1
EXHIBIT 4.2
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
among
COMMERCIAL ELECTRONICS CAPITAL PARTNERSHIP, L.P.,
COMMERCIAL ELECTRONICS, L.L.C.,
THE NEW PURCHASERS LISTED HEREIN
and
E-SYNC NETWORKS, INC.
-----------------------
November 1, 1999
-----------------------
2
Table of Contents
1. Registration on Request...................................................................... -1-
2. Incidental Registration...................................................................... -3-
3. Registration Procedures...................................................................... -4-
4. Underwritten Offerings....................................................................... -6-
5. Preparation; Reasonable Investigation........................................................ -7-
6. Rights of Requesting Holders................................................................. -7-
7. Registration Expenses........................................................................ -8-
8. Indemnification and Contribution............................................................. -8-
9. Registration Rights to Others................................................................-10-
10. Nominees for Beneficial Owners...............................................................-10-
11. Rule 144.....................................................................................-10-
12. Additional New Purchasers; Addition of the Merging Purchasers................................-10-
13. Definitions..................................................................................-10-
14. Miscellaneous................................................................................-12-
3
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this "Agreement"),
dated as of November 1, 1999, by and among COMMERCIAL ELECTRONICS CAPITAL
PARTNERSHIP, L.P., a Delaware limited partnership, COMMERCIAL ELECTRONICS,
L.L.C., a Delaware limited liability company, (collectively, the "Original
Purchasers"), the parties listed on Schedule I hereto and the parties added to
such Schedule subsequent to the date hereof pursuant to Section 12 below
(collectively, the "New Purchasers"), and the parties identified as Merging
Purchasers in Section 12 below and added subsequent to the date hereof pursuant
to such Section (the "Merging Purchasers" and together with the Original
Purchasers and the New Purchasers, the "Purchasers") and E-SYNC NETWORKS, INC.,
a Delaware Corporation (as successor to Wiltek, Inc., a Connecticut corporation)
(the "Company"). Capitalized terms used herein and not otherwise defined shall
have the respective meanings given them in Section 13.
WHEREAS the Company and the Original Purchasers are parties to a
Registration Rights Agreement dated as of January 28, 1999 (the "Original
Agreement"); and
WHEREAS the Company and certain of the New Purchasers are parties to a
Subscription Agreement, dated as of the date hereof (the "Purchase Agreement"),
certain of the New Purchasers' obligations under which are conditioned upon the
execution and delivery of this Agreement; and
WHEREAS, the Company and the holders of the preference shares of E-Sync
Networks (UK) Ltd., an entity formed under the laws of England, and a wholly
owned subsidiary of the Company, are parties to an Exchange Agreement (the
"Exchange Agreement"), pursuant to which such preference shares may be exchanged
for the Company's Series B Senior Convertible Preferred Stock; and
WHEREAS, pursuant to the terms of the Exchange Agreement, upon the exchange
of shares contemplated therein, such shareholders are to be added to this
Agreement as New Purchasers; and
WHEREAS, the Company is party to an Agreement and Plan of Merger, dated as
of September 27, 1999 (the "Merger Agreement"), pursuant to which certain
parties will be acquiring capital stock of the Company and the closing of which
is conditioned upon, among other things, such parties becoming parties to this
Agreement; and
WHEREAS the Company and the Original Purchasers desire to amend and restate
the Original Agreement in the form of this Agreement to include the New
Purchasers and the Merging Purchasers as parties in accordance with the terms
herein, among other things;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
1. Registration on Request.
(1) Request. Except as otherwise provided in this Section 1, at any
time and from time to time, upon the written request of (x) one or more
Initiating Holders or (y) one or more Merging Purchaser Initiating Holders
requesting that the Company effect a registration under the Securities Act
of all or any part of such Initiating Holders' or Merging Purchaser
Initiating Holders' Registrable Securities, and specifying the intended
method or methods of disposition thereof, the Company will promptly, but in
any event within ten (10) days after receipt of such written request, give
written notice of such requested registration to all holders of Registrable
Securities, and thereupon will use its best efforts to effect, as
reasonably expeditiously as practicable, the registration under the
Securities Act, including by means of a shelf registration pursuant to Rule
415 under the Securities Act if so requested in such request (but in the
case of a shelf registration only if the Company is then eligible to use
Form S-2 or S-3 (or any successor forms) for such a
4
shelf registration), of:
(i) the Registrable Securities which the Company has been so
requested to register by such Initiating Holders or Merging Purchaser
Initiating Holders, for disposition in accordance with the intended
method or methods of disposition stated in such request,
(ii) all other Registrable Securities which the Company has been
requested to register by the holders thereof by written request
delivered to the Company within thirty (30) days after the giving of
such written notice by the Company (which request shall specify the
intended method or methods of disposition thereof), and
(iii) all other securities which the Company wishes to register,
whether for its own account or for the account of the holders thereof,
all to the extent necessary to permit the disposition (in accordance with
the intended methods thereof as aforesaid) of the Registrable Securities so
to be registered; provided that any holder of Registrable Securities to be
included in any such registration, by written notice to the Company within
ten (10) days after its receipt of a copy of a notice from the managing
underwriter delivered pursuant to Section 1(e), may withdraw such request
and, upon receipt of such notice of the withdrawal of such request from
holders comprising the Requisite Holders, the Company may elect not to
effect such registration.
(2) Number of Registrations. The Company shall not be required to
effect more than three (3) registrations pursuant to this Section 1 on
behalf of Initiating Holders and more than one (1) registration pursuant to
this Section 1 on behalf of Merging Purchaser Initiating Holders.
(3) Registration Statement Form. Registrations under this Section 1
shall be on such appropriate registration form of the Commission (i) as
shall be requested by the Requisite Holders (provided that the Company is
then eligible to use such form) and (ii) as shall permit the disposition of
such Registrable Securities in accordance with the intended method or
methods of disposition specified in the request for their registration.
(4) Effective Registration Statement. A registration requested
pursuant to this Section 1 shall not be deemed to have been effected (i)
unless a registration statement with respect thereto has become effective,
(ii) if the registration does not remain effective for a period of at least
ninety (90) days (or, with respect to any registration statement filed
pursuant to Rule 415 under the Securities Act, for a period of at least one
(1) year) or, in either case if earlier, until all the Registrable
Securities requested to be registered in connection therewith were sold or
withdrawn by the participating Holders, (iii) if, after it has become
effective, such registration is subject to any stop order, injunction or
other order or requirement of the Commission or other governmental agency
or court for any reason not attributable to actions taken by the holders of
Registrable Securities), or (iv) if the conditions to closing specified in
the purchase agreement or underwriting agreement entered into in connection
with such registration are not satisfied and no such closing occurs, other
than by reason of some act or omission by the holders of the Registrable
Securities that were to have been registered.
(5) Registration of Other Securities. Whenever the Company shall
effect a registration pursuant to this Section 1, no securities other than
Registrable Securities shall be included among the securities covered by
such registration unless holders of Registrable Securities requesting
registration thereof pursuant to Section 1, representing not less than 50%
of the Registrable Securities with respect to which registration has been
requested, shall have consented in writing to the inclusion of such other
securities.
(6) Postponement. The Company shall be entitled to postpone for a
reasonable period of time (but not exceeding sixty (60) days) the filing of
any registration statement otherwise required to be prepared and filed by
it pursuant to this Section 1 if the Company determines, in its reasonable
judgment, that such registration and offering would interfere with any
material financing, acquisition, corporate reorganization or other material
transaction involving the Company or any of its Affiliates and promptly
gives the holders of Registrable Securities requesting registration thereof
pursuant to this Section 1 written notice
-2-
5
of such determination, containing a general statement of the reasons for
such postponement and an approximation of the anticipated delay. The
Company may not postpone a filing pursuant to this Section 1(f) more than
once in any twelve-month period. If the Company shall so postpone the
filing of a registration statement, holders of Registrable Securities
requesting registration thereof pursuant to Section 1, representing not
less than 15% of the Registrable Securities with respect to which
registration has been requested and constituting not less than 50% of the
Initiating Holders, shall have the right to withdraw the request for
registration by giving written notice to the Company within thirty (30)
days after receipt of the notice of postponement and, in the event of such
withdrawal, such request shall not be counted for purposes of the requests
for registration to which holders of Registrable Securities are entitled
pursuant to Section 1.
(7) Limitations on Registration on Request. Notwithstanding anything
in this Section 1 to the contrary, the Company shall not be required to
effect a registration pursuant to this Section 1 (i) prior to the first
anniversary of the date hereof or (ii) within the 12-month period occurring
immediately subsequent to the effectiveness (within the meaning of Section
1(d) hereof) of a registration statement filed pursuant to this Section 1;
provided, however, that the limitation set forth in clause (i) of this
sentence shall not apply to the holders of the Company's Series A Senior
Convertible Preferred Stock as Initiating Holders on or following January
28, 2000; provided further, however, that the limitation set forth in
clause (i) of this sentence shall not apply to Merging Purchaser Initiating
Holders on or following the six month anniversary of the date hereof
requesting a registration of no more than 50% of all Merging Purchaser
Registrable Securities then outstanding.
2. Incidental Registration.
(1) Incidental Rights. If the Company at any time proposes to
register, on any form which may be used for the registration of Registrable
Securities other than Form S-4 or Form S-8 (or any successor or similar
forms then in effect), any of its securities under the Securities Act
(other than pursuant to Section 1), whether or not pursuant to registration
rights granted to other holders of its securities and whether or not for
sale for its own account, in a manner which would permit registration of
Registrable Securities for sale to the public under the Securities Act, it
will each such time give written notice to all holders of Registrable
Securities of its intention to do so and of such holders' rights under this
Section 2; such notice to be given to all such holders at least twenty (20)
days prior to the filing of such proposed registration statement. Upon the
written request of any such holder (a "Requesting Holder") made within
fifteen (15) days after the giving of any such notice (which request shall
specify the Registrable Securities intended to be disposed of by such
holder and the intended method or methods of disposition thereof), the
Company will use its best efforts to effect the registration under the
Securities Act of all Registrable Securities which the Company has been so
requested to register by the Requesting Holders, to the extent necessary to
permit the disposition (in accordance with the intended methods thereof as
aforesaid) of the Registrable Securities so to be registered. With respect
to an underwritten offering, prior to the effective date of any
registration statement filed in connection with a registration described in
this Section 2, promptly upon notification to the Company from the managing
underwriter of the price at which the Registrable Securities requested to
be registered pursuant to this Section 2 are to be sold, the Company shall
advise each Requesting Holder of such price, and if such price is below the
price which any Requesting Holder shall have indicated to be acceptable to
such Requesting Holder, such Requesting Holder shall then have the right to
withdraw its request to have its Registrable Securities included in such
registration statement. Notwithstanding anything stated in this Section to
the contrary, no holder of Merging Purchaser Registrable Securities may
include such securities in any registration made at the request of a
Merging Purchaser Initiating Holder prior to the first anniversary of the
date hereof if such inclusion would result in the registration of more than
50% of the Merging Purchaser Registrable Securities.
(2) Not Deemed a Demand Registration. No registration effected
pursuant to this Section 2 shall be deemed to have been effected pursuant
to Section 1.
(3) Holdback. If the Company previously shall have received a request
for registration pursuant to Section 1 or this Section 2, and if such
previous registration shall not have been withdrawn or abandoned, the
Company will not effect any registration of any of its securities under the
Securities Act, whether or not for sale for its own account, until a period
of ninety (90) days shall have elapsed from the effective date of such
previous registration.
-3-
6
(4) Discontinuance. Notwithstanding anything to the contrary in this
Section 2, the Company shall have the right to discontinue any registration
under this Section 2 at any time prior to the effective date of such
registration, if the registration of other securities giving rise to such
registration under this Section 2 is discontinued; but no such
discontinuation shall preclude an immediate or subsequent request for
registration pursuant to Section 1 or 2.
3. Registration Procedures. If and whenever the Company is required to
use its best efforts to effect the registration of any Registrable Securities
under the Securities Act as provided in Section 1 or Section 2, the Company will
promptly:
(1) prepare and (in any event within ninety (90) days after the end of
the period within which requests for registration may be given to the
Company) file with the Commission the requisite registration statement to
effect such registration and thereafter use its best reasonable efforts
promptly to cause such registration statement to become effective; provided
that the Company may discontinue any registration of its securities which
are not Registrable Securities at any time prior to the effective date of
the registration statement relating thereto;
(2) prepare and file with the Commission such amendments,
post-effective amendments and supplements to such registration statement
and the prospectus used in connection therewith as may be necessary to keep
such registration statement effective and to comply with the provisions of
the Securities Act with respect to the disposition of all Registrable
Securities covered by such registration statement until the earlier of (i)
such time as all of such Registrable Securities have either been disposed
of in accordance with the intended methods of disposition by the sellers
thereof set forth in such registration statement or the sale thereof has
been abandoned by such sellers and (ii) ninety (90) days after the
effective date of such registration statement, except with respect to any
such registration statement filed pursuant to Rule 415 (or any successor
Rule) under the Securities Act, in which case such period shall be one
year;
(3) furnish as soon as available to each seller of Registrable
Securities covered by such registration statement such number of copies of
such drafts and final versions of such registration statement and of each
such amendment, post-effective amendment and supplement thereto (in each
case including all exhibits), such number of copies of such drafts and
final versions of the prospectus contained in such registration statement
(including each preliminary prospectus and any summary prospectus), any
other prospectus filed under Rule 424 under the Securities Act, in
conformity with the requirements of the Securities Act, such documents, if
any, incorporated by reference in such registration statement or
prospectus, and such other documents, as such seller or such holder may
reasonably request;
(4) use its commercially reasonably efforts to register or qualify all
Registrable Securities covered by such registration statement under such
other securities or blue sky laws of such jurisdictions as each seller
thereof shall reasonably request, to keep such registration or
qualification in effect for so long as such registration statement remains
in effect, and take any other action which may be reasonably necessary or
advisable to enable such seller to consummate the disposition in such
jurisdictions of the securities owned by such seller, except that the
Company shall not for any such purpose be required to qualify generally to
do business as a foreign corporation in any jurisdiction wherein it would
not but for the requirements of this clause (d) be obligated to be so
qualified or to consent to general service of process in any such
jurisdiction;
(5) cooperate with the sellers of such Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold, which securities shall not bear any
restrictive legends indicating that the securities have not been registered
under the Securities Act and shall be in a form eligible for deposit with
The Depository Trust Company; and enable such Registrable Securities to be
in such denominations and registered in such names as such sellers may
request at least two (2) business days prior to any sale of Registrable
Securities;
(6) furnish to each seller of Registrable Securities upon request a
copy of (i) an opinion of counsel for the Company, dated the effective date
of such registration statement (or, if such registration involves an
underwritten public offering, dated the date of the closing under the
underwriting agreement), covering substantially the same matters with
respect to such registration statement (and the
-4-
7
prospectus included therein) as are customarily covered in opinions of
issuer's counsel in underwritten public offerings of securities and (ii) a
"comfort" letter signed by the independent public accountants who have
certified the Company's financial statements included or incorporated by
reference in such registration statement, covering substantially the same
matters with respect to such registration statement (and the prospectus
included therein) and, with respect to events subsequent to the date of
such financial statements, as are customarily covered in accountants'
comfort letters delivered to the underwriters in underwritten public
offerings of securities and such other financial matters as the Requisite
Holders or the underwriters, as the case may be, may reasonably request,
subject to the delivery by such seller to such independent public
accountants of such documents as are reasonable and customary in
transactions of this nature;
(7) promptly notify each seller of such Registrable Securities, and
(if requested by any such seller) confirm such advice in writing, (i) when
the prospectus or any prospectus supplement or post-effective amendment has
been filed and, with respect to the registration statement or any
post-effective amendment, when the same has become effective, (ii) of any
request by the Commission for amendments or supplements to the registration
statement or the prospectus or for additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness
of the registration statement or the initiation of any proceedings for that
purpose and (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose;
(8) promptly notify each seller of Registrable Securities covered by
such registration statement, at any time when a prospectus relating thereto
is required to be delivered under the Securities Act, upon discovery that,
or upon the happening of any event as a result of which, the prospectus
included in such registration statement, as then in effect, includes an
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances under which they were
made, and at the request of any such seller or holder promptly prepare and
furnish to such seller or holder a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so
that, as thereafter delivered to the purchasers or prospective purchasers
of such securities, such prospectus shall not include an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made;
(9) use its reasonable commercial efforts to obtain the withdrawal of
any order suspending the effectiveness of the registration statement at the
earliest possible time;
(10) otherwise comply with all applicable rules and regulations of the
Commission, and make available to its securities holders, as soon as
reasonably practicable, an earnings statement covering the period of at
least twelve months, but not more than eighteen (18) months, beginning with
the first full calendar month after the effective date of such registration
statement, which earning statement shall satisfy the provisions of Section
11(a) of the Securities Act, and furnish to each such seller at least ten
(10) days prior to the filing thereof a copy of any amendment or supplement
to such registration statement or prospectus and shall not file any thereof
to which any such seller shall have reasonably 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 or regulations
thereunder;
(11) provide and cause to be maintained a transfer agent and a
registrar for all Registrable Securities covered by such registration
statement from and after a date not later than the effective date of such
registration statement;
(12) cause all Registrable Securities covered by such registration
statement to be listed on each securities exchange or approved for
quotation on any inter-dealer quotation system on which similar securities
issued by the Company are then listed or quoted;
(13) makes its officers and employees available to participate in
presentations to potential purchasers of Registrable Securities;
-5-
8
(14) cause its subsidiaries and affiliates to take all action
necessary or advisable to effect the registration of the Registrable
Securities contemplated hereby, including preparing and filing any required
financial information;
(15) provide a CUSIP number for all Registrable Securities, not later
than the effective date of the applicable registration statement; and
(16) enter into such agreements and take such other actions as the
Requisite Holders shall reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities.
The Company may require each holder of Registrable Securities which will be
included in such registration (i) to furnish the Company such information
relating to such holder as the Company may reasonably request and as is required
by applicable laws or regulations, and (ii) to provide the Company with written
confirmation that such holder will comply with applicable laws and regulations,
and provide the Company with such further information necessary for the Company
to abide by applicable laws and regulations, in such form as the Company may
reasonably request.
4. Underwritten Offerings.
(1) Requested Underwritten Offerings. If requested by the underwriters
for any underwritten offering of Registrable Securities pursuant to a
registration requested under Section 1, the Company will use its
commercially reasonable efforts to enter into a firm commitment
underwriting agreement with such underwriters for such offering, such
agreement to be reasonably satisfactory in substance and form to the
underwriters and to contain such representations and warranties by the
Company and such other terms as are generally prevailing in such
agreements, including, without limitation, indemnities to the effect and to
the extent provided in Section 8. The holders of Registrable Securities to
be distributed by such underwriters shall be parties to such underwriting
agreement and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part of,
the Company to and for the benefit of such underwriters shall also be made
to and for the benefit of such holders of Registrable Securities. Except as
set forth in this Agreement, no holder of Registrable Securities shall be
required (i) to make any representations or warranties to or agreements
with the Company or the underwriters other than representations, warranties
or agreements regarding such holder, such holder's Registrable Securities
and such holder's intended method of distribution and any other
representation required by law or (ii) to indemnify (or contribute with
respect to an indemnifiable claim) the Company or any underwriters of the
Registrable Securities, except as set forth in Section 8.
(2) Incidental Underwritten Offerings. If the Company at any time
proposes to register any of its securities under the Securities Act as
contemplated by Section 2, whether or not pursuant to registration rights
granted to other holders of its securities and whether or not for sale for
its own account, and such securities are to be distributed by or through
one or more underwriters, the Company will, if requested by any holder of
Registrable Securities as provided in Section 2 and subject to the
provisions of this Section 4(b), use its best efforts to arrange for such
underwriters to include all the Registrable Securities to be offered and
sold by such holder among the securities to be distributed by such
underwriters; provided that if the managing underwriter of such
underwritten offering shall advise the Company in writing (with a copy to
the holders of Registrable Securities requesting such registration) that,
in its opinion the total number of shares which the Company, the holders of
Registrable Securities and any other holders of securities of the Company
propose to be included in such registration is sufficiently large to
materially and adversely affect the success of such offering (such writing
to state the basis of such opinion and the approximate number of such
securities which may be included in such offering without such effect),
then after inclusion of the number of securities to be sold by the Company
for its own account and the number of securities to be included pursuant to
contractual demand registration rights (other than the contractual
registration rights set forth herein) in such registration, the amount of
securities to be offered for the accounts of holders of Registrable
Securities shall be reduced pro rata (in accordance with the number of
Registrable Securities requested to be included in such registration) to
the extent necessary to reduce the total amount of securities to be
included in such offering to the amount recommended by such managing
underwriter; provided that if securities are being offered for the account
of other Persons as well as the Company, such reduction shall not represent
a greater fraction of the
-6-
9
number of securities intended to be offered by holders of Registrable
Securities than the fraction of similar reductions imposed on such other
Persons over the amount of securities they intended to offer. Any holder of
Registrable Securities to be included in such registration may withdraw its
request to have its securities so included by notice to the Company
promptly after receipt of a copy of a notice from the managing underwriter
pursuant to this Section 4(b). The holders of Registrable Securities to be
distributed by such underwriters shall be parties to the underwriting
agreement between the Company and such underwriters and may, at their
option, require that any or all of the representations and warranties by,
and the other agreements on the part of, the Company to and for the benefit
of such underwriters shall also be made to and for the benefit of such
holders of Registrable Securities. Except as set forth in this Agreement,
no holder of Registrable Securities shall be required (i) to make any
representations or warranties to or agreements with the Company or the
underwriters other than customary representations, warranties or agreements
regarding such holder, such holder's Registrable Securities and such
holder's intended method of distribution and any other representation
required by law or (ii) to indemnify (or contribute with respect to an
indemnifiable claim) the Company or any underwriters of the Registrable
Securities, except as set forth in Section 8, except to the extent that the
other holders of securities included in such registration statement (other
than holders of Registrable Securities) have agreed to make such
representations and warranties or to indemnify the Company in connection
with such registration.
(3) Holdback Agreements. Each holder of Registrable Securities agrees,
if so required by the managing underwriter, not to effect any public sale
or distribution of securities of the Company of the same class as the
securities included in such registration statement, during the seven (7)
days prior to the date on which any underwritten registration pursuant to
Section 1 or 2 has become effective and the ninety (90) days (or such
longer period as shall have been agreed to by all of the holders of
securities included in such registration statement other than the holders
of Registrable Securities) thereafter, except as part of such underwritten
registration or to the extent that such holder is prohibited by applicable
law from agreeing to withhold Registrable Securities from sale or is acting
in its capacity as a fiduciary or an investment adviser. The Company agrees
not to effect any public sale or distribution of its equity securities or
securities convertible into or exchangeable or exercisable for any of such
securities during the seven (7) days prior to and the ninety (90) days
after any underwritten registration pursuant to Section 1 or 2 has become
effective, except as part of such underwritten registration.
(4) Selection of Underwriters. If a requested registration pursuant to
Section 1 involves an underwritten offering, the underwriter or
underwriters thereof shall be selected by the Company, which selection
shall be subject to the approval of the Requisite Holders. If an incidental
registration pursuant to Section 2 involves one or more underwriters, the
underwriter or underwriters shall be selected by the Company.
5. Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement registering Registrable
Securities under the Securities Act, the Company will give the holders of
Registrable Securities on whose behalf such Registrable Securities are to be so
registered, and their underwriters, if any, and their respective counsel the
opportunity to participate in the preparation of such registration statement,
each prospectus included therein or filed with the Commission, and each
amendment thereof or supplement thereto, and will give each of them such access
to its books and records and such opportunities to discuss the business of the
Company with its officers and the independent public accountants who have
certified its financial statements as shall be necessary, in the opinion of such
holders and such underwriters or their respective counsel, to conduct a
reasonable investigation within the meaning of the Securities Act.
6. Rights of Requesting Holders. If any registration statement refers to
any Requesting Holder by name or otherwise as the holder of any securities of
the Company, such holder shall have the right to require (a) the insertion
therein of language, in form and substance reasonably satisfactory to such
holder, to the effect that, if true, the holding by such holder of such
securities does not necessarily make such holder a "controlling person" of the
Company within the meaning of the Securities Act or (b) in the event that such
reference to such holder by name or otherwise is not required by the Securities
Act or any rules and regulations promulgated thereunder, the deletion of the
reference to such holder.
-7-
10
7. Registration Expenses. The Company will, whether or not any registration
pursuant to this Agreement shall become effective, pay all Registration
Expenses incident to its performance under or compliance with this
Agreement promptly as such Registration Expenses are incurred.
8. Indemnification and Contribution.
(1) The Company will, and hereby does, indemnify and hold harmless, in
the case of any registration statement filed pursuant to Section 1 or 2,
each seller of any Registrable Securities covered by such registration
statement and each other Person who participates as an underwriter in the
offering or sale of such securities and each other Person, if any, who
controls such seller or any such underwriter within the meaning of the
Securities Act, and their respective directors, officers, partners, agents
and Affiliates, against any losses, claims, damages or liabilities, joint
or several, to which such seller or underwriter or any such director,
officer, partner, agent, Affiliate or controlling person may become subject
under the Securities Act or otherwise, including, without limitation, the
reasonable fees and expenses of legal counsel, insofar as such losses,
claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such securities were
registered under the Securities Act, any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances in which they were made
not misleading, and the Company will reimburse such seller or underwriter
and each such director, officer, partner, agent, Affiliate and controlling
Person for any legal or any other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, liability,
action or proceeding; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by or on behalf of such seller or underwriter, as
the case may be, specifically stating that it is for use in the preparation
thereof; and provided, further, that the Company shall not be liable to any
Person who participates as an underwriter in the offering or sale of
Registrable Securities or any other Person, if any, who controls such
underwriter within the meaning of the Securities Act, in any such case to
the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of such Person's
failure to send or give a copy of the final prospectus, as the same may be
then supplemented or amended, to the Person asserting an untrue statement
or alleged untrue statement or omission or alleged omission at or prior to
the written confirmation of the sale of Registrable Securities to such
Person if such statement or omission was corrected in such final prospectus
and such final prospectus was required to be delivered to such Person. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such seller or any such director,
officer, partner, agent, Affiliate or controlling person and shall survive
the transfer of such securities by such seller.
(2) As a condition to including any Registrable Securities in any
registration statement, the Company shall have received an undertaking
satisfactory to it from the prospective seller of such Registrable
Securities, to indemnify and hold harmless (in the same manner and to the
same extent as set forth in Section 8(a)) the Company, and each director of
the Company, each officer of the Company and each other Person, if any, who
participates as an underwriter in the offering or sale of such securities
and each other Person who controls the Company or any such underwriter
within the meaning of the Securities Act, with respect to any statement or
alleged statement in or omission or alleged omission from such registration
statement, any preliminary prospectus, final prospectus or summary
prospectus, contained therein, or any amendment or supplement thereto, if
such statement or alleged statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished
to the Company by such seller specifically stating that it is for use in
the preparation of such registration statement, preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement; provided,
however, that the liability of such indemnifying party under this Section
8(b) shall be limited to the amount of proceeds received by such
indemnifying party in the offering giving rise to such liability. Such
indemnity shall remain in full force and effect, regardless of any
investigation made by or on behalf of the Company or any such director,
officer or
-8-
11
controlling person and shall survive the transfer of such securities by
such seller.
(3) Promptly after receipt by an indemnified party of notice of the
commencement of any action or proceeding involving a claim referred to in
Section 8(a) or (b), such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to
the latter of the commencement of such action; provided, however, that the
failure of any indemnified party to give notice as provided herein shall
not relieve the indemnifying party of its obligations under the preceding
subdivisions of this Section 8, except to the extent that the indemnifying
party is actually prejudiced by such failure to give notice. In case any
such action is brought against an indemnified party the indemnifying party
shall be entitled to participate in and, unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, to assume the
defense thereof, jointly with any other indemnifying party similarly
notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by
the latter in connection with the defense thereof other than reasonable
costs of investigation. In the event a bona fide conflict of interest
between the indemnified and indemnifying parties exists, the indemnifying
party hereunder shall only be responsible for the payment of reasonable
fees and expenses of a single counsel for the indemnified parties
hereunder. No indemnifying party shall be liable for any settlement of any
action or proceeding effected without its written consent, which consent
shall not be unreasonably withheld. No indemnifying party shall, without
the consent of the indemnified party, which consent shall not be
unreasonably withheld, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release
from all liability in respect to such claim or litigation or which requires
action other than the payment of money by the indemnifying party.
(4) Contribution. If the indemnification provided for in this Section
8 shall for any reason be held by a court to be unavailable to an
indemnified party under Section 8(a) or (b) hereof in respect of any loss,
claim, damage or liability, or any action in respect thereof, then, in lieu
of the amount paid or payable under Section 8(a) or (b), the indemnified
party and the indemnifying party under Section 8(a) or (b) shall contribute
to the aggregate losses, claims, damages and liabilities (including legal
or other expenses reasonably incurred in connection with investigating the
same), (i) in such proportion as is appropriate to reflect the relative
fault of the Company and the prospective sellers of Registrable Securities
covered by the registration statement which resulted in such loss, claim,
damage or liability, or action or proceeding in respect thereof, with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action or proceeding in respect thereof, as well as
any other relevant equitable considerations or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as shall be appropriate to reflect the relative benefits
received by the Company and such prospective sellers from the offering of
the securities covered by such registration statement, provided, that for
purposes of clause (i) or (ii), the relative benefits received by the
prospective sellers shall be deemed not to exceed the amount of proceeds
received by such prospective sellers and no holder of Registrable
Securities shall be required to contribute any amount in excess of the
amount such holder would have been required to pay to an indemnified party
if the indemnity under clause (a) of this Section 8 was available. 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. As
among sellers who are guilty of such fraudulent misrepresentation, such
sellers' obligations to contribute as provided in this Section 8(d) are
several in proportion to the relative value of their respective Registrable
Securities covered by such registration statement and not joint. In
addition, no Person shall be obligated to contribute hereunder any amounts
in payment for any settlement of any action or claim effected without such
Person's consent, which consent shall not be unreasonably withheld.
(5) Indemnification and contribution similar to that specified in the
preceding subdivisions of this Section 8 (with appropriate modifications)
shall be given by the Company and each seller of Registrable Securities
with respect to any required registration or other qualification of
securities under any federal or state law or regulation of any governmental
authority other than the Securities Act.
-9-
12
(6) An indemnifying party shall make payments of all amounts required
to be made pursuant to the foregoing provisions of this Section 8 to or for
the account of the indemnified party from time to time promptly upon
receipt of bills or invoices relating thereto or when otherwise due or
payable; provided that the indemnified party shall reimburse the
indemnifying party for any payments made with the stated purpose of
satisfying the requirements of this clause (f) which were not required to
be made by this Section 8.
9. Registration Rights to Others. The Company hereby represents to the
holders of Registrable Securities that the rights granted herein do not conflict
with the rights, if any, granted to any other holder of securities of the
Company. If the Company shall at any time provide to any holder of any
securities of the Company rights with respect to the registration of such
securities under the Securities Act, such rights shall not be in conflict with
any of the rights provided in this Agreement to the holders of Registrable
Securities. The Company shall provide to the holders of Registrable Securities
copies of any agreements which purport to grant rights with respect to the
registration of any of the Company's securities to any holder or prospective
holder thereof promptly upon executing the same.
10. Nominees for Beneficial Owners. For purposes of this Agreement, in the
event that any Registrable Securities are held by a nominee for the beneficial
owner thereof, the beneficial owner thereof may, at its election, be treated as
the holder of such Registrable Securities for purposes of any request or other
action by any holder or holders of Registrable Securities pursuant to this
Agreement or any determination of any number or percentage of shares of
Registrable Securities held by any holder or holders of Registrable Securities
contemplated by this Agreement. If the beneficial owner of any Registrable
Securities so elects, the Company may require assurances reasonably satisfactory
to it of such owner's beneficial ownership of such Registrable Securities.
11. Rule 144. So long as the Company shall be required to file reports
under the Exchange Act, the Company shall take all actions reasonably necessary
to enable holders of Registrable Securities to sell such securities without
registration under the Securities Act within the limitation of the provisions of
Rule 144 under the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the Commission,
including, without limitation, filing on a timely basis all reports required to
be filed pursuant to the Exchange Act. Upon the request of any holder of
Registrable Securities, the Company will deliver to such holder a written
statement as to whether it has complied with such requirements.
12. Additional New Purchasers; Addition of the Merging Purchasers. Without
the consent of any Original Purchasers or New Purchasers, at any time after the
date hereof the Company may (a) add additional New Purchasers in accordance with
the terms of the Purchase Agreement and the Exchange Agreement, provided that
such New Purchasers execute a counterpart to this Agreement and Schedule I
hereto is amended accordingly, and (b) add Xxx Xxxxxxx and Xxxxx Xxxxx as
Merging Purchasers in accordance with the terms of the Merger Agreement,
provided that such Merging Purchasers execute a counterpart to this Agreement.
Upon such execution, each of the additional New Purchasers and the Merging
Purchasers agree to be bound by and subject to the provisions of this Agreement
and the other Purchasers agree that such additional New Purchasers and the
Merging Purchasers shall be entitled to the rights and benefits incident hereto.
13. Definitions. As used herein, unless the context otherwise requires, the
following terms have the following respective meanings:
"Affiliate" means any Person controlling, controlled by or under common
control with the Person in question. As used herein, "control" means the
beneficial ownership of at least a majority of the equity interests of a Person
entitling the owner of such interests to direct the policies and operations of
such Person.
"Commission" means the Securities and Exchange Commission and any successor
federal agency having similar powers.
-10-
13
"Common Stock" means the Common Stock, no par value, of the Company,
together with any stock into which such Common Stock shall have been changed or
any stock resulting from any reclassification of such Common Stock, and all
other stock of any class or classes (however designated) of the Company the
holders of which have the right, without limitation as to amount, either to all
or to a share of the balance of current dividends and liquidating dividends
after the payment of dividends and distributions on any shares entitled to
preference, but shall not mean the Preferred Stock.
"Company" shall have the meaning assigned such term in the introductory
paragraph of this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Initiating Holders" means, (i) for the period beginning on the date hereof
and ending on the day preceding the first anniversary of the date hereof, any
holder or holders of the Company's Series A Senior Convertible Preferred Stock
or Common Stock issued or issuable upon conversion of such shares of Preferred
Stock holding individually or in the aggregate more than 50% of such shares then
outstanding (determined on an as-if converted basis), and (ii) for the period
beginning on the first anniversary of the date hereof, any holder or holders of
Registrable Securities holding individually or in the aggregate more than 50% of
the shares of Registrable Securities then outstanding.
"Merger Agreement" shall have the meaning assigned to such term in the
recitals of this Agreement.
"Merging Purchasers" shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.
"Merging Purchaser Initiating Holders" means, as of any date of
determination, any holder or holders of Merging Purchaser Registrable Securities
holding individually or in the aggregate more than 50% of the shares of Merging
Purchaser Registrable Securities then outstanding.
"Merging Purchaser Registrable Securities" means shares of Common Stock (i)
described in clause (iii) of the definition of Registrable Securities or (ii)
issued or issuable on such securities (and only on such securities) by way of a
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or antidilution
protection or otherwise.
"New Purchasers" shall have the meaning assigned such term in the
introductory paragraph of this Agreement.
"Original Purchasers" shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.
"Person" means an individual, a partnership, a limited liability company, a
joint venture, a corporation, a trust, an association, an organization, a
business, an unincorporated organization or a government or political
subdivision thereof or agency thereof or other entity of any kind.
"Preferred Stock" means the Company's Series A Senior Convertible Preferred
Stock and Series B Senior Convertible Preferred Stock, no par value.
"Purchase Agreement" shall have the meaning assigned to such term in the
recitals of this Agreement.
"Purchasers" shall have the meaning assigned such term in the introductory
paragraph of this Agreement.
-11-
14
"Registrable Securities" means any shares of Common Stock (i) sold to the
Original Purchasers pursuant to the Stock Purchase Agreement, (ii) issued or
issuable upon conversion of shares of Preferred Stock sold or issued to the
Original Purchasers or the New Purchasers pursuant to the Securities Purchase
Agreement, the Purchase Agreement or the Exchange Agreement, as applicable, or
upon exercise of the Warrants, (iii) issued to the Merging Purchasers pursuant
to the Merger Agreement, or (iv) issued or issuable with respect to any of the
securities referred to in clauses (i), (ii) or (iii) by way of a dividend or
stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization or antidilution protection or
otherwise. As to any particular Registrable Security, such security shall cease
to be a Registrable Security when (x) a registration statement with respect to
the sale of such security shall have become effective under the Securities Act
and the holder thereof shall have had the opportunity to dispose of such
security in accordance with such registration statement, (y) such security shall
have been sold as permitted by Rule 144 (or any successor provision) under the
Securities Act, or (z) such security, once issued, shall have ceased to be
outstanding.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with Sections 1 and 2, including, without
limitation, all registration and filing fees, all fees of national securities
exchanges or the National Association of Securities Dealers, Inc., all fees and
expenses of complying with securities or blue sky laws, all word processing,
duplicating and printing expenses, messenger and delivery expenses, the fees and
disbursements of counsel for the Company and of its independent public
accountants, including the expenses of "cold comfort" letters required by or
incident to such performance and compliance, any fees and disbursements of
underwriters customarily paid by issuers or sellers of securities (excluding any
underwriting discounts or commissions with respect to the Registrable
Securities, which shall not be paid by the Company) and all of the first
$10,000, and 50% of the amount in excess of $10,000, of the reasonable fees and
expenses of one counsel to the selling holders of Registrable Securities
(selected by selling holders of Registrable Securities representing a majority
of the Registrable Securities covered by such registration); provided, however,
that in the event the Company shall, in accordance with Section 2(d), not
register any securities with respect to which it had given written notice of its
intention to so register to holders of Registrable Securities, all of the costs
of the type (and subject to any limitation to the extent) set forth in this
definition and incurred by Requesting Holders in connection with such
registration shall be deemed Registration Expenses.
"Requesting Holders" shall have the meaning assigned to such term in
Section 2 hereof.
"Requisite Holders" means with respect to any registration of Registrable
Securities by the Company pursuant to this Agreement, any holder or holders of a
majority of the Registrable Securities requested to be registered; provided,
however, that in the case of a demand by Merging Purchaser Initiating Holders
pursuant to Section 1(a) above, "Requisite Holders" means any holder or holders
of a majority of the Merging Purchaser Registrable Securities requested to be
registered.
"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 at the time.
"Securities Purchase Agreement" means the Securities Purchase Agreement
dated January 28, 1999 by and between the Company and the Original Purchasers.
"Stock Purchase Agreement" means the Stock Purchase Agreement dated January
28, 1999 by and between the stockholders listed therein and the Company.
"Warrants" means the Warrants issued pursuant to the Securities Purchase
Agreement to purchase up to 1,500,000 shares of Common Stock.
14. Miscellaneous.
(1) Remedies. Each holder of Registrable Securities, in addition to
the rights provided herein and at law, including recovery of damages, will
be entitled to specific performance of its rights
-12-
15
under this Agreement. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by the
Company of the provisions of this Agreement and hereby agrees to waive the
defense in any action for specific performance that a remedy at law would
be adequate.
(2) Adjustments Affecting Registrable Securities. The Company will not
take any action, or permit any change to occur, with respect to the
Registrable Securities which would adversely affect the ability of the
holders of Registrable Securities to include such Registrable Securities in
a registration undertaken pursuant to the terms of this Agreement.
(3) Amendments and Waivers. Other than the addition of parties to this
agreement pursuant to Section 12, the provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may not be given unless the Company has obtained the written consent
of holders of a majority of the Registrable Securities.
(4) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, or air courier guaranteeing overnight delivery:
(i) if to a holder of Registrable Securities, at the most current
address given by such holder to the Company in accordance with the
provisions of this Section 14(d); and
(ii) if to the Company, at E-Sync Networks, Inc., 000 Xxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxxx 00000, Attention: President; or at such
other address, notice of which is given in accordance with the
provisions of this Section 14(d).
All such notices and communications shall be deemed to have been duly
given at the time delivered by hand, if personally delivered; five (5)
business days after being deposited in the mail, postage prepaid, if
mailed; and on the next business day if timely delivered to an air courier
guaranteeing overnight delivery.
(5) Assignment. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and, with respect to
the Company, its respective successors and permitted assigns and, with
respect to the Purchasers, any subsequent holder of any Registrable
Securities, subject to the provisions respecting the minimum numbers of
percentages of shares of Registrable Securities required in order to be
entitled to certain rights, or take certain actions, contained herein. This
Agreement may not be assigned by the Company without the prior written
consent of the holders of a majority of the Registrable Securities at the
time such consent is requested. The Purchasers (and not any other holder of
Registrable Securities or any other Person) shall be permitted, in
connection with the transfer or disposition of Registrable Securities, to
impose conditions or constraints on the ability of the transferee, as a
holder of Registrable Securities, to request a registration pursuant to
Section 1 and shall provide the Company with copies of such conditions or
constraints and the identity of such transferees.
(6) Calculation of Percentage Interests in Registrable Securities. For
purposes of this Agreement, all references to a percentage of the
Registrable Securities shall be calculated based upon the number of shares
of Registrable Securities outstanding at the time such calculation is made,
assuming, if applicable, the exercise, conversion or exchange of the
Company's securities into Registrable Securities in accordance with the
terms of such securities.
(7) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same Agreement.
(8) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
-13-
16
(9) GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES.
(10) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
(11) Certain Distributions. The Company shall not at any time make a
distribution on or with respect to the Common Stock (including any such
distribution made in connection with a consolidation or merger in which the
Company is the resulting or surviving corporation and such Registrable
Securities are not changed or exchanged) of securities of another issuer if
holders of Registrable Securities are entitled to receive such securities
in such distribution as holders of Registrable Securities and any of the
securities so distributed are registered under the Securities Act, unless
the securities to be distributed to the holders of Registrable Securities
are also registered under the Securities Act.
(12) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein and therein. There
are no restrictions, promises, warranties or undertakings, other than those
set forth or referred to herein and therein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to
such subject matter.
* * * * *
-14-
17
IN WITNESS WHEREOF, each of the undersigned has executed this Registration
Rights Agreement as of the date first above written.
THE COMPANY:
E-SYNC NETWORKS, INC.
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
___________________________________
Name: Xxxxx X. Xxxxxxxx, Xx.
Title: Chief Financial Officer
THE ORIGINAL PURCHASERS:
COMMERCIAL ELECTRONICS CAPITAL
PARTNERSHIP, L.P.
By Electronics Investments, L.L.C.
Its General Partner
By: /s/ Xxxxxx X. Xxxxxx
___________________________________
Name: Xxxxxx X. Xxxxxx
Its: Member
COMMERCIAL ELECTRONICS, L.L.C.
By Electronics Investments, L.L.C.
Its General Partner
By: /s/ Xxxxxx X. Xxxxxx
___________________________________
Name: Xxxxxx X. Xxxxxx
Its: Member
[Signature Page to the Registration Rights Agreement]
15
18
THE NEW PURCHASERS:
_________________________________________
Phillipe and C. Feront Brawerman
Commercial Electronics, LLC
_________________________________________
Name:
Title:
SDJ Investments, LLC
_________________________________________
Name:
Title:
Xxxxxx Partners L.P.
_________________________________________
Name:
Title:
Allenwood Ventures, Inc.
_________________________________________
Name:
Title:
_________________________________________
Xxxxxxx X. Xxxxxxxx
_________________________________________
Xxxx Xxx
_________________________________________
Xxxxx X. Xxxxxx
_________________________________________
Xxxxxxx X. Xxxxxx
-00-
00
XXX XXX XXXXXXXXXX:
_________________________________________
Xxxxx X. Xxx
Socatean Partners
_________________________________________
Name:
Title:
CWPI, LLC
_________________________________________
Name:
Title:
Xxxxxxx Hole Investments Acquisitions L.P.
_________________________________________
Name:
Title:
_________________________________________
Xxxxxxx X. Xxxxxxxx
_________________________________________
Xxxx X. Xxxxxxx, III
THE MERGING PURCHASERS:
/s/ Xxx Xxxxxxx
_________________________________________
Xxx Xxxxxxx
/s/ Xxxxx Xxxxx
_________________________________________
Xxxxx Xxxxx
[Signature Page to the Registration Rights Agreement]
-17-
