EXHIBIT 4.2
SECOND AMENDED AND RESTATED MODIFICATION AGREEMENT
This Agreement is made as of the 15th day of May, 1997 between Echelon
Corporation, a Delaware corporation ("Echelon"), Motorola, Inc., a Delaware
corporation ("Motorola"), Quantum Industrial Partners LDC, a Cayman Islands
exempted limited duration company ("Quantum"), EdVenture Capital Corporation, a
Michigan corporation ("EdVenture") (Motorola, Quantum and EdVenture are
collectively referred to hereinafter as the "Series B, C and/or D Purchasers"),
M. Xxxxxxx Xxxxxx ("Xxxxxx"), X. X. Xxxxxxxx, Xx. ("Markkula"), and certain
entities controlled by Xxxxxx and Markkula (collectively, the "Xxxxxx and
Markkula Entities"), those purchasers of shares of Series A Preferred Stock of
Echelon and certain of their transferees (the "Series A Purchasers") pursuant to
the Series A Preferred Stock Purchase Agreement dated as of January 6, 1989 (the
"Series A Agreement"), and those purchasers of shares of Series E Preferred
Stock of Echelon (the "Series E Purchasers") pursuant to two Series E Preferred
Stock Purchase Agreements, each dated as of May 15, 1997 (collectively, the
"Series E Agreement").
RECITALS
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A. Pursuant to the Amended and Restated Modification Agreement dated
October 7, 1994 (the "Prior Modification Agreement"), the Series A Purchasers,
Motorola, EdVenture, Quantum, Oshman, Markkula, and certain entities controlled
by Xxxxxx and Markkula, were granted certain rights with respect to the
registration of Echelon's securities under the Securities Act of 1933, as
amended (the "Securities Act"), as set forth in Section 1 of the Prior
Modification Agreement.
B. On October 22, 1991, all 6,249,500 shares of Echelon's outstanding
Series A Preferred Stock automatically converted into 6,249,500 shares of
Echelon's Common Stock pursuant to the automatic conversion provisions of
Echelon's Restated and Amended Certificate of Incorporation.
C. Echelon proposes to sell to the Series E Purchasers 2,000,000 shares
of its Series E Preferred Stock (the "Series E Preferred") pursuant to the
Series E Agreement. Echelon further proposes to grant to certain of the Series E
Purchasers warrants to purchase up to 400,000 shares of the Series E Preferred
(the "Series E Warrants"). Echelon desires to give the Series E Purchasers the
rights as set forth herein with respect to the Series E Preferred, including the
Series E Preferred issuable upon exercise of the Series E Warrants.
D. Echelon has requested, and the Series A Purchasers, Motorola, Quantum,
EdVenture, Xxxxxx, Markkula and certain entities controlled by Xxxxxx and
Markkula have agreed, that the registration rights set forth in Section 1 of the
Prior Modification Agreement shall be of no further
force and effect, and that the rights granted herein to the Series A Purchasers,
Motorola, Quantum, EdVenture, Oshman, Markkula, certain entities controlled by
Xxxxxx and Markkula, and the Series E Purchasers shall supersede the
registration rights granted in the Prior Modification Agreement.
E. Pursuant to Section 3.3 of the Prior Modification Agreement, the
holders of a majority of the Registrable Securities (as defined in the Prior
Modification Agreement) may amend the provisions of the Prior Modification
Agreement on behalf of all of the parties to the Prior Modification Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1
RESTRICTIONS ON TRANSFERABILITY OF SECURITIES;
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COMPLIANCE WITH SECURITIES ACT; REGISTRATION RIGHTS
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1.1 Certain Definitions. As used in this Agreement, the following terms
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shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission or any
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other federal agency at the time administering the Securities Act.
"Conversion Stock" means the Common Stock issued or issuable pursuant
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to conversion of the Preferred Stock and the Common Stock issued upon the
conversion of the Series A Preferred Stock.
"Executive Stock" means any shares of Common Stock beneficially owned
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by Xxxxxx and Markkula and entities controlled by Xxxxxx and Markkula, whether
beneficially owned as of the date of this Agreement or acquired hereafter.
"Holder" shall mean (i) Xxxxxx, (ii) Markkula, (iii) entities
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controlled by Xxxxxx and Markkula, (iv) any Series A Purchaser holding
Registrable Securities, (v) Motorola, (vi) Quantum, (vii) EdVenture, (viii) any
Series E Purchaser and (ix) any such person holding Registrable Securities to
whom the rights under this Section 1 have been transferred in accordance with
Section 1.14 hereof.
"Initiating Holders" shall mean any Holders or transferees of Holders
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under Section 1.14 hereof who in the aggregate are Holders of greater than 50%
of the Registrable Securities.
"Investor" shall mean any Series A Purchaser, Motorola, Quantum,
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EdVenture, Oshman, Markkula, certain entities controlled by Xxxxxx and Markkula,
or any Series E Purchaser.
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"Preferred Stock" shall mean the Series B Preferred Stock ("Series B
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Preferred"), the Series C Preferred Stock ("Series C Preferred"), the Series D
Preferred Stock (the "Series D Preferred") and the Series E Preferred, including
the Series E Preferred issuable upon exercise of the Series E Warrants.
"Registrable Securities" means (i) the Executive Stock, (ii) the
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Conversion Stock, and (iii) any Common Stock of Echelon issued or issuable in
respect of the Executive Stock or Conversion Stock upon any stock split, stock
dividend, recapitalization, or similar event, or any Common Stock otherwise
issued or issuable with respect to the Preferred Stock, provided, however, that
shares of Common Stock or other securities shall only be treated as Registrable
Securities if and so long as they have not been (A) sold to or through a broker
or dealer or underwriter in a public distribution or a public securities
transaction or (B) sold or available for sale in the opinion of counsel to
Echelon within a given three month period pursuant to Rule 144 or any other
applicable exemption that allows for resale free of the registration
requirements set forth under Section 5 of the Securities Act.
The terms "register," "registered" and "registration" refer to a
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registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses, except as otherwise
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stated below, incurred by Echelon in complying with Sections 1.5, 1.6 and 1.7
hereof, including, without limitation, all registration, qualification and
filing fees, printing expenses, escrow fees, fees and disbursements of counsel
for Echelon, blue sky fees and expenses, the expense of any special audits
incident to or required by any such registration (but excluding the compensation
of regular employees of Echelon which shall be paid in any event by Echelon) and
the reasonable fees and disbursements of one counsel for all Holders in the
event of a requested registration provided for in Section 1.5 hereof and in the
event of two Company registrations pursuant to Section 1.6 hereof.
"Restricted Securities" shall mean the securities of Echelon required
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to bear the legend set forth in Section 1.3 hereof.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
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any similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean all underwriting discounts, selling
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commissions and stock transfer taxes applicable to the securities registered by
the Holders and, except as set forth above, all reasonable fees and
disbursements of counsel for any Holder.
1.2 Restrictions on Transferability. The Preferred Stock and the
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Conversion Stock (as defined above) shall not be sold, assigned, transferred or
pledged except upon the conditions specified in this Section 1, which conditions
are intended to ensure compliance with the provisions of the Securities Act.
Each Investor will cause any proposed purchaser, assignee, transferee, or
pledgee of the Preferred Stock or such Common Stock held by an Investor to agree
to take and hold such securities subject to the provisions and upon the
conditions specified in this Section 1.
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1.3 Restrictive Legend. Each certificate representing (i) the Preferred
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Stock, (ii) the Conversion Stock and (iii) any other securities issued in
respect of the Preferred Stock or the Conversion Stock upon any stock split,
stock dividend, recapitalization, merger, consolidation or similar event, shall
(unless otherwise permitted by the provisions of Section 1.4 below) be stamped
or otherwise imprinted with a legend in the following form (in addition to any
legend required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933. SUCH SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS THE COMPANY RECEIVES AN OPINION OF
COUNSEL REASON ABLY ACCEPTABLE TO IT STATING THAT SUCH SALE OR
TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF SAID ACT. COPIES OF THE AGREEMENT COVERING THE
PURCHASE OF THESE SHARES AND RESTRICTING THEIR TRANSFER MAY BE
OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD
OF THIS CERTIFICATE TO THE SECRETARY OF THE CORPORATION AT THE
PRINCIPAL EXECUTIVE OFFICES OF THE CORPORATION.
Each Investor and Holder consents to Echelon making a notation on its
records and giving instructions to any transfer agent of the Preferred Stock or
the Common Stock in order to implement the restrictions on transfer established
in this Section 1.
1.4 Notice of Proposed Transfers. The holder of each certificate
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representing Restricted Securities by acceptance thereof agrees to comply in all
respects with the provisions of this Section 1.4. Prior to any proposed sale,
assignment, transfer or pledge of any Restricted Securities (other than, except
as otherwise provided below, (i) a transfer not involving a change in beneficial
ownership or (ii) in transactions involving the distribution without
consideration of Restricted Securities by any of the Investors to any of its
partners, or retired partners, or to the estate of any of its partners or
retired partners), unless there is in effect a registration statement under the
Securities Act covering the proposed transfer, the holder thereof shall give
written notice to Echelon of such holder's intention to effect such transfer,
sale, assignment or pledge. Each such notice shall describe the manner and
circumstances of the proposed transfer, sale, assignment or pledge in sufficient
detail, and shall be accompanied, at such holder's expense by either (i) an
unqualified written opinion of legal counsel who shall, and whose legal opinion
shall be, reasonably satisfactory to Echelon addressed to Echelon, to the effect
that the proposed transfer of the Restricted Securities may be effected without
registration under the Securities Act, or (ii) a "no action" letter from the
Commission to the effect that the transfer of such securities without
registration will not result in a recommendation by the staff of the Commission
that action be taken with respect thereto, whereupon the holder of such
Restricted Securities shall be entitled to transfer such Restricted Securities
in accordance with the terms of the notice delivered by the holder to Echelon.
Each certificate evidencing the Restricted Securities transferred as above
provided shall bear, except if such transfer is made pursuant to Rule 144, the
appropriate restrictive legend set forth in Section 1.3 above, except that such
certificate shall not bear such restrictive legend if in the opinion of counsel
for such holder
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and Echelon such legend is not required in order to establish compliance with
any provision of the Securities Act. Notwithstanding anything in this Section
1.4 to the contrary, prior to the closing of Echelon's first underwritten public
offering pursuant to an effective registration statement under the Securities
Act, Echelon may decline to allow any transfer of Restricted Securities which
would result in Echelon becoming subject to the reporting requirements of the
Securities Act or the Securities Exchange Act of 1934, as amended.
1.5 Requested Registration.
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(a) Request for Registration. In case Echelon shall receive from
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Initiating Holders a written request that Echelon effect any registration,
qualification or compliance with respect to not less than 1,500,000 shares
(appropriately adjusted for stock splits, stock dividends, recapitalizations and
the like) of Registrable Securities, Echelon will:
(i) promptly give written notice of the proposed registration,
qualification or compliance to all other Holders; and
(ii) as soon as practicable, use its best efforts to effect such
registration, qualification or compliance (including, without limitation,
appropriate qualification under applicable blue sky or other state securities
laws and appropriate compliance with applicable regulations issued under the
Securities Act and any other governmental requirements or regulations) as may be
so requested and as would permit or facilitate the sale and distribution of all
or such portion of such Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any Holder or
Holders joining in such request as are specified in a written request received
by Echelon within 20 days after receipt of such written notice from Echelon;
Provided, however, that Echelon shall not be obligated to take any
action to effect any such registration, qualification or compliance pursuant to
this Section 1.5:
(1) In any particular jurisdiction in which Echelon would
be required to execute a general consent to service of process in effecting such
registration, qualification or compliance unless Echelon is already subject to
service in such jurisdiction and except as may be required by the Securities
Act;
(2) Prior to the date one year after the effective date of
Echelon's first registered public offering of its stock;
(3) During the period starting with the date sixty (60)
days prior to Echelon's estimated date of filing of, and ending on the date
three (3) months immediately following the effective date of, any registration
statement pertaining to securities of Echelon (other than a registration of
securities in a Rule 145 transaction or with respect to an employee benefit
plan), provided that Echelon is actively employing in good faith all reasonable
efforts to cause such registration statement to become effective;
(4) After Echelon has effected two such registrations
pursuant to this subparagraph 1.5(a), and such registrations have been declared
or ordered effective; provided,
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however, that if a registration request made by the Initiating Holders is
subsequently withdrawn at any time by the request of the Holders of a majority
of the Registrable Securities to be registered, the Holders shall forfeit their
right to one requested registration pursuant to this Section 1.5; provided
further, however, that if at the time of such withdrawal, the Holders have
learned of a materially adverse change in the financial condition, business or
prospects of Echelon from that known to the Initiating Holders at the time of
their request, the withdrawal shall not result in such a forfeit of the Holder's
rights to a requested registration pursuant to this Section 1.5;
(5) If Echelon shall furnish to such Holders a certificate
signed by the President of Echelon stating that in the good faith judgment of
the Board of Directors it would be seriously detrimental to Echelon or its
stockholders for a registration statement to be filed in the near future, then
Echelon's obligation to use its best efforts to register, qualify or comply
under this Section 1.5 shall be deferred for a period not to exceed one hundred
twenty (120) days from the date of receipt of written request from the
Initiating Holders.
Subject to the foregoing clauses (1) through (5), Echelon shall file a
registration statement covering the Registrable Securities so requested to be
registered as soon as practicable, after receipt of the request or requests of
the Initiating Holders.
(b) Underwriting. In the event that a registration pursuant to Section
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1.5 is for a registered public offering involving an underwriting, Echelon shall
so advise the Holders as part of the notice given pursuant to Section 1.5(a)(i).
In such event, the right of any Holder to registration pursuant to Section 1.5
shall be conditioned upon such Holder's participation in the underwriting
arrangements required by this Section 1.5, and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent requested shall be
limited to the extent provided herein.
Echelon shall (together with all Holders proposing to distribute their
securities through such underwriting) enter into an underwriting agreement in
customary form with the managing underwriter selected for such underwriting by a
majority in interest of the Initiating Holders, but subject to Echelon's
reasonable approval. Notwithstanding any other provision of this Section 1.5, if
the managing underwriter advises the Initiating Holders in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then Echelon shall so advise all Holders of Registrable Securities
and the number of shares of Registrable Securities that may be included in the
registration and underwriting shall be allocated among all Holders thereof in
pro portion, as nearly as practicable, to the respective amounts of Registrable
Securities held by such Holders at the time of filing the registration
statement. No Registrable Securities excluded from the underwriting by reason of
the underwriter's marketing limitation shall be included in such registration.
To facilitate the allocation of shares in accordance with the above provisions,
Echelon or the underwriters may round the number of shares allocated to any
Holder to the nearest 100 shares.
If any Holder of Registrable Securities disapproves of the terms of
the underwriting, such person may elect to withdraw therefrom by written notice
to Echelon, the managing underwriter and the Initiating Holders. The Registrable
Securities and/or other securities so withdrawn shall also be withdrawn from
registration, and such Registrable Securities shall not be transferred in a
public distribution prior to ninety (90) days after the effective date of such
registration, or such other shorter period of time as the underwriters may
require.
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1.6 Company Registration.
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(a) Notice of Registration. If at any time or from time to time
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Echelon shall determine to register any of its securities, either for its own
account or the account of a security holder or holders, other than (i) a
registration relating solely to employee benefit plans or (ii) a registration
relating solely to a Commission Rule 145 transaction, Echelon will:
(i) promptly give to each Holder written notice thereof
(Echelon shall further provide Motorola with such notice a list of the
jurisdictions in which Echelon intends to qualify under the blue sky laws of
such jurisdictions); and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made within 20 days after receipt of such written notice from
Echelon, by any Holder.
(b) Underwriting. If the registration of which Echelon gives notice
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is for a registered public offering involving an underwriting, Echelon shall so
advise the Holders as a part of the written notice given pursuant to Section
1.6(a)(i). In such event the right of any Holder to registration pursuant to
Section 1.6 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of Registrable Securities in the underwriting to
the extent provided herein. All Holders proposing to distribute their securities
through such underwriting shall (together with Echelon and the other holders
distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the managing underwriter selected
for such underwriting by Echelon. Notwithstanding any other provision of this
Section 1.6, if the managing underwriter or Echelon determines that marketing
factors require a limitation of the number of shares to be underwritten, the
managing underwriter or Echelon may limit or exclude entirely the Registrable
Securities to be included in such registration. Echelon shall so advise all
Holders and other holders distributing their securities through such
underwriting and the number of shares of Registrable Securities that may be
included in the registration and underwriting shall be allocated among all
Holders and such other holders in proportion, as nearly as practicable, to the
respective amounts of Registrable Securities held by such Holders and such other
holders at the time of filing the registration statement. To facilitate the
allocation of shares in accordance with the above provisions, Echelon may round
the number of shares allocated to any Holder or holder to the nearest 100
shares. If any Holder or holder disapproves of the terms of any such
underwriting, he may elect to withdraw therefrom by written notice to Echelon
and the managing underwriter. Any securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration, and shall not be
transferred in a public distribution prior to ninety (90) days after the
effective date of the registration statement relating thereto, or such other
shorter period of time as the underwriters may require.
(c) Right to Terminate Registration. Echelon shall have the right to
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terminate or withdraw any registration initiated by it under this Section 1.6
prior to the effectiveness of such registration whether or not any Holder has
elected to include securities in such registration.
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1.7 Registration on Form S-3.
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(a) If any Holder or Holders holding in the aggregate not less than
5% of the then outstanding Registrable Securities request that Echelon file a
registration statement on Form S-3 (or any successor form to Form S-3) for a
public offering of shares of the Registrable Securities the reasonably
anticipated aggregate price to the public of which, net of underwriting
discounts and commissions, would exceed $1,000,000, and Echelon is a registrant
entitled to use Form S-3 to register the Registrable Securities for such an
offering, Echelon shall use its best efforts to cause such Registrable
Securities to be registered for the offering on such form and to cause such
Registrable Securities to be qualified in such jurisdictions as the Holder or
Holders may reasonably request; provided, however, that Echelon shall not be
required to effect more than one registration pursuant to this Section 1.7 in
any six (6) month period. The substantive provisions of Section 1.5(b) shall be
applicable to each registration initiated under this Section 1.7.
(b) Notwithstanding the foregoing, Echelon shall not be obligated to
take any action pursuant to this Section 1.7: (i) in any particular jurisdiction
in which Echelon would be required to execute a general consent to service of
process in effecting such registration, qualification or compliance unless
Echelon is already subject to service in such jurisdiction and except as may be
required by the Securities Act; (ii) if Echelon, within ten (10) days of the
receipt of the request of the initiating Holders, gives notice of its bona fide
intention to effect the filing of a registration statement with the Commission
within ninety (90) days of receipt of such request (other than with respect to a
registration statement relating to a Rule 145 transaction, an offering solely to
employees or any other registration which is not appropriate for the
registration of Registrable Securities); (iii) during the period starting with
the date sixty (60) days prior to Echelon's estimated date of filing of, and
ending on the date six (6) months immediately following, the effective date of
any registration statement pertaining to securities of Echelon (other than a
registration of securities in a Rule 145 transaction or with respect to an
employee benefit plan), provided that Echelon is actively employing in good
faith all reasonable efforts to cause such registration statement to become
effective; or (iv) if Echelon shall furnish to such Holder a certificate signed
by the President of Echelon stating that in the good faith judgment of the Board
of Directors it would be seriously detrimental to Echelon or its stockholders
for registration statements to be filed in the near future, then Echelon's
obligation to use its best efforts to file a registration statement shall be
deferred for a period not to exceed 120 days from the receipt of the request to
file such registration by such Holder.
1.8 Limitations on Subsequent Registration Rights. From and after the
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Closing Date, Echelon shall not enter into any agreement granting any holder or
prospective holder of any securities of Echelon registration rights with respect
to such securities unless (i) such new registration rights, including standoff
obligations, are on a pari passu basis with those rights of the Holders
hereunder; or (ii) such new registration rights, including standoff obligations,
are subordinate to the registration rights granted Holders hereunder.
1.9 Expenses of Registration.
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(a) All Registration Expenses incurred in connection with (i) two
(2) registrations pursuant to Section 1.5, and (ii) all registrations pursuant
to Section 1.6, shall be borne by Echelon. Unless otherwise stated, all Selling
Expenses relating to securities registered on behalf of the Holders
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and all other Registration Expenses shall be borne by the Holders of such
securities pro rata on the basis of the number of shares so registered.
(b) All Registration Expenses and Selling Expenses incurred in
connection with a registration pursuant to Section 1.7 shall be borne pro rata
by the Holder or Holders requesting the registration on Form S-3 according to
the number of Registrable Securities included in such registration.
1.10 Registration Procedures. In the case of each registration,
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qualification or compliance effected by Echelon pursuant to this Section 1,
Echelon will keep each Holder advised in writing as to the initiation of each
registration, qualification and compliance and as to the completion thereof. At
its expense Echelon will:
(a) Prepare and file with the Commission a registration statement
with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective for at least one hundred
eighty (180) days or until the distribution described in the Registration
Statement has been completed; and
(b) Furnish to the Holders participating in such registration and to
the underwriters of the securities being registered such reasonable number of
copies of the registration statement, preliminary prospectus, final prospectus
and such other documents as such underwriters may reasonably request in order to
facilitate the public offering of such securities.
1.11 Indemnification.
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(a) Echelon will indemnify each Holder, each of its officers and
directors and partners, and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, with respect to which registration,
qualification or compliance has been effected pursuant to this Section 1, and
each underwriter, if any, and each person who controls any underwriter within
the meaning of Section 15 of the Securities Act, against all expenses, claims,
losses, damages or liabilities (or actions in respect thereof), including any of
the foregoing incurred in settlement of any litigation, commenced or threatened,
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any registration statement, prospectus, offering
circular or other document, or any amendment or supplement thereto, incident to
any such registration, qualification or compliance, or based on 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, or any violation by
Echelon of the Securities Act or any rule or regulation promulgated under the
Securities Act applicable to Echelon in connection with any such registration,
qualification or compliance, and Echelon will reimburse each such Holder, each
of its officers and directors, and each person controlling such Holder, each
such underwriter and each person who controls any such underwriter, for any
legal and any other expenses reasonably incurred in connection with
investigating, preparing or defending any such claim, loss, damage, liability or
action, provided that Echelon will not be liable in any such case to the extent
that any such claim, loss, damage, liability or expense arises out of or is
based on any untrue statement or omission or alleged untrue statement or
omission, made in reliance upon and in
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conformity with written information furnished to Echelon by an instrument duly
executed by such Holder, controlling person or underwriter and stated to be
specifically for use therein.
(b) Each Holder will, if Registrable Securities held by such Holder
are included in the securities as to which such registration, qualification or
compliance is being effected, indemnify Echelon, each of its directors and
officers, each underwriter, if any, of Echelon's securities covered by such a
registration statement, each person who controls Echelon or such underwriter
within the meaning of Section 15 of the Securities Act, and each other such
Holder, each of its officers and directors and each person controlling such
Holder within the meaning of Section 15 of the Securities Act, against all
claims, losses, damages and liabilities (or actions in respect thereof) arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any such registration statement, prospectus, offering
circular or other document, 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, and will reimburse Echelon, such Holders,
such directors, officers, persons, underwriters or control persons for any legal
or any other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, in each case to the
extent, but only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance upon and
in conformity with written information furnished to Echelon by an instrument
duly executed by such Holder and stated to be specifically for use therein.
Notwithstanding the foregoing, the liability of each Holder hereunder shall be
limited to the proceeds received by such Holder from the sale of securities
under such Registration Statement. In no event will any Holder be required to
enter into any agreement or undertaking in connection with any registration
under this Section 1 providing for any indemnification or contribution
obligations on the part of such Holder greater than such Holder's obligations
under this Section 1.11.
(c) Each party entitled to indemnification under this Section 1.11
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Section 1 unless the failure to give such notice is
materially prejudicial to an Indemnifying Party's ability to defend such action
and provided further, that the Indemnifying Party shall not assume the defense
for matters as to which there is a conflict of interest or separate and
different defenses. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, 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.
1.12 Information by Holder. The Holder or Holders of Registrable
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Securities included in any registration shall furnish to Echelon such
information regarding such Holder or Holders, the Registrable Securities held by
them and the distribution proposed by such Holder or Holders as
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Echelon may request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Section 1.
1.13 Rule 144 Reporting. With a view to making available the benefits of
------------------
certain rules and regulations of the Commission which may at any time permit the
sale of the Restricted Securities to the public without registration, after such
time as a public market exists for the Common Stock of Echelon, Echelon agrees
to use its best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times after
the effective date that Echelon becomes subject to the reporting requirements of
the Securities Act or the Securities Exchange Act of 1934, as amended;
(b) Use its best efforts to file with the Commission in a timely
manner all reports and other documents required of Echelon under the Securities
Act and the Securities Exchange Act of 1934, as amended (at any time after it
has become subject to such reporting requirements); and
(c) So long as an Investor owns any Restricted Securities to furnish
to the Investor forthwith upon request a written statement by Echelon as to its
compliance with the reporting requirements of said Rule 144 (at any time after
ninety (90) days after the effective date of the first registration statement
filed by Echelon for an offering of its securities to the general public), and
of the Securities Act and the Securities Exchange Act of 1934, as amended (at
any time after it has become subject to such reporting requirements), a copy of
the most recent annual or quarterly report of Echelon, and such other reports
and documents of Echelon and other information in the possession of or
reasonably obtainable by Echelon as an Investor may reasonably request in
availing itself of any rule or regulation of the Commission allowing an Investor
to sell any such securities without registration.
1.14 Transfer of Registration Rights. The rights to cause Echelon
-------------------------------
to register securities granted Holders under Sections 1.5, 1.6 and 1.7 may be
assigned to a transferee or assignee reasonably acceptable to Echelon in
connection with any transfer or assignment of Registrable Securities by a Holder
provided that: (i) such transfer may otherwise be effected in accordance with
applicable securities laws, and (ii) such assignee or transferee acquires at
least 100,000 shares of Registrable Securities issued upon conversion thereof
(appropriately adjusted for stock splits, stock dividends, recapitalizations and
the like). Notwithstanding the foregoing, the rights to cause Echelon to
register securities may be assigned to any constituent partner of an Investor
without compliance with item (ii) above, provided written notice thereof is
promptly given to Echelon.
1.15 Standoff Agreement. Each Holder agrees, in connection with Echelon's
------------------
initial public offering of Echelon's securities that, upon request of Echelon or
the underwriters managing any underwritten offering of Echelon's securities, not
to sell, make any short sale of, loan, grant any option for the purchase of, or
otherwise dispose of any Registrable Securities (other than those included in
the registration) without the prior written consent of Echelon or such
underwriters, as the case may be, for such period of time (not to exceed one
hundred eighty (180) days) from the effective date of such registration as may
be requested by the underwriters; provided, that the officers and directors of
Echelon who own stock of Echelon also agree to such restrictions.
-11-
1.16 Termination of Registration Rights. The registration rights granted
----------------------------------
pursuant to Section 1 shall terminate as to each Holder at the earlier of (i)
such time as a public market for Echelon's Common Stock exists and all
Registrable Securities held by such Holder may, in the opinion of counsel to
Echelon (which opinion shall be concurred in by counsel for such Holder), be
sold within a given three (3) month period pursuant to Rule 144 or any other
applicable exemption that allows for resale free of registration or, other than
with respect to affiliates of Echelon, or (ii) on the expiration of ten (10)
years following the date of this Agreement.
SECTION 2
TERMINATION OF PRIOR MODIFICATION AGREEMENT
-------------------------------------------
In consideration of the rights granted herein, the Prior Modification
Agreement is hereby null and void and of no further force and effect.
SECTION 3
MISCELLANEOUS
-------------
3.1 Governing Law. This Agreement shall be governed in all respects by
-------------
the internal laws of the State of Delaware.
3.2 Successor and Assigns. Except as otherwise provided herein, the
---------------------
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
3.3 Entire Agreement; Amendment. This Agreement constitutes the full and
---------------------------
entire understanding and agreement between the parties with regard to the
subjects hereof and thereof. Neither this Agreement nor any term hereof may be
amended, waived, discharged, or terminated other than by a written instrument
signed by Echelon and the holders of a majority of the Registrable Securities.
3.4 Effectiveness. This Agreement in its entirety shall be effective upon
-------------
the execution by Echelon, the Series E Purchasers and the record holders of a
majority of (i) the Common Stock held by Xxxxxx and Markkula and entities
controlled by Xxxxxx and Markkula, (ii) the Common Stock issued or issuable upon
conversion of the outstanding Series B Preferred, Series C Preferred and Series
D Preferred, and (iii) the Common Stock issued upon conversion of the Series A
Preferred, which conversion occurred on October 22, 1991.
3.5 Aggregation of Stock. All shares of Preferred Stock and Common Stock
--------------------
held or acquired by affiliated entities or persons shall be aggregated together
for the purpose of determining the availability of any rights under this
Agreement.
-12-
3.6 Notices, etc. All notices and other communications required or
-------------
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by hand or by messenger,
addressed (a) if to a Holder, to the address of such Holder as set forth on the
records of Echelon, or to such address as such Holder shall have furnished to
Echelon in writing, or, until any such Holder so furnishes an address to
Echelon, then to the address of the last holder of such Registrable Securities
who has so furnished an address to the Company, or (b) if to Echelon, one copy
shall be sent to 0000 Xxxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000 and addressed
to the attention of the President, or at such other address as Echelon shall
have furnished to the Investors.
3.7 Delays or Omissions. Except as expressly provided herein, no delay or
-------------------
omission to exercise any right, power, or remedy occurring to any Holder, upon
any breach or default of Echelon under this Agreement, shall impair any such
right, power or remedy of such Holder nor shall it be construed to be a waiver
of any such breach or default, or an acquiescence therein, as of or in any
similar breach or default therein occurring, nor shall any waiver of any single
breach or default be deemed a waiver of any other breach or default theretofore
or thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any Holder of any breach or default under this
Agreement, or any waiver on the part of any Holder of any provisions or
conditions of this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in such writing. All remedies, either under
this Agreement or by law or otherwise afforded to any Holder, shall be
cumulative and not alternative.
3.8 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which may be executed by less than all of the parties,
each of which shall be enforceable against the parties actually executing such
counterparts, and all of which together shall constitute one instrument.
3.9 Titles and Subtitles. The titles and subtitles used in this Agreement
--------------------
are used for convenience only and are not considered in construing or
interpreting this Agreement.
-13-
The foregoing agreement is hereby executed as of the date first above
written.
ECHELON CORPORATION
By:
--------------------------------
Xxxxxx X. Xxxxxxxxx,
Vice President
"SERIES B, C AND/OR D PURCHASERS"
MOTOROLA, INC.
By:
--------------------------------
Title:
-----------------------------
QUANTUM INDUSTRIAL PARTNERS LDC
By
---------------------------------
Title:
EDVENTURE CAPITAL CORPORATION
By:
--------------------------------
Title:
-----------------------------
-14-
"XXXXXX AND MARKKULA ENTITIES"
------------------------------------------------
M. Xxxxxxx Xxxxxx and
------------------------------------------------
Xxxxxxx X. Xxxxxx, Trustees of the Xxxxxx
Trust Dated July 10, 1979
------------------------------------------------
Xxxxx Xxxxxxxx Xxxxxxxx, Xx. and
------------------------------------------------
Xxxxx X. Xxxxxxxx, Trustees of the Xxxxx Trust,
Dated May 29, 1980
------------------------------------------------
Xxxxx Xxxxxxxx Xxxxxxxx, Xx. and
------------------------------------------------
Xxxxx X. Xxxxxxxx, Trustees of the Restated
Xxxxx Trust Dated 12/12/90
MARKKULA FAMILY LIMITED PARTNERSHIP
By:
---------------------------------------------
Title:__________________________________________
------------------------------------------------
Xxxxxx X. Xxxxxxx, Trustee of the Xxxxxx Xxxxxxx
Xxxxxxxx Trust Dated October 28, 1980
-15-
"SERIES A PURCHASERS"
--------------------------------------------------
Xxxxxx Xxxxxxxx, Jr. and Xxxxxxxx Xxxxxxxx,
Trustees of the Xxxxxx and Xxxxxxxx Xxxxxxxx
Trust U/A Dated July 21, 1982
ASSOCIATED VENTURE INVESTORS
-----------------------------------------------
Title:
--------------------------------------------
ASSOCIATED VENTURE INVESTORS-PGF
By:
-----------------------------------------------
Title:
--------------------------------------------
ASSOCIATED VENTURE INVESTORS II
By:
-----------------------------------------------
Title:
--------------------------------------------
AVI PARTNERS N.V.
By:
-----------------------------------------------
Title:
--------------------------------------------
-16-
AVI PARTNERS II N.V.
By:
-----------------------------------------------
Title:
--------------------------------------------
------------------------------------------------
Xxxxxxx Bac
------------------------------------------------
Xxxxx X. Xxxxxx
________________________________________________
Xxxxx X. Xxxxxx - Trustee Profit Sharing Plan
DLJSC - Cust. FBO Xxxxx X. Xxxxxx
BESSEMER VENTURE PARTNERS II L.P.
By:_____________________________________________
Title:__________________________________________
------------------------------------------------
Xxxx Xxxxxx Xxxxxx and
------------------------------------------------
Xxxxxxxx Xx-Xxx Xxxxxx Trustees, Xxxxxx Family
Trust UDT 4/29/85
XXXXXXXXXXX FAMILY ASSOCIATES
By:
-----------------------------------------------
Title:
--------------------------------------------
-17-
-----------------------------------------------
Xxxxxx X. Xxxxx
CPFIC, INC.
By:_____________________________________________
Title:__________________________________________
CROWN ASSOCIATES III, A LIMITED PARTNERSHIP
By:
-----------------------------------------------
Title:
------------------------------------------
CROWN-XXXXX ASSOCIATES, A LIMITED PARTNERSHIP
By:
-----------------------------------------------
Title:
------------------------------------------
------------------------------------------------
Xxxxx X. Xxxxxxxx, Trustee
Xxxxx X. Xxxxxxxx Revocable Trust U/A/D
1/3/80
------------------------------------------------
Xxxxxx Xxxxxxx, Xx.
-18-
XXXXX EMERGING OPPORTUNITY FUND
By:
---------------------------------------------
Title:
------------------------------------------
------------------------------------------------
Xxxx X. Xxxxx, Xx. Trustee, Xxxxx Family Trust
U/A/D 6/27/94
XXXXX VENTURES III, L.P.
By:
---------------------------------------------
Title:
------------------------------------------
------------------------------------------------
Xxxxxxx X. Xxxxx, Trustee or his Successor,
Under the Xxxxxxx X. Xxxxx Revocable Living
Trust Dated August 6, 1991
________________________________________________
Xxxx X. Xxxxxxxxx
THE XXXXXXX X. XXXXXX XXX
By:
---------------------------------------------
Title:__________________________________________
-19-
THE XXXXXXX X. XXXXXX XXX
By:
---------------------------------------------
Title:__________________________________________
------------------------------------------------
F. Xxxxxx Xxxxxxx and
-------------------------------------------------
Xxxxxxxx Xxxxxxxxx Xxxxxxx, Trustees of the
Xxxxxxx Family Revocable Trust, Dated
December 17, 1984, as the same has been and
may be amended
XXXXXXX & XXXXXX XXXXXXXXX REVOCABLE TRUST
By:
-----------------------------------------------
Title:
------------------------------------------
------------------------------------------------
Xxxxxxx X. Xxxxxx, Trustee for the Xxxxx X.
Xxxxxxxxxxx 1980 Trust
------------------------------------------------
Xxxxxxx X. Xxxxxx
XXXXXXX XXXXXXX XXXXXXXX & XXXXX IV
By:_____________________________________________
Title:__________________________________________
-20-
________________________________________________
Xxxxx X. Xxxxxx
------------------------------------------------
Xxxxxxx X. XxXxxxx
________________________________________________
Xxxxxxxx X. Xxxxxxxxxx, Trustee of Trust B Under
the Xxxxxxx X. Xxxxxxxxxx and Xxxxxxxx X.
Xxxxxxxxxx Revocable Trust Dated February 23,
1990
------------------------------------------------
Xxxxx Xxxxxxxxxxx
------------------------------------------------
Xxxxxx Xxxxxxxxxxx, Xx., Trustee of the Xxxxxx
Xxxxxxxxxxx, Xx. Separate Property Trust U/D/T
Dated February 12, 1990
------------------------------------------------
Xxxxx Xxxxxxxx Xxxxxxxx, Xx. and
------------------------------------------------
Xxxxx Xxxxxxx Xxxxxxxx, Trustees of the
Restated Xxxxx Trust Dated 12/12/90
MATRIX PARTNERS II, L.P.
By:
-----------------------------------------------
Title:
------------------------------------------
------------------------------------------------
Xxxxxx X. Xxxxxxxx, Trustee UA DTD 12/14/87,
as Amended
-21-
XXXXXXXX ASSOCIATES
By:
---------------------------------------------
Title:
------------------------------------------
XXXXXXXX VI
By:
---------------------------------------------
Title:
------------------------------------------
------------------------------------------------
Xxxxxx X. XxXxxxx and
------------------------------------------------
Xxxx X. XxXxxxx, as Community Property
------------------------------------------------
Xxxxx Xxxxxxxxx
XXXX, XXXXXXX VENTURES II
By: WHD/LGM Partners, General Partner
By:
---------------------------------------------
Title: Xxxxxxx X. Xxxxxxx, General Partner
------------------------------------------------
Xxxxxxx X. Xxxxx
-22-
XXXXXXXXX & XXXXXX TRUST
COMPANY TRUSTEE THE CROWN TRUST
By:
---------------------------------------------
Title:
------------------------------------------
THE 1976 MOLDAW FAMILY TRUST
By:
---------------------------------------------
Title:
------------------------------------------
NSH ASSOCIATES
By:
---------------------------------------------
Title:
------------------------------------------
O-S VENTURES
By:
---------------------------------------------
Title:
------------------------------------------
XXXXX XXXX XXXXXX FIRST 1976 TRUST
By:_____________________________________________
Title:__________________________________________
-23-
------------------------------------------------
M. Xxxxxxx Xxxxxx and
------------------------------------------------
Xxxxxxx X. Xxxxxx, Trustees of the M. Xxxxxxx
Xxxxxx and Xxxxxxx X. Xxxxxx Trusts Dated
July 10, 1979
------------------------------------------------
M. Xxxxxxx Xxxxxx, Trustee of the Xxxxxxxxx
Xxx Xxxxxxx 1982 Trust
------------------------------------------------
M. Xxxxxxx Xxxxxx, Trustee of the Xxxxx
Xxxxxxxx Xxxxxxx 1984 Trust
------------------------------------------------
M. Xxxxxxx Xxxxxx, Trustee of the Xxxxxxx
Xxxx Xxxxxxx 1983 Trust
XXXXX XXXXXXXX XXXXXX SEPARATE PROPERTY TRUST
By:_____________________________________________
Title:__________________________________________
XXXXX XXXXXXXXX PARMACET TRUST
By:
---------------------------------------------
Title:
------------------------------------------
------------------------------------------------
Xxxxxx Xxxxxxx
-24-
------------------------------------------------
Xxxxxxx Xxxxxx
------------------------------------------------
Xxxxxx Xxxx
------------------------------------------------
Xxxxxxxx X. Xxxxxxxxxxx
------------------------------------------------
Xxxxxx X. Xxxxxxx
XXXXXX FAMILY TRUST: XXXXXX X.
XXXXXX & XXXXX X. XXXXXX, TRUSTEES
U/D 6/28/82
By:
---------------------------------------------
Title:
------------------------------------------
------------------------------------------------
Xxxxx Xxxxxxx
SAXE FAMILY PARTNERSHIP
By:
---------------------------------------------
Title:
------------------------------------------
SECOND VENTURES, L.P.
By:_____________________________________________
Title:__________________________________________
-25-
------------------------------------------------
Xxxxxxx X. Xxxxxx
------------------------------------------------
Xxxxx Xxxxxxxxx
3COM CORPORATION
By:_____________________________________________
Title:__________________________________________
U.S. VENTURE PARTNERS III
By:_____________________________________________
Title:__________________________________________
U.S.V. ENTREPRENEUR PARTNERS
By:_____________________________________________
Title:__________________________________________
VENROCK ASSOCIATES
By:
---------------------------------------------
Title:
------------------------------------------
-26-
VENROCK ASSOCIATES II, L.P.
By:
---------------------------------------------
Title:
------------------------------------------
X.X. XXXXXXX & CO.
By:
---------------------------------------------
Title:
------------------------------------------
WS INVESTMENT COMPANY 88B
By:
---------------------------------------------
Title:__________________________________________
-27-
"SERIES E PURCHASERS"
/s/ M. Xxxxxxx Xxxxxx
-------------------------------------------
M. Xxxxxxx Xxxxxx and
/s/ Xxxxxxx Xxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxx,
Trustees of the Xxxxxx Trust
Dated July 10, 1979
O-S VENTURES
By: /s/ M. Xxxxxxx Xxxxxx
-------------------------------------
Title: Managing General Partner
/s/ Xxxxx Xxxxxxxx Xxxxxxxx, Xx.
-------------------------------------------
Xxxxx Xxxxxxxx Xxxxxxxx, Xx. and
/s/ Xxxxx X. Xxxxxxxx
-------------------------------------------
Xxxxx X. Xxxxxxxx, Trustees of the Restated
Xxxxx Trust Dated 12/12/90
MARKKULA FAMILY LIMITED
PARTNERSHIP
By /s/ Xxxxx Markkula, Jr.
---------------------------------------
Name:
Title:
/s/ Xxxxxx X. Xxxxxxxx
-------------------------------------------
Xxxxxx X. Xxxxxxxx
Trustee, UA DTD 12/14/87, as Amended
/s/ Xxxxxxx X. Xxxxx
-----------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxxx Xxxx
-----------------------------
Xxxxxx Xxxx
VENROCK ASSOCIATES
By: /s/ Xxxxx X. Xxxxx
-------------------------
Title: General Partner
----------------------
VENROCK ASSOCIATES II, L.P.
By: /s/ Xxxxx X. Xxxxx
-------------------------
Xxxxx X.Xxxxx
Title: General Partner
----------------------
/s/ Xxxxxx Xxxxxxxx, Jr
-----------------------------
Xxxxxx Xxxxxxxx, Jr. and
/s/ Xxxxxxxx Xxxxxxxx
-----------------------------
Xxxxxxxx Xxxxxxxx
As Trustees of the Xxxxxx
and Xxxxxxxx Xxxxxxxx Trust
U/A dated 7/21/82
/s/ X.X. Xxxxxxxx
-------------------------------------------
X.X. Xxxxxxxx
/s/ Xxx X. Xxxxxxxx
-------------------------------------------
Xxx X. Xxxxxxxx
/s/ Xxxx Xxxxxx Xxxxxxxx
-------------------------------------------
Xxxx Xxxxxx Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Xxxxxx X. Xxxxxxx, As Trustee of the Xxxxxx
Xxxxxxx Xxxxxxxx Trust Dated
October 28, 1980
/s/ Xxxxxx Xxxxxx
------------------------------------------
Xxxxxx Xxxxxx
/s/ Xxxxx Xxxxxxxxx
------------------------------------------
Xxxxx Xxxxxxxxx, as
Custodian for Xxxxx Xxxxxxxx Xxxxxxxxx
under the California Uniform Transfers to
Minors Act
/s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxx X. Xxxxxxxxx
------------------------------------------
Xxxxx X. Xxxxxxxxx
/s/ Xxxx Xxxxxx Xxxxxx
------------------------------------------
Xxxx Xxxxxx Xxxxxx and
/s/ Xxxxxxxx Xx-Xxx Xxxxxx
------------------------------------------
Xxxxxxxx Xx-Xxx Xxxxxx
Trustees, Xxxxxx Family Trust
UTD 4/29/85
XXXXXXX XXXXXX & CO., INC. FBO
XXXXXX X. XXXXXXXXX SEP-XXX ACCT.
#OD4319-1837
By /s/ Xxxxxx Xxxxxxxx
---------------------
Name: XXXXXX XXXXXXXX
Title: ACTING BRANCH MANAGER
Xxxxxxx Xxxxxx & Co., Inc. does not represent that it has satisfied Section
5.1(c) on page 8 in signing this document nor does Xxxxxxx Xxxxxx & Co., Inc.
represent that it has analyzed this investment's merits and risk in any way.
This account is self-directed and the investment decision is solely the
customer's responsibility. Schwab is acting only as custodian and upon the
client's express instructions.
/s/ Xxxxxx X. Xxxxxxxx, Xx.
----------------------------
Xxxxxx X. Xxxxxxxx, Xx.
/s/ Xxxxxxx Xxxxx
----------------------------
Xxxxxxx Xxxxx
/s/ Xxxxx X. Xxxx
----------------------------
Xxxxx X. Xxxx
EDVENTURE CAPITAL CORPORATION
By: [SIGNATURE ILLEGIBLE]
-----------------------
Title: President
/s/ Xxxx Xxx
--------------------------------------------
Xxxx Xxx and
/s/ Xxxxxxxx Xxx
--------------------------------------------
Xxxxxxxx Xxx
/s/ Xxxxx X. Xxxxxxxx
--------------------------------------------
Xxxxx X. Xxxxxxxx, as Trustee of the
Xxxxx X. Xxxxxxxx Revocable
Trust U/A/D 1/3/80
/s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Xxxxxxx X. Xxxxx, Trustee or his Successor,
Under the Xxxxxxx X. Xxxxx Revocable
Living Trust dated 8/6/91
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxx and
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxx
/s/ F. Xxxxxx Xxxxxxx
--------------------------------------------
F. Xxxxxx Xxxxxxx and
/s/ Xxxxxxxx Xxxxxxxxx Xxxxxxx
--------------------------------------------
Xxxxxxxx Xxxxxxxxx Xxxxxxx
As Trustees of the Xxxxxxx Family
Revocable Trust Dated 12/17/84, as the
same has been and may be amended
/s/ Xxxxxx Xxxxxxxxx
-------------------------------------------
Xxxxxx Xxxxxxxxx
/s/ Xxxxxx Xxxxxx
-------------------------------------------
Xxxxxx Xxxxxx
/s/ [SIGNATURE ILLEGIBLE]
-------------------------------------------
Name: Trustee of the Xxxxxxx ad Xxxxxx
Xxxxxxxxx Revocable Trust
/s/ Xxxxxx Xxxxxxx Hey
----------------------------------------
Xxxxxx Xxxxxxx Hey
/s/ Xxxxxx Xxxxxxxx
-------------------------------------------
Kazuyo Kawaki
/s/ Xxxxx X. Xxx
------------------------------------
Xxxxx X. Xxx
____________________________________
Xxxx X. Xxxxxxx,
____________________________________
Xxxxxx X. Xxxxxxx and/or
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxx
As Trustees under Revocable Trust
dtd 4/16/82, as amended, FBO Xxxx X.
Xxxxxxx and Xxxxx X. Xxxxxxx
NEST EGG FAMILY LIMITED
PARTNERSHIP
By /s/ Xxxxx X. Xxxxxxx
----------------------------------
Title: General Partner
/s/ Xxxxxx Xxxxxxxx
------------------------------------
Xxxxxx Xxxxxxxx
/s/ Xxxxx Xxxxxxxxx Xxxxxxxx
------------------------------------
Xxxxx Xxxxxxxxx Parmacek
As Trustee of the
Xxxxx Xxxxxxxxx Xxxxxxxx Trust
/s/ Xxxx Xxxxxxxx
------------------------
Xxxx Xxxxxxxx
/s/ Xxxxxx Xxxxx
------------------------
Xxxxxx Xxxxx
/s/ Xxxxxxx X. Xxxxxx
------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxxx
------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxxx Xxxxx
------------------------
Xxxxxx Xxxxx
/s/ X. Xxxxxxxx Xxxxxxxx
--------------------------------------------
X. Xxxxxxxx Xxxxxxxx, as Trustee for the
X. Xxxxxxxx Xxxxxxxx Trust (Restated) Dated
February 22, 1988
TRANSCORP C/F XXXXXXX X. XXXXXX XXX
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Trust Officer
