(II) $300,000 PER YEAR OF
THE ANNUAL "ADVISORY FEES" PAYABLE TO WHITNEY & CO. FROM AND AFTER THE DATE OF
THE EXISTING STOCKHOLDERS' AGREEMENT PURSUANT TO SECTION 3(A) OF THE MANAGEMENT
SERVICES AGREEMENT (SO LONG AS THE AMOUNT OF SUCH ANNUAL "ADVISORY FEES" EQUALS
OR EXCEEDS $450,000 PER YEAR) SHALL BE INCLUDED IN THE CALCULATION OF THE
WHITNEY IRR, AND ALL OTHER FEES OR EXPENSES PAID TO WHITNEY & CO. PURSUANT TO
THE MANAGEMENT SERVICES AGREEMENT SHALL BE EXCLUDED FROM SUCH CALCULATION.
1.33
"WHITNEY MANAGEMENT" MEANS WHITNEY & CO., A
DELAWARE CORPORATION.
1.34
"WHITNEY NOTICE PARTIES" MEANS (A) FOR SO LONG AS
THE WHITNEY SECURITIES ARE HELD BY WHITNEY AND ITS PERMITTED TRANSFEREES,
WHITNEY MANAGEMENT, AND (B) IF ANY WHITNEY SECURITIES ARE OWNED BY PERSONS OTHER
THAN WHITNEY AND ITS PERMITTED TRANSFEREES, (I) WHITNEY MANAGEMENT ON BEHALF OF
WHITNEY AND ITS PERMITTED TRANSFEREES, AND (II) EACH OF THE OTHER HOLDERS OF
WHITNEY SECURITIES.
1.35
"WHITNEY PARTIES" SHALL MEAN WHITNEY INVESTOR,
WHITNEY V, WHITNEY MANAGEMENT AND THEIR RESPECTIVE AFFILIATES AND PERMITTED
TRANSFEREES.
1.36
ADDITIONAL DEFINED TERMS
THE FOLLOWING TERMS ARE DEFINED ELSEWHERE IN THIS AGREEMENT IN THE SECTIONS AND
ON THE PAGES INDICATED:
Defined Term
Section
Page
Act
1.13
3
Affiliate
1.1
2
Applicable Subordinated Debt
1.2
2
Board
1.3
2
5
Defined Term
Section
Page
Board Meetings
5.1(g)
32
Call Option
2.2
9
Call Option Transfer
2.2
9
Class A Common Stock
Recitations
1
Class B Common Stock
Recitations
1
Class A Preferred Stock
Recitations
2
Class B Preferred Stock
Recitations
1
Commission
4.2(a)
22
Common Stock
1.6
2
Company
2.1
8
Compelled Sale
2.5(a)
13
Compelled Sale Notice
2.5(a)
13
Compelled Sale Purchaser
2.5(a)
13
Compelled Sale Transferor
2.5(a)
13
Competitor
2.7(a)
17
Control
1.7
2
Controlled by
1.7
2
Counter-Offer Terms
3.1(a)(ii)
18
Demanding Holders
4.2(a)
22
Demand Notice
4.2(a)
22
Demand Registration Period
4.3(a)
23
Demand Registration Statement
4.2(a)
22
Demand Securities
4.2(a)
22
Derivative Securities
1.8
2
Designees
5.1(d)
31
Exchange Act
4.3(d)
27
Exercise Price
1.9
2
Existing Stockholders' Agreement
Recitations
1
First Offer Election
2.3(b)
9
First Offer Notice
2.3(a)
9
First Offer Terms
2.3(b)
9
GAAP
6.2(a)
35
Hartnett
Introduction
1
Hartnett Acceptance Notice
2.3(c)
9
Hartnett Class B Preferred Shares
Recitations
1
Hartnett Common Shares
Recitations
1
Hartnett Designees
5.1(d)
31
Hartnett Employment Agreement
1.10
2
Hartnett Parties
2.3
9
Hartnett Preemptive Parties
3.1(b)(ii)
19
Hartnett Securities
1.29
4
Hartnett Shares
Recitations
1
Holdings
Introduction
1
Holdings Response
3.1(a)(ii)
18
Immediate Family
1.11
2
6
Defined Term
Section
Page
in Control of
2
Indemnification Shares
1.12
2
Indemnified Parties
4.3(d)
27
Indemnifying Party
4.3(f)
28
Independent Director
5.1(c)(iii)
31
Initial Parties
Introduction
1
Initial Party
Introduction
1
Initial Public Offering
1.13
3
Initiating Notice
2.5(a)
13
Investment Bank
2.5(b)
13
Joinder Agreement
2.6(d)
16
Killian
5.1(b)(iii)
31
Management Services Agreement
1.14
3
Minimum Hartnett Ownership
1.15
3
Minimum Whitney Common Ownership
1.16
3
Minimum Whitney Ownership
1.17
3
Minimum Whitney Preferred Ownership
1.18
3
New Issue Notice
3.1(a)
18
New