This excerpt taken from the NDAQ 8-K filed Apr 28, 2005.
Additional Rights of VCOC Investors
Section 4.01. Observer Rights.
Subject to the execution of customary confidentiality arrangements, (i) for so long as SLP-1 is entitled to nominate a SLP Board Designee, SLP-3 shall have the right to designate a person reasonably acceptable to the Company, (ii) in the event H&F-1 is not represented on the Board of Directors by an H&F Board Designee and is entitled to such representation pursuant to Section 3.01, H&F-1 shall have the right to designate a person reasonably acceptable to the Company and (iii) in the event SLP-1 is not represented on the Board of Directors by an SLP Board Designee and is entitled to such representation pursuant to Section 3.01, SLP-1 shall have the right to designate a person reasonably acceptable to the Company who shall (i) receive notices of all meetings of the Board of Directors; (ii) be entitled to be present at all meetings of the Board of Directors in a nonvoting observer capacity (provided that, if the Company determines in good faith that such board observers presence at any meeting or any portion of any meeting (A) violates or is substantially likely to violate applicable law or regulation or applicable regulatory policy or (B) would be reasonably likely to impair the Companys attorney-client privilege in connection with any pending or threatened legal proceedings, such board observer may be excluded from such meeting or such portion of such meeting) and (iii)
receive copies of all written materials and other information, including, without limitation, all minutes and consents, as provided by the Company to the members of the Board of Directors in their capacity as directors at the same time and in the same manner as provided to such directors.
Section 4.02. Information Rights.
Subject to appropriate confidentiality arrangements, to the extent not otherwise filed with the Commission, the Company will provide each of the Holders:
(a) as soon as available and in any event within 90 days after the end of each fiscal year of the Company, a balance sheet of the Company as of the end of such fiscal year and the related statements of profit and loss and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, and accompanied by a report thereon of Ernst & Young LLP or other independent registered public accounting firm; and
(b) as soon as available and in any event within 45 days after the end of each of the first three quarters of each fiscal year of the Company, a balance sheet of the Company as of the end of such quarter and the related statements of profit and loss and cash flows for such quarter and for the portion of the Companys fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding quarter and the corresponding portion of the Companys previous fiscal year, all certified (subject to normal year-end adjustments) as to fairness of presentation, consistency and, except for the absence of footnotes, generally accepted accounting principles by the chief financial officer or the chief accounting officer of the Company.
Section 4.03. Additional Rights of VCOC Investors.
(a) (x) For so long as (i) the H&F Entities, directly or through one or more Affiliates, continue to beneficially own Securities representing at least 1,650,000 shares of Common Stock (on an as-converted basis, as adjusted for any stock dividend, stock split, recapitalization or similar event in respect of such shares) or (ii) H&F-1 determines in good faith that the possession of the following rights is necessary to facilitate its qualifying as a venture capital operating company, H&F-1 or (y) for so long as (i) the SLP Entities, directly or through one or more Affiliates, continue to hold Securities representing at least 1,000,000 shares of Common Stock (on an as-converted basis, as adjusted for any stock dividend, stock split, recapitalization or similar event in respect of such shares) or (ii) SLP-1 or SLP-3 determines in good faith that the possession of the following rights is necessary to facilitate its qualifying as a venture capital operating company, SLP-1 and SLP-3, without limitation or prejudice of any of the rights provided under this Agreement to each of SLP-1, SLP-3 and H&F-1 (each, a VCOC Investor), the Company shall:
(i) provide such VCOC Investor or its designated representative, upon written request, with:
(ii) make appropriate officers and/or directors of the Company available periodically and at such times as reasonably requested in writing by such VCOC Investor for consultation with such VCOC Investor or its designated representative with respect to matters relating to the business and affairs of the Company and its Subsidiaries, including without limitation, significant changes in management personnel and compensation of employees, introduction of new products or new lines of business, important acquisitions or dispositions of plants and equipment, significant research and development programs, the purchasing or selling of important trademarks, licenses or concessions or the proposed commencement or compromise of significant litigation;
(iii) to the extent consistent with applicable law (and with respect to events which require public disclosure, only following the Companys public disclosure thereof though applicable securities law filings or otherwise), inform such VCOC Investor or its designated representative in advance with respect to any significant corporate actions, including, without limitation, extraordinary dividends, mergers, acquisitions or dispositions of assets, issuances of significant amounts of debt or equity and material amendments to the certificate of incorporation or by laws of the Company, and to provide such VCOC Investor or its designated representative with the right to consult with the Company with respect to such actions, provided that the ultimate discretion with respect to all such matters shall be retained by the Company; and
(iv) provide such VCOC Investor or its designated representative with such other rights of consultation which such VCOC Investors counsel may reasonably determine in writing to be reasonably necessary under applicable legal authorities promulgated after the date hereof to qualify its investment in the Company as a venture capital investment for purposes of the Plan Assets Regulations.
(b) The Company agrees to consider, in good faith, the recommendations of such VCOC Investor or its designated representative in connection with the matters on which it is consulted as described above, provided that the ultimate discretion with respect to all such matters shall be retained by the Company.
(c) In the event a VCOC Investor transfers all or any portion of its investment in the Company to an affiliated entity (or to a direct or indirect wholly-owned conduit Subsidiary of any such affiliated entity) that is intended to qualify as a venture capital operating company under the Plan Assets Regulations, such affiliated entity shall be afforded the same rights with respect to the Company afforded to such VCOC Investor hereunder and shall be treated, for such purposes, as a third party beneficiary hereunder, provided that the affiliated entity shall only be afforded such rights if it, together with the transferee and its Affiliates, hold the applicable amount of Securities referenced in Section 4.03(a).
Section 4.04. Voting Rights.
If the Board of Directors approves an exemption for any Person from the 5% limitation on voting rights set forth in Article Fourth of the Charter Amendment, the Board of Directors shall simultaneously grant a similar exemption to each of the H&F Entities and the SLP Entities and shall use its best efforts to obtain the concurrence of the Commission with respect thereto.