Exhibit 10.15


 


FORM OF WINDY CITY INVESTMENTS


 


HOLDINGS, L.L.C.


 


CLASS B UNIT GRANT AGREEMENT


 


THIS
CLASS B UNIT GRANT AGREEMENT (this “Agreement”) is made as of [Quarterly
Vesting Date], (the “Issue Date”) by and between Windy City
Investments Holdings, L.L.C., a Delaware limited liability company (the “Company”),
and the undersigned below (“Executive”). Capitalized terms used but
not otherwise defined herein or in the LLC Agreement (as defined below) shall
have the meanings assigned to such terms in Section 5 hereof.


 


The parties hereto agree as follows:


 


1.             Issuance of Class B
Units.


 


(a)           Issuance. Upon execution of
this Agreement, the Company will issue to Executive, and Executive will accept
from the Company,
                                       of
the Company’s Class B Units, without any consideration paid, or any other
Capital Contribution (as defined in the LLC Agreement), made or deemed made, by
or on behalf of Executive in respect thereof, subject to the provisions of the
LLC Agreement and the Unitholders Agreement. The Class B Units granted
hereunder (and units of equity or other capital interests issued with respect
to such Class B Units, including by way of a split, combination,
distribution or other recapitalization) are referred to herein as “Executive
Units”. The Executive Units granted hereunder shall be designated as Series 1
Class B Units (in accordance with Section 3.4 (a) of the LLC
Agreement). The Participation Threshold for the Series 1 Class B
Units has been determined and will be adjusted in accordance with the LLC
Agreement.


 


(b)           Conditions to Issuance.
Executive hereby agrees, as a condition to the effectiveness of the issuance of
the Executive Units hereunder, to deliver counterpart signature pages to,
and to be bound by the terms of the LLC agreement and the Unitholders
Agreement, in each case contemporaneously with the issuance of the Executive
Units hereunder. By execution hereof, Executive acknowledges that the Company
is relying upon the accuracy and completeness of the representations contained
herein in complying with its obligations under applicable securities laws.


 


(c)           Tax Election. Executive shall
make an effective election with the Internal Revenue Service under Section 83
(b) of the Internal Revenue Code and the regulations promulgated
thereunder in the form of Exhibit A attached hereto and shall
deliver herewith the executed Section 83(b) election to the Company
for filing with the Internal Revenue Service.


 


(d)           Possession of Certificates.
Until a Liquidity Event, any certificates evidencing Executive Units (if such
Executive Units are certificated) shall be held by the Company for the benefit
of Executive and the other holder(s) of Executive Units, if any. Any
certificates evidencing Executive Units held by Executive or Executive’s
Permitted Transferee shall be delivered by Executive to the Company, together
with appropriate irrevocable unit


 

















 


powers
undated and duly executed in blank sufficient to transfer title thereto upon
the occurrence of a Liquidity Event other than an IPO or otherwise upon a
repurchase of such Executive Units hereunder. Upon the occurrence of a
Liquidity Event other than an IPO, the Company shall either (i) return to
the record holders thereof any certificates representing Vested Units (as
defined in Section 2(a) below), together with unit powers
previously delivered by Executive, or (ii) deliver to the record holders
of the Executive Units all proceeds received by the Company from the transfer
of the Vested Units in connection with such Liquidity Event. Upon the
occurrence of an IPO, the Company shall return to the record holders thereof
any certificates representing Stock, together with unit powers previously
delivered by Executive. It is understood and agreed that the Class B Units
are currently uncertificated.


 


(e)           Executive’s
Representations and Warranties. In connection with the
grant of the Executive Units hereunder, Executive hereby represents and
warrants to the Company that:


 


(i)            Executive’s
Investment Representations. Executive is acquiring the
Executive Units to be acquired by him, her or it hereunder for his, her or its
own account with the present intention of holding such securities for
investment purposes and that he, she or it has no intention of selling such
securities in a public distribution in violation of the federal securities laws
or any applicable state or foreign securities laws. Executive acknowledges that
the Executive Units have not been registered under the Securities Act or
applicable state or foreign securities laws and that the Executive Units will
be issued to Executive in reliance on exemptions from the registration
requirements of the Securities Act and applicable state and foreign statutes
and in reliance on Executive’s representations and agreements contained herein and
in the LLC Agreement.


 


(ii)           No Conflict. The
execution, delivery and performance by Executive of this Agreement and the
consummation of the transactions contemplated hereby, do not and will not (with
or without the giving of notice, the lapse of time, or both) result in a
violation or breach of, conflict with, cause increased liability or fees, or
require approval, consent or authorization under (i) any Legal
Requirements applicable to Executive or (ii) any contract to which
Executive is a party or by which Executive or any of its properties or assets
may be bound or affected.


 


(iii)          Other
Representations and Warranties of Executive.


 


(A)                              Executive is an officer or
employee of Nuveen or one of its Subsidiaries;


 


(B)           Executive has
had an opportunity to ask questions and receive answers concerning the terms
and conditions of the Executive Units to be acquired by him, her or it
hereunder and has had full access to such other information concerning the
Company (including access to the Company’s Certificate, the LLC Agreement, the
Unitholders Agreement, a summary of the Class B Unit Terms (including
exhibits thereto) and related documentation)


 


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as
Executive may have requested in making his, her or its decision to invest in
the Executive Units being issued hereunder;


 


(C)           Executive
acknowledges that the Executive Units are subject to the restrictions contained
in the LLC Agreement, the Registration Agreement, and the Unitholders
Agreement, and Executive has received and reviewed a copy of the LLC Agreement,
the Registration Agreement and the Unitholders Agreement;


 


(D)          Executive will
not sell or otherwise transfer Executive Units without registration under the
Securities Act (and any applicable federal, state and foreign securities laws)
or an exemption therefrom, and provided there exists such a registration or
exemption, any transfer of Executive Units by Executive or subsequent holders
of Executive Units will be in compliance with the provisions of this Agreement,
the LLC Agreement, the Registration Agreement, and the Unitholders Agreement;


 


(E)           Executive
acknowledges that any certificate representing Executive Units shall include
such legend(s) as the Company determine are necessary or advisable
regarding any restrictions contained in this Agreement, the LLC Agreement, the
Registration Agreement, the Unitholders Agreement, or any other agreement with
respect to which Executive is a party or is bound;


 


(F)           Executive has
all requisite legal capacity and authority and all material authorizations
necessary to carry out the transactions contemplated by this Agreement, the LLC
Agreement, the Registration Agreement, and the Unitholders Agreement; and the
execution, delivery and performance of this Agreement, the LLC Agreement, the
Registration Agreement, the Unitholders Agreement and all other agreements
contemplated hereby and thereby to which Executive is a party have been duly
authorized by Executive;


 


(G)           Executive has
relied on the advice of, or has consulted with, only his, her or its own legal,
financial and tax advisors and the determination of Executive to acquire the
Executive Units pursuant to this Agreement has been made by Executive
independent of any statements or opinions as to the advisability of such acquisition
or as to the properties, business, prospects or condition (financial or
otherwise) of the Company which may have been made or given by any other Person
(including all Persons acquiring Units on the date hereof) or by any agent or
employee of such Person and independent of the fact that any other Person has
decided to become a unitholder of the Company; and


 


3

















 


(H)          Executive is
not acquiring the Executive Units as a result of or subsequent to any advertisement,
article, notice or other communication published in any newspaper, magazine,
internet publication or similar media or broadcast over television, radio or
the internet or presented at any public seminar or meeting, or any solicitation
of a subscription by a Person not previously known to Executive in connection
with investments in securities generally.


 


(f)            Additional
Acknowledgements. As an inducement to the Company to issue the
Executive Units to Executive and as a condition thereto, Executive hereby
acknowledges and agrees that:


 


(i)            Neither the
issuance of the Executive Units to Executive nor any provision contained in
this Agreement, the LLC Agreement, the Registration Agreement, or the
Unitholders Agreement shall entitle Executive to remain in the employment of
the Company and/or any of its Subsidiaries or affect the right of the Company
and/or any of its Subsidiaries to terminate Executive’s employment at any time;
and


 


(ii)           Except as
expressly set forth in the LLC Agreement, the Registration Agreement, the
Unitholders Agreement or as required by applicable law, the Company shall have
no duty or obligation to disclose to Executive, and Executive shall have no
right to be advised of, any material information regarding the Company and its
Subsidiaries at any time prior to, upon or in connection with the repurchase of
Executive Units upon the termination of Executive’s employment with the Company
and/or any of its Subsidiaries or as otherwise provided hereunder.


 


(g)           Compensatory
Arrangements; Rule 701 Exemption. The Company and
Executive hereby acknowledge and agree that this Agreement has been executed
and delivered, and the Executive Units have been issued hereunder, in
connection with and as a part of the compensation and incentive arrangements
between the Company and any of its Subsidiaries and Executive. Each of the
Executive Units granted hereunder is intended to qualify for an exemption from
the registration requirements under the Securities Act, pursuant to Rule 701
(the “Exemption”) and under similar exemptions under applicable state
securities laws. In the event that any provision of this Agreement would cause
the Executive Units granted hereunder not to qualify for the Exemption or any
other applicable exemption from registration under the Securities Act,
Executive and the Company agree that this Agreement shall be deemed
automatically amended to the extent necessary to cause the Executive Units to
qualify for the Exemption.


 


2.             Vesting of
Units.


 


(a)           General. Each of the
Executive Units issued hereunder shall be subject to vesting as set forth in
this Section 2 and any employment agreement of the Company or its
Subsidiaries applicable to Executive and entered into contemporaneously with or
after the date hereof. Executive Units which have become vested pursuant to
this Section 2 are referred to herein as “Vested Units,” and
Executive Units which have not become Vested Units are referred to herein as “Unvested
Units.”


 


4

















 


(b)           Vesting of Time Vested Units.
Seventy percent (70%) of the Executive Units (the “Time Vested Units”)
shall vest and become Vested Units quarterly on a pro rata basis between the
Issue Date and the fifth anniversary of the Issue Date if, and only if,
Executive is, and has been, continuously (except for any absence for vacation,
leave, etc. in accordance with the Company’s or its Subsidiaries’ policies) (i) employed
by the Company or any of its Subsidiaries, (ii) serving as a manager or
director of the Company or its Subsidiaries (a “Manager”) or (iii) at
the discretion of the Board, providing services to the Company or any of its
Subsidiaries as an advisor or consultant as contemplated by or described in Rule 701,
in each case from the date of this Agreement through and including the
applicable vesting date. Immediately prior to a Liquidity Event other than an
IPO, all Time Vested Units that have not yet become Vested Units shall
immediately vest and become Vested Units, if, and only if, Executive is, and
has been continuously (except for any absence for vacation, leave, etc. in
accordance with the Company’s or its Subsidiaries’ policies) since the date
hereof, employed or providing services to the Company or its Subsidiaries as of
such date. The number of Time Vested Units that are Vested Units shall not
increase after Executive ceases to be an employee of, or after termination of
Executive’s services to, the Company or any of its Subsidiaries; provided,
however, that in the event Executive ceases to be employed by, or to provide
services to, the Company or any of its Subsidiaries due to Executive’s death or
Disability, all of the Time Vested Units which have not yet become Vested Units
shall immediately vest and become Vested Units.


 


(c)           Vesting of Liquidity Vested Units.
Thirty percent (30%) of the Executive Units (the “Liquidity Vested Units”)
shall vest and become Vested Units on a quarterly pro-rata basis commencing on
the fifth anniversary of the Issue Date and ending on the seventh anniversary
of the Issue Date or, if sooner (i) on a quarterly pro-rata basis
commencing on a Liquidity Event other than an IPO and ending on the first
anniversary of the date of the closing of such event or (ii) on a
quarterly pro-rata basis commencing on an IPO and ending on the second
anniversary of the closing of such IPO or (iii) if, after a Liquidity
Event other than an IPO, Executive’s employment with the Company has been
terminated by the Company without Cause or Executive has resigned from the
Company for Good Reason, in each case, if and only if, Executive is, and has
been, continuously (except for any absence for vacation, leave, etc. in
accordance with the Company’s or its Subsidiaries’ policies) (x) employed
by the Company or any of its Subsidiaries, (y) serving as a manager or
director of the Company or its Subsidiaries (a “Manager”) or (z) at
the discretion of the Board, providing services to the Company or any of its
Subsidiaries as an advisor or consultant as contemplated by or described in Rule 701,
in each case from the date of this Agreement through and including the
applicable vesting date. The number of Liquidity Vested Units that are Vested
Units shall not increase after Executive ceases to be an employee of, or after
termination of Executive’s services to, the Company or any of its Subsidiaries;
provided, however, that in the event Executive ceases to be employed by, or to
provide services to, the Company or any of its Subsidiaries due to Executive’s
death or Disability, all of the Liquidity Vested Units which have not yet become
Vested Units shall immediately vest and become Vested Units.


 


(d)           Vesting on Account of a Special
Liquidity Event. Notwithstanding anything to the contrary in this Section 2,
in a transaction to which section (iii) of the definition of Liquidity
Event would otherwise apply but does not constitute a Liquidity Event if, after
giving effect to such transaction and any changes in the membership of the
Board made in


 


5

















 


accordance
with Section 5.2 (e) of the LLC Agreement in connection therewith,
Merrill shall not have acquired “control” of Nuveen or any of its Subsidiaries
for purposes of the Investment Company Act or the Investment Advisers Act (a “Special
Liquidity Event”),  then the Class B Units will vest as follows:


 


(i)            Time
Vested Units. If a Special Liquidity Event occurs prior to the fifth
anniversary of the Issue Date then (i) the vesting schedule shall be
redetermined so that the Time Vested Units vest on a quarterly pro-rata basis
between the Issue Date and the third anniversary of the Issue Date (the “Adjusted
Vesting Schedule”), (ii) upon the consummation of the Special
Liquidity Event, an amount of Time Vested Units will vest such that the total
number of Time Vested Units that are vested on such date is equal to the total
percentage of Time Vested Units that would be vested on such date pursuant to
the Adjusted Vesting Schedule, (iii) on each subsequent vesting date the
number of units that will vest shall be based upon the Adjusted Vesting
Schedule, and (iv) in no event will a Time Vested Unit would vest later
than as provided in Section 2(b); provided, however, that in the event
Executive ceases to be employed by, or provide services to, the Company or any
of its Subsidiaries after a Special Liquidity Event due to Executive’s death,
Disability, termination by the Company or the Subsidiary without Cause or
resignation for Good Reason, all of the Time Vested Units which have not yet
become Vested Units shall immediately vest and become Vested Units.


 


For
example, suppose the day after the second anniversary of the Issue Date a
Special Liquidity Event occurs. Pursuant to Section 2(b), 40% of
the Time Vested Units would otherwise be vested at such time, with another 5%
to become vested on the next quarterly vesting date (for a total of 45%). Under
the Adjusted Vesting Schedule, 66.66% of the Time Vested Units will become
vested upon the Special Liquidity Event, and another 8.33% will be vested on
the first day of the next quarter after the second anniversary, until 100% of
the Time Vested Units become Vested Units on the third anniversary of the Issue
Date. However, in the event Executive were to become Disabled prior to the
third anniversary in this example, 100% of Executive’s Time Vested Units would
become Vested Units pursuant to the last sentence of clause (i) above.


 


(ii)           Liquidity
Vesting Units. If a Special Liquidity Event occurs the Liquidity Vesting
Units will vest and become Vested Units on a quarterly pro-rata basis
commencing on the third anniversary of the Issue Date and ending on the fifth
anniversary of the Issue Date or, if sooner, as provided in Section 2(c);
provided, however, that in the event Executive ceases to be employed by, or
provide services to, the Company or any of its Subsidiaries after a Special
Liquidity Event due to Executive’s death, Disability, termination by the
Company or the Subsidiary without Cause or resignation for Good Reason, all of
the Liquidity Vested Units which have not yet become Vested Units shall
immediately vest and become Vested Units. For the avoidance of doubt, a Special
Liquidity Event shall not constitute a Liquidity Event for purposes of Section 2.


 


(e)           Cancellation of
Executive Units. If Executive’s employment with the Company and its
Subsidiaries and the services Executive provides to the Company and all of its
Subsidiaries terminate for any reason, all Unvested Units shall be
automatically cancelled on the


 


6

















 


date
of termination without any consideration paid therefor and without further
action on the part of the Company or any holder of any of the Unvested Units
(determined after giving effect to any accelerated vesting provisions set forth
herein).


 


(f)            Distributions. Any
distributions made in respect of Unvested Units shall be governed by the terms
of the LLC Agreement.


 


3.             Restrictions Generally. The Class B
Units are subject to the provisions of the Unitholders Agreement and LLC
Agreement which provide, among other things, restrictions on transfer, certain
drag-along, holdback provisions and repurchase rights on the Class B Units
held by Executive. The Company acknowledges that certain limited transfers to
Permitted Transferees are permissible, as further detailed in the Unitholders
Agreement and the LLC Agreement, and nothing herein shall limit Permitted
Transfers under such Agreements, and nothing herein shall limit Permitted
Transfers under such Agreements.


 


4.             Additional Transfer Restrictions.


 


(a)           Restrictive Legend. Any
certificates representing the Executive Units shall bear the following legend:


 


“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 CLASS B UNIT GRANT AGREEMENT BETWEEN THE COMPANY
AND EXECUTIVE AND A UNITHOLDERS AGREEMENT BETWEEN THE EXECUTIVE AND COMPANY,
COPIES OF WHICH MAY BE OBTAINED BY THE HOLDER HEREOF AT THE COMPANY’S
PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE.”


 


(b)           Transfer of Class B Units.
Prior to the Transfer of any Class B Units (other than pursuant to a
Public Sale or a Liquidity Event other than an IPO) to any Person, the
Transferring holder of Class B Units subject to this Agreement shall cause
the prospective Transferee to be bound by this Agreement, the LLC Agreement and
the Unitholders Agreement as if such Transferee was the Executive and to
execute and deliver to the Company and the other unitholders of the Company a
counterpart of or joinder to the LLC Agreement and the Unitholders 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 Class B Units
shall be “Class B Units” under this Agreement.


 


(c)           Opinion of Counsel. No holder
of Executive Units may Transfer any Executive Units (except pursuant to an
effective registration statement under the Securities Act) without first
delivering to the Company an opinion of counsel reasonably acceptable in form
and substance to the Company that registration under the Securities Act or any
applicable state securities law is not required in connection with such
transfer; provided that in the case of a


 


7

















 


Transfer
to a Permitted Transferee such opinion will be required only if reasonably
requested by the Company.


 


5.             Confidentiality. Other than
as appropriate to the implementation of duties in the ordinary course of
Executive’s employment by the Company or its Subsidiaries, and except as
specifically authorized by the Board or Executive’s direct supervisor,
Executive shall not at any time make use of or disclose, directly or
indirectly, any (i) trade secret or other confidential or secret
information of the Company or of any of its Subsidiaries, or (ii) other
technical, business, proprietary or financial information of the Company or of
any of its Subsidiaries not available to the public generally or to Competitors
(“Confidential Information”), except to the extent that such
Confidential Information (a) becomes a matter of public record or is
published in a newspaper, magazine or other periodical or on electronic or
other media available to the general public, other than as a result of any act
or omission by Executive (b) is required to be disclosed by any law,
regulation or order of any court or regulatory commission, department or
agency, provided that Executive gives prompt notice of such requirement to the
Company to enable the Company to seek an appropriate protective order. For the
avoidance of doubt, “Confidential Information” shall include the terms and
provisions of this Agreement, the LLC Agreement, and the Unitholders Agreement,
except as required by law or the rules of any national securities exchange
or as disclosed to Executive’s advisors on a need-to-know basis under
instructions to maintain the confidentiality hereof. Promptly following the
termination of Executive’s employment or service with the Company or any of its
Subsidiaries, Executive shall surrender to the Company all records, memoranda,
notes, plans, reports, computer tapes and software and other documents and data
which constitute Confidential Information which Executive may then possess or
have under his/her control (together with all copies thereof).


 


6.             Definitions.


 


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


 


“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.


 


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


 


“Cause”
means (i) the willful and continued failure of Executive to perform
substantially Executive’s duties with the Company or one of its subsidiaries
(other than any such failure resulting from incapacity due to physical or
mental illness), after a written demand for substantial performance is
delivered to Executive by the Board or its representatives, which specifically
identifies the manner in which the Board believes that Executive has not
substantially performed Executive’s duties; (ii) the willful engaging by
Executive in illegal conduct or gross misconduct that is materially and
demonstrably injurious to the Company or its Affiliates; (iii) conviction
of a felony or entry of a guilty or nolo contendere plea by Executive with
respect thereto; (iv) a material breach by Executive of the restrictive
covenants included in Section 5; or (v) a willful or reckless
violation of a material regulatory requirement, or of any


 


8

















 


material
written Company policy or procedure, that is materially and demonstrably
injurious to the Company. For purposes of this provision, no act or failure to
act on the part of the Executive shall be considered “willful” unless it is
done, or omitted to be done, by the Executive in bad faith or without
reasonable belief that the Executive’s act or omission was in the best interests
of the Company. Any act, or failure to act, based upon express authority given
pursuant to a resolution duly adopted by the Board with respect to such act or
omission or based upon the advice of counsel for the Company shall be
conclusively presumed to be done, or omitted to be done, by the Executive in
good faith and in the best interests of the Company.


 


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


 


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


 


“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 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.


 


“Executive
Units” has the meaning give such term in Section 1(a).


 


“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.


 


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


 


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


 


“Liquidity
Event” has the meaning given such term in the LLC Agreement as of the date
hereof, and for purposes of the definition as used in this Agreement, subject
to amendment only as provided in Section 8(l) this 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.)


 


“Merger”
means the merger of Merger Sub into Nuveen, pursuant to that certain Agreement
and Plan of Merger dated as of June 19, 2007 by and among the Windy City
Investments, Inc., Merger Sub and Nuveen.


 


9














 


“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.


 


“Merger
Sub” means Windy City Acquisition Corp., a Delaware corporation.


 


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


 


“Nuveen”
means Nuveen Investments, Inc.


 


“Participation
Threshold” has the meaning given such term in the LLC Agreement as of the
date hereof and subject to adjustment as provided in the LLC Agreement. Other
than as provided in the previous sentence, such definition shall be subject to
amendment only as provided in Section 8(l) of this Agreement.


 


“Permitted
Transferee” has the meaning given such term in the Unitholders Agreement.


 


“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 to the term in the LLC Agreement.


 


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


 


“Rule 701”
means Rule 701 promulgated by the Securities Exchange Commission under the
Securities Act.


 


“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 given to the term in the Unitholders Agreement. 


 


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


 


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


 


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


 


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


 


“Unitholders
Agreement” means that certain Unitholders Agreement, as amended,
supplemented or otherwise modified from time to time in accordance with its
terms, between the Company and certain of its unitholders.


 


7.             Notices. Any notice provided
for in this Agreement must be in writing and must be personally delivered, sent
by telecopy with original to follow by overnight courier


 


10

















 


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, IL 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.


 


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


 


11

















 


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.


 


8.             General Provisions.


 


(a)           Transfers in Violation of
Agreement. Any Transfer or attempted Transfer of any Executive Units in
violation of any provision of this Agreement, the LLC Agreement or the
Unitholders Agreement shall be void, and the Company shall not record such
Transfer on its books or treat any purported transferee of such Executive Units
as the owner of such Executive Units for any purpose.


 


(b)           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, the Unitholders Agreement or any agreements of Executive
hereunder, and that this Agreement, the LLC Agreement, the Unitholders
Agreement and such other agreements shall survive the death or disability of
Executive and the merger, consolidation or other reorganization of the Company
and shall be binding upon and inure to the benefit of the parties and their
respective heirs, executors, 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 Executive 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).


 


(c)           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, and the Unitholders Agreement and the consummation of the
transactions contemplated hereby and thereby.


 


(d)           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.


 


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(e)           Complete Agreement. This
Agreement, the LLC Agreement, the Unitholders 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.


 


(f)            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.


 


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


 


(h)           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.


 


(i)            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.


 


(j)            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.


 


(k)           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.


 


(l)            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 outstanding vested Class B Units to the extent
that the such amendment does not


 


13

















 


disproportionately
and adversely affect 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.


 


(m)          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 date hereof the Consent in the form of Exhibit B attached
hereto.


 


(n)           Third-Party Beneficiary. The
Company and Executive acknowledge that each Investor Member 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.


 


(o)           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 Class B Unit Grant
Agreement on the date first written above.


 


	
   

  	
  WINDY
  CITY INVESTMENTS HOLDINGS, 

  
	
   

  	
  L.L.C.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Its:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [Executive]
  [Print Name]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [Signature]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [Address]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [State
  of Residence]

  



 


Signature Page to Class B Unit Grant Agreement


 

















 


EXHIBIT A


 


PROTECTIVE ELECTION TO INCLUDE MEMBERSHIP INTEREST IN
GROSS

INCOME PURSUANT TO SECTION 83(b) OF THE 

INTERNAL REVENUE CODE


 


A-1

















 


EXHIBIT B




SPOUSAL CONSENT


 


The
undersigned spouse of Executive hereby acknowledges that I have read the
foregoing Class B Unit Grant Agreement executed by Executive as of the
date hereof and that I understand its contents. I am aware that the foregoing Class B
Unit Grant Agreement provides for the sale or repurchase of my spouse’s Class B
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:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Spouse’s Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date:

  	
   

  
	
   

  	
   

  
	
   

  	
  Witness’ Name:

  	
   

  
					



 


B-1