AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
by and among
XXXXXX'X FURNITURE, INC.
and
THE STOCKHOLDERS LISTED ON THE SIGNATURE PAGES HEREOF
Dated as of January 14, 2000
Amended and Restated Registration Rights Agreement (this "Agree
ment"), dated as of January 14, 2000, by and among Xxxxxx'x Furniture,
Inc., a Delaware corporation (the "Company"), and each of the stockholders
of the Company listed on the signature pages hereto (the "Investors").
1. Background. The Investors own shares of either the Company's common
stock, par value $.001 per share (the "Common Stock") or the Company's
Series A Convertible Preferred Stock, par value $.0001 per share, (the
"Series A Preferred Stock"), which is convertible into Common Stock. In
connection with a Securities Purchase Agreement between the Company and the
purchasers listed thereto, dated August 26, 1996, the Company entered into
a Registration Rights Agreement with certain stockholders dated August 26,
1996 (the "Prior Registration Rights Agreement").
Pursuant to a Securities Purchase Agreement among the Company and the
purchasers listed thereto, dated the date hereof, the Company and the
Investors have entered into this Agreement to amend, restate and supersede
the Prior Registration Rights Agreement.
2. Registration Under Securities Act, Etc.
--------------------------------------
2.1 Registration on Request.
-----------------------
(a) Request. Subject to Section 2.8 hereof, at any time and from
time to time upon the written request of Holders (the "Initiating Holders")
of not less than the Required Number of Shares that the Company effect the
registration under the Securities Act (other than pursuant to a Shelf
Registration Statement) of all or part of such Initiating Holders'
Registrable Securities (provided that the Company shall not be obligated to
register less than the Required Number of Shares pursuant to such request),
the Company will promptly give written notice of such requested
registration to all registered Holders, and thereupon the Company will use
its best efforts to effect the registration under the Securities Act of:
(i) the Registrable Securities (representing not less than
the Required Number of Shares) which the Company has been so
requested to register by such Initiating Holders, and
(ii) all other Registrable Securities which the Company has
been requested to register by the Holders thereof (such Holders
together with the Initiating Holders are hereinafter referred to
as the "Selling Holders") by written request given to the Company
within 20 days after the giving of such written notice by the
Company, all to the extent required to permit the disposition of
the Registrable Securities so to be registered.
(b) Registration of Other Securities. Whenever the Company shall
effect a registration pursuant to this Section 2.1 in connection with an
underwritten offering by one or more Selling Holders, no securities other
than Registrable Securities shall be included among the securities covered
by such registration unless (i) the managing underwriter of such offering
shall have advised each Selling Holder to be covered by such registration
in writing that the inclusion of such other securities would not adversely
affect such offering or (ii) the Selling Holders of not less than a
majority of all Registrable Securities to be covered by such registration
shall have consented in writing to the inclusion of such other securities.
(c) Registration Statement Form. Registrations under this Section
2.1 shall be on such appropriate registration form of the Commission as
shall be selected by the Company.
(d) Expenses. The Company will pay the Registration Expenses in
connection with any registration requested pursuant to this Section 2.1.
(e) Effective Registration Statement. A registration requested
pursuant to this Section 2.1 shall not be deemed to have been effected:
(i) unless a registration statement with respect thereto has
become effective,
(ii) if after it has become effective, such registration is
interfered with by any stop order, injunction or other order or requirement
of the Commission or other governmental agency or court for any reason not
attributable to the Selling Holders and such registration has not
thereafter become effective, or
(iii) if the conditions to closing specified in the
underwriting agreement, if any, entered into in connection with such
registration are not satisfied or waived, other than by reason of a failure
on the part of the Selling Holders.
(f) Selection of Underwriters. The underwriter or underwriters of
each underwritten offering of the Registrable Securities shall be selected
by the mutual agreement of the Company and the Selling Holders of a
majority of the Registrable Securities so to be registered.
(g) Priority in Requested Registration. If the managing
underwriter of any underwritten offering shall advise the Company in
writing (with a copy to each Selling Holder) that, in its opinion, the
number of securities requested to be included in such registration exceeds
the number which can be sold in such offering within a price range
acceptable to the Selling Holders of a majority of the Registrable
Securities requested to be included in such registration, the Company will
include in such registration, to the extent of the number which the Company
is so advised can be sold in such offering, Registrable Securities
requested to be included in such registration, pro rata among the Selling
Holders on the basis of the percentage of the Registrable Securities of
such Selling Holders requested so to be registered. In connection with any
such registration to which this Section 2.1(g) is applicable, no securities
other than Registrable Securities shall be covered by such registration.
(h) Limitations on Registration on Request. Notwithstanding
anything in this Section 2.1 to the contrary, the Company shall not be
required to effect, in the aggregate pursuant to this Section 2.1, without
regard to the Holder making such request, more than two registrations
during any twelve month period.
2.2 Incidental Registration.
-----------------------
(a) Right to Include Registrable Securities. If the Company
proposes at any time to register any of its securities under the Securities
Act (other than a Shelf Registration Statement) by registration on Forms
X-0, X-0 or S-3 or any successor or similar form(s) (except registrations
on such Forms or similar form(s) solely for registration of securities in
connection with an employee benefit plan or dividend reinvestment plan or a
merger, reorganization, or consolidation), whether or not for sale for its
own account, it will, subject to Section 2.8 hereof, each such time give
prompt written notice to all registered Holders of its intention to do so
and of such Holders' rights under this Section 2.2. Upon the written
request of any such Holder (a "Requesting Holder") made as promptly as
practicable and in any event within 20 days after the receipt of any such
notice (10 days if the Company states in such written notice or gives
telephonic notice to all registered Holders , with written confirmation to
follow promptly thereafter, that (i) such registration will be on Form S-3
and (ii) such shorter period of time is required because of a planned
filing date) (which request shall specify the Registrable Securities
intended to be disposed of by such Requesting Holder), the Company will,
subject to Section 2.8 hereof, use its best efforts to effect the
registration under the Securities Act of all Registrable Securities which
the Company has been so requested to register by the Requesting Holders
thereof; provided, that if, at any time after giving written notice of its
intention to register any securities and prior to the effective date of the
registration statement filed in connection with such registration, the
Company shall determine for any reason not to register or to delay
registration of such securities, the Company may, at its election, give
written notice of such determination to each Requesting Holder and (i) in
the case of a determination not to register, shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration (but not from any obligation of the Company to pay the
Registration Expenses in connection therewith), without prejudice, however,
to the rights of any Holder or Holders entitled to do so to request that
such registration be effected as a registration under Section 2.1 and (ii)
in the case of a determination to delay registering, shall be permitted to
delay registering any Registrable Securities, for the same period as the
delay in registering such other securities. No registration effected under
this Section 2.2 shall relieve the Company of its obligation to effect any
registration upon request under Section 2.1. The Company will pay all
Registration Expenses in connection with registration of Registrable
Securities requested pursuant to this Section 2.2.
(b) Priority in Incidental Registrations. If the managing
underwriter of any underwritten offering shall inform the Company (or, in
the case of a secondary offering, the selling stockholders initiating such
offering) of its belief that the number or type of Registrable Securities
requested to be included in such registration would materially adversely
affect such offering, then the Company will include in such registration,
to the extent of the number and type which the Company is (or the selling
stockholders initiating such offering are) so advised can be sold in (or
during the time of) such offering, first, all securities proposed by the
Company (or, in the case of a secondary offering, the selling stockholders
initiating such offering) to be sold for its (or their) own account, and
second, such Registrable Securities and any other securities of the Company
requested to be included in such registration, pro rata among all such
Holders on the basis of the estimated gross proceeds of the securities of
such Holders requested to be so included.
(c) Selection of Managing Underwriter. The managing underwriter
of any underwritten offering pursuant to this Section 2.2 shall be selected
by the Company at its sole discretion.
2.3 Registration Procedures. If and whenever the Company is required
to use its best efforts to effect the registration of any Registrable
Securities under the Securities Act as provided in Section 2.1, 2.2 or 2.8,
the Company will as expeditiously as possible:
(a) in the case of a registration pursuant to Section 2.1 or 2.2,
prepare and (as soon as practicable, and in any event within 75 days in the
case of Form S-1 or S-2 and 30 days in the case of a registration requested
on Form S-3 after the end of the period within which requests for
registration may be given to the Company) file with the Commission the
requisite registration statement to effect such registration and thereafter
use its best efforts to cause such registration statement to become
effective; provided, that the Company may discontinue any registration of
its securities which are not Registrable Securities (and, under the
circumstances specified in Section 2.2(a), its securities which are
Registrable Securities) at any time prior to the effective date of the
registration statement relating thereto;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith 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 Registrable Securities covered by
such registration statement for such period as shall be required for the
disposition of all of such Registrable Securities, provided, that in the
case of a registration pursuant to Section 2.1 or 2.2, such period need not
exceed 90 days;
(c) furnish to each seller of Registrable Securities covered by
such registration statement, such number of conformed copies of such
registration statement and of each such amendment and supplement thereto
(in each case including all exhibits), such number of copies of the
prospectus contained in such registration statement (including each
preliminary prospectus and any summary prospectus) and any other prospectus
filed under Rule 424 under the Securities Act, in conformity with the
requirements of the Securities Act, and such other documents, as such
seller may reasonably request;
(d) use its best efforts:
(i) to register or qualify all Registrable Securities
and other securities covered by such registration statement under such
other securities or blue sky laws of such states of the United States of
America where an exemption is not available and as the sellers of
Registrable Securities covered by such registration statement shall
reasonably request;
(ii) to keep such registration or qualification in
effect for so long as such registration statement remains in effect; and
(iii) to take any other action which may be reasonably
necessary or advisable to enable such sellers to consummate the disposition
in such jurisdictions of the securities to be sold by such sellers, except
that the Company shall not for any such purpose be required to qualify
generally to do business as a foreign corporation in any jurisdiction
wherein it would not but for the requirements of this subdivision (d) be
obligated to be so qualified or to consent to general service of process in
any such jurisdiction;
(e) use its best efforts to cause all Registrable Securities
covered by such registration statement to be registered with or approved by
such other federal or state governmental agencies or authorities as may be
necessary in the opinion of counsel to the Company and counsel to the
seller or sellers thereof to consummate the disposition of such Registrable
Securities;
(f) in the case of a registration pursuant to Section 2.1 or 2.2,
furnish to each seller of Registrable Securities a signed counterpart of
(i) an opinion of counsel for the Company and (ii) a "comfort" letter
signed by the independent public accountants who have certified the
Company's financial statements included or incorporated by reference in
such registration statement covering substantially the same matters with
respect to such registration statement (and the prospectus included
therein) and, in the case of the accountant's comfort letter, with respect
to events subsequent to the date of such financial statements, as are
customarily covered in opinions of issuer's counsel and in accountant's
comfort letters delivered to the underwriters in underwritten public
offerings of securities (and dated the dates such opinions and comfort
letters are customarily dated) and, in the case of the accountant's comfort
letter, such other financial matters, and in the case of the legal opinion,
such other legal matters, as the sellers of a majority of the Registrable
Securities covered by such registration statement, or the underwriters, may
reasonably request;
(g) notify each seller of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, upon discovery that, or
upon the happening of any event as a result of which, in the judgment of
the Company, the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading, in the light of the circum stances
under which they were made, and at the request of any such seller promptly
prepare and furnish to it a reasonable number of copies of a supplement to
or an amendment of such prospectus as may be necessary so that, in the
judgment of the Company, as thereafter delivered to the purchasers of such
securities, such prospectus shall not include an untrue statement of a
material fact or omit 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 under which they were made;
(h) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering
the period of at least twelve months, but not more than eighteen months,
beginning with the first full calendar month after the effective date of
such registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder, and promptly furnish to each such seller of Registrable
Securities a copy of any amendment or supplement to such registration
statement or prospectus;
(i) provide and cause to be maintained a transfer agent and
registrar (which, in each case, may be the Company) for all Registrable
Securities covered by such registration statement from and after a date not
later than the effective date of such registration; and
(j) use its best efforts to list all Registrable Securities
covered by such registration statement on any national securities exchange
or national quotations system on which Registrable Securities of the same
class covered by such registration statement are then listed.
The Company may require each seller of Registrable Securities as
to which any registration is being effected to furnish the Company in
writing as promptly as reasonably practicable such information regarding
such seller and the distribution of such securities as the Company may from
time to time reasonably request in writing.
Each Holder agrees that upon receipt of any notice from the
Company of the happening of any event of the kind described in subdivision
(g) of this Section 2.3, such Holder will forthwith discontinue such
Holder's disposition of Registrable Securities pursuant to the registration
statement relating to such Registrable Securities until such Holder's
receipt of the copies of the supplemented or amended prospectus
contemplated by subdivision (g) of this Section 2.3 and, if so directed by
the Company, will deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, then in such Holder's possession,
of the prospectus relating to such Registrable Securities current at the
time of receipt of such notice.
2.4 Underwritten Offerings.
----------------------
(a) Requested Underwritten Offerings. If requested by the
underwriters for any underwritten offering by Holders pursuant to a
registration requested under Section 2.1, the Company will enter into an
underwriting agreement with such underwriters for such offering, such
agreement to be reasonably satisfactory in substance and form to the
Company, each such Holder and the underwriters and to contain such
representations and warranties by the Company and such other terms as are
generally prevailing in agreements of that type, including, without
limitation, indemnities to the effect and to the extent provided in Section
2.7. The Holders of the Registrable Securities proposed to be distributed
by such underwriters will cooperate with the Company in the negotiation of
the underwriting agreement and will give consideration to the reasonable
suggestions of the Company regarding the form thereof. Such Holders to be
distributed by such underwriters shall be parties to such underwriting
agreement and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part of,
the Company to and for the benefit of such underwriters shall also be made
to and for the benefit of such Holders and that any or all of the
conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations of such
Holders. Any such Holder shall not be required to make any representations
or warranties to or agreements with the Company or the underwriters other
than representations, warranties or agreements regarding such Holder, such
Holder's Registrable Securities, such Holder's intended method of
distribution and any other representations required by law.
(b) Incidental Underwritten Offerings. If the Company proposes to
register any of its securities under the Securities Act as contemplated by
Section 2.2 and such securities are to be distributed by or through one or
more underwriters, the Company will, subject to Section 2.8 hereof, if
requested by any Requesting Holder arrange for such underwriters to include
all the Registrable Securities to be offered and sold by such Requesting
Holder among the securities of the Company to be distributed by such
underwriters. The Holders of Registrable Securities to be distributed by
such underwriters shall be parties to the underwriting agreement between
the Company and such underwriters and may, at their option, require that
any or all of the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of such Holders and
that any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement be conditions precedent to
the obligations of such Holders. Any such Requesting Holder shall not be
required to make any representations or warranties to or agreements with
the Company or the underwriters other than representations, warranties or
agreements regarding such Requesting Holder, such Requesting Holder's
Registrable Securities and such Requesting Holder's intended method of
distribution or any other representations required by law. Notwithstanding
the foregoing provisions of this Section 2.4(b), the Company need not
include any Registrable Securities of any such Requesting Holder in an
underwritten offering of the Company's securities if the inclusion of such
Requesting Holder's securities, in the opinion of the managing underwriter
for such offering by the Company, might adversely affect such offering by
the Company.
(c) Hold-back Agreements.
--------------------
(i) In the case of any underwritten public offering by the
Company of shares of Common Stock, each Holder agrees not to effect
any disposition (other than a disposition of Registrable Securities
under such underwritten public offering or a bona fide pledge or a
disposition to an Affiliate of such Holder who agrees to be bound by
the provisions of this paragraph) (a "Disposition") of any Registrable
Securities, and not to effect any such Disposition of any other equity
security of the Company or of any security convertible into or
exchangeable or exercisable for any equity security of the Company (in
each case, other than as part of such underwritten public offering)
during the 15 days prior to, and during the 90-day period (or such
longer period as may be reasonably requested by the underwriter of
such offering) beginning on, the effective date of such registration
statement (except as apart of such registration); provided that each
Holder has received written notice of such registration at least 15
days prior to such effective date.
(ii) If any registration of Registrable Securities shall be
in connection with an underwritten public offering, the Company agrees
(x) not to effect any public sale or distribution of any of its equity
securities or of any security convertible into or exchangeable or
exercisable for any equity security of the Company (other than any
such sale or distribution of such securities in connection with any
merger or consolidation by the Company or any subsidiary of the
Company of the capital stock or substantially all the assets of any
other person or in connection with an employee stock option or other
benefit plan) during the 90 days prior to, and during the 180-day
period beginning on, the effective date of such registration statement
(except as part of such registration) and (y) that any agreement
entered into after the date of this Agreement pursuant to which the
Company issues or agrees to issue any privately placed equity
securities shall contain a provision under which Holders of such
securities agree not to effect any Disposition of any such securities
during the period referred to in the foregoing clause (x) (except as
part of such registration, if permitted).
2.5 Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the Securities
Act pursuant to this Agreement, the Company will give the Holders of
Registrable Securities registered under such registration statement, their
underwriters, if any, and their respective counsel and accountants the
opportunity to participate in the preparation of such registration
statement, each prospectus included therein or filed with the Commission,
and, to the extent practicable, each amendment thereof or supplement
thereto, and give each of them such access to its books and records (to the
extent customarily given to underwriters of the Company's securities) and
such opportunities to discuss the business of the Company with its officers
and the independent public accountants who have certified its financial
statements as shall be necessary, in the opinion of such Holders' and such
underwriters' respective counsel, to conduct a reasonable investigation
within the meaning of the Securities Act.
2.6 Limitations, Conditions and Qualifications to Obligations Under
Registration Covenants. The obligation of the Company to use its best
efforts to cause the Registrable Securities to be registered under the
Securities Act is subject to the following limitations, conditions and
qualifications.
(a) The Company shall be entitled to postpone for a reasonable
period of time (but not exceeding 180 days, in the case of a registration
pursuant to Section 2.1 or 2.2, and 30 days in the case of a registration
pursuant to Section 2.8) the filing of any registration statement otherwise
required to be prepared and filed by it pursuant to Section 2.1, if the
Company determines, in its reasonable judgment, that such registration and
offering (i) would interfere with any financing, acquisition, merger,
consolidation, material joint venture, corporate reorganization or other
material transaction involving the Company or any of its Affiliates, or
(ii) would require premature disclosure of any of the foregoing
transactions (or of the existence of negotiations, discussions or pending
proposals with respect thereto) or of any pending or threatened litigation,
claim, assessment or governmental investigation which would be material to
the Company, and promptly gives the Holders requesting registration thereof
pursuant to Section 2.1 written notice of such delay. If the Company shall
so postpone the filing of a registration statement, such Holders of
Registrable Securities requesting registration thereof pursuant to Section
2.1 shall have the right to withdraw the request for registration by giving
written notice to the Company within 30 days after receipt of the notice of
postponement and, in the event of such withdrawal, such request shall not
be counted for purposes of the requests for registration to which Holders
are entitled pursuant to Section 2.1 hereof.
(b) The Company shall not be obligated to effect the registration
of Registrable Securities of any Holder pursuant to Section 2.1, 2.2 or 2.8
unless such Holder consents to reasonable conditions imposed by the
Company, including without limitation:
(i) conditions prohibiting the sale of shares by such Holder
until the registration shall have been effective for a specified
period of time;
(ii) conditions requiring such Holder to comply with all
prospectus delivery requirements of the Securities Act and with all
anti-stabilization, anti-manipulation and similar provisions of
Section 10 of the Exchange Act and any rules issued thereunder by the
Commission, and to furnish to the Company information about sales made
in such public offering;
(iii) conditions prohibiting such Holder from effecting the
sale of shares upon receipt of telegraphic or written notice from the
Company (until further notice) given to permit the Company to correct
or update a registration statement or prospectus; and
(iv) conditions requiring that at the end of the period
during which the Company is obligated to keep the registration
statement effective under Section 2.3(b) or 2.8(c), such Holder shall
discontinue sales of shares pursuant to such registration statement
upon receipt of notice from the Company of its intention to remove
from registration the shares covered by such registration statement
that remain unsold, and requiring such Holder to notify the Company of
the number of Registrable Securities registered that remain unsold
promptly upon receipt of notice from the Company.
(c) Holders shall use their reasonable best efforts to effect as
wide a distribution of such Registrable Securities as reasonably
practicable, and in no event shall any sale of Registrable Securities be
made knowingly to (i) any Person (including its Affiliates) or (ii) any
Persons or entities which are to the knowledge of such Holders (or to the
knowledge of any underwriter for such Holders) part of any "group" within
the meaning of Regulation 13D of the Exchange Act which includes such
purchaser or any of its Affiliates that, after giving effect to such sale,
would beneficially own securities representing more than 5% of the
aggregate voting power of all outstanding voting securities of the Company.
The Holders of such Registrable Securities shall secure the agreement of
their underwriter or underwriters, if any, for such offering to comply with
the foregoing.
2.7 Indemnification.
---------------
(a) Indemnification by the Company. In the event of any
registration of any securities of the Company under the Securities Act, the
Company will, and hereby does, indemnify and hold harmless, in the case of
any registration statement filed pursuant to Section 2.1, 2.2 or 2.8, each
seller of any Registrable Securities covered by such registration
statement, its directors, officers, partners, agents and Affiliates and
each other Person who participates as an underwriter in the offering or
sale of such securities and each other Person, if any, who controls such
seller or any such underwriter within the meaning of the Securities Act (a
"Controlling Person"), insofar as losses, claims, damages or liabilities
(or actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any registration
statement under which such securities were registered under the Securities
Act, any preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, or any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein in light of the
circumstances in which they were made not misleading, and the Company will
reimburse such seller and each such director, officer, partner, agent or
affiliate, underwriter and Controlling Person for any legal or any other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, liability, action or proceeding; provided,
that the Company shall not be liable in any such case to the extent that
any such loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and in
conformity with written information furnished to the Company through an
instrument executed by or on behalf of such seller or underwriter, as the
case may be, specifically stating that it is for use in the preparation
thereof; and provided further, that the Company shall not be liable to any
Person who participates as an underwriter in the offering or sale of
Registrable Securities or any other Person, if any, who controls such
underwriter within the meaning of the Securities Act, in any such case to
the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of such Person's
failure to send or give a copy of the final prospectus, as the same may be
then supplemented or amended, to the Person asserting an untrue statement
or alleged untrue statement or omission or alleged omission at or prior to
the written confirmation of the sale of Registrable Securities to such
Person if such statement or omission was corrected in such final prospectus
so long as such final prospectus, and any amendments or supplements
thereto, have been furnished to such underwriter. Such indemnity shall
remain in full force and effect regardless of any investigation made by or
on behalf of such seller or any such director, officer, partner, agent or
affiliate or Controlling Person and shall survive the transfer of such
securities by such seller.
(b) Indemnification by the Sellers. As a condition to including
any Registrable Securities in any registration statement, the Company shall
have received an undertaking satisfactory to it from the prospective seller
of such Registrable Securities, to indemnify and hold harmless (in the same
manner and to the same extent as set forth in subdivision (a) of this
Section 2.7) the Company, and each director of the Company, each officer of
the Company and each other Person, if any, who controls the Company within
the meaning of the Securities Act (a "Company Controlling Person"), with
respect to any statement or alleged statement in or omission or alleged
omission from such registration statement, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment
or supplement thereto, if such statement or alleged statement or omission
or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company through an instrument duly
executed by such seller specifically stating that it is for use in the
preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement; provided, however,
that the liability of such indemnifying party under this Section 2.7(b)
shall be limited to the amount of proceeds received by such indemnifying
party in the offering giving rise to such liability. Such indemnity shall
remain in full force and effect, regardless of any investigation made by or
on behalf of the Company or any such director, officer or Company
Controlling Person and shall survive the transfer of such securities by
such seller.
(c) Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this Section
2.7, such indemnified party will, if a claim in respect thereof is to be
made against an indemnifying party, give written notice to the latter of
the commencement of such action; provided, however, that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subdivisions of
this Section 2.7, except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice. In case any such action
is brought against an indemnified party, unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties is reasonably likely to exist in respect of such
claim, the indemnifying party shall be entitled to participate in and, to
assume the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by
the latter in connection with the defense thereof other than reasonable
costs of investigation unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties arises in respect of such claim after the assumption of the defense
thereof and the indemnified party notifies the indemnifying party of such
indemnified party's judgment and the basis therefor. No indemnifying party
shall be liable for any settlement of any action or proceeding effected
without its written consent, which consent shall not be unreasonably
withheld. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release
from all liability in respect of such claim or litigation.
(d) Contribution. If the indemnification provided for in this
Section 2.7 shall for any reason be held by a court to be unavailable to an
indemnified party under subparagraph (a) or (b) hereof in respect of any
loss, claim, damage or liability, or any action in respect thereof, then,
in lieu of the amount paid or payable under subparagraph (a) or (b) hereof,
the indemnified party and the indemnifying party under subparagraph (a) or
(b) hereof shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating the same), (i) in such proportion as is
appropriate to reflect the relative fault of the Company and the
prospective sellers of Registrable Securities covered by the registration
statement which resulted in such loss, claims, damage or liability, or
action in respect thereof, with respect to the statements or omissions
which resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as shall be appropriate to reflect the
relative benefits received by the Company and such prospective sellers from
the offering of the securities covered by such registration statement. No
Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation. Such
prospective sellers' obligations to contribute as provided in this
subparagraph (d) are several in proportion to the relative value of their
respective Registrable Securities covered by such registration statement
and not joint. In addition, no Person shall be obligated to contribute
hereunder any amounts in payment for any settlement of any action or claim
effected without such Person's consent, which consent shall not be
unreasonably withheld.
(e) Other Indemnification. Indemnification and contribution
similar to that specified in the preceding subdivisions of this Section 2.7
(with appropriate modifications) shall be given by the Company and each
seller of Registrable Securities with respect to any required registration
or other qualification of securities under any Federal or state law or
regulation of any governmental authority other than the Securities Act.
(f) Indemnification Payments. The indemnification and
contribution required by this Section 2.7 shall be made by periodic
payments of the amount thereof during the course of the investigation or
defense, as and when bills are received or expense, loss, damage or
liability is incurred. In any case in which it shall be judicially
determined that a party is not entitled to indemnification or contribution,
any payments previously received by such party hereunder shall be promptly
reimbursed.
2.8 Shelf Registration Statements.
-----------------------------
(a) Within 120 days of the date hereof, the Company shall have
filed with the Commission and shall use its best efforts to cause to be
declared effective within 180 days from the date hereof, a Shelf
Registration Statement, relating to the offer and sale of the Registrable
Securities owned by the Holders listed on Schedule A hereto.
(b) The Company will use its best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the
prospectus forming part thereof to be usable by such Holders for a period
of three years from the date such Shelf Registration Statement is first
declared effective by the Commission, or for such shorter period that will
terminate when all Registrable Securities covered by such Shelf
Registration Statement have been sold pursuant thereto or cease to be
outstanding or otherwise to be Registrable Securities.
(c) The Company will pay the Registration Expenses in connection
with any Shelf Registration Statement pursuant to this Section 2.8.
3. Definitions. As used herein, unless the context otherwise requires,
the following terms have the following respective meanings (capitalized
terms used but not defined herein having the meanings set forth in the
Stockholders Agreement):
"Affiliate" shall have the meaning ascribed to such term in Rule 12b-2
of the General Rules and Regulations under the Exchange Act.
"Commission" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
Reference to a particular section of the Securities Exchange Act of 1934,
as amended, shall include a reference to the comparable section, if any, of
any such similar Federal statute.
"Holder" means any holder of Registrable Securities.
"Person" means a corporation, an association, a partnership, an
organization, a business, an individual, a governmental or political
subdivision thereof or a governmental agency.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with Section 2, including, without limitation,
all registration, filing and fees of the National Association of Securities
Dealers, Inc., all listing fees, all fees and expenses of complying with
securities or blue sky laws (including, without limitation, reasonable fees
and disbursements of counsel for the underwriters in connection with blue
sky qualifications of the Registrable Securities), all word processing,
duplicating and printing expenses, messenger and delivery expenses, the
fees and disbursements of counsel for the Company and of its independent
public accountants, including the expenses of "cold comfort" letters
required by or incident to such performance and compliance, any fees and
disbursements of underwriters (including, without limitation, fees and
expenses of counsel to the underwriters) customarily paid by issuers or
sellers of securities and the reasonable fees and expenses of one counsel
to the Selling Holders (selected by Selling Holders representing at least a
majority of the Registrable Securities covered by such registration);
provided, however, that Registration Expenses shall exclude, and the
sellers of the Registrable Securities being registered shall pay,
underwriters' fees and underwriting discounts and commissions and transfer
taxes in respect of the Registrable Securities being registered.
"Registrable Securities" means (i) the shares of Common Stock and the
shares of Common Stock issuable upon conversion of the Series A Preferred
Stock held or otherwise acquired by the Investors (including by way of
issuance upon exercise or conversion of any warrants or other securities)
and (ii) any Common Stock of the Company issuable or issued with respect to
the Common Stock, the Series A Preferred Stock and/or warrants or other
securities referred to in clause (i) by way of a merger, consolidation,
stock split, stock dividend, recapitalization of the Company or similar
transaction. As to any particular Registrable Securities, once issued such
securities shall cease to be Registrable Securities when (a) a registration
statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have been
disposed of in accordance with such registration statement, (b) they shall
have been sold as permitted by, and in compliance with, Rule 144 (or
successor provision) promulgated under the Securities Act, (c) they shall
have been otherwise transferred, new certificates for them not bearing a
legend restricting further transfer under the Securities Act shall have
been delivered by the Company and subsequent public distribution of them
shall not require registration of them under the Securities Act, or (d)
they shall have ceased to be outstanding.
"Required Number of Shares" means shares of Common Stock (or
securities convertible into or exchangeable or exercisable for Common
Stock) representing a total of 1,000,000 shares of Common Stock, subject to
adjustment as provided in Section 12.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. References to a
particular section of the Securities Act of 1933, as amended, shall include
a reference to the comparable section, if any, of any such similar Federal
statute.
"Shelf Registration Statement" means either Shelf Registration
Statement No. 1 or Shelf Registration Statement No. 2.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company filed pursuant to Section 2.8, on an appropriate
form under Rule 415 under the Securities Act, or any similar rule that may
be adopted by the Commission, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Stockholders Agreement" shall mean the Amended and Restated
Stockholders Agreement dated the date hereof between the Company and the
stockholders listed on the signature pages thereof.
4. Rule 144. The Company shall take all actions reasonably necessary
to enable Holders of Common Stock or Series A Preferred Stock to sell such
securities without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144 under the Securities
Act, as such Rule may be amended from time to time, or (b) any similar rule
or regulation hereafter adopted by the Commission including, without
limiting the generality of the foregoing, filing on a timely basis all
reports required to be filed by the Exchange Act. Upon the request of any
Holder of Common Stock or Series A Preferred Stock, the Company will
deliver to such Holder a written statement as to whether it has complied
with such requirements.
5. Amendments and Waivers. This Agreement may be amended with the
consent of the Company and the Company may take any action herein
prohibited, or omit to perform any act herein required to be performed by
it, only if the Company shall have obtained the written consent to such
amendment, action or omission to act, of :
(i) the Holders of at least a majority of the Registrable
Securities (calculated on a fully diluted basis);
(ii) GE Capital Equity Investments, Inc. (collectively, with
General Electric Capital Corporation, "GECC"), in the event GECC
beneficially owns at least 2,000,000 shares of Registrable Securities; and
(iii) TH Xxx.Xxxxxx Internet Partners, L.P. and TH Xxx.Xxxxxx
Internet Parallel Partners, L.P. (collectively with their affiliates,
"THLi"), in the event THLi beneficially owns at least 2,000,000 shares of
Registrable Securities.
Each beneficial owner of any Registrable Securities at the time or
thereafter outstanding shall be bound by any consent authorized by this
Section 5, whether or not such Registrable Securities shall have been
marked to indicate such consent.
6. Nominees for Beneficial Owners. In the event that any Registrable
Securities are held by a nominee for the beneficial owner thereof, the
beneficial owner thereof may, at its election in writing delivered to the
Company, be treated as the Holder of such Registrable Securities for
purposes of any request or other action by any Holder or Holders pursuant
to this Agreement or any determination of any number or percentage of
Registrable Securities held by any Holder or Holders contemplated by this
Agreement. If the beneficial owner of any Registrable Securities so elects,
the Company may require assurances reasonably satisfactory to it of such
owner's beneficial ownership of such Registrable Securities.
7. Notices. All communications provided for hereunder shall be sent by
courier or other overnight delivery service, shall be effective upon
receipt, and shall be addressed as follows:
(a) if to an Investor, at such address as the Investor shall have
furnished to the Company in writing;
(b) if to any other Holder , at the address that such Holder
shall have furnished to the Company in writing, or, until any such other
holder so furnishes to the Company an address, then to and at the address
of the last Holder of such Registrable Securities who has furnished an
address to the Company; or
(c) if to the Company, addressed to it at Xxxxxx'x Furniture,
Inc. 000 Xxxxx Xxxxx Xxxxxx, Xxxx, XX 00000-0000, Attention: Xxxxxx X.
Xxxxxx, Esq. or at such other address as the Company shall have furnished
to each Holder at the time outstanding.
8. Assignment; Calculation of Interests in Registrable Securities.
--------------------------------------------------------------
(a) This Agreement shall be binding upon and inure the benefit of
and be enforceable by the parties hereto and, with respect to the Company,
its respective successors and assigns and, with respect to the Investors,
any beneficial owner of any Registrable Securities, subject to the
provisions respecting the minimum number or proportion of shares of
Registrable Securities required in order to be entitled to certain rights,
or take certain actions, contained herein.
(b) All references to Registrable Securities shall be calculated
as if all shares of Series A Preferred Stock had been converted into shares
of Common Stock as of the date of such calculation; provided, that any
proportion of the Registrable Securities necessary to be determined in
connection with a specific registration shall be calculated based upon the
number of Registrable Securities participating in such registration only
(assuming any shares of Series A Preferred Stock had been converted into
shares of Common Stock.)
9. Descriptive Headings. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only
and shall not limit or otherwise affect the meaning hereof.
10. Governing Law; Consent to Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of New
York, including, without limitation, Sections 5-1401 and 5-1402 of the New
York General Obligations Law and New York Civil Practice Laws and Rules
327(b). Each of the parties hereto hereby irrevocably and unconditionally
consents to submit to the exclusive jurisdiction of the courts of the State
of New York and of the United States of America, in each case located in
the County of New York, for any action, proceeding or investigation in any
court or before any governmental authority ("litigation") arising out of or
relating to this Agreement and the transactions contemplated hereby (and
agrees not to commence any litigation relating thereto except in such
courts), and further agrees that service of any process, summons, notice or
document by U.S. Registered Mail to its respective address set forth in
this Agreement shall be effective service of process for any litigation
brought against it in any such court. Each of the parties hereto hereby
irrevocably and unconditionally waives any objection to the laying of venue
of any litigation arising out of this Agreement or the transactions
contemplated hereby in the courts of the State of New York or the United
States of America, in each case located in the County of New York, and
hereby further irrevocably and unconditionally waives and agrees not to
plead or claim in any such court that any such litigation brought in any
such court has been brought in an inconvenient forum. Each of the parties
irrevocably and unconditionally waives, to the fullest extent permitted by
applicable law, any and all rights to trial by jury in connection with any
litigation arising out of or relating to this Agreement or the transactions
contemplated hereby.
11. No Inconsistent Agreements. The Company will not hereafter enter
into any agreement with respect to its securities which is inconsistent
with the rights granted to the Holders in this Agreement.
12. Recapitalizations, etc. In the event that any capital stock or
other securities are issued in respect of, in exchange for, or in
substitution of, any Registrable Securities by reason of any
reorganization, recapitalization, reclassification, merger, consolidation,
spin-off, partial or complete liquidation, stock dividend, split-up, sale
of assets, distribution to stockholders or combination of the shares of
Registrable Securities or any other change in the Company's capital
structure, appropriate adjustments shall be made in this Agreement so as to
fairly and equitably preserve, to the extent practicable, the original
rights and obligations of the parties hereto under this Agreement. At the
request of the Selling Holders of a majority of Registrable Securities in
connection with any registration pursuant to Section 2.1 hereof, the
Company will effect such adjustments to the outstanding Common Stock, by
way of stock split or stock dividend as the Selling Holders may reasonably
request to facilitate the registration and sale of the Common Stock.
13. Attorneys' Fees. In any action or proceeding brought to enforce
any provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the prevailing party to such action or proceeding
shall be entitled to recover reasonable attorneys' fees in addition to any
other available remedy.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be executed and delivered by their respective officers
thereunto duly authorized as of the date first above written.
XXXXXX'X FURNITURE, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
GE CAPITAL EQUITY INVESTMENTS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx, Xx.
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx, Xx.
Title: Senior Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxxx, Xx.
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx, Xx.
Title: Department Operations Manager
PERMAL CAPITAL MANAGEMENT, INC.
By: /s/ Xxxxxx X. XxXxxxx
-------------------------------------
Name:
Title:
PERMAL SERVICES, INC.
By: /s/ Xxxxxx X. XxXxxxx
-------------------------------------
Name:
Title:
PERMAL CAPITAL PARTNERS, L.P.
By: PERMAL MANAGEMENT
CORPO RATION, its Investment
Manager
By: /s/ Xxxxxx X. XxXxxxx
-------------------------------------
Name:
Title:
PERMAL ASSET MANAGEMENT
By: /s/ Xxxxxx X. XxXxxxx
-------------------------------------
Name:
Title:
PERMAL SPECIAL OPPORTUNITIES, LTD.
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name:
Title:
JAPAN OMNIBUS LTD.
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name:
Title:
XXXX X. XXXXXXXX
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
XXXXX XXXXXX SOUEDE
By: /s/ Xxxxx Xxxxxx Souede
-------------------------------------
XXXXXX X. XXXXXXX
By: /s/ Xxxxxx X. XxXxxxx
-------------------------------------
XXXXXX X. AND XXXXX X. XXXXXXX
By: /s/ Xxxxxx X. XxXxxxx
-------------------------------------
Name: Xxxxxx X. XxXxxxx
By:
-------------------------------------
Name: Xxxxx X. XxXxxxx
UNITED GULF BANK (B.S.C.) E.C.
By:
-------------------------------------
Name:
Title:
KUWAIT INVESTMENT PROJECTS COMPANY
By:
-------------------------------------
Name:
Title:
ATCO HOLDINGS, LTD.
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------------
Name:
Title:
ATCO DEVELOPMENT, INC.
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------------
Name:
Title:
PILOT HOLDINGS, L.P.
By: SHED INVESTMENTS, LLC, its General
Partner
By: /s/ Xxxxxx X. XxXxxxx
-------------------------------------
Name: Xxxxxx X. XxXxxxx
Title: Managing Member
XXXXXXX XXXXX XXXXXX TRUST I
By:
-------------------------------------
Name:
Title:
XXXXXXX XXXX XXXXXX TRUST I
By:
-------------------------------------
Name:
Title:
XXXXXXX XXXX XXXXXX TRUST I
By:
-------------------------------------
Name:
Title:
XXXXXXX XXXXXX XXXXXX TRUST I
By:
-------------------------------------
Name:
Title:
XXXXXX FAMILY TRUST
By:
-------------------------------------
Name:
Title:
XX. XXXXXX X. XXXXXX, XX.
By:
-------------------------------------
XXXXXX X. XXXXXX
By:
-------------------------------------
ASCEND PARTNERS, L.P.
By:
-------------------------------------
Name:
Title:
XXXXX XXXXX
By:
-------------------------------------
XXXXXXX REVOCABLE TRUST
By:
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Trustee
By:
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Trustee
XXXXXXX XXXXXXX XXXXXX - XXX
By:
-------------------------------------
Name:
Title:
XXXXXXX X. XXXXX
By:
-------------------------------------
XXXXX X. XXXXX, UTMA, CA
By:
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Custodian
XXXXX X. XXXXX, UTMA, CA
By:
-------------------------------------
Name:
Title:
XXXX X. XXX
By:
-------------------------------------
XXXX XXXXXX
By:
-------------------------------------
DIAMOND A. PARTNERS, L.P.
By:
-------------------------------------
Name:
Title:
J. XXXXXX XXXXXXX
By:
-------------------------------------
XXXXX XXXXXXXXX - XXX
By:
-------------------------------------
Name:
Title:
XXXXXXX XXXXXXXXX - XXX
By:
-------------------------------------
Name:
Title:
XXXXXXX X. AND XXXXXXXX X. XXXXXX
By:
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
By:
-------------------------------------
Name: Xxxxxxxx X. Xxxxxx
XXXXXXXX & XXXXX XXXXXX FAMILY TRUST
By:
-------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Trustee
By:
-------------------------------------
Name: Xxxxx Xxxxx Xxxxxx
Title: Trustee
XXXXXX X. XXXXXX
By:
-------------------------------------
Name:
Title:
XXXXXX X. XXXXXX
By:
-------------------------------------
XXXXXX X. XXXXXX
By:
-------------------------------------
XXXXXXX XXXXX
By:
-------------------------------------
XXXXXXX XXXXXXX TRUST
By:
-------------------------------------
Name:
Title:
XXXXX XXXXXXX
By:
-------------------------------------
XXXXXXX X. XXXXXX
By:
-------------------------------------
XXXXXXX X. XXXXXX
By:
-------------------------------------
XXXXXXX X. XXXXXX PROFESSIONAL
CORPORATION DEFINED BENEFIT
PLAN
By:
-------------------------------------
Name:
Title:
XXXX XXXXXXX
By:
-------------------------------------
XXXXXX XXXXXX
By:
-------------------------------------
XXXXXXXX X. XXXXXXXXX
By:
-------------------------------------
XXXXX XXXX
By:
-------------------------------------
XXXXXX LONDON
By:
-------------------------------------
XXXXXXX X. XXXXXX
By:
-------------------------------------
THE MUHL FAMILY TRUST
By:
-------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Trustee
By:
-------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Trustee
PACIFIC SECURITY GROUP, INC.
By:
-------------------------------------
Name:
Title:
POINTE INVESTMENTS CAPITAL, LTD.
By:
-------------------------------------
Name:
Title:
POLLAT, XXXXX & CO., INC.
By:
-------------------------------------
Name:
Title:
XXXXX AND XXXX XXXXXXXXX
By:
-------------------------------------
Name: Xxxxx Xxxxxxxxx
By:
-------------------------------------
Name: Xxxx Przbocki
XXXXXXX X. XXXXXXX, XX.
By:
-------------------------------------
XXXXXXX X. XXXXXXX, III
By:
-------------------------------------
G. XXXXX XXXXXXX.
By:
-------------------------------------
LORD XXXXX XXXXXXX
By:
-------------------------------------
XXXXXXX XXXXXXX XXXXXXX
By:
-------------------------------------
WAVE ENTERPRISES, INC.
By:
-------------------------------------
Name:
Title:
XXX XXXXXXXXXX
By:
-------------------------------------
Name:
Title:
X.X. XXXXX
By:
-------------------------------------
Name:
Title:
ZAXIS PARTNERS, L.P.
By:
-------------------------------------
Name:
Title:
TH XXX.XXXXXX INTERNET PARTNERS, L.P.
By: TH XXX.XXXXXX INTERNET FUND
ADVISORS, L.P., its General Partner
By: TH XXX.XXXXXX INTERNET FUND
ADVISORS, LLC, its General Partner
By: /s/ Xxxxxxxxx Xxx
-------------------------------------
Name: Xxxxxxxxx Xxx
Title: Vice President
TH XXX.XXXXXX INTERNET PARALLEL
PARTNERS, L.P.
By: TH XXX.XXXXXX INTERNET FUND
ADVISORS, L.P., its General Partner
By: TH XXX.XXXXXX INTERNET FUND
ADVISORS, LLC, its General Partner
By: /s/ Xxxxxxxxx Xxx
-------------------------------------
Name: Xxxxxxxxx Xxx
Title: Vice President
SCHEDULE A
-----------
Ascend Partners, L.P.
Xxxxx Xxxxx
Xxxxxxx Revocable Trust
Xxxxxxx Xxxxxxx Xxxxxx - XXX
Xxxxxxx X. Xxxxx
Xxxxx X. Xxxxx, UTMA, CA
Xxxxx X. Xxxxx, UTMA, CA
Xxxx X. Xxx
Xxxx Xxxxxx
Diamond A. Partners, L.P.
J. Xxxxxx Xxxxxxx
Xxxxx Xxxxxxxxx - XXX
Xxxxxxx Xxxxxxxxx - XXX
Xxxxxxx X. and Xxxxxxxx X. Xxxxxx
Xxxxxxxx & Xxxxx Xxxxxx Family Trust
Xxxxxx X. Xxxxxx
Xxxxxxx Xxxxx Xxxxxx Trust I
Xxxxxxx Xxxx Xxxxxx Trust I
Xxxxxx Family Trust
Xxxxxxx Xxxx Xxxxxx Trust I
Xxxxxxx Xxxxxx Xxxxxx Trust I
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xx. Xxxxxx Xxxxxx, Xx.
Xxxxxx X. Xxxxxx
Xxxxxxx Xxxxx
Xxxxxxx Xxxxxxx Trust
Xxxxx Xxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx Professional Corporation Defined Benefit Plan
Xxxx Xxxxxxx
Xxxxxx Xxxxxx
Xxxxxxxx X. Xxxxxxxxx
Xxxxx Xxxx
Xxxxxx London
Xxxxxxx X. Xxxxxx
The Muhl Family Trust
Pacific Security Group, Inc.
Pilot Holdings, L.P.
Pointe Investments Capital, Ltd.
Pollat, Xxxxx & Co., Inc.
Xxxxx and Xxxx Xxxxxxxxx
Xxxxxxx X. Xxxxxxx, Xx.
Xxxxxxx X. Xxxxxxx, III
G. Xxxxx Xxxxxxx.
Lord Xxxxx Xxxxxxx
Xxxxxxx Xxxxxxx Xxxxxxx
Wave Enterprises, Inc.
Xxx Xxxxxxxxxx
X.X. Xxxxx
Zaxis Partners, L.P.
