitted Transferees may be
Transferred during the six-month period commencing upon such termination of
employment (the “Termination Blackout Period”) and the Termination
Blackout Period shall be disregarded and ignored for purposes of determining
the number of Applicable Shares of Stock that may be Transferred by such
Executive and such Executive’s Permitted Transferees during any 12 consecutive
month period that includes the Termination Blackout Period.  Subject to any other agreement applicable to
Applicable Shares of Stock (including any registration rights agreement), the
Applicable Shares of Stock held by an Executive shall not be subject to
restrictions on Transfer under this Section 2(b) upon the
expiration of the longest period specified in this Section 2(b) that
is 


 


2

















 


applicable to such Executive. 
Upon the written request of any Executive, the Company shall promptly
inform such Executive of the number of vested Applicable Shares of Stock that
the Company calculates such Executive may Transfer consistently with this Section 2(b) subject
to the terms and conditions hereof.


 


(c)                                  Permitted Transfers. 
The restrictions set forth in Section 2(a) or Section 2(b) shall
not apply to any Transfer of Vested Class B Units or Stock by  an Executive (A) who is an individual
(i) in the event of such Executive’s death, pursuant to will or applicable
laws of descent or distribution, (ii) to such Executive’s legal guardian
(in case of any mental incapacity) or (iii) to or among his or her Family
Group, or (B) that is an entity, to or among its Affiliates; provided that
the restrictions contained in this Agreement and any other agreement applicable
to such Executive or such Vested Class B Units and/or Stock will continue
to be applicable to the Units and/or Stock after any Transfer pursuant to this Section 2(c),
subject to Section 8.  At
least 30 days prior (other than in the case of Transfers pursuant clauses (A)(i) or
(ii) above, in which case as promptly as practical following such
Transfer) to the Transfer of vested Units or vested Stock pursuant to this Section 2(c),
the Transferee(s) will deliver a written notice to the Company, which
notice shall disclose in reasonable detail the identity of such
Transferee.  Any Transferee of Vested Class B
Units or Stock pursuant to a Transfer in accordance with the provisions of this
Section 2(c) is herein referred to as a “Permitted
Transferee.”  Notwithstanding the
foregoing, (A) no party hereto shall avoid the provisions of this
Agreement or the LLC Agreement by (i) making one or more Transfers to one
or more Permitted Transferees and then disposing of all or any portion of such
party’s interest in any such Permitted Transferee or (ii) Transferring the
securities of any entity holding (directly or indirectly) Units or Stock and (B) if
and to the extent that the Board determines in good faith that the Transfer of
Vested Class B Units or Stock to a Permitted Transferee pursuant to this Section 2(c) would
have an adverse effect on the Company, including by causing the Company to
become subject to the reporting requirements of the Exchange Act, the Board may
delay, modify, or, if determined by the Board to be necessary to avoid such
adverse effect, prohibit any such Transfer pursuant to this Section 2(c).  Any Permitted Transferee shall be bound by,
and subject to, the terms of this Agreement to the same extent that Executive
would be bound by such terms if the Vested Class B Units or vested Stock
held by a Permitted Transferee were still held by Executive.


 


(d)                                 Implementation. 
The Company or its Subsidiaries may apply an appropriate legend on any
shares of Stock, issue stop orders or take such actions as are necessary or
appropriate to implement the provisions of this Section 2.


 


(e)                                  Termination of Restrictions. 
The restrictions set forth in this Section 2 shall continue
with respect to each Class B Unit and share of Stock until a Liquidity
Event other than an IPO.


 


3.                                       Holdback.  In connection
with any Public Offering, each Executive shall enter into any lockup, cutback,
or other limitations or transfer restrictions requested in good faith based
upon the then prevailing market precedent and public investor expectations by
the underwriters managing such Public Offering with respect to all of the Class B
Units granted to such Executive and any Stock received in respect of such Class B
Units.


 


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4.                                       Repurchase Option. 
The vested Units held by an Executive, will be subject to repurchase, in
each case by the holders of Class B Units who are then employed by the
Company or its Subsidiaries, the Company and its Subsidiaries, and the Investor
Members pursuant to the terms and conditions set forth in this Section 4
(the “Repurchase Option”).  In
addition, the Repurchase Option and the principles and procedures of this Section 4
shall also apply with respect to the purchase of Class A Units underlying
Deferred Units that may later become subject to repurchase or cash settlement
by the Company or its subsidiaries pursuant to the terms of the applicable
purchase or grant agreement related to such Deferred Units.


 


(a)                                  Repurchase Priority. 
In the event of a termination of an Executive’s employment with the
Company or its Subsidiaries for any reason, first the holders of Class B
Units who are designated by the Chief Executive Officer of the Company  (subject to the consent of the Board, or any
subcommittee thereof, which consent shall not be unreasonably withheld,
conditioned or delayed) (“Designated Managers”), second the Company and
its Subsidiaries, and third the Investor Members shall have the right, but not
the obligation, to repurchase (as designated by the Chief Executive Officer in
the case of the Designated Managers and pro rata, in the case of the Investor
Members) all or any portion of the vested Units or vested shares of Stock then
held by such Executive or such Executive’s Permitted Transferees.


 


(b)                                 Repurchase Price. 
The price per vested Unit or share of vested Stock to be paid pursuant
to repurchases under this Section 4 shall be as follows: (1) in
the case of the repurchase of a vested Class B Unit or Stock received in
respect of Class B Units, after a termination by the Company for Cause,
90%, as applicable, of the Liquidation Value of such vested Unit or the Fair
Market Value of such vested Stock as of the date of repurchase; and (2) in
the case of a termination of Executive’s employment for any other reason or
under any other circumstances in which a repurchase option exists, the
Liquidation Value of such vested Unit or Fair Market Value of such vested Stock
as of the date of repurchase.  Any
amounts paid to repurchase a vested Unit or vested Stock under this Section 4
shall be paid in cash.


 


(c)                                  Repurchase Procedure.


 


(i)                                   As soon as practicable, but in any event
within 30 days, after the end of the calendar quarter in which the Company has
determined that there are Units or shares of Stock subject to repurchase
pursuant to this Section 4 (the “Available Equity”) the
Company shall give written notice (the “Available Equity Notice”) to
each Designated Manager setting forth the amount of Available Equity.  The Designated Managers shall be entitled to
repurchase all or any portion of the Available Equity by delivery of a written
notice (the “Designated Managers Repurchase Notice”) to the Executive
and Company within 120 days after (or, if later, within 60 days after the end
of the calendar quarter containing) the Executive’s Separation Date (the “Repurchase
Notice Period”).  The Designated
Managers Repurchase Notice shall set forth the amount of Available Equity to be
acquired and the time and place for the closing of the transaction.  A Designated Manager may condition his or her
election to purchase Available Equity on the election of one or more of the
other Designated Managers to purchase Available Equity.  If the Designated 


 


4

















 


Managers elect to
purchase an aggregate amount of Available Equity in excess of the amount of
Available Equity specified in the Available Equity Notice, then the Available
Equity shall be allocated among the Designated Managers on a pro rata basis
according to the amount of Available Equity each Designated Manager elected to
purchase in their respective Designated Managers Repurchase Notice.


 


(ii)                                If for any reason the Designated Managers
do not elect to purchase all of the Available Equity, then the Company or any
of its Subsidiaries shall be entitled to repurchase all or any portion of the
Available Equity that was not purchased pursuant to Section 4(c)(i) (the
“Remaining Equity”).  As soon as
practicable after the Company has determined that the Designated Managers will
not purchase all of the Available Equity, but in any event within 150 days
after the beginning of the Repurchase Notice Period corresponding to such
Available Equity, or, if later, within 90 days after the end of the calendar
quarter containing the Executive’s Separation Date, the Company or any of its
Subsidiaries shall give written notice (the “Company Repurchase Notice”)
to the Executive and each Designated Manager setting forth the amount of Remaining
Equity it intends to purchase. 
Notwithstanding anything to the contrary in this Agreement, the Company
or any of its Subsidiaries may acquire such Remaining Equity with stock of
Windy Holdings with a Fair Market Value equal to the repurchase price determined
under Section 4(b) and then if Windy Holdings immediately
redeems such stock for cash.


 


(iii)                             If for any reason the Company and its Subsidiaries
does not elect to purchase all of the Remaining Equity, then the Investor
Members shall be entitled to repurchase all or any portion of the Remaining
Equity that was not repurchased by the Company and its Subsidiaries pursuant to
Section 4(c)(ii) above. 
As soon as practicable after the Company has determined that it will not
purchase all of the Remaining Equity, but in any event within 180 days after
the beginning of the Repurchase Notice Period corresponding to such Remaining
Equity, or, if later, within 120 days after the end of the calendar quarter
containing the Executive’s Separation Date, the Company shall provide an
Available Equity Notice to each Investor Member setting forth the amount of
Remaining Equity.  The Investor Members
may elect to purchase all or any portion of the Remaining Equity by giving
written notice to the Company within 30 days after the Available Equity Notice
has been delivered to the Investor Members by the Company.  If the Investor Members elect to purchase an
aggregate amount of Remaining Equity in excess of the amount of Remaining
Equity specified in the Available Equity Notice, then the Remaining Equity
shall be allocated among the Investor Members on a pro rata basis according to
the number of Class A Units owned by each Investor Member on the date of
the Available Units Notice.  Any Investor
Member may condition its election to purchase such Remaining Equity on the
election of one or more other Investor Members to purchase 


 


5

















 


Remaining
Equity.  As soon as practicable, and in
any event within 10 days after the expiration of the 30-day period beginning on
the date the Available Equity Notice is delivered to the Investor Members
pursuant to this Section 4(c)(iii), the Investor Members shall
deliver a further Repurchase Notice (the “Investor Member Repurchase Notice”)
to the holders of such Remaining Equity and the Company setting forth the
amount of Remaining Equity to be acquired and the time and place for the
closing of the transaction.  At the time
the Investor Members deliver the Investor Member Repurchase Notice to the
holders of such Remaining Equity, the Company shall also deliver written notice
to each Investor Member setting forth the amount of Remaining Equity such
Investor Member is entitled to purchase and the time and place of the closing
of the transaction.


 


(d)                                 Notwithstanding anything to the contrary
contained in this Agreement, all repurchases of Units or Stock by the Company
and its Subsidiaries shall be subject to applicable restrictions contained in
the Act, as amended, or any successor statute and in the Company’s and its
Subsidiaries’ debt and equity financing agreements.  If any such restrictions prohibit the
repurchase of Units hereunder which the Company and its Subsidiaries is
otherwise entitled to make, the Company will provide written notice to the
Investor Members as soon as reasonably practicable after such determination and
the order of repurchase for the Company and its Subsidiaries and the Investor
Members as set forth in this Section 4(c) shall be reversed (i.e.,
the Investor Members will be substituted for the Company and its Subsidiaries
in Section 4(c)(c)(ii) above and the Company and its Subsidiaries
will be substituted for the Investor Members in Section 4(c)(c)(iii) above).  In such event, the period during which the
Company and its Subsidiaries may exercise such repurchase right under Section 4(c)(c)(iii) shall
be tolled during the period such restrictions are in effect and the Company and
its Subsidiaries shall be allowed to exercise their repurchase rights under Section 4(c)(iii) during
the 30-day period following the date such restrictions are no longer in effect;
provided, however, that such repurchase rights shall lapse and terminate if
such purchase is not consummated within such 30-day period following the end of
such tolling period.


 


(e)                                  Upon delivery of the full consideration
for the Units or Stock at the closing of a repurchase pursuant to this Section 4,
the holder of such Units or Stock from whom such securities are to be purchased
shall cease to have any rights as a holder of such securities, and such
securities shall be deemed purchased in accordance with the applicable
provisions hereof and the purchaser thereof shall be deemed the owner (of
record and beneficially) and holder(s) of such securities, whether or not
the certificate representing such Units or Stock has been delivered as required
by this Agreement.


 


(f)                                    Any election by the Company and its
Subsidiaries or the Investor Members (or, in each case, any of their designees)
to purchase Units or Stock pursuant to this Section 4 shall be
revocable by such Person (with respect to all or any portion of the Units
elected to be purchased) at any time prior to the closing of such purchase,
without any liability whatsoever to such Person in respect of the rights and
obligations in this Section 4.


 


6

















 


(g)                                 The provisions of this Section 4
will terminate with respect to all Units upon the consummation of an IPO.


 


5.                                       Definitions.


 


(a)                                  For the purposes of this Agreement, the
following terms have the meanings set forth below:


 


“Accredited Investor” means an “accredited
investor” within the meaning of Regulation D of the Securities Act.


 


“Act” means the Delaware Limited Liability
Company Act, 6 Del. L. § 18-101, et seq.,
as it may be amended from time to time, and including any successor statute.


 


“Affiliate” has the meaning given such term in
the LLC Agreement.


 


“Agreement” has the meaning set forth in the
preamble.


 


“Board” means the Board of Managers of the
Company.


 


“Cause” has the meaning given such term in the
Executive’s Class B Unit Grant Agreement.


 


“Class A Unit
Purchase and Exchange Agreement” means the Class A Unit Purchase and
Exchange Agreement as may be in effect from time to time for holders of Class A
Units.


 


“Class A Units” has the meaning given term
in the LLC Agreement.


 


“Class A-Prime Units” has the meaning
given such term in the LLC Agreement.


 


“Class B Unit Grant Agreement” means the Class B
Unit Grant Agreement as may be in effect from time to time for holders of Class B
Units.


 


“Class B Units” has the meaning given such
term in the LLC Agreement.


 


“Company” has the meaning set forth in the
preamble.


 


“Deferred Units” means any Deferred Units
issued by a subsidiary of the Company and any Class A Units of the Company
or other property issued to the holders thereof in settlement thereof.


 


“Designated Managers” has the meaning given
such term in Section 4(a).


 


“Disability” means Executive’s inability, due
to illness, accident, injury, physical or mental incapacity or other
disability, to carry out effectively Executive’s duties and obligations to the
Company or any of its Subsidiaries or, if applicable based on Executive’s
position, to participate effectively and actively in the management of the
Company or any of its Subsidiaries for a period of at least 90 consecutive days
or for shorter periods aggregating at least


 


7

















 


120 days (whether or not
consecutive) during any twelve month period, as determined in the reasonable
judgment of the Board. A Disability shall be deemed to have occurred on the
date that either Executive or Executive’s personal representative or legal
guardian, on the one hand, or the Company, on the other hand, provides notice
to the other party of the satisfaction of each of the requirements to
constitute a Disability set forth above or on such other date as the parties
shall mutually agree.


 


“Disqualifying Termination” shall mean a
termination of the Executive’s employment with the Company and its Subsidiaries
for any reason other than the Executive’s death, Disability, termination by the
Company or the Subsidiary without Cause or the Executive’s resignation for Good
Reason.


 


“Exchange Act” means the Securities Exchange
Act of 1934, as it may be amended from time to time, and including any
successor statute.


 


“Executive” means an Executive and/or its
Permitted Transferees.


 


“Fair Market Value” has the meaning given such
term in the LLC Agreement.


 


“Family Group” means, with respect to a Person
who is an individual, such Person’s spouse and descendants (whether natural or
adopted), and any trust, family limited partnership, limited liability company
or other entity wholly owned, directly or indirectly, by such Person or such
Person’s spouse and/or descendants that is and remains solely for the benefit
of such Person and/or such Person’s spouse and/or descendants and any
retirement plan for such Person.


 


“Good Reason” has the meaning given such term
in any employment agreement or benefit plan of the Company applicable to the Executive,
provided, however, that if no such agreement or similar arrangement shall apply
to such Executive, the concept of resignation with Good Reason shall not apply
to such Executive.


 


“Investor Members” has the meaning given such
term in the LLC Agreement.


 


“IPO” has the meaning given such term in the
LLC Agreement.


 


“Liquidation Value” has the meaning given such
term in the LLC Agreement.


 


“LLC Agreement” means the Company’s Amended and
Restated Limited Liability Company Agreement (as the same may be amended
supplemented or otherwise modified from time to time in accordance with its
terms.)


 


“Madison Dearborn” has the meaning given such
term in the LLC Agreement.


 


“Manager” has the meaning given such term in the
LLC Agreement.


 


“Merger Agreement” means that Agreement and
Plan of Merger entered into as of June 19, 2007 by and among Windy City
Investments, Inc., a Delaware corporation, Windy City Acquisition Corp, a
Delaware corporation, and Nuveen.


 


8
















 


“Nuveen” means Nuveen Investments, Inc, a
Delaware Corporation.


 


“Offering Schedule” means (a) the Windy
City Investments Holdings, L.L.C. Equity and Deferred Unit Offering Schedule or
(b) Windy City Investments Holdings, L.L.C. Class B Unit Award
Schedule entered into by Executive, as the case may be.


 


“Other Unitholders” has the meaning set forth
in the preamble.


 


“Permitted Transferees” has the meaning set
forth in Section 2(c).


 


“Person” means any individual, partnership,
corporation, association, joint stock company, trust, joint venture, limited
liability company, unincorporated organization, governmental entity or
department, agency or political subdivision thereof.


 


“Public Sale” has the meaning given such term
in the LLC Agreement.


 


“Registration Agreement” has the meaning given
such term in the LLC Agreement.


 


“Restatement Date” has the meaning given such
term in the LLC Agreement.


 


“Sale of the Company” has the meaning given
such term in the LLC Agreement.


 


“Securities Act” means the Securities Act of
1933, as amended from time to time and any successor statute, and any rules or
regulations promulgated thereunder.


 


“Stock” has the meaning set forth in Section 2(b).


 


“Subsidiary” has the meaning given such term in
the LLC Agreement.


 


“Transfer” has the meaning given such term in
the LLC Agreement.


 


“Underwriter’s Restriction Period” means the
period during which an underwriter participating in a Public Offering requests
that Stock held by an Executive should be subject to lock up, cutback
provisions, transfer restrictions or other limitations that, in each case, are
imposed in good faith based on then-prevailing market precedent and public
investor expectations, it being understood that the Underwriter’s Restriction
Period shall end if the applicable underwriter waives future
compliance with the provisions, restrictions and limitations set forth above.


 


“Units” has the meaning given such term in the
LLC Agreement.


 


“Unitholders” has the meaning set forth in the
preamble.


 


“Vested Class B Units” has the meaning
given such term in the Class B Unit Grant Agreement.


 


“Windy Holdings” means Windy City Investments, Inc.,
a Delaware corporation and a direct, wholly-owned Subsidiary of Holdings.


 


9

















 


6.                                       Notices.  Any notice
provided for in this Agreement must be in writing and must be personally
delivered, sent by telecopy or email with original to follow by overnight
courier service, by first class mail (postage prepaid and return receipt
requested) or reputable overnight courier service (charges prepaid) to the
recipient at the addresses indicated below:


 


	
  Notices
  to the Company:

  
	
   

  
	
  Windy
  City Investments Holdings, L.L.C.

  
	
  c/o
  Madison Dearborn Partners

  
	
  Three
  First National Plaza

  
	
  38th
  Floor

  
	
  Chicago,
  Illinois 60602

  
	
  Facsimile:
  (312) 895-1056

  
	
  Telephone:
  (312) 895-1000

  
	
  Electronic
  mail: mtresnowski@MDCP.com

  
	
  Attention:

  	
  General Counsel

  
	
   

  
	
  with
  copies to (which shall not constitute notice):

  
	
   

  
	
  Madison
  Dearborn Capital Partners

  
	
  Three
  First National Plaza

  
	
  38th
  Floor

  
	
  Chicago,
  Illinois 60602

  
	
  Facsimile:
  (312) 895-1056

  
	
  Telephone:
  (312) 895-1000

  
	
  Electronic
  mail: mtresnowski@MDCP.com

  
	
  Attention:
  

  	
  General Counsel

  
	
   

  
	
  and

  
	
   

  
	
  Kirkland &
  Ellis LLP

  
	
  200
  East Randolph Drive

  
	
  Chicago,
  IL 60601

  
	
  Facsimile:
  (312) 861-2200

  
	
  Telephone:
  (312) 861-2000

  
	
  Electronic
  mail: rporter@kirkland.com

  
	
  Attention:

  	
  Richard W. Porter, P.C.

  
	
   

  	
  Scott D. Price

  
	
   

  
	
  Notices
  to Executive:

  
	
   

  
	
  At
  the Executive’s address provided on the signature page hereto.

  



 


10

















 


	
  with
  copies to (which shall not constitute notice):

  
	
   

  
	
  McDermott
  Will & Emery LLP

  
	
  227
  West Monroe Street, Suite 4400

  
	
  Chicago,
  IL 60606

  
	
  Facsimile:
  (312) 984-7700

  
	
  Telephone:
  (312) 984-2121

  
	
  Electronic
  mail: mharris@mwe.com

  
	
  Attention:

  	
  Mark A. Harris

  



 


or to such other address or to the attention of such
other Person as the recipient party has specified by prior written notice to
the sending party.  Any notice under this
Agreement shall be deemed to have been given when so delivered or, if sent by
telecopy the day of receipt, or if mailed, three days after deposit in the U.S.
mail (return receipt requested) and one day after deposit with a reputable
overnight courier service.


 


7.                                       Restrictive Legend. 
Each certificate evidencing Units or Stock shall be stamped or otherwise
imprinted with the legend set forth below, as well as any other legends that
may be required under the LLC Agreement or a Unitholder’s unit purchase
agreement with the Company.  Upon the
request of the holder thereof, the legend set forth below shall be removed from
the certificates evidencing any Units which cease to be Units in accordance
with the definition thereof.


 


“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER, CERTAIN REPURCHASE PROVISIONS, AND CERTAIN
OTHER AGREEMENTS SET FORTH IN A UNITHOLDERS AGREEMENT BETWEEN THE COMPANY AND
EXECUTIVE DATED AS OF DECEMBER 14, 2007, A COPY OF WHICH MAY BE OBTAINED
BY THE HOLDER HEREOF AT THE COMPANY’S PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE.”


 


8.                                       Transfer of Units. 
Prior to the Transfer of any Units or Stock (other than pursuant to a
Sale of the Company or after an IPO as permitted by Section 2(b))
to any Person, the Transferring holder of Units or Stock subject to this
Agreement shall cause the prospective Transferee to be bound by this Agreement
and to execute and deliver to the Company a counterpart of or joinder to the
LLC Agreement and the Unitholders Agreement (or other similar agreement) as a
condition to the effectiveness of such Transfer.  Upon the execution and delivery of such
counterpart or joinder by such Person, subject to the requirements of the LLC
Agreement, such Person’s acquired Units shall be Units under this Agreement and
such Person shall be a Unitholder hereunder with respect to such Units.


 


9.                                       Irrevocability: Binding Effect on
Successors and Assigns.  Executive hereby acknowledges
and agrees that, except as provided under applicable federal state, or foreign
securities laws, that Executive is not entitled to cancel, terminate or revoke
this Agreement, the LLC Agreement, or any agreements of Executive hereunder,
and that this Agreement, the LLC Agreement and such other agreements shall
survive the death or disability of Executive and shall be binding upon and
inure to the benefit of the parties and their respective heirs, executors,


 


11

















 


administrators, successors, legal representatives and assigns.  If Executive is more than one person, the
obligations of Executive hereunder shall be joint and several and the
agreements, representations, warranties and acknowledgments herein contained
shall be deemed to be made by and be binding upon each such person and his, her
or its heirs, executors, administrators, successors, legal representatives, and
assigns (including subsequent holders of Units).  The agreements, representations, warranties
and acknowledgments herein contained shall be deemed to be made by and be
binding upon the Company and its successors and assigns (including the
surviving corporation to any merger or other reorganization of the Company).


 


10.                                 Survival of Covenants, Representations
and Warranties.  All covenants, representations and warranties
contained herein or made in writing by any party in connection herewith shall
survive the execution and delivery of this Agreement, the LLC Agreement, those
documents expressly referred to herein and the consummation of the transactions
contemplated hereby and thereby.


 


11.                                 Transfers in Violation of Agreement. 
Any Transfer or attempted Transfer of any Units or Stock in violation of
any provision of this Agreement, the LLC Agreement or other applicable
agreement shall be void, and such Transfer shall not be recorded on the
applicable books and any purported transferee of such Units or Stock shall not
be treated as the owner of such Units or Stock for any purpose.


 


12.                                 Severability. 
Whenever possible, each provision of this Agreement shall be interpreted
in such manner as to be effective and valid under applicable law, but if any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision
or any other jurisdiction, but this Agreement shall be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision had never been contained herein.


 


13.                                 Successors and Assigns. 
Except as otherwise provided herein, this Agreement shall bind and inure
to the benefit of and be enforceable by the Company and its successors and
assigns and the Executives holding a majority of the vested Units.  In the event the Company is liquidated, then
the rights and benefits of the Company under this agreement shall adhere to and
be enforceable by Windy City Investments, Inc., which shall become the
Company for all purposes of this Agreement without further action by any
Unitholder.


 


14.                                 Complete Agreement. 
This Agreement, the LLC Agreement, the Class A Purchase and
Exchange Agreement, the Class B Unit Grant Agreement, the Registration
Agreement and those documents expressly referred to herein embody the complete
agreement and understanding among the parties with respect to the subject
matter hereof and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have
related to the subject matter hereof in any way.


 


15.                                 Counterparts. 
This Agreement may be executed in two or more counterparts, any one of
which need not contain the signatures of more than one party, but all such
counterparts taken together shall constitute one and the same Agreement.


 


12

















 


16.                                 Descriptive Headings.  The
descriptive headings of this Agreement are inserted for convenience only and do
not constitute a part of this Agreement.


 


17.                                 No Strict Construction. 
The language used in this Agreement shall be deemed to be the language
chosen by the parties hereto to express their collective mutual intent, and no rule of
strict construction shall be applied against any person.  The term “including” as used herein shall be
by way of example, and shall not be deemed to constitute a limitation of any
term or provision contained herein.  Each
defined term used in this Agreement has a comparable meaning when used in its
plural or singular form.


 


18.                                 Governing Law. 
All questions concerning the construction, validity, enforcement and
interpretation of this Agreement and the exhibits hereto shall be governed by
the internal law, and not the law of conflicts, of the State of Delaware.


 


19.                                 WAIVER OF JURY TRIAL. 
AS A SPECIFICALLY BARGAINED FOR INDUCEMENT FOR EACH OF THE PARTIES
HERETO TO ENTER INTO THIS AGREEMENT (AFTER HAVING THE OPPORTUNITY TO CONSULT
WITH COUNSEL), EACH PARTY HERETO EXPRESSLY WAIVES THE RIGHT TO TRIAL BY JURY IN
ANY LAWSUIT OR PROCEEDING RELATING TO OR ARISING IN ANY WAY FROM THIS AGREEMENT
OR THE MATTERS CONTEMPLATED HEREBY.


 


20.                                 Remedies.  Each of the
parties to this Agreement shall be entitled to enforce its rights under this
Agreement specifically, to recover damages and costs (including reasonable
attorney’s fees) caused by any breach of any provision of this Agreement and to
exercise all other rights existing in its favor.  The parties hereto agree and acknowledge that
money damages would not be an adequate remedy for any breach of the provisions
of this Agreement and that any party may in its sole discretion apply to any
court of law or equity of competent jurisdiction (without posting any bond or
deposit) for specific performance and/or other injunctive relief in order to
enforce or prevent any violations of the provisions of this Agreement.


 


21.                                 Amendment and Waiver. 
Except as otherwise provided herein, any provision of this Agreement may
be amended or waived only with the prior written consent of Executive and the
Board (on behalf of the Company and the Investor Members); provided that
any provision of this Agreement may be amended with the approval of the
Executives holding a majority of the affected class of such Units to the extent
that the such amendment does not disproportionately and adversely change the
rights of an Executive (or group of Executives) as compared to other Executives
(or group of Executives).  For the
avoidance of doubt, amendments to the LLC Agreement and the Registration
Agreement shall be accomplished according to the terms of the LLC Agreement or
the Registration Agreement, respectively.


 


22.                                 Community Property. 
If, as of the date hereof, Executive is lawfully married and Executive’s
address or the permanent residence of Executive’s spouse is located in a
community property jurisdiction, Executive’s spouse shall execute and deliver
to the Company on the Effective Date the Consent in the form of Exhibit A
attached hereto.


 


23.                                 Business Days. 
If any time period for giving notice or taking action hereunder expires
on a day which is a Saturday, Sunday or legal holiday in the state in which the


 


13

















 


Company’s chief executive office is located, the time
period shall be automatically extended to the business day immediately
following such Saturday, Sunday or holiday.


 


24.                                 Third-Party Beneficiary. 
The Company and Executive acknowledge that each of the Investor Members
is a third-party beneficiary under this Agreement and that the Investor Members
can enforce the provisions of this Agreement intended for the Investor Members’
benefit.


 


25.                                 Consent to Jurisdiction. 
Each party to this Agreement, by its execution hereof, (a) hereby
irrevocably submits to the exclusive jurisdiction of the state and federal
courts sitting in the State of Illinois for the purpose of any action, claim,
cause of action or suit (in contract, tort or otherwise), inquiry, proceeding
or investigation arising out of or based upon this Agreement or relating to the
subject matter hereof, (b) hereby waives to the extent not prohibited by
applicable law, and agrees not to assert, and agrees not to allow any of its
Permitted Transferees to assert, by way of motion, as a defense or otherwise,
in any such action, any claim that they are not subject personally to the
jurisdiction of the above named courts, that their property is exempt or immune
from attachment or execution, that any such proceeding brought in one of the
above named courts is improper, or that this Agreement or the subject matter
hereof or thereof may not be enforced in or by such court and (c) hereby
agrees not to commence or maintain any action, claim, cause of action or suit
(in contract, tort or otherwise), inquiry, proceeding or investigation arising
out of or based upon this Agreement or relating to the subject matter hereof or
thereof other than before one of the above named courts nor to make any motion
or take any other action seeking or intending to cause the transfer or removal
of any such action, claim, cause of action or suit (in contract, tort or
otherwise), inquiry, proceeding or investigation to any court other than one of
the above named courts whether on the grounds of inconvenient forum or
otherwise.  Notwithstanding the
foregoing, any party to this Agreement may commence and maintain an action to
enforce a judgment of any of the above named courts in any court of competent
jurisdiction.


 


*      *      *     
*


 


14

















 


IN WITNESS WHEREOF, the parties hereto have executed
this Unitholders Agreement on the day and year first above written.


 


	
   

  	
  WINDY CITY INVESTMENTS
  HOLDINGS, L.L.C.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Vahe A. Dombalagian

  
	
   

  	
  Name:

  	
  Vahe A. Dombalagian

  
	
   

  	
  Its:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [Executives]
  [Print Name]

  



 


Signature Page to Amended And
Restated Unitholders Agreement 


 

















 


EXHIBIT A


 


SPOUSAL CONSENT


 


The undersigned spouse of
Executive hereby acknowledges that I have read the foregoing Unitholders
Agreement executed by Executive as of the date hereof and that I understand its
contents.  I am aware that the foregoing
Unitholders Agreement provides for the sale or repurchase of my spouse’s Units
under certain circumstances and/or imposes other restrictions on such
securities (including, without limitation, restrictions on transfer).  I agree that my spouse’s interest in these
securities is subject to these restrictions and any interest that I may have in
such securities shall be irrevocably bound by these agreements and further,
that my community property interest, if any, shall be similarly bound by this
Agreement.


 


 


	
   

  	
  Date:
                  
        , 2007

  
	
   

  	
   

  
	
   

  	
  Spouse’s Name:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Date:
                  
        , 2007

  
	
   

  	
   

  
	
   

  	
  Witness’ Name:

  	
   

  
				



 


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