\nArticle 13. MISCELLANEOUS PROVISIONS……………………………………………………. 45<\/p>\n 13.1 Notices……………………………………………………………………. 45
\n 13.2 Books of Account and Records…………………………………………………. 45
\n 13.3 Application of State Law…………………………………………………….. 45
\n 13.4 Waiver of Action for Partition……………………………………………….. 46
\n 13.5 Amendments…………………………………………………………………. 46
\n 13.6 Execution of Additional Instruments…………………………………………… 46
\n 13.7 Construction……………………………………………………………….. 46
\n 13.8 Effect of Inconsistencies with the Act………………………………………… 46
\n 13.9 Waivers……………………………………………………………………. 47
\n 13.10 Rights and Remedies Cumulative……………………………………………….. 47
\n 13.11 Attorneys’ Fees…………………………………………………………….. 47
\n 13.12 Severability……………………………………………………………….. 47
\n 13.13 Heirs, Successors and Assigns………………………………………………… 47
\n 13.14 Creditors………………………………………………………………….. 47
\n 13.15 Counterparts……………………………………………………………….. 47
\n 13.16 Rule Against Perpetuities……………………………………………………. 48
\n 13.17 Power of Attorney…………………………………………………………… 48
\n 13.18 Investment Representations…………………………………………………… 48
\n 13.19 Representations and Warranties……………………………………………….. 49
\n 13.20 ERISA Representation and Covenant…………………………………………….. 51
\n 13.21 Confidential Information…………………………………………………….. 51
\n<\/c><\/s><\/table>\n
vi<\/p>\n
This Limited Liability Company Agreement is made and entered into effective
\nas of the 13th day of October, 1999, (the “Effective Date”) by and among the
\nCompany and each of the Members whose signatures appear on the signature page
\nhereof (the “Initial Members”). In consideration of the mutual covenants herein
\ncontained and for other good and valuable consideration, the Members and the
\nCompany (and each person who subsequently becomes an Equity Owner) hereby agree
\nas follows:<\/p>\n
Article 1.
\n DEFINITIONS<\/p>\n
The following terms used in this Agreement shall have the following
\nmeanings (unless otherwise expressly provided herein):<\/p>\n
1.1 Accretion Amount. Accretion Amount shall mean an amount, computed
\n —————-
\nwithout duplication, at the rate of six percent (6%) compounded annually on
\n$1,000 per Preferred Unit commencing on the Effective Date and ending on the
\nearlier of the date of dissolution of the Company, the date the Put Option is
\nexercised pursuant to Section 10.5 or the date the Preferred Units are converted
\nto Common Units, as appropriate.<\/p>\n
1.2 Act. Act shall mean the Delaware Limited Liability Company Act, as
\n —
\namended from time to time.<\/p>\n
1.3 Affiliate. Affiliate shall mean, with respect to any Person, (i) any
\n ———
\nPerson directly or indirectly controlling, controlled by, or under common
\ncontrol with such Person, and (ii) any Person owning or controlling ten percent
\n(10%) or more of the outstanding voting interests of such Person. For purposes
\nof this definition, the term “controls,” “is controlled by,” or “is under common
\ncontrol with” shall mean the possession, direct or indirect, of the power to
\ndirect or cause the direction of the management and policies of a Person,
\nwhether through the ownership of voting securities, by contract or otherwise.<\/p>\n
1.4 Agreement. Agreement shall mean this Limited Liability Company
\n ———
\nAgreement as originally executed and as amended from time to time.<\/p>\n
1.5 Business. Business is defined in Section 3.1.
\n ——– <\/p>\n
1.6 Business Plan. Business Plan is defined in Section 3.1.
\n ————- <\/p>\n
1.7 Capital Account. Capital Account as of any given date shall mean the
\n —————
\nCapital Account of each Equity Owner as described in Article 8 and maintained to
\nsuch date in accordance with this Agreement.<\/p>\n
1.8 Capital Contribution. Capital Contribution shall mean any
\n ——————–
\ncontribution to the capital of the Company in cash or property by an Equity
\nOwner whenever made. “Initial Capital Contribution” shall mean the initial
\n —————————-
\ncontribution to the capital of the Company pursuant to this Agreement as shown
\non Exhibit 8.1.
\n ———– <\/p>\n
1.9 Certificate of Formation or Certificate. The Certificate of Formation
\n —————————————
\nor Certificate shall mean the Certificate of Formation of the Company as filed
\nwith the Secretary of State as the same may be amended from time to time.<\/p>\n
1.10 Change of Control. Change of Control means (a) any merger or
\n —————–
\nconsolidation to which NII is a party except for a merger in which after giving
\neffect to such merger, the holders of NII’s outstanding capital stock possessing
\na majority of the voting power to elect a majority of the surviving
\ncorporation’s board of directors (“Voting Power”) immediately prior to the
\nmerger shall continue to own the surviving corporation’s outstanding capital
\nstock possessing the Voting Power, and (b) any transaction or series of related
\ntransactions in which capital stock representing in excess of 50% of NII’s
\nVoting Power is transferred.<\/p>\n
1.11 Code. Code shall mean the Internal Revenue Code of 1986, as amended
\n —-
\nfrom time to time.<\/p>\n
1.12 Common Unit. Common Unit means an Ownership Interest in the Company
\n ———–
\nwhich entitles the Equity Owner who holds such Common Unit to the following:<\/p>\n
(a) a Proportionate share of the Profits and Losses allocated to all
\nCommon Units,<\/p>\n
(b) a Proportionate share of the Voting Interests attributable to all
\nCommon Units held by Members, and<\/p>\n
(c) such other rights and obligations set forth in this Agreement.<\/p>\n
1.13 Company. Company shall mean NavigantVacations.com, LLC, a Delaware
\n ——-
\nlimited liability company.<\/p>\n
1.14 Company Property. All assets (real or personal, tangible or
\n —————-
\nintangible, including cash) of the Company.<\/p>\n
1.15 Confidential Information. Confidential Information means any
\n ————————
\nproprietary information, whether written or oral, pertaining to the business,
\nfinancial condition, strategies, plans, policies, clients or customers,
\ninventions, trade secrets, computer programs, or processes of the disclosing
\nparty (i) that is furnished or disclosed by the disclosing party to the
\nrecipient or to the recipient’s employees, representatives or agents, and (A) in
\nthe case of written information, is conspicuously marked as proprietary or
\nconfidential, or (B) in the case of information which is provided orally, is
\nstated to be proprietary or confidential at the time of disclosure and after
\ndisclosure is reduced to writing or other tangible form and delivered within 10
\nbusiness days in accordance with this agreement to the party receiving such
\ndisclosure. Confidential Information shall not include any information that (X)
\nis already known to the receiving party at the time of receipt, as evidenced by
\nwritten records made prior to such receipt, <\/p>\n
2<\/p>\n
or (Y) is independently developed or formulated by the receiving party, or (Z)
\notherwise is or becomes generally available to the public through no fault of
\nthe receiving party.<\/p>\n
1.16 Deficit Capital Account. Deficit Capital Account shall mean with
\n ———————–
\nrespect to any Equity Owner, the deficit balance, if any, in such Equity Owner’s
\nCapital Account as of the end of the Fiscal Year, after giving effect to the
\nfollowing adjustments:<\/p>\n
(a) credit to such Capital Account the amount, if any, which such
\nEquity Owner is obligated to restore under Section 1.704-1(b)(2)(ii)(c) of the
\nRegulations, as well as any addition thereto pursuant to the next to last
\nsentence of Sections 1.704-2(g)(1) and (i)(5) of the Regulations, after taking
\ninto account thereunder any changes during such year in partnership minimum gain
\nas determined in accordance with Section 1.704-2(d) of the Regulations (“Company
\nMinimum Gain”) and in any partner nonrecourse debt minimum as determined under
\nSection 1.704-2(i)(3) of the Regulations (“Member Minimum Gain”); and<\/p>\n
(b) debit to such Capital Account the items described in Sections
\n1.704-1(b)(2)(ii)(d)(4), (5) and (6) of the Regulations.<\/p>\n
This definition of Deficit Capital Account is intended to comply with the
\nprovisions of Regulations Sections 1.704-1(b)(2)(ii)(d) and 1.704-2, and shall
\nbe interpreted consistently with those provisions.<\/p>\n
1.17 Depreciation. For each Fiscal Year, an amount equal to the
\n ————
\ndepreciation, amortization, or other cost recovery deduction allowable with
\nrespect to an asset for such Fiscal Year, except that if the Gross Asset Value
\nof an asset differs from its adjusted basis for federal income tax purposes at
\nthe beginning of such Fiscal Year, Depreciation shall be an amount which bears
\nthe same ratio to such beginning Gross Asset Value as the federal income tax
\ndepreciation, amortization, or other cost recovery deduction for such Fiscal
\nYear bears to such beginning adjusted tax basis; provided, however, that if the
\nadjusted basis for federal income tax purposes of an asset at the beginning of
\nsuch Fiscal Year is zero, Depreciation shall be determined with reference to
\nsuch beginning Gross Asset Value using any reasonable method selected by the
\nManager.<\/p>\n
1.18 Distributable Cash. All cash, whether revenues or other funds
\n ——————
\nreceived by the Company, less the sum of the following to the extent paid or set
\naside by the Company: (i) all principal and interest payments on indebtedness
\nof the Company and all other sums paid to lenders; (ii) all cash expenditures
\nincurred incident to the normal operation of the Company’s business; and (iii)
\nReserves.<\/p>\n
1.19 Distribution. Any Sale of Company Property from the Company to or
\n ————
\nfor the benefit of an Equity Owner by reason of such Equity Owner’s ownership of
\nan Economic Interest.<\/p>\n
1.20 Economic Interest. An Equity Owner’s share of one or more of the
\n —————–
\nProfits, Losses and Distributions pursuant to this Agreement and the Act,
\nincluding such rights <\/p>\n
3<\/p>\n
that the Equity Owner has with respect to any Common Units or Preferred Units
\nheld by it, but shall not include any right to participate in the management or
\naffairs of the Company, including, the right to vote on, consent to or otherwise
\nparticipate in any decision of the Members or Manager.<\/p>\n
1.21 Economic Interest Owner. The owner of an Economic Interest who is
\n ———————–
\nnot a Member.<\/p>\n
1.22 Entity. Any general partnership (including a limited liability
\n ——
\npartnership), limited partnership (including a limited liability limited
\npartnership), limited liability company, corporation, joint venture, trust,
\nbusiness trust, cooperative or association or any foreign trust or foreign
\nbusiness organization.<\/p>\n
1.23 Equity Owner. An Economic Interest Owner or a Member.
\n ———— <\/p>\n
1.24 Fiscal Year. The taxable year of the Company shall be a calendar
\n ———–
\nyear unless another year is required for federal income tax purposes.<\/p>\n
1.25 Gross Asset Value. Gross Asset Value means, with respect to any
\n —————–
\nasset, the asset’s adjusted basis for federal income tax purposes, except as
\nfollows:<\/p>\n
(a) The initial Gross Asset Value of any asset contributed by an
\nEquity Owner to the Company shall be the gross fair market value of such asset,
\nas determined by the contributing Member and the Manager, provided that the
\ninitial Gross Asset Values of the assets contributed to the Company pursuant to
\nSection 8.1 hereof shall be as set forth in Exhibit 8.1, and provided further
\nthat, if the contributing Member is a Manager, the determination of the fair
\nmarket value of any other contributed asset shall require the consent of the
\nother Members owning a Majority Interest (determined without regard to the
\nVoting Interest of such contributing Member);<\/p>\n
(b) The Gross Asset Values of all Company assets shall be adjusted
\nto equal their respective gross fair market values, as reasonably determined by
\nthe Manager as provided in Article 11 and as of the following times: (i) the
\nacquisition of an additional interest by any new or existing Equity Owner in
\nexchange for more than a de minimis contribution of property (including money);
\n(ii) the Distribution by the Company to an Equity Owner of more than a de
\nminimis amount of property as consideration for an Ownership Interest; and (iii)
\nthe liquidation of the Company within the meaning of Regulations Section
\n1.704-1(b)(2)(ii)(g); provided, however, that adjustments pursuant to clauses
\n(1) and (ii) above shall be made only if the Manager reasonably determines that
\nsuch adjustments are necessary or appropriate to reflect the relative economic
\ninterests of the Equity Owners in the Company;<\/p>\n
(c) The Gross Asset Value of any Company asset Distributed to any
\nEquity Owner shall be adjusted to equal the gross fair market value of such
\nasset on the date of Distribution as determined by an independent appraiser
\nselected by the Manager or by agreement of the Members holding not less 90% of
\nall Voting Interests; and<\/p>\n
4<\/p>\n
(d) The Gross Asset Values of Company assets shall be increased (or
\ndecreased) to reflect any adjustments to the adjusted basis of such assets
\npursuant to Section 734(b) or Section 743(b) of the Code, but only to the extent
\nthat such adjustments are taken into account in determining Capital Accounts
\npursuant to Regulation Section 1.704-1(b)(2)(iv)(m) and Section 8.3 and
\nsubparagraph (e) under the definition of Profits and Losses; provided, however,
\nthat Gross Asset Values shall not be adjusted pursuant to this subparagraph (d)
\nof this definition to the extent that the Manager determines that an adjustment
\npursuant to subparagraph (b) of this definition is necessary or appropriate in
\nconnection with a transaction that would otherwise result in an adjustment
\npursuant to this subparagraph (d).<\/p>\n
If the Gross Asset Value of an asset has been determined or adjusted pursuant to
\nsubparagraph (a), (b) or (d) of this definition, then such Gross Asset Value
\nshall thereafter be adjusted by the Depreciation taken into account with respect
\nto such asset for purposes of computing Profits and Losses.<\/p>\n
1.26 Holders. Holders is defined in Section 10.5(a).
\n ——- <\/p>\n
1.27 IPO. IPO shall mean an initial public offering of Company common
\n —
\nstock which shall: (a) be effected by means of a firm-commitment underwriting
\nmanaged by one or more nationally recognized investment banking firms; (b) be
\nregistered with the Securities and Exchange Commission under the Securities Act;
\n(c) involve the listing of the Company common stock on any national securities
\nexchange; and (d) raise gross proceeds to Company which result in a “total
\nvaluation” of the Company immediately after the IPO of $75,000,000 or more. For
\npurposes of this definition, “total valuation” shall be (i) the initial price
\nper share of the Company’s common stock offered to the public times the total
\nnumber of shares of the Company’s common stock outstanding immediately after the
\nClosing of the offering, plus (ii) the fair market value (as determined in good
\nfaith by the Manager) of any outstanding securities of the Company which are not
\ncommon stock.<\/p>\n
1.28 Intellectual Property Rights. Intellectual Property Rights shall
\n —————————-
\nmean any (i) patents, patent applications, patent disclosures and all related
\ncontinuation, continuation-in-part, divisional, reissue, reexamination, utility
\nmodel, certificate of invention and design patents, design patent applications,
\ndesign registrations and applications for design registrations, and mask work
\nrights, (ii) trademarks, tradenames, service marks, trade dress, logos, and
\nregistrations and applications for registration thereof, (iii) copyrights and
\nregistrations and applications for registration thereof, (iv) trade secrets and
\nconfidential business information (whether patentable or unpatentable and
\nwhether or not reduced to practice), know-how, manufacturing and production
\nprocesses and techniques, research and development information, and
\ncopyrightable works, (v) other proprietary rights relating to any of the
\nforegoing, and (vi) copies and tangible embodiments thereof.<\/p>\n
1.29 License Agreement. License Agreement is defined in Section 6.7.
\n —————– <\/p>\n
5<\/p>\n
1.30 Majority Interest. One or more Voting Interests of Members which
\n —————–
\ntaken together exceed 50% of the aggregate of all Voting Interests.<\/p>\n
1.31 Manager. Manager shall mean one or more Managers. Specifically,
\n ——-
\n“Manager” shall mean Navigant, and any Person that succeeds it in that capacity.<\/p>\n
1.32 Member. Each of the parties who executes a counterpart of this
\n ——
\nAgreement as a Member (an “Initial Member”) and each of the parties who may
\n ————–
\nhereafter become a Member. If a Person is a Member immediately prior to the
\npurchase or other acquisition by such Person of an Economic Interest, such
\nPerson shall have all of the rights of a Member with respect to such purchased
\nor otherwise acquired Ownership Interest, as the case may be.<\/p>\n
1.33 Membership Interest. A Member’s entire interest in the Company,
\n ——————-
\nincluding such Member’s Economic Interest and such other rights and privileges
\nthat the Member may enjoy by being a Member.<\/p>\n
1.34 Navigant. Navigant shall mean NavigantVacations.com Holdings, inc.
\n ——–
\na Delaware Corporation.<\/p>\n
1.35 Navigant Options. Navigant Options is defined in Section 11.2(a).
\n —————- <\/p>\n
1.36 Navigant Dilutive Units. Navigant Dilutive Units is defined in
\n ———————–
\nSection 11.4(b).<\/p>\n
1.37 NII. NII shall mean Navigant International, Inc., a Delaware
\n —
\nCorporation.<\/p>\n
1.38 NII Sale. NII Sale shall mean: (i) the sale for cash, promissory
\n ——–
\nnotes and\/or stock of a corporation (other than NII or an Affiliate of NII
\nimmediately before the sale) of 100 percent of the capital stock of NII and 100%
\nof all options and warrants to acquire capital stock of NII; or (ii) the merger
\nof NII with or into another corporation (other than NII or an Affiliate of NII
\nimmediately before the sale) pursuant to which 100 percent of the issued and
\noutstanding capital shares of NII and 100 percent of the options and warrants to
\npurchase capital stock of NII are exchanged for cash, notes and\/or publicly
\ntraded capital stock of the acquiring corporation or an Affiliate of the
\nacquiring corporation, or (iii) a sale or other disposition of all or
\nsubstantially all of NII’s assets. The value of the stock received, if any,
\nshall be determined as of the closing of the NII Sale, based upon the closing
\nprice of such stock for the 15 trading days immediately preceding, and
\nincluding, the date of closing of the NII Sale.<\/p>\n
1.39 Noncompetitive Activity. Noncompetitive Activity shall mean either:
\n ———————– <\/p>\n
(a) Any leisure travel business booked through traditional channels,
\nincluding by way of a person-to-person meeting, telephone, facsimile, mail,
\ntelephone or E-Mail provided that such business was not initiated from a web-
\nbased contact; or<\/p>\n
6<\/p>\n
(b) Any business travel booked through any means whatsoever,
\nincluding without limitation, from a web based contact.<\/p>\n
1.40 Och-Ziff Partners Domestic. Och-Ziff Partners Domestic shall mean
\n ————————–
\nOZ Domestic Partners, L.P., a Delaware limited partnership.<\/p>\n
1.41 Och-Ziff Partners Overseas. Och-Ziff Partners Overseas shall mean
\n ————————–
\nOZ SPCI, Ltd., a Cayman Islands exempt organization.<\/p>\n
1.42 Och-Ziff Partners. Och-Ziff Partners shall mean collectively, Och-
\n —————–
\nZiff Partners Domestic and Och-Ziff Partners Overseas.<\/p>\n
1.43 Ownership Interest. Ownership interest shall mean:
\n —————— <\/p>\n
(a) in the case of a Member, the Member’s Membership Interest; and<\/p>\n
(b) in the case of an Economic Interest Owner, the Economic Interest
\nOwner’s Economic Interest.<\/p>\n
1.44 Preferred Sale Fee. Preferred Sale Fee shall mean an amount equal
\n ——————
\nto the sum of the following per Preferred Unit:<\/p>\n
(a) $1,000, plus
\n —-<\/p>\n
(b) the Accretion Amount through the closing date of the NII Sale,
\nplus
\n—-<\/p>\n
(c) the lesser of:
\n —— <\/p>\n
(1) The product of: (x) positive remainder, if any, of the
\n ——- ———
\n sales price per common share of NII (adjusted as appropriate to taking into
\n account any stock split or other recapitalization of NII’s common stock
\n subsequent to the Effective Date), minus $9.00, multiplied by (y) 133.333,
\n —– ———-
\n and<\/p>\n
(2) $1,200.<\/p>\n
1.45 Proportionately Dilutive Units. Proportionately Dilutive Units is
\n ——————————
\ndefined in Section 11.4(c).<\/p>\n
1.46 Put Period. Put Period means any period of time during which the
\n ———-
\nPut Right may be exercised as set forth in Section 10.5.<\/p>\n
1.47 Put Right. Put Right is defined in Section 10.5.
\n ——— <\/p>\n
1.48 Person. Any individual or Entity, and the heirs, executors,
\n ——
\nadministrators, legal representatives, successors, and assigns of such “Person”
\nwhere the context so permits.<\/p>\n
7<\/p>\n
1.49 Preferred-to-Common Conversion Option. Preferred-to-Common
\n ————————————-
\nConversion Option is defined in Section 10.5(c).<\/p>\n
1.50 Preferred Units. Preferred Unit means an Ownership Interest in the
\n —————
\nCompany which entitles the Equity Owner who holds such Preferred Unit to the
\nfollowing:<\/p>\n
(a) the Put Right described in Section 10.5, and<\/p>\n
(b) such other rights set forth in this Agreement.<\/p>\n
1.51 Profits and Losses. Profits and Losses shall mean for each Fiscal
\n ——————
\nYear of the Company an amount equal to the Company’s net taxable income or loss
\nfor such year as determined for federal income tax purposes (including
\nseparately stated items) in accordance with the accounting method and rules used
\nby the Company and in accordance with Section 703 of the Code with the following
\nadjustments:<\/p>\n
(a) Any items of income, gain, loss and deduction allocated to
\nEquity Owners pursuant to Sections 9.2, 9.3 or 9.13 shall not be taken into
\naccount in computing Profits or Losses;<\/p>\n
(b) Any income of the Company that is exempt from federal income tax
\nand not otherwise taken into account in computing Profits and Losses (pursuant
\nto this definition) shall be added to such taxable income or loss;<\/p>\n
(c) Any expenditure of the Company described in Section 705(a)(2)(B)
\nof the Code and not otherwise taken into account in computing Profits and Losses
\n(pursuant to this definition) shall be subtracted from such taxable income or
\nloss;<\/p>\n
(d) In the event the Gross Asset Value of any Company asset is
\nadjusted pursuant to subparagraphs (b) or (c) of the definition of Gross Asset
\nValue, the amount of such adjustment shall be taken into account as gain or loss
\nfrom the disposition of such asset for purposes of computing Profits and Losses;<\/p>\n
(e) Gain or loss resulting from any disposition of any Company asset
\nwith respect to which gain or loss is recognized for federal income tax purposes
\nshall be computed with reference to the Gross Asset Value of the asset disposed
\nof, notwithstanding that the adjusted tax basis of such asset differs from its
\nGross Asset Value;<\/p>\n
(f) In lieu of the depreciation, amortization and other cost
\nrecovery deductions taken into account in computing such taxable income or loss,
\nthere shall be taken into account Depreciation for such Fiscal Year; and<\/p>\n
(g) To the extent an adjustment to the adjusted tax basis of any
\nCompany asset pursuant to Section 734(b) or Section 743(b) of the Code is
\nrequired pursuant to Section 1.704-1(b)(2)(iv)(m)(4) of the Regulations to be
\ntaken into account <\/p>\n
8<\/p>\n
in determining Capital Accounts as a result of a Distribution other than in
\nliquidation of an Ownership Interest, the amount of such adjustment shall be
\ntreated as an item of gain (if the adjustment increases the basis of the asset)
\nor loss (if the adjustment decreases the basis of the asset) from the
\ndisposition of the asset and shall be taken into account for purposes of
\ncomputing Profits or Losses.<\/p>\n
1.52 Proportionately. With respect to Common Units, Proportionately
\n —————
\nmeans the number of Common Units held by an Equity Owner in proportion to the
\nnumber of Common Units held by all Equity Owners. With respect to Preferred
\nUnits, Proportionately means the number of Preferred Units held by an Equity
\nOwner in proportion to the number of Preferred Units held by all Equity Owners.<\/p>\n
1.53 Redemption Price. Redemption Price means the purchase price paid
\n —————-
\nupon exercise of the Put Right as set forth in Section 10.5.<\/p>\n
1.54 Regulations. Regulations shall include proposed, temporary and
\n ———–
\nfinal regulations promulgated under the Code in effect as of the date of filing
\nthe Certificate and the corresponding sections of any regulations subsequently
\nissued that amend or supersede such regulations.<\/p>\n
1.55 Reorganization. Reorganization shall mean the conversion of the
\n ————–
\nCompany to a corporation, an IPO or the sale of all Ownership Interests in the
\nCompany.<\/p>\n
1.56 Reserves. Reserves shall mean, with respect to any fiscal period,
\n ——–
\nfunds set aside or amounts allocated during such period to reserves which shall
\nbe maintained in amounts deemed sufficient by the Manager for working capital
\nand for payment of taxes, insurance, debt service or other costs or expenses
\nincident to the ownership or operation of the Company’s business.<\/p>\n
1.57 Sale or Sell. A sale, assignment, exchange or other transfer
\n ————
\n(whether or not such transfer is for consideration and, in the case of transfers
\nof Preferred Units or Common Units, whether or not such transfer is a direct or
\nindirect transfer of such Units). A Sale shall include a direct pledge,
\nhypothecation or grant of a security interest.<\/p>\n
1.58 Secretary of State. The secretary of state of the State.
\n —————— <\/p>\n
1.59 Selling Equity Owner. Any Equity Owner which Sells all or any
\n ——————–
\nportion of its Ownership Interest.<\/p>\n
1.60 Sharing Ratio. Sharing Ratio shall be as shown on Exhibit 1.
\n ————- ——— <\/p>\n
1.61 State. State shall mean the State of Delaware.
\n —– <\/p>\n
1.62 Successor Corporation. Successor Corporation is defined in Section
\n ———————
\n11.5.<\/p>\n
9<\/p>\n
1.63 Two-Thirds Interest. Two Thirds Interest shall mean one or more
\n ——————-
\nVoting Interests of Members which when taken together exceed 66.67% of the
\naggregate of all Voting Interests at the time of the determination thereof.<\/p>\n
1.64 Unrecovered Losses. Unrecovered Losses shall have the meaning set
\n ——————
\nforth in Section 9.1.<\/p>\n
1.65 Voting Interest. The Voting Interest of a Member shall be
\n —————
\ndetermined by dividing the number of Common Units owned by a Member by the total
\nnumber of Common Units held by all Members. As of the date of this Agreement,
\nthe Voting Interests are as shown on Exhibit 1.
\n ——— <\/p>\n
Article 2.
\n FORMATION OF COMPANY<\/p>\n
2.1 Formation. On September 22, 1999, the Company was formed pursuant
\n ———
\nto the Act by the execution and delivery of a Certificate of Formation to the
\nSecretary of State in accordance with and pursuant to the Act. The Company and
\nthe Members hereby forever discharge the organizer, and the organizer shall be
\nindemnified by the Company and the Member from and against, any expense or
\nliability actually incurred by the organizer by reason of having been the
\norganizer of the Company.<\/p>\n
2.2 Name. The name of the Company is NavigantVacations.com, LLC.
\n —- <\/p>\n
2.3 Principal Place of Business. The principal place of business of
\n —————————
\nthe Company shall be 84 Inverness Circle East, Englewood, Colorado 80112. The
\nCompany may locate its places of business and registered office at any other
\nplace or places as the Manager may from time to time deem advisable.<\/p>\n
2.4 Registered Office and Registered Agent. The Company’s initial
\n ————————————–
\nregistered office and the name of the registered agent at such address shall be
\nas set forth in the Certificate. The registered office and registered agent may
\nbe changed from time to time by filing the address of the new registered office
\nand\/or the name of the new registered agent with the Secretary of State pursuant
\nto the Act.<\/p>\n
2.5 Term. The term of the Company shall commence with the filing of
\n —-
\nthe Certificate of Formation and shall continue in existence until it terminates
\nin accordance with the provisions of this Agreement or the Act.<\/p>\n
Article 3.
\n BUSINESS OF COMPANY<\/p>\n
3.1 Permitted Business. The business of the Company shall be:
\n —————— <\/p>\n
(a) To implement the electronic consumer leisure travel business as
\nsuch services are more fully described on identified on Exhibit 3.1 (the
\n“Business”), in <\/p>\n
10<\/p>\n
accordance with the initial business plan (the “Business Plan”) which is
\nattached as Exhibit 3.1;<\/p>\n
(b) To own, operate, expand or Sell the Business, including without
\nlimitation engaging in a Reorganization;<\/p>\n
(c) To acquire the assets, stock or other equity interests of other
\nbusinesses or assets which are necessary to, or reasonably connected with, the
\nBusiness;<\/p>\n
(d) To invest cash or other assets in other Entities, if such
\ninvestment is necessary to or reasonably connected with the Business;<\/p>\n
(e) To exercise all other powers necessary to, or reasonably
\nconnected with, the Business which may be legally exercised by limited liability
\ncompanies under the Act.<\/p>\n
(f) To engage in all activities necessary, customary, convenient or
\nincident to any of the foregoing.<\/p>\n
Article 4.
\n NAMES AND ADDRESSES OF EQUITY OWNERS<\/p>\n
The names and addresses of the Initial Members are as set forth on Exhibit
\n ——-
\n13.1.
\n—- <\/p>\n
The names and addresses of other Equity Owners shall be maintained as
\nprovided under Section 13.1.<\/p>\n
Article 5.
\n RIGHTS AND DUTIES OF MANAGER AND OFFICERS<\/p>\n
5.1 Management. The business and affairs of the Company shall be
\n ———-
\nmanaged by its Manager. Except for situations in which the approval of the
\nMembers is expressly required by this Agreement or by non-waivable provisions of
\napplicable law, the Manager shall have full and complete authority, power and
\ndiscretion to manage and control the business, affairs and properties of the
\nCompany, to make all decisions regarding those matters and to perform any and
\nall other acts and activities customary or incident to the management of the
\nCompany’s business. At any time when there is more than one Manager, any one
\nManager may take any action permitted to be taken by the Manager, unless the
\napproval of all of the Managers then appointed is expressly required pursuant to
\nthis Agreement or the Act or unless a majority of the Managers provide written
\nnotice to the remaining Manager(s) prior to such Manager(s) taking a specified
\naction that the Manager is not authorized to take such action. Unless
\nauthorized to do so by this Agreement or by the Manager, no officer, attorney-
\nin-fact, employee or other agent of the Company shall have any power or
\nauthority to bind the Company in any way, to pledge its credit or to render it
\nliable pecuniarily for any purpose.<\/p>\n
11<\/p>\n
5.2 Number, Tenure and Qualifications. The Company shall initially have
\n ———————————
\none (1) Manager. The number of Managers shall be fixed from time to time by the
\naffirmative vote of Members holding at least a Two-Thirds Interest, but in no
\ninstance shall there be less than one Manager. Each Manager shall hold office
\nuntil such Manager resigns pursuant to Section 5.9 or is removed pursuant to
\nSection 5.10. A Manager shall be appointed by the affirmative vote of Members
\nholding at least a Two-Thirds Interest. A Manager need not be a resident of the
\nState or a Member.<\/p>\n
5.3 Certain Powers of Manager. Without limiting the generality of
\n ————————-
\nSection 5.1 but subject to the limitations of Section 5.4, the Manager shall
\nhave power and authority on behalf of the Company:<\/p>\n
(a) To acquire property from any Person as the Manager may
\ndetermine. The fact that a Manager or an Equity Owner is directly or indirectly
\nAffiliated or connected with any such Person shall not prohibit the Manager from
\ndealing with that Person, provided that except as otherwise expressly provided
\nin this Agreement (including without limitation, Section 8.1), the terms of any
\nsuch dealing are not less favorable to the Company than could be obtained from
\nan unrelated party; and provided further that except as expressly provided
\notherwise in this Agreement, the aggregate fair market value of any property
\nacquired by the Company from NII or its Affiliates during any Fiscal Year shall
\nnot exceed $50,000 in any Fiscal Year without Oz Domestic’s prior written
\nconsent;<\/p>\n
(b) To borrow money for the Company from banks, other lending
\ninstitutions, on such terms as the Manager deems appropriate, and in connection
\ntherewith, to hypothecate, encumber and grant security interests in Company
\nProperty to secure repayment of the borrowed sums;<\/p>\n
(c) To purchase liability and other insurance to protect the
\nCompany’s property and business;<\/p>\n
(d) To hold and own any Company real and\/or personal properties in
\nthe name of the Company;<\/p>\n
(e) To invest any Company funds (by way of example but not
\nlimitation) in time deposits, short-term governmental obligations, commercial
\npaper or other investments;<\/p>\n
(f) To execute on behalf of the Company all instruments and
\ndocuments, including, without limitation, checks, drafts, notes and other
\nnegotiable instruments; mortgages or deeds of trust; security agreements;
\nfinancing statements; documents providing for the acquisition, mortgage or
\ndisposition of Company Property; assignments; bills of sale; leases; partnership
\nagreements; operating (or limited liability company) agreements of other limited
\nliability companies; and any other instruments or documents necessary, in the
\nopinion of the Manager, to the conduct of the business of the Company;<\/p>\n
12<\/p>\n
(g) To employ accountants, legal counsel, managing agents or other
\nexperts to perform services for the Company and to compensate them from Company
\nfunds;<\/p>\n
(h) To enter into any and all other agreements on behalf of the
\nCompany, with any other Person for any purpose (including fulfillment and other
\ncontracts with NII and its Affiliates), in such forms as the Manager may approve
\nprovided that except as otherwise expressly provided in this Agreement the terms
\nof any such dealing are not less favorable to the Company than are provided by
\nNII or its Affiliates to unrelated third parties;<\/p>\n
(i) To execute and file such other instruments, documents and
\ncertificates which may from time to time be required by the laws of the State or
\nany other jurisdiction in which the Company shall determine to do business, or
\nany political subdivision or agency thereof, to effectuate, implement, continue
\nand defend the valid existence of the Company;<\/p>\n
(j) To enter into the License Agreement attached hereto as Exhibit
\n5.3(j);<\/p>\n
(k) To appoint officers of the Company (subject to Section
\n5.4(a)(1)); and<\/p>\n
(l) To do and perform all other acts as may be necessary or
\nappropriate to the conduct of the Company’s business.<\/p>\n
5.4 Limitations on Authority.
\n ———————— <\/p>\n
(a) Notwithstanding any other provision of this Agreement, the
\nManager shall not cause or commit the Company to do any of the following without
\nconsulting with the Och-Ziff Partners:<\/p>\n
(1) Appoint or elect a president of the Company;<\/p>\n
(2) Enter into any agreement for the purchase of stock or of
\n all or substantially all of the assets of any Person or Entity, or for the
\n merger or consolidation with or into any Person or Entity if the purchase
\n price is not greater than $5,000,000; or<\/p>\n
(3) Cause the Company to issue additional Common Units, except
\n as provided in Article 11;<\/p>\n
(b) Without the prior written approval of both Navigant and Och-
\nZiff Partners, which approval may not be unreasonably withheld if so requested
\nby the Manager, the Manager shall not cause or commit the Company to do any of
\nthe following:<\/p>\n
13<\/p>\n
(1) Except as provided in Section 5.3(a), 5.3(h), 5.3(j) and
\n 5.12 or otherwise expressly provided in this Agreement, engage in
\n transactions with Affiliates without the consent of both Och-Ziff Partners
\n and Navigant;<\/p>\n
(2) Issue Preferred Units to any Person other than Och-Ziff
\n Partners;<\/p>\n
(3) Cause the Company to undergo a Reorganization (subject also
\n to the notice requirement contained in Section 10.5(c));<\/p>\n
(4) Enter into any agreement for the purchase of stock or of all
\n or substantially all of the assets of any Person or Entity, or for the
\n merger or consolidation with or into any Person or Entity if the purchase
\n price is greater than $5,000,000; or<\/p>\n
(5) The sale of all or substantially all of the Company’s
\nassets.<\/p>\n
(c) All of Och-Ziff Partners’ approval rights pursuant to this
\nSection 5.4(b) shall terminate in the event that it exercises the Put Right, and
\nthereafter the Manager shall not cause or commit the Company to do any of things
\nspecified in Section 5.4(b) without the consent of a Majority Interest, which
\nconsent may be unreasonably withheld.<\/p>\n
5.5 Liability for Certain Acts.
\n ————————– <\/p>\n
(a) Subject only to Section 10.5, the Manager does not, in any way,
\nguarantee the return of the Equity Owners’ Capital Contributions or a profit for
\nthe Equity Owners from the operations of the Company.<\/p>\n
(b) The Manager shall not be liable to the Company or to any Member
\nfor any loss or damage sustained by the Company or any Member (or successor
\nthereto), except to the extent, if any, that the loss or damage shall have been
\nthe result of gross negligence, fraud, deceit or willful misconduct.<\/p>\n
5.6 Manager and Members Have No Exclusive Duty to Company;
\n ——————————————————
\nNoncompetition Covenant.
\n———————– <\/p>\n
(a) Except as expressly provided in Section 5.6(b):<\/p>\n
(1) The Manager and the Members shall have no exclusive duty to
\n act on behalf of the Company.<\/p>\n
(2) Each Manager and Member may have other business interests
\n and may engage in other activities in addition to those relating to the
\n Company.<\/p>\n
14<\/p>\n
(3) Neither the Company nor any Manager shall have any right, by
\n virtue of this Agreement, to share or participate in any other investments
\n or activities of any other Manager or Member.<\/p>\n
(4) Neither any Manager nor any Equity Owner shall incur any
\n liability to the Company or to any of the Equity Owners as a result of
\n engaging in any other business or venture.<\/p>\n
(b) Restriction on Competition.<\/p>\n
(1) During the term of the Term of this Agreement, neither the
\n Manager nor the Members shall directly or indirectly, for their own account
\n or on behalf of or in conjunction with any other person, company,
\n partnership, corporation, business, group, or other entity (each, a
\n “Person”):<\/p>\n
(i) engage, as an officer, director, shareholder, owner,
\n partner, joint venturer, or in a managerial capacity, whether as an
\n employee, independent contractor, consultant, advisor, or sales
\n representative, in (A) any travel agency business in direct competition
\n with the Company or (B) any business selling any products or services in
\n direct competition with the Company;<\/p>\n
(ii) call upon any Person who is an employee of the Company
\n or its subsidiaries for the purpose or with the intent of enticing such
\n employee away from or out of the employ of the Company or its subsidiaries;
\n or<\/p>\n
(iii) call upon any Person who or that is, at that time, or
\n has been, within one (1) year prior to that time, a customer of the Company
\n for the purpose of soliciting or selling products or services in direct
\n competition with the Company.<\/p>\n
(2) The foregoing covenants shall not be deemed to prohibit the
\n Manager or the Members from acquiring as an investment not more than fifty
\n percent (50%) of the capital stock of a competing business, so long as the
\n Manager or Member does not effectively control such business or participate
\n in the day to day management of such business.<\/p>\n
(3) NII further agrees that it will conduct all of its
\n electronic consumer leisure travel business through the Company.<\/p>\n
(4) The restrictions on competition contained in this Section
\n 5.6 shall not apply to Noncompetitive Activities. Noncompetitive Activities
\n shall not be deemed to be competitive with the Company’s business, and
\n neither NII nor its Affiliates shall be restricted in any way from engaging
\n in Noncompetitive Activities:<\/p>\n
15<\/p>\n
5.7 Bank Accounts. The Manager may from time to time open bank
\n ————-
\naccounts in the name of the Company, and the Manager shall be the sole signatory
\nthereon, unless the Manager determine otherwise.<\/p>\n
5.8 Indemnity of the Manager, Employees and Other Agents.
\n —————————————————- <\/p>\n
(a) The Company shall indemnify each Manager and make advances for
\nexpenses to the maximum extent permitted under the Act, except to the extent the
\nclaim for which indemnification is sought results from an act or omission for
\nwhich the Manager may be held liable to the Company or a Member under Section
\n5.5(b). The Company shall indemnify its employees and other agents who are not a
\nManager to the fullest extent permitted by law, provided that such
\nindemnification in any given situation is approved by a Majority Interest.<\/p>\n
(b) Expenses (including legal fees and expenses) incurred by a
\nManager in defending any claim, demand, action, suit or proceeding subject to
\nsubsection (a) above shall be paid by the Company in advance of the final
\ndisposition of such claim, demand, action, suit or proceeding upon receipt of an
\nundertaking (which need not be secured) by or on behalf of the Manager to repay
\nsuch amount if it shall ultimately be finally determined by a court of competent
\njurisdiction and not subject to appeal, that the Manager is not entitled to be
\nindemnified by the Company as authorized hereunder.<\/p>\n
5.9 Resignation. Any Manager may resign at any time by giving written
\n ———–
\nnotice to the Members. The resignation of any Manager shall take effect upon
\nreceipt of notice thereof or at such later time as shall be specified in such
\nnotice; and, unless otherwise specified therein, the acceptance of such
\nresignation shall not be necessary to make it effective. The resignation of a
\nManager who is also an Equity Owner shall not affect the Manager’s rights as an
\nEquity Owner.<\/p>\n
5.10 Removal. At a meeting called expressly for that purpose, all or
\n ——-
\nany lesser number of Managers may be removed, with or without cause, only with
\nthe consent of Members holding a Two-Thirds Interest (inclusive of any Voting
\nInterests held by the Manager or its Affiliates). The removal of a Manager who
\nis also a Member shall not affect the Manager’s rights as a Member and shall not
\nconstitute a withdrawal of a Member.<\/p>\n
5.11 Vacancies. Any vacancy occurring for any reason in the number of
\n ———
\nManagers shall be filled by the affirmative vote of Members holding a Two-Thirds
\nInterest (determined without regard to any Voting Interest owned by a Manager
\nwho was removed pursuant to Section 5.10 during the preceding 24-month period).
\nAny Manager’s position to be filled by reason of an increase in the number of
\nManagers shall be filled by the affirmative vote of a Two-Thirds Interest.<\/p>\n
16<\/p>\n
5.12 Compensation, Reimbursement, Organization Expenses.
\n ————————————————– <\/p>\n
(a) Except as provided in Section 5.12(c), the Manager shall not be
\ncompensated for its services to the Company, except as approved by both Navigant
\nand Och-Ziff Partners. Upon the submission of appropriate documentation each
\nMember shall be reimbursed by the Company for reasonable out-of-pocket expenses
\nincurred on behalf, or at the request, of the Company.<\/p>\n
(b) Upon the submission of appropriate documentation the Company
\nshall reimburse Och-Ziff Partners and NII for their legal expenses reasonably
\nincurred by them in connection with the formation, organization and
\ncapitalization of the Company, including the legal fees incurred in connection
\nwith negotiating and drafting this Agreement and any ancillary document;
\nprovided that such reimbursement shall not exceed $65,000 for either Och-Ziff
\nPartners (collectively) or NII.<\/p>\n
(c) NII shall be reimbursed for expenses it incurs in connection
\nwith shared services (including without limitation, ticket fulfillment, payroll,
\nhuman resources, accounting, 24-hour services, facilities, rent, utilities,
\nadministrative costs, and third party expenses). Such reimbursement shall be on
\na per transaction, per call, per person or other reasonable basis, provided that
\nthe terms of any such reimbursement are not less favorable to the Company than
\ncould be obtained from an unrelated party.<\/p>\n
(d) The Manager shall cause the Company to make an appropriate
\nelection to treat the expenses incurred by the Company in connection with the
\nformation and organization of the Company to be amortized under the 60-month
\nperiod beginning with the month in which the Company begins business to the
\nextent that such expenses constitute “organizational expenses” of the Company
\nwithin the meaning of Code Section 709(b)(2).<\/p>\n
5.13 Annual Operating Plan. The Manager shall prepare for the approval
\n ———————
\nof the Members holding a Two-Thirds Interest each Fiscal Year (no later than
\nthirty (30) days prior to the end of the then current Fiscal Year) a business
\nplan (“Annual Operating Plan”) for the next Fiscal Year, setting forth at a
\nminimum the estimated receipts (including capital calls) and expenditures
\n(capital, operating and other) of the Company in sufficient detail to provide an
\nestimate of cash flow, capital proceeds and other financial requirements of the
\nCompany for such year. Any such Annual Operating Plan shall also include such
\nother information or other matters necessary in order to inform the Members of
\nthe Company’s business and to enable the Members to make an informed decision
\nwith respect to their approval of such Annual Operating Plan. The Members shall
\nreview the proposed Annual Operating Plan and shall offer any revisions thereto
\nwithin 30 days. After the final Annual Operating Plan has been approved by the
\nMembers holding a Two-Thirds Interest, the Manager shall implement the Annual
\nOperating Plan and shall be authorized to make only the expenditures and incur
\nonly the obligations provided for therein (subject to Section 5.4(b)).
\nNotwithstanding the foregoing, the Manager may make any expenditure or incur any
\nobligation, whether or not such expenditure or obligation is provided for in an
\nAnnual Operating Plan, which is <\/p>\n
17<\/p>\n
the legal obligation of the Company and not within the reasonable control of the
\nManager (e.g., real or personal property taxes). If Members holding a Two-Thirds
\nInterest are not able to agree on an Annual Operating Plan for any year, each
\nline item in the Annual Operating Plan for the prior year shall be increased by
\nthe percentage increase in the CPI Index from the first day for which the
\nprevious Annual Operating Plan was in effect to the first day for which the new
\nAnnual Operating Plan is to be in effect. As used herein, “CPI Index” shall mean
\nthe Consumer Price Index for All Items All Urban Consumers (DPI-U)
\n(1982-84 = 100) for the United States, as published by the United States
\nDepartment of Labor’s Bureau of Labor Statistics (the “Bureau”). Should the
\nBureau discontinue the publication of the above index, or publish the index less
\nfrequently, or alter the index in some other manner, then the Manager shall,
\nfrom time to time, adopt a substitute index or substitute procedure which
\nreasonably reflects and monitors consumer prices, and the resulting plan shall
\nbe the Annual Operating Plan for the current year.<\/p>\n
5.14 Right to Rely on the Manager.
\n —————————- <\/p>\n
(a) Any Person dealing with the Company may rely (without duty of
\nfurther inquiry) upon a certificate signed by any Manager as to:<\/p>\n
(i) The identity of any Manager or Equity Owner;<\/p>\n
(ii) The existence or nonexistence of any fact or facts
\n which constitute a condition precedent to acts on behalf of the Company
\n by any Manager or which are in any other manner germane to the affairs of
\n the Company;<\/p>\n
(iii) The Persons who are authorized to execute and deliver
\n any instrument or document of the Company; or<\/p>\n
(b) Any act or failure to act by the Company or any other matter
\nwhatsoever involving the Company or any Equity Owner.<\/p>\n
5.15 Officers. In exercising the authority, powers and rights granted
\n ——–
\nto it under this Agreement, the Manager may exercise such authority, powers and
\nrights directly or through officers appointed by the Manager pursuant to the
\nfollowing terms and conditions.<\/p>\n
(a) The Manager at any time and from time to time shall have the
\nauthority to appoint a President, a Chairman, one or more Vice Presidents, a
\nSecretary, a Treasurer and a Controller. The Manager at any time and from time
\nto time may also appoint such other officers as it shall deem necessary,
\nincluding one or more Assistant Vice Presidents, one or more Assistant
\nTreasurers and one or more Assistant Secretaries, who shall hold their offices
\nfor such terms as shall be determined by the Manager, and shall exercise such
\npowers and perform such duties as shall be determined from time to time by the
\nManager.<\/p>\n
18<\/p>\n
(b) The salaries of the officers shall be fixed by the Manager,
\nexcept that the Manager may delegate to any officer or officers the power to fix
\nthe compensation of any officer appointed in accordance with the second sentence
\nof 5.5(a).<\/p>\n
(c) Each officer shall hold office for one (1) year after his or
\nher appointment by the Manager and until his or her successor is chosen or until
\nhis or her earlier resignation, death, removal or termination of his or her
\noffice. Any officer may be removed with or without cause by the Manager whenever
\nin its judgment the best interests of the Company would be served thereby. Any
\nofficer may resign by giving written notice to the Manager. The resignation
\nshall be effective upon receipt, or at such time as may be specified in such
\nnotice.<\/p>\n
(d) The Chairman, when one is appointed, may be declared by the
\nManager to be the Chief Executive Officer of the Company and, if so, shall have
\ngeneral and active management of the business of the Company and shall see that
\nall orders and resolutions of the Manager are carried into effect. He shall be
\nex officio a member of all standing committees, unless otherwise provided in the
\nresolution appointing the same. The Chairman shall call meetings of the Members
\nand the Manager to order and shall act as chairman of such meetings.<\/p>\n
(e) When no Chairman has been appointed, or if a Chairman has been
\nappointed and not declared to be the Chief Executive Officer, or in the event of
\nthe death or disability of the Chairman or at his request, the President shall
\nhave general and active management of the business of the Company and shall see
\nthat all orders and resolutions of the Manager are carried into effect. The
\nPresident shall also have such powers and perform such duties as are
\nspecifically imposed upon him by law and as may be assigned to him by the
\nManager or the Chairman. The President shall be ex officio a member of all
\nstanding committees, unless otherwise provided in the resolution appointing such
\ncommittees. In the absence of a Chairman serving as Chief Executive Officer,
\nthe President shall call meetings of the Members and the Manager to order and
\nshall act as chairman of such meetings. If no other officers are appointed, the
\nPresident shall also have all of the powers and perform the duties of Secretary
\nand Treasurer.<\/p>\n
(f) The Vice Presidents shall perform such duties as are generally
\nperformed by vice presidents of corporations. The Vice Presidents shall perform
\nsuch other duties and exercise such other powers as the Manager, the Chairman or
\nthe President shall request or delegate. The Assistant Vice Presidents shall
\nhave such powers, and shall perform such duties, as may be prescribed from time
\nto time by the Manager, the Chairman or the President.<\/p>\n
(g) The Secretary shall attend all meetings of the Manager and all
\nmeetings of the Members and shall record all votes and the minutes of all
\nproceedings in books to be kept for that purpose. He or she shall give, or
\ncause to be given, any notices required to be given of any meetings of the
\nMembers and of the Manager, and shall perform such other duties as may be
\nprescribed by the Manager, the Chairman or the President. The Assistant
\nSecretary or Assistant Secretaries shall, in the absence or <\/p>\n
19<\/p>\n
disability of the Secretary, or at the Secretary’s request, perform the duties
\nand exercise the powers and authority herein granted to the Secretary.<\/p>\n
(h) The Treasurer shall have charge of and be responsible for all
\nfunds, securities, receipts and disbursements of the Company, and shall deposit
\nor cause to be deposited, in the name of the Company, all moneys or other
\nvaluable effects in such banks, trust companies, or other depositories as shall
\nfrom time to time be selected by the Manager. He or she shall render to the
\nChairman, the President and the Manager, whenever requested, an account of the
\nfinancial condition of the Company, and, in general, he or she shall perform all
\nthe duties incident to the office of treasurer of a corporation, and such other
\nduties as may be assigned to him or her by the Manager, the Chairman or the
\nPresident.<\/p>\n
(i) The Manager may appoint a Controller who shall keep or cause to
\nbe kept in the books of the Company provided for that purpose a true account of
\nall transactions, and of the assets and liabilities, of the Company. The
\nController shall prepare and submit to the Chairman or the President such
\nfinancial statements and schedules as may be required to keep such officer
\ncurrently informed of the operations and financial condition of the Company, and
\nshall perform such other duties as may be assigned by the Manager, the Chairman
\nor the President.<\/p>\n
(j) In case of the absence of any officer of the Company, or for
\nany other reason that the Manager may deem sufficient, the Manager may delegate,
\nfor the time being, any or all of the powers or duties of such officer to any
\nother officer.<\/p>\n
(k) The Manager may authorize any officer or officers, agent or
\nagents, to enter into any contract or execute and deliver any instrument in the
\nname of and on behalf of the Company. Such authority may be general or confined
\nto specific instances. No loans shall be contracted on behalf of the Company
\nand no evidences of indebtedness shall be issued in its name unless authorized
\nby a resolution of the Manager. All checks, drafts or other orders for the
\npayment of money, notes or other evidences of indebtedness issued in the name of
\nthe Company shall be signed by the President, or by such officer or officers,
\nagent or agents of the Company as authorized by the Manager and in such manner
\nas shall from time to time be determined by written resolution of the Manager.<\/p>\n
Article 6.
\n RIGHTS AND OBLIGATIONS OF EQUITY OWNERS<\/p>\n
6.1 Limitation of Liability. Except as otherwise provided by the
\n ———————–
\nnon-waivable provisions of the Act or by this Agreement, no Equity Owner shall
\nbe liable for an obligation of the Company solely by reason of being or acting
\nas an Equity Owner.<\/p>\n
6.2 List of Equity Owners. Upon written request of any Member made in
\n ———————
\ngood faith and for a purpose reasonably related to the Member’s rights as Member
\nunder this Agreement (which reason shall be set forth in the written request),
\nthe Manager shall <\/p>\n
20<\/p>\n
provide a list showing the names, addresses and Ownership Interests of all
\nEquity Owners. Economic Interest Owners shall have no rights to information
\nunder this Section 6.2.<\/p>\n
6.3 Equity Owners Have No Agency Authority. Except as expressly
\n ————————————–
\nprovided in this Agreement, the Equity Owners (in their capacity as Equity
\nOwners) shall have no agency authority on behalf of the Company.<\/p>\n
6.4 Company Books. In accordance with Section 9.10 herein, the Manager
\n ————-
\nshall maintain and preserve, during the term of the Company, and for five (5)
\nyears thereafter, all accounts, books, and other relevant Company documents.
\nUpon reasonable request, each Member shall have the right, during ordinary
\nbusiness hours, to inspect and copy such Company documents at the requesting
\nMember’s expense.<\/p>\n
6.5 Priority and Return of Capital. Except as may be expressly
\n ——————————
\nprovided in Article 9, no Equity Owner shall have priority over any other Equity
\nOwner, either as to the return of Capital Contributions or as to Profits, Losses
\nor Distributions; provided, however, that this Section 6.5 shall not apply to
\nloans (as distinguished from Capital Contributions) which an Equity Owner has
\nmade to the Company.<\/p>\n
6.6 License Agreement. Simultaneous with the execution of this
\n —————–
\nAgreement, NII and the Company shall execute a License Agreement, substantially
\nin the form attached as Exhibit 5.3(j) (the “License Agreement”).<\/p>\n
6.7 Warrants. Simultaneous with the execution of this Agreement, the
\n ——–
\nCompany shall issue a warrant to purchase an aggregate of 50,000 Common Units to
\nthe Och-Ziff Partners (in proportion to their respective Sharing Ratios)
\nsubstantially in the form attached hereto as Exhibit 6.7.<\/p>\n
Article 7.
\n MEETINGS OF MEMBERS<\/p>\n
7.1 No Required Meetings. The Members may, but shall not be required
\n ——————–
\nto hold any annual, periodic or other formal meetings. However, meetings of the
\nMembers may be called by any Manager, or by any Member or Members holding at
\nleast 10% of the Voting Interests.<\/p>\n
7.2 Place of Meetings. The Member or Members calling the meeting may
\n —————–
\ndesignate any place within the State as the place of meeting for any meeting of
\nthe Members; and Members holding a Two-Thirds Interest may designate any place
\noutside the State as the place of meeting for any meeting of the Members. If no
\ndesignation is made, or if a special meeting be otherwise called, the place of
\nmeeting shall be the principal executive office of the Company in the State.<\/p>\n
7.3 Notice of Meetings. Except as provided in Section 7.4, written
\n ——————
\nnotice stating the place, day and hour of the meeting and the purpose or
\npurposes for which the meeting is called shall be delivered not less than ten
\n(10) nor more than fifty (50) days <\/p>\n
21<\/p>\n
before the date of the meeting, either personally or by mail, by or at the
\ndirection of the Member or Members calling the meeting, to each Member entitled
\nto vote at such meeting.<\/p>\n
7.4 Meeting of all Members. If all of the Members shall meet at any
\n ———————-
\ntime and place, either within or outside of the State, and consent to the
\nholding of a meeting at such time and place, such meeting shall be valid without
\ncall or notice, and at such meeting lawful action may be taken.<\/p>\n
7.5 Record Date. For the purpose of determining Members entitled to
\n ———–
\nnotice of or to vote at any meeting of Members or any adjournment thereof, or
\nMembers entitled to receive payment of any Distribution, or in order to make a
\ndetermination of Members for any other purpose, the date on which notice of the
\nmeeting is mailed or the date on which the resolution declaring such
\nDistribution is adopted, as the case may be, shall be the record date for such
\ndetermination of Members. When a determination of Members entitled to vote at
\nany meeting of Members has been made as provided in this Section 7.5, such
\ndetermination shall apply to any adjournment thereof.<\/p>\n
7.6 Quorum. Members holding at least a Majority Interest, represented
\n ——
\nin person or by proxy, shall constitute a quorum at any meeting of Members. In
\nthe absence of a quorum at any such meeting, a majority of the Voting Interests
\nso represented may adjourn the meeting from time to time for a period not to
\nexceed 60 days without further notice. However, if the adjournment is for more
\nthan 60 days, or if after the adjournment a new record date is fixed for the
\nadjourned meeting, a notice of the adjourned meeting shall be given to each
\nMember of record entitled to vote at the meeting. At such adjourned meeting at
\nwhich a quorum shall be present or represented, any business may be transacted
\nwhich might have been transacted at the meeting as originally noticed. The
\nMembers present at a duly organized meeting may continue to transact business
\nuntil adjournment, notwithstanding the withdrawal during such meeting of that
\nnumber of Voting Interests whose absence would cause less than a quorum.<\/p>\n
7.7 Manner of Acting. If a quorum is present, the affirmative vote of
\n —————-
\nMembers holding a Two-Thirds Interest shall be the act of the Members, unless
\nthe vote of a greater or lesser proportion or number is otherwise required by
\nthe Act or by this Agreement. Unless otherwise expressly provided herein,
\nMembers who have an interest (economic or otherwise) in the outcome of any
\nparticular matter upon which the Members vote or consent may vote or consent
\nupon any such matter and their Voting Interest, vote or consent, as the case may
\nbe, shall be counted in the determination of whether the requisite matter is
\napproved by the Members.<\/p>\n
7.8 Proxies. At all meetings of Members, a Member who is qualified to
\n ——-
\nvote may vote in person or by proxy executed in writing by the Member or by a
\nduly authorized attorney-in-fact. Such proxy shall be filed with the Manager
\nbefore or at the time of the meeting. No proxy shall be valid after eleven
\nmonths from the date of its execution, unless otherwise provided in the proxy.<\/p>\n
22<\/p>\n
7.9 Action by Members Without a Meeting. Action required or permitted
\n ———————————–
\nto be taken at a meeting of Members may be taken without a meeting if the action
\nis evidenced by one or more written consents or approvals describing the action
\ntaken and signed by Members holding sufficient Voting Interests, as the case may
\nbe, to approve such action had such action been properly voted on at a duly
\ncalled meeting of the Members. Action taken under this Section 7.9 is effective
\nwhen Members with the requisite Interests or Voting Interests, as the case may
\nbe, have signed the consent or approval, unless the consent specifies a
\ndifferent effective date. The record date for determining Members entitled to
\ntake action without a meeting shall be the date the first Member signs a written
\nconsent.<\/p>\n
7.10 Waiver of Notice. When any notice is required to be given to any
\n —————-
\nMember, a waiver thereof in writing signed by the person entitled to such
\nnotice, whether before, at, or after the time stated therein, shall be
\nequivalent to the giving of such notice.<\/p>\n
Article 8.
\n CONTRIBUTIONS TO THE COMPANY AND CAPITAL ACCOUNTS<\/p>\n
8.1 Members’ Capital Contributions. Not later than three days after
\n ——————————
\neach of the parties has executed this Agreement and delivered an executed copy
\nof same to the Manager, each Equity Owner shall contribute such amount as is set
\nforth in Exhibit 8.1 hereto as its share of the Initial Capital Contribution.
\n ———– <\/p>\n
8.2 Additional Contributions. Except as set forth in Section 8.1, no
\n ————————
\nEquity Owner shall be required to make any Additional Capital Contributions. To
\nthe extent unanimously approved by the Manager, from time to time, the Equity
\nOwners may be permitted to make additional Capital Contributions if and to the
\nextent they so desire, and if the Manager determines that such additional
\nCapital Contributions are necessary or appropriate in connection with the
\nconduct of the Company’s business (including without limitation, expansion or
\ndiversification). In such event, the Equity Owners shall have the opportunity
\n(but not the obligation) to participate in such additional Capital Contributions
\nproportionate to their Sharing Ratios.<\/p>\n
8.3 Capital Accounts.
\n —————- <\/p>\n
(a) A separate Capital Account shall be maintained for each Equity
\nOwner. Each Equity Owner’s Capital Account shall be increased by (1) the amount
\nof money contributed by such Equity Owner to the Company; (2) the fair market
\nvalue of property contributed by such Equity Owner to the Company (net of
\nliabilities secured by such contributed property that the Company is considered
\nto assume or take subject to under Section 752 of the Code); (3) allocations to
\nsuch Equity Owner of Profits; and (4) any items in the nature of income and gain
\nwhich are specially allocated to the Equity Owner pursuant to Sections 9.2 and
\n9.3. Each Equity Owner’s Capital Account shall be decreased by (1) the amount
\nof money Distributed to such Equity Owner by the Company; (2) the fair market
\nvalue of property Distributed to such Equity Owner by the Company (net of
\nliabilities secured by such Distributed property that such Equity Owner <\/p>\n
23<\/p>\n
is considered to assume or take subject to under Section 752 of the Code); (3)
\nany items in the nature of deduction and loss that are specially allocated to
\nthe Equity Owner pursuant to Sections 9.2 and 9.3; and (4) allocations to such
\nEquity Owner of Losses.<\/p>\n
(b) Without limiting the other rights and duties of a transferee of
\nan Ownership Interest pursuant to this Agreement, in the event of a permitted
\nsale or exchange of an Ownership Interest in the Company, (1) the Capital
\nAccount of the transferor shall become the Capital Account of the transferee to
\nthe extent it relates to the transferred Ownership Interest in accordance with
\nSection 1.704-1(b)(2)(iv) of the Regulations; and (2) the transferee shall be
\ntreated as the transferor for purposes of allocations and distributions pursuant
\nto Article 9 to the extent that such allocations and distributions relate to the
\ntransferred Ownership Interest.<\/p>\n
(c) Subject to Section 11.5, upon liquidation of the Company,
\nliquidating Distributions shall be made in accordance with the positive Capital
\nAccount balances of the Equity Owners, as determined after taking into account
\nall Capital Account adjustments for the Company’s taxable year during which the
\nliquidation occurs. Liquidation proceeds shall be paid in accordance with
\nSection 12.3 and Section 9.4(b). The Company may offset damages for breach of
\nthis Agreement by any Equity Owner whose interest is liquidated (either upon the
\nwithdrawal of the Equity Owner or the liquidation of the Company) against the
\namount otherwise Distributable to such Equity Owner. Subject to Section 8.1, no
\nEquity Owner shall have any obligation to restore all or any portion of a
\ndeficit balance in such Equity Owner’s Capital Account.<\/p>\n
8.4 Withdrawal or Reduction of Equity Owners’ Contributions to Capital.
\n —————————————————————— <\/p>\n
(a) An Equity Owner shall not receive a Distribution of any part of
\nits Capital Contribution to the extent such Distribution would violate Section
\n9.5.<\/p>\n
Article 9.
\n ALLOCATIONS, INCOME TAX,
\n DISTRIBUTIONS, ELECTIONS AND REPORTS<\/p>\n
9.1 Allocations of Profits and Losses from Operations. Except as
\n ————————————————-
\nprovided in Sections 9.2 and Section 9.3, and Article 11, the Profits and Losses
\nfor each Fiscal Year shall be allocated as follows:<\/p>\n
(a) Losses shall be allocated as follows:<\/p>\n
(1) First, to the Och-Ziff Partners pro rata in accordance
\n with their respective Common Units until the total Unrecovered Losses (as
\n defined in Section 9.1(b)(1)) allocated pursuant to this Section
\n 9.1(a)(1) equals $2,500,000;<\/p>\n
(2) Thereafter, to the Equity Owners Proportionately in
\n accordance with their Common Units.<\/p>\n
24<\/p>\n
(b) Profits shall be allocated as follows:<\/p>\n
(1) First, to each Equity Owner which previously has been
\n allocated Losses pursuant to Section 9.1(a) which have not been fully
\n offset by allocations of Profit pursuant to this Section 9.1(b)(1),
\n Section 11.2, Section 11.3 and Section 11.4 (“Unrecovered Losses”) until
\n the total amount of Profits allocated to each such Equity Owner pursuant
\n to this Section 9.1(b)(1), Section 11.2, Section 11.3 and Section 11.4 is
\n equal to the total amount of Losses which have been allocated to such
\n Equity Owner pursuant to Section 9.1(a). Profits allocated pursuant to
\n this Section 9.1(b)(1) shall be allocated to the Equity Owners in
\n proportion to their respective Unrecovered Losses; and<\/p>\n
(2) Second, to the holders of the Common Units,
\n Proportionately.<\/p>\n
9.2 Special Allocations to Capital Accounts. Notwithstanding Section
\n —————————————
\n9.1 hereof:<\/p>\n
(a) In the event that any Equity Owner unexpectedly receives any
\nadjustments, allocations or Distributions described in Sections
\n1.704-1(b)(2)(ii)(d)(4), (5), or (6) of the Regulations, which create or
\nincrease a Deficit Capital Account of such Equity Owner, then items of Company
\nincome and gain (consisting of a pro rata portion of each item of Company
\nincome, including gross income, and gain for such year and, if necessary, for
\nsubsequent years) shall be specially allocated to such Equity Owner in an amount
\nand manner sufficient to eliminate, to the extent required by the Regulations,
\nthe Deficit Capital Account so created as quickly as possible. It is the intent
\nthat this Section 9.2(a) be interpreted to comply with the alternate test for
\neconomic effect set forth in Section 1.704-1(b)(2)(ii)(d) of the Regulations.<\/p>\n
(b) The Losses allocated pursuant to Section 9.1 hereof shall not
\nexceed the maximum amount of Losses that can be so allocated without causing any
\nMember to have a Deficit Capital Account at the end of any Fiscal Year. In the
\nevent that some, but not all, of the Members would have Deficit Capital Accounts
\nas a consequence of an allocation of Losses pursuant to Section 9.1 hereof, the
\nlimitation set forth in the preceding sentence shall be applied on a Member by
\nMember basis so as to allocate the maximum permissible Losses to each Member
\nunder Section 1.704-1(b)(2)(ii)(d) of the Regulations. All Losses in excess of
\nthe limitation set forth in this Section 9.2(b) shall be allocated to the
\nMembers in proportion to their respective positive Capital Account balances, if
\nany, and thereafter to the Members in accordance with their interests in the
\nCompany as determined by the Manager in their reasonable discretion. In the
\nevent that any Equity Owner would have a Deficit Capital Account at the end of
\nany Fiscal Year which is in excess of the sum of any amount, if any, that such
\nEquity Owner is obligated to restore to the Company under Section
\n1.704-1(b)(2)(ii)(c) of the Regulations and such Equity Owner’s share of Company
\nMinimum Gain as defined in Section 1.704-2(g)(1) of the Regulations (which is
\nalso treated as an obligation to restore in accordance with Section
\n1.704-1(b)(2)(ii)(d) of the Regulations), the Capital Account of such Equity <\/p>\n
25<\/p>\n
Owner shall be specially credited with items of Company income (including gross
\nincome) and gain in the amount of such excess as quickly as possible.<\/p>\n
(c) Notwithstanding any other provision of this Section 9.2, if
\nthere is a net decrease in the Company Minimum Gain as during a Fiscal Year,
\nthen the Capital Accounts of each Equity Owner shall be allocated items of
\nincome (including gross income) and gain for such Fiscal Year (and if necessary
\nfor subsequent Fiscal Years) equal to that Equity Owner’s share of the net
\ndecrease in Company Minimum Gain. This Section 9.2(c) is intended to comply with
\nthe minimum gain chargeback requirement of Section 1.704-2 of the Regulations
\nand shall be interpreted consistently therewith. If in any Fiscal Year that the
\nCompany has a net decrease in the Company Minimum Gain, if the minimum gain
\nchargeback requirement would cause a distortion in the economic arrangement
\namong the Equity Owners and it is not expected that the Company will have
\nsufficient other income to correct that distortion, the Manager may in their
\ndiscretion (and shall, if requested to do so by a Member) seek to have the
\nInternal Revenue Service waive the minimum gain chargeback requirement in
\naccordance with Section 1.704-2(f)(4) of the Regulations.<\/p>\n
(d) Notwithstanding any other provision of this Section 9.2 except
\nSection 9.2(c), if there is a net decrease in Member Minimum Gain attributable
\nto a Member Nonrecourse Debt during any Company Fiscal Year, each Member who has
\na share of the Member Minimum Gain as of the beginning of the Fiscal Year shall
\nbe specially allocated items of Company income and gain for such Fiscal Year
\n(and, if necessary, subsequent Fiscal Years) equal to such Member’s share of the
\nnet decrease in Member Minimum Gain attributable to such Member Nonrecourse
\nDebt. A Member’s share of the net decrease in Member Minimum Gain shall be
\ndetermined in accordance with Section 1.704-2(i)(4) of the Regulations;
\nprovided, however, that a Member shall not be subject to this provision to the
\nextent that an exception is provided by Section 1.704-2(i)(4) of the Regulations
\nand any Revenue Rulings issued with respect thereto. Any Member Minimum Gain
\nallocated pursuant to this provision shall consist of first, gains recognized
\nfrom the disposition of Company property subject to the Member Nonrecourse Debt,
\nand, second, if necessary, a pro rata portion of the Company’s other items of
\nincome or gain (including gross income) for that Fiscal Year. This Section
\n9.2(d) is intended to comply with the minimum gain chargeback requirement in
\nSection 1.704-2(i)(4) of the Regulations and shall be interpreted consistently
\ntherewith.<\/p>\n
(e) Items of Company loss, deduction and expenditures described in
\nSection 705(a)(2)(B) of the Code which are attributable to any nonrecourse debt
\nof the Company and are characterized as partner nonrecourse deductions under
\nSection 1.704-2(i) of the Regulations shall be allocated to the Equity Owners’
\nCapital Accounts in accordance with said Section 1.704-2(i) of the Regulations.<\/p>\n
(f) Beginning in the first taxable year in which there are
\nallocations of “nonrecourse deductions” (as described in Section 1.704-2(b) of
\nthe Regulations), such deductions shall be allocated to the Equity Owners in the
\nsame manner as Loss is allocated for such period.<\/p>\n
26<\/p>\n
(g) To the extent that an adjustment to the adjusted tax basis of
\nany Company asset pursuant to Section 734(b) or 743(b) of the Code is required
\npursuant to Section 1.704-1(b)(2)(iv)(m)(2) or 1.704-1(b)(2)(iv)(m)(4) of the
\nRegulations, to be taken into account in determining Capital Accounts as the
\nresult of a Distribution to an Equity Owner in complete liquidation of its
\nOwnership Interest, the amount of such adjustment to Capital Accounts shall be
\ntreated as an item of gain (if the adjustment increases the basis of the asset)
\nor loss (if the adjustment decreases such basis), and such gain or loss shall be
\nspecially allocated to the Equity Owners in accordance with their interests in
\nthe Company in the event Section 1.704-1(b)(2)(iv)(m)(2) of the Regulations
\napplies, or to the Equity Owner to whom such Distribution was made in the event
\nSection 1.704-1(b)(2)(iv)(m)(4) of the Regulations applies.<\/p>\n
(h) Any income, gain, loss or deduction realized by the Company as
\na direct or indirect result of the issuance of an interest in the Company by the
\nCompany to an Equity Owner (the “Issuance Items”) shall be allocated among the
\nEquity Owners so that, to the extent possible, Capital Accounts of the Equity
\nOwners with respect to each their Common Units (i.e., determined without regard
\nto the portion of an Equity Owner’s Capital Account which is determined with
\nreference to such Equity Owner’s Preferred Units) is Proportionate.<\/p>\n
9.3 Credit or Charge to Capital Accounts. Any credit or charge to the
\n ————————————
\nCapital Accounts of the Equity Owners pursuant to Sections 9.2(a), 9.2(b),
\n9.2(c), 9.2(d), 9.2(e), 9.2(f) and 9.2(g) (“Regulatory Allocations”) hereof
\nshall be taken into account in computing subsequent allocations of Profits and
\nLosses pursuant to Section 9.1, so that the net amount of any items charged or
\ncredited to Capital Accounts pursuant to Section 9.1 and the Regulatory
\nAllocations hereof and this Section 9.3 shall to the extent possible, be equal
\nto the net amount that would have been allocated to the Capital Account of each
\nEquity Owner pursuant to the provisions of this Article 9 if the special
\nallocations required by the Regulatory Allocations hereof had not occurred.<\/p>\n
9.4 Distributions. Except as provided in Sections 8.3(c) (with respect
\n ————-
\nto liquidating Distributions), Section 10.5 with respect to the Put Right, and
\nSection 9.5 (with respect to limitations on Distributions), the Manager shall
\nDistribute Distributable Cash to the Equity Owners not less frequently than
\nquarterly as follows:<\/p>\n
(a) Distributions made before the dissolution of the Company shall
\nbe to the holders of the Common Units, Proportionately.<\/p>\n
(b) Distributions made after the dissolution of the Company shall
\nbe to the Equity Owners in accordance with their positive Capital Accounts,
\nprovided, however, that all liquidating distributions shall be made first to the
\nHolders who hold Preferred Units at the time of dissolution, if any, until such
\nHolders have received a liquidating distribution equal to $1,000 per Preferred
\nUnit plus the Accretion Amount.<\/p>\n
9.5 Limitation Upon Distributions. No Distribution shall be made if
\n —————————–
\nsuch Distribution would violate the Act.<\/p>\n
27<\/p>\n
9.6 Accounting Principles. For financial reporting purposes, the
\n ———————
\nCompany shall use accounting principles applied in accordance with generally
\naccepted accounting principles using the accrual method of accounting, unless
\nthe Company is required to use a different method of accounting for federal
\nincome tax purposes, in which case that method of accounting shall be the
\nCompany’s method of accounting.<\/p>\n
9.7 Interest on and Return of Capital Contributions. No Member shall
\n ———————————————–
\nbe entitled to interest on its Capital Contribution or to return of its Capital
\nContribution, except as otherwise specifically provided for herein.<\/p>\n
9.8 Loans to Company. Nothing in this Agreement shall prevent any
\n —————-
\nMember from making secured or unsecured loans to the Company by agreement with
\nthe Company.<\/p>\n
9.9 Accounting Period. The Company’s accounting period shall be the
\n —————–
\nFiscal Year.<\/p>\n
9.10 Records and Reports. At the expense of the Company, the Manager
\n ——————-
\nshall maintain records and accounts of all operations and expenditures of the
\nCompany as follows:<\/p>\n
(a) At a minimum the Company shall keep at its principal place of
\nbusiness the following records:<\/p>\n
(1) A current list of the full name and last known business,
\n residence, or mailing address of each Equity Owner and Manager, both past
\n and present;<\/p>\n
(2) A copy of the Certificate of Formation of the Company
\n and all amendments thereto, together with executed copies of any powers
\n of attorney pursuant to which any amendment has been executed;<\/p>\n
(3) Copies of the Company’s federal, state, and local income
\n tax returns and reports, if any, for the four (4) most recent Fiscal
\n Years;<\/p>\n
(4) Copies of the Company’s currently effective written
\n Agreement, copies of any writings permitted or required with respect to
\n an Equity Owner’s obligation to contribute cash, property or services,
\n and copies of any financial statements of the Company for the three (3)
\n most recent Fiscal Years;<\/p>\n
(5) Minutes of every annual, special meeting and court-
\n ordered meeting;<\/p>\n
(6) Any written consents obtained from Members for actions
\n taken by Members without a meeting.<\/p>\n
28<\/p>\n
(b) The Company shall cause the preparation and distribution to
\neach Member of the following reports on the activities and financial position of
\nthe Company, which reports shall be prepared in accordance with generally
\naccepted accounting principles consistently applied:<\/p>\n
(1) Within 30 days after the end of each of the first three
\n quarters, (A) balance sheet as of the end of such quarter, and (B) a
\n detailed statement of income or loss both for the quarterly period just
\n ended and with respect to the second and third quarters, for the period
\n commencing with the first day of the Fiscal year and ending on the last
\n day of the respective quarter (“Year-To-Date).<\/p>\n
(2) Within 60 days after the end of each Fiscal Year, (A) a
\n balance sheet as of the end of such Fiscal Year, and (B) a detailed
\n statement of income or loss for such Fiscal Year.<\/p>\n
(3) The Company shall also provide audited financial
\n statements to each Member no later than 75 days after the end of each
\n Fiscal Year.<\/p>\n
9.11 Returns and Other Elections.
\n ————————— <\/p>\n
(a) Subject to Section 9.11(b), the Manager shall cause the
\npreparation and timely filing of all tax returns required to be filed by the
\nCompany pursuant to the Code and all other tax returns deemed necessary and
\nrequired in each jurisdiction in which the Company does business. Copies of
\nsuch returns, or pertinent information therefrom, shall be furnished to the
\nEquity Owners within a reasonable time after the end of the Fiscal Year.<\/p>\n
(b) With respect to any income tax returns required to be filed by
\nthe Company, the Manager shall provide Och-Ziff Partners Domestic and its
\nauthorized representatives with copies of such completed tax returns and any
\napplicable work papers on or prior to the fifteenth day of the third month
\nfollowing the close of the Company’s taxable year, and Och-Ziff Partners
\nDomestic and its authorized representatives shall have the right to review such
\ntax returns prior to their filing. The Manager and Och-Ziff Partners Domestic
\nagree to consult and resolve in good faith any issues arising as a result of the
\nreview of such tax returns by Och-Ziff Partners Domestic or its authorized
\nrepresentatives and to mutually consent to their filing. If the Manager and Och-
\nZiff Partners Domestic agree as to the contents of such returns, then the
\nManager shall file such returns as soon as practicable thereafter. In the event
\nthe parties are unable to resolve any dispute prior to the first day of the
\nfourth month following the close of the Company’s taxable year, the parties
\nshall jointly select an independent accounting firm to resolve any issue in
\ndispute as promptly as possible. If such accounting firm is unable to make a
\ndetermination with respect to any disputed issue prior to the due date
\n(including extensions) for filing the tax returns in question, then the Manager
\nmay file such tax returns on the due date (including extensions) therefor<\/p>\n
29<\/p>\n
without such determination having been made and without Och-Ziff Partners
\nDomestic’s consent. Notwithstanding the filing of such tax returns, the
\naccounting firm mutually selected by the parties to resolve the dispute shall
\nmake a determination with respect to any disputed issues, and the Company shall
\nfile amended tax returns consistent with such determination if the determination
\nof the accounting firm is inconsistent with the manner in which such disputed
\nmatter was reported on the tax return.<\/p>\n
(c) All elections permitted to be made by the Company under federal
\nor state laws shall be made by the Manager in its sole discretion; provided,
\nhowever, that the Manager shall make any tax election requested by Members
\nowning a Majority Interest.<\/p>\n
9.12 Tax Matters Partner.
\n ——————- <\/p>\n
(a) Navigant is hereby designated the Tax Matters Partner (“TMP”)
\nas defined in Section 6231(a)(7) of the Code. The TMP and the other Members
\nshall use their reasonable efforts to comply with the responsibilities outlined
\nin Sections 6221 through 6233 of the Code (including any Regulations promulgated
\nthereunder), and in doing so shall incur no liability to any other Member.<\/p>\n
(b) Except as expressly authorized by this Agreement, the TMP shall
\nnot make any decision or take any action without the prior authorization of
\nMembers holding a Majority Interest.<\/p>\n
(c) The TMP shall cause the Och-Ziff Partners to be treated as
\n“notice partners” within the meaning of Section 6231(a)(8) of the Code. The TMP
\nshall notify the Och-Ziff Partners regarding, and the Och-Ziff Partners shall
\nhave the right to participate in, (i) any administrative or judicial proceeding
\nrelating to the determination of partnership items at the Company level, and
\n(ii) any discussions with the Internal Revenue Service relating to any Member
\nrelated tax matters. In addition, the TMP shall provide the Och-Ziff Partners,
\nif they so request, with copies of notices, correspondence, work papers,
\ndocuments or such other relevant tax related information as such Member
\nreasonably may request. The TMP shall from time to time upon request of an Och-
\nZiff Partner confer, and cause the Company accountants and tax attorneys to
\nconfer, with such Och-Ziff Partner and its attorneys and accountants on any
\nmatters relating to a Company tax item, return or election. The TMP and the
\nOch-Ziff Partners shall attempt in good faith to agree upon (i) the filing of
\nany amended income tax returns, (ii) any proposed extension of the statute of
\nlimitations, (iii) the initiation and conduct of any administrative or judicial
\ncontest of any disputed issue with the IRS and (iv) any proposed settlement or
\ncompromise of any disputed issue.<\/p>\n
(d) Subject to Section 9.12(c), the TMP shall not, except with the
\nprior approval of Members holding a Majority Interest, (i) initiate any action
\nor proceeding or file any pleading, (ii) compromise or settle any issue, (iii)
\nextend any statute of limitations, or (iv) take any action contemplated by
\nSections 6222 through 6232 of the <\/p>\n
30<\/p>\n
Code. Notwithstanding the foregoing, the TMP shall not without the prior written
\napproval of the Och-Ziff Partners enter into a settlement agreement which binds
\nthe Och-Ziff Partners pursuant to Section 6224(c)(3) of the Code. The Och-Ziff
\nPartners shall have the maximum rights permitted by law to elect not to be bound
\nby the TMP in any administrative or judicial matter and, at the request of the
\nOch-Ziff Partners, the TMP shall cooperate fully with the Och-Ziff Partners in
\nmaking any such election.<\/p>\n
(e) An Och-Ziff Partner may engage legal counsel, certified public
\naccountants, or others in its own behalf at its sole cost and expense. The
\nprovisions of this Section 9.13 shall survive the termination of the Company or
\nthe termination of any Member’s interest, and shall remain binding on the
\nMembers for a period of time necessary to resolve with the Internal Revenue
\nService any and all matters whether in an administrative or judicial proceeding
\nregarding the federal income taxation of the Company for any open tax year or
\nyears.<\/p>\n
9.13 Certain Allocations for Income Tax (But Not Book Capital Account)
\n —————————————————————–
\nPurposes.
\n——– <\/p>\n
(a) In accordance with Section 704(c)(1)(A) of the Code and Section
\n1.704-1(b)(2)(i)(iv) of the Regulations, if a Member contributes property with
\nan initial Gross Asset Value that differs from its adjusted basis at the time of
\ncontribution, income, gain, loss and deductions with respect to the property
\nshall, solely for federal income tax purposes (and not for Capital Account
\n ————————————–
\npurposes), be allocated among the Equity Owners so as to take account of any
\nvariation between the adjusted basis of such property to the Company and its
\nGross Asset Value at the time of contribution pursuant to the traditional method
\nunder Section 1.704-3(b) of the Regulations.<\/p>\n
(b) All recapture of income tax deductions resulting from Sale or
\ndisposition of Company property shall be allocated to the Equity Owners to whom
\nthe deduction that gave rise to such recapture was allocated hereunder to the
\nextent that such Equity Owner is allocated any gain from the Sale or other
\ndisposition of such property.<\/p>\n
Article 10.
\n TRANSFERABILITY<\/p>\n
10.1 General.
\n ——- <\/p>\n
(a) Except as otherwise specifically provided herein, no Equity
\nOwner shall have the right to Sell the Equity Owner’s Ownership Interest.<\/p>\n
(b) Subject to: (i)the Put Right (defined in Section 10.5), (ii)
\nSection 11.2, (iii) Section 11.4, and (iv) a Reorganization of the Company
\npursuant to the terms of this Agreement, no Equity Owner shall have the right to
\nSell that Equity Owner’s Ownership Interest for a period of 24 months following
\nthe Effective Date of this <\/p>\n
31<\/p>\n
Agreement without the unanimous written consent of all Members, which may be
\nunreasonably withheld.<\/p>\n
(c) Each Equity Owner hereby acknowledges the reasonableness of
\nthe restrictions on Sale of Ownership Interests imposed by this Agreement in
\nview of the Company purposes and the relationship of the Equity Owners.
\nAccordingly, the restrictions on Sale contained herein shall be specifically
\nenforceable.<\/p>\n
(d) In the event that any Equity Owner pledges or otherwise
\nencumbers any of its Ownership Interest as security for repayment of a
\nliability, any such pledge or hypothecation shall be made pursuant to a pledge
\nor hypothecation agreement that requires the pledgee or secured party to be
\nbound by all the terms and conditions of this Article 10, and shall require the
\nprior unanimous written consent of all Members.<\/p>\n
10.2 Right of First Refusal and Co-Sale.
\n ———————————- <\/p>\n
(a) Upon the expiration of the 24-month period described in
\nSection 10.1(b) above, subject to Sections 11.2 and 11.4, and provided that an
\nIPO has not occurred, an Equity Owner which desires to sell all or any portion
\nof its Ownership Interest to a third party purchaser other than a Member shall
\nobtain from such third party purchaser (“Third Party Purchaser”) a bona fide
\nwritten offer to purchase such interest, stating the terms and conditions upon
\nwhich the purchase is to be made and the consideration offered therefor (“Third
\nParty Offer”). The Selling Equity Owner shall give written notification (“Notice
\nof Sale”) to the Company and the other Equity Owners who are Members (the
\n“Remaining Members”), by certified mail or personal delivery, of its intention
\nto so Sell such Ownership Interest (the “Offered Interest”). The Notice of Sale
\nshall be accompanied by a copy of the Third Party Offer. If any portion of the
\npurchase price offered by such third party purchaser consists of consideration
\nother than cash or a promissory note (“Non-cash Consideration”), then: the
\nNotice of Sale also shall be accompanied by a good faith estimate by the Selling
\nEquity Owner of the fair market value of the Non-cash Consideration (“Purchase
\nPrice”).<\/p>\n
(b) The Remaining Members shall have the option (“Buy Option”) to
\npurchase all, but not less than all, of the Offered Interest, on a basis pro
\nrata to the Sharing Ratios of the Remaining Members exercising such option
\npursuant to this Section 10.2(b). The Buy Option may be exercised by one or more
\nof the Remaining Members by giving written notification (“Buy Notice”) to the
\nSelling Equity Owner within thirty (30) days after receiving the Notice of Sale
\n(the “Option Period”). Each Remaining Member who timely gives a Buy Notice
\n(“Buying Member”) shall purchase such portion of the Offered Interest which is
\nequal to the relative Sharing Ratios of all of the Buying Members. Subject to
\nSection 10.2(d), if there are no Buying Members, the Buy Option shall terminate
\nand at any time within ninety (90) days following the expiration of the Option
\nPeriod, the Selling Equity Owner shall be entitled to consummate the Sale of the
\nOffered Interest to the Third Party Purchaser or one or more of its Affiliates
\nupon terms no less favorable than are set forth in the Third Party Offer.<\/p>\n
32<\/p>\n
(c) If there is at least one Buying Member (i) the Buying Members
\nshall designate the time, date and place of closing, provided that the date of
\nclosing shall be within thirty (30) days after the receipt of the Buy Notice,
\nand (ii) at the closing, the Buying Members shall purchase, and the Selling
\nEquity Owner shall Sell, the Offered Interest for an amount equal to the lesser
\nof (i) the Purchase Price, or (ii) the amount of the Selling Equity Owner’s
\nCapital Account plus a six percent (6%) annualized rate of return accruing on
\nthe excess of any Capital Contributions (including the agreed value of any
\ncapital contributions) over the amount of any distributions to such Equity Owner
\npursuant to Section 9.4(a) in the case of Common Units proposed to be sold and
\npursuant to Section 9.4(b) in the case of Preferred Units proposed to be sold,
\ncalculated from the dates of such respective Capital Contributions and
\ndistributions. The Buy Option shall be exercised in accordance with such other
\nterms and conditions set forth in the Third Party Offer.<\/p>\n
(d) Co-Sale Right. To the extent that the Buy Option is not
\n ————-
\nexercised by the Remaining Members, each Remaining Member shall have the right
\n(the “Co-Sale Right”), exercisable upon written notice to the Company within
\nfifteen (15) business days after the expiration of the Option Period, beginning
\nwith the day following the expiration thereof, to participate in such Selling
\nEquity Owner’s sale of Offered Interest pursuant to the specific terms and
\nconditions of such Notice of Sale. To the extent a Remaining Member exercises
\nsuch Co-Sale Right in accordance with the terms and conditions set forth below,
\nthe Offered Interest which Selling Equity Owner may sell pursuant to such Notice
\nof Sale shall be correspondingly reduced. The Co-Sale Right of each Remaining
\nMember shall be subject to the following terms and conditions.<\/p>\n
(1) Calculation. Each Remaining Member may participate in
\n ———–
\n the sale of the Offered Interest on a basis pro rata to the Sharing Ratios
\n of the Selling Equity Owner and the Remaining Members exercising such Co-
\n Sale Right.<\/p>\n
(2) Delivery of Certificates. Each Remaining Member
\n ————————
\n participating in the Co-Sale Right may effect its participation in the sale
\n by delivering to the Selling Equity Owner for transfer to the Third Party
\n Purchaser one or more certificates, properly endorsed for transfer, which
\n represent the interests, which such Remaining Member elects to sell.<\/p>\n
(e) A Sale of an Offered Interest pursuant to this Section 10.2,
\nshall be subject to Sections 10.3 and 10.4.<\/p>\n
10.3 Transferee Not Member in Absence of Consent.
\n ——————————————- <\/p>\n
(a) Except as provided in this Section 10.3(a) and Section 10.6,
\nif Members holding Two-Thirds of the Voting Interests (including the Voting
\nInterest of the Member proposing to Sell its Ownership Interest) do not approve
\nby written consent the proposed Sale of the Selling Equity Owner’s Ownership
\nInterest to a transferee which is not a Member immediately prior to the Sale,
\nthen the proposed transferee shall have no right to participate in the
\nmanagement of the business and affairs of the <\/p>\n
33<\/p>\n
Company or to become a Member. Such transferee shall be merely an Economic
\nInterest Owner. No Sale of a Member’s Membership Interest (including any Sale of
\nthe Economic Interest or any other Sale which has not been approved as provided
\nherein) shall be effective unless and until written notice (including the name
\nand address of the proposed transferee and the date of such Sale) has been
\nprovided to the Company and the non-transferring Members.<\/p>\n
(b) Upon and contemporaneously with any Sale of a Member’s
\nOwnership Interest, the Selling Equity Owner shall cease to have any residual
\nrights associated with the Ownership Interest transferred to the transferee.<\/p>\n
10.4 Additional Conditions to Recognition of Transferee.
\n ————————————————– <\/p>\n
(a) If a Selling Equity Owner Sells an Ownership Interest to a
\nPerson who is not already a Member, as a condition to recognizing one or more of
\nthe effectiveness and binding nature of such Sale (subject to Section 10.3
\nabove), the remaining Members may require the Transferring Equity Owner and the
\nproposed successor-in-interest to execute, acknowledge and deliver to the
\nManager such instruments of transfer, assignment and assumption and such other
\ncertificates, representations and documents, and to perform all such other acts
\nwhich the Manager may deem necessary or desirable to accomplish any one or more
\nof the following:<\/p>\n
(1) constitute such successor-in-interest as an Equity
\nOwner;<\/p>\n
(2) confirm that the proposed successor-in-interest as an
\n Economic Interest Owner, or to be admitted as a Member, has accepted,
\n assumed and agreed to be subject and bound by all of the terms, obligations
\n and conditions of this Agreement, as the same may have been further amended
\n (whether such Person is to be admitted as a new Member or will merely be an
\n Economic Interest Owner);<\/p>\n
(3) preserve the Company after the completion of such Sale,
\n under the laws of each jurisdiction in which the Company is qualified,
\n organized or does business;<\/p>\n
(4) maintain the status of the Company as a partnership for
\n federal tax purposes; and<\/p>\n
(5) assure compliance with any applicable state and federal
\n laws, including securities laws and regulations.<\/p>\n
(b) Any Sale of an Ownership Interest and admission of a Member in
\ncompliance with this Article 10 shall be deemed effective as of the last day of
\nthe calendar month in which the remaining Members’ consent thereto was given.
\nThe Selling Equity Owner hereby indemnifies the Company and the remaining
\nMembers against any and all loss, damage, or expense (including, without
\nlimitation, tax liabilities or loss of <\/p>\n
34<\/p>\n
tax benefits) arising directly or indirectly as a result of any Sale or
\npurported Sale in violation of this Article 10.<\/p>\n
10.5 Put Rights. The holders of the Preferred Units (the “Holders”)
\n ———-
\nshall have the right to require the Company to repurchase all of the Preferred
\nUnits (the “Put Right”) upon the occurrence of any of the following and subject
\nto the conditions set forth below:<\/p>\n
(a) Subject to Section 10.5(g), if an IPO has not occurred within
\n24 months after the Effective Date then the Holders shall have the right to
\nexercise the Put Right at an aggregate purchase price equal to the remainder of:
\n ———
\n(x) either (i) $14,062,500 ($1,125 per Preferred Unit) in the event the Put
\nRight is exercised within 90 days after the second anniversary of the Effective
\nDate, or (ii) $14,937,500 ($1195 per Unit) in the event that the Put Right is
\nexercised within 90 days after the third anniversary of the Effective date,
\nminus (y) the aggregate amount of any distributions made pursuant to Section
\n—–
\n9.4(b) with respect to the Preferred Units. Such Put Right may be exercised
\nonly during the 90-day period beginning on each of the second or third
\nanniversary of the Effective Date.<\/p>\n
(b) If NII is in default of (x) the Consolidated Leverage Ratio in
\nSection 7.9(a) of the Amended and Restated Credit Agreement, dated August 6,
\n1999, among NII, the Lenders named therein (the “Lenders”) and others (the
\n“Credit Agreement”) or (y) the Consolidated Net Worth Coverage in Section 7.9(c)
\nof the Credit Agreement, then the Holders shall have the right to exercise the
\nPut Right, unless the Lenders have waived the default. Within 45 days after the
\nend of each of its fiscal quarters, NII shall provide the Holders with a
\ncertificate of a daily authorized officer stating that NII is in compliance with
\nSections 7.9(a) and 7.9(c) of the Credit Agreement, or, if not, a description of
\nthe default. Such Put Right may be exercised at any time during the 30 day
\nperiod following the Holders’ receipt of an officer’s certificate stating that
\nNII is in default.<\/p>\n
(c) Upon a Change of Control of NII, the Holders may exercise the
\nPut Right at any time during the 30 day period following the effective date of
\nthe Change of Control; provided that the Holders may not exercise the Put Right
\nif immediately following the Change of Control, the Holders, their Affiliates or
\nany Persons acting in concert with the Holders and\/or their Affiliates own (x)
\n50% or more of the Voting Power of NII or (y) all or substantially all of the
\nassets of NII.<\/p>\n
(d) Upon the purchase by NII (in public or private transactions)
\nof 25% or more of its outstanding common stock within a 60 day period (the “25%
\nPurchase”), the Holders shall have the right to exercise the Put Right at any
\ntime during the 30-day period following the 25% Purchase.<\/p>\n
35<\/p>\n
(e) The following terms and conditions shall apply to the exercise
\nof the Put Right:<\/p>\n
(1) The Redemption Price for the Preferred Units purchased
\n pursuant to Sections 10.5(b), (c) and (d) shall equal the remainder of (x)
\n $1,000 per Preferred Unit, plus the Accretion Amount to the date the Put
\n Option is exercised, minus (y) the aggregate amount of any distribution
\n made pursuant to Section 9.4(b) with respect to the Preferred Units;<\/p>\n
(2) Prior to the expiration of any Put Period, the Holders
\n shall give notice to the Company of their intention to exercise the Put
\n Right (the “Put Notice”);<\/p>\n
(3) The Company shall pay the Redemption Price (in cash or
\n readily available funds) to the Holders within 30 days of receiving the Put
\n Notice (the “Put Closing Date”); and<\/p>\n
(4) On the Put Closing Date, the Holders shall transfer the
\n Preferred Units to the Company free and clear of all liens and encumbrances
\n whatsoever, subject to the terms of this Agreement.<\/p>\n
(f) In the event that both:<\/p>\n
(i) The Holders timely exercise the Put Right in
\n accordance with this Section 10.5, and are ready, willing and able to
\n transfer the Preferred Units to the Company free and clear of all liens and
\n encumbrances whatsoever, subject to the terms of this Agreement, and<\/p>\n
(ii) the Company fails to timely purchase all or any
\n portion of the Preferred Units in accordance with this Section 10.5 or is
\n for any reason unable to timely pay the Redemption Price,<\/p>\n
then NII shall purchase from the Holders, and the Holders shall transfer to NII
\n(free and clear of all liens and encumbrances), any of such Preferred Units
\nwhich are not purchased by the Company, no later than 35 days after the date of
\nthe Put Notice, at the Redemption Price per Preferred Unit. In such event, NII
\nshall thereafter have the option at any time to require the Company to purchase
\nthe Preferred Units for an amount equal to the Redemption Price per Preferred
\nUnit, plus eight percent (8%) per annum from the date that NII purchased the
\nPreferred Units from the Holders.<\/p>\n
(g) Notwithstanding anything to the contrary in this Agreement,
\nthe Company may not undergo a Reorganization unless it has given at least 30
\ndays advance written notice of such Reorganization to the Holders, if any. At
\nany time after the Effective Date and prior to the expiration of 30 days after
\nwritten notice from Navigant to the Holders that the Company will undergo a
\nReorganization (the “Preferred-to-Common Conversion Period”), the Holders may
\nexercise the Put Right in the manner<\/p>\n
36<\/p>\n
described in Section 10.5(a) and Section 10.5(f). If the Holders do not exercise
\nthe Put Right within such Preferred-to-Common Conversion Period, then in
\nconnection with the Reorganization, the Preferred Units shall be canceled and
\nthe Holders shall receive in exchange therefor, that number of common shares in
\nthe Successor Corporation which is equal to the number of common shares in the
\nSuccessor Corporation that the Holders would have received had they converted
\ntheir Preferred Units to Common Units pursuant to Section 11.3, immediately
\nprior to the Reorganization.<\/p>\n
(h) If the Company is converted to a corporation then at the time
\nof the conversion, the Company shall enter into a Registration Agreement in
\nsubstantially the form of Exhibit 10.5(h).<\/p>\n
(i) NII shall give notice (“Sale Notice”) to the Holders prior to
\na NII Sale. If, and only if, within 15 calendar days after the Sale Notice, the
\nHolders give notice to NII of the Holders’ decision to exercise their rights
\nunder this Section 10.5(i) (“Exit Notice”), then (x) NII shall pay to Holders an
\namount equal to the Preferred Sale Fee at the closing of the NII Sale, and
\nHolders shall transfer to NII 12,500 Preferred Units free and clear of all liens
\nand encumbrances; and (y) NII shall pay to the Och-Ziff Partners an amount equal
\nto $2,500,000, and the Och-Ziff Partners shall transfer to NII, free and clear
\nof all liens and encumbrances, all 125,000 Common Units issued to the Och-Ziff
\nPartners on the Effective Date together with all of the warrants issued to the
\nOch-Ziff Partners pursuant to the Warrant Agreement set forth in Exhibit 6.7 and
\nany Common Units acquired pursuant to the exercise of any warrants pursuant to
\nthe Warrant Agreement.<\/p>\n
10.6 Sales to Affiliates. An Equity Owner may Sell all or any portion
\n ——————-
\nof its Membership Interest to an Affiliate which:<\/p>\n
(1) is an Entity which directly or indirectly owns not less
\n than eighty percent (80%) of the voting interests in the Selling Equity
\n Owner,<\/p>\n
(2) is an Entity in which the Selling Equity Owner directly
\n or indirectly owns not less than eighty percent (80%) of the voting
\n interests, or<\/p>\n
(3) is an Entity in which not less than 80% of the voting
\n interests are directly or indirectly held by an Entity which directly or
\n indirectly owns not less than 80% of the Selling Equity Owner,<\/p>\n
and such Sale shall not be subject to the restrictions on Sale contained in
\nSection 10.1, Section 10.2, Section 10.3, or Section 10.5, provided, however,
\nthat the transferee shall be subject to all of the restrictions on Sale
\ncontained in this Article 10 to the same extent as was the Selling Equity Owner
\nprior to such Sale. A transferee pursuant to this Section 10.6 shall
\nautomatically be admitted as a Member upon compliance with Section 10.4.<\/p>\n
37<\/p>\n
10.7 Right of First Offer.
\n ——————– <\/p>\n
(a) Upon approval by the Manager to offer to issue additional
\nOwnership Interests in the Company, the Manager shall provide the holders of the
\nPreferred Units with notice of the proposed offer and issuance which notice
\nshall state:<\/p>\n
(1) the aggregate number of Ownership Interests to be
\n offered and the designation of such Interests (the “Offered Interests”),
\n and the purchase price for the Offered Interests;<\/p>\n
(2) the other terms and conditions upon which the Company is
\n offering the Offered Interests;<\/p>\n
(3) the holders of the Preferred Units shall have the right
\n to purchase any or all of the Offered Interests; and<\/p>\n
(4) the date the purchase price for the Offered Interests is
\n due and the date the Offered Interests will be issued, which date shall not
\n be less than 30 days after this notice is delivered to the holders of the
\n Preferred Units.<\/p>\n
(b) No later than 10 business days after the notices have been
\ngiven by the Manager pursuant to Section 10.7(a), each of the holders of the
\nPreferred Units shall notify the Manager whether it elects to acquire any or all
\nof the Offered Interests. The Manager shall promptly notify all holders of
\nPreferred Units that have elected to purchase Offered Interests (the
\n“Participating Members”) of the total amount of Offered Interests that the
\nholders of Preferred Units have elected to purchase and the number of Offered
\nInterests that the holders of the Preferred Units have not elected to purchase.
\nWithin five business days after that notice is given, each of the Participating
\nMembers shall notify the Manager whether it elects to purchase all or any
\nportion of the remaining Offered Interests. If more than one Participating
\nMember elects to purchase the remainder of such Offered Interests, the remainder
\nof the Offered Interests shall be allocated among such Participating Members
\nupon such basis as they may agree or, in the absence of an agreement, in
\nproportion to the number of Units owned by such Participating Member relative to
\nsuch other Participating Members.<\/p>\n
(c) To the extent that the Participating Members do not elect to
\nacquire all of the Offered Interest, the Manager may offer the remainder of the
\nOffered Interests to third parties on terms and conditions that are not more
\nfavorable to such third party than those set forth in the notice provided in
\nSection 10.7(a) for a period of six months. If the Manager determines that it is
\nnecessary to change any of the terms and conditions of the offering of the
\nremainder of the Offered Interests in a way that is materially more favorable to
\nprospective purchasers (e.g., a purchase price reduction of five percent or
\n —-
\nmore), then the Manager shall first re-offer the remainder of the Offered
\nInterests to the <\/p>\n
38<\/p>\n
holders of the Preferred Interests in accordance with the preceding terms of
\nthis Section 10.7.<\/p>\n
(d) This Section 10.7 shall not apply to any Units issued: (i)
\npursuant to the exercise of a warrant pursuant to the Warrant Agreement
\nattached as Exhibit 6.7 or (ii) pursuant to the exercise of an option or
\nconversion privilege described in the Section 11.2, 11.3 or 11.4.<\/p>\n
Article 11.
\n ISSUANCE OF MEMBERSHIP INTERESTS; OPTIONS; CONVERSION RIGHTS<\/p>\n
11.1 Issuance of Additional Membership Interests to New Members; Right
\n —————————————————————–
\nof First Offer.
\n—————<\/p>\n
(a) Subject to Section 5.4 and Section 11.4, from the date of the
\nformation of the Company, any Person may become a Member of the Company and
\nreceive from the Company Common Units or Preferred Units upon such terms
\napproved by Members holding not less than 90% of the Voting Interests. Except
\nas expressly provided otherwise in Section 11.4, any issuance of Common Units or
\nPreferred Units, as the case may be, shall Proportionately reduce the Common
\nUnits or Preferred Units, as appropriate, held by all Equity Owners.<\/p>\n
11.2 Navigant Options.
\n —————- <\/p>\n
(a) Navigant is hereby granted options (“Navigant Options”) to
\npurchase for an exercise price of ten dollars ($10) per Unit, 111,111 Common
\nUnits, exercisable at any time after the Effective Date upon fifteen (15) days
\nnotice to the other Member(s). Upon exercise of any Navigant Options pursuant
\nto this Section 11.2, the Gross Asset Values of the Company assets shall be
\nadjusted to their respective fair market values as determined by the Manager in
\nits reasonable discretion. Any Profit or Loss arising from such adjustment
\nshall be allocated to the Common Units in a manner to cause the capital account
\nbalance attributable to each Common Unit to be Proportionate to, or as close as
\npossible to Proportionate, to each other Common Unit (i.e., determined without
\nregard to the portion of an Equity Owner’s Capital Account which is determined
\nwith reference to such Equity Owner’s Preferred Units). Navigant may transfer
\nor exchange all or any portion of the Navigant Options granted pursuant to this
\nSection 11.2 to any Person who is an employee or independent contractor of
\neither (i) NII’s Affiliates, or (ii) NII on or after the Effective Date.<\/p>\n
(b) Navigant may transfer or exchange the Navigant Options or the
\nUnits acquired upon exercise of the Navigant Options to any Affiliate of NII, or
\nto any employee or independent contractor of NII or any of its Affiliates
\n(“Navigant Service Performer”). Navigant may purchase from a Navigant Service
\nPerformer (or his or her successor) a Navigant Option or Common Units acquired
\nupon exercise of a Navigant <\/p>\n
39<\/p>\n
Option without regard to any restrictions on transfer contained in Article 10 of
\nthis Agreement. Any Navigant Options which are transferred to Navigant Service
\nPerformers shall be reflected in a Unit Option Agreement substantially in the
\nform attached as Exhibit 11.2(b). Persons who acquire Common Units pursuant to
\nthe exercise of a Navigant Option shall execute a Unit Restriction Agreement in
\nsubstantially the form attached as Exhibit A to the Unit Option Agreement
\nattached as Exhibit 11.2(b).<\/p>\n
11.3 Conversion of Preferred Units to Common Units. At the election of
\n ———————————————
\nthe Holders upon ten (10) days advance written notice to the Company, at any
\ntime prior to the earlier of: (i) the expiration of the Preferred-to-Common
\nConversion Period (defined in Section 10.5(c))or (ii) the dissolution of the
\nCompany, each Preferred Unit may be converted into that number of Common Units
\nwhich is equal to the sum of the following (x) 10, plus (y) the Accretion Amount
\nwith respect to each such Preferred Unit divided by 125. Upon the conversion of
\nthe Preferred Units to Common Units, the Gross Asset Values of the Company
\nassets shall be adjusted to their respective fair market values as determined by
\nthe Manager in its reasonable discretion. Any Profit or Loss arising from such
\nadjustment shall be allocated to the Common Units in a manner to cause the
\ncapital account balance attributable to each Common Unit to be Proportionate to,
\nor as close as possible to Proportionate, to each other Common Unit (i.e.,
\n —-
\ndetermined without regard to the portion of an Equity Owner’s Capital Account
\nwhich is determined with reference to such Equity Owner’s Preferred Units).<\/p>\n
11.4 Issuance of Common Units (and Options to Acquire Common Units) to
\n —————————————————————–
\nEmployees; Dilution.
\n——————- <\/p>\n
(a) Navigant may cause the Company to issue up to 115,000 Common
\nUnits (or options to purchase Common Units) to any one or more Company employees
\nor independent contractors, or to the employees or independent contractors of
\nany Entity in which not less than 80% of the interests in profits and losses are
\ndirectly or indirectly owned by Company (“Company Subsidiary”), under the terms
\nof any agreement between the Company and\/or Company Subsidiary and an employee
\nor pursuant to any employee benefit plan of the Company whether qualified or
\nnonqualified (such agreement or plan shall be hereafter collectively referred to
\nas a “Plan”) which is approved by the Manager. Common Units issued pursuant to
\nSection 11.2 shall not be considered Units issued pursuant to this Section 11.4.<\/p>\n
(b) Except as provided in Section 11.4(c), in the event that the
\nCompany issues Common Units pursuant to Section 11.4(a), including the exercise
\nof options issued pursuant to Section 11.4(a):<\/p>\n
(1) The number of outstanding Common Units owned by the
\n Och-Ziff Partners immediately prior to such issuance shall not be reduced
\n as a result of such issuance, and<\/p>\n
(2) The number of Common Units owned by Navigant shall be
\n reduced by the number of Common Units issued pursuant to Section 11.4(a).<\/p>\n
40<\/p>\n
Units described in this Section 11.4(b) shall be referred to as Navigant
\nDilutive Units.<\/p>\n
(c) The Common Units of all Equity Owners and the holders of
\noptions to acquire Common Units will be subject to dilution, Proportionately, in
\nthe event that Common Units (or options to acquire Common Units) are issued to
\nemployees or independent contractors of businesses or Entities acquired directly
\nor indirectly by the Company after the Effective Date. Units described in this
\nSection 11.4(c) shall be referred to as “Proportionately Dilutive Units”).<\/p>\n
(d) If any of the Navigant Dilutive Units or any options to acquire
\nNavigant Dilutive Units are forfeited by one or more holders (or their
\nsuccessors), then notwithstanding anything in this Agreement, such Navigant
\nDilutive Units or options to acquire Navigant Dilutive Units shall be forfeited
\nto Navigant (and not to the Company). Navigant may purchase from a Navigant
\nService Performer (or his or her successor) Navigant Dilutive Units or any
\noptions to acquire Navigant Dilutive Units without regard to any restrictions on
\ntransfer contained in Article 10 of this Agreement. Notwithstanding anything to
\nthe contrary in Section 10.2 and 10.3, Navigant Dilutive Units shall be subject
\nto transfer restrictions contain in a Unit Restriction Agreement substantially
\nin the form attached as Exhibit 11.4(d).<\/p>\n
(e) If any Proportionately Dilutive Units or any options to acquire
\nProportionately Dilutive Units are forfeited by one or more holders (or their
\nsuccessors), then notwithstanding anything in this Agreement, such
\nProportionately Dilutive Units or options to acquire Proportionately Dilutive
\nUnits shall be forfeited to the Company (and not directly to a Member).
\nNotwithstanding anything to the contrary in Section 10.2 and 10.3 of this
\nAgreement, Proportionately Dilutive Units shall be subject to transfer
\nrestrictions contained in a Unit Restriction Agreement substantially in the form
\nattached as Exhibit 11.4(e).<\/p>\n
(f) Upon issuance of any Units pursuant to this Section 11.4, the
\nGross Asset Values of the Company assets shall be adjusted to their respective
\nfair market values as determined by the Manager in its reasonable discretion.
\nAny Profit or Loss arising from such adjustment shall be allocated to the Common
\nUnits in a manner to cause the capital account balance attributable to each
\nCommon Unit to be Proportionate to, or as close as possible to Proportionate, to
\neach other Common Unit (i.e., determined without regard to the portion of an
\nEquity Owner’s Capital Account which is determined with reference to such Equity
\nOwner’s Preferred Units).<\/p>\n
11.5 Conversion of Common Units Upon Reorganization. Notwithstanding
\n ———————————————-
\nanything to the contrary in this Agreement: (i) in the event that the Company
\nundergoes a Reorganization (“Successor Corporation”), each Common Unit shall be
\nconverted to the same number of common shares in the resulting corporation
\n(“Successor Corporation”) as is each and every other Common Unit, and (ii) each
\noption to acquire Common Units in the Company, shall, if not exercised prior to
\nsuch Reorganization, be converted to an option to acquire the same number of
\ncommon shares of the Successor <\/p>\n
41<\/p>\n
Corporation that would have been issued to such option holder if such option had
\nbeen converted to Common Units immediately prior to the Reorganization, and the
\nexercise price of such options shall be adjusted accordingly to reflect the
\nReorganization.<\/p>\n
11.6 Part Year Allocations With Respect to New Members. No new Equity
\n ————————————————-
\nOwners shall be entitled to any retroactive allocation of losses, income or
\nexpense deductions incurred by the Company. In accordance with the provisions
\nof Section 706(d) of the Code and the Regulations promulgated thereunder, the
\nManager may, at its option, at the time a Member is admitted, close the Company
\nbooks (as though the Company’s Fiscal Year had ended) or make pro rata
\nallocations of loss, income and expense deductions to a new Equity Owner for
\nthat portion of the Company’s Fiscal Year in which an Equity Owner became an
\nEquity Owner.<\/p>\n
Article 12.
\n DISSOLUTION AND TERMINATION<\/p>\n
12.1 Dissolution.
\n ———– <\/p>\n
(a) The Company shall be dissolved only upon the occurrence of any
\nof the following events:<\/p>\n
(1) Prior to the third anniversary of the Effective Date, by
\n the unanimous written agreement of Members, provided, however, that any
\n dissolution which is caused by a Reorganization may be approved by
\n Members holding a Two-Thirds Interest;<\/p>\n
(2) Subsequent to the third anniversary of the Effective
\n Date, by one or more Members holding a Two-Thirds Interest.<\/p>\n
Notwithstanding anything to the contrary in the Act, the Company shall not be
\ndissolved upon the death, retirement, resignation, expulsion, bankruptcy or
\ndissolution of an Equity Owner.<\/p>\n
(b) As soon as possible following the occurrence of any of the
\nevents specified in Section 12.1(a) effecting the dissolution of the Company,
\nthe appropriate representative of the Company shall execute all documents
\nrequired by the Act at the time of dissolution and file or record such
\nstatements with the appropriate officials.<\/p>\n
12.2 Effect of Dissolution. Upon dissolution, the Company shall cease
\n ———————
\nto carry on its business, except insofar as may be necessary for the winding up
\nof its business, but its separate existence shall continue until winding up and
\nDistribution is completed.<\/p>\n
12.3 Winding Up, Liquidation and Distribution of Assets.
\n ————————————————– <\/p>\n
(a) Upon dissolution, an accounting shall be made by the Company’s
\nManager of the accounts of the Company and of the Company’s assets, liabilities
\nand <\/p>\n
42<\/p>\n
operations, from the date of the last previous accounting until the date of
\ndissolution. The Manager shall immediately proceed to wind up the affairs of the
\nCompany.<\/p>\n
(b) If the Company is dissolved, other than a dissolution which is
\ncaused by a Reorganization, and its affairs are to be wound up, the Manager
\nshall:<\/p>\n
(1) Sell or otherwise liquidate all of the Company’s assets
\n as promptly as practicable (except to the extent that particular assets
\n are to be distributed to Members as provided in (4) below and except to
\n the extent that the Manager may determine to Distribute in kind any
\n assets to one or more Equity Owners);<\/p>\n
(2) Allocate any Profit or Loss resulting from such Sales to
\n the Equity Owners’ Capital Accounts in accordance with Article 9 hereof,
\n provided however, that any such Profit or Loss (including profit or loss
\n ——– ——-
\n pursuant to Section 12.3(b)(5) below), shall first be allocated to the
\n Equity Owners so as to cause the Capital Account of each Equity Owner
\n (after taking into account any adjustment pursuant to this Agreement in
\n connection with any redemption and\/or sale of the Preferred Units
\n pursuant to Section 10.5) to be Proportionate to the Capital Account of
\n each other Equity Owner on the basis of the number of Common Units held
\n by each respective Equity Owner;<\/p>\n
(3) Discharge all liabilities of the Company, including
\n liabilities to Equity Owners who are also creditors, to the extent
\n otherwise permitted by law, other than liabilities to Equity Owners for
\n Distributions and the return of capital, and establish such Reserves as
\n may be reasonably necessary to provide for contingent liabilities of the
\n Company (for purposes of determining the Capital Accounts of the Equity
\n Owners, the amounts of such Reserves shall be deemed to be an expense of
\n the Company);<\/p>\n
(4) Subject to Section 9.4(b), Distribute the remaining
\n assets to the Equity Owners in accordance with their positive Capital
\n Account balances:<\/p>\n
(i) first, distribute to each of the Initial Members
\n an undivided one-half interest, or, pursuant to subsection (c) below,
\n distribute to Navigant the entire interest, as applicable, in all
\n Intellectual Property Rights of the Company. NII and its Affiliates, and
\n each Initial Member, as applicable, shall be entitled to use such
\n Intellectual Property distributed pursuant to this subsection (i) in any
\n manner without notice or accounting to the other;<\/p>\n
(ii) second, distribute in kind any other assets, if
\n any, which the Manager determines are to be distributed to Equity Owners.<\/p>\n
(5) If any assets of the Company are to be distributed in
\n kind, the net fair market value of such assets as of the date of
\n dissolution shall be determined by an independent appraiser selected by
\n the Manager, or by<\/p>\n
43<\/p>\n
Agreement of the Members holding not less than 90 percent of the Voting
\n Interests. Such assets shall be deemed to have been sold as of the date
\n of dissolution for their fair market value, and the Capital Accounts of
\n the Equity Owners shall be adjusted pursuant to the provisions of Article
\n 9 and Section 8.3 of this Agreement to reflect such deemed Sale; and<\/p>\n
(6) The positive balance (if any) of each Equity Owner’s
\n Capital Account (as determined after taking into account all Capital
\n Account adjustments for the Company’s Fiscal Year during which the
\n liquidation occurs) shall be Distributed to the Equity Owners, either in
\n cash or in kind, as determined by the Manager, with any assets
\n Distributed in kind being valued for this purpose at their fair market
\n value. Any such Distributions to the Equity Owners in respect of their
\n Capital Accounts shall be made in accordance with the time requirements
\n set forth in Section 1.704-1(b)(2)(ii)(b)(2) of the Regulations.<\/p>\n
(7) Any Intellectual Property Rights of a Member or its
\n Affiliates immediately prior to dissolution or termination of the Company
\n (“Member IP”) shall be retained by the Member and any licenses or other
\n rights granted to the Company with respect to such Member IP shall
\n terminate at the time the Company is terminated or dissolved.<\/p>\n
(c) Upon dissolution of the Company, other than a dissolution which
\nis caused by a Reorganization, Navigant shall, at Navigant’s option, have the
\nfirst right to require the Company to transfer solely to Navigant (or its
\ndesignee) any or all Intellectual Property Rights of the Company (other than
\nMember IP, which shall be governed exclusively by subsection (b)(7) above) in
\nconsideration either for the payment by Navigant to the Company of an amount of
\ncash equal to the fair market value of such Intellectual Property Rights
\n(determined by a mutual agreement of the Members or if they cannot agree, by
\nindependent appraisal) or for a reduction in Navigant’s Capital Account in an
\namount equal to such fair market value. If Navigant does not exercise its right
\nto acquire any Intellectual Property Rights of the Company, then each Initial
\nMember shall receive an undivided one-half interest in such Intellectual
\nProperty Rights as set forth in subsection (b)(4)(i) above. The cost of any
\nappraisal(s) shall be borne by the Company.<\/p>\n
(d) Notwithstanding anything to the contrary in this Agreement,
\nupon a liquidation within the meaning of Section 1.704-1(b)(2)(ii)(g) of the
\nRegulations, if any Equity Owner has a Deficit Capital Account (after giving
\neffect to all contributions, Distributions, allocations and other Capital
\nAccount adjustments for all Fiscal Years, including the year during which such
\nliquidation occurs), such Equity Owner shall have no obligation to make any
\nCapital Contribution, and the negative balance of such Member’s Capital Account
\nshall not be considered a debt owed by such Equity Owner to the Company or to
\nany other Person for any purpose whatsoever.<\/p>\n
(e) Upon completion of the winding up, liquidation and
\nDistribution of the assets, the Company shall be deemed terminated.<\/p>\n
44<\/p>\n
(f) The Manager shall comply with any applicable requirements of
\napplicable law pertaining to the winding up of the affairs of the Company and
\nthe final Distribution of its assets.<\/p>\n
12.4 Filing or Recording Statements. Upon the conclusion of winding up,
\n ——————————
\nthe appropriate representative of the Company shall execute all documents
\nrequired by the Act at the time of completion of winding up and file or record
\nsuch statements with the appropriate officials.<\/p>\n
12.5 Return of Contribution Nonrecourse to Other Equity Owners. Except
\n ———————————————————
\nas provided by law and Subject to Section 10.5, upon dissolution, each Equity
\nOwner shall look solely to the assets of the Company for the return of its
\nCapital Contribution. If the Company property remaining after the payment or
\ndischarge of the debts and liabilities of the Company is insufficient to return
\nthe cash contribution of one or more Equity Owners, such Equity Owners shall
\nhave no recourse against any other Equity Owner.<\/p>\n
Article 13.
\n MISCELLANEOUS PROVISIONS<\/p>\n
13.1 Notices. Any notice, demand, or communication required or
\n ——-
\npermitted to be given by any provision of this Agreement shall be deemed to have
\nbeen sufficiently given or served if sent by telecopy or facsimile transmission,
\ndelivered by messenger or overnight courier, or mailed, certified first class
\nmail, postage prepaid, return receipt requested, and addressed or sent to the
\nEquity Owner’s and\/or Company’s address, as set forth on Exhibit 13.1. Such
\nnotice shall be effective: (a) if delivered by messenger or by overnight
\ncourier, upon actual receipt (or if the date of actual receipt is not a business
\nday, upon the next business day); (b) if sent by telecopy or facsimile
\ntransmission, upon confirmation of receipt (or if the date of such confirmation
\nof receipt is not a business day, upon the next business day); or (c) if mailed,
\nupon the earlier of three (3) business days after deposit in the mail and the
\ndelivery as shown by return receipt therefor. Any Equity Owner or the Company
\nmay change its address by giving notice in writing to the Company and the other
\nEquity Owners of its new address.<\/p>\n
13.2 Books of Account and Records. Proper and complete records and
\n —————————-
\nbooks of account shall be kept or shall be caused to be kept by the Manager, in
\nwhich shall be entered fully and accurately all transactions and other matters
\nrelating to the Company’s business in such detail and completeness as is
\ncustomary and usual for businesses of the type engaged in by the Company. Such
\nbooks and records shall be maintained as provided in Section 9.10. The books
\nand records shall at all times be maintained at the principal executive office
\nof the Company and shall be open to the reasonable inspection and examination of
\nthe Equity Owners or their duly authorized representatives during reasonable
\nbusiness hours.<\/p>\n
13.3 Application of State Law. This Agreement, and the application and
\n ————————
\ninterpretation hereof, shall be governed exclusively by its terms and by the
\nlaws of the State, and specifically the Act.<\/p>\n
45<\/p>\n
13.4 Waiver of Action for Partition. Each Equity Owner irrevocably
\n ——————————
\nwaives during the term of the Company any right that it may have to maintain any
\naction for partition with respect to the Company Property.<\/p>\n
13.5 Amendments. This Agreement may be amended only with the written
\n ———-
\nagreement of Members holding not less than ninety percent (90%) of the Voting
\nInterests. No amendment which has been agreed to in accordance with the
\npreceding sentence shall be effective to the extent that such amendment has a
\nMaterial Adverse Effect upon one or more Equity Owners who did not agree in
\nwriting to such amendment. For purposes of the preceding sentence, “Material
\nAdverse Effect” shall mean any modification of the relative rights to
\nDistributions by the Company (including allocations of Profits and Losses which
\nare reflected in the Capital Accounts). Without limiting the generality of the
\nforegoing: an amendment which has a proportionate effect on all Equity Owners
\n(or in the case of a redemption of Ownership Interests or issuance of additional
\nOwnership Interests, an amendment which has a proportionate effect on all Equity
\nOwners immediately after such redemption or issuance) with respect to their
\nrights to Distributions shall be deemed to not have a Material Adverse Effect on
\nEquity Owners who do not agree in writing to such amendment. Notwithstanding
\nthe foregoing provisions of this Section 13.5, no amendment shall be made to a
\nprovision herein which requires the vote, approval or consent of the Members
\nholding more than ninety percent (90%) of the Voting Interests, unless Members
\nholding such greater Voting Interests approve of such amendment.<\/p>\n
13.6 Execution of Additional Instruments. Each Equity Owner hereby
\n ———————————–
\nagrees to execute such other and further statements of interest and holdings,
\ndesignations, powers of attorney and other instruments necessary to comply with
\nany laws, rules or regulations.<\/p>\n
13.7 Construction. Whenever the singular number is used in this
\n ————
\nAgreement and when required by the context, the same shall include the plural
\nand vice versa, and the masculine gender shall include the feminine and neuter
\ngenders and vice versa.<\/p>\n
13.8 Effect of Inconsistencies with the Act. It is the express
\n ————————————–
\nintention of the Equity Owners and the Company that this Agreement shall be the
\nsole source of agreement among them, and, except to the extent that a provision
\nof this Agreement expressly incorporates federal income tax rules by reference
\nto sections of the Code or Regulations or is expressly prohibited or ineffective
\nunder the Act, this Agreement shall govern, even when inconsistent with, or
\ndifferent than, the provisions of the Act or any other law or rule. In the event
\nthat the Act is subsequently amended or interpreted in such a way to make valid
\nany provision of this Agreement that was formerly invalid, such provision shall
\nbe considered to be valid from the effective date of such interpretation or
\namendment. The Members and the Company hereby agree that the duties and
\nobligations imposed on the Members as such shall be those set forth in this
\nAgreement, which is intended to govern the relationship among the Company and
\nthe Equity Owners, notwithstanding any provision of the Act or common law to the
\ncontrary.<\/p>\n
46<\/p>\n
13.9 Waivers. The failure of any party to seek redress for violation
\n ——-
\nof or to insist upon the strict performance of any covenant or condition of this
\nAgreement shall not prevent a subsequent act, which would have originally
\nconstituted a violation, from having the effect of an original violation.<\/p>\n
13.10 Rights and Remedies Cumulative. The rights and remedies provided
\n ——————————
\nby this Agreement are cumulative and the use of any one right or remedy by any
\nparty shall not preclude or waive the right to use any or all other remedies.
\nSaid rights and remedies are given in addition to any other rights the parties
\nmay have by law, statute, ordinance or otherwise.<\/p>\n
13.11 Attorneys’ Fees. Should the Company or any party to this
\n —————
\nAgreement reasonably retain counsel for the purpose of enforcing or preventing
\nbreach of any provision of this Agreement, including but not limited to
\ninstituting any action or proceeding to enforce any provision of this Agreement,
\nfor damages by reason of any alleged breach of any provision of this Agreement,
\nfor damages by reason of any alleged breach of any provision of this Agreement,
\nfor a declaration of such party’s rights or obligations under this Agreement or
\nfor any other judicial remedy, then, if the matter settled by judicial
\ndetermination or arbitration, the prevailing party (whether at trial, on appeal,
\nor arbitration) shall be entitled, in addition to such other relief as may be
\ngranted, to be reimbursed by the losing party for all costs and expenses
\nincurred, including, but not limited to, reasonable attorneys’ fees and costs
\nfor services rendered to the prevailing party.<\/p>\n
13.12 Severability. If any provision of this Agreement or the
\n ————
\napplication thereof to any person or circumstance shall be invalid, illegal or
\nunenforceable to any extent, the remainder of this Agreement and the application
\nthereof shall not be affected and shall be enforceable to the fullest extent
\npermitted by law. Without limiting the generality of the foregoing sentence, to
\nthe extent that any provision of this Agreement is prohibited or ineffective
\nunder the Act or common law, this Agreement shall be considered amended to the
\nsmallest degree possible in order to make the Agreement effective under the Act
\nor common law.<\/p>\n
13.13 Heirs, Successors and Assigns. Each and all of the covenants,
\n —————————–
\nterms, provisions and agreements herein contained shall be binding upon and
\ninure to the benefit of the parties hereto and, to the extent permitted by this
\nAgreement, their respective heirs, legal representatives, successors and
\nassigns.<\/p>\n
13.14 Creditors. None of the provisions of this Agreement shall be for
\n ———
\nthe benefit of or enforceable by any creditors of the Company.<\/p>\n
13.15 Counterparts. This Agreement may be executed in counterparts,
\n ————
\neach of which shall be deemed an original but all of which shall constitute one
\nand the same instrument.<\/p>\n
47<\/p>\n
13.16 Rule Against Perpetuities. The parties hereto intend that the
\n ————————-
\nRule Against Perpetuities (and any similar rule of law) not be applicable to any
\nprovisions of this Agreement. However, notwithstanding anything to the contrary
\nin this Agreement, if any provision in this Agreement would be invalid or
\nunenforceable because of the Rule Against Perpetuities or any similar rule of
\nlaw but for this Section 13.16, the parties hereto hereby agree that any future
\ninterest which is created pursuant to said provision shall cease if it is not
\nvested within twenty-one (21) years after the death of the survivor of the group
\ncomposed of the undersigned individuals and their issue who are living on the
\neffective date of this Agreement.<\/p>\n
13.17 Power of Attorney. Each Equity Owner hereby irrevocably makes,
\n —————–
\nconstitutes and appoints the Manager, with full power of substitution, so long
\nas such Manager are acting in such a capacity (and any successor Manager thereof
\nso long as such Manager is acting in such capacity), its true and lawful
\nattorney, in such Equity Owner’s name, place and stead (it is expressly
\nunderstood and intended that the grant of such power of attorney is coupled with
\nan interest) to make, execute, sign, acknowledge, swear and file with respect to
\nthe Company:<\/p>\n
(a) all documents which the Manager deems necessary or desirable to
\neffect the dissolution and termination of the Company;<\/p>\n
(b) all such other instruments, documents and certificates which
\nmay from time to time be required by the laws of the State or any other
\njurisdiction in which the Company shall determine to do business, or any
\npolitical subdivision or agency thereof, to effectuate, implement, continue and
\ndefend the valid existence of the Company; and<\/p>\n
(c) all instruments, documents and certificates which the Manager
\ndeems necessary or desirable in connection with a Reorganization which has been
\nauthorized in accordance with the terms of this Agreement.<\/p>\n
This power of attorney shall not be affected by and shall survive the
\nbankruptcy, insolvency, death, incompetency, or dissolution of an Equity Owner
\nand shall survive the delivery of any assignment by the Equity Owner of the
\nwhole or any portion of its Ownership Interest. Each Equity Owner hereby
\nreleases each Manager from any liability or claim in connection with the
\nexercise of the authority granted pursuant to this power of attorney, and in
\nconnection with any other action taken by such Manager pursuant to which such
\nManager purports to act as the attorney-in-fact for one or more Equity Owners,
\nif the Manager believed in good faith that such action taken was consistent with
\nthe authority granted to it pursuant to this Section 13.17.<\/p>\n
13.18 Investment Representations. The undersigned Equity Owners, if
\n ————————–
\nany, understand (1) that the Ownership Interests evidenced by this Agreement
\nhave not been registered under the Securities Act of 1933, the State Securities
\nAct or any other state securities laws (the “Securities Acts”) because the
\nCompany is issuing these Ownership Interests in reliance upon the exemptions
\nfrom the registration requirements of the <\/p>\n
48<\/p>\n
Securities Acts providing for issuance of securities not involving a public
\noffering, (2) that the Company has relied upon the fact that the Ownership
\nInterests are to be held by each Equity Owner for investment, and (3) that
\nexemption from registrations under the Securities Acts would not be available if
\nthe Ownership Interests were acquired by an Equity Owner with a view to
\nDistribution.<\/p>\n
Accordingly, each Equity Owner hereby confirms to the Company that such
\nEquity Owner is acquiring the Ownership Interests for such own Equity Owner’s
\naccount, for investment and not with a view to the resale or Distribution
\nthereof. Each Equity Owner agrees not to Sell or offer for Sale any portion of
\nthe Ownership Interests unless there is an effective registration or other
\nqualification relating thereto under the Securities Act of 1933 and under any
\napplicable state securities laws or unless the holder of Ownership Interests
\ndelivers to the Company an opinion of counsel, satisfactory to the Company, that
\nsuch registration or other qualification under such Act and applicable state
\nsecurities laws is not required in connection with such offer or Sale. Each
\nEquity Owner understands that the Company is under no obligation to register the
\nOwnership Interests or to assist such Equity Owner in complying with any
\nexemption from registration under the Securities Act if such Equity Owner should
\nat a later date, wish to dispose of the Ownership Interest. Furthermore, each
\nMember realizes that the Ownership Interests are unlikely to qualify for
\ndisposition under Rule 144 of the Securities and Exchange Commission unless such
\nEquity Owner is not an “affiliate” of the Company and the Ownership Interest has
\nbeen beneficially owned and fully paid for by such Equity Owner for at least
\nthree years.<\/p>\n
Each Equity Owner, prior to acquiring an Ownership Interest, has made an
\ninvestigation of the Company and its business, and the Company has made
\navailable to each Equity Owner, all information with respect to the Company
\nwhich such Equity Owner needs to make an informed decision to acquire the
\nOwnership Interest. Each Equity Owner has relied on its own tax and legal
\nadvisors in connection with such Equity Owner’s decision to acquire an Ownership
\nInterest. Each Equity Owner considers himself, herself or itself to be a person
\npossessing experience and sophistication as an investor which are adequate for
\nthe evaluation of the merits and risks of such Equity Owner’s investment in the
\nOwnership Interest.<\/p>\n
13.19 Representations and Warranties.
\n —————————— <\/p>\n
(a) In General. As of the date hereof, each of the Equity Owners
\n ———-
\nhereby makes each of the representations and warranties applicable to such
\nEquity Owner as set forth in Section 13.19(b) hereof, and such warranties and
\nrepresentations shall survive the execution of this Agreement.<\/p>\n
(b) Representations and Warranties. Each Member hereby
\n ——————————
\nrepresents and warrants that:<\/p>\n
(1) Due Incorporation or Formation; Authorization of
\n ————————————————
\n Agreement. Such Equity Owner is a corporation duly organized or a
\n ———
\n partnership <\/p>\n
49<\/p>\n
or limited liability company duly formed, validly existing, and in good
\n standing under the laws of the jurisdiction of its incorporation or
\n formation and has the corporate, partnership or limited liability company
\n power and authority to own its property and carry on its business as owned
\n and carried on at the date hereof and as contemplated hereby. Such Equity
\n Owner is duly licensed or qualified to do business and in good standing in
\n each of the jurisdictions in which the failure to be so licensed or
\n qualified would have a material adverse effect on its financial condition
\n or its ability to perform its obligations hereunder. Such Equity Owner has
\n the corporate, partnership or limited liability company power and authority
\n to execute and deliver this Agreement and to perform its obligations
\n hereunder and the execution, delivery, and performance of this Agreement
\n has been duly authorized by all necessary corporate, partnership or limited
\n liability company action. This Agreement constitutes the legal, valid, and
\n binding obligation of such Equity Owner.<\/p>\n
(2) No Conflict with Restrictions; No Default. Neither
\n —————————————–
\n the execution, delivery, and performance of this Agreement nor the
\n consummation by such Equity Owner of the transactions contemplated hereby
\n (1) will conflict with, violate, or result in a breach of any of the terms,
\n conditions, or provisions of any law, regulation, order, writ, injunction,
\n decree, determination, or award of any court, any governmental department,
\n board, agency, or instrumentality, domestic or foreign, or any arbitrator,
\n applicable to such Equity Owner or any of its Affiliates, (2) will conflict
\n with, violate, result in a breach of, or constitute a default under any of
\n the terms, conditions, or provisions of the articles of incorporation,
\n bylaws, partnership agreement, limited liability company agreement or
\n operating agreement of such Equity Owner or any of its Affiliates or of any
\n material agreement or instrument to which such Equity Owner or any of its
\n Affiliates is a party or by which such Equity Owner, or any of its
\n Affiliates is or may be bound or to which any of its material properties or
\n assets is subject, (3) will conflict with, violate, result in a breach of,
\n constitute a default under (whether with notice or lapse of time or both),
\n accelerate or permit the acceleration of the performance required by, give
\n to others any material interests or rights, or require any consent,
\n authorization, or approval under any indenture, mortgage, lease agreement,
\n or instrument to which such Equity Owner or any of its Affiliates is a
\n party or by which such Equity Owner or any of its Affiliates is or may be
\n bound, or (4) will result in the creation or imposition of any lien upon
\n any of the material properties or assets of such Equity Owner or any of its
\n Affiliates.<\/p>\n
(3) Government Authorizations. Any registration,
\n ————————-
\n declaration, or filing with, or consent, approval, license, permit, or
\n other authorization or order by, any government or regulatory authority,
\n domestic or foreign, that is required in connection with the valid
\n execution, delivery, acceptance, and performance by such Equity Owner under
\n this Agreement or the consummation by such Equity Owner of any transaction
\n contemplated hereby has been completed, made, or obtained on or before the
\n effective date of this Agreement.<\/p>\n
50<\/p>\n
(4) Litigation. There are no actions, suits, proceedings,
\n ———-
\n or investigations pending or, to the knowledge of such Equity Owner or any
\n of its Affiliates, threatened against or affecting such Equity Owner or any
\n of its Affiliates or any of their properties, assets, or businesses in any
\n court or before or by any governmental department, board, agency, or
\n instrumentality, domestic or foreign, or any arbitrator which could, if
\n adversely determined (or, in the case of an investigation could lead to any
\n action, suit, or proceeding, which if adversely determined could)
\n reasonably be expected to materially impair such Equity Owner’s ability to
\n perform its obligations under this Agreement or to have a material adverse
\n effect on the consolidated financial condition of such member; and such
\n Equity Owner or any of its Affiliates has not received any currently
\n effective notice of any default, and such Equity Owner or any of its
\n Affiliates is not in default, under any applicable order, writ, injunction,
\n decree, permit, determination, or award of any court, any governmental
\n department, board, agency, or instrumentality, domestic or foreign, or any
\n arbitrator which could reasonably be expected to materially impair such
\n Equity Owner’s ability to perform its obligations under this Agreement or
\n to have a material adverse effect on the consolidated financial condition
\n of such Equity Owner.<\/p>\n
(5) Investment Company Act; Public Utility Holding Company
\n ——————————————————
\n Act. Neither such Equity Owner nor any of its Affiliates is, nor will the
\n —
\n Company as a result of such Equity Owner holding an Ownership Interest be,
\n an “investment company” as defined in, or subject to regulation under, the
\n Investment Company Act of 1940. Neither such Equity Owner nor any of its
\n Affiliates is, nor will the Company as a result of such Equity Owner
\n holding an Ownership Interest be, a “holding company,” “an affiliate of a
\n holding company,” or a “subsidiary of a holding company,” as defined in, or
\n subject to regulation under, the Public Utility Holding Company Act of
\n 1935.<\/p>\n
13.20 ERISA Representation and Covenant. Och-Ziff Partners hereby
\n ———————————
\nrepresents, warrants and covenants that (a) its investment in the Company does
\nnot create “plan assets” under Department of Labor Regulation 2510.3-101 and (b)
\nOch-Ziff Partners will not permit any investment or take any action in the
\nfuture that would create “plan assets.”<\/p>\n
13.21 Confidential Information. All Confidential Information of an
\n ————————
\nEquity Owner shall remain the property of such Equity Owner. Except as set
\nforth herein or in the License Agreement, the Company shall not, at any time,
\nuse (except in the business of the Company) or disclose to any Person any
\nConfidential Information of an Equity Owner.<\/p>\n
(a) Except as set forth herein, no Equity Owner shall prior to the
\ncompletion of the winding up and liquidation of the Company (the “Liquidation”)
\nor for a period of two years thereafter, use or disclose to any Person (except
\nin the business of the Company) any Confidential Information of the Company.
\nThe foregoing limitation shall not apply to the use or disclosure by Navigant of
\nany Intellectual Property Rights of <\/p>\n
51<\/p>\n
Navigant, including any Intellectual Property Rights obtained by Navigant from
\nthe Company pursuant to this Agreement or the License Agreement.<\/p>\n
(b) Notwithstanding anything to the contrary in this Agreement, an
\nEquity Owner may disclose Confidential Information (i) with the prior written
\nconsent of the other Equity Owner; (ii) to the extent necessary to comply with
\napplicable law, or an order or information request of any civil or judicial
\nauthority, in which event the party making such disclosure shall so notify the
\nother parties as promptly as practicable and if possible, prior to making such
\ndisclosure shall seek confidential treatment of such information; (iii) to its
\nauditors, attorneys or other professional advisors; provided that such Equity
\n ——–
\nOwner shall be liable for any breach of this Section caused by such auditors,
\nattorneys or professional advisors; or (iv) in connection with the enforcement
\nof such Equity Owner’s rights under this Agreement or any agreement which is
\nexpressly contemplated herein.<\/p>\n
(c) Upon request, the Company and each of the Equity Owners shall
\nreturn to the owner of any Confidential Information all copies, transcriptions
\nof other reproductions of, and any notes relating to, such owner’s Confidential
\nInformation. The parties acknowledge and agree that each of the parties would
\nbe irreparably harmed if any of its Confidential Information were to be used or
\ndisclosed in violation of this Agreement, and further agree that each of the
\nparties shall have the right to seek and obtain injunctive relief upon any
\nviolation of this Section 13.20, in addition to all of the rights and remedies
\navailable at law or in equity.<\/p>\n
(d) The terms of confidentiality under this Agreement shall not be
\nconstrued to limit any Equity Owner’s (or its Affiliates’) rights to
\nindependently develop or acquire services or products without use of another
\nparty’s Confidential Information. Nothing in this Section 13.20 shall be deemed
\nto grant to either Equity Owner a license under any other Equity Owner’s
\nIntellectual Property Rights.<\/p>\n
52<\/p>\n
CERTIFICATE<\/p>\n
IN WITNESS WHEREOF, the parties hereto have hereunto executed this Agreement
\nas of the Effective Date.<\/p>\n
COMPANY:
\n ——–<\/p>\n
NAVIGANTVACATIONS.COM, LLC<\/p>\n
By:__________________________________
\n Title:___________________________
\n NavigantVacations.com Holdings, inc.
\n Its: Manager<\/p>\n
MEMBERS:
\n ——–<\/p>\n
NAVIGANTVACATIONS.COM HOLDINGS, INC.<\/p>\n
By:____________________________________
\n Name:__________________________________
\n Title:_________________________________<\/p>\n
OZ DOMESTIC PARTNERS, L.P.<\/p>\n
By:____________________________________
\n Name:__________________________________
\n Title:_________________________________<\/p>\n
OZ SPCI, LTD.<\/p>\n
By:____________________________________
\n Name:__________________________________
\n Title:_________________________________<\/p>\n
53<\/p>\n
NAVIGANT INTERNATIONAL, INC.<\/p>\n
By:______________________________
\nName:____________________________
\nTitle:___________________________<\/p>\n
54<\/p>\n
EXHIBIT 3.1<\/p>\n
NAVIGANTVACATIONS.COM<\/p>\n
BUSINESS PLAN, JULY 1999<\/p>\n
*<\/p>\n
*This confidential information has been omitted and filed separately with the
\nSecurities and Exchange Commission pursuant to Rule 24b-2 of the Securities and
\nExchange Act of 1934, as amended.<\/p>\n
Exhibit 5.3(j)<\/p>\n
License Agreement<\/p>\n
This License Agreement is made this 13\/th\/ day of October, 1999, by and
\nbetween Navigant International, Inc., a Delaware corporation (“Navigant”), and
\nNavigantVacations.com, LLC, a Delaware limited liability company (the
\n“Company”).<\/p>\n
Recitals<\/p>\n
A. The Company has been formed for the purpose of developing and\/or
\nacquiring and operating an electronic consumer leisure travel business (the
\n“Business”), as described in the Company’s initial business plan, which is
\nattached as Exhibit 3.1 to the LLC Agreement (as defined below).<\/p>\n
B. Navigant desires to grant to the Company a non-exclusive license
\n(without the right to sublicense) to use certain of its intellectual property,
\nas described in this Agreement, in the conduct of the Business, subject to the
\nterms and conditions set forth in this Agreement.<\/p>\n
C. The Company desires to accept such license from Navigant.<\/p>\n
Agreements<\/p>\n
NOW, THEREFORE, in consideration of the mutual promises contained herein
\nand other good and valuable consideration, the receipt and adequacy of which are
\nhereby acknowledged, Navigant and the Company agree as follows:<\/p>\n
1. Definitions. In addition to certain terms defined elsewhere in this
\n ———–
\nAgreement, when used with initial capital letters, the terms listed below shall
\nhave the following meanings:<\/p>\n
1.1 “Affiliate” means, with respect to Navigant, any other person
\nor entity controlling, controlled by or under common control with Navigant.
\nControl means the possession, directly or indirectly, of the power to direct or
\ncause the direction of the management and policies of an entity, whether through
\nthe ownership of voting securities or voting interests, by contract or
\notherwise.<\/p>\n
1.2 “Company Owned IP” means all Intellectual Property Rights
\nowned by the Company as of the Effective Date or developed or acquired by or on
\nbehalf of the Company and its Affiliates after the Effective Date, but shall not
\nbe deemed to include the Licensed IP or any Enhancements of the Licensed IP.<\/p>\n
1.3 “Effective Date” means the date set forth in the introductory
\nparagraph to this Agreement.<\/p>\n
1.4 “Enhancements” means any and all modifications, updates,
\nenhancements, translations and compilations.<\/p>\n
1.5 “Intellectual Property Rights” means any (i) patents, patent
\napplications, patent disclosures and all related continuation, continuation-in-
\npart, divisional, reissue, reexamination, utility model, certificate of
\ninvention and design patents, design patent applications, design registrations
\nand applications for design registrations, and mask work rights, (ii)
\ntrademarks, tradenames, service marks, trade <\/p>\n
dress, logos, and registrations and applications for registration thereof, (iii)
\ncopyrights and registrations and applications for registration thereof, (iv)
\ntrade secrets and confidential business information (whether patentable or
\nunpatentable and whether or not reduced to practice), know-how, manufacturing
\nand production processes and techniques, research and development information,
\nand copyrightable works, (v) other proprietary rights relating to any of the
\nforegoing, and (vi) copies and tangible embodiments thereof.<\/p>\n
1.6 “Licensed IP” means all Intellectual Property Rights owned by
\nNavigant as of the Effective Date, or developed or acquired by or on behalf of
\nNavigant after the Effective Date, that relate to, or are useful in connection
\nwith the development and operation of, the Business, including the items
\ndescribed on Schedule 1.6 attached hereto, but excluding the Navigant
\n ————
\nTrademarks.<\/p>\n
1.7 “LLC Agreement” means that certain Limited Liability Company
\nAgreement of NavigantVacations.com, LLC, dated effective as of October 13, 1999.<\/p>\n
1.8 “Navigant Trademarks” means the trade names, trademarks and
\nservice marks of Navigant set forth on Schedule 1.8 attached hereto.
\n ———— <\/p>\n
2. Licenses to Company.
\n ——————- <\/p>\n
2.1 Grant of License. Navigant hereby grants to the Company the
\n —————-
\nnon-exclusive, perpetual (except as provided herein), royalty-free right and
\nlicense to use the Licensed IP in connection with the development, marketing,
\nmaintenance, operation and support of the Business (the “License”). The term
\n“use” shall include the right to copy, display and perform the Licensed IP,
\nprepare Enhancements of the Licensed IP, and copy, display and perform such
\nEnhancements of the Licensed IP, provided that any and all Enhancements of the
\nLicensed IP, including but not limited to Enhancements of the Licensed IP
\ndeveloped by a third party on behalf of the Company, shall be the sole property
\nof Navigant. During the term of the License, Company shall have the right to
\nuse, in accordance with the terms of the License and this Agreement, any
\nEnhancement of the Licensed IP that is developed by or on behalf of the Company.<\/p>\n
2.2 Trademark License. Navigant hereby grants to the Company the
\n —————–
\nnon-exclusive, perpetual (except as provided herein), royalty-free right and
\nlicense to use the Navigant Trademarks in connection with the operation of the
\nBusiness (the “Trademark License”), provided that the Company (i) does not
\ncreate a unitary composite mark involving any of the Navigant Trademarks without
\nthe prior written approval of Navigant; (ii) displays symbols and notices
\nprovided by Navigant indicating the trademark status and ownership of the
\nNavigant Trademarks; and (iii) uses the Navigant Trademarks in accordance with
\nreasonable quality control guidelines, if any, provided to the Company in
\nwriting by Navigant.<\/p>\n
(1) Ownership of Navigant Trademarks. The Company
\n ——————————–
\n acknowledges that its utilization of the Navigant Trademarks shall not
\n create in it, nor will it represent that is has, any right, title or
\n interest in or to the Navigant Trademarks, other than as expressly provided
\n in this Agreement. The Company shall not do anything contesting or
\n impairing the Intellectual Property Rights of Navigant in the Navigant
\n Trademarks, including seeking to register <\/p>\n
2<\/p>\n
the Navigant Trademarks as part of a composite trademark, trade name or
\n service mark.<\/p>\n
(2) Infringement Proceedings. The Company shall promptly
\n ————————
\n notify Navigant of any unauthorized use of the Navigant Trademarks of
\n which it has knowledge, and shall provide Navigant with its reasonable
\n cooperation and assistance, at Navigant’s cost, with respect to any
\n proceedings brought by Navigant with respect to such infringement or
\n alleged infringement.<\/p>\n
2.3 No Sublicense. The Company shall not sublicense any of the
\n ————-
\nrights granted pursuant to this Section 2 without Navigant’s prior written
\nconsent.<\/p>\n
2.4 Notice of Enhancements. The Company shall provide prompt
\n ———————-
\nwritten notice to Navigant, and shall provide a copy and all information
\nreasonably requested by Navigant related thereto, of any Enhancement of the
\nLicensed IP developed by or on behalf of the Company.<\/p>\n
2.5 Termination of Licenses. The License and the Trademark License
\n ———————–
\nshall terminate upon any of the following events:<\/p>\n
(1) immediately and without notice upon the dissolution of
\n the Company, other than a dissolution which is caused by a Reorganization
\n (as defined in the LLC Agreement);<\/p>\n
(2) upon written notice to the Company in the event a
\n receiver is appointed for the Company, or the Company makes an assignment
\n for the benefit of creditors, becomes insolvent, or voluntary or
\n involuntary proceedings are instituted by or against such other party under
\n any bankruptcy or insolvency laws and such proceedings are not terminated
\n within 90 days; or<\/p>\n
(3) immediately and without further notice if the Company is
\n in breach of any material provision of this Agreement and does not cure
\n such breach within a period of 30 days after receipt of written notice
\n specifying such breach.<\/p>\n
3. Proprietary Rights. The Company acknowledges that, as between
\n ——————
\nNavigant and Licensee, all right, title and interest in and to, and ownership
\nof, all Intellectual Property Rights in the Licensed IP and any Enhancements
\nthereof or copies thereof (collectively, the “Navigant IP Rights”) shall at all
\ntimes reside exclusively in Navigant or such third parties as Navigant may in
\nits sole discretion determine. The Company shall place appropriate notices
\nprovided by Navigant of Navigant’s ownership of the Navigant IP Rights in
\nconnection with all uses thereof and shall comply with all reasonable directions
\nwhich may be submitted by Navigant from time to time regarding the form and
\nplacement of patent, copyright and other proprietary rights notices with respect
\nto the Navigant IP Rights. The Company shall be entitled only to such rights
\nwith respect to the Navigant IP Rights as are specifically granted in this
\nAgreement and to no other rights. If the Company, or any third party engaged by
\nthe Company, is deemed by a trier of fact to have any ownership interest in any
\nNavigant IP Rights, the Company agrees to assign, or use commercially reasonable
\nefforts to cause such third party to assign, all of such ownership interests to
\nNavigant. The Company shall reasonably cooperate with Navigant and shall cause
\nto be executed all such instruments and documents as<\/p>\n
3<\/p>\n
Navigant may reasonably request in connection with such assignment. The Company
\nshall not take any action that might encumber or expose the Navigant IP Rights
\nor the license rights granted herein to any claims, liens or other forms of
\nencumbrance; provided, however, that the Company may pledge its rights under
\nthis Agreement for financing purposes, including any assignment of such rights
\nto a lender required in connection therewith. The Company acknowledges that
\nNavigant and its Affiliates are in the travel services business, and it is the
\nexpress understanding and agreement of the parties that Navigant and its
\nAffiliates shall own and be entitled to use the Navigant IP Rights in connection
\nwith all current and any future businesses or services, subject to any
\nlimitations set forth in the LLC Agreement or any collateral agreement to which
\nNavigant is a party.<\/p>\n
4. License to Navigant.
\n ——————- <\/p>\n
4.1 Grant of License. The Company hereby grants to Navigant the
\n —————-
\nnon-exclusive, perpetual, royalty-free right and license to use the Company
\nOwned IP in connection with the development, marketing, maintenance, operation
\nand support of any business of Navigant or its Affiliates, subject to any
\nlimitations set forth in the LLC Agreement or any collateral agreement to which
\nNavigant is a party (the “Cross License”). The term “use” shall include the
\nright to copy, display, perform and prepare Enhancements of the Company Owned
\nIP, provided that any and all Enhancements of the Company Owned IP made by or on
\nbehalf of Navigant shall be the sole property of the Company. The terms of (i)
\nSections 2.3 (other than with respect to a sublicense to an Affiliate of
\nNavigant), 2.4, 5.2 and 6.2 (other than with respect to a sale, transfer or
\nassignment to an Affiliate of Navigant), and (ii) Section 3 (but only during the
\nterm of the License and the Trademark License) shall apply mutatis mutandis to
\nthe Cross License granted in this Section 4 such that the Company shall have the
\nsame benefits and rights (except as modified herein) with respect to the Company
\nOwned IP and Enhancements thereto as Navigant has with respect to the Licensed
\nIP pursuant to said Sections.<\/p>\n
4.2 Limitation. Notwithstanding the Cross License granted in
\n ———-
\nSection 4.1, if the Company is restricted in its use of all or part of the
\nCompany Owned IP or any Enhancement thereto as a result of the provisions of the
\nLLC Agreement, the parties agree to negotiate in good faith the terms of the
\nrespective uses by each party of such Company Owned IP or Enhancement.<\/p>\n
5. Representations, Warranties and Limitations.
\n ——————————————- <\/p>\n
5.1 Authority. Each party to this Agreement hereby represents and
\n ———
\nwarrants that it has the right, and sufficient authority, to enter into this
\nAgreement.<\/p>\n
5.2 Disclaimer of Performance Warranties. The Licensed IP is
\n ————————————
\nlicensed “AS IS” and without any warranty of any kind relating to the
\nperformance or sufficiency thereof.<\/p>\n
5.3 Proprietary Rights Warranty and Indemnity by Navigant. Navigant
\n —————————————————–
\nhereby represents and warrants that it owns (and will continue to own for the
\nduration of this Agreement) all right, title and interest in and to the Licensed
\nIP and the Navigant Trademarks. Navigant shall defend any suit or proceeding
\nbrought against the Company insofar as such suit or proceeding shall be based
\nupon a claim that the use of the Licensed IP or the Navigant Trademarks by
\nCompany in<\/p>\n
4<\/p>\n
accordance with the terms of this Agreement infringes, violates or constitutes a
\nwrongful use of any United States Intellectual Property Right or any Canadian or
\nUnited Kingdom trademark right. The Company shall notify Navigant in writing of
\nany such suit or proceeding promptly upon first learning of such suit or
\nproceeding, and shall provide Navigant, at Navigant’s sole cost, with such
\nassistance and cooperation as Navigant may reasonably request in the defense
\nthereof. Navigant shall have sole control over any such suit or proceeding;
\nprovided, however, that Navigant shall not settle any such suit or proceeding on
\nbehalf of the Company without the Company’s consent, which shall not be
\nunreasonably withheld. Navigant shall pay all damages and costs finally awarded
\nagainst the Company (or payable by the Company pursuant to a settlement
\nagreement) in connection with any such suit or proceeding. If in Navigant’s
\nopinion any of the Licensed IP or Navigant Trademarks is likely to or becomes
\nthe subject of a claim for patent, copyright, trade secret or other intellectual
\nproperty right infringement, Navigant may, at its option and expense, either
\nprocure for the Company the right to continue to use such Licensed IP or
\nNavigant Trademark or replace or amend the same to eliminate the infringement.
\nIf Navigant is unable, after making all reasonable efforts, to take either such
\naction, Navigant shall be entitled to terminate the License or the Trademark
\nLicense, as the case may be, with respect to such infringing Licensed IP or
\nNavigant Trademark. Navigant shall have no obligation to defend and shall not be
\nliable for any infringement or claim thereof for any claim based upon (i) the
\noperation or use of the Licensed IP with any programs or data not supplied or
\napproved in writing by Navigant if such infringement would have been avoided by
\nthe operation or use of the Licensed IP without such programs or data, or (ii)
\nfor any claim based upon an Enhancement of the Licensed IP made by or on behalf
\nof Company.<\/p>\n
5.4 Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, NAVIGANT
\n ———-
\nAND THE COMPANY HEREBY DISCLAIM ALL WARRANTIES WHETHER EXPRESS, IMPLIED OR
\nSTATUTORY, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
\nPARTICULAR PURPOSE, WITH RESPECT TO THE LICENSED IP AND THE COMPANY OWNED IP,
\nRESPECTIVELY. NEITHER NAVIGANT NOR THE COMPANY SHALL UNDER ANY CIRCUMSTANCES BE
\nLIABLE TO EACH OTHER OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL,
\nSPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
\nTRANSACTIONS CONTEMPLATED HEREIN, EVEN IF SUCH PARTY IS APPRISED OF THE
\nLIKELIHOOD OF SUCH DAMAGES OCCURRING.<\/p>\n
5.5 Limitation on Applicability. Notwithstanding anything in this
\n —————————
\nAgreement to the contrary, but subject to any applicable limitations under the
\nLLC Agreement, the Company shall not be precluded from performing any act or
\nusing any Intellectual Property Right, including without limitation the Navigant
\nIP Rights, in a manner which would have been permissible (i) had the parties not
\nentered into this Agreement, and (ii) with respect to any Navigant IP Rights,
\nhad Navigant willfully disclosed such elements to the Company, or had the
\nCompany otherwise lawfully obtained such elements..<\/p>\n
6. General.
\n ——-<\/p>\n
6.1 Entire Agreement. This Agreement, the Schedules hereto and the
\n —————-
\nLLC Agreement constitute the entire agreement between the parties with respect
\nto <\/p>\n
5<\/p>\n
the subject matter hereof and supersede all prior agreements, oral or written,
\nand all other communications relating to the subject matter hereof. No amendment
\nor modification of any provision of this Agreement shall be effective unless set
\nforth in a document that is executed by both parties to this Agreement.<\/p>\n
6.2 Assignment. Subject to the proviso in Section 3 with respect to
\n ———-
\npledges and assignments in respect of financing, the Company shall not sell,
\ntransfer or assign any right or obligation hereunder without the prior written
\nconsent of Navigant. Any act in derogation of the foregoing shall be null and
\nvoid.<\/p>\n
6.3 Force Majeure. Neither party shall be held liable for failure
\n ————-
\nto fulfill its obligations hereunder if such failure is due to a natural
\ncalamity, act of government or similar cause beyond the reasonable control of
\nsuch party.<\/p>\n
6.4 Notices. All notices, reports, records, or other communications
\n ——-
\nwhich are required or permitted to be given to the parties under this Agreement
\nshall be sufficient in all respects if given in writing and delivered in person,
\nby telecopy, by overnight courier, or by certified mail, postage prepaid, return
\nreceipt requested, to the receiving party at the following address:<\/p>\n
If to Navigant:<\/p>\n
Navigant International, Inc.
\n 84 Inverness Circle East
\n Englewood, CO 80112
\n Attention: Robert C. Griffith
\n Fax No.: (303) 706-0678<\/p>\n
with a copy to:<\/p>\n
Betty C. Arkell, Esq.
\n Holland & Hart LLP
\n 555 Seventeenth Street
\n Suite 3200
\n Denver, CO 80202<\/p>\n
If to the Company:<\/p>\n
c\/o Navigant International, Inc.
\n 84 Inverness Circle East
\n Englewood, CO 80112
\n Attention: Robert C. Griffith<\/p>\n
6<\/p>\n
Fax No.: (303) 706-0678<\/p>\n
with a copy to:<\/p>\n
Michael R. Littenberg, Esq.
\n Schulte Roth & Zabel LLP
\n 900 Third Avenue
\n New York, New York 10022<\/p>\n
or to such other address as such party may have given to the other by notice
\npursuant to this Section. Notice shall be deemed given on the date of delivery,
\nin the case of personal delivery or telecopy, or on the delivery or refusal
\ndate, as specified on the return receipt, in the case of overnight courier or
\ncertified mail.<\/p>\n
6.5 Governing Law. The validity, construction, and performance of
\n ————-
\nthis Agreement shall be governed by the internal laws of the State of New York,
\nwithout reference to the conflicts of laws principles thereof.<\/p>\n
6.6 Severability. If any provision of this Agreement is held by a
\n ————
\ncourt of competent jurisdiction to be contrary to law, the remaining provisions
\nof this Agreement shall remain in full force and effect.<\/p>\n
6.7 Counterparts. This Agreement may be signed in any number of
\n ————
\ncounterparts, each of which shall be an original instrument, and all of which
\ntogether shall constitute one and the same instrument.<\/p>\n
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
\nas of the Effective Date.<\/p>\n
NAVIGANT INTERNATIONAL, INC. <\/p>\n
By: ________________________________
\n Name: ________________________________
\n Title:________________________________ <\/p>\n
NAVIGANTVACATIONS.COM, LLC <\/p>\n
By: NavigantVacations.com Holdings, Inc.,
\n its Manager <\/p>\n
By: ____________________________
\n Name:____________________________
\n Title:___________________________ <\/p>\n
7<\/p>\n
Schedule 1.6
\n to
\n License Agreement
\n dated October 13, 1999
\n by and between
\n Navigant International, Inc.
\n and
\n NavigantVacations.com, LLC<\/p>\n
Licensed IP*
\n ———– <\/p>\n
. Internet technology that relates to, or is useful in connection with the
\n development and operation of, the Business
\n. Know-how, techniques, and research and development that relate to, or are
\n useful in connection with the development and operation of, the Business
\n. Trade secrets, including access to customer lists, that relate to, or are
\n useful in connection with the development and operation of, the Business<\/p>\n
*Schedule to be finalized after execution of Agreement<\/p>\n
8<\/p>\n
Schedule 1.8
\n to
\n License Agreement
\n dated October 13, 1999
\n by and between
\n Navigant International, Inc.
\n and
\n NavigantVacations.com, LLC<\/p>\n
Navigant Trademarks*
\n ——————- <\/p>\n
Mark Country Application Number Application Date<\/p>\n
NAVIGANT USA 75\/596,878 11\/30\/98
\n CANADA pending 5\/3\/99
\n U.K. 2198926 6\/1\/99<\/p>\n
FLYING BIRD DESIGN USA 75\/596,880 11\/30\/98<\/p>\n
*Information regarding applications and registrations to be updated after
\nexecution.<\/p>\n
9<\/p>\n
Exhibit 6.7<\/p>\n
THIS WARRANT AND ANY SECURITIES ACQUIRED UPON EXERCISE OF THIS WARRANT
\nHAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
\nSECURITIES LAW OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
\nDISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH
\nACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION
\nTO THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS.<\/p>\n
NAVIGANTVACATIONS.COM, LLC<\/p>\n
COMMON STOCK PURCHASE WARRANT<\/p>\n
No. W-[ ] October 13, 1999<\/p>\n
Void after October 13, 2009 Warrant to Purchase
\n 50,000 Common Units<\/p>\n
NavigantVacations.com, LLC, a Delaware Limited Liability Corporation (the
\n“Company”), for value received, hereby certifies that the Och-Ziff Partners (as
\ndefined in the LLC Agreement), or registered assigns (the “Holder”), is entitled
\nto purchase from the Company 50,000 duly authorized, validly issued, fully paid
\nand nonassessable Common Units of the Company (the “Common Units”), at a
\npurchase price of $60.00 per unit, at any time or from time to time prior to
\n5:00 P.M., New York City time, on October 13, 2009 (the “Expiration Date”), all
\nsubject to the terms, conditions and adjustments set forth below in this Warrant
\n(the “Warrant”).<\/p>\n
This Warrant is issued in connection with the Limited Liability Company
\nAgreement of the Company (the “LLC Agreement”). The Warrant originally so
\nissued evidences rights to purchase an aggregate of 50,000 Common Units subject
\nto adjustment as provided herein. For purposes herein, prior to such time as an
\nIPO shall occur, the term Common Stock shall mean Common Units, and subsequent
\nto an IPO, the term Common Stock shall mean shares of the Company as reorganized
\npursuant to an IPO. Capitalized terms used herein and not otherwise defined
\nherein shall have the meanings assigned such terms in the LLC Agreement.<\/p>\n
1. DEFINITIONS. As used herein, unless the context otherwise
\n ———–
\nrequires, the following terms shall have the meanings indicated:<\/p>\n
“Business Day” shall mean any day other than a Saturday or a Sunday or
\n ————
\na day on which commercial banking institutions in the City of New York are
\nauthorized by law to be closed. Any reference to “days” (unless Business Days
\nare specified) shall mean calendar days.<\/p>\n
“Commission” shall mean the Securities and Exchange Commission or any
\n ———-
\nsuccessor agency having jurisdiction to enforce the Securities Act.<\/p>\n
“Common Units” shall have the meaning assigned to it in the
\n ————
\nintroduction to this Warrant, such term to include any stock into which such
\nCommon Unit shall have been changed or any stock resulting from any
\nreclassification of such Common Unit, and all other stock of any class or
\nclasses (however designated) of the Company the holders of which have the right,
\nwithout limitation as to amount, either to all or to a share of the balance of
\ncurrent dividends and liquidating dividends after the payment of dividends and
\ndistributions on any shares entitled to preference.<\/p>\n
“Company” shall have the meaning assigned to it in the introduction to
\n ——-
\nthis Warrant, such term to include any corporation or other entity which shall
\nsucceed to or assume the obligations of the Company hereunder in compliance with
\nSection 4.<\/p>\n
“Convertible Securities” shall mean any evidences of indebtedness,
\n ———————-
\nshares of stock (other than Common Stock) or other securities directly or
\nindirectly convertible into or exchangeable for Additional Shares of Common
\nStock.<\/p>\n
“Current Market Price” shall mean, on any date specified herein, the
\n ——————–
\naverage of the daily Market Price during the 10 consecutive trading days
\ncommencing 15 trading days before such date, except that, if on any such date
\nthe shares of Common Stock are not listed or admitted for trading on any
\nnational securities exchange or quoted by the NASD automated quotation system in
\nthe over-the-counter market, the Current Market Price shall be the Market Price
\non such date.<\/p>\n
“Exchange Act” shall mean the Securities Exchange Act of 1934, as
\n ————
\namended from time to time, and the rules and regulations thereunder, or any
\nsuccessor statute.<\/p>\n
“Expiration Date” shall have the meaning assigned to it in the
\n —————
\nintroduction to this Warrant.<\/p>\n
“Fair Value” shall mean, on any date specified herein (i) in the case
\n ———-
\nof cash, the dollar amount thereof, (ii) in the case of a security, the Current
\nMarket Price, and (iii) in all other cases, the fair value thereof determined in
\ngood faith by the Board of Directors of the Company. For the purpose of clause
\n(iii), the Fair Value of any Company Common Stock or Other Securities shall not
\nbe less than the per share consideration (measured on a fully-converted basis)
\nreceived by the Company in a third party transaction occurring simultaneously
\nwith or most recently preceding the Board’s determination of Fair Value.<\/p>\n
“Holder” shall have the meaning assigned to it in the introduction to
\n ——
\nthis Warrant.<\/p>\n
“LLC Agreement” shall have the meaning assigned to it in the
\n ————-
\nintroduction to this Warrant.<\/p>\n
“Market Price” shall mean, on any date specified herein, the amount
\n ————
\nper share of the Common Stock, equal to (i) the last reported sale price of such
\nCommon Stock, regular way, on such date or, in case no such sale takes place on
\nsuch date, the average of the closing bid and asked prices thereof regular way
\non such date, in either case as officially reported on the <\/p>\n
2<\/p>\n
principal national securities exchange on which such Common Stock is then listed
\nor admitted for trading, (ii) if such Common Stock is not then listed or
\nadmitted for trading on any national securities exchange but is designated as a
\nnational market system security by the NASD, the last reported trading price of
\nthe Common Stock on such date, (iii) if there shall have been no trading on such
\ndate or if the Common Stock is not so designated, the average of the closing bid
\nand asked prices of the Common Stock on such date as shown by the NASD automated
\nquotation system, or (iv) if such Common Stock is not then listed or admitted
\nfor trading on any national exchange or quoted in the over-the-counter market,
\nthe Fair Value thereof.<\/p>\n
“NASD” shall mean the National Association of Securities Dealers, Inc.
\n —- <\/p>\n
“Options” shall mean any rights, options or warrants to subscribe for,
\n ——-
\npurchase or otherwise acquire either Additional Shares of Common Stock or
\nConvertible Securities.<\/p>\n
“Other Securities” shall mean any stock (other than Common Stock) and
\n —————-
\nother securities of the Company or any other Person (corporate or otherwise)
\nwhich the holders of the Warrant at any time shall be entitled to receive, or
\nshall have received, upon the exercise of the Warrant, in lieu of or in addition
\nto Common Stock, or which at any time shall be issuable or shall have been
\nissued in exchange for or in replacement of Common Stock or Other Securities
\npursuant to Section 4 or otherwise.<\/p>\n
“Person” shall mean any individual, firm, partnership, corporation,
\n ——
\ntrust, joint venture, association, joint stock company, limited liability
\ncompany, unincorporated organization or any other entity or organization,
\nincluding a government or agency or political subdivision thereof, and shall
\ninclude any successor (by merger or otherwise) of such entity.<\/p>\n
“Purchase Price” shall mean initially $60.00 per share, subject to
\n ————–
\nadjustment and readjustment from time to time as provided in Section 3, and, as
\nso adjusted or readjusted, shall remain in effect until a further adjustment or
\nreadjustment thereof is required by Section 3.<\/p>\n
“Restricted Securities” shall mean (i) any warrants bearing the
\n ———————
\napplicable legend set forth in Section 10.2, (ii) any shares of Common Stock (or
\nOther Securities) issued or issuable upon the exercise of the Warrant which are
\n(or, upon issuance, will be) evidenced by a certificate or certificates bearing
\nthe applicable legend set forth in such Section, and (iii) any shares of Common
\nStock (or Other Securities) issued subsequent to the exercise of any of the
\nWarrant as a dividend or other distribution with respect to, or resulting from a
\nsubdivision of the outstanding shares of Common Stock (or Other Securities) into
\na greater number of shares by reclassification, stock splits or otherwise, or in
\nexchange for or in replacement of the Common Stock (or Other Securities) issued
\nupon such exercise, which are evidenced by a certificate or certificates bearing
\nthe applicable legend set forth in such Section.<\/p>\n
“Securities Act” shall mean the Securities Act of 1933, as amended
\n ————–
\nfrom time to time, and the rules and regulations thereunder, or any successor
\nstatute.<\/p>\n
3<\/p>\n
2. EXERCISE OF WARRANT.
\n ——————- <\/p>\n
2.1. Manner of Exercise; Payment of the Purchase Price. (a) This
\n ————————————————-
\nWarrant may be exercised by the Holder hereof, in whole or in part, at any time
\nor from time to time prior to the Expiration Date, by surrendering to the
\nCompany at its principal office this Warrant, with the form of Election to
\nPurchase Shares attached hereto as Exhibit A (or a reasonable facsimile thereof)
\nduly executed by the Holder and accompanied by payment of the Purchase Price for
\nthe number of shares of Common Stock specified in such form.<\/p>\n
(b) Payment of the Purchase Price may be made as follows (or by any
\ncombination of the following): (i) in United States currency by cash or
\ndelivery of a certified check or bank draft payable to the order of the Company
\nor by wire transfer to the Company, (ii) by cancellation of such number of the
\nshares of Common Stock otherwise issuable to the Holder upon such exercise as
\nshall be specified in such Election to Purchase Shares, such that the excess of
\nthe aggregate Current Market Price of such specified number of shares on the
\ndate of exercise over the portion of the Purchase Price attributable to such
\nshares shall equal the Purchase Price attributable to the shares of Common Stock
\nto be issued upon such exercise, in which case such amount shall be deemed to
\nhave been paid to the Company and the number of shares issuable upon such
\nexercise shall be reduced by such specified number, or (iii) by surrender to the
\nCompany for cancellation certificates representing shares of Common Stock of the
\nCompany owned by the Holder (properly endorsed for transfer in blank) having a
\nCurrent Market Price on the date of Warrant exercise equal to the Purchase
\nPrice.<\/p>\n
2.2. When Exercise Effective. Each exercise of this Warrant shall be
\n ———————–
\ndeemed to have been effected immediately prior to the close of business on the
\nBusiness Day on which this Warrant shall have been surrendered to, and the
\nPurchase Price shall have been received by, the Company as provided in Section
\n2.1, and at such time the Person or Persons in whose name or names any
\ncertificate or certificates for shares of Common Stock (or Other Securities)
\nshall be issuable upon such exercise as provided in Section 2.3 shall be deemed
\nto have become the holder or holders of record thereof for all purposes.<\/p>\n
2.3. Delivery of Stock Certificates, etc.; Charges, Taxes and
\n ——————————————————–
\nExpenses. (a) As soon as practicable after each exercise of this Warrant, in
\n——–
\nwhole or in part, and in any event within five (5) Business Days thereafter, the
\nCompany shall cause to be issued in the name of and delivered to the Holder
\nhereof or as the Holder may direct,<\/p>\n
(i) a certificate or certificates for the number of shares of Common
\n Stock (or Other Securities) to which the Holder shall be entitled upon such
\n exercise plus, in lieu of issuance of any fractional share to which the
\n Holder would otherwise be entitled, if any, a check for the amount of cash
\n equal to the same fraction multiplied by the Current Market Price per share
\n on the date of Warrant exercise, and<\/p>\n
(ii) in case such exercise is for less than all of the shares of
\n Common Stock purchasable under this Warrant, a new warrant or warrants of
\n like tenor, for the balance of the shares of Common Stock purchasable
\n hereunder.<\/p>\n
4<\/p>\n
(b) Issuance of certificates for shares of Common Stock upon the
\n exercise of this Warrant shall be made without charge to the Holder hereof
\n for any issue or transfer tax or other incidental expense, in respect of
\n the issuance of such certificates, all of which such taxes and expenses
\n shall be paid by the Company.<\/p>\n
2.4. Company to Reaffirm Obligations. The Company shall, at the time
\n ——————————-
\nof each exercise of this Warrant, upon the request of the Holder hereof,
\nacknowledge in writing its continuing obligation to afford to such Holder all
\nrights to which such Holder shall continue to be entitled after such exercise in
\naccordance with the terms of this Warrant, provided that if the Holder of this
\nWarrant shall fail to make any such request, such failure shall not affect the
\ncontinuing obligation of the Company to afford such rights to the Holder.<\/p>\n
3. ADJUSTMENT OF COMMON STOCK ISSUABLE UPON EXERCISE.
\n ————————————————- <\/p>\n
3.1. Adjustment of Number of Shares.
\n —————————— <\/p>\n
Upon each adjustment of the Purchase Price as a result of the
\ncalculations made in this Section 3, this Warrant shall thereafter evidence the
\nright to receive, at the adjusted Purchase Price, that number of shares of
\nCommon Stock (calculated to the nearest one-hundredth) obtained by dividing (i)
\nthe product of the aggregate number of shares covered by this Warrant
\nimmediately prior to such adjustment and the Purchase Price in effect
\nimmediately prior to such adjustment of the Purchase Price by (ii) the Purchase
\nPrice in effect immediately after such adjustment of the Purchase Price.<\/p>\n
3.2. Treatment of Stock Dividends, Stock Splits, etc. In case the
\n ———————————————–
\nCompany at any time or from time to time after the date hereof shall declare or
\npay any dividend on the Common Stock payable in Common Stock, or shall effect a
\nsubdivision of the outstanding shares of Common Stock into a greater number of
\nshares of Common Stock (by reclassification or otherwise than by payment of a
\ndividend in Common Stock), then, and in each such case, the Purchase Price in
\neffect immediately prior to such declaration or subdivision shall be
\nproportionately reduced and the number of shares of Common Stock obtainable upon
\nexercise of this Warrant shall be proportionately increased.<\/p>\n
3.3. Adjustments for Combinations, etc. In case the outstanding
\n ———————————
\nshares of Common Stock shall be combined or consolidated, by reclassification or
\notherwise, into a lesser number of shares of Common Stock, the Purchase Price in
\neffect immediately prior to such combination or consolidation shall,
\nconcurrently with the effectiveness of such combination or consolidation, be
\nproportionately increased.<\/p>\n
3.4. Dilution in Case of Other Securities. In case any Other
\n ————————————
\nSecurities shall be issued or sold or shall become subject to issue or sale upon
\nthe conversion or exchange of any stock (or Other Securities) of the Company (or
\nany issuer of Other Securities or any other Person referred to in Section 4) or
\nto subscription, purchase or other acquisition pursuant to any Options issued or
\ngranted by the Company (or any such other issuer or Person) for a consideration
\nsuch as to dilute, on a basis consistent with the standards established in the
\nother provisions of this Section 3, the purchase rights granted by this Warrant,
\nthen, and in each such case, the <\/p>\n
5<\/p>\n
computations, adjustments and readjustments provided for in this Section 3 with
\nrespect to the Purchase Price and the number of shares purchasable upon Warrant
\nexercise shall be made as nearly as possible in the manner so provided and
\napplied to determine the amount of Other Securities from time to time receivable
\nupon the exercise of the Warrant, so as to protect the holders of the Warrant
\nagainst the effect of such dilution.<\/p>\n
3.5. De Minimis Adjustments. If the amount of any adjustment of the
\n ———————-
\nPurchase Price per share required pursuant to this Section 3 would be less than
\n$.02, such amount shall be carried forward and adjustment with respect thereto
\nmade at the time of and together with any subsequent adjustment which, together
\nwith such amount and any other amount or amounts so carried forward, shall
\naggregate a change in the Purchase Price of at least $.02 per share. All
\ncalculations under this Warrant shall be made to the nearest .001 of a cent or
\nto the nearest one-hundredth of a share, as the case may be.<\/p>\n
3.6. Abandoned Dividend or Distribution. If the Company shall take a
\n ———————————-
\nrecord of the holders of its Common Stock for the purpose of entitling them to
\nreceive a dividend or other distribution (which results in an adjustment to the
\nPurchase Price under the terms of this Warrant) and shall, thereafter, and
\nbefore such dividend or distribution is paid or delivered to stockholders
\nentitled thereto, legally abandon its plan to pay or deliver such dividend or
\ndistribution, then any adjustment made to the Purchase Price and number of
\nshares of Common Stock purchasable upon Warrant exercise by reason of the taking
\nof such record shall be reversed, and any subsequent adjustments, based thereon,
\nshall be recomputed.<\/p>\n
3.7. IPO Restructuring. Notwithstanding anything else contained in
\n —————–
\nthis Warrant, upon the occurrence of an IPO, this Warrant, including the
\nPurchase Price and the number of Common Units being offered under this Warrant,
\nas adjusted, shall be adjusted and converted into a Warrant entitling the Holder
\nto purchase that number of shares of Common Stock as shall be determined in
\naccordance with the ratio used to convert the Common Units into Common Stock
\nupon the IPO, and that the Purchase price shall be adjusted accordingly to
\nreflect the conversion.<\/p>\n
4. CONSOLIDATION, MERGER, ETC.
\n ————————– <\/p>\n
4.1. Adjustments for Consolidation, Merger, Sale of Assets,
\n ——————————————————
\nReorganization, etc. In case the Company after the date hereof (a) shall
\n——————-
\nconsolidate with or merge into any other Person and shall not be the continuing
\nor surviving corporation of such consolidation or merger, or (b) shall permit
\nany other Person to consolidate with or merge into the Company and the Company
\nshall be the continuing or surviving Person but, in connection with such
\nconsolidation or merger, the Common Stock or Other Securities shall be changed
\ninto or exchanged for stock or other securities of any other Person or cash or
\nany other property, or (c) shall transfer all or substantially all of its
\nproperties or assets to any other Person, or (d) shall effect a capital
\nreorganization or reclassification of the Common Stock or Other Securities,
\nthen, and in the case of each such transaction, proper provision shall be made
\nso that, upon the basis and the terms and in the manner provided in this
\nWarrant, the Holder of this Warrant, upon the exercise hereof at any time after
\nthe consummation of such transaction, shall be entitled to receive (at the
\naggregate <\/p>\n
6<\/p>\n
Purchase Price in effect at the time of such consummation for all Common Stock
\nor Other Securities issuable upon such exercise immediately prior to such
\nconsummation), in lieu of the Common Stock or Other Securities issuable upon
\nsuch exercise prior to such consummation, the highest amount of securities, cash
\nor other property to which such Holder would actually have been entitled as a
\nstockholder upon such consummation if such Holder had exercised this Warrant
\nimmediately prior thereto, subject to adjustments (subsequent to such
\nconsummation) as nearly equivalent as possible to the adjustments provided for
\nin Sections 3 through 5.<\/p>\n
4.2. Assumption of Obligations. Notwithstanding anything contained
\n ————————-
\nin the Warrant or in the LLC Agreement to the contrary, the Company shall not
\neffect any of the transactions described in clauses (a) through (d) of Section
\n4.1 unless, prior to the consummation thereof, each Person (other than the
\nCompany) which may be required to deliver any stock, securities, cash or
\nproperty upon the exercise of this Warrant as provided herein shall assume, by
\nwritten instrument delivered to, and reasonably satisfactory to, the Holder of
\nthis Warrant, (a) the obligations of the Company under this Warrant (and if the
\nCompany shall survive the consummation of such transaction, such assumption
\nshall be in addition to, and shall not release the Company from, any continuing
\nobligations of the Company under this Warrant) and (b) the obligation to deliver
\nto the Holder such shares of stock, securities, cash or property as, in
\naccordance with the foregoing provisions of this Section 4, the Holder may be
\nentitled to receive. Nothing in this Section 4 shall be deemed to authorize the
\nCompany to enter into any transaction not otherwise permitted by the LLC
\nAgreement.<\/p>\n
5. OTHER DILUTIVE EVENTS. In case any event shall occur as to
\n ———————
\nwhich the provisions of Section 3 or Section 4 hereof are not strictly
\napplicable or if strictly applicable would not fairly protect the purchase
\nrights of the Holder in accordance with the essential intent and principles of
\nsuch Sections, then, in each such case, the Board of Directors of the Company
\nshall make an adjustment in the application of such provisions, in accordance
\nwith such essential intent and principles, so as to preserve, without dilution,
\nthe purchase rights represented by this Warrant.<\/p>\n
6. NO DILUTION OR IMPAIRMENT. The Company shall not, by amendment
\n ————————-
\nof its certificate of incorporation or through any consolidation, merger,
\nreorganization, transfer of assets, dissolution, issue or sale of securities or
\nany other voluntary action, avoid or seek to avoid the observance or performance
\nof any of the terms of this Warrant, but will at all times in good faith assist
\nin the carrying out of all such terms and in the taking of all such action as
\nmay be necessary or appropriate in order to protect the rights of the Holder of
\nthis Warrant against dilution or other impairment. Without limiting the
\ngenerality of the foregoing, the Company (a) shall not permit the par value of
\nany shares of stock receivable upon the exercise of this Warrant to exceed the
\namount payable therefor upon such exercise, (b) shall take all such action as
\nmay be necessary or appropriate in order that the Company may validly and
\nlegally issue fully paid and nonassessable shares of stock, free from all taxes,
\nliens, security interests, encumbrances, preemptive rights and charges on the
\nexercise of the Warrant from time to time outstanding, and (c) shall not take
\nany action which results in any adjustment of the Purchase Price if the total
\nnumber of shares of Common Stock (or Other Securities) issuable after the action
\nupon the full exercise of the Warrant would exceed the total number of shares of<\/p>\n
7<\/p>\n
Common Stock (or Other Securities) then authorized by the Company’s certificate
\nof incorporation and available for the purpose of issue upon such exercise.<\/p>\n
7. CERTIFICATE AS TO ADJUSTMENTS. In each case of any adjustment
\n —————————–
\nor readjustment in the shares of Common Stock (or Other Securities) issuable
\nupon the exercise of this Warrant, the Company at its expense shall promptly
\ncompute such adjustment or readjustment in accordance with the terms of this
\nWarrant and prepare a certificate, signed by the Chairman of the Board,
\nPresident or one of the Vice Presidents of the Company, and by the Chief
\nFinancial Officer, the Treasurer or one of the Assistant Treasurers of the
\nCompany, setting forth such adjustment or readjustment and showing in reasonable
\ndetail the method of calculation thereof and the facts upon which such
\nadjustment or readjustment is based, including a statement of (a) the
\nconsideration received or to be received by the Company for any Additional
\nShares of Common Stock issued or sold or deemed to have been issued, (b) the
\nnumber of shares of Common Stock outstanding or deemed to be outstanding, and
\n(c) the Purchase Price in effect immediately prior to such issue or sale and as
\nadjusted and readjusted (if required by Section 3) on account thereof. The
\nCompany shall forthwith mail a copy of each such certificate to each holder of a
\nWarrant and shall, upon the written request at any time of any holder of a
\nWarrant, furnish to such holder a like certificate. The Company shall also keep
\ncopies of all such certificates at its principal office and shall cause the same
\nto be available for inspection at such office during normal business hours by
\nany holder of a Warrant or any prospective purchaser of a Warrant designated by
\nthe holder thereof. The Company shall, upon the request in writing of the Holder
\n(at the Company’s expense), retain independent public accountants of recognized
\nnational standing selected by the Board of Directors of the Company to make any
\ncomputation required in connection with adjustments under this Warrant, and a
\ncertificate signed by such firm shall be conclusive evidence of the correctness
\nof such adjustment, which shall be binding on the Holder and the Company.<\/p>\n
8. NOTICES OF CORPORATE ACTION. In the event of:
\n ————————— <\/p>\n
(a) any taking by the Company of a record of the holders of any
\n class of securities for the purpose of determining the holders thereof who
\n are entitled to receive any dividend payable otherwise than out of earnings
\n or earned surplus, determined in accordance with generally accepted
\n accounting principles (other than a regularly scheduled cash dividend
\n payable out of consolidated earnings or earned surplus, determined in
\n accordance with generally accepted accounting principles, in an amount not
\n exceeding the amount of the immediately preceding cash dividend for such
\n period) or other distribution, or any right to subscribe for, purchase or
\n otherwise acquire any shares of stock of any class or any other securities
\n or property, or to receive any other right, or<\/p>\n
(b) any capital reorganization of the Company, any reclassification
\n or recapitalization of the capital stock of the Company, any consolidation
\n or merger involving the Company and any other Person, any transfer, sale or
\n other disposition of all or substantially all the assets of the Company to
\n any other Person or any other capital transaction, or<\/p>\n
8<\/p>\n
(c) any voluntary or involuntary dissolution, liquidation or
\n winding-up of the Company,<\/p>\n
the Company shall mail to each holder of a Warrant a notice specifying (i) the
\ndate or expected date on which any such record is to be taken for the purpose of
\nsuch dividend, distribution or right, and the amount and character of such
\ndividend, distribution or right, and (ii) the date or expected date on which any
\nsuch reorganization, reclassification, recapitalization, consolidation, merger,
\ntransfer, sale, disposition, dissolution, liquidation or winding-up is to take
\nplace and the time, if any such time is to be fixed, as of which the holders of
\nrecord of Common Stock (or Other Securities) shall be entitled to exchange their
\nshares of Common Stock (or Other Securities) for the securities or other
\nproperty deliverable upon such reorganization, reclassification,
\nrecapitalization, consolidation, merger, transfer, dissolution, liquidation or
\nwinding-up. Such notice shall be mailed at least 30 days prior to the date
\ntherein specified.<\/p>\n
9. REGISTRATION OF COMMON STOCK Company covenants and agrees that
\n —————————-
\nall shares of Company Common Stock which may be issued upon exercise of this
\nWarrant will have, upon issuance in accordance with the terms of this Warrant,
\nregistration rights on terms in accordance with the form of Registration
\nAgreement attached as Exhibit __ to the LLC Agreement.<\/p>\n
10. RESTRICTIONS ON TRANSFER.
\n ———————— <\/p>\n
10.1. Restrictions on Transfer. This Warrant and all Common Stock
\n ————————
\n(and Other Securities) issuable upon exercise of this Warrant shall be subject
\nto the same restrictions on transfer as an Equity Owner’s Interest as set forth
\nin the LLC Agreement.<\/p>\n
10.2. Restrictive Legends. Except as otherwise permitted by this
\n ——————-
\nSection 10, each Warrant (including each Warrant issued upon the transfer of any
\nWarrant) and certificate for Common Stock (or Other Securities) issued upon the
\nexercise of any Warrant, and each certificate issued upon the transfer of any
\nsuch Common Stock (or Other Securities), shall be stamped or otherwise imprinted
\nwith a legend in substantially the following form:<\/p>\n
“THIS WARRANT AND ANY SECURITIES ACQUIRED UPON THE EXERCISE OF THIS
\n WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
\n AMENDED, OR THE SECURITIES LAW OF ANY STATE, AND MAY NOT BE SOLD,
\n TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
\n REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS
\n OR PURSUANT TO AN APPLICABLE EXEMPTION TO THE REGISTRATION REQUIREMENTS OF
\n SUCH ACT AND SUCH LAWS.”<\/p>\n
10.3. Transfer to Comply With the Securities Act. Restricted
\n ——————————————
\nSecurities may not be sold, assigned, pledged, hypothecated, encumbered or in
\nany manner transferred or disposed of, in whole or in part, except in compliance
\nwith the provisions of the Securities Act and state securities or Blue Sky laws
\nand the terms and conditions hereof.<\/p>\n
9<\/p>\n
11. AVAILABILITY OF INFORMATION. So long as the Company shall not
\n —————————
\nhave filed a registration statement pursuant to Section 12 of the Exchange Act
\nor a registration statement pursuant to the requirements of the Securities Act,
\nthe Company shall, at any time and from time to time, upon the request of any
\nholder of Restricted Securities and upon the request of any Person designated by
\nsuch holder as a prospective purchaser of any Restricted Securities, furnish in
\nwriting to such holder or such prospective purchaser, as the case may be, a
\nstatement as of a date not earlier than 12 months prior to the date of such
\nrequest of the nature of the business of the Company and the products and
\nservices it offers and copies of the Company’s most recent balance sheet and
\nprofit and loss and retained earnings statements, together with similar
\nfinancial statements for such part of the two preceding fiscal years as the
\nCompany shall have been in operation, all such financial statements to be
\naudited to the extent audited statements are reasonably available, provided
\nthat, in any event the most recent financial statements so furnished shall
\ninclude a balance sheet as of a date less than 16 months prior to the date of
\nsuch request, statements of profit and loss and retained earnings for the 12
\nmonths preceding the date of such balance sheet, and, if such balance sheet is
\nnot as of a date less than six months prior to the date of such request,
\nadditional statements of profit and loss and retained earnings for the period
\nfrom the date of such balance sheet to a date less than six months prior to the
\ndate of such request. If the Company shall have filed a registration statement
\npursuant to the requirements of Section 12 of the Exchange Act or a registration
\nstatement pursuant to the requirements of the Securities Act, the Company shall
\ntimely file the reports required to be filed by it under the Securities Act and
\nthe Exchange Act (including but not limited to the reports under Sections 13 and
\n15(d) of the Exchange Act referred to in subparagraph (c) of Rule 144 adopted by
\nthe Commission under the Securities Act)) and will take such further action as
\nany holder of Restricted Securities may reasonably request, all to the extent
\nrequired from time to time to enable such holder to sell Restricted Securities
\nwithout registration under the Securities Act within the limitation of the
\nexemptions provided by (a) Rule 144 and Rule 144A under the Securities Act, as
\nsuch rules may be amended from time to time, or (b) any other rule or regulation
\nnow existing or hereafter adopted by the Commission. Upon the request of any
\nholder of Restricted Securities, the Company will deliver to such holder a
\nwritten statement as to whether it has complied with such requirements.<\/p>\n
12. RESERVATION OF STOCK, ETC. The Company shall at all times
\n ————————–
\nreserve and keep available, solely for issuance and delivery upon exercise of
\nthe Warrant, the number of shares of Common Stock (or Other Securities) from
\ntime to time issuable upon exercise of the Warrant. All shares of Common Stock
\n(or Other Securities) issuable upon exercise of the Warrant shall be duly
\nauthorized and, when issued upon such exercise, shall be validly issued and, in
\nthe case of shares, fully paid and nonassessable with no liability on the part
\nof the holders thereof, and, in the case of all securities, shall be free from
\nall taxes, liens, security interests, encumbrances, preemptive rights and
\ncharges. The transfer agent for the Common Stock, which may be the Company
\n(“Transfer Agent”), and every subsequent Transfer Agent for any shares of the
\nCompany’s capital stock issuable upon the exercise of any of the purchase rights
\nrepresented by this Warrant, are hereby irrevocably authorized and directed at
\nall times until the Expiration Date to reserve such number of authorized and
\nunissued shares as shall be requisite for such purpose. The Company shall keep
\ncopies of this Warrant on file with the Transfer Agent for the Common Stock and
\nwith every subsequent Transfer Agent for any shares <\/p>\n
10<\/p>\n
of the Company’s capital stock issuable upon the exercise of the rights of
\npurchase represented by this Warrant. The Company shall supply such Transfer
\nAgent with duly executed stock certificates for such purpose. All Warrant
\nCertificates surrendered upon the exercise of the rights thereby evidenced shall
\nbe canceled, and each such canceled Warrant shall constitute sufficient evidence
\nof the number of shares of stock which have been issued upon the exercise of
\nsuch Warrant. Subsequent to the Expiration Date, no shares of stock need be
\nreserved in respect of any unexercised Warrant.<\/p>\n
13. REGISTRATION AND TRANSFER OF WARRANTS, ETC.
\n ——————————————-<\/p>\n
13.1. Warrant Register; Ownership of Warrant. Each warrant issued by
\n ————————————–
\nthe Company shall be numbered and shall be registered in a warrant register (the
\n“Warrant Register”) as it is issued and transferred, which Warrant Register
\nshall be maintained by the Company at its principal office or, at the Company’s
\nelection and expense, by a Warrant Agent or the Company’s transfer agent. The
\nCompany shall be entitled to treat the registered holder of any warrant on the
\nWarrant Register as the owner in fact thereof for all purposes. If and when any
\nwarrant is properly assigned in blank, the Company shall treat the bearer
\nthereof as the owner of such warrant for all purposes. Subject to Section 10, a
\nwarrant, if properly assigned, may be exercised by a new holder without a new
\nwarrant first having been issued.<\/p>\n
13.2. Transfer of Warrant. Subject to compliance with Section 10, if
\n ——————-
\napplicable, this Warrant and all rights hereunder are transferable in whole or
\nin part, without charge to the Holder hereof, upon surrender of this Warrant
\nwith a properly executed Form of Assignment attached hereto as Exhibit B at the
\nprincipal office of the Company. Upon any partial transfer, the Company shall
\nat its expense issue and deliver to the Holder a new Warrant of like tenor, in
\nthe name of the Holder, which shall be exercisable for such number of shares of
\nCommon Stock with respect to which rights under this Warrant were not so
\ntransferred.<\/p>\n
13.3. Replacement of Warrant. On receipt by the Company of evidence
\n ———————-
\nreasonably satisfactory to the Company of the loss, theft, destruction or
\nmutilation of this Warrant and, in the case of any such loss, theft or
\ndestruction of this Warrant or, in the case of any such mutilation, on surrender
\nof such Warrant to the Company at its principal office and cancellation thereof,
\nthe Company at its expense shall execute and deliver, in lieu thereof, a new
\nWarrant of like tenor.<\/p>\n
13.4. Adjustments To Purchase Price and Number of Shares.
\n ————————————————–
\nNotwithstanding any adjustment in the Purchase Price or in the number or kind of
\nshares of Common Stock purchasable upon exercise of this Warrant, any Warrant
\ntheretofore or thereafter issued may continue to express the same number and
\nkind of shares of Common Stock as are stated in this Warrant, as initially
\nissued.<\/p>\n
13.5. Fractional Shares. Notwithstanding any adjustment pursuant to
\n —————–
\nSection 3 in the number of shares of Common Stock covered by this Warrant or any
\nother provision of this Warrant, the Company shall not be required to issue
\nfractions of shares upon exercise of this Warrant or to distribute certificates
\nwhich evidence fractional shares. In lieu of fractional shares, the Company
\nshall make payment to the Holder, at the time of exercise of this Warrant as
\nherein <\/p>\n
11<\/p>\n
provided, in an amount in cash equal to such fraction multiplied by the Current
\nMarket Price of a share of Common Stock on the date of Warrant exercise.<\/p>\n
14. REMEDIES; SPECIFIC PERFORMANCE. The Company stipulates that
\n ——————————
\nthere would be no adequate remedy at law to the Holder of this Warrant in the
\nevent of any default or threatened default by the Company in the performance of
\nor compliance with any of the terms of this Warrant and accordingly, the Company
\nagrees that, in addition to any other remedy to which the Holder may be entitled
\nat law or in equity, the Holder shall be entitled to seek to compel specific
\nperformance of the obligations of the Company under this Warrant, without the
\nposting of any bond, in accordance with the terms and conditions of this Warrant
\nin any court of the United States or any State thereof having jurisdiction, and
\nif any action should be brought in equity to enforce any of the provisions of
\nthis Warrant, the Company shall not raise the defense that there is an adequate
\nremedy at law. Except as otherwise provided by law, a delay or omission by the
\nHolder hereto in exercising any right or remedy accruing upon any such breach
\nshall not impair the right or remedy or constitute a waiver of or acquiescence
\nin any such breach. No remedy shall be exclusive of any other remedy. All
\navailable remedies shall be cumulative.<\/p>\n
15. NO RIGHTS OR LIABILITIES AS SHAREHOLDER. Nothing contained in
\n —————————————
\nthis Warrant shall be construed as conferring upon the Holder hereof any rights
\nas a stockholder of the Company or as imposing any obligation on the Holder to
\npurchase any securities or as imposing any liabilities on the Holder as a
\nstockholder of the Company, whether such obligation or liabilities are asserted
\nby the Company or by creditors of the Company.<\/p>\n
16. NOTICES. All notices and other communications (and deliveries)
\n ——-
\nprovided for or permitted hereunder shall be made in writing by hand delivery,
\ntelecopier, any courier guaranteeing overnight delivery or first class
\nregistered or certified mail, return receipt requested, postage prepaid,
\naddressed (a) if to the Company, to the attention of its President at its
\nprincipal office located at __________________ or such other address as may
\nhereafter be designated in writing by the Company to the Holder in accordance
\nwith the provisions of this Section, or (b) if to the Holder, at its address as
\nit appears in the Warrant Register.<\/p>\n
All such notices and communications (and deliveries) shall be deemed
\nto have been duly given: at the time delivered by hand, if personally
\ndelivered; when receipt is acknowledged, if telecopied; on the next Business
\nDay, if timely delivered to a courier guaranteeing overnight delivery; and five
\ndays after being deposited in the mail, if sent first class or certified mail,
\nreturn receipt requested, postage prepaid; provided, that the exercise of any
\nWarrant shall be effective in the manner provided in Section 2.<\/p>\n
17. AMENDMENTS. This Warrant and any term hereof may not be amended,
\n ———-
\nmodified, supplemented or terminated, and waivers or consents to departures from
\nthe provisions hereof may not be given, except by written instrument duly
\nexecuted by the party against which enforcement of such amendment, modification,
\nsupplement, termination or consent to departure is sought.<\/p>\n
12<\/p>\n
18. DESCRIPTIVE HEADINGS, ETC. The headings in this Warrant are for
\n ————————–
\nconvenience of reference only and shall not limit or otherwise affect the
\nmeaning of terms contained herein. Unless the context of this Warrant otherwise
\nrequires: (1) words of any gender shall be deemed to include each other gender;
\n(2) words using the singular or plural number shall also include the plural or
\nsingular number, respectively; (3) the words “hereof”, “herein” and “hereunder”
\nand words of similar import when used in this Warrant shall refer to this
\nWarrant as a whole and not to any particular provision of this Warrant, and
\nSection and paragraph references are to the Sections and paragraphs of this
\nWarrant unless otherwise specified; (4) the word “including” and words of
\nsimilar import when used in this Warrant shall mean “including, without
\nlimitation,” unless otherwise specified; (5) “or” is not exclusive; and (6)
\nprovisions apply to successive events and transactions.<\/p>\n
19. GOVERNING LAW. This Warrant shall be governed by, and construed
\n ————-
\nin accordance with, the laws of the State of New York (without giving effect to
\nthe conflict of laws principles thereof).<\/p>\n
20. JUDICIAL PROCEEDINGS; WAIVER OF JURY. Any legal action, suit or
\n ————————————
\nproceeding brought against the Company with respect to this Warrant may be
\nbrought in any federal court of Colorado or the Southern District of New York or
\nany state court located in New York County, State of New York, or in Denver or
\nArapahoe County, Colorado and by execution and delivery of this Warrant, the
\nCompany hereby irrevocably and unconditionally waives any claim (by way of
\nmotion, as a defense or otherwise) of improper venue, that it is not subject
\npersonally to the jurisdiction of such court, that such courts are an
\ninconvenient forum or that this Warrant or the subject matter may not be
\nenforced in or by such court. The Company hereby irrevocably and
\nunconditionally consents to the service of process of any of the aforementioned
\ncourts in any such action, suit or proceeding by the mailing of copies thereof
\nby registered or certified mail, postage prepaid, at its address set forth or
\nprovided for in Section 16, such service to become effective 10 days after such
\nmailing. Nothing herein contained shall be deemed to affect the right of any
\nparty to serve process in any manner permitted by law or commence legal
\nproceedings or otherwise proceed against any other party in any other
\njurisdiction to enforce judgments obtained in any action, suit or proceeding
\nbrought pursuant to this Section. The Company irrevocably submits to the
\nexclusive jurisdiction of the aforementioned courts in such action, suit or
\nproceeding. THE COMPANY HEREBY IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION,
\nSUIT OR PROCEEDING, WHETHER AT LAW OR EQUITY, BROUGHT BY IT OR THE HOLDER IN
\nCONNECTION WITH THIS WARRANT OR THE TRANSACTIONS CONTEMPLATED HEREBY.<\/p>\n
13<\/p>\n
21. COSTS AND ATTORNEYS’ FEES. In the event that any action, suit or
\n ————————-
\nother proceeding is instituted concerning or arising out of this Warrant, the
\nCompany agrees and the Holder, by taking and holding this Warrant agrees, that
\nthe prevailing party shall recover from the non-prevailing party all of such
\nprevailing party’s costs and reasonable attorneys’ fees incurred in each and
\nevery such action, suit or other proceeding, including any and all appeals or
\npetitions therefrom.<\/p>\n
NAVIGANTVACATIONS.COM, LLC<\/p>\n
By:________________________________
\n Title:<\/p>\n
14<\/p>\n
EXHIBIT A to
\n Common Stock Purchase Warrant
\n —————————–<\/p>\n
[FORM OF]
\n ELECTION TO PURCHASE SHARES<\/p>\n
The undersigned hereby irrevocably elects to exercise the Warrant to
\npurchase ____ Common Units (“Common Units”), of NavigantVacations.com, LLC. and
\nhereby makes payment of $________ therefor, or makes payment therefor by
\nreduction pursuant to Section 2.1(b)(iii) of the Warrant of the number of shares
\nof Common Stock otherwise issuable to the Holder upon Warrant exercise by ___
\nshares or makes payment therefor by delivery of the following Common Stock
\nCertificates of the Company (properly endorsed for transfer in blank) for
\ncancellation by the Company pursuant to Section 2.1(b)(iv) of the Warrant,
\ncertificates of which are attached hereto for cancellation _______________ [list
\ncertificates by number and amount]]. The undersigned hereby requests that
\ncertificates for such shares be issued and delivered as follows:<\/p>\n
ISSUE TO:_______________________________________________________________________
\n (NAME)<\/p>\n
________________________________________________________________________________
\n (ADDRESS, INCLUDING ZIP CODE)<\/p>\n
________________________________________________________________________________
\n (SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER)<\/p>\n
DELIVER TO:_____________________________________________________________________
\n (NAME)<\/p>\n
________________________________________________________________________________
\n (ADDRESS, INCLUDING ZIP CODE)<\/p>\n
If the number of shares of Common Stock purchased (and\/or reduced)
\nhereby is less than the number of shares of Common Stock covered by the Warrant,
\nthe undersigned requests that a new Warrant representing the number of Common
\nUnits not so purchased (or reduced) be issued and delivered as follows:<\/p>\n
ISSUE TO:_______________________________________________________________________
\n (NAME OF HOLDER)<\/p>\n
________________________________________________________________________________
\n (ADDRESS, INCLUDING ZIP CODE)<\/p>\n
DELIVER TO:_____________________________________________________________________
\n (NAME OF HOLDER\/1\/)<\/p>\n
________________________________________________________________________________
\n (ADDRESS, INCLUDING ZIP CODE)<\/p>\n
Dated: _________ __, ____ [OCH-ZIFF ENTITY]<\/p>\n
By____________________________
\n Name:
\n Title:<\/p>\n
15<\/p>\n
EXHIBIT B to
\n Common Unit Purchase Warrant
\n —————————-<\/p>\n
[FORM OF] ASSIGNMENT<\/p>\n
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and
\ntransfers unto the Assignee named below all of the rights of the undersigned to
\npurchase Common Units, (“Common Units”) of NavigantVacations.com, LLC
\nrepresented by the Warrant, with respect to the number of units of Common Units
\nset forth below:<\/p>\n
Name of Assignee Address No. of Shares
\n—————- ——- ————-<\/p>\n
and does hereby irrevocably constitute and appoint ________ Attorney to make
\nsuch transfer on the books of NavigantVacations.com, LLC maintained for that
\npurpose, with full power of substitution in the premises.<\/p>\n
Dated: _______________, ____ [OCH-ZIFF Entity]<\/p>\n
By_____________________________
\n Name:
\n Title:<\/p>\n
16<\/p>\n
Exhibit 8.1<\/p>\n
INITIAL CAPITAL CONTRIBUTIONS<\/p>\n
\n\n Name of Initial Capital Type of Units\/Percentage
\n ——- ————— ————————
\n Initial Member Contribution Ownership*
\n ————– ———— ———
\n
\nNavigant Internet technology, know- 750,000 Common Units
\n how, trade secrets
\n trademarks, trade names
\n trade secrets including
\n access to customer list, the
\n contribution of which are
\n governed exclusively by the
\n License Agreement, and the
\n Business Plan with an
\n agreed value of
\n $15,000,000. <\/p>\nOch-Ziff Partners $853,250 42,662.5 Common Units
\nDomestic
\n $4,266,250 4,266.25 Preferred Units
\n convertible into (x) 42,662.5
\n Common Units
\n plus (y) an amount of Common
\n Units which is equal to the
\n Accretion Amount dividend by 125 <\/p>\n
Och-Ziff Partners $1,646,750 82,337.5 Common Units
\nOverseas
\n $8,233,750 8,233.75 Preferred Units
\n convertible into (x) 82,337.5
\n Common Units
\n plus (y) an amount of Common
\n Units which is equal to the
\n Accretion Amount divided by 125
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
Exhibit 10.5(h)<\/p>\n
NavigantVacations.com, Inc.<\/p>\n
Registration Agreement<\/p>\n
TABLE OF CONTENTS<\/p>\n
\n\n Page
\n —-
\n
\nArticle I Certain Definitions……………………………………… 1<\/p>\nArticle II Registration Rights……………………………………… 3<\/p>\n
2.1 Demand Registrations………………………………………… 3
\n 2.2 Piggyback Registrations……………………………………… 4
\n 2.3 Expenses of Registration…………………………………….. 5
\n 2.4 Registration Procedures……………………………………… 5
\n 2.5 Indemnification…………………………………………….. 6
\n 2.6 Other Obligations…………………………………………… 8
\n 2.7 Termination of Registration Rights……………………………. 9<\/p>\n
Article III Miscellaneous…………………………………………. 9<\/p>\n
3.1 Governing Law………………………………………………. 9
\n 3.2 Successors and Assigns………………………………………. 9
\n 3.3 Entire Agreement: Amendment and Waiver………………………… 9
\n 3.4 Notices, Etc……………………………………………….. 9
\n 3.5 Delays or Omissions…………………………………………. 10
\n 3.6 Severability……………………………………………….. 10
\n 3.7 Counterparts……………………………………………….. 10
\n 3.8 Specific Enforcement………………………………………… 10
\n<\/c><\/s><\/caption>\n<\/table>\n
REGISTRATION AGREEMENT<\/p>\n
This Registration Agreement (this “Agreement”) dated as of
\n___________, ____, is by and among (i) NavigantVacations.com, Holdings Inc., a
\nDelaware corporation (the “Company”), (ii) Oz Domestic Partners, L.P. and OZ
\nSPCI, Ltd. (the “Investors”), and (iii) NavigantVacations.com Holdings, Inc. and
\nNavigant International, Inc. (the “Management Holders”). The Investors and the
\nManagement Holders are referred to collectively as the “Stockholders.”<\/p>\n
The Investors and certain of the Management Holders were members of
\nNavigantVacations.com, LLC, a Delaware limited liability company (the “LLC”).
\nThe LLC has been reorganized into the Company. One of the conditions to the
\nreorganization is that the Company enter into this Agreement.<\/p>\n
Now, Therefore, in consideration of the mutual promises and covenants
\nset forth herein, the parties agree as follows:<\/p>\n
Article I<\/p>\n
Certain Definitions<\/p>\n
As used in this Agreement, the following terms shall have the
\nfollowing respective meanings:<\/p>\n
1.1 “Commission” shall mean the Securities and Exchange Commission or
\nany other federal agency at the time administering the Securities Act.<\/p>\n
1.2 “Common Stock” shall mean the Company’s Common Stock, $.__ par
\nvalue per share.<\/p>\n
1.3 “Exchange Act” shall mean the Securities Exchange Act of 1934 (or
\nany similar successor federal statute), as amended, and the rules and
\nregulations thereunder, all as the same shall be in effect from time to time.<\/p>\n
1.4 “Initiating Investor Holders” shall mean holders of Investor
\nRegistrable Securities representing not less than thirty-three percent (33%) of
\nthe then-outstanding Investor Registrable Securities.<\/p>\n
1.5 “Initiating Management Holders” shall mean holders of Management
\nRegistrable Securities representing not less than thirty-three percent (33%) of
\nthe then-outstanding Management Registrable Securities.<\/p>\n
1.6 “Investor Registrable Securities” shall mean the Investor Stock;
\nprovided, however, that Investor Registrable Securities shall not include any
\nshares of Investor Stock that have previously been registered under the
\nSecurities Act or that have otherwise been sold to the public in an open-market
\ntransaction under Rule 144.<\/p>\n
1.7 “Investor Stock” shall mean (i) shares of Common Stock owned by
\nthe Investors or any transferee thereof; (ii) shares of Common Stock issued or
\nissuable upon the conversion or exercise of any stock, warrants, options or
\nother securities of the Company owned by the Investors or any transferee
\nthereof; and (iii) any shares of Common Stock issued as a dividend or other
\ndistribution with respect to or in exchange for or in replacement of the shares
\nreferenced in (i) and (ii)above.<\/p>\n
1.8 “Management Registrable Securities” shall mean the Management
\nStock; provided, however, that Management Registrable Securities shall not
\ninclude any shares of Management Stock that have previously been registered
\nunder the Securities Act or that have otherwise been sold to the public in an
\nopen-market transaction under Rule 144.<\/p>\n
1.9 “Management Stock” shall mean (i) shares of Common Stock owned by
\nthe Management Holders or any transferee thereof; (ii) shares of Common Stock
\nissued or issuable upon the conversion or exercise of any options or other
\nsecurities of the Company owned by the Management Holders or any transferee
\nthereof; and (iii) any shares of Common Stock issued as a dividend or other
\ndistribution with respect to or in exchange for or in replacement of the shares
\nreferenced in (i) and (ii) above.<\/p>\n
1.10 “Registrable Securities” shall mean Investor Registrable
\nSecurities and Management Registrable Securities.<\/p>\n
1.11 The terms “registers,” “registered” and “registration” shall
\nrefer to a registration effected by preparing and filing a registration
\nstatement in compliance with the Securities Act and the declaration or ordering
\nof the effectiveness of such registration statement by the Commission.<\/p>\n
1.12 “Registration Expenses” shall mean all expenses incurred in
\neffecting any registration pursuant to this Agreement, including without
\nlimitation all registration, qualification and filing fees, printing expenses,
\nescrow fees, fees and disbursements of counsel for the Company, blue sky fees
\nand expenses, expenses of any regular or special audits incident to or required
\nby any such registration, and the fees and expenses of one counsel for the
\nselling holders of Registrable Securities, but excluding Selling Expenses.<\/p>\n
1.13 “Rule 144” shall mean Rule 144 as promulgated by the Commission
\nunder the Securities Act, as such Rule may be amended from time to time, or any
\nsimilar successor rule that may be promulgated by the Commission.<\/p>\n
1.14 “Securities Act” shall mean the Securities Act of 1933 (or any
\nsimilar successor federal statute), as amended, and the rules and regulations
\nthereunder, all as the same shall be in effect from time to time.<\/p>\n
1.15 “Selling Expenses” shall mean all underwriting discounts and
\nselling commissions applicable to the sale of Registrable Securities.<\/p>\n
2<\/p>\n
Article II
\n Registration Rights<\/p>\n
2.1 Demand Registrations.<\/p>\n
(a) Request for Registration by Investors. At any time or times after
\nthe effective date of the first registration statement filed by the Company
\nunder the Securities Act, the Initiating Investor Holders or the Initiating
\nManagement Holders may require that the Company effect a registration under the
\nSecurities Act one time utilizing a registration on Form S-1 or any similar form
\n(a “Long Form Registration”) or, if available, a Form S-3 or any similar form (a
\n“Short-Form Registration”) (each, a “Demand Registration”). Upon receipt of
\nwritten notice of such demand, the Company will promptly give written notice of
\nthe proposed registration to all other holders of Registrable Securities and
\nwill include in such registration all Registrable Securities specified in such
\ndemand, together with all Registrable Securities of any other holder of
\nRegistrable Securities joining in such demand as are specified in a written
\nrequest received by the Company within twenty (20) days after delivery of the
\nCompany’s notice. Each of the Initiating Investor Holders and Initiating
\nManagement Holders shall be entitled to initiate one Demand Registration under
\nthis Section 2.1(a).<\/p>\n
(b) Deferral of Demand Registrations. The Company shall file a
\nregistration statement with respect to a Demand Registration requested pursuant
\nto Section 2.1(a) above as soon as practicable after receipt of the demand of
\nthe Initiating Holders or the Management Initiating Holders, as the case may be;
\nprovided, however, that if in the good faith judgment of the Board of Directors
\nof the Company, such registration would be seriously detrimental to the Company
\nin that such registration would interfere with a proposed primary registration
\nof securities by the Company or any other material corporate transaction and the
\nBoard of Directors concludes, as a result, that it is advisable to defer the
\nfiling of such registration statement at such time (as evidenced by an
\nappropriate resolution of the Board), then the Company shall have the right to
\ndefer such filing for the period during which such registration would be
\nseriously detrimental; provided, however, that the Company may not defer the
\nfiling for a period of more than one hundred eighty (180) days after receipt of
\nthe demand of the Initiating Investor Holders or Initiating Management Holders
\nunless if, at the end of such one hundred eighty (180) day period the reason for
\nthe deferral still exists and the Company is taking reasonable steps to
\neliminate it, then the Company may defer the filing for an additional one
\nhundred eighty (180) day period.<\/p>\n
(c) Underwriting. If the Initiating Investor Holders or Initiating
\nManagement Holders intend to distribute the Registrable Securities covered by a
\nDemand Registration by means of an underwriting, they shall so advise the
\nCompany as a part of their demand made pursuant to Section 2.1 (a), and the
\nCompany shall include such information in its written notice to holders of
\nRegistrable Securities. The Company shall have the right to select the managing
\nunderwriter(s) for an underwritten Demand Registration, subject to the approval
\nof the parties initiating the Demand Registration (which shall not be
\nunreasonably withheld or delayed. The right of any holder of <\/p>\n
3<\/p>\n
Registrable Securities to participate in an underwritten Demand Registration
\nshall be conditioned upon such holder’s participation in such underwriting in
\naccordance with the terms and conditions thereof, and the Company and such
\nholders will enter into an underwriting agreement in customary form.<\/p>\n
(d) Priorities. The holders of Registrable Securities will have
\npriority over any other securities included in their Demand Registration. If
\nother securities are included in any Demand Registration initiated by the
\nInitiating Investor Holders or the Initiating Management Holders that is not an
\nunderwritten offering, all Registrable Securities included in such offering
\nshall be sold prior to the sale of any of such other securities. If other
\nsecurities are included in any Demand Registration initiated by the Initiating
\nInvestor Holders or the Initiating Management Holders that is an underwritten
\noffering, and the managing underwriter for such offering advises the Company
\nthat in its opinion the amount of securities to be included exceeds the amount
\nof securities which can be sold in such offering without adversely affecting the
\nmarketability thereof, the Company will include in such registration all
\nRegistrable Securities requested to be included therein prior to the inclusion
\nof any other securities. If the number of Registrable Securities requested to be
\nincluded in such registration exceeds the amount of securities which in the
\nopinion of such underwriter can be sold without adversely affecting the
\nmarketability of such offering, such Registrable Securities shall be included
\npro rata among the holders thereof based on the percentage of the outstanding
\nCommon Stock held by each such Stockholder (assuming the conversion of all
\nsecurities and the exercise of all options, warrants and similar rights held by
\nsuch Stockholder).<\/p>\n
2.2 Piggyback Registrations.<\/p>\n
(a) Request for Inclusion. If, at any time or times after the
\neffective date of the first registration statement filed by the Company under
\nthe Securities Act, the Company shall determine to register any of its
\nsecurities for its own account or for the account of other security holders of
\nthe Company on any registration form (other than Form S-4 or S-8 or any similar
\nforms) which permits the inclusion of Registrable Securities (a “Piggyback
\nRegistration”), the Company will promptly give each holder of Registrable
\nSecurities written notice thereof and, subject to Section 2.2(c), shall include
\nin such registration all the Registrable Securities requested to be included
\ntherein pursuant to the written requests of holders of Registrable Securities
\nreceived within twenty (20) days after delivery of the Company’s notice.<\/p>\n
(b) Underwriting. If the Piggyback Registration relates to an
\nunderwritten public offering, the Company shall so advise the holders of
\nRegistrable Securities as a part of the written notice given pursuant to Section
\n2.2(a). In such event, the right of any holder of Registrable Securities to
\nparticipate in such registration shall be conditioned upon such holder’s
\nparticipation in such underwriting in accordance with the terms and conditions
\nthereof. All holders of Registrable Securities proposing to distribute their
\nsecurities through such underwriting shall (together with the Company) enter
\ninto an underwriting agreement in customary form with the representative of the
\nunderwriter or underwriters selected by the Company.<\/p>\n
4<\/p>\n
(c) Priorities. If such proposed Piggyback Registration is an
\nunderwritten offering and the managing underwriter for such offering advises the
\nCompany that the amount of securities requested to be included therein exceeds
\nthe amount of securities that can be sold in such offering, any securities to be
\nsold by the Company in such offering shall have priority over any Registrable
\nSecurities, and, except as otherwise provided in Section 2.1(a), the number of
\nshares to be included by a holder of Registrable Securities in such registration
\nshall be reduced pro rata on the basis of the percentage of the outstanding
\nCommon Stock held by such Stockholder (assuming the conversion of all securities
\nand the exercise of all options, warrants and similar rights held by such
\nStockholder) and all other holders exercising similar registration rights.<\/p>\n
2.3 Expenses of Registration. All Registration Expenses incurred in
\nconnection with the Demand Registrations and all Piggyback Registrations shall
\nbe borne by the Company. All Selling Expenses relating to Registrable
\nSecurities included in any Demand or Piggyback Registration shall be borne by
\nthe holders of such securities pro rata on the basis of the number of shares
\nsold by them.<\/p>\n
2.4 Registration Procedures. In the case of each registration
\neffected by the Company pursuant to this Article II, the Company will keep each
\nholder of Registrable Securities advised in writing as to the initiation of such
\nregistration and as to the completion thereof. At its expense, the Company will
\nuse its reasonable efforts to:<\/p>\n
(a) cause such registration to be declared effective by the Commission
\nand, in the case of a Demand Registration, keep such registration effective for
\na period of one hundred eighty (180) days or until the holders of Registrable
\nSecurities included therein have completed the distribution described in the
\nregistration statement relating thereto, whichever first occurs;<\/p>\n
(b) prepare and file with the Commission such amendments and
\nsupplements to such registration statement and the prospectus used in connection
\nwith such registration statement (including post-effective amendments) as may be
\nnecessary to comply with the provisions of the Securities Act with respect to
\nthe disposition of all securities covered by such registration statement;<\/p>\n
(c) obtain appropriate qualifications of the securities covered by
\nsuch registration under state securities or “blue sky” laws in such
\njurisdictions as may be requested by the holders of Registrable Securities;
\nprovided, however, that the Company shall not be required to file a general
\nconsent to service of process in any jurisdiction in which it is not otherwise
\nsubject to service in order to obtain any such qualification;<\/p>\n
(d) furnish such number of prospectuses and other documents incident
\nthereto, including any amendment of or supplement to the prospectus, as a holder
\nof Registrable Securities from time to time may reasonably request;<\/p>\n
(e) notify each holder of Registrable Securities covered by such
\nregistration statement, at any time when a prospectus relating thereto is
\nrequired to be <\/p>\n
5<\/p>\n
delivered under the Securities Act, of the happening of any event as a result of
\nwhich the prospectus included in such registration statement, as then in effect,
\nincludes an untrue statement of a material fact or omits to state a material
\nfact required to be stated therein or necessary to make the statements therein
\nnot misleading or incomplete in the light of the circumstances then existing,
\nand at the request of any such holder, prepare and furnish to such holder a
\nreasonable number of copies of a supplement to or an amendment of such
\nprospectus as may be necessary so that, as thereafter delivered to the
\npurchasers of such shares, such prospectus shall not include an untrue statement
\nof a material fact or omit to state a material fact required to be stated
\ntherein or necessary to make the statements therein not misleading or incomplete
\nin the light of the circumstances then existing;<\/p>\n
(f) cause all Registrable Securities covered by such registration to
\nbe listed on each securities exchange or inter-dealer quotation system on which
\nsimilar securities issued by the Company are then listed;<\/p>\n
(g) provide a transfer agent and registrar for all Registrable
\nSecurities covered by such registration and a CUSIP number for all such
\nRegistrable Securities, in each case not later than the effective date of such
\nregistration;<\/p>\n
(h) otherwise comply with all applicable rules and regulations of the
\nCommission; and<\/p>\n
(i) in connection with any underwritten Demand Registration, the
\nCompany will enter into an underwriting agreement reasonably satisfactory to the
\nInvestor Initiating Holders and the Management Initiating Holders containing
\ncustomary underwriting provisions, including indemnification and contribution
\nprovisions.<\/p>\n
2.5 Indemnification.<\/p>\n
(a) The Company will indemnify each holder of Registrable Securities,
\neach of such holders’ officers, directors, partners, agents, employees and
\nrepresentatives, and each person controlling such holder within the meaning of
\nSection 15 of the Securities Act, with respect to each registration,
\nqualification or compliance effected pursuant to this Article II, against all
\nexpenses, claims, losses, damages and liabilities (or actions, proceedings or
\nsettlements in respect thereof) arising out of or based on any untrue statement
\n(or alleged untrue statement) of a material fact contained in any prospectus,
\noffering circular or other document (including any related registration
\nstatement, notification or the like) incident to any such registration,
\nqualification or compliance, or based on any omission (or alleged omission) to
\nstate therein a material fact required to be stated therein or necessary to make
\nthe statements therein not misleading, or any violation by the Company of the
\nSecurities Act or any rule or regulation thereunder applicable to the Company
\nand relating to action or inaction required of the Company in connection with
\nany such registration, qualification or compliance, and will reimburse each such
\nindemnified person for any legal and any other expenses reasonably incurred in
\nconnection with investigating and defending or settling <\/p>\n
6<\/p>\n
any such claim, loss, damage, liability or action; provided, however, that the
\nCompany will not be liable in any such case to the extent that any such claims,
\nloss, damage, liability or expense arises out of or is based on any untrue
\nstatement or omission based upon written information furnished to the Company by
\nsuch holder of Registrable Securities and stated to be specifically for use
\ntherein. It is agreed that the indemnity agreement contained in this Section
\n2.5(a) shall not apply to amounts paid in settlement of any such loss, claim,
\ndamage, liability or action if such settlement is effected without the consent
\nof the Company (which consent has not been unreasonably withheld).<\/p>\n
(b) Each holder of Registrable Securities included in any registration
\neffected pursuant to this Article II shall indemnify the Company, each of its
\ndirectors, officers, agents, employees and representatives, and each person who
\ncontrols the Company within the meaning of Section 15 of the Securities Act,
\neach other such holder of Registrable Securities, and each of their officers,
\ndirectors and partners, and each person controlling such holders, against all
\nclaims, losses, damages and liabilities (or actions in respect thereof) arising
\nout of or based on any untrue statement (or alleged untrue statement) of a
\nmaterial fact contained in any such registration statement, prospectus, offering
\ncircular or other document, or any omission (or alleged omission) to state
\ntherein a material fact required to be stated therein or necessary to make the
\nstatements therein not misleading, and will reimburse such indemnified persons
\nfor any legal or any other expenses reasonably incurred in connection with
\ninvestigating or defending any such claim, loss, damage, liability or action, in
\neach case to the extent, but only to the extent, that such untrue statement (or
\nalleged untrue statement) or omission (or alleged omission) is made in such
\nregistration statement, prospectus, offering circular or other document in
\nreliance upon and in strict conformity with written information furnished to the
\nCompany by such holder of Registrable Securities; provided, however, that no
\nholder of Registrable Securities shall be liable hereunder for any amounts in
\nexcess of the net proceeds received by such holder pursuant to such
\nregistration.<\/p>\n
(c) Each party entitled to indemnification under this Section 2.5 (the
\n“Indemnified Party”) shall give notice to the party required to provide
\nindemnification (the “Indemnifying Party”) promptly after such Indemnified Party
\nhas actual knowledge of any claim as to which indemnity may be sought, and shall
\npermit the Indemnifying Party to assume the defense of any such claim or any
\nlitigation resulting therefrom, provided that counsel for the Indemnified Party,
\nwho shall conduct the defense of such claim or any litigation resulting
\ntherefrom, shall be approved by the Indemnified Party (whose approval shall not
\nunreasonably be withheld), and the Indemnified Party may participate in such
\ndefense at such party’s expense, and provided further that the failure of any
\nIndemnified Party to give notice as provided herein shall not relieve the
\nIndemnifying Party of its obligations under this Section 2.5 to the extent such
\nfailure is not prejudicial. No Indemnifying Party in the defense of any such
\nclaim or litigation shall, except with the consent of each Indemnified Party,
\nconsent to entry of any judgment or enter into any settlement which does not
\ninclude an unconditional release of such Indemnified Party from all liability in
\nrespect to such claim or litigation. Each Indemnified Party shall furnish such
\ninformation regarding itself or the claim in question <\/p>\n
7<\/p>\n
as an Indemnifying Party may reasonably request in writing and as shall be
\nreasonably required in connection with defense of such claim and litigation
\nresulting therefrom.<\/p>\n
(d) If the indemnification provided for in this Section 2.5 is held by
\na court of competent jurisdiction to be unavailable to an Indemnified Party with
\nrespect to any loss, liability, claim, damage or expense referred to therein,
\nthen the Indemnifying Party, in lieu of indemnifying such Indemnified Party
\nhereunder, shall contribute to the amount paid or payable by such Indemnified
\nParty as a result of such loss, liability, claim, damage or expense in such
\nproportion as is appropriate to reflect the relative fault of the Indemnifying
\nParty on the one hand and of the Indemnified Party on the other in connection
\nwith the statements or omissions which resulted in such loss, liability, claim,
\ndamage or expense as well as any other relevant equitable considerations. The
\nrelative fault of the Indemnifying Party and of the Indemnified Party shall be
\ndetermined by reference to, among other things, whether the untrue or alleged
\nuntrue statement of a material fact or the omission to state a material fact
\nrelates to information supplied by the Indemnifying Party or by the Indemnified
\nParty and the parties’ relative intent, knowledge, access to information and
\nopportunity to correct or prevent such statement or omission.<\/p>\n
(e) Notwithstanding the foregoing, to the extent that the provisions
\non indemnification and contribution contained in an underwriting agreement
\nentered into in connection with an underwritten public offering are in conflict
\nwith the foregoing provisions, the provisions in the underwriting agreement
\nshall control.<\/p>\n
2.6 Other Obligations. With a view to making available the benefits
\nof certain rules and regulations of the Commission which may effectuate the
\nregistration of Registrable Securities or permit the sale of Registrable
\nSecurities to the public without registration, the Company agrees to:<\/p>\n
(a) after its initial registration under the Securities Act, exercise
\nreasonable best efforts to cause the Company to be eligible to utilize Form S-3
\n(or any similar form) for the registration of Registrable Securities;<\/p>\n
(b) at such time as any Registrable Securities are eligible for
\ntransfer under Rule 144(k), upon the request of the holder of such Registrable
\nSecurities, remove any restrictive legend from the certificates evidencing such
\nsecurities at no cost to such holder;<\/p>\n
(c) make and keep available public information as defined in Rule 144
\nunder the Securities Act at all times from and after ninety (90) days following
\nits initial registration under the Securities Act;<\/p>\n
(d) file with the Commission in a timely manner all reports and other
\ndocuments required of the Company under the Securities Act and the Exchange Act
\nat any time after it has become subject to such reporting requirements; and<\/p>\n
8<\/p>\n
(e) furnish any holder of Registrable Securities upon request a
\nwritten statement by the Company as to its compliance with the reporting
\nrequirements of Rule 144 (at any time from and after ninety (90) days following
\nthe effective date of the first registration statement filed by the Company for
\nan offering of its securities to the general public), and of the Securities Act
\nand the Exchange Act (at any time after it has become subject to such reporting
\nrequirements), a copy of the most recent annual or quarterly report of the
\nCompany, and such other reports and documents as a holder of Registrable
\nSecurities may reasonably request in availing itself of any rule or regulation
\nof the Commission (including Rule 144A) allowing a holder of Registrable
\nSecurities to sell any such securities without registration.<\/p>\n
2.7 Termination of Registration Rights. The right of any holder of
\nRegistrable Securities to request inclusion of Registrable Securities in any
\nregistration pursuant to this Article II shall terminate when (i) all
\nRegistrable Securities beneficially owned by such holder of Registrable
\nSecurities may immediately be sold under Rule 144(k), and (ii) the Company’s
\nCommon Stock is listed on a national securities exchange or traded in The Nasdaq
\nStock Market.<\/p>\n
Article III<\/p>\n
Miscellaneous<\/p>\n
3.1 Governing Law. This Agreement shall be governed in all respects by the
\nlaws of the State of Delaware.<\/p>\n
3.2 Successors and Assigns. Except as otherwise expressly provided herein,
\nthe provisions hereof shall inure to the benefit of, and be binding upon, the
\nsuccessors, assigns, heirs, executors and administrators of the parties hereto.
\nAt the request of the Company, a transferee of Investor Stock or Management
\nStock will execute a copy of this Agreement.<\/p>\n
3.3 Entire Agreement: Amendment and Waiver. This Agreement supersedes any
\nother agreement, whether written or oral, that may have been made or entered
\ninto by the parties hereto relating to the matters contemplated hereby and
\nconstitute the full and entire understanding and agreement between the parties
\nwith regard to the subjects hereof. In particular, the execution of this
\nAgreement shall terminate all prior stockholders agreements and registration
\nrights agreements, or any similar agreement to the foregoing, among any Investor
\nand the Company. Neither this Agreement nor any term hereof may be amended,
\nwaived, discharged or terminated except by a written instrument signed by the
\nCompany and the holders of at least (a) two-thirds of the outstanding Investor
\nStock and (b) two-thirds of the outstanding Management Stock, and any such
\namendment, waiver, discharge or termination shall be binding on all the
\nStockholders.<\/p>\n
3.4 Notices, Etc. All notices and other communications required or
\npermitted hereunder shall be in writing and shall be deemed effectively given:
\n(i) upon personal <\/p>\n
9<\/p>\n
delivery to the party to be notified, (ii) when sent by confirmed telex,
\nfacsimile or e-mail if sent during normal business hours of the recipient, if
\nnot, then on the next business day, (iii) five (5) days after having been sent
\nby registered or certified mail, return receipt requested, postage prepaid, or
\n(iv) one (1) day after deposit with a nationally recognized overnight courier,
\nspecial next day delivery, with verification of receipt. All communications
\nshall be sent to the Company at ____________ and to a Stockholder at the address
\nreflected in the Company’s stock ledger or at such other address as such
\nStockholder shall have furnished to the Company in writing.<\/p>\n
3.5 Delays or Omissions. No delay or omission to exercise any right,
\npower or remedy accruing to any Stockholder under this Agreement shall impair
\nany such right, power or remedy of such Stockholder nor shall it be construed to
\nbe a waiver of any such breach or default, or an acquiescence therein, or of or
\nin any similar breach or default thereafter occurring; nor shall any waiver of
\nany single breach or default be deemed a waiver of any other breach or default
\ntheretofore or thereafter occurring. Any waiver, permit, consent or approval of
\nany kind or character on the part of any Stockholder of any breach or default
\nunder this Agreement or any waiver on the part of any Stockholder of any
\nprovisions or conditions of this Agreement must be made in writing and shall be
\neffective only to the extent specifically set forth in such writing. All
\nremedies, either under this Agreement or by law or otherwise afforded to any
\nStockholder, shall be cumulative and not alternative.<\/p>\n
3.6 Severability. Unless otherwise expressly provided herein, a
\nStockholder’s rights hereunder are several rights, not rights jointly held with
\nany of the other Stockholders. In case any provision of the Agreement shall be
\ninvalid, illegal or unenforceable, the validity, legality and enforceability of
\nthe remaining provisions shall not in any way be affected or impaired thereby.<\/p>\n
3.7 Counterparts. This Agreement may be executed in any number of
\ncounterparts, each of which shall be an original, but all of which together
\nshall constitute one instrument.<\/p>\n
3.8 Specific Enforcement. Any holder of Investor Stock or Management
\nStock shall be entitled to specific enforcement of its rights under this
\nAgreement. The parties acknowledge that money damages would be an inadequate
\nremedy for a breach of this Agreement and consent to an action for specific
\nperformance or other injunctive relief in the event of any such breach.<\/p>\n
10<\/p>\n
In Witness Whereof, the parties hereto have executed this Stockholders
\nAgreement effective as of the day and year first above written.<\/p>\n
NAVIGANTVACATIONS.COM, HOLDINGS INC. <\/p>\n
By: ____________________________________ <\/p>\n
Name: __________________________________ <\/p>\n
Title: _________________________________<\/p>\n
Investors:
\n OZ DOMESTIC PARTNERS, L.P.. <\/p>\n
By: ____________________________________ <\/p>\n
Name: __________________________________ <\/p>\n
Title: _________________________________ <\/p>\n
OZ SPCI, Ltd. <\/p>\n
By: ____________________________________ <\/p>\n
Name: __________________________________ <\/p>\n
Title: _________________________________<\/p>\n
11<\/p>\n
Management Holders: <\/p>\n
NAVIGANTVACATIONS.COM HOLDINGS, INC. <\/p>\n
By: ____________________________________ <\/p>\n
Name: __________________________________ <\/p>\n
Title: _________________________________ <\/p>\n
NAVIGANT INTERNATIONAL, INC. <\/p>\n
By: ____________________________________ <\/p>\n
Name: __________________________________ <\/p>\n
Title: _________________________________<\/p>\n
12<\/p>\n
EXHIBIT 11.2(b)
\n TO NAVIGANTVACATIONS.COM, LLC AGREEMENT<\/p>\n
FORM OF
\n NAVIGANTVACATIONS.COM LLC
\n UNIT OPTION AGREEMENT<\/p>\n
This Unit Option Agreement is effective as of the ___\/th\/ day of October,
\n1999 (the “Effective Date”), by and among NavigantVacations.com, LLC (the
\n“Company”),__________(“Optionee”), and NavigantVacations.com Holdings, inc.
\n(“Navigant”).<\/p>\n
The Company and Optionee agree as follows:<\/p>\n
1. Grant of Option.
\n ————— <\/p>\n
Pursuant to that certain Option Exchange Agreement of even date herewith,
\nOptionee received an option (the “Option”) to purchase ________ of the Company’s
\nCommon Units (as defined in the Limited Liability Company Agreement of the
\nCompany) (the “Common Units”), subject to the terms and conditions of this
\nAgreement and the LLC Agreement. The Common Units represented by this Unit
\nOption Agreement shall represent ___________ of the 111,111 Common Units which
\nmay be issued pursuant to Section 11.2(b) of the Company Limited Liability
\nCompany Agreement.<\/p>\n
2. Date of Grant.
\n ————- <\/p>\n
The effective date of the grant of the Option is the Effective Date.<\/p>\n
3. Exercise Price of Units.
\n ———————– <\/p>\n
The purchase price per share for each Common Unit that may be purchased
\nupon exercise of the Option is Ten Dollars ($10.00).<\/p>\n
4. Expiration Date.
\n ————— <\/p>\n
Unless sooner terminated as provided in Section 10 of this Agreement, the
\nOption shall expire and terminate on December 31, 2009, and in no event shall
\nthe Option be exercisable after that date.<\/p>\n
5. Vesting of Option.
\n —————– <\/p>\n
The Option granted herein shall become one hundred percent (100%) vested on
\nthe Effective Date.<\/p>\n
6. Manner of Exercise.
\n —————— <\/p>\n
The Option shall be exercisable, in whole or in part, from time to time, by
\ngiving written notice of exercise to the Company. Such notice shall specify the
\nnumber of Common Units with respect to which the Option is being exercised and
\nthe amount of payment therefor and shall be <\/p>\n
accompanied by (1) payment in full of the purchase price of the shares to be
\npurchased, (2) payment of such amount as the Company shall determine to be
\nsufficient to satisfy any liability it may have for any withholding of federal,
\nstate or local income or other taxes incurred by reason of the exercise of the
\nOption, (3) a representation meeting the requirements of Section 7 if requested
\nby the Company, and (4) a Unit Restriction Agreement in substantially the form
\nattached as Exhibit A, if requested by the Company. Payment for Common Units
\nshall be in the form of either (i) cash, (ii) a certified or bank cashier’s
\ncheck to the order of the Company, or (iii) in any combination thereof.<\/p>\n
7. Investment Representation.
\n ————————- <\/p>\n
Upon demand by the Company, Optionee shall deliver to the Company a
\nrepresentation in writing that the purchase of all Common Units with respect to
\nwhich notice of exercise of the Option has been given by Optionee is being made
\nfor investment only and not for resale or with a view to distribution, and
\ncontaining such other representations and provisions with respect thereto as the
\nCompany may require. Upon such demand, delivery of such representation promptly
\nand prior to the transfer or delivery of any such Common Units and prior to the
\nexpiration of the option period shall be a condition precedent to the right to
\npurchase such Common Units.<\/p>\n
8. Unit Restriction Agreement.
\n ————————– <\/p>\n
Upon exercise of the Option, the Optionee shall execute and deliver to the
\nCompany, a Unit Restriction Agreement in substantially the form attached to this
\nAgreement as Exhibit A. Execution and delivery of the Unit Restriction
\n ———
\nAgreement prior to the transfer or delivery of any Common Units and prior to the
\nexpiration of the option period shall be a condition precedent to the right to
\npurchase such Common Units.<\/p>\n
9. Transfer of Common Units to Optionee.
\n ———————————— <\/p>\n
As soon as practicable after Optionee has given the Company written notice
\nand has otherwise met the requirements of Section 6, the Company shall issue or
\ntransfer the number of Common Units as to which the Option has been exercised
\nand shall deliver to Optionee a certificate or certificates thereof, registered
\nin Optionee’s name. No Common Units shall be issued until full payment therefor
\nshall be made. In no event shall the Company be required to transfer fractional
\nCommon Units to Optionee, and, in lieu thereof, the Company may pay an amount in
\ncash equal to the fair market value of such fractional Common Units on the date
\nof exercise. If the issuance or transfer of Common Units by the Company would
\nfor any reason, in the opinion of counsel for the Company, violate any
\napplicable federal or state laws or regulations, the Company may delay issuance
\nor transfer of such Common Units to the Optionee until compliance with such laws
\ncan reasonably be obtained. In no event shall the Company be obligated to
\neffect or obtain any listing, registration, qualification, consent or approval
\nunder any applicable federal or state laws or regulations or any contract or
\nagreement to which the Company is a party with respect to the issuance of any
\nsuch Common Units.<\/p>\n
10. Nontransferability of Option.
\n —————————- <\/p>\n
Except with the prior written consent of the Company, the Option is not
\ntransferable by Optionee other than by Will or the laws of descent and
\ndistribution, and the Option shall be exercisable during Optionee’s lifetime
\nonly by Optionee. Upon any attempt to transfer, assign, pledge, hypothecate or
\notherwise dispose of the Option contrary to the provisions hereof, or upon the
\nlevy of any attachment or similar process upon the Option, the Option shall
\nimmediately become null and void.<\/p>\n
2<\/p>\n
11. Withholding for Taxes.
\n ——————— <\/p>\n
The Company shall have the right to deduct from Optionee’s salary any
\nfederal or state taxes required by law to be withheld with respect to the
\nexercise of the Option.<\/p>\n
12. Transactions Affecting Common Units.
\n ———————————– <\/p>\n
If the Company is merged or consolidated with another entity and the
\nCompany is not the surviving entity, or if all or substantially all of the
\nassets of the Company are acquired by another entity, or if the Company is
\nliquidated or reorganized, the Company shall, as to the Option, either (1) make
\nappropriate provision for the protection of the Option by the substitution on an
\nequitable basis of the right thereafter to exercise the Option for the kind and
\namount of securities and\/or other property receivable upon such event by a
\nholder of the number of Common Units for which the Option could have been
\nexercised immediately prior to such event, if the Option had then been
\nexercisable, provided that no additional benefits shall be conferred upon
\nOptionee as a result of such substitution, or (2) upon written notice to
\nOptionee, provide that the Option must be exercised within a specified number of
\ndays of the date of such notice or they will be terminated.<\/p>\n
13. Amendment.
\n ——— <\/p>\n
This Agreement shall not be amended, modified or revoked except by
\nagreement in writing signed by the Company and Optionee.<\/p>\n
14. Governing Law.
\n ————- <\/p>\n
The internal laws of the State of Delaware (irrespective of its choice of
\nlaws principles) shall govern the validity of this Agreement, the construction
\nof its terms and the interpretation and enforcement of the rights and duties of
\nthe parties hereto.<\/p>\n
15. Miscellaneous.
\n ————- <\/p>\n
This Agreement constitutes the entire understanding and agreement of the
\nparties with respect to the subject matter hereof and supersedes all prior and
\ncontemporaneous agreements or understandings, inducements or conditions, express
\nor implied, written or oral, between the parties with respect hereto. If any
\nprovision of this Agreement, or the application thereof, shall for any reason
\nand to any extent be invalid or unenforceable, the remainder of this Agreement
\nand the application of such provision to other circumstances shall be
\ninterpreted so as best to reasonably effect the intent of the parties hereto.
\nAll notices or other communications which are required to be given or may be
\ngiven to either party pursuant to the terms of this Agreement shall be in
\nwriting and shall be delivered personally or by registered or certified mail,
\npostage prepaid, to the address of the parties as set forth on the signature
\npage to this Agreement. Notice shall be deemed given on the date of delivery in
\nthe case of personal delivery or on the delivery date as specified on the return
\nreceipt in the case of registered or certified mail. Either party may change
\nits address for such communications by giving notice thereof to the other party
\nin conformity with this Section 15. This Agreement may not be assigned by the
\nCompany at any time or by Optionee during his life without the written consent
\nof the other. Subject to this limitation, this Agreement shall be binding upon,
\nand inure to the benefit of, the parties and their heirs, beneficiaries,
\npersonal representatives, successors and assigns.<\/p>\n
3<\/p>\n
IN WITNESS WHEREOF, the parties have executed this Agreement to be
\neffective as of the Effective Date, executed this _____ day of ________________,
\n1999.<\/p>\n
NavigantVacations.com LLC <\/p>\n
By:_____________________________
\n Title:__________________________
\n Date:___________________________<\/p>\n
NavigantVacations.com
\n Holdings, Inc. <\/p>\n
By:_____________________________
\n Title:__________________________
\n Date:___________________________<\/p>\n
OPTIONEE <\/p>\n
________________________________<\/p>\n
Date ___________________________
\n Address:________________________
\n ________________________
\n ________________________<\/p>\n
4<\/p>\n
EXHIBIT A<\/p>\n
(to Unit Option Agreement)<\/p>\n
UNIT RESTRICTION AGREEMENT<\/p>\n
(Options to Acquire Navigant Units Pursuant to 11.2 of LLC Agreement)<\/p>\n
This Unit Restriction Agreement (the “Agreement”) is entered into as of
\nOctober ___, 1999, by and between NavigantVacations.com Holdings, inc., a
\nDelaware corporation (“Navigant”), NavigantVacations.com, LLC, and
\n___________________________________ (the “Unit Holder”).<\/p>\n
RECITALS:<\/p>\n
1. Navigant was granted an option to acquire 111,111 Common Units in
\nNavigantVacations.com, LLC, a Delaware limited liability company (the “Company”)
\npursuant to Section 11.2 of the Company’s Limited Liability Agreement (“LLC
\nAgreement”).<\/p>\n
2. Effective April ____, 1999, Unit Holder was granted an option to acquire
\n___ common shares in Navigant for $10.00 per common share.<\/p>\n
3. Pursuant to that certain Option Exchange Agreement of even date
\nherewith, Navigant transferred to Unit Holder an Option (“Unit Option”) to
\nacquire ____ Common Units in Company (“Units”) in exchange for the transfer by
\nUnit Holder to Navigant of his option to acquire ____ common shares of Navigant.<\/p>\n
The Company desires to impose restrictions in connection with the Units
\nacquired by the Unit Holder upon exercise of the Unit Option, and Unit Holder
\nagrees to accept these restrictions.<\/p>\n
AGREEMENT:<\/p>\n
Now, therefore, the parties hereto agree as follows:<\/p>\n
1. Restriction on Transfer of Units.<\/p>\n
1.1 Unit Holder shall not sell, assign, give, pledge, encumber or
\notherwise transfer (hereinafter, “transfer”) any of the Units, or any right or
\ninterest therein, or any certificate therefor, now owned or hereafter acquired
\nwhether voluntarily, involuntarily or by operation of law, except transfers to
\nPermitted Transferees as provided in Section 2.1 or bona fide transfers subject
\nto and made as provided in Article 3 or Article 4. Any transfer or attempted
\ntransfer made in violation of this Agreement shall be void and neither Navigant
\nnor the Company shall recognize or give effect to such <\/p>\n
transfer on its books and records, or recognize the persons or entities to whom
\nsuch transfer has been made as the legal or beneficial holder of the Units or
\nUnit Option.<\/p>\n
1.2 No transfer or attempted transfer of any Units shall be effective
\nunless such Units shall remain subject to the terms and conditions of this
\nAgreement and unless and until the proposed transferee, including a Permitted
\nTransferee as defined in Section 2.1, shall accept the terms and conditions of
\nthis Agreement by executing and delivering to Navigant a Statement of Acceptance
\nin the form attached hereto as Exhibit A. Upon the execution and delivery of
\n ———
\nthe Statement of Acceptance, the transferee shall thereafter be deemed to be a
\nsignatory party to this Agreement in the position of the Unit Holder.<\/p>\n
2. Permitted Transfers.<\/p>\n
2.1 The Unit Holder shall have the right to transfer all or any part of
\nthe Units to the following transferees (the “Permitted Transferees”), subject to
\nthe requirements of Section 1.2 above: (a) a trust established for the sole
\nbenefit of the Unit Holder or any of the Unit Holder’s spouse, children or
\ngrandchildren; and (b) the personal representatives, beneficiaries or estate of
\nthe Unit Holder upon the Unit Holder’s death, whether transferred by will or
\nintestacy.<\/p>\n
3. Navigant’s Right of First Refusal.<\/p>\n
3.1 Navigant shall have the right of first refusal, as hereinafter
\nprovided, with respect to any proposed transfer of Units or Unit Options by the
\nUnit Holder, except transfers to Permitted Transferees.<\/p>\n
3.2 Except with respect to transfers of the Units or Unit Options to
\nPermitted Transferees, the Unit Holder shall, 60 days prior to a proposed
\ntransfer of the Units or Unit Options, deliver written notice to Navigant
\nstating the number of Units or Unit Options and the interest therein proposed to
\nbe transferred (collectively, the “Offered Units”), the name of the proposed
\ntransferee(s) and the manner, time, terms and conditions of the proposed
\ntransfer. Navigant shall, for a period of 60 days following such notice, have
\nan irrevocable option to purchase all or part of the Offered Units in accordance
\nwith the manner, time, terms and conditions specified in the notice of proposed
\ntransfer.<\/p>\n
3.3 Navigant may elect to exercise its option to purchase all or part of
\nthe Offered Units by giving written notice to the Unit Holder of such intention
\nwithin the 60 day period following Navigant’s receipt of Unit Holder’s notice of
\nproposed transfer. Upon receipt of such notice, the Unit Holder shall be bound
\nto transfer the Offered Units subject to such notice to Navigant, free and clear
\nof all liens and encumbrances, and in accordance with the terms set forth in the
\nnotice of proposed transfer.<\/p>\n
2<\/p>\n
3.4 If Navigant elects not to exercise its option to purchase all of the
\nOffered Units during the 60 day period, the Unit Holder may, within 90 days of
\nthe last day of such 60 day period, transfer to the proposed transferee(s) the
\npart of the Offered Units that Navigant elected not to purchase, but only in
\naccordance with the terms set forth in the notice of proposed transfer.
\nNotwithstanding any provision herein to the contrary, all Offered Units
\ntransferred to such transferees in accordance with the provisions of this
\nSection 3.4 shall remain subject to the provisions and restrictions of this
\nAgreement and all such transferees shall execute and deliver to Navigant a
\nStatement of Acceptance as provided in Section 1.2. If the Unit Holder does not
\nmake the transfer to the proposed transferee(s) within the 90 day period
\nprovided in this Section 3.4, the Unit Holder shall be required again to comply
\nwith the provisions of this Agreement before the Unit Holder may make any
\nsubsequent transfer of any part of the Offered Units.<\/p>\n
3.5 Notwithstanding any provision herein to the contrary, if the notice of
\nproposed transfer specifies a consideration in other than United States money,
\nNavigant shall have the right to acquire the Offered Units for the United States
\nmoney equivalent of the specified consideration. If the notice of proposed
\ntransfer specifies any other manner, time, term or condition that cannot be
\ncomplied with without unreasonable effort, Navigant shall have the right to
\nacquire the Offered Units by complying with the reasonable equivalent of the
\nspecified manner, time, terms or conditions.<\/p>\n
3.6 If the notice of proposed transfer specifies that the Offered Units
\nare to be transferred without full consideration as a gift, Navigant shall have
\nthe right to acquire the Offered Units at a price per Unit equal to their then
\ncurrent value as determined pursuant to Article 5. The manner and time at which
\nthe purchase and sale of the Offered Units shall take place shall be determined
\nin accordance with Article 5.<\/p>\n
4. Navigant’s Purchase of the Units Upon Termination of Employment.<\/p>\n
4.1 Navigant shall have the right to purchase all or any part of the Units
\nand held by the Unit Holder, upon the terms and conditions provided herein, in
\nthe event that (a) the Unit Holder’s full-time employment with all of Company
\nand Navigant International, Inc. and each of its subsidiary corporations (or
\nother entities) is terminated for any reason (the “Unit Holder’s Departure”).<\/p>\n
4.2 Navigant may exercise its right to purchase Units upon the Unit
\nHolder’s Departure by providing written notice of such intention to the Unit
\nHolder, stating the time, manner, terms and conditions of the repurchase in
\naccordance with this Section 4.2. Such notice must be given within 60 days
\nfollowing the date of the Unit Holder’s Departure. The purchase price for the
\nUnits that Navigant elects to purchase shall be the Units’ then current value as
\ndetermined pursuant to Article 5. The manner and time at which the purchase and
\nsale of the Units shall take place shall be determined in accordance with
\nArticle 5.<\/p>\n
3<\/p>\n
4.3 The Unit Holder may retain all of the Units with respect to which the
\nright of repurchase has not been exercised. Such Units shall remain subject to
\nthe terms and conditions of this Agreement, and the Unit Holder shall comply
\nwith the provisions of Article 3 herein prior to any subsequent transfer of such
\nUnits.<\/p>\n
4.4 In the event the Unit Holder delivers a notice of proposed transfer
\npursuant to Section 3.2 within the period in which Navigant may exercise its
\nright of repurchase under this Article 4, Navigant may elect to make the
\npurchase pursuant to either Article 3 or Article 4, in Navigant’s sole
\ndiscretion.<\/p>\n
5. Value of Units; Closing of Purchase and Sale.<\/p>\n
5.1 In the case of a purchase made pursuant to Section 3.6, the current
\nvalue of the Units, on a per Unit basis, shall be deemed to be the amount paid
\nper Unit for the Common Units of the Company by investors in the last offering
\n(a “Qualifying Offering”) in which the Company sold Common Units. In the case
\nof a purchase made pursuant to Article 4, the current value of the Units shall
\nbe the greater of (a) the amount determined pursuant to the preceding sentence,
\nor (b) the amount paid for the Units. An offering of Common Units by the
\nCompany shall not be deemed to be a Qualifying Offering unless the last sale of
\nCommon Units in such offering occurred not more than one year prior to the
\nDetermination Date (as defined below), and provided further that the gross
\nproceeds to the Company in such offering were not less than $500,000. If there
\nis no such Qualifying Offering, then the current value of the Units shall be
\ndetermined by agreement between Navigant and the Unit Holder, and failing such
\nagreement, by an independent appraiser selected by agreement between Navigant
\nand the Unit Holder. In the absence of agreement concerning the selection of an
\nindependent appraiser, the current value of the Units shall be determined by a
\npanel of three appraisers selected as follows: The Unit Holder shall select one
\nindependent appraiser, Navigant shall select one independent appraiser and the
\ntwo appraisers so selected shall select a third independent appraiser. The
\ndecision of a majority of the three appraisers with respect to the current value
\nof the Units shall be final and binding upon the parties. If one party selects
\nan appraiser and the other party fails to select the second appraiser within ten
\ndays after the receipt of notice of the selection of the first appraiser, the
\ndecision of the first appraiser alone shall be final and binding upon the
\nparties. Cost of the appraisal shall be split equally between the parties. In
\nthe case of a gift referenced in Section 3.6, the Determination Date shall be
\nthe date of receipt by Navigant of the notice of proposed transfer. In case of
\nthe Unit Holder’s Departure, the Determination Date shall be the date of the
\nUnit Holder’s Departure.<\/p>\n
5.2 A purchase and sale required pursuant to Section 3.6 or Article 4
\nshall take place at a closing at a time and place designated by Navigant;
\nprovided, however, that the time must be within 90 days of the Determination
\nDate. At the closing, the Unit Holder shall transfer the Offered Units or the
\nUnits, as the case may be, to Navigant free <\/p>\n
4<\/p>\n
and clear of all liens and encumbrances and in accordance with the terms of this
\nAgreement. In return, Navigant shall pay the Unit Holder not less than 25% of
\nthe purchase price in cash or certified funds and the remainder by execution and
\ndelivery of Navigant’s Promissory Note, bearing interest at the rate per annum
\nequal to the “Prime Rate” as listed by The Wall Street Journal on the business
\n ———————–
\nday preceding the date of the Promissory Note. The Promissory Note shall provide
\nfor payment in three equal annual installments of principal and interest on the
\nfirst, second and third anniversaries of the closing date. The Promissory Note
\nshall be prepayable, without penalty, in whole or in part, with prepayments
\napplied to the last installment or installments coming due.<\/p>\n
6. Notices.<\/p>\n
6.1 All notices or other communications required under this Agreement or
\ngiven in connection herewith shall be in writing and shall either be delivered
\npersonally, in which event the effective date shall be the date of delivery, or
\nshall be sent by United States mail addressed as hereinafter set forth, postage
\npre-paid, registered or certified, return receipt requested, in which event the
\neffective date shall be the delivery or refusal date as specified on the return
\nreceipt. Unless otherwise directed by notice in writing, all notices shall be
\naddressed as follows:<\/p>\n
(a) To Navigant at:<\/p>\n
NavigantVacations.com, inc.
\n 84 Inverness Circle East
\n Englewood, CO 80112-5314
\n Attention: Robert C. Griffith
\n Eugene A. Over, Jr., Esq.<\/p>\n
(b) To the Unit Holder at:<\/p>\n
The address of the Unit Holder set forth on the
\n transfer records of Navigant.<\/p>\n
7. Termination.<\/p>\n
7.1 Notwithstanding any provision herein to the contrary, this Agreement
\nshall terminate, and neither party shall have any further obligation to the
\nother, upon the occurrence of any of the following events:<\/p>\n
(a) Permanent cessation of the Company’s business.<\/p>\n
(b) The insolvency, receivership or dissolution of the Company.<\/p>\n
5<\/p>\n
(c) The voluntary written agreement of Navigant, upon the approval of
\nits Board of Directors, and the Unit Holder.<\/p>\n
(d) The occurrence of both:<\/p>\n
(i) the conversion of the Company to a corporation, and<\/p>\n
(ii) the consummation of an underwritten public offering of
\nshares of common stock of the successor corporation to the Company.<\/p>\n
(e) any merger or consolidation to which the Company is a party,
\nexcept for a merger in which after giving effect to such merger, the holders of
\na majority of the Company’s Voting Interests (as defined in the Company’s
\nLimited Liability Company Agreement) immediately prior to the merger shall
\ncontinue to own a majority of the Voting Interests in the surviving corporation,
\n(b) any transaction or series of related transactions in which more than 50% of
\nthe Company’s Voting Interests are transferred, or (c) a sale or other
\ndisposition of all or substantially all of the Company’s assets.<\/p>\n
(f) December 31, 2016.<\/p>\n
8. Specific Enforcement.<\/p>\n
8.1 Because of the unique value of the Units, in addition to any other
\nremedies which Navigant may have upon the breach of the agreements contained
\nherein, the obligations of the Unit Holder shall be specifically enforceable.<\/p>\n
9. Company Limited Liability Company Agreement.<\/p>\n
9.1 Unit Holder hereby understands and acknowledges that such Unit Holder
\nhas read and understands the LLC Agreement and has had ample opportunity to
\nconsult with such Unit Holder’s legal and tax advisor prior to signing this
\nAgreement and exercising the Unit Option. Unit Holder hereby agrees to all
\nterms and conditions of the LLC Agreement. Unit Holder further acknowledges and
\nagrees that in the event of a Reorganization (as defined in the LLC Agreement),
\nUnit Holders’ shares in the Successor Corporation (as defined in the LLC
\nAgreement) shall be subject to the same transfer restrictions contained herein
\nto which the Unit Holder’s Units are subject, until such time that this
\nAgreement is terminated pursuant to Section 7 hereof.<\/p>\n
10. Modification.<\/p>\n
10.1 This Agreement may only be altered or amended by a written instrument
\nsigned by Navigant and the Unit Holder setting forth such changes.<\/p>\n
6<\/p>\n
11. Costs of Enforcement.<\/p>\n
11.1 In any action at law or in equity to enforce any of the provisions or
\nrights under this Agreement, the unsuccessful party of such litigation, as
\ndetermined by any court of competent jurisdiction in a final judgment or decree,
\nshall pay the successful party or parties all costs, expenses and reasonable
\nattorneys’ fees incurred therein by such party or parties (including without
\nlimitation such costs, expenses and fees on any appeals), and if such successful
\nparty shall recover judgment in any action or proceeding, such costs, expenses
\nand attorneys’ fees shall be included as part of the judgment.<\/p>\n
12. Severability.<\/p>\n
12.1 The invalidity or unenforceability of any provision hereof shall in no
\nway affect the validity or enforceability of any other provision hereof.<\/p>\n
13. Entire Agreement; Counterparts; Headings.<\/p>\n
13.1 This Agreement constitutes the entire agreement between the parties
\npertaining to the subject matter hereof and supersedes all prior and
\ncontemporaneous agreements, representations and understandings. This Agreement
\nmay be executed in counterparts, all of which shall be deemed to be one and the
\nsame instrument, and it shall be sufficient for each party to have executed at
\nleast one, but not necessarily the same, counterpart. The headings contained in
\nthis Agreement are for reference purposes only and shall not affect the meaning
\nor interpretation of this Agreement in any way. This Agreement has been
\nnegotiated by the respective parties hereto and the language hereof shall not be
\nconstrued for or against any party.<\/p>\n
14. Assignment.<\/p>\n
14.1 This Agreement shall be binding upon the parties and their respective
\nlegal representatives, beneficiaries, successors and assigns.<\/p>\n
15. Governing Law.<\/p>\n
15.1 This Agreement and the rights and obligations of the parties hereto
\nshall be governed by and construed and enforced in accordance with the laws of
\nthe State of Delaware, without regard to the conflicts of laws principles of
\nsuch State.<\/p>\n
7<\/p>\n
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
\nthe date first above written.<\/p>\n
NAVIGANTVACATIONS.COM HOLDINGS, INC.<\/p>\n
By: _______________________________________<\/p>\n
Title: ____________________________________<\/p>\n
Date: _____________________________________<\/p>\n
NAVIGANTVACATIONS.COM, LLC<\/p>\n
By: _______________________________________<\/p>\n
Title: ____________________________________<\/p>\n
Date: _____________________________________<\/p>\n
Unit Holder<\/p>\n
___________________________________________<\/p>\n
Date: _____________________________________<\/p>\n
8<\/p>\n
EXHIBIT A<\/p>\n
STATEMENT OF ACCEPTANCE<\/p>\n
Reference is made to that certain Unit Restriction Agreement effective as
\nof _________________________, 19__, by and between NavigantVacations.com
\nHolding, inc., (“Navigant”), NavigantVacations.com LLC (the “Company”) and
\n______________________________ (the “Restriction Agreement”). As a proposed
\nrecipient of certain options covered by said Restriction Agreement and LLC
\nAgreement, the undersigned hereby agrees that such Units, upon receipt, shall
\nremain subject to all of the terms and conditions of said Restriction Agreement
\nand LLC Agreement and all rights and obligations thereunder arising prior to
\nsuch receipt, and that upon such receipt the undersigned shall be deemed
\nautomatically to have accepted all of the terms and conditions of said
\nRestriction Agreement and LLC Agreement as therein provided, and that the
\nundersigned shall thereafter be deemed to be a signatory party to said
\nRestriction Agreement and LLC Agreement in the position of the Unit Holder. It
\nis understood that upon execution of the Statement of Acceptance the same shall
\nbe attached to said Restriction Agreement and LLC Agreement and shall thereupon
\nform a part thereof without any further action.<\/p>\n
Dated: _________________________, 19__.<\/p>\n
UNIT HOLDER<\/p>\n
________________________________________<\/p>\n
Date: __________________________________<\/p>\n
EXHIBIT 11.4(D)<\/p>\n
UNIT RESTRICTION AGREEMENT<\/p>\n
(Navigant Dilutive Units pursuant to Section 11.4(d) of the LLC Agreement)<\/p>\n
This Unit Restriction Agreement (the “Agreement”) is entered into as of
\nOctober ___, 1999, by and between NavigantVacations.com Holdings, inc., a
\nDelaware corporation (“Navigant”), NavigantVacations.com LLC, a Delaware limited
\nliability company (the “Company”), and ___________________________________ (the
\n“Unit Holder”).<\/p>\n
RECITALS:<\/p>\n
1. Effective ___________, 1999, Unit Holder was granted an option to
\nacquire ___ Common Units in the Company.<\/p>\n
2. Unit Holder has exercised all or a portion of such Option.<\/p>\n
3. The Company desires to impose restrictions in connection with the Units
\nacquired by the Unit Holder upon exercise of the Unit Option, and Unit Holder
\nagrees to accept these restrictions.<\/p>\n
AGREEMENT:<\/p>\n
Now, therefore, the parties hereto agree as follows:<\/p>\n
1. Restriction on Transfer of Units.<\/p>\n
1.1 Unit Holder shall not sell, assign, give, pledge, encumber or
\notherwise transfer (hereinafter, “transfer”) any of the Units, or any right or
\ninterest therein, or any certificate therefor, now owned or hereafter acquired
\nwhether voluntarily, involuntarily or by operation of law, except transfers to
\nPermitted Transferees as provided in Section 2.1 or bona fide transfers subject
\nto and made as provided in Article 3 or Article 4. Any transfer or attempted
\ntransfer made in violation of this Agreement shall be void and neither Navigant
\nnor the Company shall recognize or give effect to such transfer on its books and
\nrecords, or recognize the persons or entities to whom such transfer has been
\nmade as the legal or beneficial holder of the Units or Unit Option.<\/p>\n
1.2 No transfer or attempted transfer of any Units shall be effective
\nunless such Units shall remain subject to the terms and conditions of this
\nAgreement and unless and until the proposed transferee, including a Permitted
\nTransferee as defined in Section 2.1, shall accept the terms and conditions of
\nthis Agreement by executing and delivering to Navigant a Statement of Acceptance
\nin the form attached hereto as Exhibit A. Upon the
\n ———<\/p>\n
execution and delivery of the Statement of Acceptance, the transferee shall
\nthereafter be deemed to be a signatory party to this Agreement in the position
\nof the Unit Holder.<\/p>\n
1.3 Notwithstanding anything to the contrary in this Agreement, any
\nUnits or options to acquire Units which are forfeited by Unit Holder (pursuant
\nto the terms of any plan, or option grant or other agreement or option) shall be
\nforfeited to Navigant.<\/p>\n
2. Permitted Transfers.<\/p>\n
2.1 The Unit Holder shall have the right to transfer all or any part of
\nthe Units to the following transferees (the “Permitted Transferees”), subject to
\nthe requirements of Section 1.2 above: (a) a trust established for the sole
\nbenefit of the Unit Holder or any of the Unit Holder’s spouse, children or
\ngrandchildren; and (b) the personal representatives, beneficiaries or estate of
\nthe Unit Holder upon the Unit Holder’s death, whether transferred by will or
\nintestacy.<\/p>\n
3. Navigant’s Right of First Refusal.<\/p>\n
3.1 Navigant shall have the right of first refusal, as hereinafter
\nprovided, with respect to any proposed transfer of Units by the Unit Holder,
\nexcept transfers to Permitted Transferees.<\/p>\n
3.2 Except with respect to transfers of the Units to Permitted
\nTransferees, the Unit Holder shall, 60 days prior to a proposed transfer of the
\nUnits, deliver written notice to Navigant stating the number of Units and the
\ninterest therein proposed to be transferred (the “Offered Units”), the name of
\nthe proposed transferee(s) and the manner, time, terms and conditions of the
\nproposed transfer. Navigant shall, for a period of 60 days following such
\nnotice, have an irrevocable option to purchase all or part of the Offered Units
\nin accordance with the manner, time, terms and conditions specified in the
\nnotice of proposed transfer.<\/p>\n
3.3 Navigant may elect to exercise its option to purchase all or part of
\nthe Offered Units by giving written notice to the Unit Holder of such intention
\nwithin the 60 day period following Navigant’s receipt of Unit Holder’s notice of
\nproposed transfer. Upon receipt of such notice, the Unit Holder shall be bound
\nto transfer the Offered Units subject to such notice to Navigant, free and clear
\nof all liens and encumbrances, and in accordance with the terms set forth in the
\nnotice of proposed transfer.<\/p>\n
3.4 If Navigant elects not to exercise its option to purchase all of the
\nOffered Units during the 60 day period, the Unit Holder may, within 90 days of
\nthe last day of such 60 day period, transfer to the proposed transferee(s) the
\npart of the Offered Units that Navigant elected not to purchase, but only in
\naccordance with the terms set forth in the notice of proposed transfer.
\nNotwithstanding any provision herein to the contrary, all Offered Units
\ntransferred to such transferees in accordance with the provisions of this<\/p>\n
2<\/p>\n
Section 3.4 shall remain subject to the provisions and restrictions of this
\nAgreement and all such transferees shall execute and deliver to Navigant a
\nStatement of Acceptance as provided in Section 1.2. If the Unit Holder does not
\nmake the transfer to the proposed transferee(s) within the 90 day period
\nprovided in this Section 3.4, the Unit Holder shall be required again to comply
\nwith the provisions of this Agreement before the Unit Holder may make any
\nsubsequent transfer of any part of the Offered Units.<\/p>\n
3.5 Notwithstanding any provision herein to the contrary, if the notice
\nof proposed transfer specifies a consideration in other than United States
\nmoney, Navigant shall have the right to acquire the Offered Units for the United
\nStates money equivalent of the specified consideration. If the notice of
\nproposed transfer specifies any other manner, time, term or condition that
\ncannot be complied with without unreasonable effort, Navigant shall have the
\nright to acquire the Offered Units by complying with the reasonable equivalent
\nof the specified manner, time, terms or conditions.<\/p>\n
3.6 If the notice of proposed transfer specifies that the Offered Units
\nare to be transferred without full consideration as a gift, Navigant shall have
\nthe right to acquire the Offered Units at a price per Unit equal to their then
\ncurrent value as determined pursuant to Article 5. The manner and time at which
\nthe purchase and sale of the Offered Units shall take place shall be determined
\nin accordance with Article 5.<\/p>\n
4. Navigant’s Purchase of the Units Upon Termination of Employment.<\/p>\n
4.1 Navigant shall have the right to purchase all or any part of the
\nUnits and held by the Unit Holder, upon the terms and conditions provided
\nherein, in the event that (a) the Unit Holder’s full-time employment with all of
\nCompany and Navigant International, Inc. and each of its subsidiary corporations
\n(or other entities) is terminated for any reason (the “Unit Holder’s
\nDeparture”).<\/p>\n
4.2 Navigant may exercise its right to purchase Units upon the Unit
\nHolder’s Departure by providing written notice of such intention to the Unit
\nHolder, stating the time, manner, terms and conditions of the repurchase in
\naccordance with this Section 4.2. Such notice must be given within 60 days
\nfollowing the date of the Unit Holder’s Departure. The purchase price for the
\nUnits that Navigant elects to purchase shall be the Units’ then current value as
\ndetermined pursuant to Article 5. The manner and time at which the purchase and
\nsale of the Units shall take place shall be determined in accordance with
\nArticle 5.<\/p>\n
4.3 The Unit Holder may retain all of the Units with respect to which
\nthe right of repurchase has not been exercised. Such Units shall remain subject
\nto the terms and conditions of this Agreement, and the Unit Holder shall comply
\nwith the provisions of Article 3 herein prior to any subsequent transfer of such
\nUnits.<\/p>\n
3<\/p>\n
4.4 In the event the Unit Holder delivers a notice of proposed transfer
\npursuant to Section 3.2 within the period in which Navigant may exercise its
\nright of repurchase under this Article 4, Navigant may elect to make the
\npurchase pursuant to either Article 3 or Article 4, in Navigant’s sole
\ndiscretion.<\/p>\n
5. Value of Units; Closing of Purchase and Sale.<\/p>\n
5.1 In the case of a purchase made pursuant to Section 3.6, the current
\nvalue of the Units, on a per Unit basis, shall be deemed to be the amount paid
\nper Unit for the Common Units of the Company by investors in the last offering
\n(a “Qualifying Offering”) in which the Company sold Common Units. In the case of
\na purchase made pursuant to Article 4, the current value of the Units shall be
\nthe greater of (a) the amount determined pursuant to the preceding sentence, or
\n(b) the amount paid for the Units. An offering of Common Units by the Company
\nshall not be deemed to be a Qualifying Offering unless the last sale of Common
\nUnits in such offering occurred not more than one year prior to the
\nDetermination Date (as defined below), and provided further that the gross
\nproceeds to the Company in such offering were not less than $500,000. If there
\nis no such Qualifying Offering, then the current value of the Units shall be
\ndetermined by agreement between Navigant and the Unit Holder, and failing such
\nagreement, by an independent appraiser selected by agreement between Navigant
\nand the Unit Holder. In the absence of agreement concerning the selection of an
\nindependent appraiser, the current value of the Units shall be determined by a
\npanel of three appraisers selected as follows: The Unit Holder shall select one
\nindependent appraiser, Navigant shall select one independent appraiser and the
\ntwo appraisers so selected shall select a third independent appraiser. The
\ndecision of a majority of the three appraisers with respect to the current value
\nof the Units shall be final and binding upon the parties. If one party selects
\nan appraiser and the other party fails to select the second appraiser within ten
\ndays after the receipt of notice of the selection of the first appraiser, the
\ndecision of the first appraiser alone shall be final and binding upon the
\nparties. Cost of the appraisal shall be split equally between the parties. In
\nthe case of a gift referenced in Section 3.6, the Determination Date shall be
\nthe date of receipt by Navigant of the notice of proposed transfer. In case of
\nthe Unit Holder’s Departure, the Determination Date shall be the date of the
\nUnit Holder’s Departure.<\/p>\n
5.2 A purchase and sale required pursuant to Section 3.6 or Article 4
\nshall take place at a closing at a time and place designated by Navigant;
\nprovided, however, that the time must be within 90 days of the Determination
\nDate. At the closing, the Unit Holder shall transfer the Offered Units or the
\nUnits, as the case may be, to Navigant free and clear of all liens and
\nencumbrances and in accordance with the terms of this Agreement. In return,
\nNavigant shall pay the Unit Holder not less than 25% of the purchase price in
\ncash or certified funds and the remainder by execution and delivery of
\nNavigant’s Promissory Note, bearing interest at the rate per annum equal to the
\n“Prime Rate” as listed by The Wall Street Journal on the business day preceding
\n ———————–
\nthe date of the <\/p>\n
4<\/p>\n
Promissory Note. The Promissory Note shall provide for payment in three equal
\nannual installments of principal and interest on the first, second and third
\nanniversaries of the closing date. The Promissory Note shall be prepayable,
\nwithout penalty, in whole or in part, with prepayments applied to the last
\ninstallment or installments coming due.<\/p>\n
6. Notices.<\/p>\n
6.1 All notices or other communications required under this Agreement or
\ngiven in connection herewith shall be in writing and shall either be delivered
\npersonally, in which event the effective date shall be the date of delivery, or
\nshall be sent by United States mail addressed as hereinafter set forth, postage
\npre-paid, registered or certified, return receipt requested, in which event the
\neffective date shall be the delivery or refusal date as specified on the return
\nreceipt. Unless otherwise directed by notice in writing, all notices shall be
\naddressed as follows:<\/p>\n
(a) To Navigant at:<\/p>\n
NavigantVacations.com, inc.
\n 84 Inverness Circle East
\n Englewood, CO 80112-5314
\n Attention: Robert C. Griffith
\n Eugene A. Over, Jr., Esq.<\/p>\n
(b) To the Unit Holder at:<\/p>\n
The address of the Unit Holder set forth on the
\n transfer records of Navigant.<\/p>\n
7. Termination.<\/p>\n
7.1 Notwithstanding any provision herein to the contrary, this Agreement
\nshall terminate, and neither party shall have any further obligation to the
\nother, upon the occurrence of any of the following events:<\/p>\n
(a) Permanent cessation of the Company’s business.<\/p>\n
(b) The insolvency, receivership or dissolution of the Company.<\/p>\n
(c) The voluntary written agreement of Navigant, upon the approval
\nof its Board of Directors, and the Unit Holder.<\/p>\n
(d) The occurrence of both:<\/p>\n
(i) the conversion of the Company to a corporation, and<\/p>\n
5<\/p>\n
(ii) the consummation of an underwritten public offering of
\nshares of common stock of the successor corporation to the Company.<\/p>\n
(e) any merger or consolidation to which the Company is a party,
\nexcept for a merger in which after giving effect to such merger, the holders of
\na majority of the Company’s Voting Interests (as defined in the Company’s
\nLimited Liability Company Agreement) immediately prior to the merger shall
\ncontinue to own a majority of the Voting Interests in the surviving corporation,
\n(b) any transaction or series of related transactions in which more than 50% of
\nthe Company’s Voting Interests are transferred, or (c) a sale or other
\ndisposition of all or substantially all of the Company’s assets.<\/p>\n
(f) December 31, 2016.<\/p>\n
8. Specific Enforcement.<\/p>\n
8.1 Because of the unique value of the Units, in addition to any other
\nremedies which Navigant may have upon the breach of the agreements contained
\nherein, the obligations of the Unit Holder shall be specifically enforceable.<\/p>\n
9. Company Limited Liability Company Agreement.<\/p>\n
9.1 Unit Holder hereby understands and acknowledges that such Unit
\nHolder has read and understands the LLC Agreement and has had ample opportunity
\nto consult with such Unit Holder’s legal and tax advisor prior to signing this
\nAgreement and exercising the Unit Option. Unit Holder hereby agrees to all terms
\nand conditions of the LLC Agreement. Unit Holder further acknowledges and agrees
\nthat in the event of a Reorganization (as defined in the LLC Agreement), Unit
\nHolders’ shares in the Successor Corporation (as defined in the LLC Agreement)
\nshall be subject to the same transfer restrictions contained herein to which the
\nUnit Holder’s Units are subject, until such time that this Agreement is
\nterminated pursuant to Section 7 hereof.<\/p>\n
10. Modification.<\/p>\n
10.1 This Agreement may only be altered or amended by a written
\ninstrument signed by Navigant and the Unit Holder setting forth such changes.<\/p>\n
11. Costs of Enforcement.<\/p>\n
11.1 In any action at law or in equity to enforce any of the provisions
\nor rights under this Agreement, the unsuccessful party of such litigation, as
\ndetermined by any court of competent jurisdiction in a final judgment or decree,
\nshall pay the successful party or parties all costs, expenses and reasonable
\nattorneys’ fees incurred therein by such party or parties (including without
\nlimitation such costs, expenses and fees on any<\/p>\n
6<\/p>\n
appeals), and if such successful party shall recover judgment in any action or
\nproceeding, such costs, expenses and attorneys’ fees shall be included as part
\nof the judgment.<\/p>\n
12. Severability.<\/p>\n
12.1 The invalidity or unenforceability of any provision hereof shall in
\nno way affect the validity or enforceability of any other provision hereof.<\/p>\n
13. Entire Agreement; Counterparts; Headings.<\/p>\n
13.1 This Agreement constitutes the entire agreement between the parties
\npertaining to the subject matter hereof and supersedes all prior and
\ncontemporaneous agreements, representations and understandings. This Agreement
\nmay be executed in counterparts, all of which shall be deemed to be one and the
\nsame instrument, and it shall be sufficient for each party to have executed at
\nleast one, but not necessarily the same, counterpart. The headings contained in
\nthis Agreement are for reference purposes only and shall not affect the meaning
\nor interpretation of this Agreement in any way. This Agreement has been
\nnegotiated by the respective parties hereto and the language hereof shall not be
\nconstrued for or against any party.<\/p>\n
14. Assignment.<\/p>\n
14.1 This Agreement shall be binding upon the parties and their
\nrespective legal representatives, beneficiaries, successors and assigns.<\/p>\n
15. Governing Law.<\/p>\n
15.1 This Agreement and the rights and obligations of the parties hereto
\nshall be governed by and construed and enforced in accordance with the laws of
\nthe State of Delaware, without regard to the conflicts of laws principles of
\nsuch State.<\/p>\n
7<\/p>\n
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
\nthe date first above written.<\/p>\n
NAVIGANTVACATIONS.COM HOLDINGS, INC.<\/p>\n
By:____________________________________<\/p>\n
Title:_________________________________<\/p>\n
Date:__________________________________<\/p>\n
NAVIGANTVACATIONS.COM, LLC <\/p>\n
By:____________________________________<\/p>\n
Title:_________________________________<\/p>\n
Date:__________________________________<\/p>\n
Unit Holder <\/p>\n
_______________________________________<\/p>\n
Date:__________________________________ <\/p>\n
8<\/p>\n
EXHIBIT A<\/p>\n
STATEMENT OF ACCEPTANCE<\/p>\n
Reference is made to that certain Unit Restriction Agreement effective as
\nof _________________________, 19__, by and between NavigantVacations.com
\nHolding, inc., (“Navigant”), NavigantVacations.com LLC (the “Company”) and
\n______________________________ (the “Restriction Agreement”). As a proposed
\nrecipient of certain options covered by said Restriction Agreement and LLC
\nAgreement, the undersigned hereby agrees that such Units, upon receipt, shall
\nremain subject to all of the terms and conditions of said Restriction Agreement
\nand LLC Agreement and all rights and obligations thereunder arising prior to
\nsuch receipt, and that upon such receipt the undersigned shall be deemed
\nautomatically to have accepted all of the terms and conditions of said
\nRestriction Agreement and LLC Agreement as therein provided, and that the
\nundersigned shall thereafter be deemed to be a signatory party to said
\nRestriction Agreement and LLC Agreement in the position of the Unit Holder. It
\nis understood that upon execution of the Statement of Acceptance the same shall
\nbe attached to said Restriction Agreement and LLC Agreement and shall thereupon
\nform a part thereof without any further action.<\/p>\n
Dated: _________________________, 19__.<\/p>\n
UNIT HOLDER<\/p>\n
____________________________________________<\/p>\n
Date:_______________________________________<\/p>\n
EXHIBIT 11.4(E)<\/p>\n
UNIT RESTRICTION AGREEMENT<\/p>\n
(Member Dilutive Units pursuant to Section 11.4(e) of the LLC Agreement)<\/p>\n
This Unit Restriction Agreement (the “Agreement”) is entered into as of
\nOctober ___, 1999, by and between NavigantVacations.com Holdings, inc., a
\nDelaware corporation (“Navigant”), NavigantVacations.com LLC, a Delaware limited
\nliability company (the “Company”), and ___________________________________ (the
\n“Unit Holder”).<\/p>\n
RECITALS:<\/p>\n
1. Effective ___________, 1999, Unit Holder was granted an option to
\nacquire ___ Common Units in the Company.<\/p>\n
2. Unit Holder has exercised all or a portion of such Option.<\/p>\n
3. The Company desires to impose restrictions in connection with the Units
\nacquired by the Unit Holder upon exercise of the Unit Option, and Unit Holder
\nagrees to accept these restrictions.<\/p>\n
AGREEMENT:<\/p>\n
Now, therefore, the parties hereto agree as follows:<\/p>\n
1. Restriction on Transfer of Units.<\/p>\n
1.1 Unit Holder shall not sell, assign, give, pledge, encumber or
\notherwise transfer (hereinafter, “transfer”) any of the Units, or any right or
\ninterest therein, or any certificate therefor, now owned or hereafter acquired
\nwhether voluntarily, involuntarily or by operation of law, except transfers to
\nPermitted Transferees as provided in Section 2.1 or bona fide transfers subject
\nto and made as provided in Article 3 or Article 4. Any transfer or attempted
\ntransfer made in violation of this Agreement shall be void and neither Navigant
\nnor the Company shall recognize or give effect to such transfer on its books and
\nrecords, or recognize the persons or entities to whom such transfer has been
\nmade as the legal or beneficial holder of the Units or Unit Option.<\/p>\n
1.2 No transfer or attempted transfer of any Units shall be effective
\nunless such Units shall remain subject to the terms and conditions of this
\nAgreement and unless and until the proposed transferee, including a Permitted
\nTransferee as defined in Section 2.1, shall accept the terms and conditions of
\nthis Agreement by executing and delivering to Navigant a Statement of Acceptance
\nin the form attached hereto as Exhibit A. Upon the
\n ———<\/p>\n
execution and delivery of the Statement of Acceptance, the transferee shall
\nthereafter be deemed to be a signatory party to this Agreement in the position
\nof the Unit Holder.<\/p>\n
1.3 Notwithstanding anything to the contrary in this Agreement, any Units
\nor options to acquire Units which are forfeited by Unit Holder (pursuant to the
\nterms of any plan, or option grant or other agreement or document) shall be
\nforfeited to the Company.<\/p>\n
2. Permitted Transfers.<\/p>\n
2.1 The Unit Holder shall have the right to transfer all or any part of
\nthe Units to the following transferees (the “Permitted Transferees”), subject to
\nthe requirements of Section 1.2 above: (a) a trust established for the sole
\nbenefit of the Unit Holder or any of the Unit Holder’s spouse, children or
\ngrandchildren; and (b) the personal representatives, beneficiaries or estate of
\nthe Unit Holder upon the Unit Holder’s death, whether transferred by will or
\nintestacy.<\/p>\n
3. Company’s Right of First Refusal.<\/p>\n
3.1 The Company shall have the right of first refusal, as hereinafter
\nprovided, with respect to any proposed transfer of Units by the Unit Holder,
\nexcept transfers to Permitted Transferees.<\/p>\n
3.2 Except with respect to transfers of the Units to Permitted
\nTransferees, the Unit Holder shall, 60 days prior to a proposed transfer of the
\nUnits or Unit Options, deliver written notice to Company stating the number of
\nUnits and the interest therein proposed to be transferred (the “Offered Units”),
\nthe name of the proposed transferee(s) and the manner, time, terms and
\nconditions of the proposed transfer. Company shall, for a period of 60 days
\nfollowing such notice, have an irrevocable option to purchase all or part of the
\nOffered Units in accordance with the manner, time, terms and conditions
\nspecified in the notice of proposed transfer.<\/p>\n
3.3 Company may elect to exercise its option to purchase all or part of
\nthe Offered Units by giving written notice to the Unit Holder of such intention
\nwithin the 60 day period following Company’s receipt of Unit Holder’s notice of
\nproposed transfer. Upon receipt of such notice, the Unit Holder shall be bound
\nto transfer the Offered Units subject to such notice to Company, free and clear
\nof all liens and encumbrances, and in accordance with the terms set forth in the
\nnotice of proposed transfer.<\/p>\n
3.4 If Company elects not to exercise its option to purchase all of the
\nOffered Units during the 60 day period, the Unit Holder may, within 90 days of
\nthe last day of such 60 day period, transfer to the proposed transferee(s) the
\npart of the Offered Units that Navigant elected not to purchase, but only in
\naccordance with the terms set forth in the notice of proposed transfer.
\nNotwithstanding any provision herein to the contrary, all Offered Units
\ntransferred to such transferees in accordance with the provisions of this<\/p>\n
2<\/p>\n
Section 3.4 shall remain subject to the provisions and restrictions of this
\nAgreement and all such transferees shall execute and deliver to Navigant a
\nStatement of Acceptance as provided in Section 1.2. If the Unit Holder does not
\nmake the transfer to the proposed transferee(s) within the 90 day period
\nprovided in this Section 3.4, the Unit Holder shall be required again to comply
\nwith the provisions of this Agreement before the Unit Holder may make any
\nsubsequent transfer of any part of the Offered Units.<\/p>\n
3.5 Notwithstanding any provision herein to the contrary, if the notice of
\nproposed transfer specifies a consideration in other than United States money,
\nthe Company shall have the right to acquire the Offered Units for the United
\nStates money equivalent of the specified consideration. If the notice of
\nproposed transfer specifies any other manner, time, term or condition that
\ncannot be complied with without unreasonable effort, the Company shall have the
\nright to acquire the Offered Units by complying with the reasonable equivalent
\nof the specified manner, time, terms or conditions.<\/p>\n
3.6 If the notice of proposed transfer specifies that the Offered Units
\nare to be transferred without full consideration as a gift, the Company shall
\nhave the right to acquire the Offered Units at a price per Unit equal to their
\nthen current value as determined pursuant to Article 5. The manner and time at
\nwhich the purchase and sale of the Offered Units shall take place shall be
\ndetermined in accordance with Article 5.<\/p>\n
4. Company’s Purchase of the Units Upon Termination of Employment.<\/p>\n
4.1 The Company shall have the right to purchase all or any part of the
\nUnits and held by the Unit Holder, upon the terms and conditions provided
\nherein, in the event that (a) the Unit Holder’s full-time employment with all of
\nCompany and each of its subsidiary corporations (or other entities) is
\nterminated for any reason (the “Unit Holder’s Departure”).<\/p>\n
4.2 The Company may exercise its right to purchase Units upon the Unit
\nHolder’s Departure by providing written notice of such intention to the Unit
\nHolder, stating the time, manner, terms and conditions of the repurchase in
\naccordance with this Section 4.2. Such notice must be given within 60 days
\nfollowing the date of the Unit Holder’s Departure. The purchase price for the
\nUnits that the Company elects to purchase shall be the Units’ then current value
\nas determined pursuant to Article 5. The manner and time at which the purchase
\nand sale of the Units shall take place shall be determined in accordance with
\nArticle 5.<\/p>\n
4.3 The Unit Holder may retain all of the Units with respect to which the
\nright of repurchase has not been exercised. Such Units shall remain subject to
\nthe terms and conditions of this Agreement, and the Unit Holder shall comply
\nwith the provisions of Article 3 herein prior to any subsequent transfer of such
\nUnits.<\/p>\n
3<\/p>\n
4.4 In the event the Unit Holder delivers a notice of proposed transfer
\npursuant to Section 3.2 within the period in which the Company may exercise its
\nright of repurchase under this Article 4, the Company may elect to make the
\npurchase pursuant to either Article 3 or Article 4, in the Company’s sole
\ndiscretion.<\/p>\n
5. Value of Units; Closing of Purchase and Sale.<\/p>\n
5.1 In the case of a purchase made pursuant to Section 3.6, the current
\nvalue of the Units, on a per Unit basis, shall be deemed to be the amount paid
\nper Unit for the Common Units of the Company by investors in the last offering
\n(a “Qualifying Offering”) in which the Company sold Common Units. In the case
\nof a purchase made pursuant to Article 4, the current value of the Units shall
\nbe the greater of (a) the amount determined pursuant to the preceding sentence,
\nor (b) the amount paid for the Units. An offering of Common Units by the
\nCompany shall not be deemed to be a Qualifying Offering unless the last sale of
\nCommon Units in such offering occurred not more than one year prior to the
\nDetermination Date (as defined below), and provided further that the gross
\nproceeds to the Company in such offering were not less than $500,000. If there
\nis no such Qualifying Offering, then the current value of the Units shall be
\ndetermined by agreement between the Company and the Unit Holder, and failing
\nsuch agreement, by an independent appraiser selected by agreement between the
\nCompany and the Unit Holder. In the absence of agreement concerning the
\nselection of an independent appraiser, the current value of the Units shall be
\ndetermined by a panel of three appraisers selected as follows: The Unit Holder
\nshall select one independent appraiser, the Company shall select one independent
\nappraiser and the two appraisers so selected shall select a third independent
\nappraiser. The decision of a majority of the three appraisers with respect to
\nthe current value of the Units shall be final and binding upon the parties. If
\none party selects an appraiser and the other party fails to select the second
\nappraiser within ten days after the receipt of notice of the selection of the
\nfirst appraiser, the decision of the first appraiser alone shall be final and
\nbinding upon the parties. Cost of the appraisal shall be split equally between
\nthe parties. In the case of a gift referenced in Section 3.6, the Determination
\nDate shall be the date of receipt by the Company of the notice of proposed
\ntransfer. In case of the Unit Holder’s Departure, the Determination Date shall
\nbe the date of the Unit Holder’s Departure.<\/p>\n
5.2 A purchase and sale required pursuant to Section 3.6 or Article 4
\nshall take place at a closing at a time and place designated by the Company;
\nprovided, however, that the time must be within 90 days of the Determination
\nDate. At the closing, the Unit Holder shall transfer the Offered Units or the
\nUnits, as the case may be, to the Company free and clear of all liens and
\nencumbrances and in accordance with the terms of this Agreement. In return, the
\nCompany shall pay the Unit Holder not less than 25% of the purchase price in
\ncash or certified funds and the remainder by execution and delivery of the
\nCompany’s Promissory Note, bearing interest at the rate per annum equal to the
\n“Prime Rate” as listed by The Wall Street Journal on the business day preceding
\n ———————–
\nthe date <\/p>\n
4<\/p>\n
of the Promissory Note. The Promissory Note shall provide for payment
\nin three equal annual installments of principal and interest on the first,
\nsecond and third anniversaries of the closing date. The Promissory Note shall
\nbe prepayable, without penalty, in whole or in part, with prepayments applied to
\nthe last installment or installments coming due.<\/p>\n
6. Notices.<\/p>\n
6.1 All notices or other communications required under this Agreement or
\ngiven in connection herewith shall be in writing and shall either be delivered
\npersonally, in which event the effective date shall be the date of delivery, or
\nshall be sent by United States mail addressed as hereinafter set forth, postage
\npre-paid, registered or certified, return receipt requested, in which event the
\neffective date shall be the delivery or refusal date as specified on the return
\nreceipt. Unless otherwise directed by notice in writing, all notices shall be
\naddressed as follows:<\/p>\n
(a) To the Company at:<\/p>\n
NavigantVacations.com, LLC
\n 84 Inverness Circle East
\n Englewood, CO 80112-5314
\n Attention: Robert C. Griffith
\n Eugene A. Over, Jr., Esq.<\/p>\n
(b) To the Unit Holder at:<\/p>\n
The address of the Unit Holder set forth on the
\n transfer records of Navigant.<\/p>\n
7. Termination.<\/p>\n
7.1 Notwithstanding any provision herein to the contrary, this Agreement
\nshall terminate, and neither party shall have any further obligation to the
\nother, upon the occurrence of any of the following events:<\/p>\n
(a) Permanent cessation of the Company’s business.<\/p>\n
(b) The insolvency, receivership or dissolution of the Company.<\/p>\n
(c) The voluntary written agreement of Navigant, upon the approval of
\nits Board of Directors, and the Unit Holder.<\/p>\n
(d) The occurrence of both:<\/p>\n
(i) the conversion of the Company to a corporation, and<\/p>\n
5<\/p>\n
(ii) the consummation of an underwritten public offering of
\nshares of common stock of the successor corporation to the Company.<\/p>\n
(e) any merger or consolidation to which the Company is a party,
\nexcept for a merger in which after giving effect to such merger, the holders of
\na majority of the Company’s Voting Interests (as defined in the Company’s
\nLimited Liability Company Agreement) immediately prior to the merger shall
\ncontinue to own a majority of the Voting Interests in the surviving corporation,
\n(b) any transaction or series of related transactions in which more than 50% of
\nthe Company’s Voting Interests are transferred, or (c) a sale or other
\ndisposition of all or substantially all of the Company’s assets.<\/p>\n
(f) December 31, 2016.<\/p>\n
8. Specific Enforcement.<\/p>\n
8.1 Because of the unique value of the Units, in addition to any other
\nremedies which Navigant may have upon the breach of the agreements contained
\nherein, the obligations of the Unit Holder shall be specifically enforceable.<\/p>\n
9. Company Limited Liability Company Agreement.<\/p>\n
9.1 Unit Holder hereby understands and acknowledges that such Unit Holder
\nhas read and understands the LLC Agreement and has had ample opportunity to
\nconsult with such Unit Holder’s legal and tax advisor prior to signing this
\nAgreement and exercising the Unit Option. Unit Holder hereby agrees to all
\nterms and conditions of the LLC Agreement. Unit Holder further acknowledges and
\nagrees that in the event of a Reorganization (as defined in the LLC Agreement),
\nUnit Holders’ shares in the Successor Corporation (as defined in the LLC
\nAgreement) shall be subject to the same transfer restrictions contained herein
\nto which the Unit Holder’s Units are subject, until such time that this
\nAgreement is terminated pursuant to Section 7 hereof.<\/p>\n
10. Modification.<\/p>\n
10.1 This Agreement may only be altered or amended by a written instrument
\nsigned by Navigant and the Unit Holder setting forth such changes.<\/p>\n
11. Costs of Enforcement.<\/p>\n
11.1 In any action at law or in equity to enforce any of the provisions or
\nrights under this Agreement, the unsuccessful party of such litigation, as
\ndetermined by any court of competent jurisdiction in a final judgment or decree,
\nshall pay the successful party or parties all costs, expenses and reasonable
\nattorneys’ fees incurred therein by such party or parties (including without
\nlimitation such costs, expenses and fees on any <\/p>\n
6<\/p>\n
appeals), and if such successful party shall recover judgment in any action or
\nproceeding, such costs, expenses and attorneys’ fees shall be included as part
\nof the judgment.<\/p>\n
12. Severability.<\/p>\n
12.1 The invalidity or unenforceability of any provision hereof shall in no
\nway affect the validity or enforceability of any other provision hereof.<\/p>\n
13. Entire Agreement; Counterparts; Headings.<\/p>\n
13.1 This Agreement constitutes the entire agreement between the parties
\npertaining to the subject matter hereof and supersedes all prior and
\ncontemporaneous agreements, representations and understandings. This Agreement
\nmay be executed in counterparts, all of which shall be deemed to be one and the
\nsame instrument, and it shall be sufficient for each party to have executed at
\nleast one, but not necessarily the same, counterpart. The headings contained in
\nthis Agreement are for reference purposes only and shall not affect the meaning
\nor interpretation of this Agreement in any way. This Agreement has been
\nnegotiated by the respective parties hereto and the language hereof shall not be
\nconstrued for or against any party.<\/p>\n
14. Assignment.<\/p>\n
14.1 This Agreement shall be binding upon the parties and their respective
\nlegal representatives, beneficiaries, successors and assigns.<\/p>\n
15. Governing Law.<\/p>\n
15.1 This Agreement and the rights and obligations of the parties hereto
\nshall be governed by and construed and enforced in accordance with the laws of
\nthe State of Delaware, without regard to the conflicts of laws principles of
\nsuch State.<\/p>\n
7<\/p>\n
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
\nthe date first above written.<\/p>\n
NAVIGANTVACATIONS.COM, LLC<\/p>\n
By: __________________________________<\/p>\n
Title: _______________________________<\/p>\n
Date: ________________________________<\/p>\n
Unit Holder<\/p>\n
______________________________________<\/p>\n
Date: ________________________________<\/p>\n
8<\/p>\n
EXHIBIT A<\/p>\n
STATEMENT OF ACCEPTANCE<\/p>\n
Reference is made to that certain Unit Restriction Agreement effective as
\nof _________________________, 19__, by and between NavigantVacations.com
\nHolding, inc., (“Navigant”), NavigantVacations.com LLC (the “Company”) and
\n______________________________ (the “Restriction Agreement”). As a proposed
\nrecipient of certain options covered by said Restriction Agreement and LLC
\nAgreement, the undersigned hereby agrees that such Units, upon receipt, shall
\nremain subject to all of the terms and conditions of said Restriction Agreement
\nand LLC Agreement and all rights and obligations thereunder arising prior to
\nsuch receipt, and that upon such receipt the undersigned shall be deemed
\nautomatically to have accepted all of the terms and conditions of said
\nRestriction Agreement and LLC Agreement as therein provided, and that the
\nundersigned shall thereafter be deemed to be a signatory party to said
\nRestriction Agreement and LLC Agreement in the position of the Unit Holder. It
\nis understood that upon execution of the Statement of Acceptance the same shall
\nbe attached to said Restriction Agreement and LLC Agreement and shall thereupon
\nform a part thereof without any further action.<\/p>\n
Dated: _________________________, 19__.<\/p>\n
UNIT HOLDER<\/p>\n
___________________________________________<\/p>\n
Date: _____________________________________<\/p>\n
Exhibit 13.1<\/p>\n
NAME, ADDRESS AND FACSIMILE NUMBER OF EQUITY OWNERS
\n —————————————————<\/p>\n
Name\/Address Facsimile Number
\nNavigant International, Inc. 303-706-0678
\n84 Inverness Circle East,
\nEnglewood, Colorado 80112
\n Attention: Robert Griffith<\/p>\n
With a copy to: 303-295-8261
\nBetty C. Arkell, Esq.
\nHolland & Hart LLP
\n555 Seventeenth Street
\nDenver, CO 80202<\/p>\n
Och-Ziff Partners
\nOch-Ziff Capital Management Group
\nCitiCorp Center
\n153 East 53\/rd\/
\n43\/rd\/ Floor
\nNew York, New York 10022<\/p>\n
Attention: Joel Frank
\n—————————————– ———————-<\/p>\n
With a copy to:<\/p>\n
Michael R. Littenberg, Esq. 212-593-5955
\nShulte Roth & Zabel LLP
\n900 Third Avenue
\nNew York, New York 10022<\/p>\n
—————————————–<\/p>\n
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