USOL HOLDINGS, INC. AGREEMENT AMONG INVESTORS
AGREEMENT AMONG INVESTORS
This AGREEMENT ("Agreement") is made and entered into as of the 21st day of
July, 1999, by and among USOL HOLDINGS, INC., a Delaware corporation ("USOL"),
and each of the parties listed on the signature page hereto which are
collectively referred to herein as the "Original Investors").
RECITALS
A. The Original Investors own 100% of the issued and outstanding shares of
Series A Convertible Preferred Stock and Series B Convertible Preferred Stock of
USOL identified opposite their respective names on EXHIBIT A hereto (the "USOL
Preferred Stock").
B. USOL, Inc., a Delaware corporation and a wholly-owned subsidiary of USOL
("USOL Sub"), U.S. OnLine Communications, Inc., a Delaware corporation
("OnLine"), USOL and certain stockholders of OnLine have entered into an Asset
Purchase Agreement dated as of July 21, 1999, whereby USOL Sub shall purchase
substantially all of the assets of OnLine (the "USOL Acquisition").
C. USOL and GMAC Commercial Mortgage Corporation ("GMAC-CM") have entered
into an Asset Purchase Agreement dated July 21, 1999, whereby The
XxxxxxxxXxxx.xxx, Inc., a Delaware corporation and a wholly-owned subsidiary of
USOL Sub, shall purchase certain of the assets of the Tenant Services Division
of GMAC-CM (the "TSD Acquisition").
D. USOL and FirstLink Communications, Inc., an Oregon corporation ("FLCI"),
have entered into an Agreement of Merger dated as of July 21, 1999 (the "Merger
Agreement"), whereby, subsequent to the USOL Acquisition and the TSD Acquisition
and subject to the satisfaction of conditions set forth in the Merger Agreement,
USOL shall merge with and into FLCI ("the Merger").
E. Pursuant to the Merger Agreement, each share of USOL Preferred Stock
shall be exchanged for one share of Convertible Preferred Stock of FLCI ("FLCI
Preferred Stock").
F. The Original Investors believe that it is in their best interests to
enter into an agreement pertaining to the voting and transfer of their
respective shares of the USOL Preferred Stock, and after the FirstLink Closing
the FLCI Preferred Stock, on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing and the respective
covenants, agreements and conditions hereinafter set forth, and intending to be
legally bound hereby, the parties hereto agree as follows:
USOL HOLDINGS, INC. AGREEMENT AMONG INVESTORS
1. CERTAIN DEFINITIONS
1.1 "Accredited Investor" shall have the meaning ascribed to that term
under Rule 501 of Regulation D promulgated under the Securities Act, as amended.
1.2 "Affiliate" shall mean, with respect to any party, any other Person,
directly or indirectly, Controlling, Controlled by or under direct or indirect
common Control with, such party. To the extent that any Person is a limited
liability company, each member of the limited liability company shall be deemed
an "Affiliate" of that Person.
1.3 "Affirmative Vote" shall mean the affirmative vote or consent of the
Voting Investors holding more than 50% of the Percentage Interests held by all
Voting Investors.
1.4 "Chairperson" shall mean the chairperson listed on EXHIBIT B or such
other person appointed as chairperson by the Investors pursuant to this
Agreement.
1.5 "Company" shall mean (a) USOL at all times prior to the FirstLink
Closing, and (b) FLCI upon the FirstLink Closing and at all times thereafter.
1.6 "Company Preferred Stock" shall mean (a) USOL Preferred Stock at all
times prior to the FirstLink Closing, and (b) FLCI Preferred Stock upon the
FirstLink Closing and at all times thereafter.
1.7 "Control" when used with respect to any Person shall mean the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise.
1.8 "Converted Common Stock" shall mean shares of Company common stock
which were converted from Company Preferred Stock in accordance with the
Certificates of Designation pertaining to such Company Preferred Stock.
1.9 "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
1.10 "FirstLink Closing" shall mean the closing of the transactions
contemplated by the Merger Agreement.
1.11 "Investor" shall mean each of the owners of Company Preferred Stock
who are parties hereto and each of the parties who may hereafter become owners
of Company Preferred Stock in accordance with the terms hereof and execute a
counterpart of this Agreement.
1.12 "Investor Meeting" shall mean a meeting of the Investors held in
accordance with Section 2.
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USOL HOLDINGS, INC. AGREEMENT AMONG INVESTORS
1.13 "Original Voting Investors" shall mean, collectively, GMAC-CM, Aspen
Foxtrot Investments, LLC ("Aspen"), Peregrine Equities 1, LLC - Peregrine
Equities 10, LLC (as set forth on the signature page, collectively,
"Peregrine"), and AGL Investments No. 8 Limited Partnership ("AGL").
1.14 "Percentage Interest" shall mean, for any Investor, the Investor's
percentage interest in Company Preferred Stock held by the Investors, as set
forth as a fraction whereby (a) the numerator is equal to the number of shares
of Company Preferred Stock owned by the Investor, and (b) the denominator is the
number of shares of Company Preferred Stock owned by all Investors. Each
Investor's initial Percentage Interest is set forth on EXHIBIT A hereto.
1.15 "Persons" shall mean any individual or entity, and the heirs,
executors, administrators, legal representatives, successors, and assigns of
such "Person" where the context so permits.
1.16 "Regulated Investor" shall mean any Investor that (i) directly or
indirectly, due to its ownership by an entity subject to Regulation Y, is itself
subject to the provisions of Regulation Y and (ii) holds shares of Company
Preferred Stock or Company common stock.
1.17 "Regulation Y" shall mean Regulation Y of the Board of Governors of
the Federal Reserve System, 12 C.F.R. Part 225 (or any successor to such
regulation).
1.18 "Regulatory Problem" shall mean, with respect to any Investor, any set
of facts, events or circumstances the existence of which could cause such
Investor to believe that there is a substantial risk of assertion by a
governmental entity (which belief shall be reasonable in light of the prevailing
regulatory environment) that such Investor is or would be in violation of any
law, regulation, rule or other requirement of any governmental authority
(including without limitation, Regulation Y).
1.19 "Securities" shall mean Company Preferred Stock and/or Converted
Common Stock, as applicable.
1.20 "Securities Act" shall mean the Securities Act of 1933, as amended.
1.21 "Voting Investor" shall mean an Investor, to the extent that such
Investor owns Series A Company Preferred Stock.
1.22 "Voting Percentage Interest" shall mean, for any Investor, the
Investor's percentage interest in Series A Company Preferred Stock held by the
Investors, as set forth as a fraction whereby (a) the numerator is equal to the
number of shares of Series A Company Preferred Stock owned by the Investor, and
(b) the denominator is the number of shares of Series A Company Preferred Stock
owned by all Investors. Each Investor's initial Voting Percentage Interest is
set forth on EXHIBIT A hereto.
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USOL HOLDINGS, INC. AGREEMENT AMONG INVESTORS
2. INVESTOR MEETINGS
2.1 MEETINGS. In advance of any matter requiring the vote or action of the
Company's stockholders, the Investors shall hold a meeting where the Voting
Investors shall vote among themselves to determine the collective course of
action of the Investors.
2.2 QUARTERLY MEETINGS. Without limiting Section 2.1, the Investors shall
hold meetings on a quarterly basis, or on a more frequent basis as determined by
an Affirmative Vote of the Investors (the "Quarterly Meetings").
2.3 SPECIAL MEETINGS. Without limiting Section 2.1, a special meeting of
the Investors shall be held prior to each special meeting of the stockholders of
the Company. Special meetings of the Investors shall also be held as soon as
reasonably practical after the Chairperson receives notice that the stockholders
of the Company are seeking to take action by written consent. Additionally,
special meetings of the Investors, for any valid purpose or purposes, may be
called by any Investor or Investors holding at least twenty-five percent (25%)
of all Percentage Interests.
2.4 PLACE OF MEETINGS. The Chairperson may designate any place as the place
of meeting for any meeting of the Investors. Any representative of an Investor
not physically present at a meeting of the Investors may participate via
telephone conference.
2.5 NOTICE OF MEETINGS. Written notice stating the place (and, if
applicable, all pertinent information regarding the initiation of the telephone
conference), day and hour of the meeting and the purpose or purposes for which
the meeting is called shall be delivered to each Investor not less than three
(3) nor more than thirty (30) days before the date of the meeting, in accordance
with the terms of Section 12.3, by or at the direction of the Chairperson or the
Investor or Investors calling the meeting.
2.6 MEETING OF ALL INVESTORS. If all of the Investors shall meet at any
time and place (or via telephone conference), and consent to the holding of the
meeting, such meeting shall be valid without call or notice.
2.7 QUORUM. Investors holding more than fifty percent (50%) of all Voting
Percentage Interests, represented in person or by proxy, shall constitute a
quorum at any Investor Meeting. In order for an Investor to be present for
determining quorum at any Investor Meeting, representatives of the Investors may
be present in person or by telephone or other means of telecommunications,
provided that all representatives of the Investors can hear each other.
2.8 MANNER OF ACTING. If a quorum is present, an Affirmative Vote of the
Investors shall be the act of the Investors. Voting by Voting Investors at
Investor Meetings shall be in accordance with and in proportion to their
respective Voting Percentage Interests.
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USOL HOLDINGS, INC. AGREEMENT AMONG INVESTORS
2.9 REGULATED INVESTORS. Notwithstanding anything contained in this
Agreement to the contrary, insofar as a Regulated Investor owns no Series A
Company Preferred Stock, such Regulated Investor shall have no right to vote at
the Investor Meetings; except, however, so long as such Regulated Investor is an
owner of any Company Preferred Stock, that Regulated Investor shall have the
right to appoint a representative to attend and observe Investor Meetings and to
receive documents and other information distributed to the Investors.
3. CHAIRPERSON
3.1 NUMBER AND TENURE. There shall be one (1) Chairperson who shall preside
over the Investor Meetings. The initial Chairperson's name is set forth on
EXHIBIT B attached hereto. The Chairperson shall hold office until his successor
shall have been elected or the Chairperson has resigned. The Chairperson shall
be responsible, on the Investors' behalf, for (a) assembling such documents and
information that are provided by the Company to the Company's directors and
stockholders, (b) distributing such documents and information to each of the
Investors in a timely manner and (c) assisting the Investors in calling and
scheduling Investor Meetings.
3.2 REMOVAL AND VACANCIES. At a meeting called expressly for that purpose,
the Chairperson may be removed at any time, with or without cause, by an
Affirmative Vote of the Investors. Any vacancy occurring for any reason in the
office of Chairperson may be filled by an Affirmative Vote of the Investors.
4. VOTING AGREEMENT
4.1 IN THE EVENT OF AN AFFIRMATIVE VOTE. Except as provided in Section 4.4,
if an Affirmative Vote of the Investors is obtained at an Investor Meeting with
respect to any matter on which the Investors are entitled to vote as
stockholders of the Company Preferred Stock pursuant to the certificate of
incorporation or bylaws of the Company or the corporation laws of the state in
which the Company is incorporated, each Investor shall, at the applicable
meeting of the stockholders of the Company, or in connection with any written
consent of the stockholders of the Company, vote (or cause to be voted) all of
its Company Preferred Stock in accordance with, and act in a manner consistent
with, the desired outcome of the Investors with respect to such matter as
determined by the Affirmative Vote ("Desired Outcome"). No Investor shall take
any action which would impede, frustrate, prevent or nullify the Desired
Outcome. Nothing in this Section 4.1 shall be construed to limit, modify or
alter Section 14.5 hereof.
4.2 IN ABSENCE OF AN AFFIRMATIVE VOTE. In the event that an Affirmative
Vote of the Investors is not obtained, for any reason, at an Investor Meeting
with respect to any matter on which the Investors are entitled to vote as
stockholders of the Company Preferred Stock, each Investor may vote (or cause to
be voted), at the applicable meeting of the
EX 99.1 - 5
USOL HOLDINGS, INC. AGREEMENT AMONG INVESTORS
stockholders of the Company or in connection with any written consent, its
Company Preferred Stock in any manner it deems fit.
4.3 NO INCONSISTENT ARRANGEMENTS. Each Investor hereby covenants and agrees
that, except as contemplated by this Agreement, it shall not (a) grant any
proxy, power-of-attorney or other authorization in or with respect to the
Company Preferred Stock, (b) deposit the Company Preferred Stock into a voting
trust or enter into a voting agreement or arrangement with respect to the
Company Preferred Stock or (c) take any other action that would in any way
restrict, limit or interfere with its obligations hereunder.
4.4 BOARD REPRESENTATION.
(a) The parties hereto acknowledge and agree that each of the Original
Voting Investors (or Affiliates, directors and employees of such Original
Voting Investor) shall be entitled to (i) designate, on behalf of the
Voting Investors, an individual to serve as a director of the Company (each
a "Designated Director"), (ii) remove its Designated Director, and (iii)
replace its Designated Director in the event of a vacancy created by such
Designated Director. Such rights of designation, removal and replacement
shall terminate if the Original Voting Investor (or Affiliates, directors
and employees of such Investor) owns less than twenty-five percent (25%) of
the Securities that such Investor originally purchased from USOL pursuant
to that certain Subscription Agreement dated July 21, 1999, by and between
the Investor and USOL. Upon termination of such rights of designation,
removal and replacement, the director position originally designated by an
Original Voting Investor shall become a director position to be filled by
the holders of Company common stock. Each of the Original Voting Investors
hereby designates the individual identified opposite its name on EXHIBIT C
to act as its initial Designated Director. Each Investor entitled to vote
its shares of Company Preferred Stock shall vote its shares of Company
Preferred Stock at any regular or special meeting of stockholders of the
Company or in any written consent executed in lieu of such a meeting of
stockholders and shall take all other actions (including using its best
efforts to cause the board of directors of the Company to take all actions)
necessary to give effect to the agreements contained in this Agreement
(including, without limitation, the election of the Designated Directors
provided for herein) and to ensure that the certificate of incorporation
and bylaws of the Company as in effect at any time hereafter do not
conflict in any respect with the provisions of this Agreement. In order to
effectuate the provisions of this Agreement, each Investor hereby agrees
that when any action or vote is required to be taken by such Investor
pursuant to this Agreement, such Investor shall use its best efforts to
call, or cause the appropriate officers and directors of the Company to
call, a special or annual meeting of stockholders of the Company, as the
case may be, or execute or cause to be executed, a consent in writing in
lieu of any such meetings pursuant to applicable corporate law. To the
extent this Section 4.4(a) does not apply to the election of directors of
the Company, Sections 4.1 and 4.2
EX 99.1 - 6
USOL HOLDINGS, INC. AGREEMENT AMONG INVESTORS
shall govern the Investors' vote. If any Original Voting Investor transfers
less than all of its Company Preferred Stock to one or more Affiliates,
directors or employees of such Original Voting Investor, then the right to
designate, remove and replace a Designated Director shall be determined, as
among the Original Voting Investor and such Affiliates, directors or
employees, by agreement of such parties.
(b) Notwithstanding anything contained in this Agreement to the
contrary, insofar as a Regulated Investor owns no Series A Company
Preferred Stock, such Regulated Investor shall have no right to designate,
remove or replace any Company directors or otherwise participate in the
election of Company directors; except, however, so long as such Regulated
Investor is an owner of any Company Preferred Stock, that Regulated
Investor shall have the right to appoint a representative to attend and
observe Company board meetings and to receive documents and other
information distributed to the Company directors.
4.5 OTHER ACTIVITIES OF THE INVESTORS; FIDUCIARY DUTIES. It is understood
and accepted that the Investors and their Affiliates have interests in other
business ventures which may be in conflict with the activities of the Company
and its subsidiaries and that, subject to applicable law, nothing in this
Agreement shall limit the current or future business activities of the
Investors, whether or not such activities are competitive with those of the
Company and its subsidiaries. Nothing in this Agreement, express or implied,
shall relieve any officer or director of the Company or any of its subsidiaries,
or any Investor, of any fiduciary or other duties or obligations they may have
to the Company's stockholders.
5. RESTRICTION ON TRANSFER AND PERMITTED TRANSFERS OF COMPANY PREFERRED STOCK
5.1 RESTRICTIONS ON TRANSFER. Except as provided in Section 5.2 and Section
12, the Investors agree and covenant, for a period of one (1) year after the
FirstLink Closing, but in no event later than eighteen (18) months from the date
hereof, not to sell, pledge, encumber or otherwise transfer or dispose of, and
not to permit to be sold, encumbered, attached, or otherwise disposed of or
transferred in any manner, either voluntarily or by operation of law
("Transfer"), all or any portion of the shares of Company Preferred Stock that
they own or hereafter acquire in accordance with and subject to the terms of
this Agreement.
5.2 PERMITTED TRANSFERS. Notwithstanding the other provisions of this
Agreement, but subject to any restrictions that may exist under federal or state
securities laws, an Investor may (a) subject to and in accordance with the terms
of the Company Preferred Stock, convert within the one (1) year period following
the FirstLink Closing up to twenty-five percent (25%) of its shares of Company
Preferred Stock, received in the Merger or thereafter acquired, into common
stock of the Company, and, to the extent permitted under applicable securities
laws, such common stock may be sold publicly, (b) Transfer all or any part of
such Investor's Company Preferred Stock to one or more
EX 99.1 - 7
USOL HOLDINGS, INC. AGREEMENT AMONG INVESTORS
Affiliates, employees or directors of the Investor, (c) Transfer such Investor's
Company Preferred Stock in connection with any exchange, reclassification, or
other conversion of shares into any cash, securities, or other property pursuant
to a merger or consolidation of the Company or any of its subsidiaries with, or
any sale or transfer by the Company or any of its subsidiaries of all or
substantially all its assets to, any Person, in each case in which holders of
common stock and the Company Preferred Stock are treated substantially the same,
(d) Transfer such Investor's Company Preferred Stock in connection with any
statutory share exchange involving, or any recapitalization of, the Company or
any of its subsidiaries in which holders of common stock and the Company
Preferred Stock are treated substantially the same ((a) through (d)
collectively, "Permitted Transfers"), (e) Transfer all or any part of such
Investor's Company Preferred Stock in accordance with the terms of Sections 6 or
7, and (f) subject to compliance with applicable securities laws, Transfer for a
period of up to 45 days from the date hereof, an aggregate for all Investors of
up to $500,000 of Company Preferred Stock to a limited partner of Barington
Capital on the date hereof.
5.3 AMENDMENT TO TRANSFER RESTRICTIONS. The provisions of Section 5.1 and
5.2 may be modified to decrease or eliminate restrictions on Transfer by an
Affirmative Vote of the Investors, provided that all Transfer restrictions and
all Permitted Transfers, as modified, shall apply to each Investor equally, on a
pro rata basis based upon their respective Percentage Interests.
6. TAG-ALONG RIGHTS
(a) Other than in connection with a Permitted Transfer or a transfer
pursuant to an effective registration statement or pursuant to Rule 144
under the Securities Act or transfers under Section 7, if at any time, any
Investor (the "Selling Investor") desires to sell, transfer or otherwise
dispose of any Securities, the Selling Investor shall first be required,
prior to completing such sale, to give written notice ("Notice of
Transfer") to the remaining Investors of its intent to transfer the
Securities, which notice shall contain an offer to sell such Securities,
the proposed sale price for the Securities and the number of Securities
which the Selling Investor proposes to transfer and any other material
terms and conditions of the proposed transfer. The date on which such
notice is sent to the other Investors is referred to hereinafter as the
"Notice Date". Each of the remaining Investors shall have fifteen (15) days
following the Notice Date to notify the Selling Investor in writing
("Notice of Acceptance") of its acceptance of such offer to purchase any or
all of such Securities, on the material terms and conditions set forth in
the Notice of Transfer and at a per-share price set forth in the Notice of
Transfer. The Selling Investor shall not be obligated to sell any shares of
Securities to other Investors hereunder unless one or more of the Investors
purchases all, but not less than all, of the Securities subject to the
Notice of Transfer. The closing for the transaction set forth above shall
take place no later than 30 days from the Notice Date. If the Selling
Investor does not receive a Notice of Acceptance from an Investor within
EX 99.1 - 8
USOL HOLDINGS, INC. AGREEMENT AMONG INVESTORS
fifteen (15) days after the Notice Date, such Investor shall be deemed to
have declined to purchase such shares of Securities. In the event Investors
deliver Notices of Acceptance electing to purchase Securities in excess of
the Securities subject to the Notice of Transfer, the accepting Investors
shall have the right to purchase such shares on a Pro Rata basis.
(b) In the event that the remaining Investors collectively do not
elect to purchase all of the Securities being offered by the Selling
Investor pursuant to Section 6(a), the Selling Investor may transfer all of
such Securities to any third parties at not less than the sale price and
upon the other terms and conditions set forth in the Notice of Transfer;
PROVIDED, HOWEVER, that if the Selling Investor does not complete the
contemplated sale within one hundred twenty (120) days of the Notice Date,
the provisions of this Section 6(a) shall again apply. As a part of the
Notice of Transfer, prior to selling the shares of Securities to any such
third party, the Selling Investor shall also be required to offer to each
remaining Investor the opportunity to sell any, or all, of its shares of
Securities (subject to Section 6(d)) to the same party or parties upon the
same terms and conditions as the Selling Investor is selling; PROVIDED,
that, if the consideration to be received by the Selling Investor includes
any restricted securities, only Investors who have certified to the
reasonable satisfaction of the Selling Investor that they are Accredited
Investors shall be entitled to participate in such sale, unless the
transferee consents otherwise (which consent shall not be unreasonably
withheld or delayed). If, within thirty (30) days of receiving the Notice
of Transfer from the Selling Investor, any of the remaining Investors
elect, by written notice to the Selling Investor, to join the Selling
Investor and sell all or any part of their respective shares of Securities,
the Selling Investor shall be required to consummate the sale of their
Securities and the Securities of the other Investors so electing to join in
such sale on the same terms and conditions or, in the alternative, not to
sell any of their Securities. The Selling Investor shall, however, use
reasonable efforts to persuade the proposed transferee to purchase, from
all of the Investors electing to join in such sale pursuant to this Section
6(b), all of the shares of Securities that such Investors desire to sell on
the applicable terms and conditions.
(c) The term "Pro Rata" as used in this Section 6 shall be determined
as follows:
(i). To the extent that the applicable sale involves Company
Preferred Stock, the Investors' "Pro Rata" number of shares shall be
determined based on the applicable Investors' respective percentage
ownership of the then issued and outstanding Company Preferred Stock
held by all Investors.
(ii). To the extent that the applicable sale involves Converted
Common Stock, the Investors' "Pro Rata" number of shares shall be
determined based on the applicable Investors' respective percentage
ownership of the then-
EX 99.1 - 9
USOL HOLDINGS, INC. AGREEMENT AMONG INVESTORS
issued and outstanding number of Converted Common Stock held by all
Investors.
(d) In the event the third-party transferee declines to acquire
all of the shares of Securities being offered by the Investors in
accordance with Section 6(b), the number of shares each Investor may
sell (as set forth in Section 6(b)) shall be reduced on a Pro Rata
basis.
(e) In the event of a sale of any Securities to a third party,
made in accordance with this Section 6:
(i). No Investor shall receive any fees or compensation from
the transferee or the transferee's Affiliates (other than
reasonable and customary fees or compensation for actual services
rendered) unless each Investor electing to join in the sale
receives such fees or compensation on a pro rata basis, based on
the number of shares of Securities such Investor sells to the
transferee;
(ii). No Investor shall be required to make any
representations or warranties in connection with such sale other
than representations and warranties as to (A) such Investor's
ownership of its Securities to be transferred free and clear of
all liens, claims and encumbrances, (B) such Investor's power and
authority to effect such transfer, and (C) such matters
pertaining to compliance with applicable securities laws as the
transferee may reasonably require; and
(iii). Any agreement of indemnity for the breach of any of
the representations or warranties made in connection with such
sale shall provide that: (A) such indemnity is several (and not
joint and several), and (B) indemnity payments to be made by each
Investor shall be limited to the Investor's pro rata share of the
claim or the consideration the Investor received in connection
with the sale, whichever is less.
7. DRAG-ALONG RIGHTS
(a) Other than in connection with a Permitted Transfer or a transfer
pursuant to an effective registration statement or pursuant to Rule 144
under the Securities Act, if at any time, Investors (the "Transferring
Investors") holding a majority of the Securities, calculated on a
fully-converted basis, desire to sell, transfer or otherwise dispose of all
or any part of their Securities which would result in (i) the sale of, in
the aggregate, at least twenty percent (20%) of the voting capital stock of
the Company issued and outstanding on the date of such sale (determined as
if all of the issued and outstanding Company Preferred Stock were converted
into Converted Common Stock), and (ii) the person or group acquiring
EX 99.1 - 10
USOL HOLDINGS, INC. AGREEMENT AMONG INVESTORS
the stock will become the beneficial owner (as defined in Rule 13(d)(3) of
the Exchange Act) of a greater percentage of voting capital stock of the
Company, determined on a fully-converted basis, than any other person or
group, each of the other Investors shall, at the Transferring Investors'
discretion and subject to this Section 7, be required to sell all, but not
less than all, of their respective shares of Securities to the same party
or parties and upon the same terms and conditions as the Transferring
Investor. The Transferring Investors shall give at least thirty (30) days
written notice of such transaction to such other Investors. At the closing
of such sale, each Investor shall deliver certificates or other instruments
representing the Securities and other securities, if any, to be sold by
such Investor, duly endorsed for transfer, with the signature guaranteed,
to the purchaser against payment of the appropriate purchase price.
(b) In the event of a sale of any Securities made in accordance with
this Section 7:
(i). No Investor shall receive any fees or compensation from the
transferee or the transferee's Affiliates (other than reasonable and
customary fees or compensation for actual services rendered) unless
each Investor electing to join in the sale receives such fees or
compensation on a pro rata basis, based on the number of shares of
Securities such Investor sells to the transferee;
(ii). No Investor shall be required to make any representations
or warranties in connection with such sale other than representations
and warranties as to (A) such Investor's ownership of its Securities
or other securities to be transferred free and clear of all liens,
claims and encumbrances, (B) such Investor's power and authority to
effect such transfer, and (C) such matters pertaining to compliance
with applicable securities laws as the transferee may reasonably
require;
(iii). Any agreement of indemnity for the breach of any of the
representations or warranties made in connection with such sale shall
provide that: (A) such indemnity is several (and not joint and
several), and (B) indemnity payments to be made by each Investor shall
be limited to the Investor's pro rata share of the claim or the
consideration the Investor received in connection with the sale,
whichever is less;
(iv). No Regulated Investor shall be required to receive
consideration in connection with such sale that would cause a
Regulatory Problem; and
(v). One hundred percent (100%) of the consideration received by
the Investors in connection with such sale shall consist of cash
and/or publicly traded securities.
EX 99.1 - 11
USOL HOLDINGS, INC. AGREEMENT AMONG INVESTORS
8. ENDORSEMENT ON COMPANY PREFERRED STOCK CERTIFICATES
All certificates for the Company Preferred Stock owned by the Investors
shall be endorsed on the face thereof with a legend reading substantially as
follows:
"THE VOTING RIGHTS AND THE SALE, ASSIGNMENT, TRANSFER, PLEDGE, OR ANY OTHER
DISPOSITION OF THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE
RESTRICTED BY, AND SUBJECT TO, THE TERMS AND PROVISIONS OF AN AGREEMENT
AMONG INVESTORS, DATED AS OF JULY 21, 1999. BY ACCEPTANCE OF THIS
CERTIFICATE THE HOLDER HEREOF AGREES TO BE BOUND BY THE TERMS OF SAID
AGREEMENT AND ALL AMENDMENTS OR SUPPLEMENTS THERETO."
9. TRANSFEREES SUBJECT TO AGREEMENT
Shares of Company Preferred Stock transferred under any of the provisions
of this Agreement to any Person who is not a party to this Agreement shall be
subject to all of the terms and conditions of this Agreement and as a condition
to such Transfer, such Person shall execute a counterpart of this Agreement,
which shall be deemed a supplement to this Agreement. Upon the execution of such
counterpart, such Person shall become a party to this Agreement and shall be
bound hereby, together with all of the then parties to this Agreement as though
such Person were an original party hereto.
10. SPECIFIC PERFORMANCE
The parties hereby declare that it is impossible to measure in money the
damages which would accrue to any party hereto by reason of the failure to
perform any of the obligations under this Agreement, and in that event, in
addition to other remedies provided by applicable law, the non-breaching parties
shall be entitled to immediate issuance of a temporary restraining order or
preliminary injunction enforcing this Agreement.
11. REPORTING REQUIREMENTS
In the event that any party hereto is subject to the reporting requirements
of Section 13(d) of the Exchange Act, as amended (a) such party shall fully
comply with said requirements in a timely manner, (b) all parties hereto shall
cooperate in filing and amending all required reports to the extent required by
law and (c) all parties hereto shall promptly notify all other parties hereto of
any change in such party's ownership interest or beneficial ownership interest
in the Company.
EX 99.1 - 12
USOL HOLDINGS, INC. AGREEMENT AMONG INVESTORS
12. REGULATORY PROBLEM
Notwithstanding any other provision of this Agreement to the contrary, in
the event a Regulated Investor or any of its Affiliates shall determine that if
the Regulated Investor or such Affiliate, shall continue to hold some or all of
the shares of the Company Preferred Stock or any other securities of the Company
held by it, there is a material risk that such ownership will result in a
Regulatory Problem or the cost of continuing to hold such securities has, in the
reasonable judgment of the Regulated Investor or such Affiliate, significantly
increased, the Regulated Investor or such Affiliate, may sell, exchange or
otherwise dispose of such securities, in a prompt and orderly manner and any
periods of prior notice set forth in this Agreement shall be reduced to the
extent necessary to avoid any Regulatory Problem associated with such notice
period. In connection with the foregoing sentence, if requested by the Regulated
Investor, the Company shall cooperate with the Regulated Investor or such
Affiliate in (a) disposing of such securities to a third party or (b) exchanging
all or any portion of such securities on a share-for-share basis for shares of a
non-voting security of the Company (such non-voting security to be identical in
all respects to such voting securities or other securities, except that they
shall be non-voting and shall be convertible or exercisable into voting
securities on such conditions as are requested by the Regulated Investor in
light of the regulatory considerations prevailing). Without limiting the
foregoing, at the request of the Regulated Investor or such Affiliate, the
Company shall provide (and authorize the Regulated Investor or such Affiliate,
to provide) financial and other information concerning the Company to any
prospective purchaser of such securities owned by the Regulated Investor or such
Affiliate, and shall amend this Agreement, the certificate of incorporation of
the Company, the by-laws of the Company, and any related agreements and
instruments and shall take such additional actions in order to effectuate and
reflect the foregoing. The Company shall not be required to provide any such
information unless the recipient thereof signs a confidentiality agreement
reasonably satisfactory to the Company. This Section shall survive the
termination of this Agreement, so long as the Regulated Investor owns any
Securities.
13. TERMINATION
This Agreement shall terminate (a) upon the written agreement of the
parties hereto, or (b) in the event that the Investors, in the aggregate, hold
on a fully-diluted basis, less than twenty percent (20%) of the issued and
outstanding shares of Company common stock.
14. MISCELLANEOUS
14.1 COMMON STOCK. Unless otherwise provided herein, this Agreement shall
apply only to the Company Preferred Stock. Unless otherwise provided herein,
nothing in this Agreement shall be construed to limit, alter or otherwise affect
the rights or privileges of any Investor with respect to any shares of common
stock of the Company held by the Investor, including but not limited to an
Investor's right to sell, pledge, transfer or
EX 99.1 - 13
USOL HOLDINGS, INC. AGREEMENT AMONG INVESTORS
otherwise encumber the shares of common stock and to vote the shares of common
stock in such manner as such Investor deems appropriate.
14.2 ASSIGNMENT; PARTIES IN INTEREST.
(a) ASSIGNMENT. Except as expressly provided herein, the rights and
obligations of a party hereunder may not be assigned, transferred or
encumbered without the prior written consent of the other parties.
(b) PARTIES IN INTEREST. This Agreement shall be binding upon, inure
to the benefit of, and be enforceable by the respective successors and
permitted assigns of the parties hereto. Nothing contained herein shall be
deemed to confer upon any other Person any right or remedy under or by
reason of this Agreement.
14.3 NOTICES. Any notice or other communication required or which may be
given hereunder shall be in writing and either delivered personally to the
addressee, by facsimile to the addressee or mailed, certified or registered
mail, postage prepaid, and shall be deemed given when so delivered personally,
sent by facsimile, or if mailed, five days after the date of mailing as follows:
if to USOL:
USOL Holdings, Inc.
00000 Xxxxxx Xxxxxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxxxx
with a copy to:
Jenkens & Xxxxxxxxx, P.C.
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxx
if to AGL:
Amstar Group, Inc.
0000 00xx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxx
Fax: (000) 000-0000
EX 99.1 - 14
USOL HOLDINGS, INC. AGREEMENT AMONG INVESTORS
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxx
Fax: (000) 000-0000
if to GMAC-CM:
GMAC Commercial Mortgage Corporation
000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: President
Fax: (000) 000-0000
with a copy to:
General Motors Legal Staff
New Center One Building
0000 Xxxx Xxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Mortgage Group General Counsel
Fax: (000) 000-0000
and, with a copy to:
Xxxxxx & Associates, Inc.
000 Xxxxxxxxx Xxxxxx, Xxxxx 0
Xxxxxxxxx Xxxxx, Xxxxxxxxxx
Attention: Xxxx Xxxxxxx
Fax: (000) 000-0000
if to Aspen:
Aspen Foxtrot Investments, LLC
c/o Aspen Enterprises, Ltd.
0000 00xx Xxxxxx
Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. House
Fax: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxxx & Xxxx
900 Old Kent Bank Building
000 Xxxx Xxxxxx, XX
Xxxxx Xxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxxx
Fax: (000) 000-0000
EX 99.1 - 15
USOL HOLDINGS, INC. AGREEMENT AMONG INVESTORS
if to GACC:
Deutsche Bank Securities
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Fax: (000) 000-0000
with a copy to:
White & Case
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxx
Fax: (000) 000-0000
if to Paribas:
Paribas North America, Inc.
000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Attention: Xxxxxxx Xxxxx
Fax: (000) 000-0000
with a copy to:
White & Case
1155 Avenue of the Americas
New York, New York, 10036
Attention: Xxxx Xxxxx
Fax: (000) 000-0000
if to Peregrine:
Peregrine Capital, Inc.
Boardwalk Plaza
0000 XX Xxxxxxxxx Xxxxxxxxx Xxx.
Xxxxx 000
Xxxxxxxxx, Xxxxxx 00000-0000
Attention: Xxx Xxxx
Fax: (000) 000-0000
EX 99.1 - 16
USOL HOLDINGS, INC. AGREEMENT AMONG INVESTORS
with a copy to:
Peregrine Capital, Inc.
Boardwalk Plaza
0000 XX Xxxxxxxxx Xxxxxxxxx Xxx.
Xxxxx 000
Xxxxxxxxx, Xxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx
Fax: (000) 000-0000
if to any other
Original Investor:
To the address for such Original Investor set
forth on the books and records of USOL
14.4 LAW GOVERNING AGREEMENT. This Agreement shall be construed and
interpreted according to the internal laws of the State of Delaware, excluding
any choice of law rules that may direct the application of the laws of another
jurisdiction.
14.5 AMENDMENT AND MODIFICATION. Except as provided in Section 5.3, this
Agreement may not be amended or modified except in a writing signed by all of
the parties hereto.
14.6 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement shall
become binding when all counterparts taken together shall have been executed and
delivered by the parties. A telecopied facsimile of an executed counterpart of
the Agreement shall be sufficient to endorse the binding agreement of each party
to the terms hereof. However, each party agrees to return to the other parties
an original, duly executed counterpart of this Agreement promptly after delivery
of a telecopied facsimile thereof.
14.7 HEADINGS. The headings in this Agreement are inserted for convenience
only and shall not constitute a part hereof.
14.8 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
among the parties hereto relating to the subject matter hereof and supersedes
all prior understandings, agreements, or representations by or among the
parties, written or oral, related hereto.
EX 99.1 - 17
USOL HOLDINGS, INC. AGREEMENT AMONG INVESTORS
IN WITNESS WHEREOF, the parties hereto have caused their signatures, or the
signatures of their duly authorized representatives, to be set forth below on
the day and year first above written.
USOL HOLDINGS, INC.
By: /S/ XXXXXX XXXXXXX
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: President
INVESTORS:
AGL INVESTMENTS NO. 8 LIMITED PARTNERSHIP
By: AGLP NO. 8 LIMITED PARTNERSHIP, a
Colorado partnership, Its General
Partner
By: AGLP NO. 8, a Colorado
partnership, Its General Partner
By: /S/ XXXXX X. XXXXX
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: President
ASPEN FOXTROT INVESTMENTS, LLC
By: ASPEN ENTERPRISES, LTD., Its
Manager
By: /S/ XXXXXX X. HOUSE
-----------------------------------
Name: Xxxxxx X. House
Title: Vice President and Chief
Operating Officer
EX 99.1 - 18
USOL HOLDINGS, INC. AGREEMENT AMONG INVESTORS
GERMAN AMERICAN CAPITAL CORPORATION
By: /S/ XXXX X. XXXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
GERMAN AMERICAN CAPITAL CORPORATION
By: /S/ XXXXXX XXXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
GMAC COMMERCIAL MORTGAGE CORPORATION
By: /S/ XXXXXX X. XXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
PARIBAS NORTH AMERICA, INC.
By: /S/ XXXX X. XXXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Financial Controller
PEREGRINE EQUITIES 1, L.L.C.
By: /S/ XXX XXXX
-----------------------------------
Name: Xxx Xxxx
Title: President
PEREGRINE EQUITIES 2, L.L.C.
By: /S/ XXX XXXX
-----------------------------------
Name: Xxx Xxxx
Title: President
EX 99.1 - 19
USOL HOLDINGS, INC. AGREEMENT AMONG INVESTORS
PEREGRINE EQUITIES 3, L.L.C.
By: /S/ XXX XXXX
-----------------------------------
Name: Xxx Xxxx
Title: President
PEREGRINE EQUITIES 4, L.L.C.
By: /S/ XXX XXXX
-----------------------------------
Name: Xxx Xxxx
Title: President
PEREGRINE EQUITIES 5, L.L.C.
By: /S/ XXX XXXX
-----------------------------------
Name: Xxx Xxxx
Title: President
PEREGRINE EQUITIES 6, L.L.C.
By: /S/ XXX XXXX
-----------------------------------
Name: Xxx Xxxx
Title: President
EX 99.1 - 20
USOL HOLDINGS, INC. AGREEMENT AMONG INVESTORS
PEREGRINE EQUITIES 7, L.L.C.
By: /S/ XXX XXXX
-----------------------------------
Name: Xxx Xxxx
Title: President
PEREGRINE EQUITIES 8, L.L.C.
By: /S/ XXX XXXX
-----------------------------------
Name: Xxx Xxxx
Title: President
PEREGRINE EQUITIES 9, L.L.C.
By: /S/ XXX XXXX
-----------------------------------
Name: Xxx Xxxx
Title: President
PEREGRINE EQUITIES 10, L.L.C.
By: /S/ XXX XXXX
-----------------------------------
Name: Xxx Xxxx
Title: President
-----------------------------------
Xxxxxx Xxxxxx
/S/ XXXXX XXXXXX
-----------------------------------
Xxxxx Xxxxxx
EX 99.1 - 21
USOL HOLDINGS, INC. AGREEMENT AMONG INVESTORS
/S/ XXXXX XXXXXX
-----------------------------------
Xxxxxx Xxxxxx
By: Xxxxx Xxxxxx, POA
/S/ XXXXXXX XXXXX
-----------------------------------
Xxxxxxx Xxxxx
/S/ XXXXXX XXXXX
-----------------------------------
Xxxxx Investments L.P.
By: Xxxxxx Xxxxx, General Partner
/S/ XXXXXX XXX XXXXXXX
-----------------------------------
Xxxxxx Xxx Xxxxxxx
/S/ XXXXX XXXXXXXX
-----------------------------------
Xxxxx Xxxxxxxx
/S/ XXXXXXXX XXXXXXXX
-----------------------------------
Xxxxxxxx Xxxxxxxx
/S/ XXXX XXXXXXXXX
-----------------------------------
Xxxxx Xxxxx
By: Xxxx Xxxxxxxxx, Attorney-in-
Fact
/S/ W. XXXXXX XXXXXXXX
-----------------------------------
Xxxxxxxx Family Trust
By: W. Xxxxxx Xxxxxxxx, Trustee
/S/ XXXXX XXXXXX
-----------------------------------
Xxxxx Xxxxxx
/S/ XXXXXX XXXXXXXXXX
-----------------------------------
Xxxxxx Xxxxxxxxxx
EX 99.1 - 22
USOL HOLDINGS, INC. AGREEMENT AMONG INVESTORS
/S/ XXXX XXXXXXXX
-----------------------------------
Xxxx Xxxxxxxx
/S/ XXXX XXXXXXXX
-----------------------------------
Xxxxx Xxxxx
By: Xxxx Xxxxxxxx, Custodian FBO
Xxxxx Xxxxx S.E.P.
/S/ XXX XXXXXXX
-----------------------------------
Xxx Xxxxxxx
/S/ XXXXX XXXXX
-----------------------------------
Xxxxx Xxxxx for FMH, LLP
/S/ XXX XXXXXXX
-----------------------------------
Xxx Xxxxxxx
/S/ XXX XXXXX
-----------------------------------
Xxx Xxxxx
/S/ XXXXX XXXXXX
-----------------------------------
Rosewood Partners L.P.
By: Xxxxx Xxxxxx
/S/ G. XXXXX XXXXXXX
-----------------------------------
G. Xxxxx Xxxxxxx
EX 99.1 - 23
EXHIBIT A
INVESTORS AND
PERCENTAGE INTERESTS
Voting
Percentage Percentage
Investor Interest Interest
-------- ---------- ----------
GMAC Commercial Mortgage Corporation 26.95% 30.11%
AGL Investment No. 8 L.P. (Amstar) 26.95% 30.11%
Aspen Foxtrot Investments, LLC 12.16% 13.58%
German American Capital Corporation 4.39% 4.90%
Peregrine Equities 1, L.L.C. 1.35% 1.51%
Peregrine Equities 2, L.L.C. 1.35% 1.51%
Peregrine Equities 3, L.L.C. 1.35% 1.51%
Peregrine Equities 4, L.L.C. 1.35% 1.51%
Peregrine Equities 5, L.L.C. 1.35% 1.51%
Peregrine Equities 6, L.L.C. 1.35% 1.51%
Peregrine Equities 7, L.L.C. 1.35% 1.51%
Peregrine Equities 8, L.L.C. 1.35% 1.51%
Peregrine Equities 9, L.L.C. 1.35% 1.51%
Peregrine Equities 10, L.L.C. 1.35% 1.51%
Voting
Percentage Percentage
Investor Interest Interest
-------- ---------- ----------
Xxx Xxxxxxx 0.07% 0.08%
Xxx Xxxxx 0.67% 0.75%
Xxxxxxxx Xxxxxxxx 0.03% 0.03%
Xxxxxxx Xxxxx 0.14% 0.15%
Xxxxxx Xxx Xxxxxxx 0.07% 0.08%
Xxxxxx Xxxxxx 0.95% 1.06%
Xxxxx Xxxxxxxx 0.03% 0.03%
Xxxxx Xxxxxx 0.14% 0.15%
Xxxxxx Xxxxxx 0.14% 0.15%
Xxxxx Xxxxx 0.14% 0.15%
Xxxx Xxxxxxxx 0.08% 0.09%
First Madison Holidays, LLP 0.05% 0.06%
Xxxxxxxx Family Trust 0.54% 0.60%
Xxxxx Xxxxxx 0.81% 0.91%
Rosewood Partners, L.P. (Xxxxx Xxxxxx) 0.67% 0.75%
Xxxxxx Xxxxxxxxxx 0.24% 0.27%
Xxx Xxxxxxx 0.05% 0.06%
Xxxx Xxxxxxxx Custodian FBO Xxxxx Xxxxx S.E.P. 0.07% 0.08%
Xxxxx Investments, L.P. 0.54% 0.60%
G. Xxxxx Xxxxxxx 0.14% 0.15%
German American Capital Corporation 5.07% N/A
Paribas North America, Inc. 5.41% N/A
EX 99.1A - 2
EXHIBIT B
INITIAL CHAIRPERSON
Xxxxx Xxxxx
EXHIBIT C
INITIAL DESIGNATED DIRECTORS
INITIAL
DESIGNATED
INVESTOR DIRECTOR
-------- ----------
AGL Investments No. 8 Limited Partnership Xxxxx Xxxxx
Aspen Foxtrot Investments, LLC Xxxxxx Xxxxxxxx
GMAC Commercial Mortgage Corporation Xxxxxx X. Xxxxxx
Peregrine Equities 1-10,L.L.C. Xxx Xxxx