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PREFERRED STOCKHOLDER
REGISTRATION RIGHTS AGREEMENT
DATED AS OF JULY 21, 1999
BY AND AMONG
USOL HOLDINGS, INC.,
FIRSTLINK COMMUNICATIONS, INC.
AND
THE ENTITIES SET FORTH IN SCHEDULE A HERETO
(EACH, A "SHAREHOLDER")
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TABLE OF CONTENTS
ARTICLE/SECTION HEADING PAGE
--------------- ------- ----
ARTICLE I DEFINITIONS..........................................................2
1.1 Defined Terms...........................................................2
ARTICLE II TRANSFERS OF SHARES.................................................3
2.1 Shareholder Common Stock Unregistered...................................3
2.2 Rule 144 Reporting......................................................4
ARTICLE III REGISTRATION RIGHTS................................................4
3.1 Demand Registration.....................................................4
3.2 Right to Include Securities.............................................6
3.3 Priority in Incidental Registration.....................................6
3.4 Registration Procedures.................................................7
3.5 Incidental Underwritten Offerings......................................10
3.6 Preparation; Reasonable Investigation..................................10
3.7 Limitations, Conditions and Qualifications to Obligations under
Registration Covenants.................................................11
3.8 Expenses...............................................................12
3.9 Indemnification........................................................12
3.10Participation in Underwritten Registrations............................15
ARTICLE IV MISCELLANEOUS......................................................15
4.1 Recapitalizations, Exchanges, Etc., Affecting Shareholder Common
Stock..................................................................15
4.2 Binding Effect.........................................................15
4.3 Amendment; Waiver......................................................16
4.4 Notices................................................................16
4.5 Governing Law..........................................................16
4.6 Counterparts...........................................................16
4.7 Invalidity.............................................................16
4.8 Cumulative Remedies....................................................17
4.9 Assumption by FirstLink................................................17
EX 99.5 - i
USOL HOLDINGS, INC. PREFERRED STOCK REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of July 21, 1999, by and among USOL
Holdings, Inc., a Delaware corporation ("USOL"), FirstLink Communications, Inc.,
an Oregon corporation ("FirstLink") and each of the entities set forth on
Schedule A attached hereto and any permitted transferee of the shares of Series
A Preferred Stock (as defined below) and Series B Preferred Stock (as defined
below) held by such entities (each such entity and transferee, a "Shareholder").
W I T N E S S E T H:
WHEREAS, pursuant to separate Subscription Agreements, each dated as of
July 21, 1999, by and between USOL and each of the Shareholders (the
"Subscription Agreements"), the Shareholders have purchased an aggregate of
1,325,000 shares of USOL's Series A Convertible Preferred Stock, par value
$0.001 per share ("Series A Preferred Stock") which shall be convertible into
shares of USOL's common stock, par value $0.001 per share ("Common Stock"); and
155,000 shares of USOL's Series B Convertible Preferred Stock, par value $0.001
per share ("Series B Preferred Stock") which shall be convertible into shares of
Series A Preferred Stock or Common Stock; and
WHEREAS, the Subscription Agreements provide that the Shareholders will
have certain registration rights and it is a condition to the consummation of
the purchase and sale of the Series A Preferred Stock and Series B Preferred
Stock that each of the Shareholders and USOL enter into this Registration Rights
Agreement; and
WHEREAS, USOL, Inc., a Delaware corporation ("USOL Sub"), USOL, U.S. OnLine
Communications, Inc., a Delaware corporation ("OnLine") and certain shareholders
of Online have entered into an Asset Purchase Agreement dated the date hereof,
whereby USOL Sub shall purchase substantially all of the assets of OnLine (the
"USOL Acquisition") concurrently with the execution of this Agreement; and
WHEREAS, XxxXxxxxxxxXxxx.xxx, Inc., a Delaware corporation ("TRC"), GMAC
Commercial Mortgage Corporation ("GMAC-CM") and USOL have entered into an Asset
Purchase Agreement dated the date hereof, whereby TRC shall purchase certain of
the assets of the Tenant Services Division of GMAC-CM (the "TSD Acquisition")
concurrently with the execution of this Agreement; and
WHEREAS, USOL and FirstLink Communications, Inc., an Oregon corporation
("FirstLink") have entered into an Agreement and Plan of Merger and
Reorganization dated as of July 21, 1999 (the "Merger Agreement"), whereby,
subsequent to the USOL Acquisition and the TSD Acquisition and subject to the
satisfaction of conditions set forth in the Merger Agreement, USOL shall merge
with and into FirstLink (the "Merger"); and
WHEREAS, pursuant to the Merger Agreement, each share of Series A Preferred
Stock and Series B Preferred Stock shall be exchanged for one share of Series A
Convertible
USOL HOLDINGS, INC. PREFERRED STOCK REGISTRATION RIGHTS AGREEMENT
Preferred Stock of FirstLink (the "FirstLink Series A Preferred Stock") and
Series B Convertible Preferred Stock of FirstLink (the "Firstlink Series B
Preferred Stock"), respectively having equivalent rights and preferences as the
USOL Series A Preferred Stock and Series B Preferred Stock (together, "FirstLink
Preferred Stock"); and
WHEREAS, USOL, FirstLink and the Shareholders believe that it is in their
best interests to enter into this Agreement pertaining to the registration of
their respective shares of USOL, and after the closing of the Merger, their
respective shares of FirstLink, on the terms and conditions set forth below;
NOW, THEREFORE, in order to implement the foregoing and in consideration of
the mutual representations, warranties, covenants and agreements contained
herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINED TERMS. Capitalized terms used herein but not otherwise defined
shall have the meaning given to such terms in the Subscription Agreements.
"CLOSING" shall mean the consummation of the Subscription Agreements and
the transactions contemplated thereby by the Company and the Shareholders.
"COMPANY" shall mean (a) USOL at all times prior to the closing of the
Merger and (b) FirstLink upon the closing of the Merger and at all times
thereafter.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder as the same may be amended
from time to time.
"EXCLUDED REGISTRATION" means a registration under the Securities Act of
(i) securities pursuant to the demand registration rights pursuant to SECTION
3.1.1 hereof, (ii) securities registered on Form S-8 under the Securities Act or
any similar successor form and (iii) securities registered to effect the
acquisition of or combination with another Person.
"PERSON" shall mean any individual, partnership, joint venture,
corporation, limited liability company, trust, joint stock company, business
trust, unincorporated association, joint venture, governmental authority or any
department or agency thereof or other entity of any nature whatsoever.
"QUALIFIED IPO" means a firm commitment underwritten public offering of
Common Stock pursuant to a registration statement under the Securities Act where
both (i) the proceeds to USOL (prior to deducting any underwriters' discounts
and commissions) equal or exceed Twenty-Five Million Dollars ($25,000,000) and
(ii) upon consummation of such offering, the Common Stock is listed on the New
York Stock Exchange or authorized to be quoted and/or listed on the Nasdaq
National Market.
EX 99.5 - 2
USOL HOLDINGS, INC. PREFERRED STOCK REGISTRATION RIGHTS AGREEMENT
"SEC" shall mean the Securities and Exchange Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, and all
rules and regulations promulgated thereunder as the same may be amended from
time to time.
"SELLING SECURITYHOLDER" shall mean any seller of Shareholder Common Stock
covered by a registration statement.
"SHAREHOLDER COMMON STOCK" shall mean shares of Common Stock issued or
issuable to the Shareholders upon conversion of the Series A Preferred Stock and
Series B Preferred Stock.
"WARRANTS" shall mean collectively the warrants dated the date hereof
issued by USOL to certain of the creditors of Online and the warrants dated the
date hereof issued by USOL to GMAC-CM.
ARTICLE II
TRANSFERS OF SHARES
2.1 SHAREHOLDER COMMON STOCK UNREGISTERED. Each Shareholder acknowledges
and represents that he has been advised by the Company that:
(a) the offer and sale of the Shareholder Common Stock have not been
registered under the Securities Act;
(b) the Shareholder Common Stock must be held and the Shareholder must
continue to bear (and is able to bear) the economic risk of the investment
in the Shareholder Common Stock, subject to the terms and conditions of the
Subscription Agreements until (i) the Shareholder Common Stock is
registered pursuant to an effective registration statement under the
Securities Act and all applicable state securities laws or (ii) an
exemption from such registration is available;
(c) when and if shares of the Shareholder Common Stock may be disposed
of without registration under the Securities Act in reliance on Rule 144
thereunder ("Rule 144"), such disposition can be made only in limited
amounts in accordance with the terms and conditions of such Rule;
(d) if the Rule 144 exemption is not available, any offer or sale of
Shareholder Common Stock without registration will require compliance with
some other exemption under the Securities Act;
(e) a restrictive legend in the form set forth in Section 7.2 of the
Subscription Agreements shall be placed on the certificates representing
the Shareholder Common Stock; and
(f) a notation shall be made in the appropriate records of the Company
indicating that the Shareholder Common Stock is subject to restrictions on
transfer, and
EX 99.5 - 3
USOL HOLDINGS, INC. PREFERRED STOCK REGISTRATION RIGHTS AGREEMENT
appropriate stop-transfer instructions will be issued to the Company's
transfer agent with respect to the Shareholder Common Stock.
2.2 RULE 144 REPORTING. The Company agrees that to the extent reasonably
necessary to permit the Shareholders to sell shares of the Shareholder Common
Stock in accordance with and in reliance on Rule 144, and for so long as such
shares are owned by the Shareholders and such shares are not registered for
resale under the Securities Act, the Company will use its reasonable best
efforts to:
(a) make and keep public information available within the meaning of
Rule 144 under the Securities Act, at all times from and after the Closing
Date;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange
Act; and
(c) so long as any Shareholder owns any Shareholder Common Stock,
inform such person upon request as to its compliance with the reporting
requirements of Rule 144 and of the Securities Act and the Exchange Act,
and provide a copy of the most recent annual or quarterly report of the
Company and such other reports and documents filed with the SEC and
available to the public as may reasonably be requested in availing such
Shareholder of any rule or regulation of the SEC allowing a sale of any
such securities without registration.
Anything to the contrary contained in this Section 2.2 notwithstanding, the
Company may deregister any of its securities under the Exchange Act if it is
then permitted to do so pursuant to the Exchange Act in which case the
provisions of this Section 2.2 insofar as they relate to obligations to make
filings under the Exchange Act that would no longer be required as a result of
such delisting shall be of no further force or effect. Nothing in this Section
shall be deemed to limit in any manner the restriction on sales of Shareholder
Common Stock contained in this Agreement.
ARTICLE III
REGISTRATION RIGHTS
3.1 DEMAND REGISTRATION.
3.1.1 DEMAND RIGHTS. At any time after the first to occur of (i) 180
days after the date of the Closing of the Merger or (ii) 180 days after a
Qualified IPO, the holders of more than 20% of the Shareholder Common Stock
that has not been registered and sold pursuant to this Article III, may
submit a written request that the Company effect a registration of
Shareholder Common Stock; PROVIDED HOWEVER, that the Company need effect
only five (5) demand registrations pursuant to this Section 3.1.1. Upon
receipt of such request, the Company will:
(a) promptly give written notice of the proposed registration to
all other Shareholders and to the holders of Common Stock and Warrants
issued on the date of this Agreement (the "Other Shareholders") who
are parties to the Common Stockholder and Warrant Holder Registration
Rights Agreement dated as of the date hereof; and
EX 99.5 - 4
USOL HOLDINGS, INC. PREFERRED STOCK REGISTRATION RIGHTS AGREEMENT
(b) file a registration statement on Form S-1 or Form S-3 or any
successor form with the SEC as expeditiously as possible but in any
case within 60 days after the selection of an investment banking firm
pursuant to Section 3.1.3 and use its best efforts to effect the
registration of the Shareholder Common Stock and the Common Stock of
the Other Shareholders ("Other Common Stock") (including, without
limitation, the execution of an undertaking to file post-effective
amendments, appropriate qualifications under applicable blue sky or
other state securities laws and appropriate compliance with applicable
regulations issued under the Securities Act) as would permit the sale
and distribution by the Shareholders and the Other Shareholders of
such shares of Shareholder Common Stock and Other Common Stock under
applicable law, together with all Shareholder Common Stock and Other
Common Stock of any Shareholders and Other Shareholders joining in
such request as are specified in a written request received by the
Company within 30 days after receipt of such written notice from the
Company; provided, however that the Company shall not be obligated to
take any action to effect any such registration, qualification or
compliance pursuant to this Section 3.1.1:
(i) in any particular jurisdiction in which the Company
would be required to execute a general consent to service of
process in effecting such registration, qualification or
compliance unless the Company is already subject to service in
such jurisdiction and except as may be required by the Securities
Act; or
(ii) with respect to any of the Shareholder Common Stock or
Other Common Stock that has been transferred to any holder who is
not one of the Shareholders or Other Shareholders listed above or
a family member of any such Shareholder or Other Shareholder or a
trust for the benefit of any such Shareholder or Other
Shareholder or family member, unless such transferee has executed
and delivered to the Company a valid undertaking and becomes
bound by the terms of this Agreement.
3.1.2 EFFECTIVE REGISTRATION. A registration will not count as a
demand registration until it has become effective; PROVIDED, that if, after
it has become effective, an offering of Shareholder Common Stock pursuant
to a registration is interfered with by any stop order, injunction, or
other order or requirement of the SEC or other governmental agency or
court, such registration will be deemed not to have been effected and will
not count as a demand registration.
3.1.3 SELECTION OF UNDERWRITERS. The offering of Shareholder Common
Stock pursuant to a demand registration shall be in the form of a "firm
commitment" underwritten offering. The Shareholders holding a majority of
the Shareholder Common Stock to be registered in a demand registration
shall select the investment banking firm or firms to manage the
underwritten offering; PROVIDED, that such selection shall be subject to
the consent of USOL, which consent shall not be unreasonably withheld or
delayed.
3.1.4 PRIORITY OF DEMAND REGISTRATIONS. All Shareholder Common Stock
and Other Common Stock requested to be included in the registration shall
be included in a demand registration unless the managing underwriter or
underwriters shall advise the Company or the Shareholders and the Other
Shareholders in writing that the inclusion of such securities will
EX 99.5 - 5
USOL HOLDINGS, INC. PREFERRED STOCK REGISTRATION RIGHTS AGREEMENT
materially and adversely affect the price or success of the offering (a
"MATERIAL ADVERSE EFFECT"). In the event the managing underwriter or
underwriters shall advise the Company or the Shareholders and the Other
Shareholders that the amount of Shareholder Common Stock and Other Common
Stock proposed to be included in such demand registration by Shareholders
and Other Shareholders is sufficiently large to cause a Material Adverse
Effect, the Shareholder Common Stock and Other Common Stock to be included
in such registration shall equal the number of shares which the Company is
so advised can be sold in such offering without a Material Adverse Effect
and such shares shall be allocated pro rata among the Shareholders and the
Other Shareholders on the basis of the number of shares of Shareholder
Common Stock and Other Common Stock requested to be included in such
registration.
3.2 RIGHT TO INCLUDE SECURITIES. If at any time all of the shares of
Shareholder Common Stock are not then registered under the Securities Act, and
the Company proposes to register any shares of its Common Stock under the
Securities Act (other than pursuant to an Excluded Registration), whether or not
for sale for its own account, it will each such time as soon as practicable give
written notice of its intention to do so to the Shareholders. In such event,
upon the written request (which request shall specify the total number of shares
of Shareholder Common Stock intended to be disposed of by the requesting
Shareholder) of any Shareholder made within 15 days after the receipt of any
such notice (10 days if the Company gives telephonic notice with written
confirmation to follow promptly thereafter), stating that (i) such registration
will be on Form S-3 and (ii) such shorter period of time is required because of
a planned filing date, the Company will use all reasonable efforts to effect the
registration under the Securities Act in the manner initially proposed by the
Company of all Shareholder Common Stock held by the Shareholders which the
Company has been so requested to register for sale. If the Company thereafter
determines for any reason in its sole discretion not to register or to delay
registration of the Common Stock, the Company may, at its election, give written
notice of such determination to the Shareholder and (i) in the case of a
determination not to register, shall be relieved of the obligation to register
any Shareholder Common Stock in connection with such registration and (ii) in
the case of a determination to delay registering, shall be permitted to delay
registering any Shareholder Common Stock of the Shareholder for the same period
as the delay in registration of such other securities. The exercise by a
Shareholder of any right under this Section 3.2 will not relieve the Company of
its obligations to such Shareholder under Section 3.1.
3.3 PRIORITY IN INCIDENTAL REGISTRATION. In a registration pursuant to
Section 3.2 hereof, if the managing underwriter of any such underwritten
offering to which Section 3.2 pertains shall inform the Company by letter of its
belief that the number of shares of Shareholder Common Stock and Other Common
Stock to be included in such registration would have a Material Adverse Effect,
then the Company will be required to include in such registration only that
number of shares of Shareholder Common Stock and Other Common Stock which it is
so advised can be included in such offering without causing such Material
Adverse Effect. With respect to a registration that is the subject of Section
3.2 hereof, shares of Common Stock proposed by the Company to be registered for
issuance by the Company or for sale by any Person exercising "demand"
registration rights shall have the first priority and all shares of Shareholder
Common Stock owned by the Shareholders exercising incidental registration rights
and all shares of Other Common Stock owned by the Other Shareholders
EX 99.5 - 6
USOL HOLDINGS, INC. PREFERRED STOCK REGISTRATION RIGHTS AGREEMENT
exercising incidental rights shall be given second priority without preference
among the relevant Shareholders and Other Shareholders. If less than all of the
shares of Shareholder Common Stock and Other Common Stock duly requested to be
included in such registration are to be registered therein, such shares of
Shareholder Common Stock and Other Common Stock shall be included in the
registration PRO RATA based on the total number of such shares sought to be
registered other than for issuance by the Company or sale by third parties
exercising "demand" registration rights in accordance with the preceding
sentence. If, as a result of the provisions of this Section 3.3, any Shareholder
or Other Shareholder shall not be entitled to include all of such Shareholder's
shares of Shareholder Common Stock or Other Common Stock in such registration,
such shareholder may withdraw such shareholder's request to include Shareholder
Common Stock or Other Common Stock, as applicable, in such registration.
3.4 REGISTRATION PROCEDURES. In connection with the Company's obligations
to register the Shareholder Common Stock pursuant to this Article III, the
Company will use its reasonable best efforts to effect such registration in
accordance herewith and the Company will promptly:
(a) prepare and file with the SEC as expeditiously as possible, but in
any case within 60 days after the selection of an investment banking firm
pursuant to Section 3.1.3 the requisite registration statement to effect
such registration and use its reasonable best efforts to cause such
registration statement to become effective and to remain continuously
effective until the earlier to occur of (x) 180 days following the date on
which such registration statement is declared effective (the "Effective
Date") or (y) the termination of the offering being made as set forth
thereunder;
(b) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective as set
forth above and to comply with the provisions of the Securities Act with
respect to the disposition of all shares of Shareholder Common Stock
covered by such registration statement until such Shareholder Common Stock
has been sold;
(c) furnish to the managing underwriter, if any, and to the
Shareholders, at least one executed original of the registration statement
and to each of the Selling Securityholders such number of conformed copies
of such registration statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of copies of the
prospectus contained in such registration statement (including each
preliminary prospectus and any summary prospectus) and any other prospectus
filed under Rule 424 under the Securities Act, in conformity with the
requirements of the Securities Act, as may reasonably be requested by such
Selling Securityholder (it being understood that the Company consents to
the use of the prospectus and any amendment or supplement thereto by each
seller of Shareholder Common Stock and the underwriters in connection with
the offering and sale of the Shareholder Common Stock covered by the
registration of which such prospectus, amendment or supplement is a part).
(d) use its reasonable best efforts (i) to register or qualify, to the
extent
EX 99.5 - 7
USOL HOLDINGS, INC. PREFERRED STOCK REGISTRATION RIGHTS AGREEMENT
necessary, all shares of Common Stock covered by such registration
statement under the securities or "blue sky" laws of such jurisdictions
where an exemption is not available as the Selling Securityholders shall
reasonably request, (ii) to keep such registration or qualification in
effect for so long as such registration statement remains in effect and
(iii) to take any other action which may be reasonably necessary or
advisable to enable the Selling Securityholders to consummate the
disposition in such jurisdictions of such Common Stock, provided that the
Company will not be required to qualify generally to do business or as a
dealer in any jurisdiction where it is not then so qualified, subject
itself to taxation in any such jurisdiction or take any action which would
subject it to general service of process in any such jurisdiction;
(e) notify the Selling Securityholders and the managing underwriter,
if any, promptly, and confirm such advice in writing (i) when a prospectus
or any prospectus supplement or post-effective amendment has been filed,
and, with respect to a registration statement or any post-effective
amendment, when the same has become effective, (ii) of any request by the
SEC for amendments or supplements to a registration statement or related
prospectus or for additional information, (iii) of the issuance by the SEC
of any stop order suspending the effectiveness of a registration statement
or the initiation of any proceedings for that purpose, (iv) of the receipt
by the Company of any notification with respect to the suspension of the
qualification of any of the registered securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, (v) of the happening of any event or information becoming known
which requires the making of any changes in a registration statement or
related prospectus so that such documents will not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading and (vi) of the Company's reasonable determination that a
post-effective amendment to a registration statement would be appropriate;
(f) use reasonable best efforts to obtain the withdrawal of any order
suspending the effectiveness of a registration statement, or the lifting of
any suspension of the qualification of any of the registered securities for
sale in any jurisdiction, at the earliest possible moment;
(g) upon the occurrence of any event contemplated by clause (e)(v)
above, prepare a supplement or post-effective amendment to the applicable
registration statement or related prospectus or any document incorporated
therein by reference or file any other required document so that, as
thereafter delivered to the Shareholders of the securities being sold
thereunder, such prospectus will not contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading;
(h) use its reasonable best efforts to furnish to the Selling
Securityholders a signed counterpart, addressed to the Selling
Securityholders and the underwriters, if any, of an opinion of counsel for
the Company as to the effectiveness of the registration statement
registering the resale of the Shareholder Common Stock under the Securities
Act;
(i) otherwise use its best efforts to comply with all applicable rules
and regulations of the SEC in connection with a registration pursuant
hereto;
EX 99.5 - 8
USOL HOLDINGS, INC. PREFERRED STOCK REGISTRATION RIGHTS AGREEMENT
(j) cooperate with the Selling Securityholders and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing shares of Shareholder Common Stock to be sold;
and enable such shares of Shareholder Common Stock to be in such
denominations and registered in such names as the Selling Securityholders
or the managing underwriters, if any, may request at least two business
days prior to any sale of shares of Shareholder Common Stock to the
underwriters;
(k) cause all shares of Common Stock covered by the registration
statement to be listed on each securities exchange, if any, or Nasdaq, on
which securities of such class, series and form issued by the Company, if
any, are then listed or traded if requested by the managing underwriters,
if any, or the holders of a majority of the shares of Common Stock covered
by the registration statement and entitled hereunder to be so listed;
(l) make generally available to the Company's securityholders an
earnings statement satisfying the provisions of Section 11(a) of the
Securities Act no later than thirty (30) days after the end of the twelve
(12) month period beginning with the first day of the Company's first
fiscal quarter commencing after the effective date of a registration
statement, which earnings statement shall cover said twelve (12) month
period, and which requirement will be deemed to be satisfied if the Company
timely files complete and accurate information on the Form 10-Q, 10-K and
8-K under the Exchange Act and otherwise complies with Rule 158 under the
Securities Act; and
(m) cooperate and assist in any filings required to be made with the
National Association of Securities Dealers, Inc. (the "NASD") and in the
performance of any due diligence investigation by any underwriter
(including any qualified independent underwriter that is required to be
retained in accordance with the rules and regulations of the NASD).
The Company may require each Selling Securityholder to furnish to the
Company such information and documents regarding such Selling Securityholder and
the distribution of such securities as the Company may from time to time
reasonably request in writing in order to comply with the Securities Act.
Each of the Selling Securityholders agrees that, upon receipt of any notice
from the Company of the happening of any event of the kind described in Section
3.4(e)(ii), (iii), (iv), (v) or (vi) hereof, it will forthwith discontinue
disposition pursuant to such registration statement of any shares of Common
Stock covered by such registration statement or prospectus until its receipt of
the copies of the supplemented or amended prospectus relating to such
registration statement or prospectus or until it is advised in writing by the
Company that the use of the applicable prospectus may be resumed (and the period
of such discontinuance shall be excluded from the calculation of the period
specified in clause (x) of Section 3.4(a)) and, if so directed by the Company,
will deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in their possession, of the prospectus covering such
securities in effect at the time of receipt of such notice. Each of the Selling
Securityholders agrees to furnish the Company a signed counterpart, addressed to
the Company and the underwriters, if any, of an opinion of counsel covering
substantially the same matters with respect to such registration statement (and
the prospectus included therein) as are
EX 99.5 - 9
USOL HOLDINGS, INC. PREFERRED STOCK REGISTRATION RIGHTS AGREEMENT
customarily covered in opinions of selling stockholder's counsel delivered to
the underwriters in underwritten public offerings of securities (and dated the
dates such opinions are customarily dated) and such other legal matters as the
Company or the underwriters may reasonably request.
3.5 INCIDENTAL UNDERWRITTEN OFFERINGS. If the Company at any time proposes
to register any shares of its common stock under the Securities Act as
contemplated by Section 3.2 and such shares are to be distributed by or through
one or more underwriters, the Company and, if the managing underwriter shall
elect in writing to include the shares of Shareholder Common Stock sought to be
included in such registration, the Securityholders who hold Shareholder Common
Stock to be distributed by such underwriters in accordance with Section 3.2
hereof 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 them and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be conditions
precedent to their obligations. The Company may, at its option, require that any
or all of the representations and warranties by, and the other agreements on the
part of the Selling Securityholders to and for the benefit of such underwriters
shall also be made to and for the benefit of the Company. Notwithstanding the
foregoing, no Shareholder shall be required to make any representations or
warranties in connection with the registration other than representations and
warranties as to (i) such Shareholder's ownership of his or its Shareholder
Common Stock to be transferred free and clear of all liens, claims, and
encumbrances, (ii) such Shareholder's power and authority to effect such
transfer, and (iii) such matters pertaining to compliance with securities laws
as may be reasonably requested; PROVIDED FURTHER, HOWEVER, that the obligation
of such Shareholder to indemnify pursuant to any such underwriting arrangements
shall be several, not joint and several, among such Shareholders selling
Shareholder Common Stock, and the liability of each such Shareholder will be in
the proportion thereto, and PROVIDED FURTHER that such liability will be limited
to, the allocable share of claim net amount received by such Shareholder from
the sale of his or its Shareholder Common Stock pursuant to such registration.
3.6 PREPARATION; REASONABLE INVESTIGATION. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company will give the Selling Securityholders,
the underwriters, if any, and their respective counsel and accountants the
opportunity (but such Persons shall not have the obligation except as set forth
herein) to participate (in the case of a registration pursuant to Section 3.2
hereof such participation shall be at their expense) in the preparation of such
registration statement, each prospectus included therein or filed with the SEC,
and, to the extent practicable, each amendment thereof or supplement thereto,
and will give each of them such access to its books and records (to the extent
customarily given to the underwriters of the Company's securities) and such
opportunities to discuss the business of the Company with its officers and the
independent public accountants who have certified its financial statements as
shall be necessary, in the opinion of the Selling Securityholders, and the
underwriters' respective outside counsel to conduct a reasonable investigation
within the meaning of the Securities Act.
EX 99.5 - 10
USOL HOLDINGS, INC. PREFERRED STOCK REGISTRATION RIGHTS AGREEMENT
3.7 LIMITATIONS, CONDITIONS AND QUALIFICATIONS TO OBLIGATIONS UNDER
REGISTRATION COVENANTS. The obligations of the Company to use its reasonable
efforts to cause the Shareholder Common Stock to be registered under the
Securities Act are subject to each of the following limitations, conditions and
qualifications:
(a) The Company shall be entitled to postpone for a reasonable period
of time the filing or effectiveness of (but not the preparation of) any
registration statement otherwise required to be prepared, filed and made
and kept effective by it hereunder if:
(i) the Board of Directors of the Company determines in good
faith that there is a material undisclosed development in the business
or affairs of the Company (including any pending or proposed
financing, recapitalization, acquisition or disposition), the
disclosure of which at such time would be adverse to the Company's
interests (but the duration of such postponement may not exceed the
earlier to occur of (u) 30 days after the cessation of the
circumstances described in this clause (i) or (v) 90 days after the
date of the determination of the Board of Directors to postpone the
filing or effectiveness of a registration, and the duration of such
postponement shall be excluded from the calculation of the period
specified in clause (x) of Section 3.4(a)); or
(ii) the Company has filed a registration statement with the SEC,
such registration statement has not yet been declared effective, the
Company is using its reasonable best efforts to have such registration
statement declared effective, and the underwriters with respect to
such registration advise that such registration would be adversely
affected (but the duration of such postponement or suspension may not
exceed the earlier to occur of (u) 30 days after the effectiveness of
the previously filed registration statement, or (v) 90 days after the
determination of the Board of Directors to postpone filing a
registration statement required to be filed hereunder), and the
duration of such postponement or suspension shall be excluded from the
calculation of the period specified in clause (x) of Section 3.4(a);
or
(iii) the Board of Directors of the Company determines in good
faith prior to the receipt of a request for demand registration to
effect a registered underwritten public offering of the Company's
equity securities for the Company's account and the Company had taken
substantial steps (including, but not limited to, selecting a managing
underwriter for such offering) and is proceeding with reasonable
diligence to effect such offering (but the duration of such
postponement may not exceed the earlier to occur of (u) 30 days after
the effectiveness of the previously prepared registration statement,
or (v) 90 days after the determination by the Board of Directors to
postpone the filing of a registration statement required to filed
hereunder).
(iv) If the Company shall delay the filing of a registration
statement as described in (i), (ii) or (iii) above, it shall, as
promptly as practicable, notify the Selling Securityholders of such
determination, and the Selling Securityholders shall have the right in
the case of a postponement of the filing or effectiveness of a
registration statement to withdraw the request for registration by
giving written notice to the Company within 10 days after receipt of
the Company's notice. Notwithstanding the foregoing, the Company may
make such
EX 99.5 - 11
USOL HOLDINGS, INC. PREFERRED STOCK REGISTRATION RIGHTS AGREEMENT
postponement or suspension no more than one time in any 18 month
period.
(b) The Company's obligations shall be subject to the obligations of
the Selling Securityholders, which each of the Shareholders hereby
acknowledges, to furnish all information and materials and to take any and
all actions as may be required under applicable federal and state
securities laws and regulations to permit the Company to comply with all
applicable requirements of the SEC and state securities regulations and to
obtain any acceleration of the effective date of such registration
statement or maintain the effectiveness or currency thereof.
(c) The Company shall not be obligated to cause any special audit to
be undertaken in connection with any registration pursuant hereto unless
such audit is requested by the underwriters with respect to such
registration.
(d) Each Shareholder agrees that, in connection with any underwritten
public offering by the Company of its equity securities pursuant to an
effective registration statement filed under the Securities Act, including
a Qualified IPO, the Shareholder shall not publicly sell, make any short
sale of, loan, hypothecate, pledge, grant any option for the repurchase of,
or otherwise publicly dispose or transfer for value or otherwise agree to
engage in any of the foregoing transactions with respect to any equity
securities of the Company without the prior written consent of the
Company's underwriters, for such period of time from and after the
effective date of such registration statement as may be requested by the
Company's underwriters, such period of time is not to exceed 180 days in
the case of a Qualified IPO and 90 days in the case of a secondary offering
by the Company.
3.8 EXPENSES. The Company will pay its own actual expenses (including legal
fees) incurred in connection with each demand and incidental registration of
Shareholder Common Stock pursuant to Sections 3.1 or 3.2 of this Agreement,
including, without limitation, any and all filing fees payable to the SEC, fees
with respect to filings required to be made with stock exchanges, Nasdaq and the
NASD, fees and expenses of compliance with state securities or blue sky laws,
printing expenses, fees and disbursements of counsel and accountants of the
Company, including costs associated with comfort letters, and fees and expenses
of other Persons retained by the Company, and, in the case of a demand
registration pursuant to Section 3.1 of this Agreement, all reasonable costs,
expenses and fees of one legal counsel for the Selling Securityholders (which
legal counsel shall be chosen by the majority-in-interest of the Selling
Securityholders in their discretion), but each Selling Securityholder shall pay
its own underwriters' expenses (such as but not limited to discounts,
commissions and fees of underwriters and expenses included therein of selling
brokers, dealer managers or similar securities industry professionals relating
to the distribution of the securities being registered) and legal expenses
(except as set forth above). The Company shall pay its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), and the expense of securities
law liability insurance and rating agency fees, if any.
3.9 INDEMNIFICATION.
EX 99.5 - 12
USOL HOLDINGS, INC. PREFERRED STOCK REGISTRATION RIGHTS AGREEMENT
(a) INDEMNIFICATION BY THE COMPANY. In connection with any
registration pursuant hereto in which Shareholder Common Stock is to be
disposed of, the Company shall indemnify and hold harmless, to the fullest
extent permitted by law, each Shareholder and, when applicable, its
officers, directors, agents and employees and each Person who controls (or
is controlled by or under common control with) any of the Shareholders
(within the meaning of the Securities Act or the Exchange Act) against all
losses, claims, damages, liabilities and expenses (including, without
limitation, all attorneys' fees and expenses) based upon, arising out of or
related to, any untrue or alleged untrue statement of a material fact
contained in any registration statement, prospectus or preliminary
prospectus or any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, including, without limitation, any loss, claim,
damage, liability or expense resulting from the failure to keep a
prospectus current as required hereunder, except insofar as the same (i)
are caused by or contained in any information furnished in writing to the
Company by or on behalf of any Shareholder expressly for use therein or
(ii) are caused by the failure of any of the Shareholders to deliver a copy
of the current required prospectus after the Company has furnished any such
Shareholders with a sufficient number of copies of such prospectus as
requested hereunder or (iii) arise in respect of any offers to sell or
sales made during any period when any Shareholder is required to
discontinue sales under Section 3.4(e) or otherwise under applicable law.
The Company shall also indemnify underwriters, selling brokers, dealer
managers and similar securities industry professionals (if any),
participating in the distribution of the Shareholder Common Stock, their
officers and directors and each person who controls such Persons (within
the meaning of the Securities Act and the Exchange Act) to the same extent
(and subject to the same exceptions) as provided above with respect to the
indemnification of the Shareholders and shall enter into an indemnification
agreement with such Persons containing such terms, if requested. The
reimbursements required by this SECTION 3.9(A) will be made by periodic
payments during the course of the investigation or defense, as and when
bills are received or expenses incurred.
(b) INDEMNIFICATION BY THE SHAREHOLDERS. In connection with each
registration statement effected pursuant hereto in which Shareholder Common
Stock is to be disposed of, each of the Selling Securityholders shall,
severally but not jointly, indemnify and hold harmless, to the fullest
extent permitted by law, the Company, each other Selling Securityholder and
their respective directors, officers, agents and employees and each Person
who "controls" the Company and each other Selling Securityholder (within
the meaning of the Securities Act and the Exchange Act) and the managing
underwriter if any, and its directors, officers, agents, and employees and
each Person who "controls" such underwriter (within the meaning of the
Securities Act and Exchange Act), in each case against any losses, claims,
damages, liabilities and expenses resulting from any untrue statement of a
material fact or any omission of a material fact required to be stated in
such registration statement or prospectus or preliminary prospectus or
necessary to make the statements therein not misleading, to the extent but
only to the extent, that such untrue statement or omission is contained in
any information furnished in writing by such Shareholder to the Company
expressly for inclusion in such registration statement or prospectus;
PROVIDED, HOWEVER, that such seller of Shareholder Common Stock shall not
be liable in any such case to the extent that, prior to the filing of any
such registration statement or prospectus or amendment thereof or
supplement thereto, such seller of Shareholder Common Stock has furnished
in writing to the Company information
EX 99.5 - 13
USOL HOLDINGS, INC. PREFERRED STOCK REGISTRATION RIGHTS AGREEMENT
expressly for use in such registration statement or prospectus or any
amendment thereof or supplement thereto which corrected or made not
misleading information previously furnished to the Company. In no event
shall the liability of any Shareholder hereunder be greater in amount than
the dollar amount of the proceeds received or to be received by such
Shareholder upon the sale of the securities giving rise to such
indemnification obligation.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person entitled to
indemnification hereunder shall give prompt written notice to the
indemnifying party of any claim with respect to which it shall seek
indemnification and shall permit such indemnifying party to assume the
defense of such claim with counsel reasonably satisfactory to the
indemnified party; PROVIDED, however, that any Person entitled to
indemnification hereunder shall have the right to employ separate counsel
and to participate in the defense of such claim, but the fees and expenses
of such counsel shall be at the expense of such Person unless (i) the
indemnifying party shall have agreed to pay such fees or expenses, or (ii)
the indemnifying party shall have failed to assume the defense of such
claim and to employ counsel reasonably satisfactory to such Person or (iii)
such assumption would constitute an actual conflict of interest (in which
case, if the Person notifies the indemnifying party in writing that such
Person elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the
defense of such claim on behalf of such Person). If such defense is not
assumed by the indemnifying party, the indemnifying party shall not be
subject to any liability for any settlement made without its consent (but
such consent shall not be unreasonably withheld). No indemnified party
shall be required to consent to entry of any judgment or enter into any
settlement that does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a written
release in form and substance reasonably satisfactory to such indemnified
party from all liability in respect of such claim or litigation. An
indemnifying party who is not entitled to, or elects not to, assume the
defense of a claim shall not be obligated to pay the fees and expenses of
more than one firm of counsel (and, if necessary, local counsel) for all
parties indemnified by such indemnifying party with respect to such claim,
unless a conflict of interest as to the subject matter exists between such
indemnified party and another indemnified party with respect to such claim,
in which event the indemnifying party shall be obligated to pay the fees
and expenses of additional counsel for such indemnified party.
(d) CONTRIBUTION. If for any reason the indemnification provided for
herein is unavailable to an indemnified party or is insufficient to hold it
harmless as contemplated hereby, then the indemnifying party shall
contribute to the amount paid or payable by the indemnified party as a
result of such loss, claim, damage or liability in such proportion as is
appropriate to reflect not only the relative benefits received by the
indemnified party and the indemnifying party, but also the relative fault
of the indemnified party and the indemnifying party, as well as any other
relevant equitable considerations, provided that in no event shall the
liability of any Shareholder for such contribution and indemnification
exceed, in the aggregate, the dollar amount of the proceeds received or to
be received by such Shareholder upon the sale of securities giving rise to
such indemnification and contribution obligation. The relative fault of
such indemnifying party and indemnified party shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by such indemnifying
EX 99.5 - 14
USOL HOLDINGS, INC. PREFERRED STOCK REGISTRATION RIGHTS AGREEMENT
party or indemnified party, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The parties hereto agree that it would not be just and
equitable if contribution pursuant to this SECTION 3.9(D) were determined
by pro rata allocation referred to in this SECTION 3.9(D). 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. If indemnification is
available under this SECTION 3.9, the indemnifying parties shall indemnify
each indemnified party to the full extent provided in SECTION 3.9(A) and
SECTION 3.9(B) without regard to the relative fault of said indemnifying
party or indemnified party or any other equitable consideration provided
for in this SECTION 3.9(D); subject, in the case of the Holders, to the
limited dollar amounts set forth herein.
(e) INDEMNIFICATION AND CONTRIBUTION IN FULL FORCE AND EFFECT. The
indemnification and contribution provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or
on behalf of the indemnified party or any officer, director, or controlling
person of such indemnified party.
3.10 PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. None of the Shareholders
may participate in any underwritten registration hereunder unless the
Shareholder which is a Selling Securityholder (a) agrees to sell its Shareholder
Common Stock on the basis provided in and in compliance with any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and to comply with Regulation M under the Exchange Act, and (b)
completes and executes all questionnaires, appropriate and limited
powers-of-attorney, escrow agreements, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements; PROVIDED that all such documents shall be consistent with the
provisions hereof.
ARTICLE IV
MISCELLANEOUS
4.1 RECAPITALIZATIONS, EXCHANGES, ETC., AFFECTING SHAREHOLDER COMMON STOCK.
The provisions of this Agreement shall apply, to the fullest extent set forth
herein with respect to Shareholder Common Stock, to any and all shares of
capital stock of the Company or any successor or assign of the Company (whether
by merger, consolidation, sale of assets or otherwise) which may be issued in
respect of, in exchange for, or in substitution of the Shareholder Common Stock,
by reason of any stock dividend, stock split, stock issuance, reverse stock
split, combination recapitalization, reclassification, merger, consolidation or
otherwise; provided, however, that such provisions shall apply only to any class
or classes of stock which have the right, without limitation as to amount,
either to all or a share of the balance of current dividends and liquidating
dividends after payment of dividends and distributions on any shares entitled to
preference so issued or issuable upon the conversion, exchange or exercise, as
the case may be, of securities of the Company so issued.
4.2 BINDING EFFECT. The provisions of this Agreement shall be binding upon
and accrue to the benefit of the parties hereto and their respective heirs,
legal representatives, successors and assigns. In the case of a transferee
permitted under this Agreement, such
EX 99.5 - 15
USOL HOLDINGS, INC. PREFERRED STOCK REGISTRATION RIGHTS AGREEMENT
transferee shall be deemed the Shareholder hereunder; PROVIDED, however, that no
transferee shall derive any rights under this Agreement unless and until such
transferee has executed and delivered to the Company a valid undertaking and
becomes bound by the terms of this Agreement.
4.3 AMENDMENT; WAIVER. This Agreement may be amended only by a written
instrument signed by the parties hereto. No waiver by either party hereto of any
of the provisions hereof shall be effective unless set forth in a writing
executed by the party so waiving.
4.4 NOTICES. All notices, requests, demands and other communications which
are required or may be given under this Agreement shall be in writing and shall
be deemed to have been duly given when received if personally delivered; when
transmitted if transmitted by telecopy, electronic or digital transmission
method; the day after it is sent, if sent for next day delivery to a domestic
address by recognized overnight delivery service (E.G., Federal Express) and
upon receipt, if sent by certified or registered mail, return receipt requested.
In each case notice shall be sent to:
(a) If to USOL, addressed to:
USOL Holdings, Inc.
00000 Xxxxxx Xxxxxxxxx
Xxxxxx, Xxxxx 00000
Attn: President
(b) If to FirstLink, addressed to:
FirstLink Communications, Inc.
000 Xxxxxxxxx Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attn: President
(c) If to a Shareholder, to such Shareholder at the address set forth
on the signature pages hereto.
4.5 GOVERNING LAW. This Agreement shall be governed by and construed,
interpreted and the rights of the parties determined in accordance with the laws
of the State of Delaware without regard to the choice of law principles thereof.
4.6 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument. This Agreement shall
become binding when all counterparts taken together shall have been executed and
delivered by the parties. A telecopied facsimile of an executed counterpart of
the Agreement shall be sufficient to evidence the binding agreement of each
party to the terms thereof. However, each party agrees to return to the other
parties an original, duly executed counterpart of this Agreement promptly after
delivery of a telecopied facsimile thereof.
EX 99.5 - 16
USOL HOLDINGS, INC. PREFERRED STOCK REGISTRATION RIGHTS AGREEMENT
4.7 INVALIDITY. In the event that any one or more of the provisions
contained in this Agreement or in any other instrument referred to herein,
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, then to the maximum extent permitted by law, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement or any other such instrument.
4.8 CUMULATIVE REMEDIES.
All rights and remedies of the parties hereto are cumulative of each other
and of every other right or remedy each such party may otherwise have at law or
in equity, and the exercise of one or more rights or remedies shall not
prejudice or impair the concurrent or subsequent exercise of other rights or
remedies.
4.9 ASSUMPTION BY FIRSTLINK. Upon the consummation of the Merger by and
between FirstLink and USOL, pursuant to which all shares of Series A Preferred
Stock and Common Stock will be exchanged for shares of FirstLink preferred stock
and common stock, FirstLink agrees to assume all of the obligations hereunder.
EX 99.5 - 17
USOL HOLDINGS, INC. PREFERRED STOCK REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
USOL HOLDINGS, INC.
By: /S/ XXXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
FIRSTLINK COMMUNICATIONS, INC.
By: /S/ A. XXXXX XXXXX
-----------------------------------
Name: A. Xxxxx Xxxxx
Title: President and Chief
Executive Officer
EX 99.5 - 18
USOL HOLDINGS, INC. PREFERRED STOCK REGISTRATION RIGHTS AGREEMENT
AGL INVESTMENTS NO. 8 LIMITED
PARTNERSHIP, A COLORADO LIMITED
PARTNERSHIP
By: AGLP NO. 8 Limited Partnership,
a Colorado limited partnership,
its General Partner
By: AGLGP NO. 8, Inc., a Colorado
limited partnership, its General
Partner
BY: /S/ XXXXX X. XXXXX
-----------------------------------
Xxxxx X. Xxxxx,
President
ASPEN FOXTROT INVESTMENTS, LLC
By: Aspen Enterprises, Ltd. Its Manager
/S/ XXXXXX X. HOUSE
-----------------------------------
Name: Xxxxxx X. House
Title: Vice President and Chief
Operating Officer
GERMAN AMERICAN CAPITAL CORPORATION
By: /S` / XXXX X. XXXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
By: /S/ XXXXXX XXXXXXX
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
EX 99.5 - 19
USOL HOLDINGS, INC. PREFERRED STOCK REGISTRATION RIGHTS AGREEMENT
GMAC COMMERCIAL MORTGAGE CORPORATION
By: /S/ XXXXXX X. XXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
PARIBAS NORTH AMERICA, INC.
By: /S/ XXXX X. XXXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Financial Controller
PEREGINE EQUITIES 1, L.L.C.
By: Peregrine Equities Holdings, LLC,
Member
By: Peregrine Capital, Inc., Member
By: /S/ XXX XXXX
-----------------------------------
Name: Xxx Xxxx
Title: President
PEREGINE EQUITIES 2, L.L.C.
By: Peregrine Equities Holdings, LLC,
Member
By: Peregrine Capital, Inc., Member
By: /S/ XXX XXXX
-----------------------------------
Name: Xxx Xxxx
Title: President
PEREGINE EQUITIES 3, L.L.C.
By: Peregrine Equities Holdings, LLC,
Member
By: Peregrine Capital, Inc., Member
By: /S/ XXX XXXX
-----------------------------------
Name: Xxx Xxxx
Title: President
PEREGINE EQUITIES 4, L.L.C.
By: Peregrine Equities Holdings, LLC,
Member
By: Peregrine Capital, Inc., Member
By: /S/ XXX XXXX
-----------------------------------
Name: Xxx Xxxx
Title: President
EX 99.5 - 20
USOL HOLDINGS, INC. PREFERRED STOCK REGISTRATION RIGHTS AGREEMENT
PEREGINE EQUITIES 5, L.L.C.
By: Peregrine Equities Holdings, LLC,
Member
By: Peregrine Capital, Inc., Member
By: /S/ XXX XXXX
-----------------------------------
Name: Xxx Xxxx
Title: President
PEREGINE EQUITIES 6, L.L.C.
By: Peregrine Equities Holdings, LLC,
Member
By: Peregrine Capital, Inc., Member
By: /S/ XXX XXXX
-----------------------------------
Name: Xxx Xxxx
Title: President
PEREGINE EQUITIES 7, L.L.C.
By: Peregrine Equities Holdings, LLC,
Member
By: Peregrine Capital, Inc., Member
By: /S/ XXX XXXX
-----------------------------------
Name: Xxx Xxxx
Title: President
PEREGINE EQUITIES 8, L.L.C.
By: Peregrine Capital, Inc., Manager
By: /S/ XXX XXXX
-----------------------------------
Name: Xxx Xxxx
Title: President
PEREGINE EQUITIES 9, L.L.C.
By: Peregrine Capital, Inc., Manager
By: /S/ XXX XXXX
-----------------------------------
Name: Xxx Xxxx
Title: President
PEREGINE EQUITIES 10, L.L.C.
By: Peregrine Capital, Inc., Manager
By: /S/ XXX XXXX
-----------------------------------
Name: Xxx Xxxx
Title: President
EX 99.5 - 21
USOL HOLDINGS, INC. PREFERRED STOCK REGISTRATION RIGHTS AGREEMENT
/S/ XXXXXX XXXXXX
-----------------------------------
Xxxxxx Xxxxxx
/S/ XXX XXXXX
-----------------------------------
Xxx Xxxxx
/S/ XXXXX XXXXXX
-----------------------------------
Rosewood Partners L.P.
By: W. Xxxxx Xxxxxx, General
Partner
/S/ XXXXX XXXXXX
-----------------------------------
Xxxxx Xxxxxx
/S/ W. XXXXXX XXXXXXXX
-----------------------------------
Xxxxxxxx Family Trust UAD 7/7/94
By: W. Xxxxxx Xxxxxxxx, Trustee
/S/ XXXXX XXXXXX
-----------------------------------
Xxxxx Xxxxxx
/S/ XXXXXX XXXXXXXXXX
-----------------------------------
Xxxxxx Xxxxxxxxxx
/S/ XXX XXXXXXX
-----------------------------------
Xxx Xxxxxxx
/S/ XXXXX XXXXX
-----------------------------------
Xxxxx Xxxxx for FMH LLP
/S/ XXX XXXXXXX
-----------------------------------
Xxx Xxxxxxx
EX 99.5 - 22
USOL HOLDINGS, INC. PREFERRED STOCK REGISTRATION RIGHTS AGREEMENT
/S/ XXXX XXXXXXXX
-----------------------------------
Xxxx Xxxxxxxx
/S/ XXXX XXXXXXXX
-----------------------------------
By: Xxxx Xxxxxxxx, Custodian FBO
Xxxxx Xxxxx S.E.P.
/S/ XXXXXXXX XXXXXXXX
-----------------------------------
Xxxxxxxx Xxxxxxxx
/S/ XXXXXX XXXXXXX
-----------------------------------
Xxxxxx Xxxxxxx
/S/ XXXXX XXXXXXXX
-----------------------------------
Xxxxx Xxxxxxxx
/S/ XXXXXX XXXXXX
-----------------------------------
Xxxxxx Xxxxxx
/S/ XXXXX XXXXXXXXX
-----------------------------------
Xxxxx Xxxxx
By: Xxxxx Xxxxxxxxx, Attorney-in-
Fact
/S/ XXX XXXXX
-----------------------------------
Xxxxx Investment, L.P.
By: Xxx Xxxxx
/S/ XXXXXXX XXXXX
-----------------------------------
Xxxxxxx Xxxxx
/S/ G. XXXXX XXXXXXX
-----------------------------------
G. Xxxxx Xxxxxxx
EX 99.5 - 23
USOL HOLDINGS, INC. PREFERRED STOCK REGISTRATION RIGHTS AGREEMENT
SCHEDULE A
SHAREHOLDERS
SERIES A PREFERRED STOCK Xxxxx Xxxxxxxx
AGL Investments No. 8 Limited Partnership Xxxxx Xxxxxx
Aspen Foxtrot Investments, LLC Xxxxxx Xxxxxx
German American Capital Corporation Xxxxx Xxxxx
GMAC Commercial Mortgage Corporation Xxxx Xxxxxxxx
Paribas North American, Inc. Xxxxx Xxxxx
Peregrine Equities 1, L.L.C. Xxxxxxxx Family Trust
Peregrine Equities 2, L.L.C. Xxxxx Xxxxxx
Peregrine Equities 3, L.L.C. Rosewood Partners, L.P.
Peregrine Equities 4, L.L.C. Xxxxxx Xxxxxxxxxx
Peregrine Equities 5, L.L.C. Xxx Xxxxxxx
Peregrine Equities 6, L.L.C. Xxxx Xxxxxxxx, Custodian FBO
Xxxxx Xxxxx S.E.P.
Peregrine Equities 7, L.L.C. Xxxxx Investments, L.P.
Peregrine Equities 8, L.L.C. G. Xxxxx Xxxxxxx
Peregrine Equities 9, L.L.C.
Peregrine Equities 10, L.L.C.
Xxx Xxxxxxx
Xxx Xxxxx
Xxxxxxxx Xxxxxxxx
Xxxxxxx Xxxxx
Xxxxxx Xxxxxxx
Xxxxxx Xxxxxx
SERIES B PREFERRED STOCK
German American Capital Corporation
Paribas North America, Inc.
EX 99.5A - 2
