EXHIBIT 10.33
MANAGEMENT MEMBERS AGREEMENT
CONCERNING
NALCO LLC
DATED AS OF JUNE 11, 2004.
This MANAGEMENT MEMBERS AGREEMENT (the "Agreement") dated as of
June
11, 2004 by and among Nalco LLC (the "Company"), a Delaware limited
liability
company and the Persons who are or after the date hereof become
signatories
hereto (the "Management Members").
RECITALS
WHEREAS, the Company is governed by that certain Second Amended and
Restated Limited Liability Company Operating Agreement (the "LLC
Agreement")
dated as of May 17, 2004.
WHEREAS, the Management Members will be providing services to the
Company or its Affiliates.
WHEREAS, each Management Member will subscribe for and acquire from
the
Company, and the Company will issue and sell to each Management
Member, the
Company's Class A Units (the "Class A Units"), Class B Units (the
"Class B
Units"), Class C Units (the "Class C Units") and Class D Units (the
"Class D
Units"; collectively with the Class A Units, the Class B Units and
the Class C
Units, the "Units"), in each case in the amounts set forth on
Schedule A to the
LLC Agreement, as the same may be amended from time to time;
WHEREAS, it is a condition to the sale of the Units that the
Management
Members enter into this Agreement;
WHEREAS, the Management Members will enter into the Registration
Rights
Agreement; and
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and
sufficiency of
which are hereby acknowledged, the parties to this Agreement hereby
agree as
follows:
Management Members' Representations, Warranties and Agreements
(jjj) Units Unregistered. Each Management Member acknowledges and
represents that such Management Member has been advised by the
Company that:
(A) the offer and sale of the Units have not been registered
under the 1933 Act;
(B) the Units must be held and the Management Member must
continue to bear the economic risk of the investment in the Units
unless the offer and sale of such Units are subsequently registered
under the 1933 Act and all applicable state securities laws or an
exemption from such registration is available and the Units may
never
be so registered;
(C) there is no established market for the Units and it is not
anticipated that there will be any public market for the Units in
the
foreseeable future;
(D) a restrictive legend in the form set forth below shall be
placed on the certificates representing the Units:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE
ORIGINALLY ISSUED ON ______________, HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND
MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT OR AN EXEMPTION FROM
REGISTRATION THEREUNDER. THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE ALSO SUBJECT TO CERTAIN TRANSFER AND OTHER
RESTRICTIONS SET FORTH IN THE LIMITED LIABILITY COMPANY
AGREEMENT, DATED AS OF MAY 17, 2004 AMONG NALCO LLC AND
CERTAIN OF ITS MEMBERS, THE MANAGEMENT MEMBERS AGREEMENT,
DATED AS OF JUNE 11, 2004 AMONG NALCO LLC AND CERTAIN
MANAGEMENT MEMBERS NAMED THEREIN, THE REGISTRATION RIGHTS
AGREEMENT AMONG NALCO LLC AND CERTAIN OF ITS MEMBERS AND,
AMONG OTHER THINGS, MAY NOT BE OFFERED OR SOLD EXCEPT IN
COMPLIANCE WITH SUCH TRANSFER RESTRICTIONS. COPIES OF SUCH
LIMITED LIABILITY COMPANY AGREEMENT, SUCH MANAGEMENT MEMBERS
AGREEMENTS AND SUCH REGISTRATION RIGHTS AGREEMENT ARE ON FILE
WITH THE SECRETARY OF THE LIMITED LIABILITY COMPANY AND ARE
AVAILABLE WITHOUT CHARGE UPON WRITTEN REQUEST THEREFOR. THE
HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE,
AGREES TO BE BOUND BY ALL OF THE APPLICABLE PROVISIONS OF THE
AFORESAID AGREEMENTS.";
(E) a restrictive legend in the form set forth below shall be
placed on the certificates representing the Units held by Georgia
residents:
"THESE SECURITIES HAVE BEEN ISSUED OR SOLD IN RELIANCE ON
PARAGRAPH 13 OF CODE SECTION 10-5-9 OF THE "GEORGIA SECURITIES
ACT OF 1973," AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN A
TRANSACTION WHICH IS EXEMPT UNDER SUCH ACT OR PURSUANT TO AN
EFFECTIVE REGISTRATION UNDER SUCH ACT." and
(F) a notation shall be made in the appropriate records of the
Company indicating that the Units are subject to restrictions on
transfer and, if the Company should at some time in the future
engage
the services of a securities transfer agent, appropriate
stop-transfer
instructions may be issued to such transfer agent with respect to
the
Units.
(kkk) Additional Investment Representations. Each Management Member
represents and warrants that:
(A) the Management Member's financial situation is such that
such Management Member can afford to bear the economic risk of
holding
the Units for an indefinite period of time, has adequate means for
providing for the Management Member's current needs and personal
contingencies, and can afford to suffer a complete loss of the
Management Member's investment in the Units;
(B) the Management Member's knowledge and experience in
financial and business matters are such that the Management Member
is
capable of evaluating the merits and risks of the investment in the
Units;
(C) the Management Member understands that the Units are a
speculative investment which involves a high degree of risk of loss
of
Management Member's investment therein, there are substantial
restrictions on the transferability of the Units and, on the date
on
which such Management Member acquires such Units and for an
indefinite
period following such date, there will be no public market for the
Units and, accordingly, it may not be possible for the Management
Member to liquidate the Management Member's investment including in
case of emergency, if at all;
(D) the terms of this Agreement provide that if the Management
Member ceases to provide services to the Company and its
Affiliates,
the Company and its Affiliates have the right to repurchase the
Units
at a price which may be less than the Fair Market Value thereof;
(E) the Management Member understands and has taken cognizance
of all the risk factors related to the purchase of the Units and,
other
than as set forth in this Agreement, no representations or
warranties
have been made to the Management Member or Management Member's
representatives concerning the Units, the Company, the Subsidiaries
or
their respective prospects or other matters;
(F) the Management Member has been given the opportunity to
examine all documents and to ask questions of, and to receive
answers
from, the Company and its representatives concerning the Company
and
its subsidiaries, the acquisition of Nalco Company and certain
Subsidiaries of Nalco International S.A.S. by subsidiaries of the
Company, the LLC Agreement, the Company's organizational documents
and
the terms and conditions of the purchase of the Units and to obtain
any
additional information which the Management Member deems necessary;
and
(G) all information which the Management Member has provided
to the Company and the Company's representatives concerning the
Management Member and the Management Member's financial position is
complete and correct as of the date of this Agreement.
(lll) Section 83(b) Election. Within 30 days after purchasing any
Units
(other than Class A Units), each Management Member may make an
election with the
Internal Revenue Service ("IRS") under Section 83(b) of the
Internal Revenue
Code of 1986, as amended, and the regulations promulgated
thereunder (an "83(b)
Election") in the form of Exhibit A attached hereto (any Units with
respect to
which such an election is properly made, "Electing Units"). Each
Management
Member shall submit any such election to the IRS within 30 calendar
days after
purchasing the Units and shall promptly send a copy to the Company.
Management
Members holding Electing Units shall use an accounting firm
selected and paid
for by the Company or a Subsidiary to file and handle all matters
relating to
their 2004, 2005 and 2006 personal income tax returns. Management
Members
holding Electing Units shall for all tax reporting purposes use the
Units
valuation prepared by the Company's third party valuation firm in
connection
with the issuance of such Units. To the extent that a Management
Member does not
make an 83(b) Election with respect to any Units (other than Class
A Units) and
such Management Member is subject to ordinary income and
withholding taxes upon
the vesting of such Units (the "Vesting Units") the Management
Member will be
required to pay, in cash, to the Company an amount equal to such
withholding
taxes, as determined by the Company in good faith. To the extent
that the
withholding taxes, with respect to the Vesting Units, are not paid
to the
Company within five days following a request from the Company to
pay such
withholding taxes, the Management Member will forfeit, without the
payment of
consideration, the Vesting Units.
Section 1.04. Contingent Loan. A Management Member shall, subject
to
the conditions set forth on Exhibit B, be entitled to a loan from
the Company on
the terms set forth on Exhibit B with respect to any Electing
Units.
Section 1.05. Contingent Bonus. The Company shall cause one of its
Subsidiaries to pay a bonus to Management Members in the
circumstances set forth
in Exhibit C.
Transfers; Acceleration
(mmm) Transfer. (iv) Until the occurrence of a Qualified IPO,
except as
required by law, no Management Member may directly or indirectly,
sell, contract
to sell, give, assign, hypothecate, pledge, encumber, grant a
security interest
in, offer, sell any option or contract to purchase, purchase any
option or
contract to sell, grant any option, right or warrant to purchase,
lend, or
otherwise transfer or dispose of any economic, voting or other
rights in or to
(collectively, "Transfer") any Units except pursuant to (i) Article
XI of the
LLC Agreement, (ii) Sections 2.02 or 2.04 hereof or (iii) a
Transfer to a
Manager Permitted Transferee (each a "Permitted Transfer").
(A) Following a Qualified IPO and the expiration of any
underwriter or Company "lock-up" period (as provided for in Section
4(a) of the Registration Rights Agreement or otherwise) applicable
to
such Qualified IPO, each Management Member may only Transfer its
Units
pursuant to (i) a Permitted Transfer, (ii) a Transfer pursuant to
Section 2.03, (iii) a Transfer in accordance with the Registration
Rights Agreement or (iv) a Transfer conducted in accordance with
the
requirements of Rule 144 promulgated under the 1933 Act; provided,
that
no Management Member
shall make a Transfer pursuant to this clause (iv) without the
Company's prior, written approval.
(B) No Transfer by any Management Member may be made pursuant
to this Article II unless (i) the transferee has agreed in writing
to
be bound by the terms and conditions of this Agreement and the LLC
Agreement (other than if the Transfer is conducted in accordance
with
the Registration Rights Agreement or the requirements of Rule 144
promulgated under the 1933 Act), (ii) the Transfer complies in all
respects with the applicable provisions of this Agreement, (iii)
the
Transfer complies in all respects with applicable federal and state
securities laws, including the 1933 Act and (iv) the Transfer is
made
in compliance with all applicable Company policies and restrictions
(including any trading "window periods" or other policies
regulating
insider trading); provided, that the conditions to Transfer
described
in clause (i) above shall not apply to a Transfer pursuant Article
XI
of the LLC Agreement or Sections 2.02, 2.03 or 2.04 hereof.
(d) No Transfer by any Management Member may be made pursuant to
this
Article II (except pursuant to an effective registration statement
under the
1933 Act) unless and until such Management Member has first
delivered to the
Company an opinion of counsel (reasonably acceptable in form and
substance to
the Company) that neither registration nor qualification under the
1933 Act and
applicable state securities laws is required in connection with
such Transfer.
(e) No Management Member may Transfer Accelerated Vesting C/D Units
prior to the one-year anniversary of the date on which they became
Accelerated
Vesting C/D Units following a Sponsor Sell-Down.
(nnn) Call Option. (a) If a Management Member's Services to the
Company or any Subsidiary terminate for any of the reasons set
forth in clauses
(i), (ii) or (iii) below (each such event a "Termination Event"),
the Company
shall have the right but not the obligation to purchase, from time
to time after
such termination of Services (x) in the case of any Unvested Unit,
for a period
of 120 days (subject to extension as provided below) immediately
following the
date of the Termination Event and (y) in the case of any Class A
Unit or Vested
Unit, for a period of 60 days (subject to extension as provided
below)
immediately following the later of (A) the date of the Termination
Event and (B)
the date that is six (6) months and one day after the date on which
such
Management Members' Unit became a Vested Unit or after the date on
which such
Management Member acquired such Class A Unit (the later of (A) and
(B), the
"First Purchase Date"), and such Management Member shall be
required to sell to
the Company, any or all of such Units then held by such Management
Member (it
being understood that if Units of any class subject to repurchase
hereunder may
be repurchased at different prices, the Company, at its sole
discretion, may
elect to repurchase all or any portion of the Units of such class,
including
purchasing only such lower priced Units), at a price per Unit equal
to the
applicable purchase price determined pursuant to Section 2.02(c):
(1) if such Management Member's Service with the Company and
its Subsidiaries is terminated due to the Disability or death of
the
Management Member;
(2) if such Management Member's Service with the Company and
its Subsidiaries is terminated by the Company and its Subsidiaries
without Cause or by the Management Member for any reason;
(3) if such Management Member's Service with the Company and
its Subsidiaries is terminated by the Company or any of its
Subsidiaries for Cause.
Any Unvested Units purchased by the Company shall be canceled.
(b) If on the 61st day following (x) in the case of Class A Units,
the
date of the Termination Event and (y) in the case of Vested Units,
the First
Purchase Date, the Company has not purchased all of a terminated
Management
Member's Units, and the Company has not opted to extend its 60 day
election
period pursuant to Section 2.02(d), the Company shall on or before
the 61st day
provide written notice to the Investor Groups of (i) its decision
not to
purchase some or all of such Units and (ii) the number of such
Management
Member's Eligible Units (defined below) which the Company did not
purchase, and
the Investor Groups shall have the right to purchase and such
Management Member
shall be required to sell to the Investor Group(s), any or all of
the Class A
and Vested Units (the "Eligible Units") then held by such
Management Member at a
price per Unit equal to the applicable purchase price determined
pursuant to
Section 2.02(c). The Investor Groups' rights to purchase such
Eligible Units and
each Management Member's corresponding obligation to sell such
Eligible Units
shall terminate on the 120th day following (x) in the case of Class
A Units, the
date of the Termination Event and (y) in the case of Vested Units,
the First
Purchase Date. Upon receipt of the written notice described above,
each Investor
Group desiring to purchase Units shall within 45 days of receipt of
the
Company's notice provide written notice to the Company, specifying
that such
Investor Group is willing to purchase either (i) its pro rata share
of the
Eligible Units (based upon the number of Units held by such
Investor Group
relative to the total number of Units held by all of the Investor
Groups), (ii)
a number of Eligible Units less than such Investor Group's pro rata
share, or
(iii) any and all Units available to be purchased; provided, that
the Investor
Groups shall, as much as reasonably practicable, consult with each
other and
coordinate the exercise of rights such that all Eligible Units are
elected to be
purchased. Upon receipt of the Investor Groups' respective notices,
the Company
will notify the Management Member of the Investor Group(s)'
elections and the
Management Member will be obligated to sell (x) to the Investor
Groups making
elections described in clauses (i) and (ii) of the preceding
sentence, the
number of Eligible Units elected to be purchased by such Investor
Groups and (y)
all remaining Eligible Units, if any, to the Investor Groups making
the election
described in clause (iii) of the preceding sentence to such
Investor Group(s) on
a pro rata basis (based upon the number of Units held by such
Investor Group
relative to the total number of Units held by all of the Investor
Groups making
such election), but in no event more that any such Investor Groups
elected to
purchase.
(c) In the event of a purchase by the Company pursuant to Section
2.02(a) and/or the Investor Group(s) pursuant to Section 2.02(b)
(each a "Units
Buyer"), the purchase price shall be:
(i) in the case of a Termination Event specified in Section
2.02(a)(i) or 2.02(a)(ii):
(x) for Class A Units and Vested Units, a price per
Unit equal to the most recently determined Fair Market Value;
and
(y) for Unvested Units, a price per Unit equal to the
lesser of (1) the most recently determined Fair Market Value
and (2) Cost.
(ii) in the case of a Termination Event specified in Section
2.02(a)(iii), for Class A Units, Vested Units and Unvested Units, a
price per Unit equal to the lesser of (1) Fair Market Value and (2)
Cost.
(d) The Units Buyer may pay the purchase price for such Units (i)
by
delivery of funds deposited into an account designated by the
Management Member,
a bank cashier's check, a certified check or a company check of the
Units Buyer
for the purchase price; (ii) if the Units Buyer is the Company and
is prohibited
from paying cash by financing or liquidity constraints and is
unable to pay the
purchase price as provided in clause (iii), by delaying the
exercise of the
purchase right described under Section 2.02(a) until the earlier of
(x) when the
financing restrictions lapse and (y) when the Company is able to
pay the
purchase price as provided in clause (iii); or (iii) if the Units
Buyer is the
Company and has the right to purchase such Units during the period
following a
Qualified IPO (including in respect of a purchase that was delayed
pursuant to
clause (ii)), by delivery of a number of shares of Issuer Common
Stock
determined by dividing (A) the aggregate purchase price of the
Units being sold
by such Management Member by (B) the Public Share FMV as of the
close of trading
on the trading day immediately prior to the delivery thereof to the
Management
Member. Notwithstanding anything to the contrary in this Agreement,
the Units
Buyer may deduct and withhold from the amounts otherwise payable
pursuant to
this Agreement such amounts as necessary to comply with the
Internal Revenue
Code of 1986, as amended (the "Code"), or any other provision of
applicable law,
with respect to the making of such payment.
(e) Notwithstanding anything to the contrary elsewhere herein, the
Company shall not be obligated to purchase any Units at any time
pursuant to
this Section 2.02, regardless of whether it has delivered a notice
of its
election to purchase any such Units, (i) to the extent that (A) the
purchase of
such Units (together with any other purchases of Units pursuant to
Sections 2.02
or 2.03 hereof, or pursuant to similar provisions in any other
agreements with
other investors of which the Company has at such time been given or
has given
notice) or (B) in the event of an election to purchase such Units
with shares of
Issuer Common Stock, the issuance of such shares by the IPO Entity,
the purchase
of such shares by the Company or the distribution of such shares to
the
Management Member would result (x) in a violation of any law,
statute, rule,
regulation, policy, order, writ, injunction, decree or judgment
promulgated or
entered by any governmental authority applicable to the Company or
any of its
Subsidiaries or any of its or their assets (including any
unavailability of a
registration statement or exemption from registration necessary to
allow
delivery of shares of Issuer Common Stock to the Management
Member), (y) after
giving effect thereto (including any dividends or other
distributions or loans
from a Subsidiary of the Company to the Company in connection
therewith), in a
Financing Default or (z) in the Company being required to disgorge
any profit to
the IPO Entity pursuant to Section 16(b) of the 1934 Act, (ii) if
immediately
prior to such purchase of Units, issuance of Issuer Common Stock or
purchase of
shares of Issuer Common Stock, as the case may be, there exists a
Financing
Default which prohibits such issuance or purchase (including any
dividends or
other distributions or loans from a Subsidiary of the Company to
the Company in
connection therewith), or (iii) if the Company does not have funds
available to
effect such purchase of Units or Issuer Common Stock. The Company
shall within
30 days of learning of any such fact so
notify the Management Member that it is not obligated to purchase
such Units and
has deferred its right to make such purchase until such violation,
potential
liability under the 1933 Act or 1934 Act, Financing Default or
unavailability of
funds would not result therefrom or has ceased. The Company agrees
to use
commercially reasonable efforts to cure any such Financing Default
that is
curable. To the extent that, pursuant to this Section 2.02(e), the
Company is
not obligated to pay for a Management Member's Units in accordance
with one of
the payment methods described in the first sentence of Section
2.02(d), the
Company shall, except as otherwise permitted by this Section
2.02(e), be
required to pay for such Units pursuant to an alternate method of
payment
described in the first sentence of Section 2.02(d).
(f) Notwithstanding anything to the contrary contained in this
Section
2.02, any Units which the Company has elected to purchase from a
Management
Member, but which in accordance with Section 2.02(e) are not
purchased at the
applicable time provided in this Section 2.02, shall be purchased
by the Company
on the tenth Business Day after such date or dates that it is no
longer
permitted to defer purchasing such Units under Section 2.02(e), and
the Company
shall give such Management Member five Business Days prior notice
of any such
purchase.
(ooo) Put Right. (a) Subject to the Call Right described in Section
2.02, following a Qualified IPO and for so long as no Termination
Event pursuant
to Section 2.02(a)(iii) shall have occurred with respect to a
Management Member,
such Management Member shall have the right, but not the
obligation, to sell
(the "Put Right") beginning on the later of (i) in the case of
Class A Units and
Equity Units that were Vested Units on the date of consummation of
the Qualified
IPO, the later of (x) the first date immediately following the
expiration of any
Company or underwriter "lock-up" period applicable to such
Qualified IPO and (y)
the date that is at least six (6) months and one day after, (A) in
the case of
Class A Units, the Sale Date, and (B) in the case of any Equity
Units that were
Vested Units on the date of consummation of the Qualified IPO, the
date on which
such Equity Units became Vested Units and (ii) in the case of
Equity Units that
were Unvested Units on the date of consummation of the Qualified
IPO, the date
that is six (6) months and one day after the date on which such
Management
Member's Units became Vested Units (the later of (i) and (ii) shall
be referred
to as the "First Put Date"), and the Company shall be required to
purchase from
such Management Member, a number of such Management Member's Class
A Units and
Vested Units as determined by such Management Member, at a price
per Unit equal
to the Fair Market Value as of the date the Management Member
exercises such Put
Right. For the avoidance of doubt, subject to the Call Right
described in
Section 2.02, a Management Member shall remain entitled to the Put
Right
following a Termination Event pursuant to Sections 2.02(a)(i) or
(ii) with
respect to such Management Member.
(b) Each Management Member who desires to sell any of his or her
Class
A Units or Vested Units following the applicable First Put Date
shall send
written notice to the Company of his or her intention to sell such
Units
pursuant to this Section 2.03. Subject to the exercise of any Call
Right
pursuant to Section 2.02, the closing of the purchase shall take
place at the
principal office of the Company on a date specified by the Company
no later than
30 days after the giving of such notice.
(c) At the closing of a purchase pursuant to a Put Right, the
Company
will pay to the Management Member the purchase price for such Units
(determined
in accordance with Section 2.03(a)) by delivery of a number of
shares of Issuer
Common Stock determined by dividing (A) the aggregate purchase
price of the
Units being sold by such Management Member
by (B) the Public Share FMV as of the close of trading on the
trading day
immediately prior to the delivery thereof to the Management Member.
(d) Notwithstanding anything to the contrary elsewhere herein, the
Company shall not be obligated to purchase any Units at any time
pursuant to
this Section 2.03 (i) to the extent that (A) the purchase of such
Units
(together with any other purchases of Units pursuant to Sections
2.02 or 2.03
hereof, or pursuant to similar provisions in any other agreements
with other
investors of which the Company has at such time been given or has
given notice)
or (B) the issuance of shares by the IPO Entity or the purchase of
such shares
by the Company would result (x) in a violation of any law, statute,
rule,
regulation, policy, order, writ, injunction, decree or judgment
promulgated or
entered by any governmental authority applicable to the Company or
any of its
Subsidiaries or any of its or their assets (including any
unavailability of a
registration statement or exemption from registration necessary to
allow
delivery of shares of Issuer Common Stock to the Management
Member(s)), (y)
after giving effect thereto, in a Financing Default or (z) in the
Company being
required to disgorge any profit to the IPO Entity pursuant to
Section 16(b) of
the 1934 Act or (ii) if immediately prior to such purchase of
Units, issuance of
Issuer Common Stock or purchase of shares of Issuer Common Stock,
as the case
may be, there exists a Financing Default which prohibits any such
issuance or
purchase. The Company agrees to use commercially reasonable efforts
to cure any
such Financing Default that is curable. To the extent that the
Company is not
obligated to pay for any Units as described in the first sentence
of Section
2.03(c) pursuant to the terms of this Section 2.03(d), the Company
shall
promptly notify any Management Member that has delivered a notice
of exercise of
a Put Right that it is not obligated to purchase such Units and has
deferred its
right to make such purchase until such violation, potential
liability under the
1933 Act or 1934 Act or Financing Default would not result
therefrom or has
ceased.
(e) Notwithstanding anything to the contrary contained in this
Section
2.03, any Units which a Management Member has elected to sell to
the Company,
but which in accordance with Section 2.03(d) are not purchased at
the applicable
time provided in this Section 2.03, shall be purchased by the
Company on the
tenth Business Day after such date or dates that it is no longer
permitted to
defer purchasing such Units under Section 2.03(d), and the Company
shall give
such Management Member five Business Days prior notice of any such
purchase.
(ppp) Tag-Along Right. (v) If, at any time prior to a Qualified
IPO,
one or more Sponsor Members propose to Transfer, in a single
transaction or a
series of related transactions, a number of Class A Units
representing at least
30% of the Sponsor Members' aggregate Initial Equity Stakes (as
defined in the
LLC Agreement) to any Person (other than a Transfer to a Permitted
Transferee
(as defined in the LLC Agreement) of any such Sponsor Member and
other than a
Transfer in accordance with the Registration Rights Agreement and
other than to
another Sponsor Member) (a "Tag-Along Purchaser"), then, unless
such
transferring Sponsor Member(s) are entitled to give and do give a
Drag-Along
Sale Notice (as defined in the LLC Agreement) and no other Sponsor
Member(s) has
elected to purchase its pro rata share of such Class A Units
pursuant to Section
2.04(a) of the Sponsor Agreement, the Company shall first provide
written notice
to each of the Management Members, which notice (the "Tag-Along
Notice") shall
state: (i) the maximum number of Class A Units proposed to be
Transferred (the
"Tag-Along Securities"); (ii) the purchase price per Unit (the
"Tag-Along
Price") for the Tag-Along Securities and (iii) any other material
terms and
conditions of such sale, including the proposed transfer date
(which date will
be within 60 business days after the termination of the Election
Period (defined
below), subject to extension for any
