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EXHIBIT 10.5
EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
AMONG
CONVERGENT GROUP CORPORATION,
THE CONTINUING SHAREHOLDERS
AND
THE INVESTORS
(EACH AS DEFINED HEREIN)
AUGUST 13, 1999
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TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS ................................................... 1
SECTION 2. REQUIRED REGISTRATION ......................................... 4
SECTION 3. PIGGYBACK REGISTRATION ........................................ 5
SECTION 4. REGISTRATIONS ON FORM S-3 ..................................... 6
SECTION 5. HOLDBACK AGREEMENT ............................................ 6
SECTION 6. PREPARATION AND FILING ........................................ 7
SECTION 7. EXPENSES ...................................................... 10
SECTION 8. INDEMNIFICATION ............................................... 10
SECTION 9. UNDERWRITING AGREEMENT ........................................ 13
SECTION 10. INFORMATION BY HOLDER ......................................... 13
SECTION 11. EXCHANGE ACT COMPLIANCE ....................................... 13
SECTION 12. MERGERS, ETC. ................................................. 13
SECTION 13. NEW CERTIFICATES .............................................. 14
SECTION 14. NO CONFLICT OF RIGHTS; SELECTION OF UNDERWRITER ............... 14
SECTION 15. TERMINATION ................................................... 14
SECTION 16. MISCELLANEOUS ................................................. 14
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EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT dated
as of August 13, 1999 among CONVERGENT GROUP
CORPORATION., a Delaware corporation (the
"Company"), the INVESTORS listed on Schedule
I hereto and the CONTINUING SHAREHOLDERS
listed on Schedule II hereto (the
"Continuing Shareholders").
Simultaneously herewith, the Company, the Investors and the
Continuing Shareholders are consummating the transactions contemplated by the
Recapitalization Agreement. The Investors and the Continuing Shareholders are
referred to collectively as the "Shareholders" and individually as a
"Shareholder." The Shareholders own or have the right to purchase or otherwise
acquire Registrable Shares (as defined below). The Company and the Shareholders
deem it to be in their respective best interests to enter into this Agreement to
set forth the rights of the Shareholders in connection with public offerings and
sales of the Registrable Shares.
NOW THEREFORE, in consideration of the premises and mutual
covenants and obligations hereinafter set forth, the Company and the
Shareholders hereby agree as follows:
SECTION 1. DEFINITIONS.
As used in this Agreement, the following terms have the
following meanings:
"Board" means the Board of Directors of the Company.
"Commission" means the Securities and Exchange Commission or
any other governmental body or agency succeeding to the functions thereof.
"Common Stock" means the common stock, $0.01 par value, of
the Company.
"Continuing Shareholders" has the meaning set forth in the
caption.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, 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.
"GS" means GS Private Equity Partners II, L.P., GS Private
Equity Partners II Offshore, L.P., GS Private Equity Partners III, L.P., GS
Private Equity Partners III Offshore, L.P. and NBK/GS Private Equity Partners,
L.P.
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"InSight" means InSight Capital Partners III, L.P., a Delaware
limited partnership, InSight Capital Partners III (Cayman), L.P. and InSight
Capital Partners III (Co-Investors), L.P.
"Investors" means, collectively, InSight, UBS and GS,
including any successor to, or assignee or transferee of, any such Person who or
which agrees in writing to be treated as an Investor hereunder and to be bound
by the terms and comply with all applicable provisions hereof.
"Investor Shares" means all Registrable Shares held by the
Investors.
"Majority of Shareholders" means (i) holders of at least a
majority of the Registrable Shares then held by all Shareholders and (ii)
holders of a majority of all Investor Shares (an "Investor Majority") as such.
"Other Shares" means at any time those shares of Common Stock
that do not constitute Primary Shares or Registrable Shares.
"Person" shall be construed broadly and shall include an
individual, a partnership, a limited partnership, a corporation, an association,
a joint stock company, a limited liability company, a trust, a joint venture, an
unincorporated organization and a governmental entity or any department, agency
or political subdivision thereof.
"Primary Shares" means at any time the authorized but unissued
shares of Common Stock and shares of Common Stock held by the Company in its
treasury.
"Prospectus" means the prospectus included in a Registration
Statement, including any prospectus subject to completion, and any such
prospectus as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Shares and, in
each case, by all other amendments and supplements to such prospectus,
including post-effective amendments, and in each case including all material
incorporated by reference therein.
"Public Offering" means the closing of a public offering of
Common Stock pursuant to a Registration Statement declared effective under the
Securities Act, except that a Public Offering shall not include an offering of
securities to be issued as consideration in connection with a business
acquisition or an offering of securities issuable pursuant to an employee
benefit plan.
"Recapitalization Agreement" means the Recapitalization
Agreement dated as of the date hereof, by and among the Company, the Investors
and the other parties thereto, as the same may be amended, supplemented or
modified from time to time.
"Registrable Shares" means the shares of Common Stock held by
any Shareholder which constitute Restricted Shares.
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"Registration Date" means the date upon which a Registration
Statement pursuant to which the Company shall have initially registered shares
of Common Stock under the Securities Act for sale in a Public Offering shall
have been declared effective by the Commission.
"Registration Statement" shall mean any registration statement
of the Company which covers any of the Registrable Shares and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Required Registration" means a registration requested by a
Shareholder or group of Shareholders pursuant to Section 2.
"Restricted Shares" means shares of Common Stock, and includes
(i) shares of Common Stock which may be issued as a dividend or distribution,
(ii) any shares of Common Stock issued or issuable with respect to any other
securities which by their terms are exercisable or exchangeable for or
convertible into Common Stock, and (iii) any shares of Common Stock issued or
issuable with respect to any securities received in respect of the foregoing
(including securities described in Section 12), in each case in clauses (i)
through (iii) which at any time are held by the Shareholders. As to any
particular Restricted Shares, once issued, such Restricted Shares shall cease to
be Restricted Shares when (A) they have been registered under the Securities
Act, the Registration Statement in connection therewith has been declared
effective and they have been disposed of pursuant to and in the manner described
in such effective Registration Statement, (B) they have been otherwise
transferred and new certificates or other evidences of ownership for them not
bearing a restrictive legend and not subject to any stop transfer order or other
restriction on transfer have been delivered by the Company or the issuer of
other securities issued in exchange for the Restricted Shares, or (C) they have
ceased to be outstanding.
"Rule 144" means Rule 144 promulgated under the Securities Act
or any successor rule thereto or any complementary rule thereto.
"Securities Act" means the Securities Act of 1933, as amended,
or any successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to time.
"Shareholders" means, collectively, the Investors and the
Continuing Shareholders listed on SCHEDULE I and SCHEDULE II hereto,
respectively, and includes any successor to, or assignee or transferee of, any
such Person who or which agrees in writing to be treated as a Shareholder
hereunder and to be bound by the terms and comply with all applicable provisions
hereof.
"Subsidiary" means, with respect to any Person, any other
Person of which the securities having a majority of the ordinary voting power in
electing the board of
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directors (or other governing body), at the time as of which any determination
is being made, are owned by such first Person either directly or through one or
more of its Subsidiaries.
"UBS" means UBS Capital II LLC a Delaware limited liability
company.
SECTION 2. REQUIRED REGISTRATION.
(a) Subject to Section 2(b), if the Company shall be requested
by the holders of a majority of all Investor Shares at any time to effect the
registration under the Securities Act of Registrable Shares. Then the Company
shall (subject to the managing underwriter's discretion) promptly give written
notice of such proposed registration to all holders of Registrable Shares and
shall (subject to the managing underwriter's discretion) offer to include in
such proposed registration any Registrable Shares requested to be included in
such proposed registration by all holders of Registrable Shares who respond in
writing to the Company's notice within 30 days after delivery of such notice
(which response shall specify the number of Registrable Shares proposed to be
included in such registration). The Company shall use its best efforts to
promptly effect the registration under the Securities Act of the Registrable
Shares which the Company has been so requested to register. The number of
requests permitted pursuant to this Section 2(a) shall be unlimited.
(b) Anything contained in Section 2(a) to the contrary
notwithstanding, the Company shall not be obligated to effect any registration
under the Securities Act pursuant to Section 2(a) except in accordance with the
following provisions:
(i) with respect to any registration pursuant to this
Section 2, the Company may include in such registration any Primary
Shares or Other Shares; provided, however, that if the managing
underwriter advises the Company that the inclusion of all Registrable
Shares, Primary Shares and/or Other Shares proposed to be included in
such registration would interfere with the successful marketing
(including pricing) of the Registrable Shares proposed to be included
in such registration, then the number of Registrable Shares, Primary
Shares and/or Other Shares proposed to be included in such registration
shall be included in the following order:
(A) first, all Registrable Shares requested
to be included in such registration by the Shareholders who
requested such registration or made timely notice to the
Company of their request to include Registrable Shares in such
registration pursuant to Section 2(a), pro rata among such
requesting Shareholders based on the number of Registrable
Shares requested by each such requesting Shareholder to be so
registered;
(B) second, all Registrable Shares requested
to be included in such registration by the other Shareholders
who requested the inclusion of their Registrable Shares in
such registration pursuant to Section 3, pro
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rata among all such Shareholders based on the number of
Registrable Shares requested by each such Shareholder to be so
registered;
(C) third, the Primary Shares; and
(D) fourth, the Other Shares;
(ii) at any time before the Registration Statement
covering Registrable Shares becomes effective, the Shareholder or group
of Shareholders which requested such registration pursuant to Section
2(a) may request the Company to withdraw or not to file the
Registration Statement; and
(iii) the Company may, at its sole option, elect to
satisfy a request for a registration pursuant to Section 2(a) on Form
S-2 or Form S-3 promulgated under the Securities Act (or any successor
forms thereto), if such forms are then available to the Company.
(c) The Company shall file a registration statement with
respect to each registration requested pursuant to Section 2(a) as soon as
practicable after receipt of the demand of the requesting Shareholders;
provided, however, that if in the good faith judgment of the Board of Directors
of the Company, such registration would be seriously detrimental to the Company
in that such registration would interfere with a proposed primary registration
of securities by the Company or any other material corporate transaction and the
Board of Directors concludes, as a result, that it is advisable to defer the
filing of such registration statement at such time (as evidenced by an
appropriate resolution of the Board), then the Company shall have the right to
defer such filing for the period during which such registration would be
seriously detrimental; provided, further, however, that (i) the Company may not
defer the filing for a period of more than one hundred and twenty (120) days
after receipt of the demand of the requesting Shareholders, (ii) the Company
shall not exercise its right to defer such a registration more than once, and
(iii) if the Company undertakes a primary registration following an exercise of
its deferral right, the holders of Registrable Shares shall have "piggyback"
rights under Section 3 hereof with respect to not less than one-third (1/3) of
the number of shares of Registrable Shares to be sold in such offering.
SECTION 3. PIGGYBACK REGISTRATION.
If the Company at any time that is 180 days after its initial
Public Offering proposes for any reason to register shares of Common Stock under
the Securities Act (other than on Form S-4 or Form S-8 promulgated under the
Securities Act or any successor forms thereto), it shall promptly give written
notice to the Shareholders of its intention to so register such shares and, upon
the written request, delivered to the Company within 20 days after delivery of
any such notice by the Company, of any Shareholder to include in such
registration Registrable Shares (which request shall specify the number of
Registrable Shares proposed to be included in such registration), the Company
shall use its best efforts to cause all such Registrable Shares to be included
in
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such registration on the same terms and conditions as the Common Stock otherwise
being sold in such registration; provided, however, that if the managing
underwriter advises the Company that the inclusion of all Registrable Shares
requested to be included in such registration would interfere with the
successful marketing (including pricing) of the Primary Shares or Other Shares
proposed to be registered by the Company, then the number of Primary Shares,
Registrable Shares and Other Shares proposed to be included in such registration
shall be included in the following order:
(i) first, the Primary Shares or Other Shares
proposed to be registered by the Company; and
(ii) second, the Registrable Shares requested to be
included in such registration pursuant to this Section 3, pro rata
among the holders thereof based upon the number of Registrable Shares
requested to be registered by each such holder; and
(iii) any Other Shares.
SECTION 4. REGISTRATIONS ON FORM S-3.
Anything contained in Section 2 to the contrary
notwithstanding, at such time as the Company shall have qualified for the use of
Form S-3 promulgated under the Securities Act or any successor form thereto, a
Majority of Shareholders shall have the right to request in writing an unlimited
number of registrations of Registrable Shares on Form S-3 or such successor
form, which request or requests shall (i) specify the number of Registrable
Shares intended to be sold or disposed of and the holders thereof, (ii) state
the intended method of disposition of such Registrable Shares and (iii) relate
to Registrable Shares having an anticipated aggregate gross offering price
(before underwriting discounts and commissions) of at least $10,000,000, and
upon receipt of any such request, the Company shall use its best efforts
promptly to effect the registration under the Securities Act of the Registrable
Shares so requested to be registered. A requested registration on Form S-3 or
any such successor form in compliance with this Section 4 shall be treated as a
registration initiated pursuant to, and shall be subject to, the provisions of
Section 2.
SECTION 5. HOLDBACK AGREEMENT.
(a) If the Company at any time shall register shares of Common
Stock under the Securities Act (including any registration pursuant to Section
2, Section 3 or Section 4) for sale to the public pursuant to an underwritten
offering, the Shareholders shall not sell publicly, make any short sale of,
grant any option for the purchase of, or otherwise dispose publicly of, any
Registrable Shares (other than those shares of Common Stock included in such
registration pursuant to Sections 2, 3 or 4) without the prior written consent
of the Company, for a period designated by the Company in writing to the
Shareholders, which period shall not begin more than 10 days prior to the
effectiveness of the Registration Statement pursuant to which such public
offering shall be made and shall not last more than 180 days after the closing
of sale of shares pursuant to such
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Registration Statement. The Company shall use reasonable efforts to obtain the
agreement of any Person permitted to sell shares of Common Stock in a
registration to be bound by and to comply with this Section 5 with respect to
such registration as if such Person was a Shareholder hereunder.
(b) If the Company at any time pursuant to Section 2 or
Section 3 of this Agreement shall register under the Securities Act Registrable
Shares held by Shareholders for sale to the public pursuant to an underwritten
offering, the Company shall not 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 public offering shall be made and shall not last more than 180 days
after the closing of sale of shares pursuant to such Registration Statement.
SECTION 6. PREPARATION AND FILING.
(a) If and whenever the Company is under an obligation
pursuant to the provisions of this Agreement to use its best efforts to effect
the registration of, and keep effective a Registration Statement for, any
Registrable Shares, the Company shall, as expeditiously as practicable:
(i) use its best efforts to cause a Registration
Statement that registers such Registrable Shares to become and remain
effective for a period of 90 days (extended for such period of time as
the Shareholders are required to discontinue disposition of Registrable
Shares pursuant to Section 6(b) below) or until all of such Registrable
Shares have been disposed of (if earlier);
(ii) use its best efforts to furnish, at least five
business days before filing a Registration Statement that relates to
the registration of such Registrable Shares, a Prospectus relating
thereto or any amendments or supplements relating to such a
Registration Statement or Prospectus, to one counsel (the
"Shareholders' Counsel") selected by a Majority of Shareholders, copies
of all such documents proposed to be filed;
(iii) [Intentionally omitted];
(iv) notify in writing the Shareholders' Counsel, and
the Shareholders whose Registrable Shares may be included in such
Registration Statement, promptly of (A) the receipt by the Company of
any notification with respect to any comments by the Commission with
respect to such Registration Statement or Prospectus or any amendment
or supplement thereto or any request by the Commission for the amending
or supplementing thereof or for additional information with respect
thereto, (B) the receipt by the Company of any notification or written
information with respect to the issuance or threatened issuance by the
Commission of any stop order suspending the effectiveness of such
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Registration Statement or Prospectus or any amendment or supplement
thereto or the initiation or threatening of any proceeding for that
purpose (and the Company shall use its best efforts to prevent the
issuance thereof or, if issued, to obtain its withdrawal) and (C) the
receipt by the Company of any notification with respect to the
suspension of the qualification of such Registrable Shares for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purposes;
(v) use its best efforts to register or qualify such
Registrable Shares under such other securities or blue sky laws of such
jurisdictions as the Shareholders holding such Registrable Shares
reasonably request and do any and all other acts and things which may
be reasonably necessary or advisable to enable the Shareholders to
consummate the disposition in such jurisdictions of the Registrable
Shares owned by the Shareholders; provided, however, that the Company
will not be required to qualify generally to do business, subject
itself to general taxation or consent to general service of process in
any jurisdiction where it would not otherwise be required to do so but
for this clause (v);
(vi) furnish to the Shareholders holding such
Registrable Shares such number of copies of a summary Prospectus, if
any, or other Prospectus, including a preliminary Prospectus, in
conformity with the requirements of the Securities Act, and such other
documents as such Shareholders may reasonably request in order to
facilitate the public sale or other disposition of such Registrable
Shares;
(vii) use its best efforts to cause such Registrable
Shares to be registered with or approved by such other governmental
agencies or authorities as may be necessary by virtue of the business
and operations of the Company to enable the Shareholders holding such
Registrable Shares to consummate the disposition of such Registrable
Shares;
(viii) notify the Shareholders holding such
Registrable Shares on a timely basis at any time when a Prospectus
relating to such Registrable Shares is required to be delivered under
the Securities Act within the appropriate period mentioned in clause
(i) of this Section 6(a), of the happening of any event as a result of
which the Prospectus included in such Registration Statement, as then
in effect, includes an untrue statement of a material fact or omits to
state 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, and prepare and furnish to such
Shareholders a reasonable number of copies of, and file with the
Commission, a supplement to or an amendment of such Prospectus as may
be necessary so that, as thereafter delivered to the offerees of such
shares, such Prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
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(ix) subject to the execution of confidentiality
agreements in form and substance reasonably satisfactory to the
Company, make available upon reasonable notice and during normal
business hours, for inspection by the Shareholders holding Registrable
Shares requested to be included in such registration, any underwriter
participating in any disposition pursuant to such Registration
Statement and any attorney, accountant or other agent retained by the
Shareholders or underwriter (collectively, the "Inspectors"), all
pertinent financial and other records, pertinent corporate documents
and properties of the Company (collectively, the "Records"), 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 each case as shall be reasonably
necessary to enable them to exercise their due diligence responsibility
in connection with such Registration Statement; provided, however, that
any of the Information that the Company determines in good faith to be
confidential, and of which determination the Inspectors are so
notified, shall not be disclosed by the Inspectors unless (A) the
disclosure of such Information is necessary to avoid or correct a
misstatement or omission in the Registration Statement or Prospectus,
(B) the release of such Information is ordered pursuant to a subpoena
or other order from a court of competent jurisdiction or, upon the
written advice of counsel, is otherwise required by law, or (C) such
Information has been made generally available to the public, and the
Shareholders agree that they 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;
(x) use its best efforts to obtain from its
independent certified public accountants "cold comfort" letters in
customary form and at customary times and covering matters of the type
customarily covered by cold comfort letters;
(xi) use its best efforts to obtain from its counsel
an opinion or opinions in customary form naming the Shareholders as
additional addressees or parties who may rely thereon;
(xii) provide a transfer agent and registrar (which
may be the same entity and which may be the Company) for such
Registrable Shares;
(xiii) issue to any underwriter to which the
Shareholders holding such Registrable Shares may sell shares in such
offering certificates evidencing such Registrable Shares;
(xiv) list such Registrable Shares on any national
securities exchange on which any shares 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 Shares for
inclusion on the Nasdaq National Market;
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(xv) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission and make available
to its securityholders, as soon as reasonably practicable, earnings
statements (which need not be audited) covering a period of 12 months
beginning within three months after the effective date of the
Registration Statement, which earnings statements shall satisfy the
provisions of Section 11(a) of the Securities Act; and
(xvi) use its best efforts to take all other steps
necessary to effect the registration of, and maintain an effective
Registration Statement with respect to, such Registrable Shares
contemplated hereby.
(b) Each holder of the Registrable Shares, upon receipt of any
notice from the Company of any event of the kind described in Section 6(a)(viii)
hereof, shall forthwith discontinue disposition of the Registrable Shares
pursuant to the Registration Statement covering such Registrable Shares until
such holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 6(a)(viii) hereof, and, if so directed by the Company,
such holder shall deliver to the Company all copies, other than permanent file
copies then in such holder's possession, of the most recent Prospectus covering
such Registrable Shares at the time of receipt of such notice.
SECTION 7. EXPENSES.
All expenses (other than underwriting discounts and
commissions relating to the Registrable Shares) incurred by the Company and the
Shareholders in complying with this Agreement, including, without limitation,
all registration and filing fees (including all expenses incident to filings
with the National Association of Securities Dealers, Inc.), fees and expenses of
complying with securities and blue sky laws, printing expenses, fees and
expenses of the Company's counsel and accountants and fees and expenses of the
Shareholders' Counsel, shall be paid by the Company in connection with
registrations requested under Section 2 or Section 4; provided, however, that
all underwriting discounts and selling commissions applicable to the Registrable
Shares and Other Shares shall be borne by the holders selling such Registrable
Shares and Other Shares, in proportion to the number of Registrable Shares and
Other Shares sold by each such holder.
SECTION 8. INDEMNIFICATION.
(a) In connection with any registration of any Registrable
Shares under the Securities Act pursuant to this Agreement, the Company shall
indemnify and hold harmless, to the fullest extent permitted by law, each holder
of Registrable Shares, each underwriter, broker or any other Person acting on
behalf of the holders of Registrable Shares and each other Person, if any, who
controls any of the foregoing Persons within the meaning of the Securities Act
(each such indemnified Person being referred to herein as an "Indemnified
Person") against any losses, claims, damages or liabilities, joint or several
(or actions in respect thereof), to which any of the foregoing Persons may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities
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(or actions in respect thereof) arise out of or are based upon an untrue
statement or allegedly untrue statement of a material fact contained in or
incorporated by reference in the Registration Statement under which such
Registrable Shares were registered under the Securities Act, any preliminary
Prospectus or final Prospectus contained therein or otherwise filed with the
Commission, any amendment or supplement thereto or any document incident to
registration or qualification of any Registrable Shares, 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 not
misleading or, with respect to any Prospectus, necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or any violation by the Company of the Securities Act or state
securities or blue sky laws applicable to the Company and relating to action or
inaction required of the Company in connection with such registration or
qualification under such state securities or blue sky laws; and shall promptly
reimburse the Indemnified Persons for any legal or other expenses reasonably
incurred by any of them in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the Company
shall not be liable in any such case to any such Indemnified Person to the
extent that any such loss, claim, damage, liability or action (including any
legal or other expenses incurred) arises out of or is based upon: (i) an untrue
statement or allegedly untrue statement or omission or alleged omission made in
said Registration Statement, preliminary Prospectus, final Prospectus,
amendment, supplement or document incident to registration or qualification of
any Registrable Shares in reliance upon and in conformity with written
information furnished to the Company through an instrument duly executed by such
Indemnified Person specifically for use in the preparation thereof or (ii) any
Indemnified Person's failure to deliver a copy of the Prospectus (including any
amendment or supplement thereto) after the Company has delivered to such
Indemnified Person a sufficient number of copies of the same.
(b) In connection with any registration of Registrable Shares
under the Securities Act pursuant to this Agreement, each holder of Registrable
Shares being registered shall, severally and not jointly, to the fullest extent
permitted by law, indemnify and hold harmless (in the same manner and to the
same extent as set forth in Section 8(a) above) the Company, each director of
the Company, each officer of the Company who shall have signed such Registration
Statement, each other holder of Registrable Shares or Other Shares, each agent,
underwriter, broker or other Person acting on behalf of the Company, each other
holder of Registrable Shares or Other Shares and each Person who controls any of
the foregoing Persons within the meaning of the Securities Act with respect to
any statement or omission from such Registration Statement, any preliminary
Prospectus or final Prospectus contained therein or otherwise filed with the
Commission, any amendment or supplement thereto or any document incident to
registration or qualification of any Registrable Shares, if such statement or
omission was made in reliance upon and in conformity with written information
furnished to the Company or such underwriter through an instrument duly executed
by such holder specifically for use in connection with the preparation of such
Registration Statement, preliminary Prospectus, final Prospectus, amendment,
supplement or document; provided, however, that the
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maximum amount of liability in respect of such indemnification shall be
limited, in the case of each seller of Registrable Shares, to an amount equal to
the net proceeds actually received by such seller from the sale of Registrable
Shares effected pursuant to such registration.
(c) Promptly after receipt by an indemnified party of notice
of the commencement of any action involving a claim referred to in Section 8(a)
or Section 8(b), such indemnified party will, if a claim in respect thereof is
made against an indemnifying party, give written notice to the latter of the
commencement of such action; provided, however, that the indemnified party's
failure to give such notice shall not release, relieve or in any way affect the
indemnifying party's obligation hereunder to indemnify the indemnified party
unless and to the extent that the rights of the indemnifying party are
prejudiced thereby. In case any such action is brought against an indemnified
party, the indemnifying party will be entitled to participate in and to assume
the defense thereof, jointly with any other indemnifying party similarly
notified to the extent that he, she, or it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of his, her or its election so to assume the
defense thereof, the indemnifying party shall not be responsible for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof; provided, however, that if any indemnified party shall
have reasonably concluded (based on the written advice of counsel) that there
may be one or more legal or equitable defenses available to such indemnified
party which are additional to or conflict with those available to the
indemnifying party, or that such claim or litigation involves or could have an
effect upon matters beyond the scope of the indemnity agreement provided in this
Section 8, the indemnifying party shall not have the right to assume the defense
of such action on behalf of such indemnified party and such indemnifying party
shall reimburse such indemnified party and any Person controlling such
indemnified party for that portion of the fees and expenses of any counsel
retained by the indemnified party which is reasonably related to the matters
covered by the indemnity agreement provided in this Section 8.
(d) If the indemnification provided for in this Section 8 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, claim, damage, liability or action referred to
herein (other than as a result of the applicability of the proviso in Section
8(a)), then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amounts paid or payable by such
indemnified party as a result of such loss, claim, damage, liability or action
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions which resulted in such loss, claim,
damage, liability or action as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party 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 indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
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15
SECTION 9. UNDERWRITING AGREEMENT.
(a) If any registration pursuant to Section 2 or Section 4 is
requested to be an underwritten offering, the Company shall negotiate in good
faith to enter into a reasonable and customary underwriting agreement with the
underwriters thereof. The Company shall be entitled to receive indemnities from
lead institutions, underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, to the same
extent as provided above with respect to information so furnished in writing by
such Persons specifically for inclusion in any Prospectus or Registration
Statement and to the extent customary given their role in such distribution.
(b) No Shareholder may participate in any registration
hereunder that is underwritten unless such Shareholder agrees to (i) sell such
Shareholder's Registrable Shares proposed to be included therein on the basis
provided in any underwriting arrangements approved by the Company and a Majority
of Shareholders and (ii) as expeditiously as possible, notify the Company of the
occurrence of any event concerning such Shareholder as a result of which the
Prospectus relating to such registration contains an untrue statement of a
material fact or omits to state 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.
SECTION 10. INFORMATION BY HOLDER.
The Shareholders shall furnish to the Company such written
information regarding the Shareholders and the distribution proposed by the
Shareholders as the Company may reasonably request in writing and as shall be
reasonably required in connection with any registration, qualification or
compliance referred to in this Agreement.
SECTION 11. EXCHANGE ACT COMPLIANCE.
From the Registration Date or such earlier date as a
Registration Statement filed by the Company pursuant to the Exchange Act
relating to any class of the Company's securities shall have become effective,
the Company shall comply with all of the reporting requirements of the Exchange
Act applicable to it (whether or not it shall be required to do so) and shall
comply with all other public information reporting requirements of the
Commission which are conditions to the availability of Rule 144 for the sale of
the Common Stock. The Company shall cooperate with the Shareholders in supplying
such information as may be necessary for the Shareholders to complete and file
any information reporting forms presently or hereafter required by the
Commission as a condition to the availability of Rule 144.
SECTION 12. MERGERS, ETC.
The Company shall not, directly or indirectly, enter into any
merger, consolidation or reorganization in which the Company shall not be the
surviving
13
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corporation unless the surviving corporation shall, prior to such merger,
consolidation or reorganization, agree in writing to assume the obligations of
the Company under this Agreement, and for that purpose references hereunder to
"Registrable Shares" shall be deemed to include the shares of common stock, if
any, or other securities that the Shareholders would be entitled to receive in
exchange for Common Stock under any such merger, consolidation or
reorganization; provided, however, that, to the extent the Shareholders receive
securities that are by their terms convertible into shares of common stock of
the issuer thereof, then any such shares of common stock as are issued or
issuable upon conversion of said convertible securities shall be included within
the definition of "Registrable Shares."
SECTION 13. NEW CERTIFICATES.
As expeditiously as possible after the effectiveness of any
Registration Statement filed pursuant to this Agreement, the Company will
deliver in exchange for any legended certificate evidencing Registrable Shares
so registered, new stock certificates not bearing any restrictive legends.
SECTION 14. NO CONFLICT OF RIGHTS; SELECTION OF UNDERWRITER.
The Company shall not, at any time after the date hereof,
grant any registration rights that conflict with or impair, or have any parity
with or priority over, the registration rights granted hereby. In any Public
Offering, the managing underwriter shall be a nationally recognized investment
banking firm chosen by the Board.
SECTION 15. TERMINATION.
This Agreement shall terminate and be of no further force or
effect upon the written agreement of the Company, a majority of Registrable
Shares held by the Investors (which majority must include the affirmative vote
of all Registrable Shares then held by UBS) and a majority of Registrable Shares
held by the Continuing Shareholders or when there shall no longer be any
Restricted Shares outstanding.
SECTION 16. MISCELLANEOUS.
(a) Successors and Assigns. Except as expressly set forth
herein, this Agreement shall bind and inure to the benefit of the Company and
the Shareholders and, subject to Section 16(b), the respective successors and
assigns of the Company and the Shareholders. This Agreement is not intended to
create any third party beneficiaries.
(b) Assignment. Each Shareholder may assign its rights
hereunder to any purchaser or transferee of Registrable Shares; provided,
however, that such purchaser or transferee shall, as a condition to the
effectiveness of such assignment, unless already a party to this Agreement, be
required to execute a counterpart to this Agreement agreeing to be treated as
Shareholder hereunder, whereupon such purchaser or transferee shall have the
benefits of and shall be subject to the restrictions contained in this Agreement
as if
14
17
such purchaser or transferee was originally included in the definition of a
Shareholder and had originally been a party hereto.
(c) Severability. It is the desire and intent of the parties
hereto that the provisions of this Agreement be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, if any particular provision of this
Agreement shall be adjudicated by a court of competent jurisdiction to be
invalid, prohibited or unenforceable for any reason, such provision, as to such
jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of this
Agreement or affecting the validity or enforceability of such provision in any
other jurisdiction. Notwithstanding the foregoing, if such provision could be
more narrowly drawn so as not to be invalid, prohibited or unenforceable in such
jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
(d) Entire Agreement. This Agreement and the other writings
referred to herein or delivered pursuant hereto contain the entire agreement
among the parties with respect to the subject matter hereof and thereof and
supersede all prior and contemporaneous arrangements or understandings with
respect hereto and thereto.
(e) Notices. All communications hereunder to any party shall
be deemed to be sufficient if contained in a written instrument delivered in
person or sent by nationally-recognized overnight courier guaranteeing next day
delivery or first class registered or certified mail, return receipt requested,
postage prepaid, addressed to such party at its address below or such other
address as such party may hereafter designate in writing:
if to the Company, to:
Convergent Group Corporation
0000 Xxxxx Xxxxxxxx Xxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Chief Executive Officer
with a copy to:
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Nissan, Esq.
if to an Investor to each of the Investors listed on
Schedule I
15
18
with a copy to:
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Nissan, Esq.
if to the Continuing Shareholders, at the address of
the Company set forth above, or if so noted on
Schedule II hereto, at the addresses set forth on
Schedule II hereto.
with a copy to:
Holland & Xxxx LLP
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
All such notices, requests, consents and other communications
shall be deemed to have been given and received (i) in the case of personal
delivery, on the date of such delivery, (ii) in the case of dispatch by
nationally-recognized overnight courier, on the next business day following such
dispatch and (iii) in the case of mailing, on the third business day after the
posting thereof.
(f) Modifications; Amendments; Waivers. The terms and
provisions of this Agreement may not be modified or amended, nor may any
provision be waived, except pursuant to a writing signed by the Company, a
majority of all Registrable Shares held by the Investors (which majority must
include the affirmative vote of all Registrable Shares then held by UBS) and a
majority of all Registrable Shares held by the Continuing Shareholders. The
failure of any party to enforce any of the provisions of this Agreement shall in
no way be construed as a waiver of such provisions and shall not affect the
right of such party thereafter to enforce each and every provision of this
Agreement in accordance with its terms.
(g) Counterparts. This Agreement may be executed in any number
of counterparts, and each such counterpart hereof shall be deemed to be an
original instrument, but all such counterparts together shall constitute but one
agreement.
(h) Headings. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed to be a part of this Agreement.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICTING PROVISION OR RULE (WHETHER OF THE
STATE OF
16
19
DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE OF DELAWARE TO BE APPLIED. IN FURTHERANCE OF
THE FOREGOING, THE INTERNAL LAWS OF THE STATE OF DELAWARE WILL CONTROL THE
INTERPRETATION AND CONSTRUCTION OF THIS AGREEMENT, EVEN IF UNDER SUCH
JURISDICTION'S CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF
SOME OTHER JURISDICTION WOULD ORDINARILY APPLY.
(j) Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(k) Nouns and Pronouns. Whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include the
plural and vice-versa.
(1) Construction. Where specific language is used to clarify
by example a general statement contained herein, such specific language shall
not be deemed to modify, limit or restrict in any manner the construction of the
general statement to which it relates. The language used in this Agreement shall
be deemed to be the language chosen by the parties to express their mutual
intent, and no rule of strict construction shall be applied against any party.
(m) Effectiveness. This Agreement shall not be deemed
effective until it has been executed and delivered by all parties listed on the
signature pages hereto.
*****
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IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement on the day and year first above written.
CONVERGENT GROUP CORPORATION
By: /s/ XXXXX X. XXXXXXXXXX, XX.
-------------------------------------
Name: Xxxxx X. Xxxxxxxxxx, Xx.
Title: Chief Executive Officer
CONTINUING SHAREHOLDERS:
GMJM STOCK PARTNERSHIP, LTD.
By: /s/ XXXXX X. XXXXXXXXXX, XX.
-----------------------------------
Name: Xxxxx X. Xxxxxxxxxx, Xx.
Title: General Partner
XXXX X. XXXXXXX TRUST
By: /s/ XXXXX X. XXXXXXXXXX, XX.
-----------------------------------
Name: Xxxxx X. Xxxxxxxxxx, Xx.
Title: Trustee
By: /s/ XXXXX X. XXXXXX by POA
-----------------------------------
for Name: Xxxxx X. Xxxxxx
Title: Trustee
LEHE FAMILY PARTNERS, LTD.
By: /s/ XXXXX X. XXXXXXXX 8/12/99
-----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: General Partner
21
By: /s/ XXXXX X. XXXXX-XXXXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxx-Xxxxxxxx
Title: General Partner
/s/ XXXXX X. XXXXXXXXXX, XX.
----------------------------------------
Xxxxx X. Xxxxxxxxxx, Xx.
/s/ XXXXX X. XXXXXX
----------------------------------------
Xxxxx X. Xxxxxx
EAS TRUST
By: /s/ XXXXXX XXXXXX
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: Trustee
RES TRUST
By: /s/ XXXXXX XXXXXX
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: Trustee
----------------------------------------
Xxxxx X. Xxxxxx
----------------------------------------
Xxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. XxxXxxxxxx
[SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT]
22
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement on the day and year first above written.
CONVERGENT GROUP
CORPORATION
By:
--------------------
Name:
Title:
CONTINUING SHAREHOLDERS:
GMJM STOCK PARTNERSHIP, LTD.
By:
-------------------------
Name:
Title:
XXXX X. XXXXXXX TRUST
By:-------------------------
Name:
Title:
LEHE FAMILY PARTNERS, LTD.
By:
-------------------------
Name:
Title:
----------------------------
Xxxxx X. Xxxxxxxxxx, Xx.
----------------------------
Xxxxx. X. Xxxxxx
/s/ XXXXX X. XXXXXX
----------------------------
Xxxxx X. Xxxxxx
23
/s/ XXXX X. XXXXXXX
----------------------------
Xxxx X. Xxxxxxx
/s/ XXXXXX X. XXXXXXXXXX
----------------------------
Xxxxxx X. XxxXxxxxxx
/s/ XXXXXX X. XXXXXXXXXX
----------------------------
Xxxxxx X. Xxxxxxxxxx
/s/ XXXX X. ZASTAVA
----------------------------
Xxxx X. Zastava
/s/ XXXX X. XXXXXXX
----------------------------
Xxxx X. Xxxxxxx
/s/ XXXXXXX X. XXXXXX
----------------------------
Xxxxxxx X. Xxxxxx
/s/ XXXXX X. XXXXXX
----------------------------
Xxxxx X. Xxxxxx
24
INVESTORS:
INSIGHT CAPITAL PARTNERS III, L.P.
By: InSight Venture Associates III, L.L.C.
its General Partner
By: /s/ XXXXX XXXXXXX
-------------------------------------
Name:
Title:
INSIGHT CAPITAL PARTNERS III (CAYMAN), L.P.
By: InSight Venture Associates III, L.L.C.
its General Partner
By: /s/ XXXXX XXXXXXX
-------------------------------------
Name:
Title:
INSIGHT CAPITAL PARTNERS III (CO-INVESTORS), L.P.
By: InSight Venture Associates III, L.L.C.
its General Partner
By: /s/ XXXXX XXXXXXX
-------------------------------------
Name:
Title:
25
UBS CAPITAL II LLC
By: /s/ [ILLEGIBLE]
-------------------------------------
Name:
Title:
By: /s/ [ILLEGIBLE]
-------------------------------------
Name:
Title:
WI SOFTWARE INVESTORS LLC
By: Wexferd Management LLC, its investment manager
By: /s/ XXXXXX XXXXX
-------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
IMPRIMIS SB LP
By: Imprimis GP LLC, its General Partner
By: /s/ XXXXXX XXXXX
-------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
26
GS PRIVATE EQUITY PARTNERS II, L.P.
By: GS PEP II Advisors, L.L.C., General Partner
By: GSAM Gen-Par, L.L.C., Managing Member
By: /s/ XXXXX X. XXXX
-------------------------------------
Name: XXXXX X. XXXX
Title: Director
GS PRIVATE EQUITY PARTNERS II OFFSHORE, L.P.
By: GS PEP II Offshore Advisors, Inc.,
General Partner
By: /s/ XXXXX X. XXXX
-------------------------------------
Name: XXXXX X. XXXX
Title: Director
GS PRIVATE EQUITY PARTNERS III, L.P.
By: GS PEP III Advisors, L.L.C., General Partner
By: GSAM Gen-Par, L.L.C., Managing Member
By: /s/ XXXXX X. XXXX
-------------------------------------
Name: XXXXX X. XXXX
Title: Director
GS PRIVATE EQUITY PARTNERS III OFFSHORE, L.P.
By: GS PEP III Offshore Advisors, Inc.,
General Partner
By: /s/ XXXXX X. XXXX
-------------------------------------
Name: XXXXX X. XXXX
Title: Director
27
NBK/GS PRIVATE EQUITY PARTNERS, L.P.
By: GS PEP Offshore Advisors (NBK), Inc.,
General Partner
By: /s/ XXXXX X. XXXX
-------------------------------------
Name: Xxxxx X. Xxxx
Title: Director
/s/ XXXXXXX XXXXXXXX
----------------------------------------
Xxxxxxx Xxxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxx
[SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT]
28
SCHEDULE I
INVESTORS:
INSIGHT CAPITAL PARTNERS III, L.P.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
INSIGHT CAPITAL PARTNERS III (CAYMAN), L.P.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
INSIGHT CAPITAL PARTNERS III (CO-INVESTORS), L.P.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
UBS CAPITAL LLC
c/o UBS Capital LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
IMPRIMUS SB LP
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxx
WI SOFTWARE INVESTORS, LLC
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxx
29
GS PRIVATE EQUITY PARTNERS II, L.P.
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
GS PRIVATE EQUITY PARTNERS II OFFSHORE, L.P.
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
GS PRIVATE EQUITY PARTNERS III, L.P.
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
GS PRIVATE EQUITY PARTNERS III OFFSHORE, L.P.
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
NBK/GS PRIVATE EQUITY PARTNERS, L.P.
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
XXXXXXX XXXXXXXX
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
30
SCHEDULE II
CONTINUING SHAREHOLDERS:
GMJM Stock Partnership, Ltd.
Xxxx X. Xxxxxxx Trust
LEHE Family Partners, Ltd.
Xxxxx X. Xxxxxxxxxx, Xx.
Xxxxx X. Xxxxxx
EAS Trust
RBS Trust
Xxxxx X. Xxxxxx
Xxxx X. Xxxxxxx
Xxxxxx X. XxxXxxxxxx
Xxxxxx X. Xxxxxxxxxx
Xxxx X. Zastava
Xxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
-i-
