Exhibit 3(a)(i)
TCI SOLUTIONS, INC.
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
DATED AS OF
DECEMBER 21, 2001
TABLE OF CONTENTS
Page
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ARTICLE I GENERAL TRANSFER PROVISIONS........................................2
1.1 General Restrictions..................................................2
1.2 Mechanics of Transfer.................................................3
1.3 Pledge and Hypothecation Prohibited...................................3
1.4 Stock Issuance and Option Grant.......................................3
ARTICLE II CORPORATE GOVERNANCE...............................................3
2.1 Board of Directors....................................................3
2.2 Board Committees......................................................5
2.3 Other Voting Agreements...............................................5
2.4 Restrictions on Other Agreements......................................7
ARTICLE III TRANSFER...........................................................7
3.1 General Restrictions..................................................7
3.2 Company Right of First Refusal........................................7
3.3 Preferred Holders Right of First Refusal..............................8
3.4 Preferred Holders Tag-Along Right.....................................8
3.5 Right to Transfer to Third Party.....................................10
ARTICLE IV CERTIFICATES......................................................10
4.1 Restrictive Endorsements.............................................10
4.2 Replacement Certificates.............................................11
ARTICLE V MISCELLANEOUS.....................................................11
5.1 Representations......................................................11
5.2 Equitable Relief.....................................................11
5.3 Notices..............................................................11
5.4 Amendment and Waiver.................................................11
5.5 Delays or Omissions..................................................12
5.6 Counterparts.........................................................12
5.7 Governing Law........................................................12
5.8 Filing...............................................................12
5.9 Termination..........................................................13
5.10 Benefit and Binding Effect...........................................13
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TABLE OF CONTENTS
(continued)
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5.11 Severability.........................................................13
5.12 Assignment of Rights.................................................13
ARTICLE VI RIGHT OF PARTICIPATION............................................13
6.1 Participation Right..................................................13
6.2 Written Notice.......................................................14
6.3 Right to Transfer....................................................15
ARTICLE VII Definitions.......................................................15
ARTICLE VIII ADDITIONAL COVENANTS OF THE COMPANY...............................16
8.1 Financial Statements.................................................16
8.2 Right of Inspection..................................................17
8.3 Reimbursement of Directors' Expenses.................................17
8.4 Key-Man Life Insurance...............................................18
8.5 Vesting of Options...................................................18
8.6 Use of Proceeds for Sale of Series B Preferred Stock.................18
8.7 Approval of Reduction of Number of Shares of Authorized Series A
Preferred Stock......................................................18
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TCI SOLUTIONS, INC.
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
THIS AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (this "AGREEMENT")
is made and entered into as of this 21st day of December, 2001 (the "EFFECTIVE
DATE"), by and among TCI Solutions, Inc., a Delaware corporation (the
"COMPANY"), the stockholders and option holders listed on Schedule I hereto
(collectively, the "MANAGEMENT SHAREHOLDERS"), the holders of Series A Preferred
Stock of the Company listed on Schedule I hereto (collectively, the "SERIES A
INVESTORS"), and the purchasers listed on Schedule I hereto (collectively, the
"SERIES B INVESTORS"). The Management Shareholders, the transferees thereof
permitted under this Agreement and any Persons who become subject to this
Agreement in accordance with Section 4.2 hereof are referred to herein,
collectively, as the "MANAGEMENT HOLDERS"; the Series A Investors and their
transferees are referred to herein, collectively, as the "SERIES A HOLDERS"; the
Series B Investors and their transferees are referred to herein, collectively,
as the "SERIES B HOLDERS"; the Series A Holders and Series B Holders are
referred to herein, collectively, as the "PREFERRED HOLDERS"; and the Management
Holders and the Preferred Holders are referred to herein, collectively, as the
"HOLDERS." Unless otherwise defined herein, all capitalized terms used in this
Agreement shall have the meanings assigned to such terms in Article VII hereof.
B A C K G R O U N D
A. The Company, Management Shareholders and Series A Investors
entered into that certain Shareholders Agreement as of July 14, 1999 (the
"ORIGINAL AGREEMENT").
B. The Company and the Series B Investors have entered into that
certain Stock Purchase Agreement of even date herewith (the "Stock Purchase
Agreement"), pursuant to which the Company will issue and sell Series B
Redeemable Convertible Participating Preferred Stock (the "SERIES B PREFERRED
STOCK") to the Series B Investors.
C. As a condition precedent to purchasing shares of Series B
Preferred Stock, the Series B Investors have requested that the Company,
Management Shareholders and Series A Investors amend and restate the Original
Agreement in its entirety as set forth herein.
A G R E E M E N T
In consideration of the agreements and mutual covenants set forth
herein, the parties agree as follows:
ARTICLE I
GENERAL TRANSFER PROVISIONS
1.1 GENERAL RESTRICTIONS. As long as this Agreement shall remain in
force, subject to the provisions contained in this Article I and in Article III,
no shares of capital stock of the Company (the "CAPITAL STOCK") or options to
acquire Capital Stock (the "OPTIONS") or Capital Stock acquired upon the
exercise of Options (the "OPTION STOCK" and, together with the Capital Stock and
Options, the "STOCK") now owned or hereafter acquired by any of the Management
Holders may be sold, assigned, transferred, given away or in any way disposed of
(any of the foregoing being hereinafter referred to as a "TRANSFER") unless:
(i) the individual, firm, corporation, partnership, trust or
other entity (the "PERSON") in whose favor such Transfer is made (other
than the Company or the underwriters or other purchasers in a public
offering registered under the Securities Act of 1933, as amended and as
hereafter amended from time to time (the "SECURITIES ACT")) (A) is a
Permitted Transferee (as defined below) or is being Transferred the
Stock pursuant to Article III hereof and (B) delivers to the Company a
written acknowledgment that the Stock to be Transferred is subject to
this Agreement, and that such Person and such Person's
successors-in-interest are bound hereby and thereby. For purposes of
this Agreement, "PERMITTED TRANSFEREE" shall mean (a) any Holder, (b)
the guardian, conservator, heir or estate of any Holder, (c) any
corporation, partnership or limited liability company all of the
outstanding securities and other interests of which are owned by a
Holder or Holders or members of the immediate family of a Holder, (d)
any individual or corporation that owns, directly or indirectly, all of
the outstanding securities and other interests of a Holder or the
guardian, conservator or estate of any such individual as of the date
hereof, (e) any member of the immediate family of a Holder or any trust,
all of the beneficiaries of which are a Holder or members of the
immediate family of a Holder, or (f) any affiliate controlled by, or
under common control with, a Holder;
(ii) such Transfer shall be made (a) pursuant to an effective
registration under the Securities Act or an exemption from the
registration requirements thereof and (b) in accordance with applicable
state law and the terms of this Agreement; and
(iii)prior to any such Transfer, the Holder proposing to make
such Transfer shall give the Company (a) written notice describing the
manner and circumstances of the proposed Transfer and (b) if reasonably
requested by the Company, a written opinion in form and substance
reasonably satisfactory to the Company of legal counsel reasonably
satisfactory to the Company to the effect that the proposed Transfer may
be effected without registration under the Securities Act or any
applicable state law.
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Any attempted Transfer other than in accordance with this Agreement shall be
void, and the Company shall refuse to recognize any such Transfer and shall not
reflect on its records any change in record ownership of the shares of Stock
pursuant to any such Transfer.
1.2 MECHANICS OF TRANSFER. Any Management Holder that Transfers
Stock shall (i) take all such actions and execute and deliver all such documents
as may be necessary or reasonably requested by the Company in order to
consummate the Transfer of such Stock and (ii) pay to the Company such amounts
as may be required for any applicable stock transfer taxes.
1.3 PLEDGE AND HYPOTHECATION PROHIBITED. No Management Holder shall
in any manner pledge, hypothecate or encumber, or grant options with respect to,
his, her or its Stock.
1.4 STOCK ISSUANCE AND OPTION GRANT. The Company shall not issue any
shares of Capital Stock or other securities convertible into or exchangeable for
Capital Stock, or grant any options, warrants, or other rights to acquire,
directly or indirectly, any shares of Capital Stock, without the consent of the
majority approval of the Board of Directors of the Company (the "BOARD"),
including majority approval of the Preferred Directors (as defined herein) and
the Required Preferred Percentage (as defined below); provided, however, that
grants of options, restricted stock awards or other rights pursuant to the
Company's 1993 Equity Incentive Plan, 1993 Non-Employee Directors' Stock Option
Plan, 2001 Equity Incentive Plan, 2001 Non-Employee Directors' Stock Option
Plan, or any other employee stock option plan that has been approved by the
Board and the Required Preferred Percentage shall only require the majority
approval of the Board, including majority approval of the Preferred Directors.
ARTICLE II
CORPORATE GOVERNANCE
2.1 BOARD OF DIRECTORS. Each of the Holders agrees to vote all of
the Common Stock and Preferred Stock now or hereafter owned by it or which it
has a right to vote and to take all such other action as may be necessary
(including by written consent) so that each of the following occurs and remains
in effect throughout the term of this Agreement:
(a) The Company shall be governed by the Board, which shall
consist of seven (7) members. The Board shall have regularly scheduled
monthly meetings (in-person quarterly meetings and telephonic monthly
meetings) until such time as the Board unanimously determines that
monthly meetings are not required.
(b) (i) The Series B Holders shall be entitled to nominate and
have elected to the Board two (2) directors (the "SERIES B DIRECTORS"),
one of whom shall be designated by InnoCal II, L.P. ("INNOCAL") so long
as InnoCal owns at least 1,750,000 shares of Series B Preferred Stock,
as adjusted for stock dividends, splits, recapitalizations, combinations
and the like after the Effective Date (the "INNOCAL DESIGNEE"), and one
of whom shall be designated by Productivity Fund IV, L.P.
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("PRODUCTIVITY") so long as Productivity and/or its affiliates owns at
least 1,750,000 shares of Series B Preferred Stock, as adjusted for
stock dividends, splits, recapitalizations, combinations and the like
after the Effective Date (the "PRODUCTIVITY DESIGNEE"). The Series B
Directors may be removed or replaced, with or without cause, by the
affirmative vote of Series B Holders representing a majority of the then
outstanding shares of Series B Preferred Stock; provided, however, that
the InnoCal Designee shall be removed or replaced only by InnoCal so
long as InnoCal owns at least 1,750,000 shares of Series B Preferred
Stock, as adjusted for stock dividends, splits, recapitalizations,
combinations and the like after the Effective Date; and provided,
further, that the Productivity Designee shall be removed or replaced
only by Productivity so long as Productivity and its affiliates own at
least 1,750,000 shares of Series B Preferred Stock, as adjusted for
stock dividends, splits, recapitalizations, combinations and the like
after the Effective Date. Notwithstanding the foregoing, at all times
during which one of the Series A Directors is, at Productivity's
election, an officer, director or general partner of or other person
acceptable to Productivity, Productivity shall nominate as the
Productivity Designee an independent industry individual (a
"Productivity Independent Designee") who shall be approved by the vote
of at least 14,000,000 shares of Series B Preferred Stock.
Notwithstanding the foregoing, if an entity or individual (excluding
InnoCal or Productivity) shall acquire at least 5,000,000 shares of
Series B Preferred Stock (a "New Series B Holder"), then for so long as
the New Series B Holder owns at least 1,750,000 shares of Series B
Preferred Stock, as adjusted for stock dividends, splits,
recapitalizations, combinations and the like, then at the instruction of
the Board of Directors the Productivity Independent Designee shall be
replaced by a Board designee selected by the New Series B Holder (the
"New Series B Holder Director"). The New Series B Holder Director may be
removed or replaced, with or without cause, by the affirmative vote of
Series B Holders representing a majority of the then outstanding shares
of Series B Preferred Stock; provided, however, that the New Series B
Holder Director shall be removed or replaced only by the New Series B
Holder so long as New Series B Holder and its affiliates own at least
1,750,000 shares of Series B Preferred Stock, as adjusted for stock
dividends, splits, recapitalizations, combinations and the like.
(ii) Notwithstanding the foregoing, in the event Productivity or
any of its affiliates are no longer entitled to nominate and have
elected any Series A Director, then the Company and the Holders shall
amend this Agreement and the Second Amended and Restated Certificate of
Incorporation of the Company to cause the number of members of the Board
to be increased to nine (9) members, three (3) of whom shall be the
Series B Directors. In such event, the Series B Directors shall include
the InnoCal Designee, the New Series B Holder Director and one designee
of Productivity without need for approval from the remaining Series B
Holders.
(c) The Series A Holders shall be entitled to nominate and have
elected to the Board two (2) directors (the "SERIES A DIRECTORS"). The
Series A Directors may be removed or replaced, with or without cause, by
the affirmative vote of Series A
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Holders representing at least two-thirds (2/3) of the then outstanding
shares of Series A Preferred Stock. The Series B Directors and Series A
Directors are sometimes referred to herein as the "PREFERRED DIRECTORS."
(d) The holders of Common Stock, including the Preferred Holders
voting on an as converted to Common Stock basis, shall be entitled to
nominate and have elected to the Board three (3) directors (the "JOINT
DIRECTORS"); provided, however, that the Preferred Holders and
Management Holders shall vote to elect the Company's Chief Executive
Officer and two (2) independent industry individuals who are nominated
by a majority of the directors then in office to serve as the Joint
Directors. At the request of a majority of the Board, the Preferred
Holders and Management Holders shall vote to remove or replace the Joint
Directors who are independent industry individuals.
2.2 BOARD COMMITTEES.
(a) COMPENSATION COMMITTEE. The Board shall establish a
Compensation Committee, which shall consist of no more than three (3)
directors, one of whom shall be the InnoCal Designee and one of whom
shall be the Productivity Designee. No director who is an employee of
the Company shall serve on the Compensation Committee. The Compensation
Committee shall recommend management compensation, Company benefit plans
and general equity incentive plans to the Board for its consideration
and approval. All management compensation matters (including benefits,
options, bonuses, salaries, etc.) are to be determined by the Board
after consultation with the Compensation Committee.
(b) AUDIT COMMITTEE. The Board shall establish an Audit
Committee, which shall consist of no more than three (3) directors, one
of whom shall be the InnoCal Designee and one of whom shall be the
Productivity Designee. No director who is an employee of the Company
shall serve on the Audit Committee. The Audit Committee shall oversee
the Company's financial reporting, accounting procedures, engagement of
independent accounts and investment policies.
2.3 OTHER VOTING AGREEMENTS. On or prior to the sale of shares of
Series B Preferred Stock to InnoCal, the Company is authorizing 26,000,000
shares of Series B Preferred Stock and issuing 17,200,000 of such shares. Unless
consented to in writing by the "REQUIRED PREFERRED PERCENTAGE" (as defined in
the Company's Second Amended and Restated Certificate of Incorporation), the
parties hereto hereby agree as follows with respect to the 8,800,000 authorized
but unissued shares of Series B Preferred Stock (the "RESERVED SERIES B
SHARES"):
(a) Reserved Series B Shares. The Company shall be entitled to
issue the Reserved Series B Shares at any time prior to April 1, 2002,
only to (i) venture funds acceptable to InnoCal and Productivity (after
InnoCal and Productivity have invested in the Company), the Company and
the Series A Directors, (ii) up to 2,000,000 shares to Accredited (as
defined below) holders of the Company's Common Stock (other than to
Management Holders) and to Accredited Persons which would be Permitted
Transferees
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of a Common Stockholder (other than Management Holders) and/or (iii)
Series A Investors and any Person which would be a Permitted Transferee
of a Series A Investor. For purposes herein, the term "ACCREDITED" shall
mean accredited investors as defined in Rule 501 of Regulation D
promulgated under the Securities Act of 1933, as amended.
(b) Option Pool. As of the Effective Date, the Company has
reserved 5,210,000 shares of Common Stock for issuance pursuant to its
2001 Equity Incentive Plan (the "Plan"). The Company shall reserve one
additional share of Common Stock for issuance pursuant to the Plan for
each four Reserved Series B Shares the Company issues, up to a maximum
of 985,000 additional shares of Common Stock for the Company's Plan, so
that the total number of shares the Company will have reserved under the
Plan shall not exceed 6,195,000 shares. For example, if the Company
issued 5,000,000 or more Reserved Series B Shares, 985,000 additional
shares of Common Stock would be added to the Company's Plan.
(c) Required Preferred Percentage. The following provisions shall
apply following an investment by InnoCal: In the first instance, upon
the issuance of at least 5,000,000 Reserved Series B Shares to Persons
(other than InnoCal) who would not have been a Permitted Transferee of
any Company stockholders prior to the Effective Date, and thereafter
upon the issuance of any Reserved Series B Shares, the 85% Preferred
Stock voting requirement in the definition of Required Preferred
Percentage in the Company's Certificate of Incorporation shall in each
such instance be reduced to a percentage determined as follows: 99%
minus the greater of (i) the percentage obtained by dividing the number
of shares of Common Stock into which the Series B Preferred Stock held
by InnoCal is then convertible by the number of shares of Common Stock
into which the Preferred Stock outstanding immediately after the
issuance of such Reserved Series B Shares is then convertible, or (ii)
the percentage obtained by dividing the aggregate number of shares of
Common Stock into which the Reserved Series B Shares held after such
issuance by Persons (other than InnoCal) who would not have been a
Permitted Transferee of any Company stockholder on the Effective Date is
then convertible by the number of shares of Common Stock into which the
Preferred Stock outstanding immediately after the issuance of such
Reserved Series B Shares is then convertible. For example, if the
Company issued 8,000,000 Reserved Series B Shares to an unaffiliated
venture fund, and InnoCal had purchased 7,000,000 shares of Series B
Preferred Stock, then the Company's Certificate of Incorporation would
be amended to change the Preferred Stock voting requirement in the
definition of Required Preferred Percentage to 76.98%. If the Required
Preferred Percentage is reduced in accordance with this Section 2.3(c),
(i) the Company and the Holders agree to take all action necessary to
amend the Company Certificate of Incorporation to reflect the reduction
in the Required Preferred Percentage and (ii) prior to the time of
effectiveness of such amendment, the Company and the Holders agree not
to assert any rights inconsistent with the new Required Preferred
Percentage.
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(d) Actions. Each party hereto agrees to take, and to cause those
persons within its control to take, all actions as may be reasonable and
appropriate to effectuate the provisions of this Section 2.3.
2.4 RESTRICTIONS ON OTHER AGREEMENTS. No Holder shall grant any
proxy, or enter into or agree to be bound by any voting trust with respect to
Stock or enter into any stockholders agreement or arrangement of any kind with
any Person with respect to Stock on terms inconsistent with the provisions of
this Agreement, including, but not limited to, agreements or arrangements with
respect to the acquisition, disposition or voting of Stock in a manner
inconsistent with this Agreement.
ARTICLE III
TRANSFER
3.1 GENERAL RESTRICTIONS. In the event any Management Holder wishes
to transfer any Stock, directly or indirectly, to any Person (such Person being
hereinafter referred to as a "THIRD PARTY"), other than a Permitted Transferee
who has agreed in writing, filed with the Secretary of the Company, and
delivered to each of the Holders, to be bound by the terms of this Agreement, or
the Company has offered to repurchase any Stock from any Management Holder (for
purposes of Sections 3.3 or 3.4, the Company is to be included as a Third
Party), it must first comply with all of the provisions of this Article III;
provided, however, that no Management Holder shall transfer more than 10% of his
or her Stock in any twelve-month period beginning July 14, 2001.
3.2 COMPANY RIGHT OF FIRST REFUSAL. Subject to any superior right
granted to or by the Company as set forth in the Company's Bylaws, if any
Management Holder shall desire to Transfer any of its Stock to a Third Party, it
shall first deliver to the Company and to each of the Preferred Holders written
notice of the proposed transaction (the "FIRST OFFEROR'S NOTICE") no less than
fifteen (15) Business Days prior to the expected date of such Transfer,
identifying the proposed transferee, accompanied by a copy of a binding bona
fide offer to purchase such Stock signed by such transferee and setting forth:
(i) the name and address of the Third Party, (ii) the number of shares of Stock
proposed to be Transferred, (iii) the proposed amount and form of consideration
and terms and conditions of payment offered by the Third Party (the "THIRD PARTY
TERMS") and (iv) that the Third Party has been informed of the rights of first
refusal and tag-along rights provided for in this Article III and has agreed to
purchase shares of Stock in accordance with the terms hereof. A First Offeror's
Notice shall be deemed an offer by such selling Management Holder to the
Company, which may be accepted, in whole but not in part, by vote of the Board,
excluding any director who is such selling Management Holder or any affiliate
thereof, within ten (10) Business Days of the receipt of such First Offeror's
Notice, on the same terms and conditions and at the same price at which such
selling Management Holder is proposing to transfer such shares or other
securities to such Third Party. The purchase of any such shares or other
securities by the Company shall be settled within ten (10) Business Days of the
date of the acceptance of the offer and the purchase price shall be paid to the
selling
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Management Holder on substantially the same terms and conditions as contained in
the First Offeror's Notice (provided that if the terms of payment involve
consideration other than cash, the Board of Directors of the Company shall
determine, in good faith and on a reasonable basis, the fair market value of
such consideration and such fair market value shall be the price payable in cash
by the Company). In the event that the Company does not accept the offer set
forth in the First Offeror's Notice within ten (10) Business Days, the Company
shall, by the last day of such period, give written notice of that fact to all
of the Preferred Holders (the "SECOND OFFEROR'S NOTICE"). If the Company does
not timely accept the offer set forth in the First Offeror's Notice to purchase
all of such Stock, then the selling Management Holder shall comply with Section
3.3 as provided below.
3.3 PREFERRED HOLDERS RIGHT OF FIRST REFUSAL. In the event that the
Company does not accept all of the offer pursuant to the terms of Section 3.2,
then the Second Offeror's Notice shall be deemed an offer by such selling
Management Holder to the Preferred Holders, pro rata in proportion to the number
of shares of Common Stock issuable upon conversion of the Preferred Stock held
by them, which may be accepted by the Preferred Holders or any of them, pro rata
or in such other proportion as the accepting Preferred Holders may agree among
themselves, in whole but not in part, within five (5) Business Days of the
receipt of such Second Offeror's Notice, on the same terms and conditions and at
the same price at which such selling Management Holder is proposing to transfer
such shares or other securities to such Third Party. The purchase of any such
shares or other securities by the Preferred Holders shall be settled within ten
(10) Business Days of the date of the acceptance of the offer and the purchase
price shall be paid to the selling Management Holder on substantially the same
terms and conditions as contained in the Second Offeror's Notice (provided that
if the terms of payment involve consideration other than cash, the Board of
Directors of the Company shall determine, in good faith and on a reasonable
basis, the fair market value of such consideration and such fair market value
shall be the price payable in cash by the Preferred Holders). If the Preferred
Holders do not timely, or elect not to, accept the offer set forth in the Second
Offeror's Notice to purchase all of such Stock, then the selling Management
Holder shall comply with Section 3.4 as provided below.
3.4 PREFERRED HOLDERS TAG-ALONG RIGHT.
(a) TAG ALONG. In the event that the Company and the Preferred
Holders do not accept the offer pursuant to the terms of Sections 3.2
and 3.3, respectively, then all of the Preferred Holders shall have the
right to require the Third Party to purchase from each Preferred Holder
that number of shares of Stock (and the selling Management Holder shall
reduce the number of its shares of Stock to be sold by a corresponding
amount), which is equal to the product of the total number of shares of
Stock to be purchased or repurchased by the Third Party times a
fraction, the numerator of which is the total number of shares of Stock
owned by the Preferred Holder and the denominator of which is the sum of
(x) the number of shares of Stock owned by all of the Preferred Holders
participating in such offer and (y) the number of shares of Stock owned
by such selling Management Holder immediately prior to the transaction;
provided that,
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in the case of fractional shares, the number of shares required to be
purchased from a Preferred Holder shall be rounded up or down to the
nearest whole share.
(b) TERMS OF SALE. Any shares of Stock purchased from a Preferred
Holder pursuant to Section 3.4(a) shall be purchased at the same price
and on the same terms and conditions as the proposed Transfer by such
selling Management Holder except that the only representation and
warranty that any Preferred Holder shall be required to make in
connection with any Transfer is a warranty with respect to its ownership
of the shares of Stock to be sold by it and its ability to convey title
thereto free and clear of liens, encumbrances or adverse claims.
(c) EXERCISE OF TAG-ALONG RIGHT. The tag-along right provided for
in this Article III may be exercised by any Preferred Holder by delivery
of a written notice to the Company, the selling Management Holder and
the Third Party (the "TAG-ALONG NOTICE") within five (5) Business Days
following receipt of the Second Offeror's Notice (the "TAG-ALONG
PERIOD"). The Tag-Along Notice shall state the maximum number of shares
of Stock that such Preferred Holder wishes to include in such Transfer
to the Third Party.
(d) EFFECT OF EXERCISE OF TAG-ALONG RIGHT. Upon the giving of the
Tag-Along Notice, each Preferred Holder that has given a Tag-Along
Notice shall be obligated to sell to the Third Party the number of
shares of Stock set forth in the Tag-Along Notice on the Third Party
Terms as modified by Section 3.4(b) hereof or, if a Preferred Holder is
not entitled to sell such number of shares under the terms of this
Article III, such Preferred Holder shall be obligated to sell the
maximum number of shares such Preferred Holder is permitted to sell
hereunder; provided, however that neither any Management Holder nor any
Preferred Holder shall consummate the sale of any Stock owned by it
unless the Third Party purchases all of the shares contained in the
Transferor Tag-Along Notice which the Preferred Holders are entitled to
sell under the terms of this Article III. If the Third Party does not
purchase the shares of Stock from any Preferred Holder as required
pursuant to this Article III, then any Transfer by any selling
Management Holder and all Preferred Holders to such Third Party shall be
null and void and of no effect whatsoever.
(e) Under this Article III, all pro rata allocations and other
numerical calculations shall be made as if all Preferred Stock, warrants
and options had been converted into Common Stock on the following basis,
as the case may be, (A) as applies to Preferred Stock, the product of
(x) such number of shares of Preferred Stock and (y) the number of
shares of Common Stock into which one share of Preferred Stock may be
converted, (B) as applies to warrants, the product of (x) such number of
warrants and (y) the number of shares of Common Stock issuable upon the
exercise of one warrant and (C) as applies to options, the product of
(x) such number of options and (y) the number of shares of Common Stock
issuable upon the exercise of one option. In comparing the price to be
paid for a Stock purchased pursuant to this Article III, the price shall
be
9
determined precisely in relation to the number of shares of Common Stock
being purchased, whether directly, upon conversion of the Preferred
Stock or exercise of the warrants or options (after deducting the then
applicable exercise price).
3.5 RIGHT TO TRANSFER TO THIRD PARTY. After expiration of the
Tag-Along Period, if the provisions of this Article III and the provisions of
Article I have been complied with in all respects and no Tag-Along Notice has
been given, the selling Management Holder shall have the right for ninety (90)
Business Days to Transfer such shares of Stock to the Third Party on the Third
Party Terms without further notice to the Company and the Preferred Holders, but
after such ninety (90) Business Days, no such Transfer may be made without again
giving notice to the Company and the Preferred Holders of the proposed Transfer
and complying with all of the requirements of this Article III.
ARTICLE IV
CERTIFICATES
4.1 RESTRICTIVE ENDORSEMENTS. Each certificate evidencing any shares
of Stock (or options to acquire Stock) held by a Management Holder shall bear a
legend in substantially the following form:
"The securities evidenced by this certificate are subject to an Amended
and Restated Stockholders Agreement, dated as of December 21, 2001, as
may be amended from time to time, a copy of which is on file at the
principal office of the Company and will be furnished at no cost to any
holder on request to the Secretary of the Company. Such Agreement
provides, among other things, for certain restrictions on voting, sale,
transfer, pledge, hypothecation or other disposition of the securities
evidenced by this certificate and that the securities are subject to
purchase by the Company as well as certain other persons upon the
occurrence of certain events."
In addition, unless counsel to the Company shall have advised the
Company that such legend is no longer needed, each certificate evidencing any
shares of Common Stock or Preferred Stock shall bear a legend in substantially
the following form:
"The securities evidenced by this certificate have not been registered
pursuant to the Securities Act of 1933, as amended (the "ACT"), or any
state securities law, and such securities may not be sold, transferred
or otherwise disposed of unless the same are registered and qualified in
accordance with the Act and any applicable state securities laws, or in
the opinion of counsel reasonably satisfactory to the Company such
registration and qualification are not required."
10
4.2 REPLACEMENT CERTIFICATES. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of any
certificate evidencing shares of Common Stock or Preferred Stock and of a bond
or other indemnity reasonably satisfactory to the Company (which in the case of
any Holder may be an indemnity letter executed by such Holder), and upon
reimbursement to the Company of all reasonable expenses incident thereto, and
upon surrender of such certificate, if mutilated, the Company will make and
deliver a new certificate of like tenor in lieu of such lost, stolen, destroyed
or mutilated certificate.
ARTICLE V
MISCELLANEOUS
5.1 REPRESENTATIONS. Each Holder represents that such Holder is the
record and beneficial owner of the number of issued and outstanding shares of
Stock appearing opposite such Holder's name in the Schedule of Holders attached
hereto, free and clear of any option, lien, encumbrance or charge of any kind
whatsoever, except as created by this Agreement.
5.2 EQUITABLE RELIEF. The parties hereto agree and declare that
legal remedies may be inadequate to enforce the provisions of this Agreement and
that equitable relief, including specific performance and injunctive relief, may
be used to enforce such provisions.
5.3 NOTICES. Any and all notices, designations, consents, offers,
acceptances, or any other communication provided for herein shall be given in
writing by hand, facsimile transmission, overnight courier or by registered or
certified mail, addressed to the address specified for such party on the
signature pages hereof, or to such other address as may be designated in writing
by any such party. Except as otherwise provided in this Agreement, each such
notice shall be deemed given when delivered in person, by facsimile transmission
or by overnight courier or on a date which is three days after it is mailed at
any post office or branch post office regularly maintained by the United States
Postal Service (registered or certified, with postage prepaid and properly
addressed).
5.4 AMENDMENT AND WAIVER. The terms and provisions of this Agreement
may be amended, modified or waived as follows:
(a) With respect to Section 2.3, only by written consent of the
Company and holders of at least ninety percent (90%) of shares of
Preferred Stock then outstanding (on an as-converted to Common Stock
basis) and who are also parties to this Agreement.
(b) With respect to the appointment of the InnoCal Designee in
Section 2.1(b), only by written consent of InnoCal (so long as InnoCal
owns at least 1,750,000 shares of Series B Preferred Stock, as adjusted
for stock dividends, splits, recapitalizations, combinations and the
like after the Effective Date).
11
(c) With respect to the appointment of the Productivity Designee
in Section 2.1(b), only by written consent of Productivity (so long as
Productivity and/or its affiliates own at least 1,750,000 shares of
Series B Preferred Stock, as adjusted for stock dividends, splits,
recapitalizations, combinations and the like after the Effective Date).
(d) With respect to Section 6.1, only by written consent of the
Required Preferred Percentage.
(e) With respect to all other terms and provisions of this
Agreement, by written consent of the Company, a majority in interest of
the Management Holders and the Required Preferred Percentage.
Notwithstanding the foregoing, subject to Section 2.3(a) herein, at
any time during the period commencing on the date hereof and terminating at the
end of the day on March 31, 2002, holders of up to 10,000,000 shares of Series B
Preferred Stock may be added to this Agreement as Series B Investors (for so
long as each such new Series B Investor owns at least 1,000,000 shares of Series
B Preferred Stock) by the execution of a signature page or an amendment to this
Agreement by the Company and such holders; no action or consent by the Holders
shall be required for such joinder to this Agreement.
Any modification, amendment or waiver effected pursuant to this
Section 5.4 shall be binding on all parties to this Agreement.
5.5 DELAYS OR OMISSIONS. No failure or delay on the part of the
parties or any of them in exercising any right, power or privilege hereunder,
nor any course of dealing between the parties or any of them shall operate as a
waiver of any such right, power or privilege nor shall any single or partial
exercise of any such right, power or privilege preclude the simultaneous or
later exercise of any other right, power or privilege. The rights and remedies
herein expressly provided are cumulative and are not exclusive of any rights or
remedies which the parties or any of them would otherwise have. No notice to or
demand on the Company in any case shall entitle the Company to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the other parties or any of them to take any other or
further action in any circumstances without notice or demand.
5.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
5.7 GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware,
without giving effect to the choice of law principles thereof.
5.8 FILING. A copy of this Agreement and of all amendments hereto
shall be filed at the principal office of the Company.
12
5.9 TERMINATION. This Agreement shall expire upon the earliest to
occur of (i) the closing of a Qualified Offering, (ii) the sale of the Company
by way of a sale of all or substantially all of the assets of the Company, or a
merger, consolidation, reorganization, or other business combination in which
the Company is not the surviving entity (or in which 51% of the Common Stock of
the Company after such transaction is not owned by persons who were holders of
Common Stock prior to the transaction), (iii) conversion of the all of the then
outstanding Preferred Stock, or (iv) by a written agreement signed by the
Company, a majority in interest of the Management Holders, and holders of at
least ninety percent (90%) of the shares of Preferred Stock then outstanding (on
an as-converted to Common Stock basis) and who are also parties to this
Agreement.
5.10 BENEFIT AND BINDING EFFECT. This Agreement shall be binding
upon and inure to the benefit of the parties and their executors,
administrators, personal representatives, heirs, successors and permitted
assigns.
5.11 SEVERABILITY. In the event that any portion of this Agreement
shall be held to be invalid or unenforceable to any extent, such portion shall
be enforced to the fullest lawful extent and the remaining parts hereof shall
nevertheless continue to be valid and enforceable as though the invalid portions
were not a part hereof. If any time period set forth herein is held by a court
of competent jurisdiction to be unenforceable, a different time period that is
determined by the court to be more reasonable shall replace the unenforceable
time period.
5.12 ASSIGNMENT OF RIGHTS. The rights of the Preferred Holders
hereunder are only assignable and transferable to (i) any partner or retired
partner of a Preferred Holder which is a partnership, (ii) any member or former
member of any Preferred Holder which is a limited liability company, (iii) any
stockholder of a Preferred Holder which is a corporation, (iv) any family member
or trust for the benefit of an individual Preferred Holder, (v) any transferee
who acquires at least 200,000 shares of Preferred Stock or Common Stock upon
conversion thereof (as adjusted for stock dividends, splits, recapitalizations,
combinations and the like after the Effective Date), or (vi) any affiliated
venture capital fund of a Preferred Holder; provided, however, that such
transferor shall, within ten (10) days after such transfer, furnish to the
Company written notice of the name and address of such transferee or assignee
and the securities with respect to which such rights are being assigned and such
transferee shall agree to be subject to all restrictions and obligations set
forth in this Agreement. Notwithstanding the foregoing, the provisions of this
Agreement shall not restrict the transfer of shares of Common Stock or Preferred
Stock owned by the Preferred Holders.
ARTICLE VI
RIGHT OF PARTICIPATION
6.1 PARTICIPATION RIGHT. The Company hereby grants to each Preferred
Holder and each subsequent holder of Preferred Stock (each a "Purchaser") a
right of participation to purchase all or any part of his or its pro rata share
of New Securities (as defined below) which the Company may, from time to time,
propose to sell and issue, at the price and on
13
the terms applicable to such proposed sale of New Securities. A pro rata share
of New Securities for purposes of this Article VI is the ratio of the number of
shares of Common Stock then held, and issuable upon conversion of the Preferred
Stock then held, by a Purchaser to the sum of the Company's then outstanding
Common Stock immediately prior to such issuance of New Securities plus the
number of shares of Common Stock then issuable upon conversion all Preferred
Stock then outstanding. "New Securities" shall mean any capital stock of the
Company whether now authorized or not, and any rights, options, warrants or
other securities exercisable for or convertible into Common Stock or Preferred
Stock; provided that the term "New Securities" does not include: (i) shares of
capital stock of the Company issued in connection with any stock split, stock
dividend or recapitalization of the Company; (ii) shares of restricted stock or
stock options granted to officers, directors, employees, advisors or consultants
as approved by the Company's Board of Directors (which approval must include the
affirmative vote of a majority of the Preferred Directors); (iii) shares of
capital stock of the Company issued upon conversion of or as a dividend or
distribution on the Preferred Stock, (iv) shares of capital stock of the Company
issued upon exercise or conversion of options, warrants or convertible
securities outstanding as of the Effective Date; (v) shares of capital stock of
the Company or rights to purchase capital stock of the Company issued in
connection with equipment lease financing arrangements, credit agreements, debt
financings with commercial lenders or other commercial transactions which are
not principally designed for fund raising approved by the Board (which approval
must include the affirmative vote of a majority of the Preferred Directors);
(vi) shares of capital stock of the Company or rights to purchase capital stock
of the Company issued for consideration other than cash pursuant to a merger,
consolidation, acquisition or similar business combination approved by the Board
of Directors (which approval must include the affirmative vote of a majority of
the Preferred Directors); (vii) shares of capital stock of the Company sold in a
Qualified Offering; (viii) shares of Series B Preferred Stock issued pursuant to
the Stock Purchase Agreement and shares of Common Stock issued upon conversion
of such shares of Series B Preferred Stock and (ix) shares of capital stock of
the Company issued pursuant to the provisions of Section 4(b) of that certain
Note Purchase Agreement dated as of August 17, 2001 among the Company and the
purchasers named therein, as amended by that certain First Amendment to Note
Purchase Agreement of even date herewith.
6.2 WRITTEN NOTICE. In the event the Company proposes to undertake
an issuance of New Securities, it shall give each Purchaser written notice of
its intention, describing the type of New Securities and the price and the terms
upon which the Company proposes to issue the same. If the terms involve a unique
consideration which the Purchasers are unable to deliver, the Board of Directors
of the Company shall determine, in good faith and on a reasonable basis, the
fair market value of such consideration and such fair market value shall be the
price offered to the Purchasers, payable in cash. Each Purchaser shall have 30
days from the date such notice is given to agree to purchase up to its pro rata
share of such New Securities for the price and upon the terms specified in such
notice by giving written notice to the Company and stating therein the quantity
of New Securities to be purchased (including, without limitation, whether such
Purchaser desires to participate in any shares not subscribed for by other
Purchasers). If a Purchaser or permitted transferee fails to exercise its
participation right provided herein, its pro rata share shall be allocated to
the other Purchasers or permitted
14
transferees exercising such right to the ratio of the number of shares issued or
issuable to any such Purchaser or permitted transferee to the number of shares
issued or issuable to all Purchasers or permitted transferees exercising such
right.
6.3 RIGHT TO TRANSFER. In the event any Purchaser fails to exercise
fully the participation right granted under this Article VI within such 30-day
period, the Company shall have 90 days thereafter to sell or enter into an
agreement (pursuant to which the sale of New Securities covered thereby shall be
closed, if at all, within 90 days from the date of such agreement) to sell the
New Securities in respect of which such Purchaser's rights were not exercised on
substantially the same terms or terms more favorable to the Company than
specified in the Company's notice. In the event that a closing of the sale of
New Securities is scheduled to occur prior to the expiration of the 30-day
period described in the previous sentence, the Company shall be entitled to
consummate such closing so long as the Company reserves for a subsequent closing
the required number of shares of New Securities purchasable by the Purchasers.
In the event the Company has not sold such New Securities in accordance with the
foregoing within such 90-day period, the Company shall not thereafter issue or
sell any of such New Securities without first offering such securities to the
Purchasers in the manner provided above.
ARTICLE VII
DEFINITIONS
For purposes of this Agreement:
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday or
other day on which banks are required or permitted to close in the State of New
York.
"COMMON STOCK" shall mean the Company's common stock, $0.001 par
value per share.
"PREFERRED STOCK" shall mean the Company's Series A Redeemable
Convertible Participating Preferred Stock, $0.001 par value per share, and
Series B Redeemable Convertible Participating Preferred Stock, $0.001 par value
per share.
"QUALIFIED OFFERING" shall mean a firm commitment underwritten
public offering of Common Stock that both (i) results in gross proceeds to the
Company of a minimum of $20,000,000 (after deduction of underwriter's
commissions and expenses) and (ii) is offered at a price per share equal to at
least $1.75 (as adjusted for any stock splits, dividends, stock combinations and
the like).
15
ARTICLE VIII
ADDITIONAL COVENANTS OF THE COMPANY
8.1 FINANCIAL STATEMENTS. The Company covenants and agrees that
during the term of this Agreement the Company shall furnish or cause to be
furnished to each Preferred Holder:
(a) as soon as reasonably possible, and in any event within 120
days after the end of each fiscal year of the Company, the audited
consolidated balance sheet of the Company as at the end of such fiscal
year, and audited consolidated statements of operations and retained
earnings and cash flow of the Company for such fiscal year, all in
reasonable detail, accompanied by consolidating schedules, and prepared
in accordance with GAAP, and accompanied by the report thereon, which
shall not contain a "going concern" qualification, of Deloitte & Touche,
certified public accountants, or such other firm of nationally
recognized independent certified public accountants as shall be
reasonably satisfactory to the holders of a majority of the Series B
Preferred Stock then outstanding;
(b) as soon as reasonably possible, and in any event within 45
days after the end of each of the first three fiscal quarters of each
fiscal year of the Company, the unaudited consolidated balance sheet and
statements of operations and retained earnings and cash flow of the
Company for such quarter, all in reasonable detail, prepared in
accordance with GAAP, and certified to be complete and correct (subject
to year-end adjustments) by the Chief Financial Officer of the Company;
(c) as soon as reasonably possible, and in any event within 30
days after the end of each calendar month, a balance sheet, profit and
loss statement, cash flow statement and operating report relating to the
operations of the Company for such calendar month;
(d) promptly after the preparation thereof, and in any case not
later than 30 days prior to the beginning of each fiscal year of the
Company, the Company's budget, business plan and financial forecasts,
including a projected balance sheet, profit and loss statement and cash
flow statement, for the forthcoming year, and any other similar reports
customarily prepared by the management of the Company for internal use;
(e) promptly after receipt, all reports delivered to the Company
by its accountants;
(f) promptly after the commencement or threatened commencement
thereof, notice of all actions, suits, investigations, and proceedings
before any court or governmental department, arbitration panel,
commission, board, bureau, agency or instrumentality, domestic or
foreign, affecting the Company or any of its subsidiaries
16
other than ordinary and routine litigation covered under the limits of
existing insurance policies;
(g) promptly after the sending or filing thereof, copies of all
proxy statements, financial statements and reports which the Company
sends to its stockholders, and copies of all regular, periodic and
special reports, and all registration statements, if any, which the
Company may file with the Securities and Exchange Commission or any
governmental authority which may be substituted therefor or with any
national securities exchange or automated quotation system;
(h) promptly, copies of minutes of meetings of the Board of
Directors of the Company and of any press releases issued by the
Company;
(i) promptly, copies of all amendments to the Restated
Certificate or Bylaws of the Company; and
(j) such other information regarding the business, affairs and
condition of the Company, as Preferred Holders may from time to time
reasonably request.
8.2 RIGHT OF INSPECTION. The Company covenants and agrees that
during the term of this Agreement at any reasonable time and from time to time,
upon reasonable notice, the Company shall permit any Preferred Holder, and/or
any agent or representative thereof, to examine, inspect, audit and make copies
of and abstracts from the books and records of, and visit and inspect the
properties and assets of, the Company and to discuss the business affairs,
finances and accounts of the Company with any of its officers and directors. The
Company shall furnish to each Preferred Holder, promptly upon request, copies of
such financial and operating data (such as patents, issued or filed, licensing
agreements, research and development contracts, joint venture agreements, etc.)
and other information as reasonably requested by such Preferred Holder. Upon two
business days' prior notice to the Company, any Preferred Holder shall have the
right to confer in its discretion with the independent certified public
accountants of the Company at any time during normal business hours upon any
matter involving the financial condition of the Company and such accountants are
hereby irrevocably authorized to fully discuss with and disclose to Preferred
Holder all such matters. Each Preferred Holder, by its exercise of the rights
conferred by this Section 8.2, severally and not jointly, agrees to maintain the
confidentiality of any information received by it pursuant to this Section 8.2,
until such information becomes public or is otherwise no longer confidential or
as otherwise required by law; provided, however, that such Preferred Holder may
share the information received by it pursuant to this Section 8.2 with its
partners, if any, and with its legal, accounting, financial and other advisors
and representatives subject to such parties' agreements to maintain the
confidentiality of such information received by them consistent with the terms
of this Section 8.2.
8.3 REIMBURSEMENT OF DIRECTORS' EXPENSES. During the term of this
Agreement, the Company shall pay all reasonable travel expenses and other
out-of-pocket
17
disbursements incurred by all non-employee directors in connection with
attending meetings of the Board of Directors of the Company.
8.4 KEY-MAN LIFE INSURANCE. During the term of this Agreement, at
the request of a majority of the non-management members of the Board of
Directors of the Company, the Company will obtain a key-man life insurance
policy on the life of Xxxxx Xxxxxx at commercially reasonable rates naming the
Company as beneficiary in the face amount of $2,000,000 with a carrier or
carriers reasonably acceptable to the Preferred Holders.
8.5 VESTING OF OPTIONS. During the term of this Agreement, except as
otherwise approved by the compensation committee of the Board, all Stock or
Stock equivalents issued to employees, directors, consultants and other service
providers of the Company will be subject to vesting (or repurchase rights) not
less favorable to the Company than the following: twenty five percent (25%) to
vest on the first anniversary of such issuance, with the remaining 75% to vest
in equal monthly installments over the next three years.
8.6 USE OF PROCEEDS FOR SALE OF SERIES B PREFERRED STOCK. The
Company covenants and agrees that it shall immediately contribute all proceeds
from sales of Series B Preferred Stock (include all sales of Reserved Series B
Shares) to Total Control Information, a California limited partnership
("TCILP"), in exchange for the issuance to the Company of Series B Units in
TCILP. The Company, as the sole managing general partner of TCILP, covenants and
agrees that it shall cause TCILP to use all proceeds from sales of Series B
Preferred Stock that TCILP receives from the Company solely for the benefit of
TCILP and for working capital purposes only. The Company further covenants and
agrees that the Company shall not amend, modify or waiver any term or condition
of (i) the agreement of limited partnership of TCILP as amended as of the
Effective Date or (ii) any agreement or contract between the Company and TCILP
as of the Effective Date, without the prior written approval of the Required
Preferred Percentage.
8.7 APPROVAL OF REDUCTION OF NUMBER OF SHARES OF AUTHORIZED SERIES A
PREFERRED STOCK. The Holders hereby approve the amendment to the Restated
Certificate to reduce the number of shares of authorized Series A Preferred
Stock from 6,516,038 to 6,146,227 shares.
(Signature pages follows)
18
[SIGNATURE PAGE TO AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Amended
and Restated Stockholders Agreement as of the day and year first above written.
TCI SOLUTIONS, INC.
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Xxxxx Xxxxxx
President and Chief Executive Officer
Address: 00000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: President
Facsimile No.: (000) 000-0000
MANAGEMENT SHAREHOLDERS:
/s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
/s/ Xxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxx
[SIGNATURE PAGE TO AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Stockholders Agreement as of the day and year first above written.
/s/ Xxxxxxx XxXxxxxx
--------------------------------------
Name: Xxxxxxx XxXxxxxx
/s/ Xxxxx Xxxx
--------------------------------------
Name: Xxxxx Xxxx
[SIGNATURE PAGE TO AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Stockholders Agreement as of the day and year first above written.
ENVIRONMENTAL & INFORMATION TECHNOLOGY
PRIVATE EQUITY FUND III, a civil
partnership with limitation of liability
established under the laws of the
Federal Republic of Germany
By: Infrastructure and Environmental Private Equity
Management, L.L.C., Its General Partner
By: First Analysis IEPEF Management Company, III,
L.L.C., A Member
By: First Analysis Corporation, A Member
By: /s/ Xxxx Xxxxxxxxxxx
-----------------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Managing Director
Address: The Sears Tower
Suite 9500
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxxxxxx
Facsimile No.: (000) 000-0000
[SIGNATURE PAGE TO AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Amended
and Restated Stockholders Agreement as of the day and year first above written.
INFRASTRUCTURE AND ENVIRONMENTAL PRIVATE EQUITY FUND
III, L.P.
By: Infrastructure and Environmental Private Equity
Management, L.L.C., Its General Partner
By: First Analysis IEPEF Management Company, III,
L.L.C., A Member
By: First Analysis Corporation, A Member
By: /s/ Xxxx Xxxxxxxxxxx
-----------------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Managing Director
Address: The Sears Tower
Suite 9500
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxxxxxx
Facsimile No.: (000) 000-0000
[SIGNATURE PAGE TO AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Amended
and Restated Stockholders Agreement as of the day and year first above written.
ARGENTUM CAPITAL PARTNERS, L.P.
By: B.R. Associates, Inc,
its General Partner
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: Chairman
Address: 00 Xxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
Facsimile No.: (000) 000-0000
[SIGNATURE PAGE TO AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Amended
and Restated Stockholders Agreement as of the day and year first above written.
ARGENTUM CAPITAL PARTNERS II, L.P.
By: Argentum Partners II, L.L.C.,
its General Partner
By: Argentum Investments, L.L.C.,
its Managing Member
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Xxxxxx Xxxxxx, Managing Member
Address: 00 Xxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
Facsimile No.: (000) 000-0000
[SIGNATURE PAGE TO AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Amended
and Restated Stockholders Agreement as of the day and year first above written.
TCI ACPII LIMITED PARTNERS, L.P.
By: Argentum Investments, L.L.C.,
its Managing Member
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Xxxxxx Xxxxxx, Managing Member
Address: 00 Xxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
Facsimile No.: (000) 000-0000
GUARANTEE & TRUST CO., TTEE XXXXXX
XXXXXX GTC XXX
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx,
Title:
------------------------------
Address: 00 Xxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
Facsimile No.: (000) 000-0000
[SIGNATURE PAGE TO AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Stockholders Agreement as of the day and year first above written.
/s/ Xxxx Xxxxxxxxxxx
-------------------------------------
XXXX XXXXXXXXXXX
Address: Xxxx Xxxxxxxxxxx
The Sears Tower
Suite 9500
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
/s/ Xxxxxx Xxxxxx, Xx.
-------------------------------------
XXXXXX XXXXXX, XX.
Address: Xxxxxx Xxxxxx, Xx.
000 Xxxxxx Xxx.
Xxxxx, XX 00000
Facsimile No.:
---------------
INNOCAL II, L.P.
By: InnoCal Management II, L.P.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxxx III
-------------------------------
Name: Xxxxx X. Xxxxxxxx III
Its: Managing Director
Address: 000 Xxxxx Xxxx., Xxxxx 0000
Xxxxx Xxxx, XX 00000
[SIGNATURE PAGE TO AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated
Stockholders Agreement as of the day and year first above written.
PRODUCTIVITY FUND IV, L.P.
By: /s/ Xxxx Xxxxxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Managing Director/Member
Address: The Sears Tower
Suite 9500
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxxxxxx
Facsimile No.: (000) 000-0000
PRODUCTIVITY FUND IV ADVISORS FUND, L.P.
By: /s/ Xxxx Xxxxxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Managing Director/Member
Address: The Sears Tower
Suite 9500
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxxxxxx
Facsimile No.: (000) 000-0000
SCHEDULE I
MANAGEMENT SHAREHOLDERS:
XXXXX XXXXXX
XXXXX XXXXXXXX
XXXXXXX XXXXXXXX
XXXXX XXXX
SERIES A INVESTORS:
ENVIRONMENTAL & INFORMATION TECHNOLOGY PRIVATE
EQUITY FUND III
INFRASTRUCTURE AND ENVIRONMENTAL PRIVATE EQUITY FUND III, L.P.
ARGENTUM CAPITAL PARTNERS, L.P.
ARGENTUM CAPITAL PARTNERS II, L.P.
TCI ACPII LIMITED PARTNERS, L.P.
GUARANTEE & TRUST CO., TTEE XXXXXX XXXXXX GTC XXX
XXXX XXXXXXXXXXX
XXXXXX XXXXXX, XX.
SERIES B INVESTORS:
INNOCAL II, L.P.
PRODUCTIVITY FUND IV, L.P.
PRODUCTIVITY FUND IV ADVISORS FUND, L.P.
ENVIRONMENTAL & INFORMATION TECHNOLOGY PRIVATE EQUITY FUND III
INFRASTRUCTURE AND ENVIRONMENTAL PRIVATE EQUITY FUND III, L.P.
ARGENTUM CAPITAL PARTNERS, L.P.
ARGENTUM CAPITAL PARTNERS II, L.P.
TCI ACPII LIMITED PARTNERS, L.P.
XXXX XXXXXXXXXXX
GUARANTEE & TRUST CO., TTEE XXXXXX XXXXXX GTC XXX