EX-10.1



 




EXHIBIT 10.1



EXECUTION COPY




 





TRADER ACQUISITION CORP




MANAGEMENT STOCKHOLDERS AGREEMENT




Dated as of September 29, 2006




 





 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	 
	 	ARTICLE I	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	DEFINITIONS	 	 	 	 
	Section 1.1.
	 	Definitions	 	 	1	 
	Section 1.2.
	 	Definitions Cross Reference	 	 	5	 
	Section 1.3.
	 	General Interpretive Principles	 	 	6	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE II	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	REPRESENTATIONS AND WARRANTIES	 	 	 	 
	 
	 	 	 	 	 	 
	Section 2.1.
	 	Representations and Warranties of Senior Managers	 	 	7	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE III	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	TRANSFER RESTRICTIONS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 3.1.
	 	General Restrictions on Transfers	 	 	8	 
	Section 3.2.
	 	Permitted Transfers	 	 	9	 
	Section 3.3.
	 	Restrictions on Transfers by Senior Managers	 	 	9	 
	Section 3.4.
	 	Tag-Along Rights	 	 	9	 
	Section 3.5.
	 	Drag-Along Rights	 	 	10	 
	Section 3.6.
	 	Right of First Refusal	 	 	11	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE IV	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	REGISTRATION RIGHTS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 4.1.
	 	Certain Definitions	 	 	12	 
	Section 4.2.
	 	Piggyback Registration	 	 	13	 
	Section 4.3.
	 	Expenses of Registration	 	 	14	 
	Section 4.4.
	 	Obligations of the Company	 	 	15	 
	Section 4.5.
	 	Indemnification	 	 	17	 
	Section 4.6.
	 	Information by Holder	 	 	19	 
	Section 4.7.
	 	Transfer of Registration Rights	 	 	19	 
	Section 4.8.
	 	Delay of Registration	 	 	19	 
	Section 4.9.
	 	Rule 144 Reporting	 	 	19	 
	Section 4.10.
	 	“Market Stand Off” Agreement	 	 	20	 
	Section 4.11.
	 	Termination of Registration Rights	 	 	20	 
	Section 4.12.
	 	Future Registration Rights	 	 	20	 






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	 	 	 	 	Page
	 
	 	ARTICLE V	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	PURCHASE OF SHARES ON TERMINATION OF EMPLOYMENT OF SENIOR MANAGERS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 5.1.
	 	General	 	 	21	 
	Section 5.2.
	 	Termination of Employment by the Company or the Surviving Corporation for Cause	 	 	21	 
	Section 5.3.
	 	Termination of Employment of Chief Executive Without Cause	 	 	22	 
	Section 5.4.
	 	Call Option of the SLP Investors	 	 	22	 
	Section 5.5.
	 	Certain Definitions used in this Article V	 	 	22	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE VI	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 ADDITIONAL AGREEMENTS OF THE PARTIES	 	 	 	 
	 
	 	 	 	 	 	 
	Section 6.1.
	 	Further Assurances	 	 	24	 
	Section 6.2.
	 	Freedom to Pursue Opportunities	 	 	24	 
	Section 6.3.
	 	Legend on Share Certificates	 	 	24	 
	Section 6.4.
	 	Restriction on Employee Equity Program	 	 	25	 
	Section 6.5.
	 	Voting Agreement	 	 	26	 
	Section 6.6.
	 	Board Observer	 	 	26	 
	 
	 	 	 	 	 	 
	 
	 	ARTICLE VII	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	ADDITIONAL PARTIES	 	 	 	 
	 
	 	 	 	 	 	 
	Section 7.1.
	 	Additional Parties	 	 	26	 
	 
	 	ARTICLE VIII	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	MISCELLANEOUS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 8.1.
	 	Entire Agreement	 	 	26	 
	Section 8.2.
	 	Specific Performance	 	 	26	 
	Section 8.3.
	 	Governing Law	 	 	27	 
	Section 8.4.
	 	Arbitration	 	 	27	 
	Section 8.5.
	 	Obligations	 	 	27	 
	Section 8.6.
	 	Consent of the SLP Investors and Senior Managers	 	 	28	 
	Section 8.7.
	 	Amendment and Waiver	 	 	28	 
	Section 8.8.
	 	Binding Effect	 	 	28	 
	Section 8.9.
	 	Termination	 	 	28	 
	Section 8.10.
	 	Notices	 	 	29	 
	Section 8.11.
	 	Severability	 	 	29	 
	Section 8.12.
	 	Counterparts	 	 	29	 







ii









 








MANAGEMENT STOCKHOLDERS AGREEMENT




          This MANAGEMENT STOCKHOLDERS AGREEMENT is made as of September 29, 2006, 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”), the other signatories hereto (the “Initial Senior
Managers”) and any other Person who becomes a party hereto pursuant to Article VII.




          WHEREAS, pursuant to the Agreement and Plan of Merger, dated as of July 30, 2006 (as amended,
supplemented, restated or modified from time to time, the “Merger Agreement”), among
Trader, Trader Merger Corp, a Delaware corporation and a wholly-owned subsidiary of Trader
(“Merger Sub”), and IPC Acquisition Corp., a Delaware corporation (“IPC”), upon the
closing of the merger of Merger Sub with and into IPC pursuant to the terms and subject to the
conditions set forth therein (the “Merger”), each share of Merger Sub common stock shall be
converted into and become one fully paid and nonassessable share of common stock, par value $0.01
per share, of the surviving corporation of the Merger (the “Merger Survivor”), Merger
Survivor shall then merge with IPC Systems, Inc. (the “Surviving Corporation”);




          WHEREAS, as a condition for the right of the Initial Senior Managers to purchase Shares and to
receive grants of or exercise Options, each of the Initial Senior Managers is obligated to become a
party to this Agreement; and




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




          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:




          “Adverse Disclosure” means public disclosure of material non-public information which,
in the Board’s good faith judgment, after consultation with independent outside counsel to the
Company, (i) would be required to be made in any report or Registration Statement filed with the
SEC by the Company so that such report or Registration Statement would not be materially
misleading; (ii) would not be required to be made at such time but for the filing, effectiveness or
continued use of such report or Registration Statement; and (iii) the Company has a bona
fide business purpose for not disclosing publicly.




 









 








          “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 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 Management 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 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
ceases to control the Board of Directors.




          “Chief Executive” means Lance Boxer.




          “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.




 









 








          “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, or, for purposes of Article V, the price to be paid for
Call Shares or Call Options after an Initial Public Offering, 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, or, for purposes of Article V, the
price to be paid for Call Shares or Call Options prior to an Initial Public Offering, 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 any Senior Manager, (a) any parent,
grandparent, sibling or child (including any adopted sibling or child) of such Senior Manager, or
any spouse or former spouse of such Senior Manager, (b) any trust (i) established solely for the
benefit of (x) such Senior Manager 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) such Senior Manager and/or (y) any of the Persons set forth in the
foregoing clause (a) and (ii) with respect to which such Senior Manager (unless such Senior Manager
has died or become Disabled) 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.




          “Options” means any options to purchase Shares granted to any Senior Manager pursuant
to a Stock Incentive Plan. “Options” includes Rollover Options.




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




 









 








          “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.




          “Restricted Participation Period” means, with respect to any Senior Manager, any
periods of time between the Initial Public Offering and the three-year anniversary of the Initial
Public Offering during which such Senior Manager has an effective 10b5-1 Plan that has not been
terminated by such Senior Manager (regardless of the amount of sales being made pursuant to such
10b5-1 Plan during such period).




          “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.




          “Rollover Agreement” means the Rollover Agreement between the Company and the Senior Manager
entered into in connection with the Merger pursuant to which (x) a portion of the Senior Manager’s
cash transaction bonus proceeds payable in connection with the Merger were used to purchase Shares,
and (y) a portion of the Senior Manager’s stock options granted prior to the Closing pursuant to
the terms of the IPC Acquisition Corp. Amended and Restated 2002 Stock Option Plan were converted
into Options exercisable for Shares.




          “Rollover Options” means Options held by Senior Managers as a result of the Rollover
Agreement.




          “Rollover Share Equivalents” means Share Equivalents owned by Senior Managers as a
result of the Rollover Agreement.




          “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.




          “Senior Manager” means each of the Initial Senior Managers specified in the preamble
and each additional Person, other than a SLP Investor, who becomes a party to this Agreement
pursuant to Article VII hereof as a holder of Share Equivalents or Options.




          “Share Equivalents” means (i) Shares (including, for the avoidance of doubt, Shares
received upon exercise of Options) 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 Options 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 and have become parties to this Agreement pursuant to Article VII.




          “Stock Incentive Plan” means any stock incentive plan adopted by the Board for
eligible employees of, and consultants to, the Company and its Subsidiaries and members of the
Board who are serving as independent directors, pursuant to which the Company has authorized the
issuance and grant of awards that could result in the issuance of additional Shares.




          “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
that 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.




          “Voting Securities” means (a) the Shares and (b) any other securities that are
permitted by their terms to vote together with the Shares.


          Section
1.2. Definitions Cross Reference



	 	 	 
	Terms	 	Cross-Reference
	Acceptance Notice

	 	Section 3.6(b)
	Board Participant

	 	Section 6.2
	Book Value

	 	Section 5.5(a)
	Call

	 	Section 5.1
	Call Date

	 	Section 5.5(b)
	Call Options

	 	Section 5.1
	Call Options Price

	 	Section 5.5(c)
	Call Shares

	 	Section 5.1
	Call Shares Price

	 	Section 5.5(d)
	Cause

	 	Section 5.5(e)
	Common Stock

	 	Preamble
	Company

	 	Preamble
	Company Registration

	 	Section 4.2(a)
	Cure Period

	 	Section 5.5(e)
	Demand Registration

	 	Section 4.2(a)






 









 





	 	 	 
	Terms	 	Cross-Reference
	Disability

	 	Section 5.5(f)
	Dispute and Disputes

	 	Section 8.4
	Drag-Along Notice

	 	Section 3.5(a)
	Drag-Along Portion

	 	Section 3.5(a)
	Drag-Along Sale

	 	Section 3.5(a)
	Escrow Holder

	 	Section 6.3(c)
	Good Reason

	 	Section 5.5(g)
	Holder and Holders

	 	Section 4.1(c)
	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(f)
	IPC

	 	Preamble
	JAMS

	 	Section 8.4
	Listing Date

	 	Section 5.5(h)
	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(a)
	Registrable Securities

	 	Section 4.1(b)
	Registration Statement

	 	Section 4.1(a)
	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)
	Termination Date

	 	Section 5.5(k)
	Third Party Holder

	 	Section 4.1(e)
	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 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 Senior Managers. Each Senior Manager,
severally and not jointly, hereby represents and warrants to the Company and the Initial SLP
Investors as follows:




          (a) Such Senior Manager is competent to, and has sufficient capacity to, execute and deliver
this Agreement and to perform his or her obligations hereunder. This Agreement has been duly
executed and delivered by such Senior Manager and, assuming the due execution and delivery of this
Agreement by the other parties hereto, this Agreement constitutes the valid and binding obligation
of such Senior Manager, enforceable against such Senior Manager 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 such Senior Manager of this Agreement and the
agreements contemplated hereby and the consummation by such Senior Manager 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 such Senior
Manager or his or her properties or assets; (ii) violate any judgment, decree, order or award of
any court, governmental or quasi-governmental agency or arbitrator applicable to such Senior
Manager or his or her 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 such
Senior Manager is a party or by which such Senior Manager or his or her properties or assets are
bound.




          (c) Such Senior Manager (i) understands that no public market now exists for the Shares or the
Options and there is no assurance that a pubic market will ever exist for the Shares or the Options
and (ii) understands that neither the Shares nor the Options may 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 the Options or an
available exemption from registration under the Securities Act, Shares and the Options must be held
indefinitely.




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




 









 








ARTICLE III




TRANSFER RESTRICTIONS




          Section 3.1. General Restrictions on Transfers.




          (a) No Senior Manager may 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 VII 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 any Senior Manager shall be null and void, and the Company shall refuse to 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) Each Senior Manager acknowledges that the Restricted Shares have not been registered under
the Securities Act and may not be transferred except pursuant to an effective registration
statement under the Securities Act or pursuant to an exemption from registration under the
Securities Act. Each Senior Manager 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 such Senior Manager entered into
pursuant to such laws or in connection with obtaining an exemption thereunder. Each Senior Manager
agrees that any Restricted Shares to be held by it shall bear the restrictive legend set forth in
Section 6.3.




          (d) No Senior Manager shall grant any proxy or enter into or agree to be bound by any voting
trust with respect to any Share Equivalents or enter into any agreements or arrangements of any
kind with any Person with respect to any Share Equivalents inconsistent with the provisions of this
Agreement (whether or not such agreements and arrangements are with other Senior Managers or
holders of Share Equivalents who are not parties to this Agreement), including agreements or
arrangements with respect to the acquisition, disposition or
voting (if applicable) of any Share Equivalents, nor shall any Senior Manager act, for any
reason, as a member of a group or in concert with any other persons in connection with the
acquisition, disposition or voting (if applicable) of any Share Equivalents in any manner that is
inconsistent with the provisions of this Agreement.




 









 








          Section 3.2. Permitted Transfers. A Senior Manager 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 all 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 such transferring Senior Manager or another Permitted Transferee of such
transferring Senior Manager at such time that it ceases to be a Permitted Transferee of such
transferring Senior Manager 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 Senior Managers. During the applicable
Transfer Restriction Period, the Senior Managers shall not transfer any Share Equivalents to any
Person, except transfers (a) to Permitted Transferees pursuant to Section 3.2, (b) pursuant to and
in compliance with Section 3.4, Section 3.5, Article IV or Article V, (c) to the Company, SLP II
or any of its Affiliates, or (d) upon receipt of the prior written consent of the Company. During
the applicable Transfer Restriction Period, any Permitted Transferee of an SLP Investor to whom a
SLP Investor transfers any Share Equivalents will become a party to this Agreement pursuant to
Article VII.




          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 each of the Senior Managers 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 Senior Manager 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 its Pro Rata Portion (as defined below) of such Share Equivalents (including
any Shares issuable upon the exercise of Options to the extent such Options are then vested and
exercisable). 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 Senior Managers
pursuant to Section 3.5 and such Drag-Along Notice has not been rescinded or otherwise terminated.




          (b) Upon delivery of a Transfer Notice, each Senior Manager may elect to sell up to its 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 its election to sell up
to its Pro Rata Portion of Share Equivalents in such Tag-Along Sale. Following such 10
Business-Day period, each of the Selling SLP Investors and the Senior Managers that have delivered
such written notices, 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 its written notice (but in no event more than its Pro Rata Portion of Share
Equivalents). 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 Senior Managers that have
delivered such written notice and all other Persons who otherwise are transferring, or have the
contractual or other right to transfer, Share Equivalents in such Tag-Along Sale. With respect to
any Shares for which a Senior Manager holds vested and exercisable but unexercised Options, to the
extent that such Shares are to be sold pursuant to this Section 3.4, the Senior Manager must
exercise the relevant Option and transfer the relevant Shares (rather than the Option). For
purposes of this Section 3.4, “Pro Rata Portion” shall mean, with respect to Share
Equivalents held by any Selling SLP Investor or Senior Manager that delivered such written notice,
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 and (ii) a fraction, the numerator of which shall be
the total number of Share Equivalents (including any Shares issued in respect of exercised Options)
being transferred by such Selling SLP Investor or Senior Manager, as applicable, in the Tag-Along
Sale and the denominator of which shall be the total number of Share Equivalents (including any
Shares issued in respect of exercised Options) being transferred in the Tag-Along Sale by all (x)
Selling SLP Investors, (y) all Senior Managers that delivered such written notices and (z) all
other Persons who otherwise are transferring Share Equivalents.




          (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 as to Senior Managers on the expiration of the applicable
Transfer Restriction Period.




          Section 3.5. Drag-Along Rights.




          (a) The SLP Investors may give written notice (a “Drag-Along Notice”) to the Senior
Managers 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 the
Senior Managers and/or 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 Senior
Managers to participate in such transaction on the same terms and conditions as
available to the SLP Investors; provided, however, that no Senior Manager
shall 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 it and (ii) with respect to all
other liabilities or indemnification in connection with such transaction, its pro rata share on the
same terms and conditions as the SLP Investors (based on the number of Share Equivalents being
transferred by each Senior Manager in such transaction). Such Drag-Along Notice shall also specify
(1) the consideration, if any, to be received by the SLP Investors and the Senior Managers 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 and the
Senior Managers), (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 each Senior Manager in
order to complete or facilitate such proposed transaction (including the sale of Share Equivalents
held by the Senior Manager, the voting of all such Share Equivalents in favor of any such merger,
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 each Senior Manager will transfer a number of Share Equivalents equal to the
product of the following (the “Drag-Along Portion”): (x) the number of Share Equivalents
(including any Shares issuable upon the exercise of Options to the extent such Options are then
vested and exercisable) beneficially owned by such Senior Manager 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. Upon receipt of such Drag-Along Notice, each Senior
Manager shall be obligated to take the action or actions referred to in clause (4) above;
provided that, in the case of a sale of Shares, with respect to any Shares for which a
Senior Manager holds vested and exercisable but unexercised Options, the price per Share shall be
reduced by the exercise price of such Options or, if required pursuant to the terms of such
Options, such Stockholder shall pay the exercise price therefor prior to the consummation of such
sale and shall transfer such Shares to the purchaser in such sale (in each case, net of any amounts
required to be withheld by the Company in connection with such Option exercise).




          (b) This Section 3.5 shall terminate as to Senior Managers on the expiration of the applicable
Transfer Restriction Period.




          Section 3.6. Right of First Refusal.




          (a) On and after the Lapse Date, if any Senior Manager proposes to transfer any Share
Equivalents to another Person (other than a Permitted Transferee), such Senior Manager 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 such Senior Manager, (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 or any portion
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 such Senior Manager within 20 days after the delivery of the Offer Notice.  




          (c) If the Company shall have agreed to purchase all or a portion 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 Senior Manager
holding such Offered Shares (or its Permitted Transferee), the aggregate purchase price to be paid
by it via wire transfer of immediately available funds to an account specified by such Senior
Manager not less than one business day before the closing date, which





 









 







closing date will be 30 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 pay the Fair Market Value.  




          (d) If the Company shall not exercise its rights under this Section 3.6, such Senior Manager
shall be permitted to proceed with the proposed transfer of the Offered Shares, and such Senior
Manager 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) “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.




          (b) “Registrable Securities” means (i) Shares held by Holders (as defined below), SLP
Holders or Third Party Holders, (ii) Shares issued or issuable upon the exercise of Options 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 3% 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 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
Senior Manager 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 such Senior Manager from being Registrable
Securities.




          (c) “Holder” (collectively, “Holders”) means any Senior Manager (and any of
their respective transferees pursuant to Section 4.7 below).




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




          (e) “Third Party Holder” means any holder of Share Equivalents who exercises
contractual rights to participate in a registered offering of Shares.




          (f) “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.




          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 10 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 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, 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 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
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 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 such Initiating Holder and such Third Party Holders 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. For the avoidance of
doubt, nothing in this Section 4.2(b) is intended to diminish the number of securities to be
included by the Company in the underwriting.




          (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. This Section 4.2 shall not apply to any Registration Statement under
the Securities Act with respect to any Initial Public Offering unless one or more of the SLP
Holders is selling Registrable Securities in such offering. 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.




          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.





 









 








          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;




          (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;




          (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 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 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 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 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 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 or her Permitted Transferees, beneficially owns
less than 3% 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 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 4.12, this Section 4.12 shall not disqualify any
Shares held by such Holder from being Registrable Securities.




          Section 4.12. Future Registration Rights.





 









 








          The parties hereto agree that in the event that one or more of the SLP Investors is granted
registration rights with respect to Registrable Securities in addition to the rights set forth in
Section 4.2 of this Agreement, equivalent registration rights shall be granted to each Senior
Manager.




ARTICLE V




PURCHASE OF SHARES ON TERMINATION OF EMPLOYMENT OF SENIOR MANAGERS




          Section 5.1. General. If a Senior Manager’s employment with the Company or the
Surviving Corporation (or a Subsidiary employer) shall be terminated for Cause, the Company (and,
to the extent provided in Section 5.4, the SLP Investors) shall have the right to purchase all or a
portion of the Rollover Share Equivalents owned by such Senior Manager or any of his or her
Permitted Transferees owning any such Rollover Share Equivalents (“Call Shares”) and all or
a portion of the Rollover Options held by such Senior Manager or any of his or her Permitted
Transferees holding any such Rollover Options that are vested as of the Call Date (“Call
Options”), in each case upon the terms and subject to the conditions set forth in this Article
V (a “Call”). The right of the Company (or, to the extent permitted by Section 5.4, the
SLP Investors) to effect a Call, as set forth in this Article V, shall terminate upon the Lapse
Date.




          Section 5.2. Termination of Employment by the Company or the Surviving Corporation for
Cause.




          (a) If a Senior Manager’s employment with the Company or the Surviving Corporation (or a
Subsidiary employer) shall be terminated by the Company or the Surviving Corporation (or a
Subsidiary employer) for Cause, the Company shall have the right, but not the
obligation, by written notice to such Senior Manager no later than 180 days after the
Termination Date (or if the Senior Manager or any of his or her Permitted Transferees acquires
Share Equivalents upon the exercise of an Option or similar purchase right following the
Termination Date, no later than 180 days after the date of exercise of such Options or similar
purchase rights by such Senior Manager or Permitted Transferee), to Call all or a specified portion
of the Call Shares at the Call Shares Price.




          (b) Upon the exercise of a Call with respect to any Call Shares pursuant to this Section 5.2:
(i) the Company shall, on the Call Date, purchase such Call Shares from the Senior Manager and his
or her Permitted Transferees, if applicable, for the Call Shares Price, and (ii) the Senior Manager
and his or her Permitted Transferees, if applicable, shall, simultaneously therewith, transfer such
Call Shares to the Company free and clear of all Encumbrances by delivering to the Company stock
certificates for such Call Shares, duly endorsed in blank with appropriate transfer tax stamps
affixed. The Call Shares Price shall be payable by the Company in cash or, if the Company is
prohibited from paying cash under any financing arrangement, (i) by note payable in installments of
up to five (5) years, bearing interest at the prime lending rate in effect as of the date of
purchase or (ii) by delaying the exercise of the Call until the financing restrictions lapse.




 









 








          Section 5.3. Termination of Employment of Chief Executive Without Cause. If Lance
Boxer’s employment with the Company or the Surviving Corporation shall be terminated by the Company
or the Surviving Corporation without Cause prior to October 1, 2012, Mr. Boxer (or his Permitted
Transferee) shall have the right, but not the obligation, by written notice to the Company no later
than 180 days after the Termination Date, to require the Company to repurchase up to 50% of the
Rollover Share Equivalents (“Put Shares”) and 50% of the Rollover Options (“Put
Options”) held by Mr. Boxer (or his Permitted Transferee) on the Termination Date, in each case
for upon the terms and conditions set forth in this Article V (a “Put”). The Put Shares
shall be repurchased at the Put Shares Price (as defined below) and the Put Options shall be
repurchased at the Put Options Price (as defined below). The purchase price may be paid by the
Company in cash or, if the Company is prohibited from paying cash under any financing arrangement,
by note payable in installments of up to five (5) years, bearing interest at the prime lending rate
in effect as of the date of purchase.




          Section 5.4. Call Option of the SLP Investors. If, at any time prior to 180 days
after the Termination Date (or, if applicable, 180 days after the date of exercise of Options or
similar purchase rights by a Senior Manager or his or her Permitted Transferee), the Company shall
determine not to exercise its Call right pursuant to this Article V, then the Company shall
promptly notify the SLP Investors of such determination. In such event, the SLP Investors shall
have the right to exercise the Call right pursuant to the terms and conditions of this Article V in
the same manner as the Company.




          Section 5.5. Certain Definitions used in this Article V.




          (a) “Book Value” means (i) the aggregate book value of the Shares, calculated in
accordance with U.S. generally accepted accounting principles and based on the aggregate
equity financing provided by the Initial SLP Investors and all other Persons in connection
with the completion of the Merger and the related transactions, as adjusted for, generally and
among other things, the consolidated profits, losses, contributions to equity, deductions and
dividends paid with respect to Trader subsequent to the Closing, divided by (ii) the aggregate
number of Shares after giving effect to the conversion, exercise or exchange, as applicable, of all
outstanding securities that are convertible into, exercise for or exchangeable into, Shares.




          (b) “Call Date” means the date that is 195 days after the applicable Termination Date
(or the date of exercise of an Option or similar purchase right following the Termination Date)
with respect to which the Company has notified a Senior Manager of the Company’s exercise of a Call
with respect to all or a portion of such Senior Manager’s Share Equivalents and/or Options, as
applicable.




          (c) “Call Options Price” means, with respect to any Call exercised pursuant to Section
5.2 with respect to any Call Options, a price equal to the excess, if any, of (x) the Fair Market
Value of the Call Shares for which such Call Options are exercisable as of the Call Date and (y)
the aggregate exercise price with respect to such Call Options.




          (d) “Call Shares Price” means, (i) with respect to any Call exercised pursuant to
Section 5.1 or Section 5.2 with respect to any Call Shares, a price equal to the Fair Market Value
of such Call Shares as of the Call Date, or (ii) with respect to any Call exercised pursuant





 









 







to
Section 5.3 with respect to any Call Shares, a price equal to the lower of (x) the Fair Market
Value of such Call Shares as of the Call Date and (y) the Book Value of such Call Shares as of the
Call Date.




          (e) “Cause” means, with respect to any Senior Manager, unless otherwise defined in a
written employment between such Senior Manager and the Company and/or the Surviving Corporation,
(i) the willful and continued failure by such Senior Manager to perform his or her material duties
with respect to the Company or its Affiliates, which continues beyond 15 Business Days after a
written demand for substantial performance specifying such failure(s) is received by such Senior
Manager from the Company (the “Cure Period”); (ii) the willful or intentional engaging by
such Senior Manager in conduct that causes material and demonstrable injury, monetarily or
otherwise, to the Company or any of its Affiliates; (iii) the conviction of such Senior Manager
for, or a plea of nolo contendre by such Senior Manager to, the commission of a felony or a crime
involving moral turpitude; or (iv) any material breach, including, without limitations, any
material breach of any non-compete, non-solicitation or confidentiality provisions, by such Senior
Manager of any agreement between the Senior Manager and the Company, the SLP Investors or any of
their respective Affiliates or of any applicable policy of the Company or any of its Affiliates.




          (f) “Disability” means, with respect to any Senior Manager, (i) before the Listing
Date, the Senior Manager’s becoming physically or mentally incapacitated and consequent inability
for a period of six (6) months in any twelve (12) consecutive month period to perform the Senior
Manager’s duties to the Company.




          (g) “Good Reason” means with respect to any Senior Manager, unless otherwise defined
in a written employment or similar agreement between such Senior Manager
and the Company and/or the Surviving Corporation, (i) a substantial diminution in the Senior
Manager’s position or duties, an adverse change in the Senior Manager’s reporting lines, or the
assignment of duties materially inconsistent with the Senior Manager’s position, or (ii) failure of
the Company and/or the Surviving Corporation to pay base salary and annual bonus when due, which,
in the case of either (i) or (ii) above, is not cured within 30 days following the Company’s
receipt of written notice from the Senior Manager describing the event giving rise to Good Reason;
and provided that, in each case, the Senior Manager must have notified the Company in
writing of the event constituting Good Reason not later than 60 days following the later to occur
of the occurrence of the event constituting Good Reason or the Senior Manager’s actual knowledge
thereof.




          (h) “Listing Date” means the first date upon which any security of the Company is
listed (or approved for listing) upon notice of issuance on any securities exchange or designated
(or approved for designation) upon notice of issuance as a national market security on an
interdealer quotation system if such securities exchange or interdealer quotation system has been
certified in accordance with the provisions of Section 25100(o) of the California Corporate
Securities Law of 1968, as amended.




          (i) “Put Options Price” means, with respect to any Put exercised pursuant to Section
5.4 with respect to any Put Options, a price equal to the excess, if any, of (x) the Fair





 











 




Market
Value of the Put Shares for which such Put Options are exercisable as of the Put Date and (y) the
aggregate exercise price with respect to such Put Options.




          (j) “Put Shares Price” means, with respect to any Put exercised pursuant to Section
5.4 with respect to any Put Shares, a price equal to the Fair Market Value of such Put Shares as of
the Put Date.




          (k) “Termination Date” means the date of termination of a Senior Manager’s employment
with the Company or the Surviving Corporation, as applicable.




ARTICLE VI




ADDITIONAL AGREEMENTS OF THE PARTIES




          Section 6.1. 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 6.2. Freedom to Pursue Opportunities. The parties expressly acknowledge and
agree that: (a) each SLP Investor, each Person appointed or nominated to the Board as a director
or observer (each, a “Board Participant”) and 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 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 such SLP Investor, Board Participant, Affiliated Officer or any other Person, the SLP
Investor, Board Participant or Affiliated Officer of the Company 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 or any of the Senior Managers for
breach of any duty (contractual or otherwise) by reason of the fact that such SLP Investor, Board
Participant or Affiliated Officer, 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 6.2 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 6.3. 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.




IN ADDITION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS OF A
MANAGEMENT STOCKHOLDERS AGREEMENT DATED AS OF SEPTEMBER 29, 2006 (AS MAY BE AMENDED FROM
TIME TO TIME) AND MAY NOT BE VOTED, 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 6.3. 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 6.3.




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




          (c) Each Senior Manager agrees, immediately upon receipt of the stock certificate(s)
evidencing the Restricted Shares, to deliver such certificate(s) to the Secretary of the Company or
other designee of the Company (the “Escrow Holder”), who is hereby appointed to hold such
certificate(s) in escrow and to take all such actions and to effectuate all such transfers and/or
releases of such Shares as are in accordance with the terms of this Agreement. The Company agrees
to provide such Senior Manager with a photocopy of such stock certificate(s) upon such Senior
Manager’s request. The Senior Manager and the Company agree that the Escrow Holder will not be
liable to any party to this Agreement (or to any other party) for any actions or omissions unless
the Escrow Holder is grossly negligent or intentionally fraudulent in carrying out the duties of
the Escrow Holder under this Agreement. The Escrow Holder may rely upon any letter, notice or
other document executed with any signature purported to be genuine and may rely on the advice of
counsel and obey any order of any court with respect to the transactions contemplated by this
Agreement.




          Section 6.4. Restriction on Employee Equity Program. Without the prior written
consent of the SLP Investors, prior to an Initial Public Offering, the Company shall not issue any
Options or other equity grants or awards under a Stock Incentive Plan or any other employee equity
program unless such Options, grants or other awards are subject to the terms and provisions of this
Agreement.



 









 







          Section 6.5. Voting Agreement. Until the occurrence of the Lapse Date, the Senior
Managers will be obligated to vote their Shares with respect to all matters in the same proportion
as the Shares held by SLP II are voted on such matters.




          Section 6.6. Board Observer. The parties expressly acknowledge and agree that the
Chief Executive during the period where he holds the title of Chief Executive Officer of the
Company or any of its Subsidiaries and for three years thereafter, if the Chief Executive owns any
Rollover Share Equivalents or Rollover Options, the Chief Executive shall as a non-voting board
observer have the right to attend all meetings of the Board, participate in all deliberations of
the Board and receive copies of all materials provided to the Board; provided that such
observer shall have no voting rights with respect to actions taken or elected not to be taken by
the Board.




ARTICLE VII




ADDITIONAL PARTIES




          Section 7.1. 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 8.7, 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 VIII




MISCELLANEOUS




          Section 8.1. 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 8.2. 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
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 8.3. 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 8.4. 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 8.4 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.




          Section 8.5. Obligations. All obligations hereunder shall be satisfied in full
without set-off, defense or counterclaim.



 









 







          Section 8.6. Consent of the SLP Investors and Senior Managers.




          (a) 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.




          (b) If any consent, approval or action of a Senior Manager 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 at such time by such Senior Manager and his or her Permitted
Transferees provide such consent, approval or action in writing at such time.




          Section 8.7. 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 the Company and the SLP Investors; provided
that (i) any amendment, modification or waiver that adversely affects the rights of the
Senior Managers relative to the SLP Investors shall also require the written consent of the Senior
Managers holding a majority of the outstanding Shares held at such time by all Senior Managers and
(ii) any amendment, modification or waiver that adversely affects the rights of a Senior Manager
relative to the other Senior Managers shall also require the written consent of such Senior
Managers; provided, further, that, for the avoidance of doubt, no amendments to
this agreement to allow for the addition of a transferee or recipient of any newly-issued Share
Equivalents or Options as a party hereto shall be deemed to adversely affect the rights of any of
the Senior Managers. 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 Options or a recipient of any newly-issued
Share Equivalents or Options as a party hereto; provided that such amendments are in
compliance with the provisos set forth in the immediately foregoing sentence. Any amendment,
modification or waiver effected in accordance with the foregoing shall be effective and binding on
the Company and each Senior Manager.




          (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 8.8. 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 8.9. 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 8.9, this Agreement
shall forthwith become wholly void and of no further force or effect (except this Article VIII) 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 VIII. Notwithstanding the foregoing, no party hereto
shall be relieved from liability for any willful breach of this Agreement.




          Section 8.10. Notices. Any and all notices, designations, offers, acceptances or
other communications provided for herein shall be given in writing by registered or certified mail,
which shall be addressed, in the case of the Company, to its principal office, and, in the case of
any Senior Manager or the SLP Investors, to such party’s address appearing on the stock books of
the Company or to such other address as may be designated by such party in writing to the Company.
Any demand, notice or other communication given by personal delivery shall be conclusively deemed
to have been given on the day of actual delivery thereof and, if given by facsimile, on the day of
transmittal thereof if given during the normal business hours of the recipient, and on the Business
Day during which such normal business hours next occur if not given during such hours on any day.




          Section 8.11. 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 8.12. 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]





 









 








          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:  	/s/ Antony Ling	 
	 	 	Name:  	Antony Ling 	 
	 	 	Title:  	Vice President, Secretary and Treasurer 	 
	 



Management Stockholders Agreement




 









 






SILVER LAKE PARTNERS II, L.P.




By: SILVER LAKE TECHNOLOGY ASSOCIATES II,

       L.L.C., its General Partner




	 	 	 	 	 
	 	 	 
	 	By:  	/s/ Alan K. Austin	 
	 	 	Name:  	Alan K. Austin 	 
	 	 	Title:  	Managing Director &


Chief Operating Officer 	 
	 



SILVER LAKE TECHNOLOGY INVESTORS II, L.P.




By: SILVER LAKE TECHNOLOGY ASSOCIATES II,

           L.L.C., its General Partner




	 	 	 	 	 
	 	 	 
	 	By:  	/s/ Alan K. Austin	 
	 	 	Name:  	Alan K. Austin 	 
	 	 	Title:  	Managing Director &


Chief Operating Officer 	 
	 



Management Stockholders Agreement





 









 





	 	 	 	 	 	 	 
	 	 	INITIAL SENIOR MANAGER:	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Address:	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Telephone:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Telecopy:	 	 	 	 
	 

	 	 	 	 	 	 





Management Stockholders Agreement




 









 





Exhibit A




Form of Spousal Consent




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




	 	 	 	 	 
	Dated as of     
                   
             
     ___, 200_
	 	 	 	 
	 

	 	 

Spouse