Exhibit 10.16
WINDY CITY INVESTMENTS
HOLDING, L.L.C.
AMENDED AND RESTATED
UNITHOLDERS AGREEMENT
THIS AMENDED AND RESTATED
UNITHOLDERS AGREEMENT (this “ Agreement ”) is
made as of December 14, 2007, effective as of
November 13, 2007 (the “ Effective Date ”),
by and among Windy City Investments Holdings, L.L.C., a Delaware
limited liability company (the “ Company ”) and
certain employees of the Company or its Subsidiaries (each, an
“ Executive ” and collectively, the “
Executives ”) as well as any other Person who, at any
time, acquires Units in accordance with the terms of this Agreement
and the LLC Agreement as determined by the Board (each, an “
Other Unitholder ” and collectively, the “
Other Unitholders ”). The Executives and the
Other Unitholders are collectively referred to herein as the
“ Unitholders ” and individually as a “
Unitholder .” Except as otherwise provided
herein or defined in the LLC Agreement (as defined below),
capitalized terms used herein are defined in Section 5
hereof.
WHEREAS, (i) on the Effective
Date certain Executives acquired Class A Units pursuant to
Class A Purchase and Exchange Agreements between each of them
and the Company, (ii) certain Executives are acquiring
Class A Units on December 14, 2007 pursuant to the
separate Class A Purchase Agreements, and (iii) the
Executives are receiving Class B Units on December 14,
2007 pursuant to the separate Class B Unit Grant
Agreements;
WHEREAS, certain Other Unitholders
may purchase Units or other equity securities or interests in the
Company from time to time in the future;
WHEREAS, the Unitholders are parties
to the LLC Agreement;
WHEREAS, certain Unitholders and the
Company entered into this Agreement on November 13, 2007 and
now desire to amend and restate this Agreement as set forth
herein;
WHEREAS, the Company has issued
additional Units to new Unitholders and such parties desire to
enter into this Agreement to be applicable to all Units issued
since the Effective Date for the purposes, among others, of
(i) assuring continuity in the management and ownership of the
Company and (ii) limiting the manner and terms by which Units
may be transferred.
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:
1.
Representations and
Warranties . Each Executive
represents and warrants that (a) such Executive is the record
owner of the number of the Units that he has been granted or has
elected to acquire as indicated on the Offering Schedule,
(b) this Agreement has been duly authorized, executed and
delivered by such Executive and constitutes the valid and binding
obligation of such Executive, enforceable in accordance with its
terms, (c) such Executive has not granted and is not a party
to any proxy, voting trust or other agreement which is inconsistent
with, conflicts with, or violates any provision of this Agreement
and (d) such Executive has no claim in respect of, and waives
any claim related to, equity securities issued by Nuveen or
its
predecessors prior to the
date hereof other than those claims for payments in respect of such
securities in the applicable amount calculated pursuant to
Section 2.2 or Section 2.5 of the Merger Agreement, and
waives any claim related to the promised issuance of equity
securities of Nuveen in the future pursuant to any agreement
entered into prior to the Restatement Date.
2.
Restrictions
on Transfer of Units . The following
transfer restrictions shall apply to any issued and outstanding
Class B Units and Stock (as defined below) in addition to, and
not in substitution for, any other transfer
restrictions:
(a)
Transfer of
Securities . No Executive shall
Transfer any interest in Class B Units or Stock (as defined
below) without the prior written consent of the Board, except for
Transfers of Vested Class B Units (i) to a Permitted
Transferee in accordance with Section 2(c)
hereof, (ii) in connection with a Sale of the Company in
accordance with the LLC Agreement, (iii) in connection with
any repurchase rights provided in Section 4 , or
(iv) with respect to a Transfer of Stock, in accordance with
Section 2(b)
(b)
Transfers
Following an IPO by Executives . Shares of stock or
other securities distributed in respect of, or received on account
of, the Class B Units (and any other shares of stock or
property subsequently received in respect of such stock or
securities) (collectively, “ Stock ”) held by an
Executive or any Permitted Transferee of such Executive (“
Applicable Shares of Stock ”) shall be subject to the
following restrictions on Transfer (in addition to, and not in
substitution for, any other restriction on Transfer applicable to
such Applicable Shares of Stock of such Executive or such Permitted
Transferee): (i) no unvested Applicable Shares of Stock may be
Transferred, (ii) no Applicable Shares of Stock may be
Transferred during any Underwriter’s Restriction Period,
(iii) commencing upon the expiration of the
Underwriter’s Restriction Period, if any, imposed in
connection with an IPO, no more than 33% of the aggregate number of
shares of Applicable Shares of Stock held by an Executive or his
Permitted Transferee at the end of the Underwriter’s
Restriction Period may be Transferred by such Executive or
Permitted Transferee during any 12 consecutive months other than to
a Permitted Transferee, (iv) in the event an Executive’s
employment with the Company and its Subsidiaries is terminated at
any time prior to an IPO in a Disqualifying Termination, the
initial 12-month period specified in clause (iii) above
applicable to such Executive and such Executive’s Permitted
Transferees shall commence on the six-month anniversary of the
expiration of the Underwriter’s Restriction Period imposed on
other Executives in connection with the IPO and (v) in the
event an Executive’s employment with the Company (including
as the “Company,” the issuer of the Stock) and its
Subsidiaries terminates after the IPO in a Disqualifying
Termination and prior to the third anniversary of the expiration of
the Underwriter’s Restriction Period, no vested Applicable
Shares of Public Stock held by such Executive and such
Executive’s Permitted Transferees may be Transferred during
the six-month period commencing upon such termination of employment
(the “ Termination Blackout Period ”) and the
Termination Blackout Period shall be disregarded and ignored for
purposes of determining the number of Applicable Shares of Stock
that may be Transferred by such Executive and such
Executive’s Permitted Transferees during any 12 consecutive
month period that includes the Termination Blackout Period.
Subject to any other agreement applicable to Applicable Shares of
Stock (including any registration rights agreement), the Applicable
Shares of Stock held by an Executive shall not be subject to
restrictions on Transfer under this Section 2(b)
upon the expiration of the longest period specified in this
Section 2(b) that is
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applicable to such
Executive. Upon the written request of any Executive, the
Company shall promptly inform such Executive of the number of
vested Applicable Shares of Stock that the Company calculates such
Executive may Transfer consistently with this
Section 2(b) subject to the terms and conditions
hereof.
(c)
Permitted
Transfers . The restrictions set
forth in Section 2(a) or Section 2(b)
shall not apply to any Transfer of Vested Class B Units
or Stock by an Executive (A) who is
an individual (i) in the event of such Executive’s
death, pursuant to will or applicable laws of descent or
distribution, (ii) to such Executive’s legal guardian
(in case of any mental incapacity) or (iii) to or among his or
her Family Group, or (B) that is an entity, to or among its
Affiliates; provided that the restrictions contained in this
Agreement and any other agreement applicable to such Executive or
such Vested Class B Units and/or Stock will continue to be
applicable to the Units and/or Stock after any Transfer pursuant to
this Section 2(c) , subject to Section 8
. At least 30 days prior (other than in the case of Transfers
pursuant clauses (A)(i) or (ii) above, in which case as
promptly as practical following such Transfer) to the Transfer of
vested Units or vested Stock pursuant to this
Section 2(c) , the Transferee(s) will deliver a
written notice to the Company, which notice shall disclose in
reasonable detail the identity of such Transferee. Any
Transferee of Vested Class B Units or Stock pursuant to a
Transfer in accordance with the provisions of this
Section 2(c) is herein referred to as a “
Permitted Transferee .” Notwithstanding the
foregoing, (A) no party hereto shall avoid the provisions of
this Agreement or the LLC Agreement by (i) making one or more
Transfers to one or more Permitted Transferees and then disposing
of all or any portion of such party’s interest in any such
Permitted Transferee or (ii) Transferring the securities of
any entity holding (directly or indirectly) Units or Stock and
(B) if and to the extent that the Board determines in good
faith that the Transfer of Vested Class B Units or Stock to a
Permitted Transferee pursuant to this Section 2(c)
would have an adverse effect on the Company, including by
causing the Company to become subject to the reporting requirements
of the Exchange Act, the Board may delay, modify, or, if determined
by the Board to be necessary to avoid such adverse effect, prohibit
any such Transfer pursuant to this Section 2(c) .
Any Permitted Transferee shall be bound by, and subject to, the
terms of this Agreement to the same extent that Executive would be
bound by such terms if the Vested Class B Units or vested
Stock held by a Permitted Transferee were still held by
Executive.
(d)
Implementation
. The
Company or its Subsidiaries may apply an appropriate legend on any
shares of Stock, issue stop orders or take such actions as are
necessary or appropriate to implement the provisions of this
Section 2 .
(e)
Termination of
Restrictions . The restrictions set
forth in this Section 2 shall continue with respect to
each Class B Unit and share of Stock until a Liquidity Event
other than an IPO.
3.
Holdback
. In
connection with any Public Offering, each Executive shall enter
into any lockup, cutback, or other limitations or transfer
restrictions requested in good faith based upon the then prevailing
market precedent and public investor expectations by the
underwriters managing such Public Offering with respect to all of
the Class B Units granted to such Executive and any Stock
received in respect of such Class B Units.
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4.
Repurchase
Option. The vested Units held
by an Executive, will be subject to repurchase, in each case by the
holders of Class B Units who are then employed by the Company
or its Subsidiaries, the Company and its Subsidiaries, and the
Investor Members pursuant to the terms and conditions set forth in
this Section 4 (the “ Repurchase Option
”). In addition, the Repurchase Option and the
principles and procedures of this Section 4 shall also apply
with respect to the purchase of Class A Units underlying
Deferred Units that may later become subject to repurchase or cash
settlement by the Company or its subsidiaries pursuant to the terms
of the applicable purchase or grant agreement related to such
Deferred Units.
(a)
Repurchase
Priority . In the event of a
termination of an Executive’s employment with the Company or
its Subsidiaries for any reason, first the holders of Class B
Units who are designated by the Chief Executive Officer of the
Company (subject to the consent of the Board, or any
subcommittee thereof, which consent shall not be unreasonably
withheld, conditioned or delayed) (“ Designated
Managers ”), second the Company and its Subsidiaries, and
third the Investor Members shall have the right, but not the
obligation, to repurchase (as designated by the Chief Executive
Officer in the case of the Designated Managers and pro rata, in the
case of the Investor Members) all or any portion of the vested
Units or vested shares of Stock then held by such Executive or such
Executive’s Permitted Transferees.
(b)
Repurchase
Price . The price per vested
Unit or share of vested Stock to be paid pursuant to repurchases
under this Section 4 shall be as follows: (1) in
the case of the repurchase of a vested Class B Unit or Stock
received in respect of Class B Units, after a termination by
the Company for Cause, 90%, as applicable, of the Liquidation Value
of such vested Unit or the Fair Market Value of such vested Stock
as of the date of repurchase; and (2) in the case of a
termination of Executive’s employment for any other reason or
under any other circumstances in which a repurchase option exists,
the Liquidation Value of such vested Unit or Fair Market Value of
such vested Stock as of the date of repurchase. Any amounts
paid to repurchase a vested Unit or vested Stock under this
Section 4 shall be paid in cash.
(c)
Repurchase
Procedure .
(i)
As soon as
practicable, but in any event within 30 days, after the end of the
calendar quarter in which the Company has determined that there are
Units or shares of Stock subject to repurchase pursuant to this
Section 4 (the “ Available Equity ”)
the Company shall give written notice (the “ Available
Equity Notice ”) to each Designated Manager setting forth
the amount of Available Equity. The Designated Managers shall
be entitled to repurchase all or any portion of the Available
Equity by delivery of a written notice (the “ Designated
Managers Repurchase Notice ”) to the Executive and
Company within 120 days after (or, if later, within 60 days after
the end of the calendar quarter containing) the Executive’s
Separation Date (the “ Repurchase Notice Period
”). The Designated Managers Repurchase Notice shall set
forth the amount of Available Equity to be acquired and the time
and place for the closing of the transaction. A Designated
Manager may condition his or her election to purchase Available
Equity on the election of one or more of the other Designated
Managers to purchase Available Equity. If the
Designated
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Managers elect to
purchase an aggregate amount of Available Equity in excess of the
amount of Available Equity specified in the Available Equity
Notice, then the Available Equity shall be allocated among the
Designated Managers on a pro rata basis according to the amount of
Available Equity each Designated Manager elected to purchase in
their respective Designated Managers Repurchase Notice.
(ii)
If for any reason
the Designated Managers do not elect to purchase all of the
Available Equity, then the Company or any of its Subsidiaries shall
be entitled to repurchase all or any portion of the Available
Equity that was not purchased pursuant to
Section 4(c)(i) (the “ Remaining
Equity ”). As soon as practicable after the Company
has determined that the Designated Managers will not purchase all
of the Available Equity, but in any event within 150 days after the
beginning of the Repurchase Notice Period corresponding to such
Available Equity, or, if later, within 90 days after the end of the
calendar quarter containing the Executive’s Separation Date,
the Company or any of its Subsidiaries shall give written notice
(the “ Company Repurchase Notice ”) to the
Executive and each Designated Manager setting forth the amount of
Remaining Equity it intends to purchase. Notwithstanding
anything to the contrary in this Agreement, the Company or any of
its Subsidiaries may acquire such Remaining Equity with stock of
Windy Holdings with a Fair Market Value equal to the repurchase
price determined under Section 4(b) and then if
Windy Holdings immediately redeems such stock for cash.
(iii)
If for any reason
the Company and its Subsidiaries does not elect to purchase all of
the Remaining Equity, then the Investor Members shall be entitled
to repurchase all or any portion of the Remaining Equity that was
not repurchased by the Company and its Subsidiaries pursuant to
Section 4(c)(ii) above. As soon as
practicable after the Company has determined that it will not
purchase all of the Remaining Equity, but in any event within 180
days after the beginning of the Repurchase Notice Period
corresponding to such Remaining Equity, or, if later, within 120
days after the end of the calendar quarter containing the
Executive’s Separation Date, the Company shall provide an
Available Equity Notice to each Investor Member setting forth the
amount of Remaining Equity. The Investor Members may elect to
purchase all or any portion of the Remaining Equity by giving
written notice to the Company within 30 days after the Available
Equity Notice has been delivered to the Investor Members by the
Company. If the Investor Members elect to purchase an
aggregate amount of Remaining Equity in excess of the amount of
Remaining Equity specified in the Available Equity Notice, then the
Remaining Equity shall be allocated among the Investor Members on a
pro rata basis
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