EX-10.2



 




EXHIBIT 10.2







 





TRADER ACQUISITION CORP




STOCKHOLDERS AGREEMENT




Dated as of May 31, 2007




 





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE I

	 
	 	 	 	 
	DEFINITIONS

	 
	 	 	 	 
	Section 1.1. Definitions
	 	 	1	 
	Section 1.2. Definitions Cross Reference
	 	 	4	 
	Section 1.3. General Interpretive Principles
	 	 	5	 
	 
	 	 	 	 
	ARTICLE II

	 
	 	 	 	 
	REPRESENTATIONS AND WARRANTIES

	 
	 	 	 	 
	Section 2.1. Representations and Warranties of the Rollover Investor
	 	 	6	 
	 
	 	 	 	 
	ARTICLE III

	 
	 	 	 	 
	TRANSFER RESTRICTIONS

	 
	 	 	 	 
	Section 3.1. General Restrictions on Transfers
	 	 	7	 
	Section 3.2. Permitted Transfers
	 	 	7	 
	Section 3.3. Restrictions on Transfers by the Rollover Investor
	 	 	7	 
	Section 3.4. Tag-Along Rights
	 	 	8	 
	Section 3.5. Drag-Along Rights
	 	 	9	 
	Section 3.6. Right of First Refusal
	 	 	10	 
	 
	 	 	 	 
	ARTICLE IV

	 
	 	 	 	 
	REGISTRATION RIGHTS

	 
	 	 	 	 
	Section 4.1. Certain Definitions
	 	 	11	 
	Section 4.2. Piggyback Registration
	 	 	12	 
	Section 4.3. Expenses of Registration
	 	 	13	 
	Section 4.4. Obligations of the Company
	 	 	14	 
	Section 4.5. Indemnification.
	 	 	16	 
	Section 4.6. Information by Holder
	 	 	18	 
	Section 4.7. Transfer of Registration Rights
	 	 	18	 
	Section 4.8. Delay of Registration
	 	 	18	 
	Section 4.9. Rule 144 Reporting
	 	 	18	 
	Section 4.10. “Market Stand Off” Agreement
	 	 	19	 
	Section 4.11. Termination of Registration Rights
	 	 	19	 






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	 	 	Page
	ARTICLE V

	 
	 	 	 	 
	ADDITIONAL AGREEMENTS OF THE PARTIES

	 
	 	 	 	 
	Section 5.1. Further Assurances
	 	 	20	 
	Section 5.2. Freedom to Pursue Opportunities
	 	 	20	 
	Section 5.3. Legend on Share Certificates
	 	 	20	 
	 
	 	 	 	 
	ARTICLE VI

	 
	 	 	 	 
	ADDITIONAL PARTIES

	 
	 	 	 	 
	Section 6.1. Additional Parties
	 	 	21	 
	 
	 	 	 	 
	ARTICLE VII

	 
	 	 	 	 
	MISCELLANEOUS

	 
	 	 	 	 
	Section 7.1. Entire Agreement
	 	 	21	 
	Section 7.2. Specific Performance
	 	 	21	 
	Section 7.3. Governing Law
	 	 	22	 
	Section 7.4. Arbitration
	 	 	22	 
	Section 7.5. Obligations
	 	 	23	 
	Section 7.6. Consent of the SLP Investors
	 	 	23	 
	Section 7.7. Amendment and Waiver
	 	 	23	 
	Section 7.8. Binding Effect
	 	 	23	 
	Section 7.9. Termination
	 	 	23	 
	Section 7.10. Notices
	 	 	23	 
	Section 7.11. Severability
	 	 	25	 
	Section 7.12. Counterparts
	 	 	25	 






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STOCKHOLDERS AGREEMENT




     This STOCKHOLDERS AGREEMENT is made as of May 31, 2007, among Trader Acquisition Corp, a
Delaware corporation (together with its successors and assigns, “Trader” or the
“Company”), Silver Lake Partners II, L.P., a Delaware limited partnership (“SLP
II”), Silver Lake Technology Investors II, L.P, a Delaware limited partnership (together with
its successors and assigns, “SLTI II,” and together with SLP II, the “Initial SLP
Investors”), and Michael Hirtenstein (the “Rollover Investor”).



     WHEREAS, pursuant to the Agreement and Plan of Merger, dated as of March 26, 2007 (as amended,
supplemented, restated or modified from time to time in accordance with its terms, the “Merger
Agreement”), among IPC Systems, Inc., a Delaware corporation and the wholly-owned subsidiary of
Trader (“IPC”), Whitehall Merger Corporation, a Delaware corporation and a wholly-owned
subsidiary of IPC (“Merger Sub”), and Westcom Holding Corp, a Delaware corporation
(“Westcom”), upon the closing of the merger of Merger Sub with and into Westcom pursuant to
the terms and subject to the conditions set forth therein (the “Merger”), Merger Sub shall
merge with and into Westcom, with Westcom continuing as the surviving corporation of the Merger
(the “Surviving Corporation”);



     WHEREAS, the Rollover Investor is currently a shareholder of Westcom;



     WHEREAS, in connection with the Merger, the Rollover Investor has agreed with IPC, pursuant to
that Equity Contribution Agreement dated as of May 31, 2007 among the Rollover Investor, IPC,
Trader and the other parties thereto (as amended, supplemented, restated or modified from time to
time in accordance with its terms, the “Rollover Agreement”), to exchange a number of
shares of common stock of Westcom held by the Rollover Investor as determined in accordance with
the Rollover Agreement (the “Exchanged Westcom Shares”) for 1,868,042 shares of common
stock, par value $0.01 per share, of Trader (the “Rollover Shares”) immediately prior to
the effective time of the Merger;



     WHEREAS, as a condition to IPC and Trader’s agreement to allow the Rollover Investor to
exchange the Exchanged Westcom Shares for the Rollover Shares, the Rollover Investor is obligated
to become a party to this Agreement; and



     WHEREAS, the Rollover Investor, the Initial SLP Investors and the Company desire to set forth
certain rights and obligations of the Rollover Investor with respect to the ownership of the
Rollover Shares by the Rollover Investor.



     NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the
parties mutually agree as follows:



ARTICLE I




DEFINITIONS




     Section 1.1. Definitions. As used in this Agreement, the following terms shall have the meanings set forth below:



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     “Affiliate” means, with respect to any Person, any other Person that controls, is
controlled by, or is under common control with such Person. The term “control”, as used
with respect to any Person, means the power to direct or cause the direction of the management and
policies of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise. “Controlled” and “controlling” have meanings
correlative to the foregoing. Notwithstanding the foregoing, (i) the Company, its Subsidiaries and
the Company’s other controlled Affiliates shall not be considered Affiliates of any stockholder of
the Company and (ii) none of the SLP Investors shall be considered Affiliates of any portfolio
operating company in which the SLP Investors or any of their investment fund Affiliates have made a
debt or equity investment.



     “Affiliated Officer” means an officer of the Company affiliated with the SLP
Investors.



     “Agreement” means this Stockholders Agreement, as the same may be amended,
supplemented, restated or modified.



     “Beneficial ownership” and “beneficially own” and similar terms have the
meaning set forth in Rule 13d-3 under the Exchange Act; provided, however that no
stockholder of the Company shall be deemed to beneficially own any securities of the Company held
by any other stockholder solely by virtue of the provisions of this Agreement (other than this
definition).



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



     “Business Day” means any day, other than a Saturday, Sunday or one on which banks are
authorized by law to be closed in New York, New York.



     “Change in Control” means the occurrence of any of the following events: (i) the sale
or disposition, in one or a series of related transactions, of all or substantially all of the
assets of the Company to any “person” or “group” (as such terms are defined in Sections 13(d)(3)
and 14(d)(2) of the Exchange Act) other than the Initial SLP Investors or any of its Affiliates; or
(ii) any person or group, other than the Initial SLP Investors or any of its Affiliates, is or
becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly, of more than 50% of the total voting power of the voting stock of the
Company, including by way of merger, consolidation or otherwise, and the Initial SLP Investors
and/or their Affiliates cease to control the Board of Directors.



     “Closing” has the meaning set forth in the Merger Agreement.



     “Code” means the Internal Revenue Code of 1986, as amended.



     “Encumbrance” means any charge, claim, community or other marital property interest,
right of first option, right of first refusal, mortgage, pledge, lien or other encumbrance.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder, as the same may be amended from time to time.



2









 





     “Fair Market Value” means (i) with respect to cash consideration, the total amount of
such cash consideration in United States dollars, (ii) with respect to non-cash consideration
consisting of publicly-traded securities, the average daily closing sales price of such securities
for the ten consecutive trading days preceding the date the Fair Market Value of such securities is
required to be determined hereunder (with the closing price for each day being the last reported
sales price regular way or, in case no such reported sale takes place on such day, the average of
the reported closing bid and asked prices regular way, in either case on the principal national
securities exchange on which such securities are listed and admitted to trading, or, if not listed
and admitted to trading on any such exchange on the NASDAQ National Market System, or if not quoted
on the NASDAQ National Market System, the average of the closing bid and asked prices in the
over-the-counter market as furnished by any New York Stock Exchange member firm selected from time
to time by the Company for that purpose) and (iii) with respect to non-cash consideration not
consisting of publicly-traded securities, such amount as is determined to be the fair market value
of the non-cash consideration as of the date such Fair Market Value is required to be determined
hereunder as determined reasonably and in good faith by the Board in a manner consistent with the
regulations pursuant to Section 409A of the Code, as they may be amended from time to time.



     “Family Affiliate” means, with respect to the Rollover Investor, (a) any parent,
grandparent, sibling or child (including any adopted sibling or child) of the Rollover Investor, or
any spouse or former spouse of the Rollover Investor, (b) any trust (i) established solely for the
benefit of (x) the Rollover Investor and/or (y) any of the Persons set forth in the foregoing
clause (a) or (c) any corporation, limited liability company, partnership, foundation or other
Person (i) with respect to which all of the outstanding capital stock or other equity interests are
beneficially owned solely by (x) the Rollover Investor and/or (y) any of the Persons set forth in
the foregoing clause (a) and (ii) with respect to which the Rollover Investor (unless the Rollover
Investor has died) is the majority stockholder (if a corporation), the sole manager or managing
member (if a limited liability company), the sole general partner (if a limited partnership) or
otherwise has the sole power to direct or cause the direction of the management and policies,
directly or indirectly, of such Person, whether through the ownership of voting securities, by
contract or otherwise (if any other type of Person).



     “Initial Public Offering” means the consummation of an underwritten public offering of
Shares registered under the Securities Act.



     “Lapse Date” means the date that is five (5) years after the Closing.



     “Permitted Transferee” means (i) with respect to any SLP Investor, any Affiliate of
such SLP Investor, and (ii) with respect to the Rollover Investor, any Family Affiliate of the
Rollover Investor.



     “Person” means an individual, partnership, corporation, business trust, joint stock
company, trust, unincorporated association, joint venture, limited liability company or any other
entity of whatever nature, and shall include any successor (by merger or otherwise) of such
entity.



3









 





     “Restricted Shares” means all Share Equivalents other than (a) Share Equivalents, the
offer and sale of which have been registered under a registration statement pursuant to the
Securities Act and sold thereunder, (b) Share Equivalents, with respect to which a sale or other
disposition has been made in reliance on and in accordance with Rule 144 (or any successor
provision) under the Securities Act, or (c) Share Equivalents, with respect to which the holder
thereof shall have delivered to the Company either (i) an opinion of counsel in form and substance
reasonably satisfactory to the Company, delivered by counsel reasonably satisfactory to the
Company, or (ii) a “no action” letter from the SEC, to the effect that subsequent transfers of such
Share Equivalents may be effected without registration under the Securities Act.



     “Rule 144” means Rule 144 under the Securities Act.



     “SEC” means the United States Securities and Exchange Commission.



     “Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder, as the same may be amended from time to time.



     “Share Equivalents” means (i) Shares (for the avoidance of doubt, including, without
limitation, the Rollover Shares held by the Rollover Investor and Shares received upon exercise of
stock options held by other Persons) and (ii) the number of Shares issuable upon exercise,
conversion or exchange of any security that is currently exercisable for, convertible into or
exchangeable for, on any such date of determination, Shares without payment to the Company of any
additional consideration. For the avoidance of doubt, in no instance shall stock options relating
to the Company’s common stock be considered Share Equivalents.



     “Shares” means the common stock of the Company.



     “SLP Investors” means the Initial SLP Investors and any of its Affiliates that hold
Share Equivalents.



     “Subsidiary” means, with respect to any party, any corporation, partnership, trust,
limited liability company or other non-corporate business enterprise in which such party (or
another Subsidiary of such party) holds stock or other ownership interests representing (A) more
than 50% of the voting power of all outstanding stock or ownership interests of such entity, (B)
the right to receive more than 50% of the net assets of such entity available for distribution to
the holders of outstanding stock or ownership interests upon a liquidation or dissolution of such
entity or (C) a general or managing partnership interest in such entity.



     “Transfer Restriction Period” means the period beginning on the date hereof and ending
on the earliest to occur of (i) an Initial Public Offering by the Company of at least 25% of the
outstanding Shares or that results in gross proceeds to the Company of at least $100 million, (ii)
the occurrence of a Change in Control or (iii) the Lapse Date.



     Section 1.2. Definitions Cross Reference



	 	 	 
	Terms	 	Cross-Reference
	Acceptance Notice

	 	Section 3.6(b)
	Board Participant

	 	Section 5.2






4









 






	 	 	 
	Terms	 	Cross-Reference
	Company
	 	Preamble
	Company Registration
	 	Section 4.2(a)
	Demand Registration
	 	Section 4.2(a)
	Dispute and Disputes
	 	Section 7.4
	Drag-Along Notice
	 	Section 3.5(a)
	Drag-Along Portion
	 	Section 3.5(a)
	Drag-Along Sale
	 	Section 3.5(a)
	Holder and Holders
	 	Section 4.1(e)
	Indemnified Party
	 	Section 4.5(c)
	Indemnifying Party
	 	Section 4.5(c)
	Initial Senior Managers
	 	Preamble
	Initial SLP Investors
	 	Preamble
	Initiating Holder
	 	Section 4.1(b)
	IPC
	 	Preamble
	JAMS
	 	Section 7.4
	Merger
	 	Preamble
	Merger Agreement
	 	Preamble
	Offer Notice
	 	Section 3.6(b)
	Offered Shares
	 	Section 3.6(b)
	Pro Rata Portion
	 	Section 3.4(b)
	register, registered and registration
	 	Section 4.1(b)
	Registrable Securities
	 	Section 4.1(d)
	Registration Statement
	 	Section 4.1(b)
	Selling SLP Investors
	 	Section 3.4(a)
	Senior Manager
	 	Preamble
	Shares
	 	Preamble
	SLP II
	 	Preamble
	SLP Holders
	 	Section 4.1(f)
	Spousal Consent
	 	Section 2.1(d)
	Tag-Along Sale

	 	Section 3.4(a)
	Third Party Holder
	 	Section 4.1(f)
	transfer
	 	Section 3.1(a)
	Transfer Notice
	 	Section 3.4(a)






     Section 1.3. General Interpretive Principles. The name assigned to this Agreement and
the section captions used herein are for convenience of reference only and shall not be construed
to affect the meaning, construction or effect hereof. Unless otherwise specified, the terms
“hereof,” “herein” and similar terms refer to this Agreement as a whole, and references herein to
Articles or Sections refer to Articles or Sections of this Agreement. For purposes of this
Agreement, the words, “include,” “includes”
and “including,” when used herein, shall be deemed in each case to be followed by the words
“without limitation.” The terms “dollars” and “$” shall mean United States dollars. Except as
otherwise set forth herein, Shares underlying unexercised options that have been issued by the
Company shall not be deemed “outstanding” for any purposes in this Agreement. The parties hereto
have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or
question of intent or



5









 







interpretation arises, this Agreement will be construed as if drafted jointly
by the parties and no presumption or burden of proof will arise favoring or disfavoring any party
because of the authorship of any provision of this Agreement.



ARTICLE II




REPRESENTATIONS AND WARRANTIES




     Section 2.1. Representations and Warranties of the Rollover Investor. The Rollover
Investor hereby represents and warrants to the Company and the Initial SLP Investors as follows:



     (a) The Rollover Investor is competent to, and has sufficient capacity to, execute and deliver
this Agreement and to perform his obligations hereunder. This Agreement has been duly executed and
delivered by the Rollover Investor and, assuming the due execution and delivery of this Agreement
by the other parties hereto, this Agreement constitutes the valid and binding obligation of the
Rollover Investor, enforceable against the Rollover Investor in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors’ rights generally and by the effect of
general principles of equity (regardless of whether enforcement is considered in a proceeding in
equity or at law).



     (b) The execution, delivery and performance by the Rollover Investor of this Agreement and the
agreements contemplated hereby and the consummation by the Rollover Investor of the transactions
contemplated hereby does not and will not, with or without the giving of notice or the passage of
time or both, (i) violate the provisions of any law, rule or regulation applicable to the Rollover
Investor or his properties or assets; (ii) violate any judgment, decree, order or award of any
court, governmental or quasi-governmental agency or arbitrator applicable to the Rollover Investor
or his properties or assets; or (iii) result in any breach of any terms or conditions, or
constitute a default under, any contract, agreement or instrument to which the Rollover Investor is
a party or by which the Rollover Investor or his properties or assets are bound.



     (c) The Rollover Investor (i) understands that no public market now exists for the Shares and
there is no assurance that a public market will ever exist for the Shares and (ii) understands that
the Shares may not be sold, transferred, or otherwise disposed of without registration under the
Securities Act or an exemption therefrom, and that in the absence of an effective registration
statement covering the Shares or an available exemption from registration under the Securities Act,
the Rollover Shares must be held indefinitely.



     (d) If the Rollover Investor is married, he has delivered to the Company a duly executed copy
of a Spousal Consent in the form attached hereto as Exhibit A (the “Spousal
Consent”).




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ARTICLE III




TRANSFER RESTRICTIONS




          Section 3.1. General Restrictions on Transfers.




          (a) The Rollover Investor may not sell, exchange, assign, pledge, hypothecate, give or
otherwise transfer or dispose of (all of which acts shall be deemed included in the term
“transfer” as used in this Agreement) any legal, economic or beneficial interest in any
Share Equivalents (whether held in its own right or by its representative) unless (i) such transfer
of Share Equivalents is made on the books of the Company and is not in violation of the provisions
of this Article III and (ii) the transferee of such Share Equivalents (if other than (A) the
Company, (B) a transferee in a sale of Share Equivalents made under Rule 144 or any successor
provision under the Securities Act or (C) a transferee of Share Equivalents pursuant to an offer
and sale registered under the Securities Act) agrees to become a party to this Agreement pursuant
to Article VI hereof and executes such further documents as may be necessary in the opinion of the
Company and the SLP Investors, to make him, her or it a party hereto, including a Spousal Consent,
if applicable.




          (b) Any purported transfer of Share Equivalents other than in accordance with this Agreement
by the Rollover Investor shall be null and void, and the Company shall not recognize any such
transfer for any purpose and shall not reflect in its records any change in record ownership of
Share Equivalents pursuant to any such transfer.




          (c) The Rollover Investor agrees that it will not transfer any Restricted Shares at any time
if such action would constitute a violation of any securities laws of any applicable jurisdiction
or a breach of the conditions to any exemption from registration of Restricted Shares under any
such laws or a breach of any undertaking or agreement of the Rollover Investor entered into
pursuant to such laws or in connection with obtaining an exemption thereunder. The Rollover
Investor agrees that any Restricted Shares to be held by him shall bear the restrictive legend set
forth in Section 5.3.




          Section 3.2. Permitted Transfers. The Rollover Investor may transfer any or all of the
Share Equivalents held by it to any of its Permitted Transferees without complying with the
provisions of this Article III other than Section 3.1; provided that (i) such Permitted
Transferee shall have agreed in writing with the parties hereto that, except as otherwise required
by law or governmental order, it will immediately transfer all Share Equivalents and all rights and
obligations hereunder to the Rollover Investor or another Permitted Transferee of the Rollover
Investor at such time
that it ceases to be a Permitted Transferee of the Rollover Investor and (ii) as a condition
to such transfer, such Permitted Transferee shall become a party to this Agreement as provided in
Section 3.1(a).




          Section 3.3. Restrictions on Transfers by the Rollover Investor. During the Transfer
Restriction Period, the Rollover Investor (and any of his Permitted Transferees holding Share
Equivalents) shall not transfer any Share Equivalents to any Person, except transfers (a) to
Permitted Transferees of the Rollover Investor pursuant to Section 3.2, (b) pursuant to and in





7









 







compliance with Section 3.4, Section 3.5 or Article IV, (c) to the Company, SLP II or any of its
Affiliates, or (d) upon receipt of the prior written consent of the Company.




          Section 3.4. Tag-Along Rights.




          (a) Subject to Section 3.4(c), if one or more of the SLP Investors proposes to transfer Share
Equivalents to another Person (other than a Permitted Transferee of the SLP Investors) (a
“Tag-Along Sale”), such SLP Investor or SLP Investors (hereinafter referred to as the
“Selling SLP Investors”) shall give written notice (a “Transfer Notice”) of such
proposed transfer to the Rollover Investor at least 10 Business Days prior to the consummation of
such proposed transfer, setting forth (i) the number of Share Equivalents proposed to be
transferred, (ii) the consideration to be received for such Share Equivalents by such Selling SLP
Investors, (iii) the identity of the purchaser, (iv) any other material terms and conditions of the
proposed transfer, (v) the date of the proposed transfer and (vi) that the Rollover Investor shall
have the right, upon the terms and subject to the conditions set forth in this Section 3.4, to
elect to sell up to his Pro Rata Portion (as defined below) of such Share Equivalents. If any
transaction involving the transfer of Share Equivalents is subject to both this Section 3.4 and
Section 3.5, only the provisions of Section 3.5 shall apply to such transaction so long as the SLP
Investors have given a Drag-Along Notice to the Rollover Investor pursuant to Section 3.5 and such
Drag-Along Notice has not been rescinded or otherwise terminated.




          (b) Upon delivery of a Transfer Notice, the Rollover Investor may elect to sell up to his Pro
Rata Portion of Share Equivalents, at the same price per Share Equivalent and pursuant to the same
terms and conditions with respect to payment for the Share Equivalents as agreed to by the Selling
SLP Investors in the Tag-Along Sale, by sending written notice to each of the Selling SLP Investors
within 10 Business Days after the date of the Transfer Notice, indicating his election to sell, and
the number proposed to be sold of, Share Equivalents (not to exceed the Rollover Investor’s Pro
Rata Portion) in such Tag-Along Sale. Following such 10 Business-Day period, the Rollover
Investor, to the extent he has delivered written notice as provided above indicating his election
to participate in the Tag-Along Sale, concurrently with the Selling SLP Investors, shall be
permitted to sell to the purchaser on the terms and conditions set forth in the Transfer Notice the
number of shares specified in his written notice (but in no event more than his Pro Rata Portion).
All costs and expenses incurred by the Selling SLP Investors in connection with any such Tag-Along
Sale shall be borne on a pro rata basis in accordance with the number of Share Equivalents being
sold by each of the Selling SLP Investors, the Rollover
Investor (to the extent participating) and all other Persons who otherwise are transferring,
or have the contractual or other right to transfer, Share Equivalents in such Tag-Along Sale. For
purposes of this Section 3.4, “Pro Rata Portion” shall mean, with respect to Share
Equivalents held by the Rollover Investor, a number equal to the product of (i) the total number of
Share Equivalents proposed to be sold to a purchaser as set forth in a Transfer Notice multiplied
by (ii) a fraction, the numerator of which shall be the total number of Share Equivalents
beneficially owned by the Rollover Investor and the denominator of which shall be the total number
of Share Equivalents (including any Shares issued in respect of vested and exercisable stock
options) beneficially owned by all (x) Selling SLP Investors, (y) the Rollover Investor and (z) all
other Persons who otherwise are exercising their rights (contractual or otherwise) to participate
in the Tag-Along Sale (such Persons in clauses (x), (y) and (z), collectively, the “Tag Along
Sellers”); provided that the foregoing notwithstanding, in no event shall the Rollover
Investor be permitted




8









 







to transfer in the Tag-Along Sale a number of Share Equivalents exceeding the
product of (x) the number of Share Equivalents then beneficially owned by the Rollover Investor,
multiplied by (y) a fraction determined by dividing the number of Share Equivalents to be purchased
from the Selling SLP Investors in the Tag-Along Sale by the total number of Share Equivalents
beneficially owned by the Selling SLP Investors immediately prior to the Tag-Along Sale.




          (c) This Section 3.4 shall not apply to (i) any transfer to a Permitted Transferee pursuant to
Section 3.2, (ii) any transfer in a public offering in accordance with Article IV or (iii) any
transfer after an Initial Public Offering pursuant to Rule 144.




          (d) This Section 3.4 shall terminate on the expiration of the Transfer Restriction Period.




          Section 3.5. Drag-Along Rights.




          (a) The SLP Investors may give written notice (a “Drag-Along Notice”) to the Rollover
Investor and his Permitted Transferees holding Share Equivalents, if any, that the SLP Investors
intend to enter into a transaction or a series of related transactions involving the transfer, of
not less than fifty percent (50%) of the outstanding Share Equivalents (which Share Equivalents to
be transferred may include Share Equivalents held by other holders of Share Equivalents) to a
Person or “group” of Persons (other than to the SLP Investors or an Affiliate of the SLP
Investors), whether by merger, tender offer or otherwise (a “Drag-Along Sale”), and, that
the SLP Investors desire to cause the Rollover Investor and his Permitted Transferees holding Share
Equivalents to participate in such transaction on the same terms and conditions as available to the
SLP Investors; provided, however, that the Rollover Investor and such Permitted
Transferees shall not be required to assume any liability or provide indemnification in connection
with such transaction other than (i) liability or indemnification that relates to the ownership of,
and the ability to transfer, the Share Equivalents being transferred by the Rollover Investor and
such Permitted Transferees and (ii) with respect to all other liabilities or indemnification in
connection with such transaction, the Rollover Investor and such Permitted Transferees’ aggregate
pro rata share on the same terms and conditions as the SLP Investors (based on the number of Share
Equivalents being transferred by the Rollover Investor and such Permitted Transferees (in the
aggregate) in such transaction); provided that in no event shall the liability required to
be assumed by the Rollover Investor or such Permitted Transferees or the indemnification required
to be provided by the Rollover Investor or such Permitted Transferees
exceed the amount of gross proceeds received by the Rollover Investor or such Permitted
Transferees, as applicable, in the Drag-Along Sale. Such Drag-Along Notice shall also specify (1)
the consideration, if any, to be received by the SLP Investors and the Rollover Investor and his
Permitted Transferees holding Share Equivalents, if applicable, and any other material terms and
conditions of the proposed transaction (which price and other material terms and conditions shall
be the same in all material respects for the SLP Investors, the Rollover Investor and such
Permitted Transferees), (2) the identity of the other Person or Persons party to the transaction,
(3) the date of completion of the proposed transaction (which date shall be not less than ten (10)
Business Days after the date of the notice) and (4) the action or actions required of the Rollover
Investor and such Permitted Transferees in order to complete or facilitate such proposed
transaction (including the sale of Share Equivalents held by the Rollover Investor and such
Permitted Transferees, the voting of all such Share Equivalents in favor of any such merger,





9









 







consolidation or sale of assets and the waiver of any related appraisal or dissenters’ rights). If
the SLP Investors are transferring less than all of the Share Equivalents held by the SLP
Investors, then the Rollover Investor and his Permitted Transferees holding Share Equivalents will
transfer in the aggregate a number of Share Equivalents equal to the product of the following (the
“Drag-Along Portion”): (x) the number of Share Equivalents beneficially owned by the
Rollover Investor and his Permitted Transferees in the aggregate multiplied by (y) a fraction, the
numerator of which is the aggregate number of Share Equivalents being transferred by the SLP
Investors and the denominator of which equals the aggregate number of Share Equivalents
beneficially owned by the SLP Investors immediately prior to the Drag Along Sale. Upon receipt of
such Drag-Along Notice, the Rollover Investor and his Permitted Transferees shall be obligated to
take the action or actions referred to in clause (4) above.




          (b) This Section 3.5 shall terminate on the expiration of the Transfer Restriction Period.




          Section 3.6. Right of First Refusal.




          (a) On and after the Lapse Date, if the Rollover Investor (or any of his Permitted Transferees
holding Share Equivalents) proposes to transfer any Share Equivalents to another Person (other than
a Permitted Transferee of the Rollover Investor), the Rollover Investor (or transferring Permitted
Transferee) shall give written notice (the “Offer Notice”) of such proposed transfer to the
Company, setting forth (i) the number of Share Equivalents proposed to be transferred (the
“Offered Shares”), (ii) the consideration to be received for the Offered Shares by the
Rollover Investor or Permitted Transferee, as applicable, (iii) the identity of the purchaser, (iv)
any other material terms and conditions of the proposed transfer, (v) the date of the proposed
transfer.




          (b) The Company shall have the right, but not the obligation, to purchase all of the Offered
Shares specified in the Offer Notice at the price and on the terms specified therein by delivering
written notice (the “Acceptance Notice”) of such election to the Rollover Investor or his
Permitted Transferee(s), as applicable, within 10 Business Days after the delivery of the Offer
Notice.




          (c) If the Company shall have agreed to purchase all of the Offered Shares, it shall
consummate its purchase by delivering, against receipt of certificates or other instruments
representing the Offered Shares being purchased, appropriately endorsed by the Rollover
Investor (or his Permitted Transferee(s)), the aggregate purchase price to be paid by it via wire
transfer of immediately available funds to an account specified by the Rollover Investor (or his
Permitted Transferee(s)) not less than one Business Day before the closing date, which closing date
will be 20 Business Days after the date of receipt of the Acceptance Notice. In the event the
Offer Notice provides for any non-cash consideration for the Offered Shares, the Company shall have
the option to pay in cash the Fair Market Value of such non-cash consideration in lieu of paying
such non-cash consideration.




          (d) If the Company does not exercise its rights under this Section 3.6, the Rollover Investor
and/or his transferring Permitted Transferee(s) shall be permitted to proceed with the proposed
transfer of all (but not less than all) of the Offered Shares, and the Rollover





10









 







Investor and/or his
transferring Permitted Transferee(s), as applicable, shall have 90 days to consummate such proposed
transfer to the identified proposed transferee or transferees, on terms no more favorable to such
proposed transferee or transferees than those terms set forth in the Offer Notice, before the
provisions of this Section 3.6 shall again be in effect with respect to such Offered Shares.




          (e) The Company’s right to purchase any Offered Shares pursuant to this Section 3.6 shall be
freely assignable to any of its Affiliates.




          (f) This Section 3.6 shall not apply to any transfer occurring after an Initial Public
Offering has occurred.




ARTICLE IV




REGISTRATION RIGHTS




     The Company hereby grants to each of the Holders (as defined below) the registration rights
set forth in this Article IV, with respect to the Registrable Securities (as defined below) owned
by such Holders.



          Section 4.1. Certain Definitions. As used in this Article IV:




          (a) “Holder” (collectively, “Holders”) means the Rollover Investor and any of
his transferees pursuant to Section 4.7 below.




          (b) “Initiating Holder” means any holder of Share Equivalents who exercises
contractual rights to cause the Company to make a registered offering of Shares on behalf of such
holder.




          (c) “register”, “registered” and “registration” refer to a
registration effected by filing with the SEC a registration statement (the “Registration
Statement”) in compliance with the Securities Act, and the declaration or ordering by the SEC
of the effectiveness of such Registration Statement.




     (d) “Registrable Securities” means (i) Shares held by Holders, SLP Holders or Third
Party Holders, (ii) Shares issued or issuable upon the exercise of stock options issued or granted
by the Company or its Subsidiaries pursuant to duly authorized equity incentive plans and (iii) any
Shares issued as (or issuable upon the conversion or exercise of any warrant, right or other
security that is issued as) a dividend or other distribution with respect to, or in exchange or in
replacement of, such Registrable Securities; provided, however, that Shares or
other securities shall cease to be treated as Registrable Securities if (a) a registration
statement covering such securities has been declared effective by the SEC and such security has
been disposed of pursuant to such effective registration statement, (b) a registration statement on
Form S-8 covering such securities has been declared effective by the SEC and such security has been
disposed of pursuant to such effective registration statement, (c) such security is sold pursuant
to Rule 144, (d) such security ceases to be outstanding or (e) the Holder thereof, together with
his or her Permitted Transferees, beneficially owns less than 1% of the Shares that are outstanding
at such time and such Holder and his or her Permitted Transferees are able to dispose of all of
their



11









 




Registrable Securities in any 90 day period pursuant to Rule 144 (or any similar or analogous
rule promulgated under the Securities Act), provided, that if Article III would prevent the
Rollover Investor from disposing of Shares in the 90 day time period contemplated by this clause
(e), this clause (e) shall not disqualify any Shares held by the Rollover Investor from being
Registrable Securities.




          (e) “SLP Holders” means one or more SLP Investors.




          (f) “Third Party Holder” means any holder of Share Equivalents (which may include the
SLP Holders) who exercises contractual rights to participate in a registered offering of Shares.




          Section 4.2. Piggyback Registration.




          (a) Company Registration. Subject to Section 4.2(d), if at any time or from time to
time the Company shall determine to register any of its Share Equivalents, either for its own
account (a “Company Registration”) or for the account of security holders (a “Demand
Registration”) (other than (1) in a registration relating solely to employee benefit plans, (2)
a registration on Form S-4 or S-8 (or such other similar successor forms then in effect under the
Securities Act), (3) a registration pursuant to which the Company is offering to exchange its own
securities, (4) a registration statement relating solely to dividend reinvestment or similar plans,
or (5) a shelf registration statement pursuant to which only the initial purchasers and subsequent
transferees of debt securities of the Company or any Subsidiary that are convertible for Shares and
that are initially issued pursuant to Rule 144A and/or Regulation S of the Securities Act may
resell such notes and sell the Shares into which such notes may be converted), the Company will:





     (i) promptly (but in no event less than 7 Business Days before the effective date of
the relevant Registration Statement) give to each Holder written notice thereof; and




     (ii) include in such registration (and any related qualification under state securities
laws or other compliance), and in any underwriting involved therein, all the Registrable
Securities specified in a written request or requests, made within 5 Business
Days after receipt of such written notice from the Company, by any Holder or Holders,
except as set forth in Section 4.2(b) below.



     (b) Underwriting. If the registration of which the Company gives notice is for a
registered public offering involving an underwriting, the Company shall so advise the Holders as a
part of the written notice given pursuant to Section 4.2(a)(i). In such event the right of any
Holder to registration pursuant to this Section 4.2 shall be conditioned upon such Holder’s
participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the
underwriting to the extent provided herein. All Holders proposing to distribute their Registrable
Securities through such underwriting shall, together with the Company and the other parties
distributing their securities through such underwriting, enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such underwriting by the Company.
Notwithstanding any other provision of this Section 4.2, if the underwriter determines that
marketing factors require a limitation of the number of shares to be underwritten,



12









 




the underwriter
may limit the number of Registrable Securities to be included in the registration and underwriting,
subject to the terms of this Section 4.2. The Company shall so advise all holders of the Company’s
securities that would otherwise be registered and underwritten pursuant hereto, and the number of
shares of such securities, including Registrable Securities, that may be included in the
registration and underwriting shall be allocated first, (x) in the case of a Company
Registration, to the Company, or (y) in the case of a Demand Registration, the Initiating Holder
thereof and such other Third Party Holders (and the Company, if not contractually prohibited from
doing so) contractually entitled to priority with such Initiating Holder distributing their
securities through such underwriting on a pro rata basis based on the total number of Registrable
Securities held by such Initiating Holder and such Third Party Holders (and the Company, if
applicable) distributing their securities through such underwriting, and second, (1) in the
case of a Company Registration, to the Holders and the Third Party Holders distributing their
securities through such underwriting on a pro rata basis based on the total number of Registrable
Securities held by such Holders and Third Party Holders distributing their securities through such
underwriting, or (2) in the case of a Demand Registration, the Holders and such other Third Party
Holders (and the Company, to the extent participating and not contractually prohibited from doing
so) not contractually entitled to priority with the Initiating Holder distributing their securities
through such underwriting on a pro rata basis based on the total number of Registrable Securities
held by the Holders and such Third Party Holders (and the Company, if applicable) distributing
their securities through such underwriting. With respect to a Company Registration, no such
reduction shall reduce the securities being offered by the Company for its own account to be
included in the registration and underwriting. No securities excluded from the underwriting by
reason of the underwriter’s marketing limitation shall be included in such registration.




          (c) Right to Terminate Registration. The Company shall have the right to terminate or
withdraw any registration initiated by it under this Section 4.2 prior to the effectiveness of such
registration whether or not any Holder has elected to include securities in such registration.




          (d) Limitations. Until the one-year anniversary of the consummation of the Initial
Public Offering, the Holders may not elect to include Registrable Securities in a registration
pursuant to this Section 4.2 unless one or more SLP Holders elects to include
Registrable Securities in such registration. Without limiting the generality of the
foregoing, this Section 4.2 shall not apply to any Registration Statement under the Securities Act
(and the Holders shall have no rights under this Section 4.2) with respect to any Initial Public
Offering unless one or more of the SLP Holders is selling Registrable Securities in such offering.




     Section 4.3. Expenses of Registration. All expenses incurred in connection with all
registrations effected pursuant to Section 4.2, including all registration, filing and
qualification fees (including state securities law fees and expenses), printing expenses, escrow
fees, fees and disbursements of counsel for the Company and expenses of any special audits
incidental to or required by such registration shall be borne by the Company; provided,
however, that the Company shall not be required to pay stock transfer taxes or
underwriters’ discounts or selling commissions relating to Registrable Securities.



13









 





          Section 4.4. Obligations of the Company. Whenever required under this Article IV to
effect the registration of any Registrable Securities, the Company shall, as expeditiously as
reasonably possible:




          (a) prepare and file with the SEC a Registration Statement with respect to such Registrable
Securities and use its reasonable best efforts to cause such Registration Statement to become
effective, and keep such Registration Statement effective for the lesser of 365 days or until the
Holder or Holders have completed the distribution relating thereto;




          (b) prepare and file with the SEC such amendments and supplements to such Registration
Statement and the prospectus used in connection with such Registration Statement as may be
necessary to keep such Registration Statement effective and to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such Registration
Statement in accordance with the intended methods of disposition by sellers thereof set forth in
such Registration Statement;




          (c) permit any Holder which Holder, in the reasonable judgment, exercised in good faith, of
such Holder, might be deemed to be a controlling person of the Company, to participate in good
faith in the preparation of such Registration Statement and to cooperate in good faith to include
therein material, furnished to the Company in writing, that in the reasonable judgment of such
Holder and its counsel should be included, and to provide to any other Holder named in such
Registration Statement a reasonable opportunity to review the Registration Statement with respect
to any disclosure or other information relating to such Holder;




          (d) furnish to the Holders such numbers of copies of a prospectus, including all exhibits
thereto and documents incorporated by reference therein and a preliminary prospectus, in conformity
with the requirements of the Securities Act, and such other documents as they may reasonably
request in order to facilitate the disposition of Registrable Securities owned by them;




          (e) in the event of any underwritten public offering, enter into and perform its obligations
under an underwriting agreement, in usual and customary form, with the managing
underwriter(s) of such offering. Each Holder participating in such underwriting shall also
enter into and perform its obligations under such an agreement; provided that, prior to
entering into any such agreement, the such Holder shall be provided a reasonable opportunity to
review any such agreement;




          (f) notify each Holder of Registrable Securities covered by such Registration Statement as
soon as reasonably practicable after notice thereof is received by the Company of any written
comments by the SEC or any request by the SEC or any other federal or state governmental authority
for amendments or supplements to such Registration Statement or such prospectus or for additional
information;




          (g) notify each Holder of Registrable Securities covered by such Registration Statement, at
any time when a prospectus relating thereto is required to be delivered under the Securities Act,
of the happening of any event as a result of which the prospectus included in such Registration
Statement, as then in effect, includes an untrue statement of a material fact or omits




14









 







to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing;




          (h) notify each Holder of Registrable Securities covered by such Registration Statement as
soon as reasonably practicable after notice thereof is received by the Company of the issuance by
the SEC of any stop order suspending the effectiveness of such Registration Statement or any order
by the SEC or any other regulatory authority preventing or suspending the use of any preliminary or
final prospectus or the initiation or threatening of any proceedings for such purposes, or any
notification with respect to the suspension of the qualification of the Registrable Securities for
offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such
purpose;




          (i) use its reasonable best efforts to prevent the issuance of any stop order suspending the
effectiveness of any Registration Statement or of any order preventing or suspending the use of any
preliminary or final prospectus and, if any such order is issued, to obtain the withdrawal of any
such order as soon as practicable;




          (j) make available for inspection by each Holder including Registrable Securities in such
registration, any underwriter participating in any distribution pursuant to such registration, and
any attorney, accountant or other agent retained by such Holder or underwriter, all financial and
other records, pertinent corporate documents and properties of the Company, as such parties may
reasonably request, and cause the Company’s officers, directors and employees to supply all
information reasonably requested by any such Holder, underwriter, attorney, accountant or agent in
connection with such Registration Statement;




          (k) use its reasonable best efforts to register or qualify, and cooperate with the Holders of
Registrable Securities covered by such Registration Statement, the underwriters, if any, and their
respective counsel, in connection with the registration or qualification of such Registrable
Securities for offer and sale under the securities or “blue sky” laws of each state and other
jurisdiction of the United States as any such Holder or underwriters, if any, or their respective
counsel reasonably request in writing; provided that the Company shall not be
required to qualify generally to do business in any jurisdiction where it is not then so qualified
or take any action which would subject it to taxation or general service of process in any such
jurisdiction where it is not then so subject;




          (l) obtain for delivery to the Holders of Registrable Securities covered by such Registration
Statement and to the underwriters, if any, an opinion or opinions from counsel for the Company,
dated the effective date of the Registration Statement or, in the event of an underwritten
offering, the date of the closing under the underwriting agreement, in customary form, scope and
substance, which opinions shall be reasonably satisfactory to such holders or underwriters, as the
case may be, and their respective counsel;




          (m) in the case of an underwritten offering, obtain for delivery to the Company and the
underwriters, with copies to the Holders of Registrable Securities included in such Registration, a
cold comfort letter from the Company’s independent certified public accountants in customary form
and covering such matters of the type customarily covered by cold comfort letters as the managing
underwriter or underwriters reasonably request, dated the date




15









 







 of execution of the underwriting
agreement and brought down to the closing under the underwriting agreement;




          (n) use its reasonable best efforts to list the Registrable Securities that are Shares covered
by such Registration Statement with any securities exchange on which the Shares are then listed;




          (o) provide and cause to be maintained a transfer agent and registrar for all Registrable
Securities covered by the applicable Registration Statement from and after a date not later than
the effective date of such Registration Statement;




          (p) cooperate with Holders including Registrable Securities in such registration and the
underwriters, if any, to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold, such certificates to be in such denominations and
registered in such names as such Holders or the managing underwriters may request at least two
Business Days prior to any sale of Registrable Securities;




          (q) use its reasonable best efforts to comply with all applicable securities laws and make
available to its Holders, as soon as reasonably practicable, an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act and the rules and regulations promulgated
thereunder; and




          (r) in the case of an underwritten offering, cause the senior executive officers of the
Company to participate in the customary “road show” presentations that may be reasonably requested
by the underwriters and otherwise to facilitate, cooperate with and participate in each proposed
offering contemplated herein and customary selling efforts related thereto.




          Section 4.5. Indemnification.




          (a) The Company will, and does hereby undertake to, indemnify and hold harmless each Holder of
Registrable Securities, each of such Holder’s officers, directors, employees, partners and agents,
and each Person controlling such Holder, with respect to any
registration, qualification or compliance effected pursuant to this Article IV, and each
underwriter, if any, and each Person who controls any underwriter, of the Registrable Securities
held by or issuable to such Holder, against all claims, losses, damages and liabilities (or actions
in respect thereto) to which they may become subject under the Securities Act, the Exchange Act, or
other federal or state law arising out of or based on (A) any untrue statement (or alleged untrue
statement) of a material fact contained in any prospectus, offering circular, free writing
prospectus or other similar document (including any related Registration Statement, notification,
or the like) incident to any such registration, qualification or compliance, or based on any
omission (or alleged omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the circumstances in which they
were made, (B) any violation or alleged violation by the Company of any federal, state or common
law rule or regulation applicable to the Company in connection with any such registration,
qualification or compliance, or (C) any failure to register or qualify Registrable Securities in
any state where the Company or its agents have affirmatively undertaken or agreed





16











 




in writing that the Company (the undertaking of any underwriter chosen by the Company being
attributed to the Company) will undertake such registration or qualification on behalf of the
Holders of such Registrable Securities (provided that in such instance the Company shall
not be so liable if it has undertaken its reasonable best efforts to so register or qualify such
Registrable Securities) and will reimburse, as incurred, each such Holder, each such underwriter
and each such director, officer, partner, agent and controlling person, for any legal and any other
expenses reasonably incurred in connection with investigating or defending any such claim, loss,
damage, liability or action; provided that the Company will not be liable in any such case
to the extent that any such claim, loss, damage, liability or expense arises out of or is based on
any untrue statement or omission made in reliance and in conformity with written information
furnished to the Company by such Holder or underwriter expressly for use therein.




          (b) Each Holder will, and if Registrable Securities held by or issuable to such Holder are
included in such registration, qualification or compliance pursuant to this Article IV, does hereby
undertake to indemnify and hold harmless the Company, each of its directors, employees, agents and
officers, and each Person controlling the Company, each underwriter, if any, and each Person who
controls any underwriter, of the Company’s securities covered by such a Registration Statement, and
each other Holder, each of such other Holder’s officers, partners, directors and agents and each
Person controlling such other Holder, against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement of a material fact
contained in any such Registration Statement, prospectus, offering circular, free writing
prospectus or other document, or any omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading in light of the
circumstances in which they were made, and will reimburse, as incurred, the Company, each such
underwriter, each such other Holder, and each such director, officer, employee, agent, partner and
controlling Person of the foregoing, for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage, liability or action, in
each case to the extent, but only to the extent, that such untrue statement or omission was made in
such Registration Statement, prospectus, offering circular, free writing prospectus or other
document, in reliance upon and in conformity with written information furnished to the Company by
such Holder expressly for use therein; provided, however, that the liability of
each Holder hereunder shall be limited to the net proceeds received by such Holder from the sale of
securities under such Registration Statement. It is understood and agreed that the indemnification
obligations of each Holder pursuant to any underwriting agreement entered into in connection with
any Registration Statement shall be limited to the obligations contained in this Section 4.5(b).




          (c) Each party entitled to indemnification under this Section 4.5 (the “Indemnified
Party”) shall give notice to the party required to provide such indemnification (the
“Indemnifying Party”) of any claim as to which indemnification may be sought promptly after
such Indemnified Party has actual knowledge thereof, and shall permit the Indemnifying Party to
assume the defense of any such claim or any litigation resulting therefrom; provided
that counsel for the Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be subject to approval by the Indemnified Party (whose approval shall not be
unreasonably withheld) and the Indemnified Party may participate in such defense at the
Indemnifying Party’s expense if representation of such Indemnified Party would be inappropriate due
to actual or potential differing interests between such indemnified party and any other party
represented by




17









 







such counsel in such proceeding; and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Article IV, except to the extent that such failure to give notice shall
materially adversely affect the Indemnifying Party in the defense of any such claim or any such
litigation. An Indemnifying Party, in the defense of any such claim or litigation, may, without
the consent of each Indemnified Party, consent to entry of any judgment or enter into any
settlement that includes as an unconditional term thereof the giving by the claimant or plaintiff
therein, to such Indemnified Party, of a release from all liability with respect to such claim or
litigation.




          (d) In order to provide for just and equitable contribution in case indemnification is
prohibited or limited by law, the Indemnifying Party, in lieu of indemnifying such Indemnified
Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such
losses, claims, damages or liabilities in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party and Indemnified Party in connection with the actions which resulted
in such losses, claims, damages or liabilities, 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 any action in question, including any
untrue or alleged untrue statement of material fact or omission or alleged omission to state a
material fact, has been made by, or relates to information supplied by, such Indemnifying Party or
Indemnified Party, and such party’s relative intent, knowledge, access to information and
opportunity to correct or prevent such actions; provided, however, that, in any
case, (i) no Holder will be required to contribute any amount in excess of the public offering
price of all securities offered by it pursuant to such Registration Statement less all underwriting
fees and discounts and (ii) no Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) will be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.




          (e) The indemnities provided in this Section 4.5 shall survive the transfer of any Registrable
Securities by such Holder.




          Section 4.6. Information by Holder. The Holder or Holders of Registrable Securities
included in any registration shall furnish to the Company such information regarding such Holder or
Holders and the distribution proposed by such Holder or Holders as the Company may reasonably
request in writing and as shall be required in connection with any registration, qualification or
compliance referred to in this Article IV.




          Section 4.7. Transfer of Registration Rights. The rights, contained in Section 4.2
hereof, to cause the Company to register the Registrable Securities, may be assigned or otherwise
conveyed by the Holders pursuant to a transfer permitted pursuant to Section 3.2.




          Section 4.8. Delay of Registration. No Holder shall have any right to obtain or seek
an injunction restraining or otherwise delaying any such registration as the result of any
controversy that might arise with respect to the interpretation or implementation of this Article
IV.




          Section 4.9. Rule 144 Reporting. With a view to making available to the Holders the
benefits of certain rules and regulations of the SEC that may permit the sale of the




18









 







Registrable Securities to the public without registration, the Company, following an Initial
Public Offering, agrees to use its reasonable best efforts to:




          (a) make and keep current public information available, within the meaning of Rule 144 or any
similar or analogous rule promulgated under the Securities Act, at all times after it has become
subject to the reporting requirements of the Exchange Act;




          (b) file with the SEC, in a timely manner, all reports and other documents required of the
Company under the Securities Act and Exchange Act (after it has become subject to such reporting
requirements); and




          (c) so long as a Holder owns any Registrable Securities, furnish to such Holder forthwith upon
request a written statement by the Company as to its compliance with the reporting requirements of
said Rule 144 (at any time commencing 90 days after the effective date of the first registration
filed by the Company for an offering of its securities to the general public), the Securities Act
and the Exchange Act (at any time after it has become subject to such reporting requirements); a
copy of the most recent annual or quarterly report of the Company; and such other reports and
documents as a Holder may reasonably request in availing itself of any rule or regulation of the
SEC allowing it to sell any such securities without registration.




          Section 4.10. “Market Stand Off” Agreement. Each Holder hereby agrees that during (i)
such period following the effective date (which period shall in no event exceed one hundred and
eighty (180) days) of a Registration Statement of the Company filed in connection with an Initial
Public Offering as the SLP Investors may agree to with the underwriter or underwriters of such
offering and (ii) such period (which period shall in no event exceed ninety (90) days) following
the effective date of a registration statement of the Company filed under the Securities Act
subsequent to an Initial Public Offering as the Initiating Holders (or the Company if there is no
Initiating Holder and the SLP Investors agree with the Company that this Section 4.10 will apply
under such circumstances) may agree to with the underwriter or underwriters of such offering and/or
the Company (if applicable), it shall not, to the extent requested by the Company and/or any
underwriter, sell, pledge, hypothecate, transfer, make any short sale of, loan, grant any option or
right to purchase of, or otherwise transfer or dispose of (other than to donees who agree to be
similarly bound) any Shares held by it at any time during such period except Shares included in
such registration. Each Holder agrees that it shall deliver to the underwriter or underwriters of
any offering to which clause (i) or (ii) is applicable to such Holder a customary agreement
reflecting its agreement set forth in this Section 4.10.




          Section 4.11. Termination of Registration Rights. The rights of any particular Holder
to cause the Company to register securities under Section 4.2 hereof shall terminate as to any
Holder on the date such Holder, together with his Permitted Transferees, beneficially owns less
than 3% of the Shares that are outstanding at such time and such Holder and his Permitted
Transferees are able to dispose of all of their Registrable Securities in any 90 day period
pursuant to Rule 144 (or any similar or analogous rule promulgated under the Securities Act);
provided, that if Article III would prevent a Holder from disposing of Shares in the 90 day time
period contemplated by this Section 4.11, this Section 4.11 shall not disqualify any Shares held by
such Holder from being Registrable Securities.




19









 








ARTICLE V




ADDITIONAL AGREEMENTS OF THE PARTIES




          Section 5.1. Further Assurances. From time to time, at the reasonable request of any
other party hereto and without further consideration, each party hereto shall execute and deliver
such additional documents and take all such further action as may be necessary or appropriate to
consummate and make effective, in the most expeditious manner practicable, the transactions
contemplated by this Agreement.




          Section 5.2. Freedom to Pursue Opportunities. The parties expressly acknowledge and
agree that: (a) the Rollover Investor, each SLP Investor, each Person appointed or nominated to
the Board as a director or observer (each, a “Board Participant”) and each Affiliated
Officer has the right to, and shall have no duty (contractual or otherwise) not to, directly or
indirectly engage in the same or similar business activities or lines of business as the Company or
any of its Subsidiaries, including those deemed to be competing with the Company or any of its
Subsidiaries; and (b) in the event that the Rollover Investor, a SLP Investor, Board Participant or
Affiliated Officer of the Company acquires knowledge of a potential transaction or matter that may
be a corporate opportunity for each of the Company and the Rollover Investor or such SLP Investor,
Board Participant, Affiliated Officer or any other Person, the Rollover Investor or the SLP
Investor, Board Participant or Affiliated Officer of the Company, as applicable, shall have no duty
(contractual or otherwise) to communicate or present such corporate opportunity to the Company or
any of its Subsidiaries, as the case may be, and, notwithstanding any provision of this Agreement
to the contrary, shall not be liable to the Company or its Affiliates for breach of any duty
(contractual or otherwise) by reason of the fact that the Rollover Investor or such SLP Investor,
Board Participant or Affiliated Officer, as applicable, directly or indirectly, pursues or acquires
such opportunity for itself, directs such opportunity to another person, or does not present such
opportunity to the Company of any of its Subsidiaries; provided, however, that this Section
5.2 shall not apply to any Board Participant who is also (i) an officer or employee of the Company
or any of its Subsidiaries (other than Affiliated Officers) or (ii) is subject to contractual
restrictive covenants under an employment agreement with the Company or any of its Subsidiaries.




          Section 5.3. Legend on Share Certificates.




          (a) The certificates representing the Restricted Shares shall include an endorsement typed
conspicuously thereon of the following legend:





“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNDER STATE SECURITIES LAWS. THESE SECURITIES MAY
NOT BE RESOLD OR TRANSFERRED UNLESS REGISTERED OR EXEMPT FROM REGISTRATION UNDER SUCH ACT
AND APPLICABLE STATE SECURITIES LAWS, AND HEDGING TRANSACTIONS INVOLVING THESE SECURITIES
MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT OF 1933, AS AMENDED.



20









 






IN ADDITION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS OF A
STOCKHOLDERS AGREEMENT DATED AS OF MAY 31, 2007 (AS MAY BE AMENDED FROM TIME TO TIME) AND
MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH SUCH
AGREEMENT.”


In the event that any Share Equivalents shall cease to be Restricted Shares, the Company shall,
upon the written request of the holder thereof, issue to such holder a new certificate representing
such Share Equivalents without the first paragraph of the legend required by this Section 5.3. In
the event that any Securities shall cease to be subject to the restrictions on transfer set forth
in this Agreement, the Company shall, upon the request of the holder thereof, issue to such holder
a new certificate representing such Share Equivalents without the second paragraph of the legend
required by this Section 5.3.




          (b) All certificates for Share Equivalents representing Restricted Shares hereafter issued,
whether upon transfer or original issue, shall be endorsed with a like legend.




ARTICLE VI




ADDITIONAL PARTIES




          Section 6.1. Additional Parties. Additional parties may be added to and be bound by
and receive the benefits afforded by this Agreement upon the signing and delivery of a counterpart
of this Agreement by the Company and the acceptance thereof by such additional parties and, to the
extent permitted by Section 7.7, amendments may be effected to this Agreement reflecting such
rights and obligations, consistent with the terms of this Agreement, of such party as the SLP
Investors and such party may agree. Promptly after signing and delivering such a counterpart of
this Agreement, the Company will deliver a conformed copy thereof to all of the parties.




ARTICLE VII




MISCELLANEOUS




          Section 7.1. Entire Agreement. This Agreement constitutes the entire understanding
and agreement between the parties as to restrictions on the transferability of Shares and the other
matters covered herein and supersedes and replaces any prior understanding, agreement or statement
of intent, in each case, written or oral, of any and every nature with respect thereto. In the
event of any inconsistency between this Agreement and any document executed or delivered to effect
the purposes of this Agreement, including, without limitation, the by-laws of any company, this
Agreement shall govern as among the parties hereto.




          Section 7.2. Specific Performance. The parties hereto agree that the obligations
imposed on them in this Agreement are special, unique and of an extraordinary character, and that,
in the event of breach by any party, damages would not be an adequate remedy and each of the other
parties shall be entitled to specific performance and injunctive and other equitable relief in
addition to any other remedy to which it may be entitled, at law or in equity; and the parties





21












 




hereto further agree to waive any requirement for the securing or posting of any bond in connection
with the obtaining of any such injunctive or other equitable relief.




          Section 7.3. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to contracts entered into and
performed entirely within such State.




          Section 7.4. Arbitration. Any dispute, controversy or claim (each a “Dispute” and
collectively, the “Disputes”) arising out of, relating to or in connection with this Agreement,
including, without limitation, any Dispute regarding its validity or termination, or the
performance or breach thereof under this Agreement shall be settled exclusively and finally by a
panel of one arbitrator selected by the mutual agreement of the parties to such Dispute in an
arbitration proceeding administered by Judicial Arbitration and Mediation Services (“JAMS”) under
its Comprehensive Arbitration Rules and Procedure in effect at the time of such proceeding, and
judgment on the award rendered by such arbitrator may be entered in any court having jurisdiction
thereof. If the parties to any such Dispute are unable to select such arbitrator within 15 days
after the first notice given by any party to such Dispute to the other party or parties to such
Dispute requesting arbitration and the selection of such arbitrators, any party to such Dispute may
request that JAMS select such arbitrator, which selection shall be binding on the parties to such
Dispute. If (i) two or more Disputes arising out of or in connection with this Agreement are
simultaneously pending, (ii) the subject matters of such Disputes involve common questions of law
or fact and (iii) the independent resolution of each such Dispute could result in conflicting
decisions or obligations, such Disputes may be consolidated in a single proceeding. If more than
one arbitration proceeding involving any such Disputes are pending, such proceedings shall, at the
request of any party to such Dispute, be consolidated and settled in a single arbitration
proceeding; provided that the determination of whether such Disputes shall be consolidated shall be
determined by the first panel of three arbitrators established to settle any such Dispute. If such
Disputes are consolidated and more than one panel of three arbitrators has been established to
settle any of such Disputes, the parties to such Dispute shall, within 20 days after such
consolidation, select one panel of one arbitrator so established to settle the single consolidated
arbitration proceeding. Unless the parties to such Dispute otherwise agree to conduct any
arbitration proceeding pursuant to this Section 7.4 elsewhere, such proceeding shall be conducted
and any decision shall be rendered in New York, New York. Expenses and costs associated with the
submission of any Dispute to arbitration shall be the responsibility of the party against whom a
final decision is rendered with respect to that Dispute (provided that in the case of multiple
Disputes that are consolidated into a single proceeding, the costs of such proceeding shall be
borne on a Dispute-by-Dispute basis by the party against whom a final decision is rendered with
respect to each particular Dispute). The award rendered by the arbitrator shall be final and
binding on the parties to the Dispute; provided, however, that (i) by agreeing to arbitration, the
parties do not intend to deprive any court with jurisdiction of its ability to issue a preliminary
injunction, attachment or other form of provisional remedy in aid of the arbitration and a request
for such provisional remedies by a party to a court shall not be deemed a waiver of this agreement
to arbitrate, and (ii) in addition to the authority conferred upon the tribunal by the rules
specified above, the tribunal shall also have the authority to grant provisional remedies,
including injunctive relief.




22









 








          Section 7.5. Obligations. All obligations hereunder shall be satisfied in full
without set-off, defense or counterclaim.




          Section 7.6. Consent of the SLP Investors.



If any consent, approval or action of the SLP Investors is required at any time pursuant to this
Agreement, such consent, approval or action shall be deemed given if the holders of a majority of
the outstanding Shares held by the SLP Investors at such time provide such consent, approval or
action in writing at such time.




          Section 7.7. Amendment and Waiver. 




          (a) This Agreement may be amended, modified or waived, in whole or in part, at any time
pursuant to an agreement in writing executed by each of the parties hereto; provided, that,
the agreement of the Rollover Investor shall not be needed for any amendments to this agreement to
allow for the addition of a transferee or recipient of any newly-issued Share Equivalents as a
party hereto. If requested by the SLP Investors, the Company agrees to execute and deliver any
amendments to this Agreement to the extent so requested by the SLP Investors in connection with the
addition of a transferee of Share Equivalents or a recipient of any newly-issued Share Equivalents
as a party hereto. Any amendment, modification or waiver effected in accordance with the foregoing
shall be effective and binding on the Company and the Rollover Investor (and any Permitted
Transferees who beneficially own Share Equivalents).




          (b) Any failure by any party at any time to enforce any of the provisions of this Agreement
shall not be construed a waiver of such provision or any other provisions hereof.




          Section 7.8. Binding Effect. Except as otherwise expressly provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the parties’ successors and
permitted assigns.




          Section 7.9. Termination. This Agreement shall automatically terminate and the
transactions contemplated hereby shall be abandoned:





     (i) by written consent of each of the parties hereto,




     (ii) upon the dissolution or liquidation of the Company, or




     (iii) if at any time prior to the Closing, the Merger Agreement shall have been
terminated in accordance with its terms.


In the event of any termination of this Agreement as provided in this Section 7.9, this Agreement
shall forthwith become wholly void and of no further force or effect (except this Article VII) and
there shall be no liability on the part of any parties hereto or their respective officers or
directors, except as provided in this Article VII. Notwithstanding the foregoing, no party hereto
shall be relieved from liability for any willful or intentional breach of this Agreement.




          Section 7.10. Notices. All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing (including by e-mail, telecopy,



23









 






telegraph or telex), and, unless otherwise expressly provided herein, shall be deemed to have
been duly given or made when delivered by hand, or three days after being deposited in the U.S.
mail, postage prepaid, or, in the case of telecopy or e-mail notice, when received, or, in the case
of telegraphic notice, when delivered to the telegraph company, or, in the case of telex notice,
when sent, answerback received, addressed as follows to the Company, the SLP Investors or the
Rollover Investor, as applicable, or to such other address as may be hereafter notified by the
parties hereto:




	 	 	 
	(a)

	 	If to Trader or to the SLP Investors, to it at the following address:
	 
	 	 
	 

	 	Trader Acquisition Corp.
	 

	 	c/o Silver Lake Partners
	 

	 	9 West 57th Street, 25th Floor
	 

	 	New York, New York 10019
	 

	 	Attn:  Greg Mondre
	 

	 	Telephone: (212) 981-5600
	 

	 	Telecopy: (212) 981-3535
	 

	 	E-mail: greg.mondre@SilverLake.com
	 
	 	 
	 

	 	with a copy to:
	 
	 	 
	 

	 	Simpson Thacher & Bartlett LLP
	 

	 	425 Lexington Ave
	 

	 	New York, New York 10017
	 

	 	Attn:  William E. Curbow
	 

	 	Telephone: (212) 455-3160
	 

	 	Telecopy:  (212) 455-2502
	 

	 	E-mail: wcurbow@stblaw.com
	 
	 	 
	(b)

	 	If to the Rollover Investor, to him at the following address:
	 
	 	 
	 

	 	Michael Hirtenstein
	 

	 	162 Fifth Avenue, 2nd floor
	 

	 	New York, N.Y. 10010
	 

	 	Telephone: (646) 379-3901
	 

	 	Telecopy:  (212) 586-2666       
	 

	 	E-mail: mhirtenstein@westcom.com
	 
	 	 
	 

	 	with a copy to:
	 
	 	 
	 

	 	Ferber Chan Essner & Coller, LLP
	 

	 	530 Fifth Avenue
	 

	 	New York, N.Y. 10036
	 

	 	Attn: David I. Ferber
	 

	 	Telephone: (212) 944-2200

	 

	 	Telecopy: (212) 944-7630
	 

	 	E-mail: ferber@ferberchan.com






24









 







          (c) If to any other Person who becomes party to this Agreement in accordance with its
terms, at the address, numbers or e-mail address provided to the Company and the other
parties hereto upon such Person’s entry into this Agreement.



          Section 7.11. Severability. If any portion of this Agreement shall be declared void
or unenforceable by any court or administrative body of competent jurisdiction, such portion shall
be deemed severable from the remainder of this Agreement, which shall continue in all respects
valid and enforceable.




          Section 7.12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which together shall constitute
a single instrument.




[The remainder of this page intentionally left blank]





25












 





     IN WITNESS WHEREOF, each of the undersigned has executed this Agreement or caused this
Agreement to be executed on its behalf as of the date first written above.



	 	 	 	 	 	 	 
	 	 	TRADER ACQUISITION CORP	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






Stockholders Agreement




 









 





	 	 	 	 	 	 	 	 	 
	 	 	SILVER LAKE PARTNERS II, L.P.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	SILVER LAKE TECHNOLOGY ASSOCIATES II, L.L.C., its General
Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Greg Mondre	 	 
	 

	 	 	 	 	 	Name: Greg Mondre	 	 
	 

	 	 	 	 	 	Title: Managing Director	 	 






	 	 	 	 	 	 	 	 	 
	 	 	SILVER LAKE TECHNOLOGY INVESTORS II, L.P.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	SILVER LAKE TECHNOLOGY ASSOCIATES II, L.L.C., its General
Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Greg Mondre	 	 
	 

	 	 	 	 	 	Name: Greg Mondre
	 	 
	 

	 	 	 	 	 	Title: Managing Director	 	 






Stockholders Agreement




 









 





	 	 	 	 	 
	 

	 	ROLLOVER INVESTOR:	 	 
	 
	 
	 	/s/ Michael Hirtenstein	 	 
	 

	 	 

Name: Michael Hirtenstein
	 	 






Stockholders Agreement




 









 





Exhibit A




Form of Spousal Consent




     In consideration of the execution of that certain Stockholders Agreement (the
“Stockholders Agreement”) by and among Trader Acquisition Corp, Silver Lake Partners II,
L.P., Silver Lake Technology Investors II, L.P. and Michael Hirtenstein, I,                     
                  
             , the spouse of Michael
Hirtenstein, who is party to the Stockholders Agreement, do hereby join with my spouse in executing
the foregoing Stockholders Agreement and do hereby agree to be bound by all of the terms and
provisions thereof.



	 	 	 	 	 
	Dated as of                           , 2007

	 	 	 	 
	 

	 	 

Spouse