Exhibit 10.14
FORM OF WINDY CITY INVESTMENTS
HOLDINGS, L.L.C.
CLASS A UNIT PURCHASE
AGREEMENT
THIS CLASS A UNIT PURCHASE
AGREEMENT (this “ Agreement ”) is made as of
[ ], by
and between Windy City Investments Holdings, L.L.C., a Delaware
limited liability company (the “ Company ”), and
the undersigned below (“ Executive ”).
Capitalized terms used but not otherwise defined herein or in a
Class B Unit Grant Agreement (as defined below) shall have the
meanings set forth in Section 8 hereof.
WHEREAS, Executive desires to
purchase Class A Units of the Company for cash, and the
Company has agreed to sell such Class A Units to
Executive.
WHEREAS, the Company has agreed to
effect the sale of the Class A Units and, subject to the terms
and conditions set forth herein, in the LLC Agreement, the
Registration Agreement, and the Unitholders Agreement, Executive
has agreed to purchase such Class A Units.
NOW THEREFORE, in consideration of
the premises and the mutual promises herein made, and in
consideration of the representations, warranties, and covenants
herein contained, the parties hereto agree as follows:
1.
Sale and Purchase of Class A
Units .
(a)
The Company has authorized the sale and issuance to Executive of,
and hereby sells and issues to Executive, the number of total
Class A Units of the Company indicated in Column B of the
Offering Schedule at a price per Class A Unit of $10 for an
aggregate purchase price set forth in Column C of the Offering
Schedule (the “ Purchase Price ”). The
Class A Units purchased pursuant to this
Section 2(a) shall constitute “
Purchased Units .”
(b)
Payment of the Purchase Price shall be made on the date hereof (the
“ Effective Date ”) by means of any combination
of a check or wire transfer of immediately available funds in an
amount equal to the Purchase Price. The sale and issuance of the
Purchased Units is conditioned on the receipt in full of the
Purchase Price by the Company on the Effective Date.
2.
Purchase Terms
.
(a)
Executive, intending to be legally bound, hereby irrevocably
subscribes for and purchases and accepts the Purchased Units on the
terms and conditions set forth herein. By execution of this
Agreement, Executive acknowledges that the Company is relying upon
the accuracy and completeness of the representations and warranties
of Executive contained herein in complying with its obligations
under the Securities Act and similar state securities laws.
Executive acknowledges that it is a condition to the
Company’s issuance of the Purchased Units that Executive
become a party to the LLC Agreement, the Unitholders Agreement, and
the Registration Agreement simultaneous with the execution of this
Agreement.
(b)
Until a Liquidity Event, any certificates evidencing Class A
Units (if such Class A Units are certificated) shall be held
by the Company for the benefit of Executive and the
other holder(s) of Class A Units, if
any. Any certificates evidencing Class A Units held by
Executive or Executive’s Permitted Transferee shall be
delivered by Executive to the Company, together with appropriate
irrevocable unit powers undated and duly executed in blank
sufficient to transfer title thereto upon the occurrence of a
Liquidity Event other than an IPO or otherwise upon a repurchase of
such Units hereunder. Upon the occurrence of a Liquidity Event
other than an IPO, the Company shall either (i) return to the
record holders thereof any certificates representing the Units,
together with unit powers previously delivered by Executive, or
(ii) deliver to the record holders of the Class A Units
all proceeds received by the Company from the transfer of the
Class A Units in connection with such Liquidity Event. Upon
the occurrence of an IPO, the Company shall return to the record
holders thereof any certificates representing public stock,
together with unit powers previously delivered by Executive. It is
understood and agreed that the Class A Units are currently
uncertificated.
3.
Representations and Warranties of
the Company . As a
material inducement to Executive to enter into this Agreement and
purchase the Purchased Units, the Company hereby represents and
warrants to Executive that:
(a)
Organization . The Company is a limited liability company
duly organized and validly existing under the laws of the State of
Delaware.
(b)
Authorization; No Breach . The execution, delivery and
performance of this Agreement have been duly authorized by the
Company. The execution, delivery and performance of this Agreement
and the consummation of the transactions provided for herein will
not result in the breach of any of the terms and provisions of, or
constitute a default under, or conflict with, or cause any
acceleration of any other obligation of the Company.
(c)
Capital of the Company . As of the Restatement Date, and
based upon the assumptions set forth on Schedule A , the
outstanding equity interests of the Company consist of
approximately the number of Class A Units and
Class A-Prime Units of the Company indicated on Schedule
A . The Company is not subject to any obligation (contingent or
otherwise) to repurchase or otherwise acquire or retire any of its
equity interests or any warrants, options or other rights to
acquire its equity interests, except pursuant to the LLC Agreement,
the Registration Agreement, the Unitholders Agreement and the
management equity issuance agreements (related to Class A
Units, Class B Units, and Deferred Units) executed by the
Company. All of the Company’s outstanding Units, including
the Units issued hereunder, are validly issued.
4.
Executive’s Representations
and Warranties . In
connection with the purchase and sale of the Purchased Units
hereunder, Executive hereby represents and warrants to the Company
that:
(a)
Executive’s Investment Representations . Executive
hereby represents that he, she or it is acquiring the Purchased
Units to be acquired by him, her or it hereunder for his, her or
its own account with the present intention of holding such
securities for investment purposes and that he, she or it has no
intention of selling such securities in a public distribution in
violation of the federal securities laws or any applicable state or
foreign securities laws. Executive acknowledges that the Units have
not been registered under the Securities Act or
2
applicable state or foreign securities laws and
that the Units will be issued to Executive in reliance on
exemptions from the registration requirements of the Securities Act
and applicable state and foreign statutes and in reliance on
Executive’s representations and agreements contained herein
and in the LLC Agreement.
(b)
No Conflict
. The execution, delivery and
performance by Executive of this Agreement and the consummation of
the transactions contemplated hereby, do not and will not (with or
without the giving of notice, the lapse of time, or both) result in
a violation or breach of, conflict with, cause increased liability
or fees, or require approval, consent or authorization under
(i) any Legal Requirements applicable to Executive or
(ii) any contract to which Executive is a party or by which
Executive or any of its properties or assets may be bound or
affected.
(c)
Other Representations and
Warranties of Executive .
Executive hereby further represents and warrants to the Company
that:
(i)
Executive is an officer or employee of Nuveen or one of its
Subsidiaries;
(ii)
Executive acknowledges that this Agreement has been executed and
delivered, and the Purchased Units have been issued hereunder, in
connection with and as a part of the compensation and incentive
arrangements between the Company and Executive;
(iii)
Executive has had an opportunity to ask questions and receive
answers concerning the terms and conditions of the Purchased Units
to be acquired by him, her or it hereunder and has had full access
to such other information concerning the Company (including access
to the Company’s Certificate, the LLC Agreement, the
Unitholders Agreement, and an offering summary (including exhibits
thereto)) as Executive may have requested in making his, her or its
decision to invest in the Purchased Units being issued
hereunder;
(iv)
Executive is an “accredited investor” as defined in
Rule 501(a) under the Securities Act and/or has, by reason of
his or her business and financial experience and the business and
financial experience of those retained by him or her such
knowledge, sophistication and experience in business and financial
matters so as to be capable of evaluating the merits and risks of
holding the Purchased Units such that Executive is sophisticated as
contemplated by Rule 506(b)(2)(ii) under the Securities
Act;
(v)
Executive is able to bear the economic risk and lack of liquidity
of an investment in the Company and is able to bear the risk of
loss of his, her or its entire investment in the Company, and
Executive fully understands and agrees that he, she or it may have
to bear the economic risk of his, her or its purchase for an
indefinite period of time because, among other reasons, the
Purchased Units have not been registered under the Securities Act
or under the securities laws of any state or foreign nation and,
therefore, cannot be resold, pledged, assigned or otherwise
disposed of unless they are subsequently registered under the
Securities Act and under the applicable securities laws
3
of certain states or foreign nations
or unless an exemption from such registration is
available;
(vi)
Executive acknowledges that the
Purchased Units are subject to the restrictions contained in the
LLC Agreement, the Unitholders Agreement, and the Registration
Agreement, and Executive has received and reviewed a copy of the
LLC Agreement, the Unitholders Agreement, and the Registration
Agreement;
(vii)
Executive will not sell or otherwise
transfer Purchased Units without registration under the Securities
Act (and any applicable federal, state and foreign securities laws)
or an exemption therefrom, and provided there exists such a
registration for exemption, any transfer of Purchased Units by
Executive or subsequent holders of Purchased Units will be in
compliance with the provisions of this Agreement, the LLC
Agreement, the Registration Agreement and the Unitholders
Agreement;
(viii)
Executive acknowledges that any
certificate representing Purchased Units shall include such
legend(s) as the Company determine are necessary or
advisable;
(ix)
Executive has all requisite legal
capacity and authority and all material authorizations necessary to
carry out the transactions contemplated by this Agreement, the LLC
Agreement, the Registration Agreement and the Unitholders
Agreement; and the execution, delivery and performance of this
Agreement, the LLC Agreement, the Registration Agreement, the
Unitholders Agreement and all other agreements contemplated hereby
and thereby to which Executive is a party and the purchase of the
Purchased Units hereunder have been duly authorized by
Executive;
(x)
Executive has relied on the advice
of, or has consulted with, only his, her or its own legal,
financial and tax advisors and the determination of Executive to
acquire the Purchased Units pursuant to this Agreement has been
made by Executive independent of any statements or opinions as to
the advisability of such acquisition or as to the properties,
business, prospects or condition (financial or otherwise) of the
Company which may have been made or given by any other Person
(including all Persons acquiring Purchased Units on the date
hereof) or by any agent or employee of such Person and independent
of the fact that any other Person has decided to become a
unitholder of the Company; and
(xi)
Executive is not acquiring the
Purchased Units as a result of or subsequent to any advertisement,
article, notice or other communication published in any newspaper,
magazine, internet publication or similar media or broadcast over
television, radio or the internet or presented at any seminar or
meeting, or any solicitation of a subscription by a Person not
previously known to Executive in connection with investments in
securities generally.
(d)
Additional
Acknowledgements . As an
inducement to the Company to issue the Purchased Units to Executive
and as a condition thereto, Executive hereby acknowledges and
agrees that:
4
(i)
Neither the issuance of the Purchased Units to Executive nor any
provision contained in this Agreement, the LLC Agreement, the
Registration Agreement or the Unitholders Agreement shall entitle
Executive to remain in the employment of the Company and/or any of
its Subsidiaries or affect the right of the Company and/or any of
its Subsidiaries to terminate Executive’s employment at any
time; and
(ii)
Except as required under the LLC Agreement, the Registration
Agreement, the Unitholders Agreement or applicable law, the Company
shall have no duty or obligation to disclose to Executive, and
Executive shall have no right to be advised of, any material
information regarding the Company and its Subsidiaries at any
time.
5.
Compensatory Arrangements;
Rule 701 Exemption .
The Company and Executive hereby acknowledge and agree that this
Agreem
