EXHIBIT 3(a)(iv)
SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
DATED AS OF APRIL __, 2002
AMONG
TCI SOLUTIONS, INC.
AND
THE OTHER PERSONS IDENTIFIED ON SCHEDULE I HERETO
SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT,
dated as of April __, 2002 (the "AGREEMENT"), is entered into by and among TCI
Solutions, Inc., a Delaware corporation (the "COMPANY"), the holders of the
Company's Series A Redeemable Convertible Participating Preferred Stock listed
on Schedule I hereto (the "SERIES A INVESTORS"), the holders of the Company's
Series B Redeemable Convertible Participating Preferred Stock listed on Schedule
I hereto (the "SERIES B INVESTORS") and the holders of warrants to purchase the
Company's Common Stock listed on Schedule I hereto (the "COMMON STOCK
INVESTORS") (such Persons being referred to herein as "PURCHASERS"). Capitalized
terms used herein without definition shall have the meanings set forth in
Section 1 of this Agreement.
RECITALS
WHEREAS, the Company, the Series A Investors and the Series B
Investors (other than Blue Chip Capital Fund IV Limited Partnership ("BLUE
CHIP") entered into that certain Amended and Restated Registration Rights
Agreement dated as of December 21, 2001 (the "AMENDED AND RESTATED REGISTRATION
RIGHTS AGREEMENT");
WHEREAS, the Company and the Series B Investors have entered into
a Stock Purchase Agreement dated December 21, 2001 (the "STOCK PURCHASE
AGREEMENT"), pursuant to which the Company has issued Series B Redeemable
Convertible Participating Preferred Stock (the "SERIES B PREFERRED STOCK") to
the Series B Investors;
WHEREAS, the Company will sell shares of the Series B Preferred
Stock to Blue Chip and certain other Purchasers at the closing (the "CLOSING")
to be held on April ___, 2002, pursuant to the Stock Purchase Agreement, and has
agreed to include Blue Chip as a party to this Agreement and as a Series B
Investor;
WHEREAS, the Company has issued to the Common Stock Investors,
warrants to purchase Common Stock pursuant to a letter agreement dated June 12,
2001 and has agreed to provide for certain registration rights to shares of
Common Stock issued upon the exercise of such warrants; and
WHEREAS, the Company, the Series A Investors, the Series B
Investors and the Common Stock Investors desire to amend and restate the Amended
and Restated Registration Rights Agreement in its entirety as set forth herein.
AGREEMENT
THEREFORE, the parties hereto agree as follows:
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1. Definitions.
As used in this Agreement, the following capitalized terms shall
have the following meanings:
"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.
"Commission" shall mean the Securities and Exchange Commission.
"Common Stock" means the common stock, $0.001 par value per share,
of the Company.
"Demand Registration" shall have the meaning assigned to such term
in Section 3 hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934 or
any successor Federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect from time to time.
"Holder" shall mean a Purchaser, or its transferee, who is the
record owner of Registrable Securities or has the right to acquire such
Registerable Securities upon the conversion of Preferred Stock. "Holder" shall
not mean a Common Stock Investor.
"Material Transaction" shall mean any material transaction in
which the Company or any of its subsidiaries proposes to engage or is engaged,
including a purchase or sale of assets or securities, financing, merger,
consolidation, tender offer or any other transaction that would require
disclosure pursuant to the Exchange Act, and with respect to which the Board of
Directors of the Company reasonably has determined in good faith that compliance
with this Agreement may reasonably be expected to either materially interfere
with the Company's or such subsidiary's ability to consummate such transaction
in a timely fashion or require the Company to disclose material, non-public
information prior to such time as it would otherwise be required to be
disclosed.
"Participant" shall mean a Person participating in an offering of
Securities pursuant to this Agreement.
"Person" shall mean an individual, partnership, corporation,
limited liability company, business trust, joint state company trust,
unincorporated organization, joint venture, a government authority or other
entity of whatever nature.
"Preferred Stock" means the Series A Redeemable Convertible
Participating Preferred Stock, $0.001 par value per share, of the Company and
the Series B Redeemable Convertible Participating Preferred Stock, $0.001 par
value per share, of the Company.
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"Prospectus" shall mean the prospectus included in any
Registration Statement, as amended or supplemented by any prospectus supplement
with respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments to the
Registration Statement of which such Prospectus is a part, and all material
incorporated by reference in such Prospectus.
"Registrable Securities" shall mean the Securities, but only so
long as they remain Restricted Securities.
"Registration Statement" means any registration statement of the
Company that covers any of the Registrable Securities pursuant to the provisions
of this Agreement, including the Prospectus, amendments and supplements to such
Registration Statement, including post-effective amendments, all exhibits, and
all material incorporated by reference in such Registration Statement.
"Restricted Securities" means the Securities unless and until, in
the case of any such Securities, (i) they have been effectively registered under
the Securities Act and disposed of in accordance with the Registration Statement
covering them, (ii) they are distributed to the public pursuant to Rule 144 (or
any similar provision then in force) under the Securities Act, or (iii) they are
otherwise freely transferable without restriction under the Securities Act, and
the holders thereof have delivered an opinion of their legal counsel to such
effect in form and substance reasonably satisfactory to the Company.
"Securities" shall mean (i) any and all shares of Common Stock
issued to Purchasers or their transferees or that may be issued upon the
conversion of the Preferred Stock and any such shares of Common Stock issued
pursuant to, or issued upon the exercise or conversion of securities issued
pursuant to, the exercise of any right or option granted under that certain
Amended and Restated Stockholders Agreement dated December 21, 2001, as amended
from time to time and (ii) any and all shares of Common Stock that may be issued
to the Common Stock Investors upon the exercise of the Warrants.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Warrants" shall mean those certain warrants to purchase shares of
Common Stock listed on Schedule II hereto.
2. Securities Subject to this Agreement. The Securities entitled
to the benefits of this Agreement are the Registrable Securities.
3. Demand Registration.
(a) Request for Registration. Subject to the provisions of Section
3(b) hereof and at any time after the second anniversary of the date of this
Agreement, one or more Holders
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owning in the aggregate in excess of 25% of the issued and outstanding
Registrable Securities held by Holders may make a written request to the Company
to file a Registration Statement covering the registration of Registrable
Securities with an anticipated aggregate offering price to the public of not
less than Five Million Dollars ($5,000,000) (a "DEMAND REGISTRATION"). If,
however, the Company shall furnish to the Holder or Holders requesting a Demand
Registration pursuant to this Section 3 a certificate signed by the President of
the Company stating that the Company is engaged in a Material Transaction, the
Company shall have the right to defer such filing for a period of not more than
ninety (90) days after receipt of the request of the Holder or Holders
requesting such Demand Registration; provided, however, that the Company may not
utilize this right more than once in any twelve (12) month period. Unless the
Company shall elect to defer the Demand Registration as provided in the previous
sentence, upon receipt of such Demand Registration request, the Company shall
within five (5) Business Days after receipt of such request, give written notice
(the "DEMAND NOTICE") of such request to all other Holders and will include in
such Registration Statement all Registrable Securities with respect to which the
Company receives written requests for inclusion therein within twenty (20)
Business Days after it gives the Demand Notice to the applicable Holders. Unless
the Holder or a majority of the Holders (based on the number of shares of
Registrable Securities) demanding the Demand Registration shall agree in
writing, no other party, including the Company (but excluding another Holder of
Registrable Securities who has complied with this Section 3) shall be permitted
to offer Securities under any such Demand Registration. No Holder of Registrable
Securities shall be permitted to exercise any piggyback rights under Section 4
of this Agreement with respect to any Demand Registration.
(b) Number of Registrations. Subject to the provisions of Section
3(c) with respect to additional Demand Registrations in the event of a cut-back
on the number of shares of Registrable Securities that a Holder may sell in a
Demand Registration, the Holders are entitled to in the aggregate two (2) Demand
Registrations regardless of the Person or Persons making demand; provided,
however, that the Company shall not be obligated to effect a Demand Registration
(i) during the one hundred eighty (180) day period commencing with the effective
date of the Company's first firm commitment underwritten public offering of its
Common Stock registered under the Securities Act (the "INITIAL OFFERING") or
(ii) if within thirty (30) days of receipt of a Demand Registration request
pursuant to Section 3(a) hereof, the Company gives notice to the Holders of the
Company's intention to make its Initial Offering within ninety (90) days. Except
as set forth in Section 9, the Company shall not be deemed to have effected a
Demand Registration unless and until such Demand Registration is declared
effective.
(c) Priority on Demand Registrations. If the managing underwriter
or underwriters of a Demand Registration (or in the case of a Demand
Registration not being underwritten, Holders owning a majority of the
Registrable Securities that are participating in such Demand Registration)
advise the Company in writing that in its or their opinion the principal amount
and/or number of Securities proposed to be sold in such Demand Registration
exceeds the principal amount and/or number of Securities that can be sold in
such offering without an adverse effect on such offering, the Company will
include in such Demand Registration only the number of Registrable Securities
which, in the opinion of such underwriter
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or underwriters (or Holders, as the case may be) can be sold, selected pro rata
among the Holders which have requested to be included in such Demand
Registration; provided, that if any Holder has requested inclusion in such
Demand Registration and all Registrable Securities which such Holder has
requested to be included in such Demand Registration pursuant to this Section 3
are not so included, such Holder shall be entitled to an additional Demand
Registration hereunder (with all expenses of registration relating to such
additional Demand Registration to be born by the Company) on the same terms and
conditions as would have applied to such Holder had such earlier Demand
Registration not been made.
(d) Selection of Underwriters and Counsel. If any Demand
Registration is an underwritten offering with respect to any issue of
Registrable Securities, the Holders of a majority of such Registrable Securities
to be included in such Demand Registration will select (i) the investment banker
or bankers and manager or managers of nationally recognized standing to
administer the offering subject to the consent of the Company, such consent not
to be unreasonably withheld, and (ii) one counsel to the sellers of such
Registrable Securities in such offering. The right of any Holder to registration
shall be conditioned upon such Holder's participation in such underwriting. The
Holders of the Registrable Securities to be registered shall pay all
underwriting discounts and commissions of such investment banker or bankers and
manager or managers. The Company shall pay the reasonable fees and expenses of
one such counsel to the sellers of such Registrable Securities incurred in
connection with reviewing and otherwise acting in connection with the
Registration Statement relating to such Demand Registration.
4. Piggyback Registration Rights.
(a) If the Company at any time or from time to time subsequent to
the date of this Agreement proposes to register any securities under the
Securities Act either for its own account or the account of any selling security
holders (other than pursuant to (i) a registration statement on Forms S-4 or S-8
or any successor or similar forms, (ii) a registration relating solely to a
Commission Rule 145 offering, or (iii) a registration on any form that does not
permit secondary sales), it will give written notice (a "PIGGYBACK NOTICE") to
each of the Holders and the Common Stock Investors of its intention at least
twenty (20) Business Days in advance of the filing of any Registration Statement
with respect thereto. Upon the written request of any of the Holders or the
Common Stock Investors to include their Registrable Securities in any such
registration given within fifteen (15) Business Days after receipt of such
Piggyback Notice, the Company, subject to Section 4(b) below, will use its best
efforts to include in such registration, and in any underwriting involved
therein, all the Registrable Securities included in such request.
Notwithstanding the foregoing, no stockholder of the Company shall be granted
piggyback registration rights which would reduce the number of Registrable
Securities includable by the Holders in such registration without the consent of
the Holders of at least 66.7% of the Registrable Securities then outstanding.
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(b) Underwritten Offerings.
(i) In the case of an underwritten offering by the Company
of securities, each Participant shall, with respect to the
Registrable Securities that such Participant then desires to sell,
enter into an underwriting agreement with the same underwriters
engaged by the Company with respect to securities being offered by
the Company and cause such underwriters to include in any such
underwriting all of the Registrable Securities that a Participant
then desires to sell; provided, however that such underwriting
agreement is in substantially the same form as the underwriting
agreement that the Company enters into in connection with the
primary offering it is making.
(ii) If the managing underwriter with respect to such
underwritten offering requests in writing that the number of
securities to be offered by selling security holders be reduced
because in the judgment of the managing underwriter the offering
would be materially and adversely affected, then such securities
shall be reduced by such amount as the managing underwriter may
determine in writing so as to not materially and adversely affect
the proposed offering, which reduced number of securities shall be
included in the offering selected, first, from the Company,
second, from the Holders participating in such offering, as nearly
as possible pro rata, based on the number of Registrable
Securities such Holders have requested to be included therein,
and, next, to the extent available, among the Common Stock
Investors and any other selling security holders. Notwithstanding
the foregoing, unless the registration is with respect to the
Company's Initial Offering in which shares are sold only for the
account of the Company, the Registrable Securities to be sold by
the Holders shall not be reduced below thirty percent (30%) of the
total amount of securities included in such registration.
(c) The Holders of a majority of the Registrable Securities of
Holders to be included in such registration will select one counsel to the
sellers of such Registrable Securities in such offering. The Company shall pay
the reasonable fees and expenses of one such counsel to the sellers of such
Registrable Securities incurred in connection with reviewing and otherwise
acting in connection with the Registration Statement relating to such offering.
5. Form S-3 Registration. In case the Company shall receive from
any Holder or Holders of Registrable Securities a written request or requests
that the Company effect a registration on Form S-3 (or any successor to Form
S-3) or any similar short-form registration statement and any related
qualification or compliance with respect to all or a part of the Registrable
Securities owned by such Holder or Holders, the Company will:
(a) promptly give written notice of the proposed registration, and
any related qualification or compliance, to all other Holders of Registrable
Securities; and
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(b) as soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such Holder's or
Holders' Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any other Holder or Holders
joining in such request as are specified in a written request given within
fifteen (15) days after receipt of such written notice from the Company;
provided, however, that the Company shall not be obligated to effect any such
registration, qualification or compliance pursuant to this Section 5:
(i) if Form S-3 is not available for such offering by the
Holders, or
(ii) if the Holders, together with the holders of any other
securities of the Company entitled to inclusion in such
registration, propose to sell Registrable Securities and such
other securities (if any) at an aggregate price to the public of
less than Five Hundred Thousand Dollars ($500,000), or
(iii) if the Company shall furnish to the Holders a
certificate signed by the President of the Company stating that,
in the good faith judgment of the Board of Directors of the
Company, a material acquisition or distribution by the Company is
being negotiated or has been publicly announced or such
registration would have a material detrimental effect on the
Company, in which event the Company shall have the right to defer
the filing of the Form S-3 Registration Statement for a period of
not more than ninety (90) days after receipt of the request of the
Holder or Holders under this Section 5; provided, that such right
to delay a request shall be exercised by the Company not more than
once in any twelve (12) month period.
(c) Subject to the foregoing, the Company shall file a Form S-3
Registration Statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders. Registrations effected pursuant to this
Section 5 shall not be counted as demands for registration or registrations
effected pursuant to Sections 3 or 4, respectively. Subject to the provisions of
Sections 5(b) and 14 hereof, the Holders shall be entitled to an unlimited
number of demand registrations on Form S-3.
6. Information. Upon making a request pursuant to Sections 3, 4 or
5, the Participant shall specify the number of shares of Registrable Securities
to be registered on its behalf and the intended method of disposition thereof,
provided, however, that if, upon making a request pursuant to Section 3, the
Holders of a majority of the Registrable Securities included in such request for
registration specify one particular type of underwritten offering, such method
of disposition shall be the type of underwritten offering or a series of such
underwritten offerings used in connection with the disposition of the Securities
pursuant to such Registration Statement as the Holders of a majority of the
Registrable Securities included in such registration may elect during the time
period the Registration Statement is effective.
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The Company may require the Participants to furnish to the Company
such information in writing regarding themselves and the distribution of
Registrable Securities as the Company may from time to time reasonably request
in writing in order to comply with the Securities Act. The Participants agree to
supply the Company as promptly as practicable with such information and to
notify the Company as promptly as practicable of any inaccuracy or change in
information they have previously furnished to the Company.
7. Post-Effective Amendment to Registration Statement. Each Holder
and Common Stock Investor agrees that if the Company determines that there are
material developments that the Company determines require the filing of a
post-effective amendment to a Registration Statement, then each Holder and
Common Stock Investor agrees to refrain from selling any Registrable Securities
until the post-effective amendment is declared effective. The Company agrees to
file and attempt to have declared effective such post-effective amendment as
soon as possible.
8. Registration Procedures. If and whenever the Company is
required by the provisions of Sections 3 or 5 to effect a registration under the
Securities Act and whenever Holders or the Common Stock Investors have requested
inclusion in a Company's Registration under Section 4, the Company will, at its
expense, as expeditiously as practicable, but in no event later than 30 days
after receipt of a request for registration pursuant to the terms of Sections 3,
4 or 5:
(a) In accordance with the Securities Act and the rules and
regulations of the Commission, use best efforts to prepare and file with the
Commission a Registration Statement in the form of an appropriate registration
statement with respect to the Registrable Securities and use its best efforts to
cause such Registration Statement to become and remain continuously effective
until the earlier of (i) that date that all of the Registrable Securities
covered by such Registration Statement have been sold in accordance with the
intended methods of disposition of the seller or sellers set forth in such
Registration Statement and (ii) one year after such Registration Statement has
been declared effective, provided that if for any portion of such one-year
period the Registration Statement is not effective or if Holders and Common
Stock Investors are required to refrain from selling Registrable Securities
pursuant to Section 7, then such one year requirement for maintaining the
effectiveness of the Registration Statement shall be extended by the length of
such interruption(s), and shall prepare and file with the Commission such
amendments to such Registration Statement and supplements to the Prospectus
contained therein as may be necessary to keep such Registration Statement
effective and such Registration Statement and Prospectus accurate and complete
during such period;
(b) Furnish to each Participant in such registration such
reasonable number of copies of the Registration Statement and Prospectus and
such other documents as such Participant may reasonably request in order to
facilitate the public offering of the Registrable Securities;
(c) Use its best efforts to register or qualify the Securities
covered by such Registration Statement under such state securities or blue sky
laws of such jurisdictions as such
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Participants may reasonably request, provided, however, that the Company shall
not be obligated to file any general consent to service of process or to qualify
as a foreign corporation in any jurisdiction in which it is not so qualified or
to subject itself to taxation in connection with any such registration or
qualification of such Securities;
(d) Notify the Participants in such registration, promptly after
it shall receive notice thereof, of the date and time when such Registration
Statement and each post-effective amendment thereto has become effective or a
supplement to any Prospectus forming a part of such Registration Statement has
been filed;
(e) Notify the Participants in such registration promptly of any
request by the Commission for the amending or supplementing of such Registration
Statement or Prospectus or for additional information;
(f) Prepare and file with the Commission, promptly upon the
request of any Participant in such registration, the Registration Statement and
any amendments or supplements to such Registration Statement or Prospectus that,
in the reasonable opinion of counsel for such Participants, is required under
the Securities Act or the rules and regulations thereunder in connection with
the distribution of the Securities by such Participants or to otherwise comply
with the requirements of the Securities Act and such rules and regulations;
(g) Prepare and promptly file with the Commission and promptly
notify the Participants in such registration of the filing of such amendments or
supplements to such Registration Statement or Prospectus as may be necessary to
correct any statements or omissions if, at the time when a Prospectus relating
to such Securities is required to be delivered under the Securities Act, any
event has occurred as the result of which any such Prospectus or any other
Prospectus then in effect may include an untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading;
(h) Advise the Participants in such registration, promptly after
it shall receive notice or obtain knowledge thereof, of the issuance of any stop
order by the Commission suspending the effectiveness of such Registration
Statement or the initiation or threatening of any proceeding for that purpose
and promptly use its best efforts to prevent the issuance of any stop order or
to obtain its withdrawal if such stop order should be issued;
(i) Otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to the
Company's security holders earnings statements satisfying the provisions of
Section 11(a) of the Securities Act, no later than forty-five (45) days after
the end of any twelve (12) month period (or ninety (90) days, if such a period
is a fiscal year) beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of a Registration Statement;
(j) Not file any amendment or supplement to such Registration
Statement or Prospectus to which a majority in interest of the Participants in
such registration has reasonably
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objected on the grounds that such amendment or supplement does not comply in all
material respects with the requirements of the Securities Act or the rules and
regulations thereunder, after having been furnished with a copy thereof at least
three (3) Business Days prior to the filing thereof unless the Company shall
have obtained an opinion of counsel that such amendment is required under or is
advisable in view of the Securities Act or the rules or regulations adopted
thereunder in connection with the distribution of Securities by the Company or
the Participants;
(k) Make available for inspection by any Participant, any
underwriter participating in any disposition pursuant to such Registration
Statement and any attorney, accountant or other agent retained by any such
Participant or underwriter (collectively, the "INSPECTORS"), all pertinent
financial, business and other records, pertinent corporate documents and
properties of the Company (collectively, the "RECORDS"), as shall be reasonably
necessary to enable them to exercise their due diligence responsibility, and
cause the Company's officers, directors and employees to supply all information
(together with the Records, the "INFORMATION") reasonably requested by any such
Inspector in connection with such Registration Statement (and any of the
Information which the Company determines in good faith to be confidential, and
of which determination the Inspectors are so notified, shall not be used by such
Participant or such Inspector for any purpose other than exercise of such due
diligence responsibility and shall not be disclosed by the Inspectors unless (A)
the disclosure of such Information is necessary to avoid or correct a material
misstatement or omission in the Registration Statement, (B) the release of such
Information is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction, (C) such Information has been made generally available
to the public or (D) the Participant agrees that it will, upon learning that
disclosure of such Information is sought in a court of competent jurisdiction,
give notice to the Company and allow the Company, at the Company's expense, to
undertake appropriate action to prevent disclosure of the Information deemed
confidential);
(l) Use its best efforts to obtain from its independent certified
public accountants a "cold comfort" letter in customary form and covering such
matters of the type customarily covered by cold comfort letters;
(m) Use its best efforts to obtain, from its counsel, an opinion
or opinions in customary form (which shall also be addressed to the Participants
selling Registrable Shares in such registration);
(n) Provide a transfer agent and registrar (which may be the same
entity and which may be the Company) for such Registrable Securities;
(o) Issue to any underwriter to which any Participant may sell
Registrable Securities in such offering certificates evidencing such Registrable
Securities;
(p) List such Registrable Securities on any national securities
exchange on which any securities of the Common Stock are listed or, if the
Common Stock is not listed on a national securities exchange, use its best
efforts to qualify such Registrable Securities for inclusion on the automated
quotation system of the National Association of Securities Dealers,
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Inc. (the "NASD"), National Market System ("NMS"), or such other national
securities exchange as the Participants shall request; and
(q) use its best efforts to take all other steps necessary to
effect the registration of such Registrable Securities contemplated hereby.
9. Expenses of Registration. Except as provided in the following
sentence, all expenses of the Company incident to the Company's performance of
or compliance with the provisions of Sections 3 through 8 of this Agreement
shall be borne by the Company including without limitation:
(a) All registration and filing fees (including expenses relating
to filings with NASD Regulation, Inc. and excluding underwriting discounts and
commissions);
(b) Fees and expenses of compliance with all securities or blue
sky laws (including fees and disbursements of counsel for the Company in
connection with blue sky qualifications of the Registrable Securities);
provided, however that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
connection with any such registration or qualification of such Registrable
Securities;
(c) Printing, messenger, telephone and delivery expenses; and
(d) Fees and disbursements of counsel for the Company and its
independent auditors.
If the Holders request a Demand Registration pursuant to Section 3 of this
Agreement and thereafter voluntarily withdraw such request, which withdrawal
shall be made by Holders of a majority of such Registrable Securities requested
to be included in such Demand Registration, the Holders requesting such Demand
Registration shall bear the expenses of the Company referred to in the preceding
sentence in connection with such request (pro rata based on the number of
Registrable Securities included in such Demand Registration)(and such request
and any actions by the Company pursuant thereto shall not be counted as one of
the Demand Registrations to which the Holders are entitled under this
Agreement), unless, by notice to the Company, the Holders of a majority of the
Registrable Securities elect to have such request count as one of the Demand
Registrations to which the Holders are entitled hereunder, in which case all of
the Company's expenses in connection with such request shall be borne by the
Company.
Nothing in this Section 9 shall be deemed to require the Company
to pay or bear any fees or expenses of any Participant's attorneys (except as
specifically set forth herein) or accountants or any other personal expenses or
any underwriting discounts, selling commissions or similar fees of the
Participants if such registration results in an underwritten public offering of
all or any portion of the Registrable Securities.
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10. Indemnification and Contribution.
(a) Indemnification by the Company. Whenever, pursuant to Sections
3, 4 or 5, a Registration Statement relating to the Registrable Securities is
filed under the Securities Act, the Company will (except as to matters covered
by Section 10(b) hereof) indemnify and hold harmless each Participant in the
registration, each of their partners, members, officers, directors and
employees, each underwriter of Registrable Securities, and each Person, if any,
who controls any such Person within the meaning of Section 15 of the Securities
Act and Section 20 of the Exchange Act (collectively, the "PARTICIPANT
INDEMNITEES" and, individually, a "PARTICIPANT INDEMNITEE"), against any losses,
claims, damages or liabilities, joint or several, to which such Participant
Indemnitees may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in such Registration Statement, or Prospectus
contained therein, or any amendment or supplement thereto, or arise out of or
are based upon the 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 under which they were made, not misleading, unless
(i) any such statement or omission is based on written information provided by
the Participant Indemnitee, or a representation of a Participant Indemnitee,
that such Participant Indemnitee has requested be included in such Registration
Statement or Prospectus or (ii) if such untrue statement or alleged untrue
statement, omission or alleged omission is completely corrected in an amendment
or supplement to the Prospectus and if, having previously been furnished by or
on behalf of the Company with copies of the Prospectus as so amended or
supplemented, such Participant Indemnitee thereafter fails to deliver such
Prospectus as so amended or supplemented prior to or concurrently with the sale
of a Registrable Security to the person asserting such loss, claim, damage,
liability or expense who purchased such Registrable Security which is the
subject thereof from such Participant Indemnitee, and will reimburse each
Participant Indemnitee for all legal or other expenses reasonably incurred by it
in connection with investigating or defending against such loss, claim, damage,
liability or action.
(b) Indemnification by Participants. Each Participant in such
registration will indemnify and hold harmless the Company, each of its
directors, each of its officers who has signed the Registration Statement and
each other Person, if any, who controls the Company, each underwriter of
Registrable Securities and each Person, if any, who controls the Company or any
such underwriter within the meaning of Section 15 of the Securities Act and
Section 20 of the Exchange Act (collectively, the "COMPANY INDEMNITEES" and,
individually, a "COMPANY INDEMNITEE") and each other Participant Indemnitee
against all losses, claims, damages or liabilities, joint or several, to which
any of the Company Indemnitees or the other Participant Indemnitees may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in such Registration Statement, or Prospectus contained therein, or
any amendment or supplement thereto, or arise out of or are based upon the
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 under
-12-
which they were made, not misleading, but only if, and to the extent that, such
statement or omission is based on written information provided by the
Participant or a representation of such Participant, that such Participant has
requested be included in such Registration Statement or Prospectus, and will
reimburse each Company Indemnitee or other Participant Indemnitee for all legal
or other expenses reasonably incurred by it in connection with investigating or
defending against such loss, claim, damage, liability or action; provided,
however, that the maximum amount of liability in respect of such indemnification
(including, but not limited to, attorneys' fees and expenses) shall be limited,
in the case of each indemnifying Participant, to an amount equal to the net
proceeds actually received by such indemnifying Participant from the sale of
Registrable Securities under such Registration Statement.
(c) Indemnification Procedures. Promptly after receipt by a
Participant Indemnitee or a Company Indemnitee (collectively, "INDEMNITEES" and,
individually, an "INDEMNITEE") under Section 10(a) or 10(b) hereof of notice of
the commencement of any action, such Indemnitee will, if a claim in respect
thereof is to be made against the indemnifying party under such clause, notify
the indemnifying party in writing of the commencement thereof, but the omission
so to notify the indemnifying party will not relieve the indemnifying party from
any liability which it may have to any Indemnitee otherwise than under such
clauses. In case any such action shall be brought against any Indemnitee, and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in, and, to the extent that
it may wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such Indemnitee, and
after notice from the indemnifying party to such Indemnitee of its election to
assume the defense thereof, the indemnifying party shall not be liable to such
Indemnitee under such clause for any legal or other expenses subsequently
incurred by such Indemnitee in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that the Indemnitee shall
have the right to employ one counsel to represent such Indemnitee if, in the
reasonable judgment of such Indemnitee, it is advisable for such party to be
represented by separate counsel because separate defenses are available, or
because a conflict of interest exists between such indemnified and indemnifying
party in respect of such claim, and in that event the fees and expenses of such
separate counsel shall be paid by the indemnifying party. Notwithstanding the
foregoing, if the Company is an Indemnitee, the Company shall designate the one
counsel, and in all other circumstances, the one counsel shall be designated by
a majority in interest based upon the Registrable Securities of the Indemnitees.
For purposes of this Section 10 the terms "control," and "controlling person"
have the meanings which they have under the Securities Act.
(d) Contribution. If for any reason the foregoing indemnity is
unavailable, or is insufficient to hold harmless an Indemnitee, then, subject to
the limitations of Participants as provided in the last sentence of Section
10(b), the indemnifying party shall contribute to the amount paid or payable by
the Indemnitee as a result of such losses, claims, damages, liabilities or
expenses (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party on the one hand and the Indemnitee
on the other from the registration or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, or provides a lesser sum to the
Indemnitee than the amount hereinafter calculated, in such proportion as is
-13-
appropriate to reflect not only the relative benefits received by the
indemnifying party on the one hand and the Indemnitee on the other but also the
relative fault of the indemnifying party and the Indemnitee as well as any other
relevant equitable considerations. The relative fault of the Company, on the one
hand, and the Purchasers, on the other hand, shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Purchasers and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. 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.
11. Amendment and Modification. This Agreement may be amended,
modified or supplemented in any respect only by written agreement by the Company
and Holders owning two-thirds of the issued and outstanding shares of
Registrable Securities held by Holders (provided that no such amendment shall
unfairly discriminate against a particular Holder relative to the other Holders)
and, only if their interests are adversely affected thereby, the Common Stock
Investors. Any action taken by the Holders, as provided in this Section 11,
shall bind all Holders and the Common Stock Investors.
12. Limitation on Subsequent Registration Rights. After the date
of this Agreement, the Company shall not, without the prior written consent of
the Holders of at least 66.7% of the Registrable Securities then outstanding,
enter into any agreement with any holder or prospective holder of any securities
of the Company that would grant such holder registration rights senior to or
pari passu with the registration rights of the Holders as provided in this
Agreement.
13. "Market Stand-Off" Agreement.
(a) Each Holder hereby agrees that, without the prior written
consent of the managing underwriter in the Company's Initial Offering, during
the period commencing on the date of the final Prospectus relating to the
Company's Initial Offering and ending on the date specified by the Company and
the managing underwriter (such period not to exceed one hundred eighty (180)
days), each Holder will not (i) lend, offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, or otherwise transfer or
dispose of, directly or indirectly, any Securities (whether such shares or any
such securities are then owned by the Holder or are thereafter acquired), or
(ii) enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of the
Securities, whether any such transaction described in clause (i) or (ii) above
is to be settled by delivery of Securities or such other securities, in cash or
otherwise. The foregoing provisions of this Section 13(a) shall apply only to
the Company's Initial Offering, shall not apply to the sale of any shares to an
underwriter pursuant to an underwriting agreement, and shall only be applicable
to the Holders if all officers and directors and greater than one percent (1%)
stockholders of the Company enter into similar
-14-
agreements. The underwriters in connection with the Company's Initial Offering
are intended third party beneficiaries of this Section 13(a) and shall have the
right, power and authority to enforce the provisions hereof as though they were
a party hereto.
Each Holder agrees to execute and deliver such other agreements as
may be reasonably requested by the Company or the underwriter which are
consistent with the foregoing or which are necessary to give further effect
thereto. The Company may impose stop-transfer instructions with respect to the
shares of Common Stock (or other securities) subject to the foregoing
restriction until the end of the applicable period.
(b) If the Company at any time pursuant to Sections 3, 4 or 5 of
this Agreement shall register under the Securities Act Registrable Shares held
by Holders for sale to the public pursuant to an underwritten offering, the
Company shall not, without the prior written consent of a majority of the
Registrable Securities to be included in such registration, effect any public
sale or distribution of securities similar to those being registered, or any
securities convertible into or exercisable or exchangeable for such securities,
for such period as shall be determined by the managing underwriters, which
period shall not begin more than 10 days prior to the effectiveness of the
Registration Statement pursuant to which such offering shall be made and shall
not last more than 180 days after the closing of sale of Registrable Securities
pursuant to such Registration Statement.
14. Termination. The obligations of the Company to register the
Registrable Securities under Sections 3, 4 and 5 for a Holder or Common Stock
Investor shall terminate on such date after the closing of the Initial Offering,
if, in the reasonable opinion of counsel to the Company, all shares of
Registrable Securities held or entitled to be held upon conversion by such
Holder or Common Stock Investor may immediately be sold in a three (3) month
period without registration in compliance with Rule 144 under the Securities
Act; provided, however, that the provisions of this Section 14 shall not apply
to any Holder while such Holder owns more than 1% of the Company's outstanding
capital stock.
15. Governing Law. This Agreement and the rights and obligations
of the parties hereunder shall be governed by, and construed and interpreted in
accordance with, the laws of the State of Delaware, without giving effect to the
choice of law principles thereof.
16. Invalidity of Provision. The invalidity or unenforceability of
any provision of this Agreement in any jurisdiction shall not affect the
validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of this Agreement, including that
provision, in any other jurisdiction.
17. Notices. All notices and other communications hereunder shall
be in writing and, unless otherwise provided herein, shall be deemed duly given
if delivered personally or four (4) days after deposit with the United States
Post Office, by registered or certified mail (return receipt requested), postage
prepaid, to the parties at the following addresses or (at such other address for
the party as shall be specified by like notice):
-15-
(a) If to the Company:
TCI Solutions, Inc.
00000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxx, President and Chief Executive Officer
or as the Company shall designate to the Purchasers in
writing.
with a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxxx Xxxxxxx, Esq.
(b) If to a Holder or a Common Stock Investor, as listed on the
signature pages attached hereto or as such Holder shall designate to the Company
in writing.
18. Headings, Execution in Counterparts. The headings and captions
contained herein are for convenience of reference only and shall not control or
affect the meaning or construction of any provision hereof. This Agreement may
be executed in any number of counterparts, each of which shall be deemed to be
an original and all of which together shall constitute one and the same
instrument.
19. Entire Agreement. This Agreement, including any exhibits
hereto and the documents and instruments referred to herein and therein,
embodies the entire agreement and understanding of the parties hereto in respect
of the subject matter contained herein. There are no restrictions, promises,
representations, warranties, covenants or undertakings, other than those
expressly set forth or referred to herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
20. Attorneys' Fees. If any legal action or any arbitration or
other proceeding is brought for the enforcement of this Agreement, or because of
an alleged dispute, breach, default or misrepresentation in connection with any
of the provisions of this Agreement, the successful or prevailing party or
parties shall be entitled to recover such reasonable attorneys fees and other
costs incurred in that action or proceeding, in addition to any other relief to
which it or they may be entitled, as may be ordered in connection with such
proceeding.
21. Successors and Assigns. This Agreement shall be binding upon
the parties hereto and their successors and assigns.
22. Transfer or Assignment of Rights. The rights of the Holders
hereunder are only assignable and transferable to (i) any partner or retired
partner of a Holder which is a partnership, (ii) any member or former member of
any Holder which is a limited liability
-16-
company, (iii) any stockholder of a Holder which is a corporation, (iv) any
family member or trust for the benefit of an individual 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 date of this Agreement),
or (vi) any affiliated venture capital fund of a 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.
23. Rule 144 Reporting. With a view to making available the
benefits of certain rules and regulations of the Commission which permit the
sale of the Registrable Securities to the public without registration, the
Company agrees to:
(a) Make and keep public information available, as those
terms are understood and defined in Rule 144 under the Securities Act, at all
times from ninety (90) days following the effective date of the Initial
Offering;
(b) Use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) So long as a Holder or Common Stock Investor owns any
Registrable Securities, furnish to the Holder or Common Stock Investor upon
written request a written statement by the Company as to its compliance with the
reporting requirements of the Securities Act and the Exchange Act, a copy of the
most recent annual or quarterly report of the Company, and such other reports
and documents so filed as a Holder or Common Stock Investor may reasonably
request in writing to avail itself of any rule or regulation of the Commission
allowing a Holder or Common Stock Investor to sell any such securities without
registration.
(Signature pages follow)
-17-
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, this Agreement has been signed by each of the
parties hereto as of the date first above written.
TCI SOLUTIONS, INC.
By: //s// Xxxxx Xxxxxx
------------------------------------------
Xxxxx Xxxxxx
President and Chief Executive Officer
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date 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
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date 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
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
ARGENTUM CAPITAL PARTNERS, L.P.
By: B.R. Associates, Inc,
its General Partner
By: //s// Xxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxx
Title: Chairman
Address: 00 Xxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date 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
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date 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
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
//s// Xxxx Xxxxxxxxxxx
---------------------------------------------
XXXX XXXXXXXXXXX
Address: Xxxx Xxxxxxxxxxx
The Sears Tower
Suite 9500
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
//s// Xxxxxx Xxxxxx, Xx.
---------------------------------------------
XXXXXX XXXXXX, XX.
INNOCAL II, L.P.
By: InnoCal Management II, L.P.
Its: General Partner
By: //s// Xxxxx Xxxxxxxx III
-----------------------------------
Name: Xxxxx Xxxxxxxx III
Its: Managing Director
Address: 000 Xxxxx Xxxx., Xxxxx 0000
Xxxxx Xxxx, XX 00000
PRODUCTIVITY FUND IV, L.P.
By: First Analysis Management Company IV
L.L.C., its General Partner
By: First Analysis Venture Operations and
Research, L.L.C., Managing Member
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
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
PRODUCTIVITY FUND IV ADVISORS FUND, L.P.
By: First Analysis Management Company IV,
L.L.C.
Its: General Partner
By: First Analysis Venture Operations &
Research, L.L.C.
Its: Management Member
By: //s// Xxxx Xxxxxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxxxxx
Its: Managing Director/Member
Address: The Sears Tower
Suite 9500
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxxxxxx
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
BLUE CHIP CAPITAL FUND IV LIMITED PARTNERSHIP
By: Blue Chip Venture Company, Ltd.
By: //s// Xxxx X. Xxxxxxx
----------------------------------------
Xxxx X. Xxxxxxx, Director
Address:
---------------------------
---------------------------
---------------------------
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
THE WEINRESS GROUP
//s// Xxxxxxx Xxxxxxxx
----------------------------------------
By: Xxxxxxx Xxxxxxxx
Its:
-----------------------------------
//s// Xxxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxx
//s// Xxxx X. Xxxxxxxx
----------------------------------------
Xxxx X. Xxxxxxxx
//s// Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx
//s// Xxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxx
//s// Xxxx X. Xxxxxxxx
----------------------------------------
Xxxx X. Xxxxxxxx
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
//s// Xxxxxxx X. Xxxxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxxxx
//s// Xxxxxxx X. Dust
----------------------------------------
Xxxxxxx X. Dust
SCHEDULE I
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
BLUE CHIP CAPITAL FUND IV LIMITED PARTNERSHIP
COMMON STOCK INVESTORS:
THE WEINRESS GROUP
XXXXXXX X. XXXXXXX
XXXX X. XXXXXXXX
XXXXX X. XXXXXX
XXXXXX X. XXXXXXXX
XXXX X. XXXXXXXX
XXXXXXX X. XXXXXXXXX
XXXXXXX X. DUST
SCHEDULE II
COMMON STOCK
COMMON STOCK INVESTOR WARRANTS
--------------------- ----------------------
Xxxxxxx X. Xxxxxxx 84,469
Xxxx X. Xxxxxxxx 84,469
The Weinress Group 64,197
Xxxxxxx X. Xxxxxxxxx 48,428
Xxxxx X. Xxxxxx 316,211
Xxxxxx X. Xxxxxxxx 9,010
Xxxx X. Xxxxxxxx 4,505
Xxxxxxx X. Dust 64,469
TOTAL 675,757
