Exhibit 10.28


 


FORM OF


 


TDS INVESTOR (CAYMAN)
L.P.


 


SIXTH AMENDED AND
RESTATED


 


AGREEMENT OF EXEMPTED
LIMITED PARTNERSHIP


 


 


Dated as of December 19,
2007


 

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I DEFINITIONS

  	
  2

  
	
   

  	
   

  
	
   

  	
  Section 1.1.  
  Definitions

  	
  2

  
	
   

  	
  Section 1.2.  
  Construction

  	
  2

  
	
   

  	
   

  	
   

  
	
  ARTICLE II GENERAL PROVISIONS

  	
  2

  
	
   

  	
   

  
	
   

  	
  Section 2.1.  
  Formation

  	
  2

  
	
   

  	
  Section 2.2.  
  Name

  	
  3

  
	
   

  	
  Section 2.3.  
  Term

  	
  3

  
	
   

  	
  Section 2.4.  
  Purpose; Powers

  	
  3

  
	
   

  	
  Section 2.5.  
  Place of Business

  	
  3

  
	
   

  	
  Section 2.6.  
  Foreign Qualification

  	
  3

  
	
   

  	
  Section 2.7.  
  Title to Assets

  	
  3

  
	
   

  	
  Section 2.8.  
  Fiscal Year

  	
  3

  
	
   

  	
   

  	
   

  
	
  ARTICLE III ADMISSION OF PARTNERS

  	
  4

  
	
   

  	
   

  
	
   

  	
  Section 3.1.  
  Partnership Interests

  	
  4

  
	
   

  	
  Section 3.2.  
  Dispositions of Partnership Interests

  	
  5

  
	
   

  	
  Section 3.3.  
  Admission of Additional Limited Partners

  	
  5

  
	
   

  	
  Section 3.4.  
  Information

  	
  5

  
	
   

  	
  Section 3.5.  
  Cessation of Partnership Interest

  	
  6

  
	
   

  	
  Section 3.6.  
  Spouses of Partners

  	
  6

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV RESTRICTIONS ON DISPOSITIONS OF
  INTERESTS

  	
  6

  
	
   

  	
   

  
	
   

  	
  Section 4.1.  
  Restrictions On Dispositions

  	
  6

  
	
   

  	
  Section 4.2.  
  Class A-1 Permitted Dispositions

  	
  7

  
	
   

  	
  Section 4.3.  
  Class A-1 Tag-Along Rights

  	
  8

  
	
   

  	
  Section 4.4.  
  Class A-1 Drag-Along Rights

  	
  9

  
	
   

  	
  Section 4.5.  
  Conversion to IPO Corporation

  	
  10

  
	
   

  	
  Section 4.6.  
  Management Interests Permitted Dispositions

  	
  11

  
	
   

  	
  Section 4.7.  
  Management Interest Tag-Along Rights

  	
  12

  
	
   

  	
  Section 4.8.  
  Management Drag-Along Rights

  	
  13

  
	
   

  	
  Section 4.9.  
  Right of First Refusal

  	
  14

  
	
   

  	
  Section 4.10.  
  Specific Performance

  	
  16

  
	
   

  	
   

  	
   

  
	
  ARTICLE V CAPITAL CONTRIBUTIONS

  	
  16

  
	
   

  	
   

  
	
   

  	
  Section 5.1.  
  Initial Capital Contributions; Capital Contributions on the Date Hereof

  	
  16

  
	
   

  	
  Section 5.2.  
  Additional Contributions

  	
  17

  
	
   

  	
  Section 5.3.  
  Return of Contributions

  	
  17

  
	
   

  	
  Section 5.4.  
  Capital Account

  	
  17

  
	
   

  	
  Section 5.5.  
  Pre-emptive Rights; Other Pro Rata Rights

  	
  17

  
					



 

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI REPRESENTATIONS AND WARRANTIES

  	
  19

  
	
   

  	
   

  
	
   

  	
  Section 6.1.  
  Partners’ Representations and Warranties

  	
  19

  
	
   

  	
  Section 6.2.  
  Management Limited Partners’ Additional Representations and Warranties

  	
  20

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII DISTRIBUTIONS

  	
  21

  
	
   

  	
   

  
	
   

  	
  Section 7.1.  
  Distributions

  	
  21

  
	
   

  	
  Section 7.2.  
  Tax Distributions

  	
  21

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII ALLOCATIONS

  	
  22

  
	
   

  	
   

  
	
   

  	
  Section 8.1.  
  Allocations of Profits and Losses

  	
  22

  
	
   

  	
  Section 8.2.  
  Special Allocations

  	
  22

  
	
   

  	
  Section 8.3.  
  Income Tax Allocations

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX MANAGEMENT OF THE PARTNERSHIP

  	
  24

  
	
   

  	
   

  
	
   

  	
  Section 9.1.  
  Management

  	
  24

  
	
   

  	
  Section 9.2.  
  Reliance by Third Parties

  	
  24

  
	
   

  	
  Section 9.3.  
  Compensation and Reimbursement of General Partner

  	
  25

  
	
   

  	
  Section 9.4.  
  Certain Duties and Obligations of the Partners; Exculpation; Indemnity

  	
  25

  
	
   

  	
  Section 9.5.  
  No Recourse Agreement

  	
  27

  
	
   

  	
   

  	
   

  
	
  ARTICLE X RIGHTS AND OBLIGATIONS OF LIMITED
  PARTNERS

  	
  27

  
	
   

  	
   

  
	
   

  	
  Section 10.1.  
  Limitation of Liability

  	
  27

  
	
   

  	
  Section 10.2.  
  Management of the Business

  	
  27

  
	
   

  	
  Section 10.3.  
  Outside Activities

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI TAXES

  	
  28

  
	
   

  	
   

  
	
   

  	
  Section 11.1.  
  Tax Matters Partner

  	
  28

  
	
   

  	
  Section 11.2.  
  Information Rights

  	
  29

  
	
   

  	
  Section 11.3.  
  Tax Withholding

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII MANAGEMENT LIMITED PARTNERS

  	
  30

  
	
   

  	
   

  
	
   

  	
  Section 12.1.  
  Vested Interests and Unvested Interests; Forfeiture of Unvested Interests

  	
  30

  
	
   

  	
  Section 12.2.  
  Call Rights

  	
  30

  
	
   

  	
  Section 12.3.  
  Put Rights

  	
  33

  
	
   

  	
  Section 12.4.  
  Fair Market Value

  	
  35

  
	
   

  	
  Section 12.5.  
  Voting; Power of Attorney

  	
  35

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII BOOKS AND BANK ACCOUNTS

  	
  36

  
	
   

  	
   

  
	
   

  	
  Section 13.1.  
  Maintenance of Books

  	
  36

  
					



 


ii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 13.2.  
  Accounts

  	
  36

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIV DISSOLUTION, WINDING-UP AND
  TERMINATION

  	
  36

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 14.1.  
  Dissolution of the Partnership

  	
  36

  
	
   

  	
  Section 14.2.  
  Winding-up and Termination

  	
  37

  
	
   

  	
  Section 14.3.  
  Deficit Capital Accounts

  	
  38

  
	
   

  	
  Section 14.4.  
  Dissolution

  	
  38

  
	
   

  	
   

  	
   

  
	
  ARTICLE XV WITHDRAWAL OF PARTNERS

  	
  38

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 15.1.  
  Withdrawal of General Partner

  	
  38

  
	
   

  	
  Section 15.2.  
  Withdrawal of Limited Partners

  	
  38

  
	
   

  	
   

  	
   

  
	
  ARTICLE XVI GENERAL PROVISIONS

  	
  38

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 16.1.  
  Offset

  	
  38

  
	
   

  	
  Section 16.2.  
  Notices

  	
  38

  
	
   

  	
  Section 16.3.  
  Entire Agreement; Supersede

  	
  39

  
	
   

  	
  Section 16.4.  
  Effect of Waiver or Consent

  	
  39

  
	
   

  	
  Section 16.5.  
  Amendment or Restatement

  	
  39

  
	
   

  	
  Section 16.6.  
  Termination

  	
  40

  
	
   

  	
  Section 16.7.  
  Binding Effect

  	
  40

  
	
   

  	
  Section 16.8.  
  Governing Law; Severability; Limitation of Liability

  	
  40

  
	
   

  	
  Section 16.9.  
  Further Assurances

  	
  41

  
	
   

  	
  Section 16.10.  
  Indemnification

  	
  41

  
	
   

  	
  Section 16.11.  
  Counterparts

  	
  41

  
	
   

  	
  Section 16.12.  
  Other Covenants

  	
  41

  
	
   

  	
  Section 16.13.   VCOC;
  Condition to Funding

  	
  42

  
	
   

  	
  Section 16.14.  
  Registration Rights

  	
  42

  
	
   

  	
   

  	
   

  
	
  Exhibits

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Definitions

  	
   

  
	
  Exhibit B

  	
  Form of Spousal Agreement

  	
   

  
	
  Exhibit C

  	
  Form of Addendum Agreement

  	
   

  
	
  Exhibit D

  	
  Registration Rights Agreement

  	
   

  
							



 


iii

















 


TDS
INVESTOR (CAYMAN) L.P.


 


This SIXTH AMENDED AND RESTATED AGREEMENT OF
EXEMPTED LIMITED PARTNERSHIP, dated as of December 19, 2007 (the “Agreement”),
is being entered into by and among TDS Investor (Cayman) GP Ltd., a Cayman
Islands exempted company limited by shares, as General Partner, and the Limited
Partners listed on the signature pages hereto as “Limited Partners” or “Management
Limited Partners” and such other Persons as shall hereinafter become Partners
as hereinafter provided.


 


Preliminary Statement


 


(a)           The
General Partner and those Limited Partners who were Limited Partners prior to October 13,
2006 (the “Initial Limited Partners”) funded the Partnership with a
combination of equity contributions, which funds were used to complete the
transactions (the “Transactions”) contemplated by the purchase agreement
by and among Cendant Corporation, Travelport Inc. and TDS Investor LLC, dated
as of June 30, 2006, as amended (the “Purchase Agreement”);


 


(b)           This
Agreement was previously amended and restated as of October 13, 2006 in
connection with the investment by certain employees of Subsidiaries of the
Partnership (the “Initial Management Limited Partners”) who funded the
Partnership with additional equity contributions and/or provision of services
to the Partnership and its Subsidiaries, as further described in the applicable
Management Equity Award Agreements (the “Management Equity Award Agreements”)
between the Partnership and the applicable Initial Management Limited Partner
dated as of October 13, 2006;


 


(c)           In
connection with the execution of the merger agreement by and among Travelport, Inc.,
Warpspeed Sub Inc., Worldspan Technologies Inc., Citigroup Venture Capital
Equity Partners, L.P. and Ontario Teachers Pension Plan Board dated as of December 7,
2006, as amended (the “Merger Agreement”), OEP TP, Ltd. invested $125
million in Class A-1 Interests and, pursuant to that certain Joiner and
Investment Agreement, dated as of December 7, 2006 (the “Joinder
Agreement”), as of such time, became a Limited Partner of the Partnership;
and


 


(d)           Pursuant
to the Joinder Agreement, the General Partner and the Sponsor Groups further
amended and restated the agreement of exempted limited partnership dated as of October 13,
2006 (the “October Agreement”), which amendments did not require
the approval or consent of any other Limited Partner under the October Agreement.


 


(e)           The
General Partner and the Sponsor Groups further amended and restated the agreement
of exempted limited partnership dated as of March 26, 2007 (the “March Agreement”),
which amendments did not require the approval or consent of any other Limited
Partner under the March Agreement.


 


(f)            The
General Partner and the Sponsor Groups further amended and restated the
agreement of exempted limited partnership dated as of November 6, 2007
(the “November Agreement”), which amendments did not require the
approval or consent of any other Limited Partner under the November Agreement,
in connection with the investment by certain employees of Subsidiaries of the
Partnership (the “2007 Management Limited Partners”) who funded the


 

















 


Partnership with additional
provision of services to the Partnership and its Subsidiaries, as further
described in the applicable Management Equity Award Agreements between the
Partnership and the applicable 2007 Management Limited Partner dated as of August 21,
2007.


 


(g)           The
General Partner and the Sponsor Groups desire to further amend and restate the
agreement of exempted limited partnership dated as of November 6, 2007
(the “Existing Agreement”), [which amendments do not require the
approval or consent of any Limited Partner under the Existing Agreement], in
connection with the conversion of certain Management Interests in connection
with the amendment of the Management Equity Award Agreements.


 


Agreement


 


In consideration of the mutual promises and
agreements made in this Agreement and intending to be legally bound hereby, the
parties hereto hereby agree as follows:


 


ARTICLE I




DEFINITIONS


 


Section 1.1.   Definitions.  Capitalized terms used in the Agreement
(including Exhibits and Schedules hereto) but not defined in the body hereof
shall have the meanings ascribed to them in Exhibit A.


 


Section 1.2.  
Construction.  Unless the context
requires otherwise: (a) pronouns in the masculine, feminine and neuter
genders shall be construed to include any other gender, and words in the
singular form shall be construed to include the plural and vice versa, (b) the
term “including” shall be construed to be expansive rather than limiting in
nature and to mean “including, without limitation,” (c) references to
Articles and Sections refer to Articles and Sections of this Agreement; (d) the
words “this Agreement,” “herein,” “hereof,” “hereby,” “hereunder” and words of
similar import refer to this Agreement as a whole, including the Exhibits and
Schedules attached hereto, and not to any particular subdivision unless
expressly so limited, and (e) references to Exhibits and Schedules are to
the items identified separately in writing by the parties hereto as the
described Exhibits or Schedules attached to this Agreement, each of which is
hereby incorporated herein and made a part hereof for all purposes as if set
forth in full herein.


 


ARTICLE II




GENERAL PROVISIONS


 


Section 2.1.  
Formation.  The Partnership has
been registered as an exempted limited partnership pursuant to the provisions
of the Partnership Act on July 14, 2006. 
The General Partner and each of the Limited Partners shall be deemed to
have notice of, and be bound by, the terms and conditions set forth in this
Agreement.  Except as expressly provided
herein and to the extent permitted by the Partnership Act, the rights and
obligations of the General Partner and each of the Limited Partners and the
administration and termination of the 


 


2

















 


Partnership shall be governed
by the Partnership Act.  The General
Partner or any Person designated by the General Partner is hereby designated as
an authorized person to execute, deliver and file any amendments to the Section 9
Notice of Registration of the Partnership and/or restatements thereof and any
other certificates, notices and any amendments and/or restatements thereof
necessary for the Partnership to qualify to do business in a jurisdiction in
which the Partnership may wish to conduct business.


 


Section 2.2.  
Name.  The Partnership shall
conduct its activities under the name of TDS Investor (Cayman) L.P.  The General Partner shall have the power at
any time to change the name of the Partnership; provided that the name shall
always contain the words “Limited Partnership” or the letters “L.P.”  Prompt notice of any such change shall be
given to each Partner and filed with the Registrar pursuant to the Partnership
Act.


 


Section 2.3.  
Term.  The term of the Partnership
commenced on the date of filing of the requisite notice to form the Partnership
in accordance with the Partnership Act and shall continue until dissolved,
wound up and terminated in accordance with Article XIV.


 


Section 2.4.   Purpose; Powers.  The purpose of the Partnership shall be to
engage in any business or activity that is permitted by the Partnership Act and
all other applicable Laws.


 


Section 2.5.  
Place of Business.  The
Partnership shall maintain a registered office at c/o Walkers SPV Limited,
Walker House, P.O. Box 908 GT, George Town, Grand Cayman, Cayman Islands,
unless a different registered office is designated by the General Partner.  The principal office of the Partnership shall
be at such place outside of the Cayman Islands as the General Partner may
designate.  The Partnership may have such
other offices as the General Partner may designate.


 


Section 2.6.  
Foreign Qualification.  Prior to
the Partnership’s conducting business in any jurisdiction other than the Cayman
Islands, the General Partner shall cause the Partnership to comply, to the
extent procedures are available and those matters are reasonably within the
control of the General Partner, with all requirements necessary to qualify the
Partnership as a foreign company in that jurisdiction if such qualification is
required.  At the request of the General
Partner, each Limited Partner shall execute, acknowledge, swear to, and deliver
all certificates and other instruments conforming with this Agreement that are
necessary or appropriate to qualify, continue, and terminate the Partnership as
a foreign company in all such jurisdictions in which the Partnership may
conduct business, provided that no Limited Partner shall be required to file
any general consent to service of process or to qualify as a foreign
corporation, limited liability company, partnership or other entity in any
jurisdiction in which it is not already so qualified.


 


Section 2.7.   Title to Assets.  Title to the Partnership’s assets, whether
real, personal or mixed and whether tangible or intangible, shall be deemed to
be held by the General Partner or in trust for the Partnership pursuant to the
terms of this Agreement.


 


Section 2.8.   Fiscal Year.  The
Fiscal year of the Partnership shall be the calendar year.


 


3














 


ARTICLE III


 


ADMISSION OF PARTNERS


 


Section 3.1.  
Partnership Interests.


 


(a)           Classes.
The Interests in the Partnership shall be the “General Partner Interest”
issued to the General Partner and two classes of limited partnership Interests
issuable to, and owned by, the Limited Partners, referred to herein as the “Class
A-1 Interests” and the “Class A-2 Interests”. The Class A-1
Interests and the Class A-2 Interests shall be referred to herein as the “Class A
Interests”. The Class A-2 Interests shall be referred to herein as the
“Management Interests”. Interests in the Partnership shall constitute
“securities” governed by Article 8 of the applicable version of the Uniform
Commercial Code, as amended from time to time after the date hereof.


 


(b)           Interest
Certificates. Ownership of Interests may be evidenced by certificates, but
shall be exclusively determined by entry in the Register of Partners. Each
Interest certificate and the Register of Partners shall bear a legend on the
face thereof in the following form:


 


“TRANSFER
IS SUBJECT TO RESTRICTIVE LEGENDS ON BACK.”


 


and shall bear
a legend on the reverse side thereof substantially in the following form:


 


“THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED OR SOLD, UNLESS
IT HAS BEEN REGISTERED UNDER THE SECURITIES ACT OR UNLESS AN EXEMPTION FROM
REGISTRATION IS AVAILABLE (AND, IN SUCH CASE, AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE GENERAL PARTNER SHALL HAVE BEEN DELIVERED TO THE
PARTNERSHIP TO THE EFFECT THAT SUCH OFFER OR SALE IS NOT REQUIRED TO BE
REGISTERED UNDER THE SECURITIES ACT). THIS SECURITY IS SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER AND OTHER TERMS AND CONDITIONS SET FORTH IN
(X) THE AMENDED AND RESTATED AGREEMENT OF EXEMPTED LIMITED PARTNERSHIP OF
TDS INVESTOR (CAYMAN) L.P. (THE “PARTNERSHIP AGREEMENT”), (Y) THE SHAREHOLDERS’
AGREEMENT OF TDS INVESTOR (CAYMAN) GP LTD. AND (Z) THE OTHER TRANSACTION
DOCUMENTS DESCRIBED IN THE PARTNERSHIP AGREEMENT, IN EACH SUCH CASE, AS AMENDED
FROM TIME TO TIME, COPIES OF WHICH MAY BE OBTAINED FROM THE PARTNERSHIP AT ITS
PRINCIPAL EXECUTIVE OFFICES.”


 


(c)           Conformed
copies of this Agreement shall be kept with the records of the Partnership by
the General Partner at its principal executive offices. In addition to the 


 


4

















 


legend required by Section 3.1(b) above, each
Partner agrees that the Register of Partners and each Interest certificate
heretofore or hereafter issued by the Partnership shall also bear such other
legends as may be required by Law or the General Partner. Any such legend shall
be removed by the General Partner upon the request (which shall include
customary representations and opinions of counsel if reasonably requested by
the General Partner) of a Partner when such legend is no longer applicable.


 


(d)           Schedule
A. The General Partner shall update Schedule A as required by the
Partnership Act and ensure that it accurately reflects the information to be
provided for therein. Any amendment or revision to Schedule A made in
accordance with this Agreement shall not be deemed an amendment to this
Agreement. Any reference in this Agreement to Schedule A shall be deemed to be
a reference to Schedule A as amended and in effect from time to time.


 


Section 3.2.  
Dispositions of Partnership Interests. No Limited Partner, nor any
spouse of a Limited Partner, Personal Representative of a Limited Partner or
legal representative or agent of a Limited Partner, may Dispose of all or any
portion of such Limited Partner’s Interest, except in compliance with Article
IV. Each of the Limited Partners agrees that the restrictions contained in this
Agreement are fair and reasonable and in the best interest of the Partnership and
the Partners.


 


Section 3.3.   Admission of Additional Limited
Partners. Any Person that acquires Interests pursuant to a Disposition of
Interests to such Person by a Limited Partner in accordance with Article IV and
the other provisions of this Agreement or pursuant to an issuance to such
Person by the Partnership in accordance with this Agreement shall automatically
be admitted as a Limited Partner without further action by the Partnership or
the General Partner upon signing an Addendum Agreement in the form attached
hereto as Exhibit C (an “Addendum
Agreement”), which, in the case of OEP, was satisfied with the
execution of the Joinder Agreement. No other Person that acquires an Interest
shall be admitted to the Partnership as an additional limited partner of the
Partnership in connection with a Disposition or an issuance by the Partnership,
without the consent of the General Partner.


 


Section 3.4.  
Information.


 


(a)           No
Limited Partner shall be entitled to obtain any information relating to the
Partnership except as expressly provided in this Agreement or in another
written agreement between the Partnership and a Limited Partner giving such
Limited Partner rights to receive information from the Partnership or to the
extent required by the Partnership Act; and to the extent a Limited Partner is
so entitled to such information, such Limited Partner shall be subject to the
provisions of Section 3.4(b). The General Partner shall have access to all
information regarding the Partnership subject to the provisions of Section
3.4(b).


 


(b)           Subject
to Section 10.3, each Partner agrees that all Confidential Information shall be
kept confidential by such Partner and shall not be disclosed by such Partner in
any manner whatsoever; provided, however,
that (i) any of such Confidential Information may be disclosed by a Partner to
its managers, officers, employees and authorized representatives (including
attorneys, accountants, consultants, bankers and financial advisors of such
Partner) 


 


5

















 


and each
Partner that is a limited partnership may disclose such Confidential
Information to any former partners who retained an economic interest in such
Partner, and to any current or prospective partner, limited partner, general
partner or management company of such Partner (or any employee, attorney, accountant,
consultant, banker or financial advisor or representative of any of the
foregoing)
(collectively, for purposes of this Section 3.4(b), “Representatives”), each of which Representatives shall be bound by the
provisions of this Section 3.4(b), (ii) any disclosure of Confidential
Information may be made by a Partner or its Representatives to the extent the
Partnership consents in writing, and (iii) Confidential Information may be disclosed
by any Partner or Representative to the extent that the Partner or its
Representative has received advice from its counsel that it is legally
compelled to do so, provided that, prior to making such disclosure, the Partner
or Representative, as the case may be, uses commercially reasonable efforts to
preserve the confidentiality of the Confidential Information, including
consulting with the General Partner regarding such disclosure and, if
reasonably requested by the General Partner, assisting the Partnership, at the
Partnership’s expense, in seeking a protective order to prevent the requested
disclosure, and provided further that the Partner or Representative, as the
case may be, discloses only that portion of the Confidential Information as is,
based on the advice of its counsel, legally required.


 


Section 3.5.  
Cessation of Partnership Interest. A Partner shall automatically cease
to be a Partner upon Disposition of all of such Partner’s Interests in
accordance with this Agreement and the removal of such Partner’s name from the
Register of Partners. Immediately upon any such Disposition, the General
Partner shall cause such Partner’s name to be removed from the Register of
Partners.


 


Section 3.6.  
Spouses of Partners. Spouses of the Partners that are natural persons do
not become Partners as a result of such marital relationship. Each spouse of a
Partner shall be required to execute a Spousal Agreement in the form of Exhibit
B to evidence their agreement and consent to be bound by the terms and conditions
of this Agreement as to their interest, whether as community property or
otherwise, if any, in the Interests owned by such Partner.


 


ARTICLE IV


 


RESTRICTIONS ON DISPOSITIONS OF INTERESTS


 


Section 4.1.  
Restrictions On Dispositions.


 


(a)           Anything
in this Agreement to the contrary notwithstanding, no issuance or Disposition
of Interests otherwise permitted or required by this Agreement shall be made
unless such issuance or Disposition is in compliance with U.S. and other
federal and state securities laws, including the Securities Act and the rules
and regulations thereunder, and the Partnership Act.


 


(b)           Anything
in this Agreement to the contrary notwithstanding, unless otherwise agreed to
in writing by the General Partner, no Disposition of Interests otherwise
permitted or required by this Agreement shall be effective unless and until any
transferee who is not already a party to this Agreement (and such transferee’s
spouse, if applicable) shall execute 


 


6

















 


and deliver to the
Partnership an Addendum Agreement in which such transferee (and such
transferee’s spouse, if applicable) agrees to be bound by this Agreement and to
observe and comply with this Agreement and with all obligations and
restrictions imposed on the Partners hereby and
thereby. Any Person who is not already a party to this Agreement and acquires
Interests in accordance with the provisions of this Agreement shall be required
to become a party to this Agreement by executing (together with such Person’s
spouse, if applicable) an Addendum Agreement.


 


(c)           Dispositions
of Interests may only be made in strict compliance with all applicable terms of
this Agreement, and any purported Disposition of Interests that does not so
comply with all applicable provisions of this Agreement shall be null and void
and of no force or effect, and the Partnership shall not recognize or be bound
by any such purported Disposition and shall not effect any such purported
Disposition on the transfer books of the Partnership or Capital Accounts of the
Partners. The parties hereto agree that the restrictions contained in this
Article IV are fair and reasonable and in the best interests of the Partnership
and its Partners.


 


(d)           All
newly issued Interests shall only be issued to Persons who are or become party
to this Agreement by execution of an Addendum Agreement.


 


(e)           Dispositions
made in accordance with this Agreement shall be effected by such documents and
instruments as are necessary to comply with the Partnership Act and other
applicable Cayman Islands Law, including the Addendum Agreement or such other
form of instrument of transfer approved by the General Partner.


 


(f)            Each
of the Class A-1 Limited Partners agrees that any Disposition of Class A-1
Interests pursuant to the terms of this Agreement shall be accompanied by a
proportionate Disposition of such Class A-1 Limited Partner’s shares in the
General Partner pursuant to Section 4.3 of the Shareholders’ Agreement. Any
such Disposition of Class A-1 Interests which is not accompanied by a
Disposition of a proportionate amount of such Class A-1 Limited Partner’s
shares in the General Partner shall be null and void.


 


(g)           Any
issuance of Class A-1 Interests to a Class A-1 Limited Partner or to any other
Person pursuant to the terms of this Agreement shall be accompanied by an
issuance to such Person of a proportionate amount of shares in the General
Partner pursuant to Section 5.2 of the Shareholders’ Agreement, and such Class
A-1 Limited Partner shall be required to pay the subscription amount to the
General Partner required in connection therewith; provided, that this
requirement shall not apply to OEP, which shall coordinate with the General
Partner to subscribe for shares of the General Partner and enter into the Shareholders
Agreement as soon as practicable after the date hereof. Except with respect to
OEP’s investment in Class A-1 Interests in connection with the execution of the
Joinder Agreement, any issuance of Class A-1 Interests which is not accompanied
by an issuance of a proportionate amount of shares in the General Partner to
such Person shall be null and void.


 


Section 4.2.  
Class A-1 Permitted Dispositions.


 


(a)           Subject
to the provisions of Section 4.1, Class A-1 Interests may only be Disposed
(i) to a Person who is a Permitted Transferee with respect to the transferring
Partner 


 


7

















 


(and each such
Permitted Transferee may in turn make any such Disposition to another Person
who is a Permitted Transferee with respect to the initial transferring Partner
upon the same terms and conditions), (ii) following the third anniversary of
the date of this Agreement, (iii) prior to the third anniversary of the date of
this Agreement with the consent of the General Partner, (iv) by one Sponsor
Group to another Sponsor Group, or (iv) pursuant to a Limited Partner’s rights
as a Class A-1 Tag Offeree under Section 4.3 or in connection with a
drag-along sale pursuant to and in accordance with Section 4.4.


 


(b)           Any
transfer made pursuant to clauses (i) and (iv) of Section 4.2(a) above shall
not be subject to the terms of Section 4.3 below.


 


(c)           The
provisions of this Section 4.2 shall terminate upon a Qualified Public
Offering.


 


Section 4.3.  
Class A-1 Tag-Along Rights.


 


(a)           No
Blackstone Partner shall sell or otherwise effect the Disposition of any
Class A-1 Interests (in one or a series of transactions) to a third party
(excluding for such purpose Dispositions in connection with a Qualified Public
Offering) unless the terms and conditions of such Disposition include an offer,
on the same terms as the offer to the selling Partner (the “Class A-1 Selling Partner”), to each of the
other Class A-1 Limited Partners (collectively, the “Class A-1 Tag
Offerees”), to include at the option of each Class A-1 Tag Offeree, in
the sale or other Disposition to the third party, a number of Class A-1
Interests owned by each Class A-1 Tag Offeree determined in accordance
with this Section 4.3.


 


(b)           The
Class A-1 Selling Partner shall cause the third party offer to be reduced
to writing (which writing shall include an offer to purchase or otherwise
acquire Class A-1 Interests from the Class A-1 Tag Offerees as required by
this Section 4.3 and a time and place designated for the closing of such purchase,
which time shall not be less than 10 days after delivery of such notice) and
shall send written notice of such third party offer (the “Class A-1 Inclusion Notice”) to each of
the Class A-1 Tag Offerees and the General Partner in the manner specified
herein.


 


(c)           Each
Class A-1 Tag Offeree shall have the right (an “Class A-1 Inclusion Right”), exercisable
by delivery of notice to the Class A-1 Selling Partner at any time within
ten Business Days after receipt of the Class A-1 Inclusion Notice, to sell
pursuant to such third party offer, and upon the terms and conditions set forth
in the Class A-1 Inclusion Notice, that number of Class A-1 Interests
requested to be included by such Class A-1 Tag Offeree; provided, however, that if the proposed
third party transferee is unwilling to purchase all of the Class A-1 Interests
requested to be sold by all exercising Class A-1 Tag Offerees, then each
Class A-1 Tag Offeree shall have the right to sell pursuant to such third
party offer, and upon the terms and conditions set forth in the Class A-1
Inclusion Notice, a number of such Class A-1 Tag Offeree’s Class A-1
Interests equal to the product of (x) such Class A-1 Tag Offeree’s
Class A-1 Interests multiplied by (y) the percentage of Class A-1
Interests that the Class A-1 Selling Partner is proposing to sell relative
to the total number of Class A-1 Interests held by such Class A-1
Selling Partner and its Affiliates. If any Class A-1 Tag Offeree has
exercised its Class A-1 Inclusion Rights and the proposed third party transferee
is unwilling to purchase all of the Class 


 


8

















 


A-1 Interests proposed to be transferred by
all exercising Class A-1 Tag Offerees (determined in accordance with the
first sentence of this Section 4.3(c)), then the Class A-1 Selling Partner
and each exercising Class A-1 Tag Offeree shall reduce, on a pro rata
basis based on their respective Percentage Interests of the Class A-1 Interests, the amount of
such Class A-1 Interests that each otherwise would have sold so as to permit
the Class A-1 Selling Partner and each exercising Class A-1 Tag
Offeree to sell the amount of Class A-1 Interests (determined in accordance
with such reduced Percentage Interests), that the proposed third party transferee
is willing to purchase.


 


(d)           The
Class A-1 Tag Offerees and the Class A-1 Selling Partner shall sell
to the proposed third party transferee the Class A-1 Interests proposed to be
transferred by them in accordance with this Section 4.3, at the time and place
provided for the closing in the Class A-1 Inclusion Notice, or at such
other time and place as the Class A-1 Tag Offerees, the Class A-1
Selling Partner, and the proposed third party transferee shall agree.


 


(e)           The
provisions of this Section 4.3 shall terminate upon a Qualified Public
Offering.


 


Section 4.4.  
Class A-1 Drag-Along Rights.


 


(a)           If
a Class A-1 Limited Partner (the “Class A-1 Drag Partner”) receives
an offer from a Person or group of Persons that is not a Permitted Transferee
or Affiliate of the Blackstone Group or the Partnership to purchase a number of
Interests (the “Class A-1 Drag Interests”) that is not less than a
majority of the outstanding Class A-1 Interests (calculated as a single class)
and such offer is accepted by Partners holding a majority of the outstanding
Class A-1 Interests, then the Class A-1 Drag Partner may require each
Class A-1 Limited Partner to sell to the applicable buyer(s) a number of Class
A-1 Interests that is equal to the product of (i) the number of Class A-1 Interests
owned by such Limited Partner and (ii) a fraction (expressed as a percentage),
the numerator of which is the number of Class A-1 Drag Interests and the
denominator of which is the total number of outstanding Class A-1 Interests
(such percentage, the “Class A-1 Relevant Percentage”, and any such
transaction, an “Approved Class A-1 Sale”). In any such Approved Class A-1
Sale, all selling Class A-1 Limited Partners must receive the same benefits
(including the same consideration per Interest) and bear the same burdens as
the Class A-1 Drag Partner, subject to Section 4.4(c). To the extent any
such transaction shall be structured as (I) a merger, conversion, Interest
exchange, consolidation, transfer by way of continuation of the Partnership, or
a sale of all or substantially all of the assets of the Partnership, each Class
A-1 Limited Partner entitled to vote thereon shall vote in favor of such
Approved Class A-1 Sale and shall waive any appraisal rights or
similar rights in connection with such merger, conversion, exchange,
consolidation or transfer by way of continuation or asset sale, or (II) a sale
of Class A-1 Interests, the Class A-1 Limited Partners shall agree to sell
all of their Interests which are the subject of the Approved Class A-1 Sale,
on the terms and conditions of such Approved Class A-1 Sale.


 


(b)           In
order to exercise the rights contemplated by this Section 4.4, the
Class A-1 Drag Partner must give written notice to each other Class A-1
Limited Partner as soon as practicable, but in no event later than the earlier
of (i) fifteen Business Days following the execution of the relevant agreement
and (ii) twenty Business Days prior to the anticipated closing date of the
Approved Class A-1 Sale. Such notice must set forth the name of the



 


9

















 


proposed buyer(s),
the proposed amount and form of consideration and the other terms and
conditions of the offer, including a copy of the relevant agreement.


 


(c)           Notwithstanding
anything herein to the contrary, no Class A-1 Limited Partner shall be required to take any
actions under this Section 4.4 in connection with an Approved Class A-1 Sale,
unless (i) such
Class A-1 Limited Partner is not responsible or otherwise liable for more than
the lesser of (x) its pro rata share (based upon the actual amount of
consideration received) of any holdback, escrow or indemnification obligation
(other than indemnities in respect to representations and warranties regarding
such Class A-1 Limited Partner’s title to its Class A-1 Interests, due
execution and due authorization), and (y) an amount equal to the actual
consideration received by such Class A-1 Limited Partner in such Approved Class A-1
Sale; and (ii) if any Class A-1 Limited Partner is given an
option as to the form of consideration to be received, all other such Class A-1 Limited Partners
shall be given the same option.


 


(d)           The
provisions of this Section 4.4 shall terminate upon a Qualified Public
Offering.


 


Section 4.5.   Conversion
to IPO Corporation.


 


(a)           In
connection with any proposed Qualified Public Offering approved in accordance
with this Agreement, the General Partner, at its election, may amend this
Agreement to provide for a share capital, convert in accordance with Cayman
Islands Law to a company limited by shares or other capital structure as the
General Partner may determine, form a subsidiary holding company and distribute
its shares to the Partners, move the Partnership or any successor to another
jurisdiction to facilitate any of the foregoing, or take such other steps as it
deems necessary to create a suitable vehicle for an offering, in each such case
in accordance with the Partnership Act and applicable Law (the resulting
entity, the “IPO Corporation”),
and in each case for the express purpose of an initial offering of the
securities of such IPO Corporation for sale to the public in a registered
public offering pursuant to the Securities Act that is a Qualified Public
Offering (an “IPO Conversion”). In connection therewith each Class A-1
Limited Partner agrees to cooperate with the other Class A-1 Limited
Partners in good faith in order to effectuate the IPO Conversion and ensure
that each Class A-1 Limited Partner receives shares (or other equity
securities) and other rights in connection with such IPO Conversion
substantially equivalent to its economic interest, governance, priority and
other rights and privileges as such Class A-1 Limited Partner had prior to
such IPO Conversion and are consistent with the rights and preferences
attendant to such Class A-1 Interests as set forth in this Agreement as in
effect immediately prior to such IPO Conversion and to ensure that such rights
and privileges are reflected in the organizational and other documents of the
IPO Corporation. In the event the General Partner determines that the
Partnership should engage in an IPO Conversion, the Class A-1 Limited
Partners will use commercially reasonable efforts to cooperate with each other
so the IPO Conversion is undertaken in a tax-efficient manner for all Class A-1
Limited Partners.


 


(b)           In
connection with any proposed IPO Conversion, at the option of the General
Partner all or any portion of the Management Interests may (i) be converted
into or redeemed for shares (or other equity securities and/or options at fair
market value) and other 


 


10

















 


rights with
substantially equivalent economic, governance, priority and other rights and
privileges as in effect immediately prior to such IPO Conversion (disregarding
the tax treatment of such conversion or redemption) or (ii) remain outstanding;
provided that the General Partner shall only take the action described
in clause (i) if the General Partner determines in good faith that the failure
to take such action would be materially adverse to the best interests of all
Partners of the Partnership taken as a whole (it being understood that for
purposes of such determination the availability of tax deductions arising from
redeeming or converting Management Interests, in whole or in part, for options
shall not be taken into consideration by the General Partner). If the General
Partner shall elect to take the action referred to in clause (i), the
Partnership shall use commercially reasonable efforts to cooperate with
Management Limited Partners so the IPO Conversion, to the extent possible, is
undertaken in a tax-efficient manner for all Management Limited Partners. If
any such conversion or redemption is effected in compliance with this Section
4.5, each Management Limited Partner agrees to consent to and raise no
objection to such conversion or redemption and shall execute and deliver all
agreements, instruments and documents as may be reasonably required in order to
consummate such conversion or redemption.


 


(c)           Notwithstanding
Section 4.5(b), following an IPO Conversion, contemporaneously with the later
of (i) the occurrence of the Lapse Date with respect to a Management
Limited Partner and (ii) the date on which all of a Management Limited
Partner’s Management Interests become Vested Interests, such Management Limited
Partner shall have the right, on 15 Business Days prior written notice to the
Partnership, to have all of its Management Interests redeemed by the
Partnership for corresponding shares or other securities of the IPO Corporation;
provided that upon exercise of such right the applicable Management Limited
Partner shall become a party to a stockholders agreement with IPO Corporation
providing for substantially similar obligations as those provided in this
Agreement.


 


(d)           The
General Partner shall give each Class A-1 Limited Partner at least 30
days’ prior written notice of any IPO Conversion as to which the Partnership
intends to exercise its rights under Section 4.5. If the General Partner elects
to exercise its rights under Section 4.5, the Partners shall take such actions
as may be reasonably required and otherwise cooperate in good faith with the
General Partner, including taking all actions required by the General Partner,
in connection with consummating the IPO Conversion (including, without
limitation, the voting of any Interests (including any voting as Partners as
may be necessary to effect a transfer by continuation or to authorize a share
capital, whether by liquidation of the Partnership and creation of a new
entity, amendment to this Agreement or otherwise), to approve such IPO
Conversion and to take any other actions required in order to effectuate an IPO
Conversion).


 


Section 4.6.  
Management Interests Permitted Dispositions. Subject to the provisions
of Section 4.1, Management Interests may only be Disposed (a) to a Person who
is a Permitted Transferee with respect to the transferring Management Limited
Partner (and each such Permitted Transferee may in turn make any such
Disposition to another Person who is a Permitted Transferee with respect to the
initial transferring Management Limited Partner upon the same terms and
conditions), (b) subject to compliance with Section 4.9, following the
Lapse Date applicable to such Management Limited Partner, (c) prior to the
Lapse Date applicable to such Management Limited Partner with the consent of
the General Partner (which consent shall be granted or withheld in the sole
discretion of the General Partner without regard to the best 


 


11

















 


interests of the Partnership or
any Limited Partner) or (d) pursuant to a Management Limited Partner’s rights
as a Management Tag Offeree under Section 4.7 or in connection with a
drag-along sale pursuant to and in accordance with Section 4.8.


 


Section 4.7.   Management
Interest Tag-Along Rights.


 


(a)           The
Blackstone Partners shall not sell or otherwise effect the Disposition of more
than 25% of the Class A-1 Interests held collectively by the Blackstone
Partners on the date of this Agreement (in one or a series of transactions,
regardless of whether such transactions are related) to a third party
(excluding for such purpose Dispositions in connection with a Qualified Public
Offering) unless the terms and conditions of such Disposition include an offer,
on the same terms (except that (x) the price per Interest shall be
adjusted to reflect the relative values of the applicable Interests in light of
the distribution priorities set forth in Article VII and (y) any
consideration otherwise payable in kind may, at the election of the buyer, be
paid in cash of equivalent value) as the offer to the selling Partner (the “25%
Selling Partner”), to each
of the Management Limited Partners (collectively, the “Management Tag
Offerees”), to include at the option of each Management Tag Offeree, in the
sale or other Disposition to the third party, a number of each class of
Management Interests owned by each Management Tag Offeree determined in
accordance with this Section 4.7.


 


(b)           The
25% Selling Partner shall cause the third party offer to be reduced to writing
(which writing shall include an offer to purchase or otherwise acquire
Management Interests from the Management 
Tag Offerees as required by this Section 4.7 and a time and place
designated for the closing of such purchase, which time shall not be less than
10 days after delivery of such notice) and shall send written notice of such
third party offer (the “Management  Inclusion Notice”) to each of the Management Tag Offerees in
the manner specified herein.


 


(c)           Each
Management Tag Offeree shall have the right (a “Management  Inclusion Right”), exercisable by
delivery of notice to the 25% Selling Partner at any time within ten Business
Days after receipt of the Management Inclusion Notice, to sell pursuant to such
third party offer, and upon the terms and conditions set forth in the
Management Inclusion Notice, that number of each class of Management Interests
equal to the product of (x) such Management Tag Offeree’s Interests of
such class multiplied by (y) the percentage of Class A-1 Interests that
the 25% Selling Partner is proposing to sell (or has previously sold in a
transaction subject to Section 4.3 but not Section 4.7) relative to the
total number of Class A-1 Interests held by such 25% Selling Partner and
its Affiliates on the date of this Agreement (provided that, with respect to
any subsequent Management Inclusion Right, the percentage shall be based on the
percentage of Class A-1 Interests that the 25% Selling Partner is
proposing to sell (or has sold in any transaction subject to Section 4.3 but
not 4.7 since the previous exercise of a Management Inclusion Right) relative
to the total number of Class A-1 Interests held by such 25% Selling
Partner and its Affiliates immediately following the exercise of the most
recent Management Inclusion Right).


 


(d)           The
Management Tag Offerees and the 25% Selling Partner shall sell to the proposed
third party transferee the Management Interests proposed to be transferred by
them in accordance with this Section 4.7, at the time and place provided for
the closing in the 


 


12

















 


Management Inclusion
Notice, or at such other time and place as the Management Tag Offerees, the 25%
Selling Partner, and the proposed third party transferee shall agree.


 


(e)           Notwithstanding
the foregoing, the tag-along provisions of this Section 4.7 shall only apply to
Management Interests which are Vested Interests (or which would become Vested
Interests as a result of the transactions contemplated by this Section 4.7),
assuming for purposes of this Section 4.7 that the distributions pursuant to
Section 7.1 are deemed to be effected pro forma for the proposed tag-along
transaction, and Management Interests which are not Vested Interests shall not
be regarded as Interests for purposes of this Section 4.7.


 


Section 4.8.  
Management Drag-Along Rights.


 


(a)           If
a Blackstone Partner (the “Blackstone Drag Partner”) receives an offer
from a Person or group of Persons that is not a Permitted Transferee or
Affiliate of the Blackstone Group or the Partnership to purchase more than 25%
of the Class A-1 Interests held collectively by them on the date of this
Agreement (the “Blackstone Drag Interests”), then the Blackstone Drag
Partner may require each Management Limited Partner to sell to the applicable
buyer(s) a number of each class of Interests that is equal to up to the product
of (i) the number of such class of Interests owned by such Management Limited
Partner and (ii) a fraction (expressed as a percentage), the numerator of which
is the number of Blackstone Drag Interests and the denominator of which is the
total number of outstanding Class A-1 Interests held by the Blackstone Group
(such percentage, the “Management Relevant Percentage”, and any such
transaction, a “Approved Management Interest Sale”). In any such
Approved Management Interest Sale, all selling Management Limited Partners must
receive the same relative benefits (except that (x) the price per Interest
shall be adjusted to reflect the relative values of the applicable Interests in
light of the distribution priorities set forth in Article VII and
(y) any consideration otherwise payable in kind may, at the election of
the buyer, be paid in cash of equivalent value) and bear the same relative burdens
as the Blackstone Drag Partner, subject to Section 4.8(c). To the extent any
such transaction shall be structured as (I) a merger, conversion, Interest
exchange, consolidation, transfer by way of continuation of the Partnership, or
a sale of all or substantially all of the assets of the Partnership, each
Management Limited Partner entitled to vote thereon shall vote in favor of such
Approved Management Interest Sale and shall waive any appraisal rights or
similar rights in connection with such merger, conversion, exchange,
consolidation or transfer by way of continuation or asset sale, or (II) a sale
of Interests, the Management Limited Partners shall agree to sell all of their
Management Interests which are the subject of the Approved Management Interest
Sale, on the terms and conditions of such Approved Management Interest Sale.


 


(b)           In
order to exercise the rights contemplated by this Section 4.8, the Blackstone
Drag Partner must give written notice to each Management Limited Partner as
soon as practicable, but in no event later than the earlier of (i) twenty
Business Days following the execution of the relevant agreement and (ii) ten
Business Days prior to the anticipated closing date of the Approved Management
Interest Sale. Such notice must set forth the name of the proposed buyer(s),
the proposed amount and form of consideration and the other terms and
conditions of the offer, including a copy of the relevant agreement.


 


13














 


(c)                                  Notwithstanding
anything herein to the contrary, no Management Limited Partner shall be
required to take any actions under this Section 4.8 in connection with a
Approved Management Interest Sale, unless such Management Limited Partner is not responsible or
otherwise liable for more than the lesser of (x) its pro rata share (based upon
the actual amount of consideration received) of any holdback, escrow or
indemnification obligation (other than indemnities in respect to
representations and warranties regarding such Management Limited Partner’s title to its Management
Interests, due
execution and due authorization), and (y) an amount equal to the actual
consideration received by such Management Limited Partner in such Approved
Management Interest Sale.


 


(d)                                 Notwithstanding the foregoing,
the drag-along provisions of this Section 4.8 shall apply to all Management
Interests, assuming for purposes of this Section 4.8 that the distributions
pursuant to Section 7.1 are deemed to be effected pro forma for the proposed
Approved Management Interest Sale.


 


Section 4.9.  
Right of First Refusal.


 


(a)                                  After the Lapse Date applicable
to a Management Limited Partner and until the occurrence of a Qualified Public
Offering (the “ROFR Period”), the Partnership shall have a right of
first refusal with respect to any proposed Disposition of Management Interests
by a Management Limited Partner (each a “Transferring Management Limited
Partner”), and any Transferring Management Limited Partner must first
comply with the provisions of this Section 4.9. The Partnership may assign this
right to one or more Blackstone Partners, TCV Partners or OEP Partners (in
which case all references in this Section 4.9 shall be deemed to be references
to the applicable Blackstone Partner, TCV Partner or OEP Partner); provided,
that any such assignment shall be pro rata among
each Blackstone Partner, TCV Partner and OEP Partner wishing to exercise such
right.


 


(b)                                 At any time a Transferring
Management Limited Partner proposes to make a bona fide Disposition of
Management Interests during the ROFR Period (other than (i) a Disposition
pursuant to clause (a) or (d) of Section 4.6 or (ii) pursuant to the
Registration Rights Agreement), and such Transferring Management Limited
Partner has received a bona fide arm’s length offer (the “Offer”) to
purchase all or any portion of its Management Interests (the “Offered
Interests”) from any Person (the “Offeror”) which the Transferring
Management Limited Partner wishes to accept, such Transferring Management Limited
Partner shall cause the Offer to be reduced to writing and shall notify the
Partnership in writing of its wish to accept the Offer (the “Offering Notice”).


 


(c)                                  The Offering Notice shall
contain an irrevocable offer to sell the Offered Interests to the Partnership
at a price equal or equivalent (as determined in the manner set forth in
Section 4.9(c)(i) below) to the price contained in, and otherwise on the
same terms and conditions of, the Offer and shall be accompanied by a copy of
the Offer (which shall identify the Offeror).


 


(i)                                     For
a period of 20 Business Days after the date upon which the Partnership shall
have received the Offering Notice (the “Partnership Option Period”), the
Partnership shall have the right to elect to purchase all (but not less than
all) of the


 


14

















 


Offered
Interests either (A) at the same price and on the same terms and conditions as
the Offer or (B) if the Offer includes any consideration other than cash, then
at the sole option of the Partnership, at the equivalent cash price, determined
in good faith by the General Partner. If the Partnership does not elect to
purchase all of the Offered Interests pursuant to this Section 4.9(c),
then the Transferring Management Limited Partner may sell all of the Offered
Interests to the Offeror in accordance with Section 4.9(e).


 


(ii)                                  The
right of the Partnership to purchase the Offered Interests under
Section 4.9(c) shall be exercisable by delivering written notice of the
exercise thereof, prior to the expiration of the Partnership Option Period, to
the Transferring Management Limited Partner. The failure of the Partnership to
deliver such a notice to the Transferring Management Limited Partner within the
Partnership Option Period to the Transferring Management Limited Partner shall
be deemed to be a waiver of the Partnership’s rights under Section 4.9(c).


 


(d)                                 The closing of the purchase of
Offered Interests subscribed for by the Partnership under Section 4.9(c)
shall be held at the executive office of the Partnership at 11:00 a.m., local
time, no later than 25 Business Days after the Partnership’s election to
purchase the Offered Interests pursuant to Section 4.9(c) is delivered to
the Transferring Management Limited Partner or at such other time and place as
the parties to the transaction may agree; provided that if such sale is
subject to any prior regulatory approval, then such 30-day period shall be
extended until the expiration of 15 Business Days after all such approvals
shall have been received, but in no event shall such period be extended for
more than an additional 60 days without the consent of the Transferring
Management Limited Partner. At such closing, the Transferring Management
Limited Partner shall deliver certificates representing the Offered Interests
(or other applicable transfer instruments), duly endorsed for transfer and
accompanied by all requisite transfer taxes, if any, and such Offered Interests
shall be free and clear of any liens, and the Transferring Management Limited
Partner shall so represent and warrant, and shall
further represent and warrant that it is the sole beneficial and legal owner of
such Offered Interests with the full right, power and authority to convey the
Offered Interests to the Partnership. The Partnership shall deliver at the
closing payment in full in immediately available funds for the Offered
Interests purchased by it. At such closing, all of the parties to the
transaction shall execute such additional documents as are otherwise necessary or
appropriate.


 


(e)                                  If the Partnership does not
elect to purchase all of the Offered Interests under Section 4.9(c), or if
the Partnership does so elect but the regulatory approvals necessary to
consummate such purchase are not obtained within the time periods referred to
in Section 4.9(d), then the Transferring Management Limited Partner may
sell all (but not less than all) of the Offered Interests to the Offeror on
terms and conditions no less favorable to the Transferring Management Limited
Partner than those set forth in the Offering Notice; provided, however,
that such sale is bona fide and made pursuant to a contract entered into not
later than 45 days after the earlier to occur of (i) the waiver by the
Partnership of its option to purchase the Offered Interests and (ii) the
expiration of the Partnership Option Period (the “Contract Date”); and provided,
further, that such sale shall not be consummated unless and until (A)
such Offeror shall represent in writing to the Partnership that it is aware of
the rights and obligations of the Partnership contained in this Agreement and
(B) prior to the purchase by such Offeror of such Offered Interests, such
Offeror shall become a party to this Agreement and shall agree to be bound by
the


 


15

















 


terms and conditions
hereof to the same extent as the Transferring Management Limited Partner. If
such sale is not consummated within 60 days after the Contract Date for any
reason, then the restrictions provided for herein shall again become effective,
and no Disposition of such Offered Interests may be made thereafter by the
Transferring Management Limited Partner without again complying with this
Section 4.9; provided that if such sale is subject to any prior
regulatory approval, then such 30-day period shall be extended until the
expiration of 10 Business Day after all such approvals shall have been
received, but in no event shall such period be extended for more than an
additional 120 days without the consent of the Partnership.


 


Section 4.10.  
Specific Performance. Each of the parties to this Agreement acknowledges
that it shall be impossible to measure in money the damage to the Partnership
or the Partners(s), if any of them or any transferee or any legal
representative of any party hereto fails to comply with any of the restrictions
or obligations imposed by this Article IV, that every such restriction and
obligation is material, and that in the event of any such failure, neither the
Partnership nor the Partner(s) shall have an adequate remedy at law or in
damages. Therefore, each party hereto consents to the issuance of an injunction
or the enforcement of other equitable remedies against it at the suit of an
aggrieved party without the posting of any bond or other equity security, to
compel specific performance of all of the terms of this Article IV and to
prevent any Disposition of Interests in contravention of any terms of this
Article IV, and waives any defenses thereto, including, without limitation, the
defenses of: (i) failure of consideration; (ii) breach of any other provision
of this Agreement; and (iii) availability of relief in damages. The provisions
of this Section 4.10 shall terminate with respect to any Sponsor Group
upon a Qualified Public Offering.


 


ARTICLE V


 


CAPITAL CONTRIBUTIONS


 


Section 5.1.  
Initial Capital Contributions; Capital Contributions on the Date Hereof.


 


(a)                                  As of the Initial Closing Date,
subject to the terms and conditions set forth in this Agreement, the
Partnership issued and sold to each Initial Limited Partner, and each Initial
Limited Partner purchased for cash or a note the number of Class A-1 Interests
as is set forth opposite each such Person’s name on Schedule A for the
respective contribution amount or note as is set forth opposite each such
Person’s name on Schedule A.


 


(b)                                 As of the Initial Closing Date,
subject to the terms and conditions set forth in this Agreement, the
Partnership issued to the General Partner the General Partner Interest in
exchange for $1,000 contributed by the General Partner to the Partnership.


 


(c)                                  Prior to the date of this Sixth
Amended and Restated Partnership Agreement, subject to the terms and conditions
set forth in this Agreement and any applicable Management Equity Award
Agreement, (i) the Partnership issued and sold to each Class A-2
Limited Partner, and each Class A-2 Limited Partner purchased for cash the
number of Class A-2 Interests as is set forth opposite each such Person’s
name on the signature pages hereto for the respective contribution amount as is
set forth opposite each such Person’s name on the signature


 


16

















 


pages hereto with
respect to such dates and (ii) the Partnership shall reserve for future
issuance, pursuant to the Restricted Equity Units, a number of Class A-2
Interests as is designated as “Reserved” on Schedule A for the respective
aggregate hypothetical contribution amount set forth on Schedule A.


 


Section 5.2.  
Additional Contributions. No Partner shall be required to make any additional
Capital Contribution without the consent of such Partner.


 


Section 5.3.  
Return of Contributions. Except as otherwise
provided in Article VII, (a) a Partner is not entitled to the return of any
part of its Capital Contributions or to be paid interest in respect of either
its Capital Account or its Capital Contributions, (b) an unrepaid Capital
Contribution is not a liability of the Partnership or of any Partner, and (c) a
Partner is not required to contribute or to lend any cash or property to the Partnership
to enable the Partnership to return any Partner’s Capital Contributions.


 


Section 5.4.  
Capital Account. A separate capital account (a “Capital Account”)
shall be established and maintained for each Partner. The Capital Account of
each Partner shall be credited with such Partner’s Capital Contributions, if
any, all items of income and gain allocated to such Partner pursuant to Section
8.1 and any items of income or gain which are specially allocated pursuant to
Section 8.2; and shall be debited with all items of loss and deduction
allocated to such Partner pursuant to Section 8.1, any items of loss or
deduction of the Partnership specially allocated to such Partner pursuant to
Section 8.2, and all cash and the Book Value of any property (net of liabilities
assumed by such Partner and the liabilities to which such property is subject)
distributed by the Partnership to such Partner. To the extent not provided for
in the preceding sentence, the Capital Accounts of the Partners shall be
adjusted and maintained in accordance with the rules of Treasury Regulations
Section 1.704-1(b)(2)(iv), as the same may be amended or revised. Any
references in any section of this Agreement to the Capital Account of a Partner
shall be deemed to refer to such Capital Account as the same may be credited or
debited from time to time as set forth above. In the event of any transfer of
any interest in the Partnership in accordance with the terms of this Agreement,
the transferee shall succeed to the Capital Account of the transferor to the
extent it relates to the transferred interest


 


Section 5.5.  
Pre-emptive Rights; Other Pro Rata Rights.


 


(a)                                  If the Partnership or any of
Travelport Worldwide Limited, Travelport Holdings Limited or Travelport Limited
issues or proposes to issue any Interests or any other equity securities of
such entity or any options or other rights to acquire Interests or any other
equity securities of such entity (“New Securities”), or enters into any
contracts, commitments, agreements, understandings or arrangements of any kind
relating to any issuance of any New Securities (other than the issuance of
equity securities (i) to employees and directors of the Partnership or any of
its Subsidiaries with respect to any employee benefit plan, incentive award program
or other compensation arrangement (other than issuances to individuals who are
employees of Blackstone, TCV or OEP), (ii) to the sellers in any business
combination or acquisition by the Partnership or any of its Subsidiaries, (iii)
in a public offering of Interests or other equity securities or (iv) in
connection with an IPO Conversion (each an “Excluded Issuance”)), the
Partnership shall give each Partner that is a member of a Sponsor Group the
right to purchase, on the same terms including at the same purchase price as
the price for the


 


17

















 


New Securities to be
issued, up to that number of New Securities so that after the issuance of the
New Securities, such Partner would, after exercising its rights hereunder in
the aggregate, beneficially hold the same proportion of the applicable class of
issued Interests or other securities as was held by such Partner based on
overall Capital Contributions of such Partner prior to the issuance of such New
Securities; provided that, with respect to any issuance by Travelport Holdings
Limited or Travelport Limited, each Partner that is a member of the Sponsor
Group will be deemed to beneficially hold the proportion of outstanding
securities of such entity as equals the proportion of outstanding Interests it
holds. Each Partner that is a member of the Sponsor Group may exercise its
right in the immediately preceding sentence with respect to all or a portion of
the New Securities for which it has the right to purchase by providing written
notice to the Partnership within 20 Business Days after receiving written
notice of such issuance or proposed issuance of New Securities.


 


(b)                                 If the Partnership or any of
Travelport Worldwide Limited, Travelport Holdings Limited or Travelport Limited
issues or proposes to issue any New Securities to Blackstone, or enters into
any contracts, commitments, agreements, understandings or arrangements of any
kind relating to any issuance of any New Securities to Blackstone (other than
an Excluded Issuance), the Partnership shall give each Management Limited
Partner who is an “executive officer” (as defined in Rule 3b-7 under the
Exchange Act) of such issuer the right to purchase, on the same terms including
at the same purchase price as the price for the New Securities to be issued, up
to that number of New Securities so that after the issuance of the New
Securities, such Partner would, after exercising its rights hereunder in the
aggregate, beneficially hold the same proportion of the applicable class of
issued Interests or other securities as was held by such Management Limited
Partner of Class A Interests prior to the issuance of such New Securities
(giving pro forma effect to any Class A-2 Interests issuable under any
outstanding Restricted Equity Units); provided that, with respect to any
issuance by Travelport Holdings Limited or Travelport Limited, each Management
Limited Partner will be deemed to beneficially hold the proportion of
outstanding securities of such entity as equals the proportion of outstanding
Class A Interests it holds (giving pro forma effect to any Class A-2
Interests issuable under any outstanding Restricted Equity Units); providing
that the foregoing rights shall not apply to any Management Limited Partner who
is not an “accredited investor” under Rule 501 under the Securities Act.
Each such Management Limited Partner may exercise its right in the immediately
preceding sentence with respect to all or a portion of the New Securities for
which it has the right to purchase by providing written notice to the
Partnership of its exercise and evidence of its financial ability to pay the
purchase price within 5 Business Days after receiving written notice of such
issuance or proposed issuance of New Securities; provided that if less than a
majority of the Percentage Interests of Class A Interests held by such
Management Limited Partners exercise such rights, then all Management Limited
Partners shall be deemed to have waived such rights.


 


(c)                                  In the event that the
Partnership or any member of the Blackstone Group or any of its Affiliates
exercises, or is entitled to exercise, a right to acquire any Interests (the “Repurchased
Interests”) held by any other Partner, then TCV and OEP shall have the
right to acquire, on the same terms including at the same purchase price as the
price for the Repurchased Interests to be repurchased, up to a portion of the
Repurchased Interests equal to its Percentage Interest of Class A-1
Interests. TCV and OEP may exercise their right in the immediately preceding
sentence with respect to all or a portion of the Repurchased Interests by
providing


 


18

















 


written notice to
the Partnership or the Blackstone Group, as applicable, within 20 Business Days
after receiving written notice of such proposed repurchase of Repurchased
Interests.


 


(d)                                 Subject to the terms of this
Agreement, the General Partner may issue Interests hereunder on such terms as
it sees fit and any such issuance and the consequent admission of any new
Limited Partners shall not require the consent of any Limited Partner.


 


ARTICLE VI


 


REPRESENTATIONS AND WARRANTIES


 


Section 6.1.  
Partners’ Representations and Warranties. Each Partner represents and
warrants to the Partnership and the other Partners that, as of the date hereof:


 


(a)                                  such Partner has full power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder, and the execution, delivery, and performance by such Partner of this
Agreement have been duly authorized by all necessary action;


 


(b)                                 this Agreement has been duly and
validly executed and delivered by such Partner and constitutes the binding
obligation of such Partner enforceable against such Partner in accordance with
its terms, subject to Creditors’ Rights;


 


(c)                                  the execution, delivery, and
performance by such Partner of this Agreement will not, with or without the
giving of notice or the lapse of time, or both, (i) violate any provision of
Law to which such Partner is subject, (ii) violate any order, judgment, or
decree applicable to such Partner, or (iii) conflict with, or result in a
breach or default under, any agreement or instrument to which such Partner is a
party or any term or condition of its certificate of incorporation or by-laws,
certificate of limited partnership or partnership agreement, or certificate of
formation or limited liability company agreement, as applicable, except where
such conflict, breach or default would not reasonably be expected to,
individually or in the aggregate, have an adverse effect on such Partner’s
ability to satisfy its obligations hereunder;


 


(d)                                 no consent, approval, permit,
license, order or authorization of, filing with, or notice or other action to,
with or by any Governmental Authority or any other Person, is necessary, on the
part of such Partner to perform its obligations hereunder or to authorize the
execution, delivery and performance by such Partner of its obligations
hereunder, except where such consent, approval, permit, license, order,
authorization, filing or notice would not reasonably be expected to,
individually or in the aggregate, have an adverse effect on such Partner’s
ability to satisfy its obligations hereunder or under any agreement or other
instrument to which such Partner is a party; and


 


(e)                                  such Partner is acquiring the
Interests for investment and not with a view toward any resale or distribution
thereof except in compliance with the Securities Act; such Partner acknowledges
that the Interests have not been registered pursuant to the Securities Act and
may not be transferred in the absence of such registration or an exemption
therefrom under


 


19

















 


the Securities Act;
and such Partner has sufficient knowledge and experience in financial and business
matters so as to be capable of evaluating the risks of its investment in the
Interests and is capable of bearing the economic risks of the transactions
contemplated by this Agreement, the applicable Management Equity Award
Agreements and the other agreements contemplated by this Agreement (the “Transaction
Documents”).


 


Section 6.2.  
Management Limited Partners’ Additional Representations and Warranties.
Each Management Limited Partner further represents and warrants to the
Partnership and the Initial Limited Partners that, as of the date hereof:


 


(a)                                  the Management Limited Partner’s
financial situation is such that such Management Limited Partner can afford to
bear the economic risk of holding the Interests for an indefinite period of
time, has adequate means for providing for the Management Limited Partner’s
current needs and personal contingencies, and can afford to suffer a complete
loss of the Management Limited Partner’s investment in the Interests;


 


(b)                                 the Management Limited Partner’s
knowledge and experience in financial and business matters are such that the
Management Limited Partner is capable of evaluating the merits and risks of the
investment in the Interests;


 


(c)                                  the Management Limited Partner
understands that the Interests are a speculative investment which involves a
high degree of risk of loss of Management Limited Partner’s investment therein,
there are substantial restrictions on the transferability of the Interests and,
on the date on which such Management Limited Partner acquires such Interests
and for an indefinite period following such date, there will be no public
market for the Interests and, accordingly, it may not be possible for the
Management Limited Partner to liquidate the Management Limited Partner’s
investment including in case of emergency, if at all;


 


(d)                                 the terms of this Agreement
provide that if the Management Limited Partner ceases to provide Services to
the Partnership and its Affiliates, the Partnership and its Affiliates have the
right to repurchase the Interests at a price which may be less than the Fair
Market Value thereof;


 


(e)                                  the Management Limited Partner
understands and has taken cognizance of all the risk factors related to the
purchase of the Interests and, other than as set forth in this Agreement, no
representations or warranties have been made to the Management Limited Partner
or Management Limited Partner’s representatives concerning the Interests, the
Partnership, the Partnership’s Affiliates or their respective prospects or
other matters;


 


(f)                                    the Management Limited Partner
has been given the opportunity to examine all documents and to ask questions
of, and to receive answers from, the Partnership and its representatives
concerning the Partnership and its subsidiaries, the Transactions, this Agreement,
the Partnership’s organizational documents and the terms and conditions of the
purchase of the Interests and to obtain any additional information which the
Management Limited Partner deems necessary;


 


(g)                                 all information which the
Management Limited Partner has provided to the Partnership and the
Partnership’s representatives concerning the Management Limited 


 


20

















 


Partner and the
Management Limited Partner’s financial position is complete and correct as of
the date of this Agreement; and


 


(h)                                 the Management Limited Partner
has reviewed the default, forfeiture and mandatory repurchase provisions of
this Agreement and each Management Equity Award Agreement entered into by it
and acknowledges that (i) such Management Limited Partner’s acceptance of such
provisions is a precondition to admission as a Management Limited Partner and
(ii) such provisions are reasonable.


 


ARTICLE VII


 


DISTRIBUTIONS


 


Section 7.1.  
Distributions. Subject in each case to restrictions imposed by Law,
distributions to the Partners with respect to the Interests shall be made by
the Partnership as follows:


 


(a)                                  During the term of the
Partnership (including upon the dissolution and winding up of the Partnership),
cash or other property available for distribution may be distributed from time
to time as the General Partner may determine, but any such distribution shall
be made in the following order of priority:


 


(i)                                     First, to the General Partner until the General Partner has
received $1,000 pursuant to all distributions made under this Section 7.1;


 


(ii)                                  Second, pro rata to each holder of Class A Interests based
on its Percentage Interest of Class A Interests.


 


(b)                                 All distributions made under
this Section 7.1 shall be made to the Partners of record on the record date
established by the General Partner or, in the absence of any such record date,
to the Partners owning the applicable Interests on the date of the
distribution.


 


Section 7.2.  
Tax Distributions. If the General Partner reasonably determines that the
taxable income of the Partnership for a taxable year
will give rise to taxable income for the Partners (after giving effect
to any net cumulative taxable losses from prior
taxable years (“Net Taxable Income”)), the General Partner shall
cause the Partnership to distribute cash available for distribution (if any)
for purposes of allowing the Partners to fund their respective income tax
liabilities (the “Tax Distributions”). The Tax Distributions with
respect to any taxable year shall be computed based upon the General Partner’s
estimate of the Net Taxable Income, multiplied by the Applicable
Tax Percentage (the “Tax Amount”) and shall only be paid to the extent
previous distributions pursuant to Section 7.1 during such taxable year are insufficient
to cover the Tax Amount for such taxable year. Tax Distributions shall be
distributed to the Partners on a pro rata basis
in accordance with their respective participations in such taxable income, and
shall be treated in all respects as offsets against subsequent distributions
pursuant to Section 7.1.


 


21

















 


ARTICLE VIII


 


ALLOCATIONS


 


Section 8.1.  
Allocations of Profits and Losses. Except as otherwise provided in this
Agreement, Profits and Losses and to the extent necessary, individual items of
income, gain or loss or deduction of the Partnership shall be allocated in a
manner such that the Capital Account of each Partner after giving effect to the
Special Allocations set forth in Section 8.2 is, as nearly as possible, equal
(proportionately) to (i) the distributions that would be made pursuant to
Section 7.1 if the Partnership were dissolved, its affairs wound up and its
assets sold for cash equal to their Book Value, all Partnership liabilities were
satisfied (limited with respect to each non-recourse liability to the Book
Value of the assets securing such liability) and the net assets of the
Partnership were distributed in accordance with Section 7.1 to the Partners
immediately after making such allocation, minus (ii) such Partner’s
share of Partner Minimum Gain and Partner Nonrecourse Debt Minimum Gain,
computed immediately prior to the hypothetical sale of assets.


 


Section 8.2.  
Special Allocations. Notwithstanding any other provision in this Article
VIII:


 


(a)                                  Minimum Gain Chargeback. If there is a net decrease in
Partner Minimum Gain or Partner Nonrecourse Debt Minimum Gain (determined in
accordance with the principles of Treasury Regulations Sections 1.704-2(d) and
1.704-2(i)) during any Partnership taxable year, the Partners shall be
specially allocated items of Partnership income and gain for such year (and, if
necessary, subsequent years) in an amount equal to their respective shares of
such net decrease during such year, determined pursuant to Treasury Regulations
Sections 1.704-2(g) and 1.704-2(i)(5). The items to be so allocated shall be
determined in accordance with Treasury Regulations Section 1.704-2(f).
This Section 8.2(a) is intended to comply with the minimum gain chargeback requirements
in such Treasury Regulations Sections and shall be interpreted consistently
therewith; including that no chargeback shall be required to the extent of the
exceptions provided in Treasury Regulations Sections 1.704-2(f) and
1.704-2(i)(4).


 


(b)                                 Qualified Income Offset. If any Partner unexpectedly
receives any adjustments, allocations, or distributions described in Treasury
Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of Partnership
income and gain shall be specially allocated to such Partner in an amount and
manner sufficient to eliminate the deficit balance in such Partner’s Adjusted
Capital Account Balance created by such adjustments, allocations or
distributions as promptly as possible; provided, that an allocation pursuant to
this Section 8.2(b) shall be made only to the extent that a Partner would have
a deficit Adjusted Capital Account Balance in excess of such sum after all
other allocations provided for in this Article VIII have been tentatively made
as if this Section 8.2(b) were not in this Agreement. This Section 8.2(b) is
intended to comply with the “qualified income offset” requirement of the Code
and shall be interpreted consistently therewith.


 


(c)                                  Gross Income Allocation. If any Partner has a deficit
Capital Account at the end of any taxable year which is in excess of the sum of
(i) the amount such Partner is obligated to restore, if any, pursuant to any
provision of this Agreement, and (ii) the amount such


 


22

















 


Partner is deemed to
be obligated to restore pursuant to the penultimate sentences of Treasury
Regulations Section 1.704-2(g)(1) and 1.704-2(i)(5), each such Partner shall be
specially allocated items of Partnership income and gain in the amount of such
excess as quickly as possible; provided, that an allocation pursuant to this
Section 8.2(c) shall be made only if and to the extent that a Partner would
have a deficit Capital Account in excess of such sum after all other
allocations provided for in this Article VIII have been tentatively made as if
Section 8.2(b) and this Section 8.2(c) were not in this Agreement.


 


(d)                                 Nonrecourse Deductions. Nonrecourse Deductions shall be
allocated to the Partners ratably in accordance with such Partners’ Interests.


 


(e)                                  Partner Nonrecourse Deductions. Partner Nonrecourse Deductions
for any taxable period shall be allocated to the Partner who bears the economic
risk of loss with respect to the liability to which such Partner Nonrecourse
Deductions are attributable in accordance with Treasury Regulations Section
1.704-2(j).


 


(f)                                    Creditable Foreign Taxes. Creditable Foreign Taxes for any
taxable period attributable to the Partnership, or an entity owned directly or
indirectly by the Partnership, shall be allocated to the Partners in proportion
to the partners’ distributive shares of income (including income allocated
pursuant to Section 704(c) of the Code) to which the Creditable Foreign Tax
relates (under principles of Treasury Regulations Section 1.904-6). The
provisions of this Section 8.2(f) are intended to comply with the provisions of
Temporary Treasury Regulations Section 1.704-1T(b)(4)(xi), and shall be
interpreted consistently therewith.


 


(g)                                 Ameliorative Allocations. Any special allocations of
income or gain pursuant to Sections 8.2(b) or 8.2(c) hereof shall be taken into
account in computing subsequent allocations pursuant to Section 8.1 and this
Section 8.2(g), so that the net amount of any items so allocated and all other
items allocated to each Partner shall, to the extent possible, be equal to the
net amount that would have been allocated to each Partner if such allocations
pursuant to Sections 8.2(b) or 8.2(c) had not occurred.


 


Section 8.3.  
Income Tax Allocations. For income tax purposes, each item of income,
gain, loss and deduction of the Partnership shall be allocated among the
Partners in the same manner as the corresponding items of Profits and Losses
and specially allocated items are allocated for Capital Account purposes; provided,
that in the case of any asset the Book Value of which differs from its adjusted
tax basis for U.S. federal income tax purposes, income, gain, loss and
deduction with respect to such asset shall be allocated solely for income tax
purposes in accordance with the principles of Sections 704(b) and (c) of the
Code (in any manner determined by the General Partner) so as to take account of
the difference between Book Value and adjusted basis of such asset.


 


23

















 


ARTICLE IX


 


MANAGEMENT OF THE PARTNERSHIP


 


Section 9.1.  
Management.


 


(a)                                  Except as otherwise expressly
provided herein, the General Partner shall have the exclusive right to manage
the business of the Partnership pursuant to the terms of the Shareholders’
Agreement, and shall have all powers and rights necessary or advisable to
effectuate and carry out the purposes and business of the Partnership and, in
general, all powers permitted to be exercised by a general partner under the
Partnership Act (without any vote or consent of any Limited Partner, except as
expressly provided herein).


 


(b)                                 Except as expressly authorized
by the General Partner, no other Partner shall have the power to act for,
transact business on behalf of or bind the Partnership or take part in the
management of the business of the Partnership.


 


(c)                                  Subject to the restrictions in
the Shareholders’ Agreement, the General Partner shall not be obligated to
abstain from acting on any matter (or act in any particular manner) because of
any interest (or conflict of interest) of such General Partner (or any
Affiliate thereof) in such matter.


 


(d)                                 TDS Investor (Cayman) GP Ltd.
shall serve as the General Partner unless and until a successor or substitute
General Partner is appointed by the General Partner and approved by TCV and
OEP.


 


(e)                                  Subject to the direction of the
General Partner, the day-to-day administration of the business of the
Partnership may be carried out by employees and agents of the General Partner
who may be designated as officers, with titles including but not limited to “chairman,”
“vice chairman,” “managing director,” “principal,” “president,” “vice
president,” “treasurer,” “assistant treasurer,” “secretary,” “assistant
secretary,” “general manager,” “director” and “chief financial officer,” as and
to the extent authorized by the General Partner. The officers of the General
Partner shall have such titles and powers and perform such duties as shall be
determined from time to time by the General Partner. Any number of offices may
be held by the same Person.


 


(f)                                    Each Partner agrees that, except
as otherwise expressly provided herein and to the fullest extent permitted by
applicable law, any action of or relating to the Partnership by the General
Partner as provided herein shall bind each Partner.


 


Section 9.2.  
Reliance by Third Parties. Notwithstanding any other provision of this
Agreement to the contrary, any Person dealing with the Partnership shall be
entitled to rely exclusively on the representations of the General Partner as
to its power and authority to enter into arrangements and shall be entitled to
deal with the General Partner as if it were the sole party in interest therein,
both legally and beneficially. In no event shall any Person dealing with the
General Partner or the General Partner’s representative with respect to any
business or property of the Partnership be obligated to ascertain that the
terms of this Agreement have been 


 


24

















 


complied with, or be obligated
to inquire into the necessity or expedience of any act or action of the General
Partner or the General Partner’s representative; and every Contract or other
document executed by the General Partner or the General Partner’s
representative with respect to any business or property of the Partnership
shall be conclusive evidence in favor of any and every Person relying thereon
or claiming thereunder that (a) at the time of the execution and/or delivery
thereof this Agreement was in full force and effect, (b) such instrument or
document was duly executed in accordance with the terms and provisions of this
Agreement and is binding upon the Partnership and (c) the General Partner or
the General Partner’s representative was duly authorized and empowered to
execute and deliver any and every such instrument or document for and on behalf
of the Partnership.


 


Section 9.3.  
Compensation and Reimbursement of General Partner.


 


(a)                                  Except as provided in this
Section 9.3 or otherwise in this Agreement, the General Partner shall not be
compensated for its services as general partner of the Partnership.


 


(b)                                 The General Partner shall be
reimbursed for all expenses, disbursements and advances incurred or made on behalf of the Partnership, and other expenses necessary or
appropriate to the conduct of the Partnership’s business and allocable to the
Partnership.


 


Section 9.4.  
Certain Duties and Obligations of the Partners; Exculpation; Indemnity.


 


(a)                                  No Partner shall take, or cause
to be taken, any action that would result in any other Partner having any
personal liability for the obligations of the Partnership.


 


(b)                                 To the fullest extent permitted
by applicable law, no Partner or any Affiliate of any Partner or their
respective members, officers, directors, employees, agents, stockholders or
partners nor any Person who serves at the specific request of the General
Partner on behalf of the Partnership as a partner, member, officer, director,
employee or agent of any other entity (each, an “Indemnitee”) will be
liable to the Partnership or to any Partner for any act performed or omission
made by such Person in connection with this Agreement or the matters
contemplated herein, unless such act or omission resulted from Gross
Negligence, fraud, a willful breach of this Agreement or a willful illegal act.
To the extent that an Indemnitee has, at law or in equity, duties and
liabilities relating to the Partnership, any Limited Partner or any other
Person bound by the terms of this Agreement, such Indemnitee, acting in
accordance with this Agreement shall not, to the maximum extent permitted under
applicable law, be liable to the Partnership or to any such Limited Partner or
other Person for its good faith reliance on the provisions of this Agreement.
To the extent that, at law or in equity, the General Partner has duties
(including fiduciary duties) and liabilities relating thereto to the
Partnership or to another Partner, the General Partner acting under the
Agreement shall not be liable to the Partnership or to any such other Partner
for its good faith reliance on the provisions of this Agreement. The provisions
of this Agreement, to the extent that they expand or restrict the duties and
liabilities of the General Partner otherwise existing at law or in equity, are
agreed by the Partners to be modified to the extent of such other duties and
liabilities of the General Partner.


 


25














 


(c)           To
the maximum extent permitted under applicable law, whenever an Indemnitee is
permitted or required to make a decision or take an action or omit to do any of
the foregoing: (i) in its “sole discretion” or “discretion” or under a similar
grant of authority or latitude or without an express standard of behavior
(including, without limitation, standards such as “reasonable” or “good faith”),
such Indemnitee shall be entitled to consider only such interests and factors,
including its own, as it desires, and shall have no duty or obligation to
consider any other interests or factors whatsoever, or (ii) with an
express standard of behavior (including, without limitation, standards such as “reasonable”
or “good faith”), then the Indemnitee shall comply with such express standard
but, to the maximum extent permitted under applicable law, shall not be subject
to any other or additional standard imposed by this Agreement or applicable
law.


 


(d)           Each
Indemnitee may consult with legal counsel, financial advisors and accountants
selected by it and any act or omission suffered or taken by it on behalf of the
Partnership or in furtherance of the interests of the Partnership in good faith
in reliance upon and in accordance with the advice of such counsel, financial advisors
or accountants will be full justification for any such act or omission, and
each such Indemnitee will be fully protected in so acting or omitting to act, provided
that such counsel, financial advisors or accountants were selected with
reasonable care.


 


(e)           The
Partnership shall, to the fullest extent permitted by law, indemnify and hold
harmless any Indemnitee (and their respective heirs and legal and personal
representatives) who was or is a party, or is threatened to be made a party, to
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (including any action by or in the
right of the Partnership), by reason of any actions or omissions or alleged
acts or omissions arising out of such Person’s activities either on behalf of
the Partnership or in furtherance of the interests of the Partnership or
arising out of or in connection with the Partnership, against all claims,
liabilities, damages, losses, costs and expenses (including amounts paid in
satisfaction of judgments, in compromises and settlements, as fines and
penalties and legal or other costs and reasonable expenses of investigating or
defending against any claim or alleged claim) of any nature whatsoever, known
or unknown, liquidated or unliquidated, that are incurred by any Indemnitee and
arise out of or in connection with such action, suit or proceeding; provided, that such Person was not guilty of Gross
Negligence, fraud, a willful breach of this Agreement or a willful illegal act;
provided further, that any Person
entitled to indemnification from the Partnership hereunder shall first seek
recovery under any other indemnity or any insurance policies by which such
Person is indemnified or covered, as the case may be, but only to the extent
that the indemnitor with respect to such indemnity or the insurer with respect
to such insurance policy provides (or acknowledges its obligation to provide)
such indemnity or coverage on a timely basis, as the case may be, and, if such
Person is other than the General Partner, such Person shall obtain the written
consent of the General Partner prior to entering into any compromise or
settlement which would result in an obligation of the Partnership to indemnify
such Person. The General Partner shall have the Partnership purchase, at the
Partnership’s expense, insurance to insure the Partnership and the Partners
against liability in connection with the activities of the Partnership.


 


(f)            The
right to indemnification conferred in this Section 9.4 shall include the right
to be paid or reimbursed by the Partnership the expenses incurred by a Person
of the type


 


26

















 


entitled to be indemnified under Section
9.4(c) who was, is or is threatened to be made a named defendant or respondent
in a proceeding in advance of the final disposition of the proceeding and
without any determination as to the Person’s ultimate entitlement to
indemnification. Such expenses shall, at the request of the Person entitled to be
indemnified under Section 9.4(c), be advanced by the Partnership on behalf of
such Person in advance of the final disposition of a proceeding so long as such
Person shall have provided the Partnership with a written undertaking, by or on
behalf of such Person, to repay all amounts so advanced if it shall ultimately
be determined that such indemnified Person is not entitled to be indemnified
under this Section 9.4 or otherwise.


 


(g)           The
right of any Indemnitee to the indemnification provided herein is cumulative
of, and in addition to, any and all rights to which such Indemnitee may
otherwise be entitled by contract or as a matter of law or equity, and extend
to such Indemnitee’s successors, assigns and legal representatives.


 


Section 9.5.  
No Recourse Agreement.  Neither
the Partnership nor any of its Subsidiaries shall enter into any agreement
which shall provide for recourse to any Limited Partner or, without its
consent, the General Partner. No recourse to (a) any assets or properties of
any members, partners or shareholders of any Limited Partner (or any person
that controls such member, partner or shareholder within the meaning of Section
15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder (the “Exchange
Act”)), (b) any Affiliate of any Limited Partner or (c) any incorporators,
officers, directors, partners, members or employees of any Limited Partner
shall be had and no judgment relating to the obligations of any Limited Partner
under this Agreement or the Transaction Documents (except to the extent any
such Person expressly is individually liable thereunder) or for any payment
obligations under this Agreement or the Transaction Documents (except to the
extent any such Person expressly is individually liable thereunder), or any
part thereof, or for any claim based thereon or otherwise in respect thereof or
related thereto, shall be obtainable by the Partnership or any Partner against
any direct or indirect member, partner, shareholder, incorporator, employee or
Affiliate, past, present or future, of any Limited Partner.


 


ARTICLE X


 


RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS


 


Section 10.1.  
Limitation of Liability.  No
Limited Partner, in such capacity, shall have any liability under this
Agreement, or for the debts, liabilities or obligations of the Partnership,
except as provided in the Partnership Act.


 


Section 10.2.  
Management of the Business.  No
Limited Partner (other than the General Partner or its directors, managers,
partners, officers, employees or agents in their capacity as such, if such
Person shall also be a Limited Partner) shall take part in the operation,
management or control of the Partnership’s name or have the power to sign
documents for or otherwise bind the Partnership. The transaction of any
business by a General Partner or any director, manager, partner, officer,
employee or agent of a General Partner in its capacity as such


 


27

















 


shall not affect, impair or
eliminate the limitations on the liability of any Limited Partner under this
Agreement.


 


Section 10.3.  
Outside Activities.  (i) The TCV
Group, the Blackstone Group, the OEP Group, any partner, member, officer,
director, employee or Affiliate of the foregoing may engage in or possess any
interest in other investments, business ventures or Persons of any nature or
description, independently or with others, similar or dissimilar to, or that
competes with, the investments or business of the Partnership and its
Subsidiaries, and may provide advice and other assistance to any such
investment, business venture or Person, (ii) the Partnership and the Partners
shall have no rights by virtue of this Agreement in and to such investments,
business ventures or Persons or the income or profits derived therefrom, and
(iii) the pursuit of any such investment or venture, even if competitive with
the business of the Partnership and its Subsidiaries, shall not be deemed
wrongful or improper. None of the TCV Group, the Blackstone Group, the OEP
Group, any partner, member, officer, director, employee or Affiliate of the
foregoing shall be obligated to present any particular investment or business
opportunity to the Partnership even if such opportunity is of a character that,
if presented to the Partnership, could be pursued by the Partnership, and the
TCV Group, the Blackstone Group, the OEP Group, and any partner, member,
officer, director, employee or Affiliate of the foregoing shall have the right
to pursue for its own account (individually or as a partner or a fiduciary) or
to recommend to any other Person any such investment opportunity. Nothing in
this Section 10.3 as it relates to any partner, member, officer, director or
employee of any such Person shall limit the obligations of such partner,
member, officer, director or employee of any such Person under any other
agreements (including any employment agreements) with the Partnership or its
Subsidiaries or under any policy of the Partnership or its Subsidiaries to
which such partner, member, officer, director or employee may be subject from
time to time.


 


ARTICLE XI


 


TAXES


 


Section 11.1.  
Tax Matters Partner.  The General
Partner shall be the initial “tax matters partner” within the meaning of
Section 6231(a)(7) of the Code (the “Tax Matters Partner”). The Tax
Matters Partner shall determine in its reasonable discretion the appropriate
treatment of each item of income, gain, loss, deduction and credit of the
Partnership and the accounting methods and conventions under the tax laws of
the United States, the several states and other relevant jurisdictions as to
the treatment of any such item or any other method or procedure related to the
preparation of such tax returns. The Tax Matters Partner shall have all of the
rights, duties, powers and obligations provided for in Sections 6221 through
6232 of the Code. The Partnership intends to file as a partnership for U.S.
federal, state and local income tax purposes, except where otherwise required
by Law. All elections required or permitted to be made by the Partnership, and
all other tax decisions and determinations relating to U.S. federal, state or
local tax matters of the Partnership, shall be made by the Tax Matters Partner,
in consultation with the Partnership’s attorneys and/or accountants. As
appropriate, the Tax Matters Partner shall prepare a schedule allocating basis
to all the assets of the Partnership under Code Sections 755 and 1060. Tax
audits, controversies and litigations shall be conducted under the direction of
the Tax Matters Partner. As soon as reasonably practicable after the end of
each taxable year but not later than 75 days after the end of each taxable
year, the Partnership shall


 


28

















 


send to each Partner a copy of
U.S. Internal Revenue Service Schedule K-1, and any comparable statements
required by applicable state or local income tax Law, with respect to such
taxable year. The Partnership also shall provide the Partners with such other
information as may be reasonably requested for purposes of allowing the
Partners to prepare and file their own tax returns. The Partnership shall bear
the cost of the preparation and filing of its tax returns with respect to the
Partnership and its Subsidiaries, but shall not bear any additional costs
related primarily to any specific Partner. The Tax Matters Partner shall inform
each other Partner of all significant matters that may come to its attention in
its capacity as Tax Matters Partner by giving notice thereof as soon as
reasonably practicable after becoming aware thereof and, within that time,
shall forward to each other Partner copies of all significant written
communications it may receive in that capacity.


 


Section 11.2.  
Information Rights.


 


(a)           The Partnership agrees to provide to
the Class A-1 Limited Partners such information as the Class A-1 Limited
Partners reasonably request from time to time in order to (i) permit the Class
A-1 Limited Partners to comply with any applicable information reporting obligations
resulting from the Class A-1 Limited Partners’ investment in the Partnership
and (ii) determine whether any majority-owned Subsidiary of the Partnership
(based on vote or value) is or has been, or the consequences to the applicable
Class A-1 Limited Partners, as the case may be, if any Subsidiary of the
Partnership becomes, a “passive foreign investment company,” a “controlled
foreign corporation,” a corporation whose income is required to be taken into
account by the Class A-1 Limited Partners, and, at the request of the Class A-1
Limited Partners, cooperate with the Class A-1 Limited Partners in making, or
permitting the applicable Class A-1 Limited Partners to make, any election
permitted under the Code that does not have a material adverse tax effect to
the other Partners. The Partnership shall also use reasonable commercial
efforts to provide such information as the Class A-1 Limited Partners
reasonably request for the foregoing purposes with respect to minority-owned
Subsidiaries of the Partnership.


 


(b)           The
Partnership shall use good faith reasonable efforts to provide, at its expense,
to OEP (i) the financial and tax information necessary to enable OEP to
determine its (and its beneficial owners’) US taxable income (if any)
(including gross income required to be recognized under Section 951 of the
Code) derived from its investment for the applicable tax year (beginning with
the 2006 tax year, but only if, in the reasonable determination of OEP, any of
the beneficial owners of OEP qualifies as a “United States shareholder” of the
Partnership, as defined in Section 951(b) of the Code) and foreign tax credits
no later than May 31 of each year and (ii) any information required to be
included in US federal income tax returns, forms, statements and related
disclosures that are required to be filed by or on behalf of OEP and its
respective beneficial owners with respect to its investment no later than June
30 of each year. The Partnership shall also (A) make a determination each year,
at its expense, of whether the Partnership or any of its direct or indirect
subsidiaries qualify as “passive foreign investment companies” within the
meaning of Section 1297 of the Code for the taxable year and, if relevant, (B)
use good faith reasonable efforts to (I) communicate the determination to OEP
in writing no later than May 31 of the succeeding year and (II) provide OEP
with the information described in the preceding sentence. The Partnership shall
consider and use commercially reasonable efforts to implement (at OEP’s
expense) proposals by OEP to enhance the tax position of its affiliates in
connection with its investment in the Partnership, provided that the proposals
are not


 


29

















 


disadvantageous to th   Partnership
(or any of its beneficial owners) or the Partnership or any of its direct or
indirect subsidiaries (determined at the sole discretion of the GP).


 


Section 11.3.  
Tax Withholding.  To the extent
the Partnership is required by law to withhold or to make tax payments on
behalf of or with respect to any Partner (“Tax Advances”), the
Partnership may withhold such amounts and make such tax payments as so
required. All Tax Advances made on behalf of a Partner shall be repaid by
reducing the amount of the current or next succeeding distribution or
distributions which would otherwise have been made to such Partner or, if such
distributions are not sufficient for that purpose, by so reducing the proceeds
of liquidation otherwise payable to such Partner. If a distribution to a
Partner is actually reduced as a result of a Tax Advance, for all other
purposes of this Agreement such Partner shall be treated as having received the
amount of the distribution that is reduced by the Tax Advance. Each Partner
hereby agrees to indemnify and hold harmless the Partnership and the other
Partners from and against any liability (including, without limitation, any
liability for taxes, penalties, additions to tax or interest) with respect to
income attributable to or distributions or other payments to such Partner.


 


ARTICLE XII


 


MANAGEMENT LIMITED PARTNERS


 


Section 12.1.  
Vested Interests and Unvested Interests; Forfeiture of Unvested Interests.


 


(a)           Management
Interests shall be held subject to the terms and conditions of a Management Equity
Award Agreement which will include vesting conditions applicable to such
Interests.


 


(b)           Except
as otherwise provided in a Management Equity Award Agreement, if a Management
Limited Partner’s Services to the Partnership and its Subsidiaries terminate for
Cause (as defined in the applicable Management Equity Award Agreement), all
outstanding Management Interests held by such Management Limited Partner
(including both Unvested Interests and Vested Interests) shall be forfeited
without consideration.


 


(c)           Except
as otherwise provided in a Management Equity Award Agreement, if a Management
Limited Partner’s Services to the Partnership and its Subsidiaries terminate
for any reason other as described in clause (b) above (including death or
Disability (as defined in the applicable Management Equity Award Agreement)),
all outstanding Management Interests held by such Management Limited Partner
that are Unvested Interests shall be forfeited without consideration.


 


Section 12.2.  
Call Rights.


 


(a)           Except
as otherwise provided in a Management Equity Award Agreement, if a Management
Limited Partner’s Services to the Partnership and its Subsidiaries terminate
for any reason (including death or Disability) (a “Termination Event”),
the Partnership shall have the right but not the obligation to purchase, from
time to time after such Termination Event, for a


 


30

















 


period of 200 days following the later of (x)
the Termination Event and (y) with respect to Management Interests which are
Vested Interests, the date such Management Interests become Vested Interests
(the “Call Option Period”), the Management Interests held by such
Management Limited Partner. To exercise such purchase right with respect to a
Management Limited Partner, the Partnership shall deliver to such Management
Limited Partner prior to the expiration of the Call Option Period a written
notice specifying the number and class of Interests with respect to which the
Partnership has elected to exercise such purchase right, whereupon such
Management Limited Partner shall be required to sell to the Partnership, the
Management Interests specified in such notice, at a price per Management
Interest equal to the applicable purchase price determined pursuant to Section
12.2(c).


 


(b)           If
upon expiration of the Call Option Period, the Partnership has not purchased
all of a terminated Management Limited Partner’s Management Interests which are
Vested Interests, the Partnership shall on or before the expiration of the Call
Option Period provide written notice to each Partner that is a member of a
Sponsor Group (collectively, the “Other Partners”) of (i) its decision
not to purchase some or all of such Management Interests and (ii) the number
and class of such Management Interests which the Partnership did not elect to
purchase, and the Other Partners shall have the right to purchase all or a
portion of such remaining Management Interests which are Vested Interests at a
price per Management Interest equal to the applicable purchase price determined
pursuant to Section 12.2(c). The Other Partners’ rights to purchase such
Management Interests and such Management Limited Partner’s corresponding
obligation to sell such Management Interests shall terminate on the 60th day
following the expiration of the Call Option Period. Each of the Other Partners
that elects to exercise such purchase right shall provide written notice to the
Partnership prior to the 60th  day following the expiration of
the Call Option Period specifying that the number of such Management Interests
it wishes to purchase (and, if the aggregate number of Equity Incentives
Interests specified in such notices exceeds the number of Management Interests
available, the number of Management Interests which each Other Partner shall be
entitled to purchase shall be reallocated in proportion to each such Other
Partner’s Ownership Percentage). Upon receipt of the Other Partners’ notices,
the Partnership will notify such Management Limited Partners of the Other
Partners’ elections and such Management Limited Partner will be obligated to
sell to the Other Partners the number of such Management Interests determined
in accordance with this Section 12.2(b).


 


(c)           Call
Values. Except as otherwise provided in a Management Equity Award
Agreement:


 


(i)            Unvested Interests; Any Termination.
Upon a termination of a Management Limited Partner’s Services to the
Partnership and its Subsidiaries for any reason (including death or
Disability), the purchase price for the Management Interests which are Unvested
Interests, to the extent the forfeiture provisions set forth in
Section 12.1(b) do not apply or are not enforceable, will be $1 in the
aggregate (or the lowest price permitted by applicable Law).


 


(ii)           Vested Interests; Cause Termination.
Upon a termination of a Management Limited Partner’s Services by the
Partnership and its Subsidiaries for Cause (as defined in the applicable
Management Equity Award Agreement), the purchase price


 


31

















 


for the
Management Interests, to the extent the forfeiture provisions set forth in
Section 12.1(b) do not apply or are not enforceable, will be $1 in the
aggregate (or the lowest price permitted by applicable Law).


 


(iii)          Vested Interests; Other Termination.
Upon a termination of a Management Limited Partner’s Services to the
Partnership and its Subsidiaries for any reason other than a termination by the
Partnership or its Subsidiaries for Cause (as defined in the applicable
Management Equity Award Agreement), the purchase price for the Management
Interests which are Vested Interests will be Fair Market Value (determined
pursuant to Section 12.4 and, in the case of a purchase by the Partnership
pursuant to Section 12.2(a), as of the date on which the Partnership exercised
its call right pursuant to Section 12.2(a) or, in the case of a purchase by any
Other Partner pursuant to Section 12.2(b), as of the 60th day following the
expiration of the applicable Call Option Period (such date, the “Price
Determination Date”)).


 


(d)           The
closing of the purchase of the Management Interests pursuant to Section 12.2(a)
or 12.2(b) shall occur at such time and place as the parties to such purchase
shall agree, and in any event within 45 days of the Price Determination Date; provided
that if such purchase is subject to any prior regulatory approval, then such
45-day period shall be extended until the expiration of 10 Business Days after
all such approvals shall have been received. At such closing, the Management
Limited Partner shall deliver certificates representing the Management
Interests (or other applicable transfer instruments), duly endorsed for
transfer and accompanied by all requisite transfer taxes, if any, and such
Management Interests shall be free and clear of any liens, and the transferring
Management Limited Partner shall so represent and warrant, and shall further
represent and warrant that it is the sole beneficial and record owner of such
Management Interests with the full right, power and authority to convey the
Management Interests to the purchaser. At such closing, all of the parties to
the transaction shall execute such additional documents as are otherwise
necessary or appropriate. The Management Interests may be purchased (i) by
delivery of funds deposited into an account designated by the Management
Limited Partner selling such Management Interests, a bank cashier’s check, a
certified check or a company check of the purchaser for the purchase price,
(ii) if the purchaser is the Partnership and it or its Subsidiaries are
prohibited from paying cash by any financing arrangements of the Partnership
and unable to pay the purchase price in shares as described in clause (iii)
below, by a note of the Partnership payable in installments over a period of up
to five (5) years from the date of issuance of such note, having a principal
amount equal to the applicable purchase price, bearing interest at a market
borrowing rate for similarly situated companies of similar credit quality in
effect from time to time (which note shall be a general, senior unsecured
obligation of the Partnership or a Subsidiary of the Partnership that holds all
or substantially all of the assets of the Partnership), or (iii) if a Qualified
Public Offering has occurred, by delivery of a number of shares of the IPO Corporation
equal to the aggregate purchase price of the Management Interests being
purchased divided by the closing price on the applicable exchange on which such
share trade as of the trading day immediately prior to the day of delivery
thereof to the Management Limited Partner, rounded down to the nearest whole
number of shares. The Partnership shall notify the Management Limited Partners
in writing of the method by which it has elected to purchase the Management
Interests at least 3 Business Days prior to the closing of such purchase. The
parties hereto acknowledge that the Partnership may be unable to pay with
Shares to the extent it is unable to deliver such securities pursuant to an
exemption from registration


 


32

















 


under the Securities Act and any applicable
state securities laws or pursuant to a registration statement on Form S-3 or
Form S-8.


 


(e)           Notwithstanding
anything to the contrary elsewhere herein, the Partnership shall not be
obligated to purchase any Management Interests at any time pursuant to this
Section 12.2, regardless of whether it has delivered a notice of its election
to purchase any such Management Interests, (i) to the extent that (A) the
purchase of such Management Interests (together with any other purchases of
Management Interests pursuant to this Article XII, or pursuant to similar
provisions in any other agreements with other investors, of which the
Partnership has at such time been given or has given notice) or (B) in the event
of an election to purchase such Management Interests with shares of the IPO
Corporation, the issuance of such shares by the IPO Corporation or the
distribution of such shares of the IPO Corporation to the applicable Management
Limited Partner(s) would result (x) in a violation of any Law (including
any unavailability of a registration statement or exemption from registration
necessary to allow delivery of shares to the applicable Management Limited
Partner(s)), (y) after giving effect thereto (including any dividends or
other distributions or loans from a Subsidiary of the Partnership to the
Partnership in connection therewith), in a default or event of default under
any financing agreement of the Partnership or its Subsidiaries (a “Financing
Default”) or (z) in the Partnership being required to disgorge any profit to
the IPO Corporation pursuant to Section 16(b) of the Exchange Act, (ii) if
immediately prior to such purchase of Management Interests, issuance or
purchase of shares of the IPO Corporation, as the case may be, there exists a
Financing Default which prohibits such issuance or purchase (including any
dividends or other distributions or loans from a Subsidiary of the Partnership
to the Partnership in connection therewith), or (iii) if the Partnership
does not have funds available to effect such purchase of Management Interests. The
Partnership shall within 15 days of learning of any such fact so notify the
Members in writing that it is not obligated to purchase such Management
Interests, whereupon Sections 12.2(b) and 12.2(c) shall apply to such
Management Interests as if the Partnership had never delivered a notice
electing to purchase such Management Interests (except that each reference to “the
60th day following the expiration of the Call Option Period” in Section 12.2(b)
shall be deemed a reference to “the 60th day following the delivery by the
Partnership of the notice referred to in Section 12.2(e)” and the definition of
“Price Determination Date” shall be deemed modified in a corresponding manner).
Notwithstanding the foregoing, the Partnership shall use reasonable efforts to
cause its Subsidiaries to distribute cash necessary to satisfy its obligations
in respect of Section 12.2(d) and Section 12.2(e).


 


Section 12.3.  
Put Rights.


 


(a)           Except
as otherwise provided in a Management Equity Award Agreement, if a Management
Limited Partner’s Services to the Partnership and its Subsidiaries terminate as
a result of death of Disability (a “Put Termination Event”), the
Management Limited Partner (or its estate or heirs) shall have the right but
not the obligation to require the Partnership to purchase, from time to time
after such Put Termination Event, for a period of 200 days following the later
of (x) Put Termination Event and (y) with respect to Management Interests which
are Vested Interests, the date such Management Interests become Vested
Interests (the “Put Option Period”), all (but not less than all) of the
Management Interests held by such Management Limited Partner; provided that the
General Partner may require that the exercise be delayed until the 181st day following the later of the Put Termination
Event and the date such Management Interests become


 


33

















 


Vested Interests if deferring such exercise
would avoid an adverse accounting impact to the Partnership or its Subsidiaries.
To exercise such purchase right, the Management Limited Partner (or its estate
or heirs) shall deliver to the Partnership prior to the expiration of the Put
Option Period a written notice specifying its election to exercise its rights
under this Section 12.3, whereupon such Management Limited Partner (or its
estate or heirs) shall be required to sell to the Partnership all of its
Management Interests, at a price per Management Interest equal to the
applicable purchase price determined pursuant to Section 12.2(c).


 


(b)           The
closing of the purchase of the Management Interests pursuant to Section 12.3(a)
shall occur at such time and place as the parties to such purchase shall agree,
and in any event within 45 days of the Price Determination Date; provided
that if such purchase is subject to any prior regulatory approval, then such
45-day period shall be extended until the expiration of 10 Business Days after
all such approvals shall have been received. At such closing, the Management
Limited Partner (or its estate or heirs) shall deliver certificates
representing the Management Interests (or other applicable transfer
instruments), duly endorsed for transfer and accompanied by all requisite
transfer taxes, if any, and such Management Interests shall be free and clear
of any liens, and the transferring Management Limited Partner (or its estate or
heirs) shall so represent and warrant, and shall further represent and warrant
that it is the sole beneficial and record owner of such Management Interests
with the full right, power and authority to convey the Management Interests to
the Partnership. At such closing, all of the parties to the transaction shall
execute such additional documents as are otherwise necessary or appropriate. The
Management Interests may be purchased through any of the means described in,
and subject to the terms and conditions of, Section 12.2(d).


 


(c)           Notwithstanding
anything to the contrary elsewhere herein, the Partnership shall not be
obligated to purchase any Management Interests at any time pursuant to this
Section 12.3 (i) to the extent that (A) the purchase of such Management
Interests (together with any other purchases of Management Interests pursuant
to this Article XII, or pursuant to similar provisions in any other
agreements with other investors, of which the Partnership has at such time been
given or has given notice) or (B) in the event of an election to purchase such
Management Interests with shares of the IPO Corporation, the issuance of such
shares by the IPO Corporation or the distribution of such shares of the IPO
Corporation to the applicable Management Limited Partner(s) would result
(x) in a violation of any Law (including any unavailability of a registration
statement or exemption from registration necessary to allow delivery of shares
to the applicable Management Limited Partner(s)), (y) after giving effect
thereto (including any dividends or other distributions or loans from a
Subsidiary of the Partnership to the Partnership in connection therewith), in a
Financing Default or (z) in the Partnership being required to disgorge any
profit to the IPO Corporation pursuant to Section 16(b) of the Exchange Act,
(ii) if immediately prior to such purchase of Management Interests,
issuance or purchase of shares of the IPO Corporation, as the case may be,
there exists a Financing Default which prohibits such issuance or purchase
(including any dividends or other distributions or loans from a Subsidiary of
the Partnership to the Partnership in connection therewith), or (iii) if
the Partnership does not have funds available to effect such purchase of
Management Interests. The Partnership shall within 15 days of learning of any
such fact so notify the Members in writing that it is not obligated to purchase
such Management Interests, whereupon Sections 12.3(b) and 12.3(c) shall apply
to such Management Interests as if the Management Limited Partner (or its
estate or heirs) had never delivered a notice electing to


 


34

















 


require the Partnership to purchase such
Management Interests. Notwithstanding the foregoing, the Partnership shall use
reasonable efforts to cause its Subsidiaries to distribute cash necessary to
satisfy its obligations in respect of Section 12.3.


 


(d)           The
provisions of this Section 12.3 shall terminate upon a Qualified Public
Offering.


 


Section 12.4.  
Fair Market Value. “Fair Market Value” for the Management Interests to
be purchased under Section 12.2 or Section 12.3 will mean (i) if there is a
public market for the Interests or shares of IPO Corporation on such date, the
value for such Management Interests implied by the average of the high and low
closing bid prices of such Interests or shares on the stock exchange on which
the equity is principally trading or (ii) if there is no public market for the
equity on such date, the value of such Management Interests implied by an
enterprise value for the Partnership as determined in good faith by the General
Partner in consultation with the Chief Executive Officer and Chief Financial
Officer of the Partnership’s principal operating Subsidiary.


 


Section 12.5.  
Voting; Power of Attorney.


 


(a)           Except
as otherwise provided herein or in the Partnership Act, only the holders of
Class A Interests will be entitled to vote on any matters requiring a vote,
consent or other action of the Limited Partners. Any action shall be authorized
if the affirmative vote of the holders of a majority of the Class A Interests
present at a meeting at which a quorum is present shall be obtained. Prior to
the Lapse Date, to the extent any class of Interests is required or eligible to
vote with respect to any matter (including Class A Interests or any other
class), each Management Limited Partner shall vote all of its eligible
Management Interests in any manner directed by the General Partner.


 


(b)           Each
Management Limited Partner hereby constitutes and appoints the General Partner
(and any member of the board of directors of the General Partner acting at the
direction of a valid majority of such board), with full power of substitution,
as such Person’s true and lawful agent and attorney in fact, with full power
and authority in such Person’s name, place and stead, (i) to, prior to the
Lapse Date, vote for or against in respect of any matter pursuant to which such
Management Limited Partner is eligible to vote its Interests and (ii) to
execute, swear to, acknowledge, deliver, file and record in the appropriate
public offices (A) this Agreement, all certificates and other instruments and
all amendments thereof in accordance with the terms hereof which the General
Partner or such member deems appropriate or necessary to form, qualify, or
continue the qualification of, the Partnership as a limited partnership in the
Cayman Islands and in all other jurisdictions in which the Partnership may
conduct business or own property; (B) all instruments which the General Partner
or such member deems appropriate or necessary to reflect any amendment, change,
modification or restatement of this Agreement in accordance with its terms; (C)
all conveyances and other instruments or documents which the General Partner or
such member deems appropriate or necessary to reflect the dissolution of the
pursuant to the terms of this Agreement, including a certificate of
cancellation; and (D) all instruments relating to the admission, withdrawal or
substitution of any Partner pursuant to the terms hereof. The foregoing power
of attorney is irrevocably given by way of securing such Management Limited
Partner’s obligations hereunder, and shall survive and not be affected by


 


35

















 


the death, disability, incapacity,
dissolution, bankruptcy, insolvency or termination of any Management Limited
Partner and the Disposition of all or any portion of such Management Limited
Partner’s Interests and shall extend to such Management Limited Partner’s
heirs, successors, assigns and personal representatives.


 


ARTICLE XIII


 


BOOKS AND BANK ACCOUNTS


 


Section 13.1.  
Maintenance of Books.  The General
Partner shall keep or cause to be kept at the Partnership’s principal place of
business complete and accurate books and records of the Partnership and
supporting documentation of the transactions with respect to the conduct of the
Partnership’s business. The Partnership’s financial books and records shall be
maintained on a full cost accounting basis unless otherwise agreed by the
General Partner. The records shall include, but not be limited to, complete and
accurate information regarding the state of the business and financial
condition of the Partnership; a copy of this Agreement and all amendments
thereto; the current list of the names and last known business, residence, or
mailing addresses of all Partners; and the Partnership’s U.S. federal, state,
and local tax returns for the Partnership’s six most recent tax years.


 


Section
13.2.   Accounts.  The General Partner shall maintain a register
of the Partners’ interests in the Partnership at the registered office of the
Partnership, setting forth the name and address of each Partner, the amount and
date of each Capital Contribution by a Partner and the amount and date of any
payment representing a return of any part of the contribution of any Partner
and shall maintain a register of mortgages created by the Limited Partners over
their interest in the Partnership at the registered office of the Partnership
in accordance with Section 7(7)(b) of the Partnership Act.


 


ARTICLE XIV


 


DISSOLUTION, WINDING-UP AND TERMINATION


 


Section 14.1.  
Dissolution of the Partnership.


 


(a)           The
Partnership shall be dissolved, and its affairs shall be wound up and a Section
15 Notice of Dissolution shall be filed with the Registrar pursuant to the
Partnership Act upon the first to occur of the following (each a “Dissolution
Event”): (i) the General Partner determines to dissolve the Partnership,
(ii) at any time when there are no Limited Partners or (iii) the entry of a
decree of judicial dissolution of the Partnership under the Partnership Act. The
dissolution, resignation, expulsion or bankruptcy of any Limited Partner or,
save as provided below, the General Partner, shall not cause the dissolution of
the Partnership.


 


(b)           The removal, withdrawal, bankruptcy, insolvency,
termination or dissolution of the last remaining General Partner of the
Partnership being either an individual resident in the Cayman Islands or a
company registered under the Companies Law (as revised) of the Cayman Islands
or registered pursuant to Part IX of the Companies Law (as revised) of the
Cayman Islands or a partnership registered pursuant to section 9(1) of the
Partnership Act shall


 


36

















 


dissolve the partnership unless
the Limited Partners unanimously agree to continue the Partnership and appoint
a new General Partner who is either an individual resident in the Cayman
Islands or a company registered under the Companies Law (as revised) of the
Cayman Islands or registered pursuant to Part IX of the Companies Law (as
revised) of the Cayman Islands or a partnership registered pursuant to section
9(1) of the Partnership Act within 90 days thereof.


 


Section 14.2.  
Winding-up and Termination.  On
the occurrence of a Dissolution Event, the General Partner (or, if there is no
General Partner, the Limited Partners holding a majority of the outstanding
Class A Interests, taken together as a single class) shall select one or more
Persons to act as liquidator or may itself act as liquidator. The liquidator
shall proceed diligently to wind up the affairs of the Partnership and make
final distributions as provided herein and in the Partnership Act. The costs of
winding up shall be borne as a Partnership expense, including reasonable
compensation to the liquidator. Until final distribution, the liquidator shall
continue to operate the Partnership properties with all of the power and
authority of the General Partner. Subject to the terms in the Partnership Act,
the steps to be accomplished by the liquidator are as follows:


 


(a)           as
promptly as possible after dissolution and again after final winding up, the
liquidator shall cause a proper accounting to be made by a recognized firm of
certified public accountants of the Partnership’s assets, liabilities, and
operations;


 


(b)           the
liquidator shall pay, satisfy or discharge from Partnership funds all of the
debts, liabilities and obligations of the Partnership or otherwise make
adequate provision for payment and discharge thereof (including the
establishment of a cash escrow fund for contingent liabilities in such amount
and for such term as the liquidator may reasonably determine); and


 


(c)           all
remaining assets of the Partnership shall be distributed to the Partners as
follows; provided, however, that
the liquidator shall use reasonable best efforts to distribute cash to
Partners:


 


(i)            the liquidator may
sell any or all Partnership property, including to Partners, and any resulting
gain or loss from each sale shall be computed and allocated to the Capital
Accounts of Partners in accordance with the provisions of Article VIII;


 


(ii)           with respect to all
Partnership property that has not been sold, the fair market value of that
property shall be determined and the Capital Accounts of Partners shall be
adjusted to reflect the manner in which the unrealized income, gain, loss, and
deduction inherent in property that has not been reflected in the Capital
Accounts previously would be allocated among Partners if there were a taxable
disposition of that property for the fair market value of that property on the
date of distribution; and


 


(iii)          Partnership
property shall be distributed among the Partners in accordance with Section
7.1, and those distributions shall be made by the end of the taxable year of
the Partnership during which the liquidation of the Partnership occurs (or, if
later, 90 days after the date of the liquidation).


 


37














 


All
distributions in kind to Partners shall be made subject to the liability of
each distributee for costs, expenses, and liabilities theretofore incurred or
for which the Partnership has committed prior to the date of termination and
those costs, expenses, and liabilities shall be allocated to the distributee
pursuant to this Section 14.2. The distribution of cash and/or property to a
Partner in accordance with the provisions of this Section 14.2 constitutes a
complete return to the Partner of its Capital Contributions and a complete
distribution to the Partner of its Interests of all the Partnership’s property
and constitutes a compromise to which all Partners have consented. To the
extent that a Partner returns funds to the Partnership, it has no claim against
any other Partner for those funds.


 


Section
14.3.   Deficit Capital Accounts.  No Partner shall be required to pay to the
Partnership, to any other Partner or to any third party any deficit balance
which may exist from time to time in the Partner’s Capital Account.


 


Section 14.4.  
Dissolution.  On completion of the
distribution of Partnership assets as provided herein, the General Partner or
the liquidators (or such other Person or Persons as the Partnership Act may
require or permit) shall file such documents and take such other actions as may
be necessary to terminate the existence of the Partnership. Upon satisfaction
of all applicable matters required under the Partnership Act, the existence of
the Partnership shall cease, except as may be otherwise provided by the
Partnership Act or other applicable Law.


 


ARTICLE XV


 


WITHDRAWAL OF PARTNERS


 


Section 15.1.  
Withdrawal of General Partner.  The
General Partner covenants and agrees that it will not withdraw as the General
Partner of the Partnership for the term of the Partnership except as permitted
under this Agreement.


 


Section 15.2.  
Withdrawal of Limited Partners.  No
Limited Partner shall have any right to withdraw from the Partnership except as
permitted under this Agreement. No Limited Partner shall be entitled to receive
any distribution from the Partnership for any reason or upon any event except
as expressly set forth in Articles V, VII and XV.


 


ARTICLE XVI


 


GENERAL PROVISIONS


 


Section 16.1.  
Offset.  Whenever the Partnership
is to pay any sum to any Partner, any amounts that such Partner, in its
capacity as a Partner, owes the Partnership may be deducted from that sum
before payment.


 


Section 16.2.  
Notices.  Except as expressly set
forth to the contrary in this Agreement, all notices, requests or consents
provided for or required to be given hereunder shall be in writing and shall be
deemed to be duly given if personally delivered, telecopied and confirmed, or
mailed by certified mail, return receipt requested, or nationally recognized


 


38

















 


overnight delivery service with
proof of receipt maintained, at the following addresses (or any other address
that any such party may designate by written notice to the other parties):


 


(i)            if to the Partnership
or the General Partner, at the address of the General Partner’s principal
executive offices; and


 


(ii)           if to a Partner
(other than a Management Limited Partner), to the address given for the Partner
on Schedule A hereto;


 


(iii)          if to a Management
Limited Partner, to the address given for the Partner on the applicable
Management Equity Award Agreement (or such other address on the payroll records
of the Partnership or its Subsidiaries; and


 


(iv)          if to a holder of
Interests that has not been admitted as a Partner, to the address given for
such holder in an Addendum Agreement.


 


Any such
notice shall, if delivered personally, be deemed received upon delivery; shall,
if delivered by telecopy, be deemed received on the first business day
following confirmation; shall, if delivered by nationally recognized overnight
delivery service, be deemed received the first business day after being sent;
and shall, if delivered by mail, be deemed received upon the earlier of actual
receipt thereof or five business days after the date of deposit in the United
States mail.


 


(b)           Whenever
any notice is required to be given by Law, this Agreement, a written waiver
thereof, signed by the Person entitled to notice, whether before or after the
time stated therein, shall be deemed equivalent to the giving of such notice.


 


Section 16.3.  
Entire Agreement; Supersede.  This
Agreement and the other Transaction Documents constitute the entire agreement
of the Partners and their Affiliates relating to the Partnership and supersede
all prior contracts or agreements with respect to the Partnership, whether oral
or written.


 


Section 16.4.  
Effect of Waiver or Consent.  A
waiver or consent, express or implied, to or of any breach or default by any
Person in the performance by that Person of its obligations with respect to the
Partnership is not a consent or waiver to or of any other breach or default in
the performance by that Person of the same or any other obligations of that
Person with respect to the Partnership. Failure on the part of a Person to
complain of any act of any Person or to declare any Person in default with
respect to the Partnership, irrespective of how long that failure continues,
does not constitute a waiver by that Person of its rights with respect to that
default until the applicable statute-of-limitations period has run.


 


Section 16.5.  
Amendment or Restatement.  This
Agreement (including any Exhibit or Schedule hereto) may not be amended,
modified, supplemented or restated, nor may any provisions of this Agreement be
waived, without a written instrument adopted, executed and agreed to by the
General Partner; provided, however, that (a) any
such amendment, modification, supplement, restatement or waiver that would
disproportionately and adversely affect the rights of any Partner hereunder, in
its capacity as a Partner, as the case may be, without similarly


 


39

















 


affecting the rights hereunder
of all Partners of the same class, in their capacities as Partners, as the case
may be, shall not be effective as to such Partner without such Partner’s prior
written consent and, provided, further,
Article IV, Sections 5.5, 9.4, 9.5, Article X and Sections 16.5, 16.6, 16.8 or
the Definitions of “Affiliate”, “Permitted Transferee”, “Qualified Public
Offering” (with respect to the size of the offering) and “Subsidiary” and the
terms of the Interests held by the TCV Group and the OEP Group may not be
amended, modified, supplemented, restated or waived in a manner that is adverse
to TCV or OEP without the prior written consent of TCV and OEP, provided, further that the General Partner may not be
replaced and no new General Partner may be appointed without the consent of TCV
and OEP. Notwithstanding anything
to the contrary in this Section 16.5, if the provisions of Proposed
Treasury Regulation Section 1.83-3 and related sections and the proposed
Revenue Procedure described in IRS Notice 2005-43, as proposed by the Internal
Revenue Service on May 24, 2005, or provisions similar thereto, are adopted as
final (or temporary) rules (the “New Rules”), the General Partner
is authorized to make such amendments to this Agreement (including provision
for any safe harbor election authorized by the New Rules) as the General
Partner may determine to be necessary or advisable to comply with or reflect
the New Rules. Except as required by Law, no amendment, modification,
supplement, discharge or waiver of or under this Agreement shall require the
consent of any person not a party to this Agreement.


 


Section 16.6.  
Termination.  This Agreement shall
terminate upon the earlier to occur of (i) the consummation of an Approved Sale
of the entire Partnership pursuant to Section 4.5 and the distribution of the
proceeds therefrom, (ii) the consummation of a Dissolution Event,
(iii) upon the written agreement of the Partners, and (iv) the
consummation of a firm commitment underwritten public offering by the IPO
Corporation of common stock pursuant to an effective registration statement
under the Securities Act.


 


Section 16.7.  
Binding Effect.  Subject to the
restrictions on Dispositions set forth in this Agreement, this Agreement shall
be binding upon and shall inure to the benefit of the Partnership and each
Partner and their respective heirs, permitted successors, permitted assigns,
permitted distributees and legal representatives; and by their signatures
hereto, the Partnership and each Partner intends to and does hereby become
bound. Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any Person other than the parties hereto and their respective
permitted successors and assigns any legal or equitable right, remedy or claim
under, in or in respect of this Agreement or any provision herein contained.


 


Section 16.8.  
Governing Law; Severability; Limitation of Liability.


 


(a)           This
Agreement shall be governed by and construed in accordance with Cayman Islands
law.


 


(b)           In
the event of a direct conflict between the provisions of this Agreement and any
mandatory, non-waivable provision of the Partnership Act, such provision of the
Partnership Act shall control. If any provision of the Partnership Act provides
that it may be varied or superseded in the limited partnership agreement (or
otherwise by agreement of the partners of a limited partnership), such
provision shall be deemed superseded and waived in its entirety if this
Agreement contains a provision addressing the same issue or subject matter.


 


40

















 


(c)           If
any provision of this Agreement is held to be illegal, invalid or unenforceable
under present or future laws effective during the term of this Agreement, such
provision shall be fully severable; this Agreement shall be construed and
enforced as if such illegal, invalid, or unenforceable provision had never
comprised a part of this Agreement; and the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by
the illegal, invalid or unenforceable provision or by its severance from this Agreement.
Furthermore, in lieu of each such illegal, invalid or unenforceable provision,
there shall be added automatically as a part of this Agreement a provision as
similar in terms to such illegal, invalid or unenforceable provision as may be
possible and be legal, valid and enforceable.


 


(d)           Neither
the Partnership nor any Partner shall be liable to any of the other such
Persons for punitive, special, exemplary or consequential damages, including
damages for loss of profits, loss of use or revenue or losses by reason of cost
of capital, arising out of or relating to this Agreement or the transactions
contemplated hereby, regardless of whether based on contract, tort (including
negligence), strict liability, violation of any applicable deceptive trade practices
act or similar Law or any other legal or equitable principle, and the
Partnership and each Partner releases each of the other such Persons from
liability for any such damages.


 


Section 16.9.  
Further Assurances.  In connection
with this Agreement and the transactions contemplated hereby, the Partnership
and each Partner shall execute and deliver all such future instruments and take
such other and further action as may be reasonably necessary or appropriate to
carry out the provisions of this Agreement and the intention of the parties as
expressed herein.


 


Section 16.10.  
Indemnification.  The Partnership
shall at all times maintain or cause to be maintained directors and officers’
liability insurance and indemnification policy covering the Partnership and its
Subsidiaries and the General Partner which, in the good faith business judgment
of the General Partner, is reasonable (x) for a company comparable in size to
the Partnership and its Subsidiaries and (y) for substantially similar
companies in the industry in which the Partnership and its Subsidiaries
operate.


 


Section 16.11.  
Counterparts.  This Agreement may
be executed in any number of counterparts (including facsimile counterparts),
all of which together shall constitute a single instrument. It shall not be
necessary that any counterpart be signed by each of the Partners so long as
each counterpart shall be signed by one or more of the Partners and so long as
the other Partners shall sign at least one counterpart which shall be delivered
to the Partnership.


 


Section 16.12.  
Other Covenants.


 


(a)           Each
Partner acknowledges and agrees that, upon any Dissolution Event or any
Approved Sale of all of the Interests in the Partnership in accordance with
this Agreement, the receipt of proceeds by the Partners with respect to their
Interests shall be in accordance with Article VII.


 


(b)           Each
Partner entitled to vote on matters submitted to a vote of the Partners, as the
case may be, agrees to vote the Interests owned by such Partner upon all
matters


 


41

















 


arising under this
Agreement submitted to a vote of the Partners, as the case may be, in a manner
that will implement the terms of this Agreement.


 


Section 16.13.  
VCOC; Condition to Funding.


 


(a)           In
the event TDS Investor (Cayman) L.P. ceases to qualify as an “operating company”
as defined in the first sentence of 29 C.F.R. Section 2510.3-101(c), then the
General Partner and each Limited Partner shall, and the Partnership shall
cooperate in good faith to take all reasonable action necessary to provide that
the investment (or at least 51% of the investment, valued at cost) of each
Limited Partner that qualifies as a “venture capital operating company” as
defined in 29 C.F.R. Section 2510.3-101(d) shall continue to qualify as a “venture
capital investment” within the meaning of 29 C.F.R. Section 2510.3-101(d).


 


(b)           Neither Blackstone Participation
Partnership (Cayman) V L.P. nor Blackstone Capital Partners (Cayman) V-S L.P.
will be required to fund any payment to the Partnership or any of their
Subsidiaries until such time as TDS Investor (Cayman) L.P. qualifies as an “operating
company” within the meaning of the first sentence of Section 2510.3-101(d)(1) of
the U.S. Department of Labor regulations codified at 29 C.F.R. Section
2510.3-101.


 


Section 16.14.  
Registration Rights.  The
Partnership shall cause the IPO Corporation to grant registration rights to
each Partner as described in the Registration Rights Agreement attached hereto
as Exhibit D (the “Registration Rights Agreement”) with respect to securities
of the IPO Corporation into which the securities of the Partnership converted
in the IPO Conversion.


 


42

















 


IN WITNESS WHEREOF, the parties have executed
this Agreement as a Deed effective the day and year first above written.


 


	
   

  	
   

  	
  TDS INVESTOR (CAYMAN) GP LTD., as

  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Witnessed by:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  



 

















 


	
   

  	
  LIMITED PARTNERS:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [  ]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title: Authorized Signatory

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Witnessed by:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   Name:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [  ]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title: Authorized Signatory

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Witnessed by:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   Name:

  
						



 














 


EXHIBIT A

DEFINED TERMS


 


“Addendum
Agreement” shall have the meaning set forth in Section 3.3.


 


“Adjusted Capital
Account Balance” means, with respect to each Partner, the balance in such
Partner’s Capital Account adjusted (i) by taking into account the adjustments,
allocations and distributions described in Treasury Regulations Sections
1.704-1(b)(2)(ii)(d)(4), (5) and (6); and (ii) by adding to such balance such
Partner’s share of Partner Minimum Gain and Partner Nonrecourse Debt Minimum
Gain, determined pursuant to Treasury Regulations Sections 1.704-2(g) and
1.704-2(i)(5) any amounts such Partner is obligated to restore pursuant to any
provision of this Agreement or by applicable law. The foregoing definition of
Adjusted Capital Account Balance is intended to comply with the provisions of
Treasury Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted
consistently therewith.


 


“Affiliate”
means, when used with respect to a specified Person, any Person which directly
or indirectly Controls, is Controlled by or is under common control with such
specified Person.


 


“Agreement”
shall mean this Amended and Restated Agreement of Exempted Limited Partnership,
as further amended and restated from time to time.


 


“Applicable
Tax Percentage” means the highest effective marginal combined U.S. federal,
state and local income tax rate for a fiscal year prescribed for an individual
resident in New York, New York (taking into account (a) the deductibility of
state and local income taxes for U.S. federal income tax purposes, assuming the
limitation described in Section 68(a)(2) of the Code applies, (b) the
nondeductiblity of other expenses subject to the limitation described in
Section 67(a) of the Code applies and (c) the character (e.g., long-term
or short-term capital gain or ordinary or exempt income) of the applicable
income). For the avoidance of doubt, the Applicable Tax Percentage will be the
same for all Partners.


 


“Approved
Class A-1 Sale” shall have the meaning set forth in Section 4.4(a).


 


“Approved
Management Interest Sale” shall have the meaning set forth in Section
4.8(a).


 


“Blackstone”
means Blackstone Family Investment Partnership (Cayman) V-A
L.P.1, Blackstone Family Investment Partnership (Cayman) V L.P., Blackstone
Participation Partnership (Cayman) V L.P., Blackstone Capital Partners (Cayman)
V L.P., BCP (Cayman) V-S L.P., BCP V Co-Investors (Cayman) L.P.


 


“Blackstone
Drag Interests” shall have the meaning set forth in Section 4.8(a).


 


“Blackstone
Drag Partner” shall have the meaning set forth in Section 4.8(a).


 


“Blackstone
Group” means Blackstone and its Permitted Transferees.


 


“Blackstone
Partner” means any member of the Blackstone Group who holds Interests.


 


A-1

















 


“Book Value”
means, with respect to any asset of the Partnership, the asset’s adjusted basis
for U.S. federal income tax purposes, except that the Book Values of all such
assets shall be adjusted to equal their respective fair market values (as
reasonably determined by the General Partner) in accordance with the rules set
forth in Treasury Regulations Section 1.704-1(b)(2)(iv)(f), except as otherwise
provided herein, immediately prior to: (a) the date of the acquisition of any
additional interest in the Partnership by any new or existing Partner in
exchange for more than a de  minimis capital contribution to the
Partnership, (b) the date of the distribution of more than a de  minimis
amount of Partnership property (other than a pro rata distribution) to a
Partner or (c) the date of a grant of any additional interest to any new or
existing Partner as consideration for the provision of services to or for the
benefit of the Partnership; provided, that adjustments pursuant to
clauses (a), (b) and (c) above shall be made only if the General Partner in
good faith determines that such adjustments are necessary or appropriate to
reflect the relative economic interests of the Partners. The Book Value of any
asset distributed to any Partner shall be adjusted immediately prior to such
distribution to equal its gross fair market value. The Book Value of any asset
contributed by a Partner to the Partnership will be the gross fair market value
of the asset as of the date of its contribution thereto. In the case of any
asset that has a Book Value that differs from its adjusted tax basis, Book
Value shall be adjusted by the amount of depreciation calculated for purposes
of the definition of “Profits” and “Losses” rather than the amount of
depreciation determined for U.S. federal income tax purposes.


 


“Business
Day” means any day other than a Saturday, a Sunday, or a holiday on which
national banking associations in the State of New York are authorized by Law to
close.


 


“Capital
Account” means the account to be maintained by the Partnership for each
Partner pursuant to Section 5.4.


 


“Capital
Contribution” means with respect to any Partner, the amount of money and
the initial Book Value of any property (other than money) (reduced by the
amount of any liabilities which are secured by such property) contributed to the
Partnership by the Partner, including any amounts paid, or property
contributed, by such Partner pursuant to Article V. Any reference in this
Agreement to the Capital Contribution of a Partner shall include a Capital
Contribution of its predecessors in interest. The aggregate principal amount of
the notes from the Partnership to each member of the TCV Group dated August 23,
2006 that were exchanged for Interests immediately after the Initial Closing
Date shall be deemed a Capital Contribution by the members of the TCV Group
hereunder.


 


“Capital
Stock” means any and all shares, interests, participations, or other
equivalents (however designated) of capital stock of a corporation, any and all
ownership interests in a Person (other than a corporation), and any and all
warrants, options, or other rights to purchase or acquire any of the foregoing.


 


“Cayman
Islands Law” means all applicable laws of the Cayman Islands.


 


“Class A
Interests” shall have the meaning set forth in Section 3.1(a).


 


“Class A
Limited Partner” means a Partner who owns Class A Interests.


 


A-2

















 


“Class A-1
Drag Interests” shall have the meaning set forth in Section 4.4(a).


 


“Class A-1
Drag Partner” shall have the meaning set forth in Section 4.4(a).


 


“Class A-1
Inclusion Notice” shall have the meaning set forth in Section 4.3(b).


 


“Class A-1
Inclusion Right” shall have the meaning set forth in Section 4.3(c).


 


“Class A-1
Interests” shall have the meaning set forth in Section 3.1(a).


 


“Class A-1
Limited Partner” means a Partner who owns Class A-1 Interests.


 


“Class A-1
Relevant Percentage” shall have the meaning set forth in Section 4.4(a).


 


“Class A-1
Selling Partner” shall have the meaning set forth in Section 4.3(a).


 


“Class A-1
Tag Offerees” shall have the meaning set forth in Section 4.3(a).


 


“Class A-2
Interests” shall have the meaning set forth in Section 3.1(a).


 


“Class A-2
Limited Partner” means a Partner who owns Class A-2 Interests.


 


“Change of
Control” shall mean (i) the sale or disposition, in one or a series of
transactions, of “all or substantially all of the assets” (as defined under New
York law) of the Partnership and its Subsidiaries, taken as a whole, 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 Blackstone Group or (ii) any person or group,
other than the Blackstone Group, is or becomes the “beneficial owner” (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, of a larger percentage of the total voting power of the voting
stock of the Partnership and its Subsidiaries (taken as a whole) than the
Blackstone Group, including by way of merger, consolidation or otherwise and
the Blackstone Group ceases to control the board of directors of the General
Partner.


 


“Code”
means the United States Internal Revenue Code of 1986, as amended from time to
time. All references herein to Sections of the Code shall include any
corresponding provision or provisions of succeeding Law.


 


“Confidential
Information” means all confidential and proprietary information
(irrespective of the form of communication) obtained by or on behalf of, a
Partner from the Partnership or its Representatives or through the ownership of
an equity interest in the General Partner, other than information which (i) was
or becomes generally available to the public other than as a result of a breach
of this Agreement by such Partner or Representative, (ii) was or becomes
available to such Partner on a nonconfidential basis prior to disclosure to the
Partner by the Partnership, the General Partner or their respective
Representatives or through its ownership of an equity interest in the General
Partner, (iii) was or becomes available to the Partner from a source other than
the Partnership, the General Partner or their respective Representatives or
through such Partner’s ownership of an equity interest in the General Partner, provided that such source is not known by
such Partner to be bound by a confidentiality agreement with the


 


A-3

















 


Partnership or
the General Partner, or (iv) is independently developed by such Partner without
the use of any such information received under this Agreement.


 


“Contract”
means any written, oral or other agreement, contract, subcontract, lease,
understanding, instrument, note, warranty, insurance policy, benefit plan,
memorandum of understanding, or legally binding commitment or undertaking of
any nature.


 


“Control,”
including the correlative terms “Controlling”, “Controlled by” and “Under
Common Control with” means possession, directly or indirectly (through one or
more intermediaries), of the power to direct or cause the direction of
management or policies (whether through ownership of securities or any
partnership or other ownership interest, by contract or otherwise) of a Person.


 


“Creditable
Foreign Tax” means a foreign tax paid or accrued for United States federal
income tax purposes by the Partnership, in either case to the extent that such
tax is eligible for credit under Section 901(a) of the Code. A foreign tax is a
Creditable Foreign Tax for these purposes without regard to whether a Partner
receiving an allocation of such foreign tax elects to claim a credit for such
amount. This definition is intended to be consistent with the definition of “creditable
foreign tax” in Temporary Treasury Regulations Section 1.704-1T(b)(4)(xi)(b), and shall be interpreted consistently therewith.


 


“Creditors’
Rights” means applicable bankruptcy, insolvency or other similar laws
relating to or affecting the enforcement of creditors’ rights generally and to
general principles of equity.


 


“Disposition,”
including the correlative terms “Dispose” or “Disposed,” means
any direct or indirect transfer, assignment, sale, gift, inter vivos transfer,
pledge, hypothecation, mortgage, hedge or other encumbrance, or any other
disposition (whether voluntary or involuntary or by operation of law), of
Interests (or any interest (pecuniary or otherwise) therein or right thereto), including
without limitation derivative or similar transactions or arrangements whereby a
portion or all of the economic interest in, or risk of loss or opportunity for
gain with respect to, Interests is transferred or shifted to another Person.


 


“Dissolution
Event” shall have the meaning set forth in Section 14.1(a).


 


“OEP”
means OEP TP, Ltd.


 


“OEP Group”
means OEP and its Permitted Transferees.


 


“OEP
Partner” means OEP or any member of the OEP Group who holds Interests.


 


“Family
Group,” with respect to any natural person, means (i) the spouse, issue,
parents, grandparents and grandchildren (in each case, whether natural or
adopted) of such natural person and (ii) any trust established solely for the
exclusive benefit of such natural person or any of the Persons referred to in
the foregoing clause (i).


 


“General
Partner” means TDS Investor (Cayman) GP Ltd., and any substitute or
successor General Partner appointed in accordance with the terms of this
Agreement.


 


A-4

















 


“General
Partner Interest” shall have the meaning specified in Section 3.1(a).


 


“Governmental
Authority” means any: (i) nation,
state, commonwealth, province, territory, county, municipality, district or
other jurisdiction of any nature; (ii) U.S. and other federal, state,
local, municipal, foreign or other government; or (iii) governmental or quasi-governmental
authority of any nature (including any governmental division, department,
agency, commission, instrumentality, official, organization, unit, body or
entity and any court or other tribunal).


 


“Gross
Negligence” has the meaning ascribed to such term under the laws of the
State of New York in the United States.


 


“Indemnitee”
shall have the meaning set forth in Section 9.4(b).


 


“Initial
Closing Date” means August 23, 2006.


 


“Interest”
means an interest in the Partnership, including the right of the holder thereof
to any and all benefits to which a holder thereof may be entitled as provided
in this Agreement together with the obligations of a holder thereof to comply
with all of the terms and provisions of this Agreement. The term “Interest”
shall include the Class A-1 Interests and the Class A-2 Interests.


 


“IPO
Conversion” shall have the meaning set forth in Section 4.5(a).


 


“IPO
Corporation” shall have the meaning set forth in Section 4.5(a).


 


“Lapse Date”
means, in respect of any Management Limited Partner, the earlier to occur of
(i) two years following a Qualified Public Offering of at least 25% of the
common stock of the IPO Corporation and/or the outstanding Interests (provided
that if a Management Limited Partner’s Services to the Partnership and its
Subsidiaries terminate as a result of death or Disability and a Qualified
Public Offering shall have occurred, the “Lapse Date” with respect to such
Management Limited Partner shall be deemed to occur immediately following the
later of (x) such death or Disability or (y) 181 days following the
Qualified Public Offering), (ii) the occurrence of a Change of Control and
(iii) seven years following (A) the date on which such Management Limited
Partner became a Management Limited Partner or (B) in the case of the
Initial Management Limited Partners only, the Initial Closing Date.


 


“Law”
means any applicable constitutional provision, statute, act, code (including
the Code), law, regulation, rule, ordinance, order, decree, ruling,
proclamation, resolution, judgment, decision, declaration, or interpretative or
advisory opinion or letter of a Governmental Authority and shall include, for
the avoidance of any doubt, the Partnership Act.


 


“Liabilities”
means any liability, obligation, claim, expense or damage, whether known or
unknown, absolute, accrued, contingent or otherwise and whether due or to
become due.


 


“Limited
Partners” means the Class A-1 Limited Partners and the Class A-2 Limited
Partners.


 


A-5

















 


“Management
Inclusion Notice” shall have the meaning set forth in Section 4.7(b).


 


“Management
Inclusion Right” shall have the meaning set forth in Section 4.7(c).


 


“Management
Interests” shall have the meaning set forth in Section 3.1(a).


 


“Management
Limited Partner” means a Partner who owns Management Interests.


 


“Management
Relevant Percentage” shall have the meaning set forth in Section 4.8(a).


 


“Management
Tag Offerees” shall have the meaning set forth in Section 4.7(a).


 


“Net
Taxable Income” has the meaning set forth in Section 7.2(a).


 


“New Rules”
shall have the meaning set forth in Section 16.5.


 


“Nonrecourse
Deductions” has the meaning set forth in Treasury Regulations Section
1.704-2(b). The amount of Nonrecourse Deductions of the Partnership for a
fiscal year equals the net increase, if any, in the amount of Partner Minimum
Gain of the Partnership during that fiscal year, determined according to the
provisions of Treasury Regulations Section 1.704-2(c).


 


“Offer”
shall have the meaning set forth in Section 4.9(b).


 


“Offered
Interests” shall have the meaning set forth in Section 4.9(b).


 


“Offering
Notice” shall have the meaning set forth in Section 4.9(b).


 


“Offeror”
shall have the meaning set forth in Section 4.9(b).


 


“Partner”
shall mean the General Partner or any of the Limited Partners and “Partners”
means the General Partner and all of the Limited Partners.


 


“Partnership”
means the exempted limited partnership governed hereby, as such limited
partnership may from time to time be constituted.


 


“Partnership
Act” shall mean the Exempted Limited Partnership Law, (2003 Revision) of
the Cayman Islands, as amended from time to time.


 


“Partner
Minimum Gain” has the meaning ascribed in Treasury Regulations Sections
1.704-2(b)(2) and 1.704-2(d).


 


“Partner
Nonrecourse Debt Minimum Gain” means an amount with respect to each “partner
nonrecourse debt” (as defined in Treasury Regulations Section 1.704-2(b)(4))
equal to the Partner Minimum Gain that would result if such Partner nonrecourse
debt were treated as a nonrecourse liability (as defined in Treasury
Regulations Section 1.752-1(a)(2)) determined in accordance with Treasury
Regulations Section 1.704-2(i)(3).


 


“Partner
Nonrecourse Deductions” has the meaning ascribed to the term “partner
nonrecourse deductions” set forth in Treasury Regulations Section
1.704-2(i)(2).


 


A-6

















 


“Percentage
Interest” means, with respect to each Partner (or group of Partners) and a
specified class of Interests, the fraction (expressed as a percentage), the
numerator of which is the number of Interests of such class owned by such
Partner and the denominator of which is the sum of the total number of
Interests of such class owned by all Partners (or the relevant Partners if the
calculation is made with respect to a specified group of Partners).


 


“Permitted
Transferee” with respect to (a) a transferor Partner (other than a
Management Limited Partner) shall mean such Partner’s Affiliated entities;
provided that for the avoidance of doubt the parties agree that TCV VI, L.P. is
a Permitted Transferee of TCV, and (b) in the case of a transferor Partner
that is a natural person, (i) any individual who received a Partner’s Interests
pursuant to applicable Laws of descent and distribution or any member of such
Partner’s Family Group and (ii) any trust the beneficiaries of which, or any
corporation, limited liability company or partnership the stockholders, members
or general or limited partners of which, include only members of such Partner’s
Family Group (or entities of which the stockholders, members or general or
limited partners of which, include only members of such Partner’s Family
Group).


 


“Person”
means any natural person, corporation, limited partnership, general
partnership, limited liability company, joint stock company, joint venture,
association, company, estate, trust, bank trust company, land trust, business
trust, or other organization, whether or not a legal entity, custodian,
trustee-executor, administrator, nominee or entity in a representative capacity
and any government or agency or political subdivision thereof.


 


“Personal
Representative” means the executor, administrator, guardian, or other
personal representative of any natural person who has become deceased or
subject to disability, or any successor or assignee thereof whether by
operation of law or otherwise.


 


“Profits”
and “Losses” means, for each taxable year or other period, the taxable
income or loss of the Partnership, or particular items thereof, determined in
accordance with the accounting method used by the Partnership for U.S. federal
income tax purposes with the following adjustments: (a) all items of income,
gain, loss or deduction allocated pursuant to Section 8.2 (Special Allocations)
shall not be taken into account in computing such taxable income or loss; (b)
any income of the Partnership that is exempt from U.S. federal income taxation
and not otherwise taken into account in computing Profits and Losses shall be
added to such taxable income or loss; (c) if the Book Value of any asset
differs from its adjusted tax basis for U.S. federal income tax purposes, any
gain or loss resulting from a disposition of such asset shall be calculated
with reference to such Book Value; (d) upon an adjustment to the Book Value
(other than an adjustment in respect of depreciation) of any asset, pursuant to
the definition of Book Value, the amount of the adjustment shall be included as
gain or loss in computing such taxable income or loss; (e) if the Book Value of
any asset differs from its adjusted tax basis for U.S. federal income tax
purposes, the amount of depreciation, amortization or cost recovery deductions
with respect to such asset for purposes of determining Profits and Losses, if
any, shall be an amount which bears the same ratio to such Book Value as the
U.S. federal income tax depreciation, amortization or other cost recovery
deductions bears to such adjusted tax basis (provided, that if the U.S.
federal income tax depreciation, amortization or other cost recovery deduction
is zero, the General Partner may use any reasonable method for purposes of
determining depreciation, amortization or other cost recovery deductions in
calculating Profits


 


A-7

















 


and Losses); and (f) except for items in (a) above, any expenditures of
the Partnership not deductible in computing taxable income or loss, not
properly capitalizable and not otherwise taken into account in computing
Profits and Losses pursuant to this definition shall be treated as deductible
items.


 


“Qualified
Public Offering” means any firm commitment underwritten offering of common
stock to the public pursuant to an effective registration statement under the
Securities Act (i) for which aggregate cash proceeds to be received by the IPO
Corporation from such offering (without deducting underwriting discounts,
expenses and commissions) are at least $200,000,000 or for which aggregate cash
proceeds to be received by either the Blackstone Group, the TCV Group or the
OEP Group from such offering (without deducting underwriting discounts,
expenses and commissions) are at least $50,000,000, and (ii) pursuant to which
such shares of common stock are authorized and approved for listing on the New
York Stock Exchange or admitted to trading and quoted in the Nasdaq National
Market system.


 


“Register
of Partners” means the Register of Partnership Interests of the Partnership
in the form set forth as Schedule A.


 


“Registration Rights Agreement” shall
have the meaning set forth in Section 16.14.


 


“Representatives”
shall have the meaning set forth in Section 3.4(b).


 


“Restricted
Equity Units” shall mean unfunded, unsecured contractual rights to acquire
in the Partnership a specified number of Class A-2 Interests with a
hypothetical Capital Contribution per Interest equal to the Capital
Contribution per Interest applicable to Class A-2 Interests issued on the
date hereof, which rights may be granted from time to time, pursuant to
Management Equity Award Agreements, by the Partnership in exchange for Services
performed for the Partnership and its Subsidiaries.


 


“ROFR
Period” shall have the meaning set forth in Section 4.9(a).


 


“Securities
Act” means the Securities Act of 1933, as amended, and any successor
statute thereto and the rules and regulations of the Securities and Exchange
Commission promulgated thereunder.


 


“Services”
means the employment with the Partnership or its Subsidiaries of a Management
Limited Partner (or the individual that Controls such Management Limited
Partner if the Management Limited Partner is not a natural person).


 


“Shareholders’
Agreement” means the Shareholders’ Agreement of TDS Investor (Cayman) GP
Ltd., between the General Partner and the shareholders party thereto, dated as
of the date hereof, as the same may be amended or modified from time to time.


 


“Special
Allocations” means the allocations pursuant to Section 8.2 of this
Agreement.


 


“Sponsor
Group” means each of the Blackstone Group, the TCV Group and the OEP Group.


 


A-8














 


“Subsidiary”
means (i) any corporation or other entity a majority of the Capital Stock of
which having ordinary voting power to elect a majority of the board of
directors or other Persons performing similar functions is at the time owned,
directly or indirectly, with power to vote, by the Partnership or any direct or
indirect Subsidiary of the Partnership or (ii) a partnership in which the
Partnership or any direct or indirect Subsidiary is a general partner.


 


“Tax”
means all taxes, charges, levies, penalties or other assessments imposed by any
United States federal, state, local or foreign taxing authority, including
income, excise, property, sales, transfer, franchise, payroll, withholding,
social security or other similar taxes, including any interest or penalties
attributable thereto.


 


“Tax
Advances” has the meaning set forth in Section 11.3.


 


“Tax Amount”
has the meaning set forth in Section 7.2.


 


“Tax
Distributions” shall have the meaning set forth in Section 7.2.


 


“Tax
Matters Partner” shall have the meaning assigned to the term “tax matters
partner” in Code Section 6231(a)(7) and the meaning set forth in Section 11.1.


 


“TCV”
means TCV VI (Cayman), L.P. and TCV Member Fund (Cayman), L.P.


 


“TCV Group”
means TCV and its Permitted Transferees.


 


“TCV Partner”
means TCV or any member of the TCV Group who holds Interests.


 


“Transferring
Management Limited Partner” shall have the meaning set forth in Section
4.9(a).


 


“Treasury
Regulations” means the regulations promulgated by the United States
Department of the Treasury pursuant to and in respect of provisions of the
Code.


 


“25%
Selling Partner” shall have the meaning set forth in Section 4.7(a).


 


“Unvested Interest” means any
Management Interests that have not vested as of the date of determination
pursuant to the terms of the Management Equity Award Agreement between the Management
Limited Partner and the Partnership.


 


“Vested Interest” means any Management
Interests that have vested as of the date of determination pursuant to the
terms of the Management Equity Award Agreement between the Management
Limited Partner and the Partnership.


 


A-9

















 


EXHIBIT B


 


FORM OF
SPOUSAL AGREEMENT


 


The spouse of
the Partner executing the foregoing Amended and Restated Agreement of Exempted
Limited Partnership (or the counterpart signature above) is aware of,
understands, and consents to the provisions of the foregoing Agreement (and
related Transaction Documents) and its binding effect upon any community
property interest or marital settlement awards he or she may now or hereafter
own or receive, and agrees that the termination of his or her marital
relationship with such Partner for any reason shall not have the effect of
removing any Interests subject to the foregoing Agreement from the coverage
thereof and that his or her awareness, understanding, consent, and agreement is
evidenced by his or her signature below.


 


 


	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [Spouse’s
  Name]

  



 


B-1

















 


EXHIBIT C


 


FORM OF
ADDENDUM AGREEMENT


 


This Addendum
Agreement is made this        day of                           ,
200    , by and between                                           
(the “Transferee”) and TDS Investor (Cayman) L.P., a Cayman Islands exempted
limited partnership (the “Company”), pursuant to the terms of that certain
Agreement of Exempted Limited Partnership of the Company dated as of October
13, 2006, including all exhibits and schedules thereto (the “Agreement”).
Capitalized terms used but not otherwise defined herein shall have the meanings
ascribed to them in the Agreement.


 


WITNESSETH:


 


WHEREAS, the
Partnership and the Partners entered into the Agreement (and their respective
spouses, to the extent applicable, have consented to the provisions of the
Agreement) to impose certain restrictions and obligations upon themselves, and
to provide certain rights, with respect to the Partnership, the Partners and
its and their Interests;


 


WHEREAS, the
Transferee is acquiring Interests issued by the Partnership or pursuant to a
Disposition, in either case in accordance with the Agreement; and


 


WHEREAS, the
Partnership and the Partners have required in the Agreement that all Persons to
whom Interests of the Partnership are transferred and all other Persons
acquiring Interests must enter into an Addendum Agreement binding the
Transferee and the Transferee’s spouse to the Agreement to the same extent as
if they were original parties thereto and imposing the same restrictions and
obligations on the Transferee, the Transferee’s spouse and the Interests to be
acquired by the Transferee as are imposed upon the Partners under the
Agreement.


 


NOW,
THEREFORE, in consideration of the mutual promises of the parties and as a
condition of the purchase or receipt by the Transferee of the Interests, the
Transferee acknowledges and agrees as follows:


 


1.             The
Transferee has received and read the Agreement and acknowledges that the
Transferee is acquiring the Interests in accordance with and subject to the
terms and conditions of the Agreement.


 


2.             The
Transferee represents and warrants, as of the date hereof, to the Company and
the Partners as follows:


 


(a)           the Transferee has full power
and authority to execute and deliver this Agreement and to perform its
obligations hereunder, and, if such Transferee is not executing this Agreement
in its individual capacity, the execution, delivery, and performance by such
Transferee of this Agreement have been duly authorized by all necessary action;


 


(b)           this Agreement has been duly and
validly executed and delivered by such Transferee and constitutes the binding
obligation of such Transferee enforceable against such Person in accordance
with its terms, subject to Creditors’ Rights;


 


C-1

















 


(c)           the execution, delivery, and
performance by such Transferee of this Agreement will not, with or without the
giving of notice or the lapse of time, or both, (i) violate any provision of
Law to which such Person is subject, (ii) violate any order, judgment, or
decree applicable to such Person, or (iii) conflict with, or result in a breach
or default under, any agreement or other instrument to which such Person is a
party or, if such Transferee is not executing this Agreement in its individual
capacity, any term or condition of its certificate of incorporation or by-laws,
certificate of limited partnership or partnership agreement, certificate of
formation or limited liability company agreement, as applicable, except where
such conflict, breach or default would not reasonably be expected to,
individually or in the aggregate, have an adverse effect on such Person’s
ability to satisfy its obligations hereunder;


 


(d)           no consent, approval, permit,
license, order or authorization of, filing with, or notice or other action to,
with or by any Governmental Authority or any other Person, is necessary, on the
part of such Transferee to perform its obligations hereunder or, if such
Transferee is not executing this Agreement in its individual capacity, to
authorize the execution, delivery and performance by such Transferee of its
obligations hereunder, except where such consent, approval, permit, license,
order, authorization, filing or notice would not reasonably be expected to,
individually or in the aggregate, have an adverse effect on such Transferee’s
ability to satisfy its obligations hereunder or under any agreement or other
instrument to which such Transferee is a party;


 


(e)           such Transferee is acquiring the
Interests for investment and not with a view toward any resale or distribution
thereof except in compliance with the Securities Act; such Transferee
acknowledges that the Interests have not been registered pursuant to the
Securities Act and may not be transferred in the absence of such registration
or an exemption therefrom under the Securities Act; and such Transferee has
sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the risks of its
investment in the Interests and is capable of bearing the economic risks of the
transactions contemplated by this Agreement; and


 


(f)            such Transferee does not have
any liability or obligation to pay an fees or commissions to any broker,
finder, or agent with respect to the execution, delivery or performance of this
Agreement by such Transferee.


 


3.             The
Transferee agrees that the Interests acquired or to be acquired by the
Transferee are bound by and subject to all of the terms and conditions of the
Agreement, and hereby joins in, and agrees to be bound, by, and shall have the
benefit of, all of the terms and conditions of the Agreement to the same extent
as if the Transferee were an original party to the Agreement or an initial
Partner, as the case may be; provided,
however, that the Transferee’s joinder in the Agreement shall not
constitute admission of the Transferee or the Transferee’s spouse as a Partner
unless and until the General Partner executes this Agreement confirming the due
admission of the Transferee. This Addendum Agreement shall be attached to and
become a part of the Agreement.


 


4.             For
good and valuable consideration, the sufficiency of which is hereby
acknowledged by the Transferor and the Transferee, the Transferor hereby
transfers and assigns 


 


C-2

















 


absolutely to
the Transferee [all of its Interests in the Partnership][such portion of its
Interests in the Partnership as are specified below], including, for the
avoidance of doubt, all rights, title and interest in and to such Interests,
with effect from the date hereof.


 


5.             The Transferee hereby agrees to
accept the Interests of the Transferor and hereby agrees and consents to become
a Partner.


 


6.             It is hereby confirmed by the
Transferor that the Transferor has complied in all respects with the provisions
of the Partnership Agreement with respect to the transfer of the Interests. The
number of Interests in the Partnership currently held by the Transferor, and to
be transferred and assigned pursuant to this Transfer Form, are as follows:


 


	
  Name
  of Class or Series of Interests

  	
   

  	
  Number
  of Interests

  
	
   

  	
   

  	
   

  
	
  [                           ]

  	
   

  	
  [                           ]

  



 


7.             Any notice required as permitted by
the Agreement shall be given to Transferee at the address listed beneath the
Transferee’s signature below.


 


8.             The Transferee [shall] [shall not]
be a member of the Blackstone Group
for purposes of the Agreement.


 


9.             The spouse of the Transferee, if
applicable, joins in the execution of this Addendum Agreement to acknowledge
its fairness and that it is in such spouse’s best interests, and to bind such
spouse’s community interest, if any, in the Interests to the terms of the
Agreement.


 


10.           This Addendum Agreement shall be
governed by and construed in accordance with Cayman Islands law.


 


C-3

















 


	
   

  	
   

  	
   

  
	
  Transferee

  	
   

  	
  Transferee’s
  Spouse

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Transferor:

  	
   

  	
  AGREED TO on
  behalf of the Partnership:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [GENERAL
  PARTNER]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


C-4





















 


EXHIBIT D


 


REGISTRATION
RIGHTS AGREEMENT


 


[Distributed Separately]