Option Agreement - Blackbaud Inc. and Robert Sywolski
OPTION AGREEMENT
THIS OPTION AGREEMENT (this "Agreement"), made and entered into as of
this 8th day of March, 2000 by and between Blackbaud, Inc., a South Carolina
corporation (the "Company") and its successors from time to time and Robert
Sywolski (the "Participant").
WHEREAS, the Company has adopted the Blackbaud, Inc. 2000 Stock Option
Plan (the "Plan") to promote the interests of the Company and its shareholders
by providing key employees of the Company and its Affiliates (as defined in the
Plan) with an appropriate incentive to encourage them to continue in the employ
of the Company and its Affiliates and to improve the growth and profitability of
the Company;
WHEREAS, all capitalized terms used, but not separately defined, herein
have the meanings set forth in the Plan; and
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto hereby agree
as follows:
1. Grant of Options. Pursuant to, and subject to, the terms and
conditions set forth herein and in the Plan, the Company hereby grants to the
Participant Options with respect to 5,638,791 Shares, effective on the date
hereof (the "Grant Date").
2. Identification of Options. The options granted hereby
(hereafter, the "Options") are Incentive Stock Options to the extent permitted
by the Internal Revenue Code.
3. Term. The Options shall expire on the earlier of (i) the close
of business on the date they terminate pursuant to Section 7(a) and (ii) the
close of business on the tenth anniversary of the Grant Date.
4. Exercise Price. The exercise price per share of each Option is
$3.00. In addition to any means of payment specified in the Plan, payment of the
exercise price for any shares may be made (i) with a recourse promissory note to
the Company (the "Participant Note") in the form of Exhibit A annexed hereto; or
(ii) at a time when the Shares are listed on a national securities exchange or
on NASDAQ (including the Nasdaq Smallcap Market) by delivering a properly
executed exercise notice to the Company, together with a copy of irrevocable
instructions to a broker to deliver promptly to the Company the amount of
proceeds to pay the purchase price, and, if requested by the Company, the amount
of required minimum statutory and regulatory federal, state, local or foreign
withholding taxes.
5. Vesting and Certain Payments. (a) Subject to the acceleration
of any Options pursuant to the Plan, the Options shall vest as follows: (i) 25%
of the Options shall vest on the Grant Date (the "First Vesting Date") and (ii)
the remaining 75% of the Options shall vest in eight equal semi-annual
installments beginning on September 30, 2000, subject to the limitations set
forth in Section 7 below. Notwithstanding the foregoing sentence, upon the
consummation of the IPO, fifty (50%) percent of all outstanding and unvested
options granted to the Participant under the Plan shall become immediately
exercisable, provided, however, that upon the consummation of a Change in
Control, all outstanding and unvested options granted to the
<PAGE>
Participant under the Plan shall become immediately exercisable. As used in this
Agreement, (i) "IPO" shall mean a firmly underwritten public offering of the
Company's stock, of not less than $20,000,000 in gross proceeds, registered with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Securities Act") and shall not include any registration of shares
pursuant to a Company stock option or incentive plan; and (ii) "Change in
Control" shall mean the acquisition (including as a result of merger, but
excluding any acquisition or transfer by or to an Affiliate of any shareholder)
by any one or more persons or entities acting in concert of substantially all of
the assets of the Company or of beneficial ownership, either directly or
indirectly, of securities of the Company representing more than 50% of the
combined voting power of the then outstanding voting securities of the Company.
Notwithstanding the foregoing, any event or occurrence constituting the IPO or a
Change in Control under the Plan shall be deemed to constitute the IPO or a
Change in Control, as the case may be, hereunder.
(b) Two (2) days before the due date (including the due date of
any quarterly tax payment) of the tax payment owed by Participant with respect
to the exercise of all or any portion of the Options, the Company shall either
(i) wire to the account of the Participant, or (ii) deposit on such due date
into the Company's payroll account for the benefit of the Participant, a bonus
(the "Deemed Tax Rate Differential Payment") in an amount equal to the product
of (A) ten (10%) percent; and (B) the product of (1) the number of shares
subject to Options exercised; and (2) the sum of (x) the Fair Market Value (on
the date of exercise as determined under Section 7(e)) of a Share; minus (y) the
exercise price of a Share. The Company shall wire such amount to the account of
the Participant unless (i) the Company is required to withhold taxes relating to
the exercise of the Options or (ii) the Participant requests the Company to
withhold. If the Participant is not employed by the Company at the time of
exercise, the Company shall wire the Deemed Tax Rate Differential Payment to an
account as directed by the Participant, two (2) days before the due date of the
tax payment.
For example, the amount of a Deemed Tax Rate Differential
Payment would be calculated as follows using the stated assumptions:
1. Number of shares subject to Options exercised 5,600,000
2. Exercise Price per Share: $3.00
3. Fair Market Value of a Share at Time of Exercise: $10.00
Calculation:
(i) 10% x (ii) [5,600,000] x [$10.00 - $3.00]
= (i) 10% x (ii) [5,600,000 x $7.00]
= (i) 10% x (ii) $39,200,000
= $3,920,000
2
<PAGE>
Notwithstanding anything to the contrary contained herein, if
Participant exercises all or any portion of the Options prior to the effective
date of an IPO, the Company shall make the Deemed Tax Rate Differential Payment,
in the manner set forth above, within seven (7) days of the earlier of (i)
mutual agreement of the Participant and Company as to Fair Market Value, or (ii)
the completion of the valuation procedure set forth in Section 7(e).
The maximum number of Shares subject to the Deemed Tax Rate
Differential Payment is five million six hundred thirty eight thousand seven
hundred ninety one (5,638,791), subject to adjustment under the Plan.
6. Incorporation of Plan. Except as may be otherwise provided
herein, all terms and conditions of the Plan are incorporated herein and made
part hereof as if stated herein. If there is any conflict between the terms and
conditions of the Plan and this Agreement, the terms and conditions of this
Agreement shall govern. For avoidance of doubt (i) the Options may not be
cancelled under the provisions of the Plan contained in Section 9(c) of the Plan
and (ii) this Agreement will be construed as is customary for a bilateral
contract, such that in the event of a dispute the Committee will not be entitled
to construe this Agreement in its discretion as provided in Section 2(b)(vii) of
the Plan.
7. Termination of Employment/Service. In the event of termination
of the Participant's Employment/Service:
(a) The Participant may exercise the Options at any time
during the Continuation Period (as defined below), to the extent that they were
vested as of the date of such termination. To the extent not vested as of the
date of such termination, and to the extent not so exercised within the
Continuation Period, the Options shall terminate. The "Continuation Period"
means the period beginning on the date of such termination and ending at the
close of business on the tenth anniversary of the Grant Date. Notwithstanding
the foregoing, in the event the Participant's Employment/Service is terminated
by the Company for Cause, the Options not vested shall terminate immediately
upon such termination and shall not thereafter be exercisable.
(b) Prior to an IPO, the following shall apply to Shares
purchased through the exercise of the Options (whether exercised before or after
termination of Employment/Service):
(i) If the Participant's Employment/Service is
terminated by the Company without Cause, the Participant shall have the right to
sell the Shares to the Company (the "Share Put") for a per-share price equal to
the Fair Market Value of a Share as of the date the notice of exercise is given,
and the Company shall purchase the Shares at that price upon exercise of the
Share Put by the Participant; provided, that in such case, the Share Put may
only be exercised at any time during the period ending on the date that is one
year following such termination. Commencing upon the termination of the Share
Put right until the date of any IPO, subject to Section 7(e), the Company, and,
to the extent not exercised by the Company, Pobeda Partners, Ltd. or Affiliates
thereof, shall have the right (the "Share Call") to purchase some or all of the
Shares for a per-share price equal to the Fair Market Value of a Share as of the
date the notice of exercise is given, and Participant shall sell such Shares at
that price upon exercise of the Share Call by the Company and/or Pobeda
Partners, Ltd. or Affiliates thereof. If the terms of any indebtedness of the
Company to an unaffiliated third-party restrict the Company's ability to
3
<PAGE>
purchase the shares subject to such Share Put, to the extent of such
restrictions, the Company (but not Pobeda Partners, Ltd. or Affiliates thereof)
may elect to pay for such shares with a promissory note in the form of Exhibit B
annexed hereto (the "Company Note"), which shall bear interest at the prime rate
or base rate of interest most recently published or announced in the Wall Street
Journal, which shall be payable in equal monthly installments over a period not
to exceed five years.
(ii) If the Participant terminates his or her own
Employment/Service, the Company, and, to the extent not exercised by the
Company, Pobeda Partners, Ltd. or Affiliates thereof, shall have the right,
during the period ending upon the date of any IPO, to exercise the Share Call
for a per-share price equal to 100% of the Fair Market Value of a Share as of
the date the notice of exercise is given, and the Participant shall sell such
Shares for that price upon exercise of the Share Call.
(iii) If the Participant's Employment/Service is
terminated for Cause, the Company, and, to the extent not exercised by the
Company, Pobeda Partners, Ltd. or Affiliates thereof, shall have the right,
during the period ending upon the date of any IPO, to exercise the Share Call
for a per-share price equal to 70% of the Fair Market Value of a Share as of the
date of such termination, and the Participant shall sell such Shares for that
price upon exercise of the Share Call.
(iv) If the Participant's Employment/Service is
terminated because of the Participant's disability or death, the Participant or
the representative of the Participant or his estate, heirs or legatees, shall
have the right to exercise the Share Put for a per-share price equal to the Fair
Market Value of a Share as of the date of such notice of exercise, and the
Company shall purchase such Shares for that price upon exercise of the Share
Put; provided, that in such case, the Share Put may only be exercised at any
time during the period ending on the date that is one year following such
termination. Commencing upon the termination of the Share Put right described in
the previous sentence until the date of any IPO, the Company, and, to the extent
not exercised by the Company, Pobeda Partners, Ltd. or Affiliates thereof, shall
have the right to purchase some or all of the Shares for a per-share price equal
to the Fair Market Value of a Share as of the date the notice of exercise is
given, and the Participant (or the representative of the Participant or his or
her estate) shall sell such Shares at that price upon exercise of the Share Call
by the Company, Pobeda Partners, Ltd. or Affiliates thereof. If the terms of any
indebtedness of the Company to an unaffiliated third-party restrict the
Company's ability to purchase the shares subject to such Share Put, to the
extent of such restrictions, the Company (but not Pobeda Partners, Ltd. or
Affiliates thereof) may elect to pay for such shares with a promissory note in
the form of Exhibit B annexed hereto (the "Company Note"), which shall bear
interest at the prime rate or base rate of interest most recently published or
announced in the Wall Street Journal, which shall be payable in equal monthly
installments over five years provided, that the terms of any such promissory
note shall in all events be subject to the applicable limitations contained in
such lending arrangements (and the Company agrees to exercise all reasonable
efforts to have any limitations amended or waived to the extent necessary to
minimize the modifications due to the lending arrangement limitations.
(c) For purposes of Section 7, "Cause" shall be defined
as:
4
<PAGE>
(i) the Participant's conviction of any crime
(whether or not involving the Company) that constitutes a felony in the
jurisdiction involved (other than unintentional motor vehicle felonies and
excluding routine traffic citations);
(ii) any act of theft, fraud or embezzlement, or
any other willful misconduct or willful dishonest behavior by the Participant
which is materially detrimental to the business or operations of the Company;
(iii) the Participant's continuing willful failure
or refusal to perform his reasonably assigned duties (consistent with past
practice of the Company) under that certain Employment Agreement entered into
between the Participant and the Company (other than due to his incapacity due to
illness or injury), provided that such willful failure or refusal continues
uncorrected for a period of thirty (30) days after the Participant shall have
received written notice stating the nature of such failure or refusal; or
(iv) the Participant's violation of any of his
material obligations contained in that certain Employee Nondisclosure and
Developments Agreement entered into between the Participant and the Company.
For purposes of this Agreement, no act or omission by the Participant shall be
willful if reasonably believed by the Participant to be in or not contrary to,
the best interests of the Company.
(d) Notwithstanding anything to the contrary contained
herein, the Company shall have no obligation to purchase Shares, and all rights
of the Participant to cause the Company to purchase Shares pursuant to the terms
of this Agreement shall terminate, upon the date the Company files a
registration statement with the SEC in contemplation of an initial public
offering of its Common Stock; provided, however, that in the event the Company
notifies the Participant that such public offering has been abandoned or if the
effective date of the initial public offering otherwise does not occur within
nine (9) months after the date of such filing, the Company's obligation to
purchase, and the right of the Participant to cause the Company to purchase,
Shares pursuant to this Agreement shall again be in effect and the period of
time during which the Participant may exercise the Share Put shall be extended
by a number of days equal to the number of days from the date of the filing of
the registration statement to and including the date of the Company's notice or,
if the Company has not furnished such notice, by nine months. Upon the date the
Company files such a registration statement with the SEC, the obligation of the
Participant to sell Shares to the Company under this Agreement, and the
Company's right to cause the Participant to sell such Shares, shall terminate;
provided, that if the effective date of the initial public offering does not
occur within nine (9) months after the date of the filing of the registration
statement, the obligation of the Participant to sell, and the right of the
Company to cause the Participant to sell, Shares pursuant to this Agreement
shall again be in effect.
(e) Notwithstanding any contrary definition contained in
the Plan, for purposes of this Agreement, the term "Fair Market Value," of any
securities (including any Shares) as of any given date means (i) if such
securities are not then listed on any exchange or NASDAQ, the fair market value
of each such security as agreed upon by the Company and the
5
<PAGE>
Participant, or failing such agreement, as determined by a qualified,
independent investment banking firm, mutually selected by the Company and the
Participant (each party to bear one half of the fees, costs and expenses of such
investment banking firm) as of such date, and if the issuer of the securities is
not so listed, on the basis of such issuer's status as a privately held entity
and without reference to any discount for minority interest, control premium,
restrictions on transfer or disparate voting rights (if any), and (ii) if such
securities are so listed, the mean between the highest and lowest reported sales
prices on such date of such security on the New York Stock Exchange or, if not
listed on such exchange, on any other national securities exchange on which such
security is listed or, if not so listed on NASDAQ, on the last preceding date on
which there was a sale of such security on such exchange or on NASDAQ. The
parties shall use commercially reasonable efforts to complete the determination
of Fair Market Value within three (3) months of a notice regarding a Share Put
or Share Call or a notice from the Participant regarding his exercise of any
Options prior to an IPO.
(f) Notwithstanding anything to the contrary contained in
this Agreement, neither the Company, Pobeda Partners, Ltd. or Affiliates
thereof, nor the Participant may exercise the Share Put or Share Call with
respect to any Shares that do not qualify as mature shares. Mature shares shall
be defined for all purposes under this Agreement by reference to generally
accepted accounting principles at the time of such Share Put or Share Call. The
determination as to whether Shares qualify as mature shares shall be made at the
request of the Board of Directors of the Company by any Big 5 or other
nationally recognized accounting firm within fourteen (14) days of a written
notice by any party to this Agreement. The effective date of exercise of the
Share Put or Share Call and the determination of Fair Market Value shall relate
back to the date that a party gives such written notice hereunder of the Share
Put or Share Call, if and only if any Shares subject to such notice are
determined to be mature shares as of such date. Notwithstanding anything to the
contrary contained herein, if some, but not all of the Shares are mature shares,
then the Participant may, at his election, exercise the Share Put from time to
time until all of the Shares have been sold pursuant to the Share Put. The
Participant may withdraw any such notice if any Shares subject to such notice
are not mature shares; provided, however such notice must be received by the
Company within fourteen (14) days of the date of the notice from the Company
that any Shares are not mature shares.
8. Option Transfer Restrictions. No Option or right to exercise
any Option shall directly or indirectly be transferred other than to a
beneficiary pursuant to Section 8 of the Plan.
9. Tag-Along and Bring-Along Rights.
(a) Participant's Tag-along Rights. Except as provided in
Section 9(b), in the event of a proposed sale of Common Stock to any third party
by the shareholders of the Company (the "Shareholders") of more than fifty
percent (50%) of the issued and outstanding Shares of the Company at such time,
the Company shall, at least twenty (20) days prior to such sale, deliver to the
Participant written notice (the "Sale Notice") thereof describing the terms and
conditions of such sale (the "Sale Notice Transaction") and whether an IPO or
Change in Control is occurring prior to, simultaneously with or in connection
with any Sale Notice Transaction. Upon receipt of a Sale Notice, the
Participant, by giving written notice to Company not later than ten (10) days
following receipt of the Sale Notice, may participate in such sale on a pro rata
basis based on the ratio of the Participant's Shares to the total number of
outstanding Shares of the
6
<PAGE>
Company. Participant shall participate in such sale for a price per Share equal
to the purchase price per Share being paid for all Shares and on other terms and
conditions substantially similar to those being offered to other Shareholders in
the Sale Notice Transaction. In the event that the Participant does not accept
terms and conditions substantially similar to those of the transaction,
Participant shall not be entitled to participate in the Sale Notice Transaction.
The Participant's right to participate in the Sale Notice Transaction is
conditioned on consummation of such Sale Notice Transaction. If the IPO or a
Change in Control occurs prior to, simultaneously with or in connection with any
Sale Notice Transaction, then the Participant's Shares shall be deemed to
include any Shares issuable upon the exercise of Options that vest upon such IPO
or Change in Control, as the case may be, to the extent actually exercised. The
Company shall permit the Participant to exercise any such Options, effective
simultaneously with the consummation of the Sale Notice Transaction (or upon
such earlier date as such Options may otherwise be exercisable), provided,
however, that Participant must elect in writing to exercise any such Options
within ten (10) days of receipt by the Participant of the Sale Notice.
(b) The Company's Bring-Along Rights. If the Company
proposes to effect a Sale Event (as defined below), the Company may deliver a
notice (a "Sale Event Notice") to all of the shareholders of the Company
(including the Participant) stating that the Company proposes to effect such
transaction (the "Sale Event Notice Transaction") and, in the case of the
Participant's Sale Event Notice, whether an IPO or Change in Control is
occurring prior to, simultaneously with or in connection with any Sale Event
Notice Transaction, and specifying the name and address of the proposed parties
to such transaction and the consideration payable in connection therewith. Upon
receipt of a Sale Event Notice, Participant shall be obligated to transfer all
(but not less than all) Shares owned by him in the Sale Event for a price per
Share equal to the price per Share being paid for all Shares in the Sale Event
Notice Transaction and on other terms and conditions substantially similar to
those being offered to other Shareholders in the Sale Event Notice Transaction.
In addition to selling his or her Shares, the Participant shall take all other
necessary action to cause the Company to consummate the proposed Sale Event,
including, to the extent necessary, voting all his or her Shares in favor of
such transaction. For purposes of this Agreement, a "Sale Event" shall mean (i)
the sale to a third person or entity that is not an affiliate of the Company of
fifty percent (50%) or more of the issued and outstanding Common Stock of the
Company, (ii) a merger, share exchange or other business combination involving
the Company and such a third person or entity in which the Shareholders receive
consideration in respect of at least fifty (50%) of the outstanding capital
stock, or (iii) a leveraged recapitalization of the Company involving
significant distributions or redemptions in respect of the Common Stock. If the
IPO or a Change in Control occurs prior to, simultaneously with or in connection
with any Sale Event Notice Transaction, then the Shares owned by Participant
shall be deemed to include any Shares issuable upon the exercise of Options that
vest upon such IPO or Change in Control, as the case may be. The Company shall
afford the Participant the opportunity to exercise any such Options, effective
simultaneously with the consummation of the Sale Event Notice Transaction (or
upon such earlier date as such Options may otherwise be exercisable), provided,
however, that Participant must elect in writing to exercise any such Options
within ten (10) days of receipt by the Participant of the Sale Notice.
(c) Closing. The closing of any transaction pursuant to
this Section 9 shall be held at such time and place as the Company shall
reasonably specify. At such closing, the
7
<PAGE>
Participant shall deliver certificates representing the Shares to be sold, duly
endorsed for transfer and accompanied by all requisite stock transfer taxes, if
any, and the Shares to be transferred shall be free and clear of any liens,
claims or encumbrances (other than restrictions imposed by this Agreement) and
the Participant shall so represent and warrant. The Participant shall further
represent and warrant that it is the record and beneficial owner of such Shares
and make such additional representations and warranties and related indemnities
relating to its ownership of the Shares as shall be customary in transactions of
a similar nature.
(d) Inapplicable to Public Offering. Notwithstanding
anything herein to the contrary, the tag-along rights set forth in Section 9(a)
above and the bring-along rights set forth in Section 9(b) above shall not apply
to any sale of Shares pursuant to a registration statement filed with the SEC
under the Securities Act.
10. Rights of First Refusal on Certain Shareholder Transfers.
(a) Offering Notice. Subject to Section 10(g), if the
Participant desires to transfer all or any portion of his Shares to a third
party, the Participant shall give written notice thereof (the "Offering Notice")
to the Company. The Offering Notice shall be accompanied by a copy of the
relevant acquisition agreement and shall state (i) the number of Shares to be
transferred (the "Offered Shares"); (ii) the name and address of the prospective
person or entity (the "Prospective Purchaser") to whom the Participant desires
to transfer such Offered Shares; (iii) the price of the Offered Shares to be
paid by the Prospective Purchaser, which price must be payable in cash; (iv)
that the proposed purchase of the Offered Shares shall be consummated no later
than sixty (60) days after the expiration of the option referred to in
subsection (c) below; and (v) that the offer of the Prospective Purchaser has
been accepted by the Participant subject to the rights of the Company contained
in this Section 10.
(b) Certificate of Prospective Purchaser. The Offering
Notice shall be accompanied by a certificate of the Prospective Purchaser
stating that (i) its offer to purchase the Offered Shares is a bona fide offer
and that it shall close the purchase on the stated terms, and that it has been
approved by its board of directors (or the equivalent if the Prospective
Purchaser is not a corporation) (unless such Prospective Purchaser is a natural
person); (ii) the description of his or its offer contained in the Offering
Notice is complete and accurate; (iii) he or it is aware of the rights of the
Company, Pobeda Partners, Ltd. or Affiliates thereof, contained in this Section
10; (iv) prior to the purchase of any Offered Shares by the Prospective
Purchaser, he or it will execute an agreement reasonably acceptable to the
Company with terms substantially similar to those contained in Sections 9 and 10
of this Agreement with respect to restrictions on transfer, rights of first
refusal, and tag-along and bring-along rights (the "Restrictive Agreement") and
agree to be bound by the terms and conditions thereof to the same extent and in
the same manner as the Participant; (v) the Prospective Purchaser acknowledges
that the Share Put has been terminated, however, the Prospective Purchaser shall
acknowledge that the Share Call shall continue to apply to such Offered Shares,
and (vi) neither the Prospective Purchaser, nor any Affiliate of the Prospective
Purchaser, is engaged in a business that competes with the Company with respect
to the business of software development, marketing, sales and/or distribution
for non-profit organizations in the United States of America. In addition, the
certificate of the Prospective Purchaser shall be accompanied by evidence
reasonably satisfactory to the Company as to the Prospective Purchaser's
financial ability to consummate the proposed purchase.
8
<PAGE>
(c) Company Option to Purchase. For a period of fifteen
(15) business days after receipt of the Offering Notice and the certificate
referred to in Section 10(b) above, (the "Company Option Period"), the Company,
Pobeda Partners, Ltd. or Affiliates thereof, shall have the option to give
notice of its election to purchase all of the Offered Shares; provided, however,
that the Company, Pobeda Partners, Ltd. or Affiliates thereof, may elect to
purchase less than all of the Offered Shares if the Participant consents to the
purchase of less than all of its Offered Shares. The option granted to the
Company, Pobeda Partners, Ltd., or Affiliates thereof, to purchase the Offered
Shares hereunder shall be exercisable by delivering written notice to such
effect, prior to the expiration of the Company Option Period, to the
Participant. The purchase of Offered Shares hereunder by the Company, Pobeda
Partners, Ltd. or Affiliates thereof, shall be on terms no less favorable in the
aggregate than the terms contained in the Offering Notice on which the
Prospective Purchaser has agreed to purchase the Offered Shares. The failure of
the Company, Pobeda Partners, Ltd. or Affiliates thereof, to exercise its option
to purchase all or a portion of the Offered Shares under this Section 10(c)
within the Company Option Period shall be deemed to be a waiver of its right to
purchase the Offered Shares.
(d) Sale by Participant. Upon the expiration of the
Option Period or the earlier waiver by the Company, Pobeda Partners, Ltd. or
Affiliates thereof, of its rights under Section 10(c), the Participant may
transfer all, but not less than all, of the Offered Shares not purchased by the
Company, Pobeda Partners, Ltd. or Affiliates thereof, pursuant to this Section,
to the Prospective Purchaser in accordance with the terms (including the
purchase price and consideration) set forth in the Offering Notice; provided,
however, that as a condition to such sale, such Prospective Purchaser shall have
delivered to the Company a signed copy of the Restrictive Agreement. If such
sale is not consummated by the earlier of the date specified in the Offering
Notice or the date thirty (30) days after the expiration of the Company's Option
Period, the restrictions provided for herein shall again become effective.
(e) Closing. The closing of any purchase of the Offered
Shares by the Company, Pobeda Partners, Ltd. or Affiliates thereof, pursuant to
this Section shall be held at the principal office of the Company at 10:00 a.m.
local time no later than thirty (30) days after the date of expiration of the
Company's Option Period. At such closing, the Participant shall deliver (i)
certificates representing the Offered Shares, duly endorsed for transfer and
accompanied by all requisite stock transfer taxes, if any, and (ii) his or her
signed certification that the Offered Shares are transferred free and clear of
any liens, claims or encumbrances (other than restrictions imposed by this
Agreement), and that he or she is the record and beneficial owner of such
Offered Shares. The Company, Pobeda Partners, Ltd. or Affiliates thereof, shall
deliver at such closing, by certified or official bank check or by wire transfer
of immediately available funds, payment in full for such Offered Shares.
(f) Permitted Transfer. For purposes of this Agreement a
"Permitted Transfer" shall mean a transfer by the Participant of Shares (or
Options to the extent permitted under the Plan) to his or her spouse or lineal
descendants or to a trust established for the exclusive benefit of his spouse or
lineal descendants; provided, however, that any such transferee in a Permitted
Transfer must first execute a Restrictive Agreement. If the Participant desires
to transfer all or any portion of his Shares pursuant to this Section 10(f), he
shall give written notice to the Company of his intention to make such transfer
not less than five (5) days prior to
9
<PAGE>
effecting such transfer, which notice shall state the name and address of each
person or trust to which such transfer is proposed and the description and
amount of the Shares to be so transferred. The Company shall have the right to
review the applicable trust documents (and any amendments thereto) to confirm
that such trust is legally capable of complying with the terms of the
Restrictive Agreement and, to the extent not so capable, may, prior to the
proposed effective date of such transfer, require reasonable changes to such
documents to provide for compliance with the terms hereof as a condition to such
transfer.
(g) Inapplicability of Right. The right of first refusal
described in this Section 10 shall not apply to (i) any transfer by Participant
in connection with the exercise of tag-along or bring-along rights as described
in Section 9 above; (ii) any transfer of Shares to an underwriter pursuant to a
registration statement filed with the SEC under the Securities Act, (iii) any
transfer to a Permitted Transferee, or (iv) any transfer pursuant to Section 8.
11. Restrictions on Shares; Conditions to Exercise. As a condition
to exercise of the Options granted hereby, the Participant (i) will be required
to make customary and reasonable representations, warranties and agreements with
respect to the Shares obtained through such exercise consistent in all material
respects with the form of the representations, warranties and agreements set
forth in Exhibit C hereto; and (ii) understands and agrees that he will not
offer, resell, transfer or otherwise dispose of the Shares obtained through such
exercise other than pursuant to an available exemption from registration under
the Securities Act or pursuant to an effective registration statement, if any.
The Participant further understands and agrees that, except as provided in
Section 12 hereof, the Company is under no obligation to file any registration
statement with the SEC in order to permit transfers of the Shares.
12. Registration Rights.
The Company hereby grants to the Participant the registration rights
set forth in this Section 12, with respect to the Registrable Securities (as
defined below) owned by the Participant. The Company and the Participant agree
that the registration rights provided herein set forth the sole and entire
agreement, and supersede any prior agreement, between the Company and the
Participant with respect to registration rights for the Company's securities.
(a) Certain Definitions. As used in this Section 12:
(i) The terms "register," "registered" and
"registration" refer to a registration effected by filing with the SEC a
registration statement (the "Registration Statement") in compliance with the
Securities Act, and the declaration or ordering by the SEC of the effectiveness
of such Registration Statement.
(ii) The term "Registrable Securities" means (i)
Common Stock purchased pursuant to the exercise of the Option granted hereunder
and held by the Participant or any transferee pursuant to Section 12(f) below,
and (ii) any Common Stock issued as (or issuable upon the conversion or exercise
of any warrant, right or other security that is issued as) a dividend or other
distribution with respect to, or in exchange or in replacement of, such
Registrable Securities; provided, however, that Common Stock or other securities
shall cease to be treated as Registrable Securities if (a) a registration
statement covering such securities has
10
<PAGE>
been declared effective by the SEC and such security has been disposed of
pursuant to such effective registration statement, (b) such security is sold or
may be sold pursuant to Rule 144 under the Securities Act (or another exemption
from the registration requirements of the Securities Act) or (c) such security
ceases to be outstanding.
(iii) The term "Person" means an individual,
partnership, corporation, business trust, joint stock company, trust,
unincorporated association, joint venture, limited liability company or any
other entity of whatever nature, and shall include any successor (by merger or
otherwise) of such entity.
(iv) The term "Holder" (collectively, "Holders")
means any Person holding Registrable Securities, securities exercisable or
convertible into Registrable Securities or securities exercisable for securities
convertible into Registrable Securities.
(b) Piggyback Registration.
(i) Company Registration. If at any time or from
time to time the Company shall determine to register any of its securities,
either for its own account or for the account of security holders, and such
registration involves a manner of registration other than (v) the IPO; (w) a
registration relating solely to employee benefit plans; (x) a registration on
Form S-4 or S-8 (or such other similar successor forms then in effect under the
Securities Act); (y) a registration pursuant to which the Company is offering to
exchange its own securities; or (z) a registration statement relating solely to
dividend reinvestment or similar plans, the Company will:
(A) promptly (but in no event less than
15 days before the anticipated filing date of the registration statement
offering such registration) give to the Participant written notice thereof; and
(B) include in such registration (and
any related qualification under state securities laws or other compliance), and
in any underwriting involved therein, all the Registrable Securities specified
in a written request, made within 15 days after receipt of such written notice
from the Company, by the Participant, except as set forth in Section 12(b)(ii)
below.
(ii) Underwriting. If the registration of which
the Company gives notice is for a registered public offering involving an
underwriting, the Company shall so advise the Participant as a part of the
written notice given pursuant to Section 12(b)(i)(A). In such event the right of
the Participant to registration pursuant to this Section 12(b) shall be
conditioned upon the Participant's participation in such underwriting and the
inclusion of the Participant's Registrable Securities in the underwriting to the
extent provided herein.
If the Participant desires to distribute his Registrable Securities
through such underwriting, he shall, together with the Company and the other
parties distributing their securities through such underwriting, enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by the Company. Notwithstanding any other
provision of this Section 12(b), if the underwriter determines that marketing
factors require a limitation of the number of shares to be underwritten, the
underwriter
11
<PAGE>
may limit the number of Registrable Securities to be included in the
registration and underwriting, subject to the terms of this Section 12(b). The
Company shall so advise the Participant, and the number of shares of such
securities, including Registrable Securities, that may be included in the
registration and underwriting shall be allocated in the following manner:
shares, other than Registrable Securities and other securities that are entitled
to contractual rights with respect to registration similar to those provided for
in this Section 12(b), requested to be included in such registration by
shareholders shall be excluded, and if a limitation on the number of shares is
still required, subject to the last sentence of this paragraph, the number of
Registrable Securities and other securities that are entitled to contractual
rights with respect to registration that may be included shall be allocated
among the Holders thereof in proportion, as nearly as practicable, to the
amounts of Registrable Securities and such other securities (including, without
limitation, Options) held by each such Holder at the time of filing the
Registration Statement. For purposes of any such underwriter cutback, all
Registrable Securities and other securities held by any Holder that is a
partnership or corporation, shall also include any Registrable Securities held
by the partners, retired partners, shareholders or affiliated entities of such
Holder, or the estates and family members of any such partners and retired
partners and any trusts for the benefit of any of the foregoing Persons, and
such Holder and other Persons shall be deemed to be a single "Selling Holder,"
and any pro rata reduction with respect to such "Selling Holder" shall be based
upon the aggregate amount of shares carrying registration rights owned by all
entities and individuals included in such "Selling Holder," as defined in this
sentence. No securities excluded from the underwriting by reason of the
underwriter's marketing limitation shall be included in such registration.
If the Participant disapproves of the terms of the underwriting, he may
elect to withdraw therefrom by written notice to the Company and the
underwriter. The Registrable Securities so withdrawn shall also be withdrawn
from registration.
(iii) Right to Terminate Registration. The Company
shall have the right to terminate or withdraw any registration initiated by it
under this Section 12(b) prior to the effectiveness of such registration whether
or not the Participant has elected to include securities in such registration.
(c) Expenses of Registration. All expenses incurred in
connection with all registrations effected pursuant to Section 12(b), including
without limitation all registration, filing and qualification fees (including
state securities law fees and expenses), printing expenses, escrow fees, fees
and disbursements of counsel for the Company (and the reasonable fees and
disbursements of one separate counsel for all of the Company's shareholders
participating in the registration) and expenses of any special audits incidental
to or required by such registration shall be borne by the Company; provided,
however, that the Company shall not be required to pay stock transfer taxes or
underwriters' discounts or selling commissions relating to Registrable
Securities.
(d) Obligations of the Company. Whenever required under
this Section 12 to effect the registration of any Registrable Securities, the
Company shall, as expeditiously as reasonably possible:
12
<PAGE>
(i) prepare and file with the SEC a Registration
Statement with respect to such Registrable Securities and use its diligent
efforts to cause such Registration Statement to become effective, and keep such
Registration Statement effective for the lesser of 120 days or until the
Participant has completed the distribution relating thereto.
(ii) prepare and file with the SEC such
amendments and supplements to such Registration Statement and the prospectus
used in connection with such Registration Statement as may be necessary to keep
such Registration Statement effective and to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement in accordance with the intended methods of disposition by
sellers thereof set forth in such registration statement.
(iii) furnish to the Participant such numbers of
copies of a prospectus, including all exhibits thereto and documents
incorporated by reference therein and a preliminary prospectus, in conformity
with the requirements of the Securities Act, and such other documents as he may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by him.
(iv) use its diligent efforts to register or
otherwise qualify the securities covered by such Registration Statement under
such other securities laws of such states and other jurisdictions as shall be
reasonably requested by the Participant or the managing underwriter, provided
that the Company shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to service of
process in any such states or jurisdictions.
(v) in the event of any underwritten public
offering, enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing underwriter of such
offering. The Participant shall also enter into and perform his obligations
under such an agreement.
(vi) notify the Participant at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus included
in such Registration Statement, as then in effect, includes an untrue statement
of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances then existing.
(vii) use its diligent efforts to list the
Registrable Securities that are shares of Common Stock covered by such
Registration Statement with any securities exchange on which the Common Stock is
then listed.
(viii) make available for inspection by the
Participant, any underwriter participating in any distribution pursuant to such
registration, and any attorney, accountant or other agent retained by the
Participant or underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, as such parties may reasonably request,
and cause the Company's officers, directors and employees to supply all
information reasonably
13
<PAGE>
requested by the Participant, underwriter, attorney, accountant or agent in
connection with such Registration Statement.
(ix) cooperate with the Participant and the
managing underwriters, if any, to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be sold, such
certificates to be in such denominations and registered in such names as the
Participant or the managing underwriters may request at least two business days
prior to any sale of Registrable Securities.
(x) permit the Participant, if the Participant,
in the reasonable judgment, exercised in good faith, of the Participant, might
be deemed to be a controlling person of the Company, to participate in good
faith in the preparation of such Registration Statement and to cooperate in good
faith to include therein material, furnished to the Company in writing, that in
the reasonable judgment of the Participant and his counsel should be included.
(e) Information by the Participant. The Participant, if
he holds Registrable Securities to be included in any registration, shall
furnish to the Company such information regarding the Participant and the
distribution proposed by the Participant as the Company may reasonably request
in writing and as shall be required in connection with any registration,
qualification or compliance referred to in this Section 12.
(f) Transfer of Registration Rights. The rights,
contained in Section 12(b) hereof, to cause the Company to register the
Registrable Securities, may be assigned or otherwise conveyed (i) by the
Participant pursuant to a permitted transfer pursuant to this Agreement, and
(ii) by the Participant in a transaction not involving a change in beneficial
ownership or which involves a transfer of a significant portion of the
Participant's Registrable Securities
(g) Delay of Registration. The Participant shall not have
any right to obtain or seek an injunction restraining or otherwise delaying any
such registration as the result of any controversy that might arise with respect
to the interpretation or implementation of this Section 12.
(h) "Market Stand Off" Agreement. The Participant hereby
agrees that during the 180 day period (or such lesser period as is applicable to
any holder of five percent (5%) of the outstanding Common Stock) following the
effective date of a registration statement of the Company filed under the
Securities Act, he shall not, to the extent requested by the Company and any
underwriter, sell, pledge, hypothecate, transfer, make any short sale of, loan,
grant any option or right to purchase of, or otherwise transfer or dispose of
(other than to donees who agree to be similarly bound) any Common Stock held by
it at any time during such period except Common Stock included in such
registration.
(i) Termination of Registration Rights. The rights of the
Participant to cause the Company to register securities under Section 12(b)
hereof shall terminate as to the Participant on the later of (i) five (5) years
following the consummation of the IPO, or (ii) the date the Participant is able
to dispose of all of his Registrable Securities in any 90 day period pursuant to
SEC Rule 144 (or any similar or analogous rule promulgated under the Securities
Act).
14
<PAGE>
(j) Registration of Shares Underlying the Plan. The
Company intends to register Shares underlying the Plan following an IPO on Form
S-8, subject to customary lock-up restrictions imposed on the Company by its
underwriters.
(k) Indemnification.
(i) The Company will, and does hereby undertake to,
indemnify and hold harmless Participant with respect to
any registration, qualification or compliance effected pursuant to this Section
12, of the Registrable Securities held by or issuable to Participant, against
all claims, losses, damages and liabilities (or actions in respect thereto) to
which Participant may become subject under the 1933 Act, the Securities Exchange
Act of 1934, as amended (the "1934 Act"), or other federal or state law arising
out of or based on (A) any untrue statement (or alleged untrue statement) of a
material fact contained in any prospectus, offering circular or other similar
document (including any related Registration Statement, notification, or the
like) incident to any such registration, qualification or compliance, or based
on any omission (or alleged omission) to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances in which they were made, (B) any violation or
alleged violation by the Company of any federal, state or common law rule or
regulation applicable to the Company in connection with any such registration,
qualification or compliance, or (C) any failure to register or qualify
Registrable Securities in any state where the Company or its agents have
affirmatively undertaken or agreed in writing that the Company (the undertaking
of any underwriter chosen by the Company being attributed to the Company) will
undertake such registration or qualification on behalf of the Participant
(provided that in such instance the Company shall not be so liable if it has
undertaken its best efforts to so register or qualify such Registrable
Securities) and will reimburse, as incurred, the Participant for any legal and
any other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action; provided that the
Company will not be liable in any such case to the extent that any such claim,
loss, damage, liability or expense arises out of or is based on any untrue
statement or omission made in reliance and in conformity with written
information furnished to the Company by Participant.
(ii) Participant will, and if Registrable Securities
held by or issuable to Participant are included in
such registration, qualification or compliance pursuant to this Section 12, does
hereby undertake to indemnify and hold harmless the Company, each of its
directors, employees, agents and officers, and each Person controlling the
Company, each underwriter, if any, and each Person who controls any underwriter,
of the Company's securities covered by such a Registration Statement, and each
other Holder, each of such other Holder's officers, partners, directors and
agents and each Person controlling such other Holder, against all claims,
losses, damages and liabilities (or actions in respect thereof) arising out of
or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any such Registration Statement, prospectus, offering circular
or other document, or any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances in which they were made,
and will reimburse, as incurred, the Company, each such underwriter, each such
other Holder, and each such director, officer, employee, agent, partner and
controlling Person of the foregoing, for any legal or any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability or action, in each case to the extent, but only
to
15
<PAGE>
the extent, that such untrue statement (or alleged untrue statement) or omission
(or alleged omission) was made in such Registration Statement, prospectus,
offering circular or other document, in reliance upon and in conformity with
written information furnished to the Company by Participant; provided, however,
that the liability of Participant hereunder shall be limited to the net proceeds
received by such Holder from the sale of securities under such Registration
Statement. It is understood and agreed that the indemnification obligations of
each Holder pursuant to any underwriting agreement entered into in connection
with any Registration Statement shall be limited to the obligations contained in
this subsection 12(k)(ii).
(iii) Each party entitled to indemnification under
this Section 12(k) (the "Indemnified Party") shall give notice to the party
required to provide such indemnification (the "Indemnifying Party") of any claim
as to which indemnification may be sought promptly after such Indemnified Party
has actual knowledge thereof, and shall permit the Indemnifying Party to assume
the defense of any such claim or any litigation resulting therefrom; provided
that counsel for the Indemnifying Party, who shall conduct the defense of such
claim or litigation, shall be subject to approval by the Indemnified Party
(whose approval shall not be unreasonably withheld) and the Indemnified Party
may participate in such defense at the Indemnifying Party's expense if
representation of such Indemnified Party would be inappropriate due to actual or
potential differing interests between such indemnified party and any other party
represented by such counsel in such proceeding; and provided further that the
failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this Section 12, except
to the extent that such failure to give notice shall materially adversely affect
the Indemnifying Party in the defense of any such claim or any such litigation.
An Indemnifying Party, in the defense of any such claim or litigation, may,
without the consent of each Indemnified Party, consent to entry of any judgment
or enter into any settlement that includes as an unconditional term thereof the
giving by the claimant or plaintiff therein, to such Indemnified Party, of a
release from all liability with respect to such claim or litigation.
(iv) In order to provide for just and equitable
contribution in case indemnification is prohibited or
limited by law, the Indemnifying Party, in lieu of indemnifying such Indemnified
Party, shall contribute to the amount paid or payable by such Indemnified Party
as a result of such losses, claims, damages or liabilities in such proportion as
is appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of such Indemnifying Party and Indemnified
Party shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of material
fact or omission or alleged omission to state a material fact, has been made by,
or relates to information supplied by, such Indemnifying Party or Indemnified
Party, and such Party's relative intent, knowledge, access to information and
opportunity to correct or prevent such actions; provided, however, that, in any
case, (I) no Holder will be required to contribute any amount in excess of the
public offering price of all securities offered by it pursuant to such
Registration Statement less all underwriting fees and discounts and (II) no
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) will be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
16
<PAGE>
(v) The indemnities provided in this Section 18(k)
shall survive the transfer of any Registrable Securities by such Holder.
13. Legend. The Participant agrees that a legend in substantially
the following form shall be placed on the certificates representing any Shares
owned by it:
THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO THE TERMS OF AN OPTION AGREEMENT DATED AS OF MARCH 8, 2000,
A COPY OF WHICH IS ON FILE IN THE COMPANY'S OFFICES. THE OPTION
AGREEMENT, AMONG OTHER THINGS, CONTAINS RESTRICTIONS ON THE
TRANSFERABILITY OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE AND
PUT AND CALL OPTIONS WITH RESPECT TO CERTAIN SECURITIES. THE COMPANY
WILL NOT REGISTER THE TRANSFER OF SUCH SECURITIES ON THE BOOKS OF THE
COMPANY UNLESS AND UNTIL THE TRANSFER HAS BEEN MADE IN COMPLIANCE WITH
THE TERMS OF THE OPTION AGREEMENT.
14. Specific Performance and Injunctive Relief; Arbitration. Each
party acknowledges and agrees that in the event of any breach of this Agreement,
the other party would be irreparably harmed and could not be made whole by
monetary damages, and therefore hereby waives the defense in any action for
specific performance or injunctive relief that a remedy at law would be
adequate. Each party further agrees that the other party, in addition to any
other remedy to which it may be entitled at law or in equity, shall be entitled
to compel specific performance of this Agreement and to obtain injunctive relief
in any action instituted in a court of proper jurisdiction. Subject to the
foregoing, in the event of any dispute or claim arising out of or in connection
with this Agreement or the enforcement of rights hereunder, such dispute or
claim shall be submitted to binding arbitration in accordance with S.C. Code
Ann. Section 15-48-10 et seq., as amended, and the then current rules and
procedures of the American Arbitration Association ("AAA"). The arbitrator shall
be selected by an agreement of the parties to the dispute or claim from the
panel of arbitrators selected by the AAA, or, if the parties cannot agree on an
arbitrator within thirty (30) days after the notice of a party's desire to have
a dispute settled by arbitration, then the arbitrator shall be selected by the
AAA in Charleston, South Carolina. The arbitrator shall apply the laws of the
State of South Carolina, without reference to rules of conflict of law or
statutory rules or arbitration, to the merits of any dispute or claim. The
determination reached in such arbitration shall be final and binding on all
parties hereto without any right of appeal or further dispute. Execution of the
determination by such arbitration may be sought in any court of competent
jurisdiction.
In the event of any arbitration as provided under this Agreement, or
the enforcement of rights hereunder, the arbitrator shall have the authority to,
but shall not be required to, award the prevailing party its costs and
reasonable attorneys' fees.
15. Representations and Warranties. (a) As a condition to the
grant of the Options hereby, the Participant hereby confirms that the
representations and warranties set forth in Exhibit C are true on the date
hereof.
17
<PAGE>
(b) The Company represents and warrants to the
Participant that (i) the Company is a corporation duly organized and validly
existing under the laws of the State of South Carolina, with full corporate
power and authority to execute, deliver and perform this Agreement; (ii) this
Agreement and the Plan have been duly authorized by all necessary action on the
part of the Company and (iii) that the offer and sale of the Options and the
underlying Shares pursuant to this Agreement have each been made pursuant to a
valid exemption from registration under the Act, pursuant to Rule 701
promulgated under the Act, and the Company covenants that the offer and sale of
the Shares, at all times from and after the date of this Agreement, will be made
pursuant to a valid exemption from registration pursuant to Rule 701 (or any
successor provision), such that the Participant may resell all of the Shares
pursuant to Rule 701(g) (or any successor provision) at all times permitted
under Rule 701(g)(3) (or any successor provision), subject to the provisions of
such rule (or successor provision), the provisions of Rule 144 and the market
stand-off provisions of Section 12(h) of this Agreement.
(c) Each of the parties represents and warrants to the
other as follows: (i) this Agreement constitutes the legal, valid and binding
agreement of such party, enforceable against such party in accordance with its
terms; (ii) neither the execution and delivery by such party of this Agreement,
nor the consummation of the transactions contemplated hereby or pursuant to the
Plan, nor the compliance by such party with the provisions hereof or thereof
will conflict with or result in the breach of any agreement or instrument by
which such party is bound or constitute a violation of any law, rule, regulation
or decree or any other requirement of any court or governmental or
administrative body or agency applicable to such party; (iii) no consent or
approval of, notice to, action by or filing with any person, entity or
governmental authority is required in connection with the execution, delivery
and performance of this Agreement by such party, except for any of the foregoing
which has been obtained or made; and (iv) there are no suits or actions, or
administrative, arbitration or other proceedings or governmental investigations,
pending or, to the best knowledge of such party, threatened against or relating
to such party, which, if determined in a manner adverse to such party, would
adversely affect such party's ability to perform this Agreement.
16. Amendment and Waiver. Notwithstanding anything to the contrary
contained in the Plan, the Committee may not revise or amend this Agreement, and
no revision or amendment to the Plans shall be applicable to the terms and
conditions of the Options granted hereby in accordance with the terms of the
Plan, unless such revision or modification does not impair the rights or
increase the obligations of Participant hereunder or under the Plan. The waiver
of or failure to enforce or delay in enforcing any breach of or default under
this Agreement shall not be deemed to be a waiver or acquiescence in any other
breach thereof and shall not impair any right, power or remedy under the
Agreement. Any amendment or modification to this Agreement shall be made in a
writing executed by the parties thereto. Any waiver, permit, consent or approval
of any kind or character on the part of any party of any breach or default under
this Agreement, or any waiver on the part of any party of any provisions or
conditions of this Agreement, shall be in writing and shall be effective only to
the extent specifically set forth in such writing.
17. Integration. This Agreement and the other documents, including
without limitation the Plan, referred to herein or delivered pursuant hereto
which form a part hereof, contain the entire understanding of the parties with
respect to its subject matter. There are no
18
<PAGE>
restrictions, agreements, promises, representations, warranties, covenants or
undertakings with respect to the subject matter hereof other than those
expressly set forth herein.
18. Successors, Assigns and Transferees. (a) This Agreement shall
be binding upon and shall inure to the benefit of the parties hereto and each of
their respective successors, assigns and permitted transferees, including,
without limitation, the personal representatives, estate, heirs and legatees of
the Participant and the term "Participant" shall be deemed to include any such
person or entity, whether or not any such person or entity is specifically
referred to herein, provided that the Participant may not assign to any person
any of his rights hereunder other than in connection with a transfer to such
person of the Options or Shares granted hereby in accordance with the provisions
hereof and of the Plan. Notwithstanding the foregoing, the Company shall have
the right to assign or transfer this Agreement only to a successor of all or
substantially all of its business or assets; provided, however, that the Company
shall require any such successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company to assume expressly and agree to perform it as if
no such succession had taken place. As used in this Agreement, the "Company"
shall mean the Company as hereinbefore defined and any successor to its business
and/or assets as aforesaid which assumes and agrees to perform this Agreement by
operation of law or otherwise.
(b) Upon the consent of Pobeda Partners, Ltd. or
Affiliates thereof, the Company shall have the right, but not the obligation, to
assign, delegate or otherwise transfer all or any of its rights or obligations,
relating to the purchase of Shares pursuant to this Agreement, to Pobeda
Partners, Ltd. or Affiliates thereof, and Pobeda Partners, Ltd. or Affiliates
thereof shall have the right, but not the obligation, to accept the transfer of
any such rights or obligations of the Company and, if such transfer is accepted,
shall thereafter exercise the rights or obligations (as the case may be) of the
Company under this Agreement to the extent so transferred; provided that,
notwithstanding any such assignment, delegation or other transfer the Company
shall remain fully liable to perform all of its obligations under this
Agreement. In addition, to the extent that the Company makes any such
assignment, delegation or transfer hereunder, the Company shall designate one
person or entity as a representative to accept notices on behalf of the Company,
Pobeda and all such Affiliates.
Any action taken under any section of this Agreement by Pobeda Partners
or Affiliates thereof shall be a transfer of a right or obligation from the
Company, whether or not specifically stated as such under this Agreement.
19. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but which together
constitute one and the same instrument. Notwithstanding the foregoing, any duly
authorized officer of the Company may execute this Agreement by providing an
appropriate facsimile signature, and any counterpart or amendment hereto
containing such facsimile signature shall for all purposes be deemed an original
instrument duly executed by the Company. In the event that such a facsimile
signature is used, such duly authorized officer shall execute, in original, a
certificate attesting to the entry into this Agreement or all similar Agreements
or any amendment hereto or thereto, which
19
<PAGE>
certificate shall list the names of all of the parties to such Agreements or
amendments and shall be filed with the permanent records of the Company.
20. Governing Law. Except to the extent that provisions of the
Plan are governed by applicable provisions of the Code or other substantive
provisions of Federal law, this Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of South Carolina without
regard to the principles of conflicts of law thereof.
21. Participant Acknowledgment. The Participant hereby
acknowledges receipt of a copy of the Plan. The Participant hereby acknowledges
that, subject to this Agreement, all decisions, determinations and
interpretations of the Committee in respect of the Plan shall be final and
conclusive.
22. Termination. The provisions of Sections 8, 9, and 10 shall
terminate upon the earliest of: (i) the consummation of the IPO; (ii)
immediately following the consummation of a Change in Control and (iii) the
dissolution or liquidation of the Company.
23. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed given upon delivery, if
delivered personally, mailed by registered or certified mail, return receipt
requested, sent by nationally-recognized overnight delivery service or express
mail, or upon receipt, if receipt is confirmed, sent by telecopy, telefax, or
other electronic transmission service to the parties at the following addresses
(or to such other address as a party may have specified by notice given to the
other party pursuant to this provision):
If to the Participant, to
Robert Sywolski
8 Tradd Street
Charleston, SC 29401
with a copy to:
Squadron, Ellenoff, Plesent & Sheinfeld, LLP
551 Fifth Avenue
New York, NY 10176
Attention: James H. Stevralia
Telecopy: (212) 697-6686
Confirmation: (212) 476-8248
20
<PAGE>
If to the Company, to
Blackbaud, Inc.
4401 Belle Oaks Drive
Charleston, SC 29405-8530
with a copy to:
Richard Levine, Esq.
Hellman & Friedman, LLC
One Maritime Place, 12th Floor
San Francisco, CA 94111
with a copy to:
Larry E. Robbins, Esq.
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300
Raleigh, NC 27607
21
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by its duly authorized officer and said Participant has hereunto signed
this Agreement on his or her own behalf, thereby representing that he or she has
carefully read and understands this Agreement and the Plan as of the day and
year first written above.
BLACKBAUD, INC.
By: /s/ Marco W. Hellman
---------------------------------
Name: Marco W. Hellman
---------------------------
Title: Chairman
--------------------------
/s/ Robert Sywolski
------------------------------------
Robert Sywolski
22
<PAGE>
EXHIBIT C
1. Pursuant to this Agreement, the undersigned Participant will
hold Options (such Options, together with the Shares issuable upon exercise of
the Options, the "Securities"). The Participant understands and acknowledges
that such Securities have not been registered under the Securities Act of 1933,
as amended (the "Securities Act") or the securities laws of any state or foreign
jurisdiction. Accordingly, the undersigned Participant understands and agrees
that:
if at any time he or she wishes to offer, resell, transfer, or
otherwise dispose of his or her Securities, the Participant
will do so only (i) to an "accredited investor," as such term
is defined in Rule 501(a) of the Securities Act, that is
acquiring the Securities for its own account, or for the
account of such an accredited investor, for investment
purposes and not with a view to, or for offer or sale for the
Company in connection with, the distribution or resale
thereof; (ii) in an offshore transaction in accordance with
the provisions of Rule 904 under the Securities Act; (iii)
pursuant to another available exemption from registration
under the Securities Act; or (iv) pursuant to an effective
registration statement; and the Company and others will rely
upon the truth and accuracy of the foregoing acknowledgments,
representations and warranties deemed to have been made by the
Participant upon his or her acquisition of Securities are no
longer accurate at any time, the Participant shall promptly
notify the Company.
2. The undersigned Participant is aware that certificates
representing the Securities will bear endorsements reading substantially as
follows:
The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and
may not be transferred, sold or otherwise disposed of except
while such a registration is in effect or pursuant to an
exemption from registration under said Act.
3. The undersigned Participant hereby acknowledges that:
(i) the Company has made available to him or her, at
a reasonable time prior to the Grant Date, information
concerning the transactions contemplated in the Option
Agreement; (ii) the Company has given him or her, at a
reasonable time prior to the Grant Date, an opportunity to ask
questions and receive answers concerning the terms and
conditions of the Securities and (iii) the Company has given
him or her, at a reasonable time prior to the Grant Date, an
opportunity to obtain any additional information that the
Company possesses or can acquire without unreasonable effort
or expense deemed necessary by him or her to verify the
accuracy of the information provided, and he or she has
received all such additional information requested;
the Participant is acquiring the Securities for his or her own
account for investment purposes and not with a view to, or for
offer or sale on behalf of himself or herself or for the
Company in connection with, the distribution or resale
thereof;
15
<PAGE>
the Participant (i) has such knowledge and experience in
financial and business matters that he or she is capable of
evaluating the merits and risks of an investment in the
Securities; (ii) the Participant is able to bear the economic
risk of an investment in the Securities for an indefinite
period of time, including the risk of a complete loss of his
or her investment and (iii) either (A) the relationship with
the Company or the shareholders, officers, directors or
controlling persons of the Company or (B) by reason of such
Participant's business or financial experience or the business
or financial experience of such Participant's professional
advisors (who are unaffiliated with and who are not
compensated by the Company or any affiliate or selling agent
of the Company), such Participant has the capacity to protect
his or her own interests in connection with the grant of the
option contemplated by the Option Agreement;
the Participant did not look to, or rely in any manner upon,
any of the Company or any of its affiliates, officers,
employees or representatives, for advice about tax, financial
or legal consequences of the stock option grant, and none of
the Company or any of its affiliates, officers, employees or
representatives has made or is making any representations to
the Participant about, or guarantees of, tax, financial,
operational or legal outcomes of the stock option grant. The
Participant acknowledges that no person has been authorized to
give any information or to make any representation concerning
the Securities, written or oral, that does not conform to the
Stock Plan and Option Agreement that the Company provided to
such Participant and, if given or made, such other information
or representation should not be relied upon as having been
authorized by any of the Company or any of its respective
affiliates, officers, employees or representatives.
16