Exhibit 10.1.1
Execution Copy
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
This Amended and Restated Stockholders Agreement (the "Agreement") is made
as of September 30, 1999 by and among:
(i) Advanced Telecommunications, Inc., a Delaware corporation (the
"Company");
(ii) Xxxxxxxx Partners, L.P. and Xxxxxxxx, Xxxxxx & Xxxxx II, L.P. (the
"Xxxxxxxx Investors");
(iii) Xxxx Capital Fund VI, L.P. ("Bain") and the other Persons who are
listed on the signature page as Bain Investors who purchase shares
of the Company's Series C Preferred Stock, par value $0.01 per share
(the "Series C Preferred") (together with Bain, the "Bain
Investors", and the Bain Investors together with Xxxxxxxx, Xxxxxx &
Scano II, L.P. (in its capacity as a purchaser and holder of shares
of Series C Preferred), the "Series C Investors") and
(iv) the individuals identified on the signature pages and Schedule I
hereof as "Minority Stockholders," such other Persons who from time
to time become party hereto by executing a counterpart signature
page hereof and are designated by the Board and included on Schedule
I as "Minority Stockholders," and such other Persons who were
designated as "Minority Stockholders" under the Initial Stockholders
Agreement (as defined below) and who are identified on Schedule I,
whether or not such Persons have executed a counterpart signature
page hereof (the "Minority Stockholders" and together with the
Xxxxxxxx Investors and the Series C Investors, the "Stockholders").
Recitals
1. On or about the date hereof, the Series C Investors have purchased or
will purchase shares of the Series C Preferred pursuant to a Series C Preferred
Stock Purchase Agreement dated September 30, 1999 between the Company and the
Series C Investors (the "Purchase Agreement").
2. Upon the Closing (as defined below), the Company's Common Stock, par
value $0.01 per share (the "Common Stock"), the Company's Series A Preferred
Stock, par value $0.01 per share (the "Series A Preferred"), the Company's
Series B1 Preferred Stock, par value $0.01 per share, the Company's Series B2
Preferred Stock, par value $0.01 per share, the Company's Series B3 Preferred
Stock, par value $0.01 per share, and the Company's Series B4 Preferred Stock,
par value $0.01 per share (collectively, the "Series B Preferred"
and together with the Series A Preferred and the Series C Preferred, the
"Preferred Stock"), the Series C Preferred and all Options and Convertible
Securities are held as set forth on Schedule II hereto.
3. The parties believe that it is in the best interests of the Company and
the Stockholders to set forth their agreements on certain matters.
4. This Agreement amends and restates in its entirety the Stockholders
Agreement dated as of July 1, 1996 by and among the Company, the Xxxxxxxx
Investors and the Minority Stockholders, as amended and in effect on the date
hereof (the "Initial Stockholders Agreement").
Agreement
Therefore, the parties hereto hereby agree as follows:
1. EFFECTIVENESS; DEFINITIONS.
1.1. Closing. This Agreement shall become effective upon consummation of
the initial closing (the "Closing") under the Purchase Agreement.
1.2. Definitions. Certain terms are used in this Agreement as specifically
defined herein. These definitions are set forth or referred to in Section 12
hereof.
2. VOTING AGREEMENT.
2.1. Election of Directors. Each holder of Shares hereby agrees to cast
all votes to which such holder is entitled in respect of the Shares, whether at
any annual or special meeting, by written consent or otherwise, (a) to fix the
number of members of the board of directors of the Company (the "Board") at
seven or such higher number as may be specified from time to time by the Board
with the consent of the Majority Series C Investors, and (b) to elect as
directors of the Company such individuals, if any, as shall have been nominated
as follows:
(i) two members of the Board as shall have been nominated by the
Majority Xxxxxxxx Investors;
(ii) two members of the Board as shall have been nominated by the
Majority Bain Investors;
(iii) one member of the Board who shall be the Chief Executive
Officer of the Company; and
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(iv) the balance who shall have been nominated by the Board with the
consent of the Majority Series C Investors; provide, however, that it is
understood that Xxxxxx Xxxxx shall be deemed to have been nominated and
approved as a member of the Board as of the Closing.
If the ownership percentage of the Bain Investors increases pursuant to
Section 1.2 of the Purchase Agreement, the Majority Bain Investors shall be
entitled from time to time to nominate an additional director or directors in
order to maintain the Bain Investors' representation on the Board at
approximately the same percentage as the ownership percentage of the Bain
Investors.
2.2. Boards and Board Committees. The Majority Bain Investors and the
Majority Xxxxxxxx Investors shall each have the right to appoint one member to
each committee of the Board including without limitation the compensation, audit
and executive committees. Upon the request of either the Majority Bain Investors
or the Majority Xxxxxxxx Investors, the Company shall cause the boards of
directors and committees of the boards of directors of the significant
subsidiaries of the Company (as reasonably defined by the Majority Bain
Investors or the Majority Xxxxxxxx Investors, as applicable, in such request to
the Company) to mirror the Board and committees of the Board of the Company.
2.3. Major Transactions. The charter or bylaws of each subsidiary of the
Company shall at all times include a provision that the subsidiary will not
undertake a Major Transaction unless such Major Transaction has first been
approved by the Board of the Company.
2.4. Board Voting. The bylaws of the Company and each of its Subsidiaries
shall contain a provision that in the event of a tie vote by the board of
directors of such entity, (a) if the number of members of the Board is six, the
Chief Executive Officer shall abstain from voting, and (b) if the number of
members of the Board is any other even number, the Board shall determine a tie
breaking mechanism that is reasonably acceptable to a majority of the members
nominated by the Majority Bain Investors and the Majority Xxxxxxxx Investors.
2.5. Transactions with Xxxxxxxx or Bain Affiliates. The Company will not
enter into, or permit any of its subsidiaries to enter into, any transaction or
agreement with any Affiliate of the Xxxxxxxx Investors or the Bain Investors
without the prior approval of the Board.
2.6. Initial Public Offering. The Company shall not file a registration
statement in connection with an initial public offering of securities of the
Company pursuant to the Securities Act other than a Qualified Public Offering
without the prior consent of the Majority Series C Investors.
2.7. Personnel Matters. The Company shall not approve the hiring or
election of, promotion to, or demotion, firing or removal of any member of the
Senior Management of the
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Company or the Board (except as specifically set forth in Section 2.1) without
the prior consent of the Majority Series C Investors.
2.8. Certain Transactions. Each holder of Shares agrees to cast all votes
to which such holder is entitled in respect of the Shares, whether at any annual
or special meeting, by written consent or otherwise, in the same proportion as
Series C Shares are voted by the Majority Series C Investors to approve any
sale, recapitalization, merger, consolidation, reorganization or any other
transaction or series of transactions involving the Company or its subsidiaries
(or all or any portion of their respective assets) in connection with, or in
furtherance of, the exercise by the Majority Series C Investors of their rights
under Sections 3.2 and 3.6, the exercise by the Majority Xxxxxxxx Investors of
their rights under Section 3.3 and the exercise by the Majority Series C
Investors and the Majority Xxxxxxxx Investors, acting together, of their rights
under Section 3.4.
2.9. Grant of Proxy. Each holder of Shares other than the Series C
Investors and the Xxxxxxxx Investors hereby grants to the Company an irrevocable
proxy to vote its Shares in accordance with its agreements contained in this
Section 2, which proxy shall be valid and remain in effect until the provisions
of this Section 2 expire pursuant to Section 2.9.
2.10. The Company. The Company agrees not to give effect to any action by
any holder of Shares or any other Person which is in contravention of this
Section 2.
2.11. Period. The foregoing provisions of this Section 2 shall expire on
the earliest of (i) a Qualified Public Offering and (ii) the last date permitted
by law.
3. "TAG ALONG" AND "DRAG ALONG" RIGHTS.
3.1. Tag Along. No holder of Xxxxxxxx Shares or Series C Shares (each such
holder, a "Prospective Selling Investor") shall Transfer for value (a "Sale")
any such Shares to a Prospective Buyer except in compliance with this Section
3.1. Any attempted Transfer of Shares not in compliance with this Section 3
shall be null and void, and the Company shall not in any way give effect to any
such impermissible Transfer.
3.1.1. Notice. A written notice (the "Tag Along Notice") shall be
furnished by the Prospective Selling Investor to each other holder of
Shares (each, a "Tag Along Holder") at least ten business days prior to
such Transfer. The Tag Along Notice shall include:
(a) The material terms of the proposed Sale insofar as it
relates to the sale of Shares, including the number of Shares to be
purchased from the Prospective Selling Investor, the percentage of
the total number of Shares originally issued to the Prospective
Selling Investor which such number of Shares constitutes (the "Tag
Along Sale Percentage"), the maximum and
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minimum per share purchase price and the name and address of the
Prospective Buyer; and
(b) An invitation to each Tag Along Holder to make an offer to
include in the proposed Sale to the Prospective Buyer an additional
number of Shares (not in any event to exceed the Tag Along Sale
Percentage of the total number of Shares held by such Tag Along
Holder) owned by such Tag Along Holder, on the same terms and
conditions subject to Section 3.5.4 in the case of Options, with
respect to each Share Sold, as the Prospective Selling Investor
shall Sell its Shares.
3.1.2. Exercise. Within ten business days after the effectiveness of
the Tag Along Notice, each Tag Along Holder desiring to make an offer to
include Shares in the proposed Sale (each a "Participating Seller" and,
together with the Prospective Selling Investor, collectively, the "Tag
Along Sellers") shall send a written offer (the "Tag Along Offer") to the
Prospective Selling Investor specifying the number of Shares (not in any
event to exceed the Tag Along Sale Percentage of the total number of
Shares held by such Participating Seller) which such Participating Seller
desires to have included in the proposed Sale. Each Tag Along Holder who
does not accept the Prospective Selling Investor's invitation to make an
offer to include Shares in the proposed Sale shall be deemed to have
waived all of its rights with respect to such Sale, and the Tag Along
Sellers shall thereafter be free to Sell to the Prospective Buyer, at a
per share price no greater than the maximum per share price set forth in
the Tag Along Notice and on other principal terms which are not materially
more favorable to the Tag Along Sellers than those set forth in the Tag
Along Notice, without any further obligation to such non-accepting Tag
Along Holder.
3.1.3. Irrevocable Offer. The offer of each Participating Seller
contained in its Tag Along Offer shall be irrevocable, and, to the extent
such offer is accepted, such Participating Seller shall be bound and
obligated to Sell in the proposed Sale on the same terms and conditions,
with respect to each Share Sold (subject to Section 3.5.4 in the case of
Options), as the Prospective Selling Investor, up to such number of Shares
as such Participating Seller shall have specified in its Tag Along Offer;
provided, however, that if the principal terms of the proposed Sale change
with the result that the per share price shall be less than the minimum
per share price set forth in the Tag Along Notice or the other principal
terms shall be materially less favorable to the Tag Along Sellers than
those set forth in the Tag Along Notice, each Participating Seller shall
be permitted to withdraw the offer contained in its Tag Along Offer and
shall be released from its obligations thereunder.
3.1.4. Reduction of Shares Sold. The Prospective Selling Investor
shall attempt to obtain the inclusion in the proposed Sale of the entire
number of Shares which the Tag Along Sellers requested to have included in
the Sale (as evidenced in the case of
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the Prospective Selling Investor by the Tag Along Notice and in the case
of each Participating Seller by such Participating Seller's Tag Along
Offer). In the event the Prospective Selling Investor shall be unable to
obtain the inclusion of such entire number of Shares in the proposed Sale,
the number of Shares to be sold in the proposed Sale shall be allocated
among the Tag Along Sellers in proportion, as nearly as practicable, to
the respective number of Shares which each Tag Along Seller requested to
be included in the proposed Sale.
3.1.5. Additional Compliance. If (a) prior to consummation, the
terms of the proposed Sale shall change with the result that the per share
price to be paid in such proposed Sale shall be greater than the maximum
per share price set forth in the Tag Along Notice or the other principal
terms of such proposed Sale shall be materially more favorable to the Tag
Along Sellers than those set forth in the Tag Along Notice, the Tag Along
Notice shall be null and void, and it shall be necessary for a separate
Tag Along Notice to be furnished, and the terms and provisions of this
Section 3.1 separately complied with, in order to consummate such proposed
Sale pursuant to this Section 3.1; provided, however, that in the case of
such a separate Tag Along Notice, the applicable period to which reference
is made in Sections 3.1.1 and 3.1.2 shall be five business days and (b)
the Prospective Selling Investor has not completed the proposed Sale by
the end of the 180th day following the date of the effectiveness of the
Tag Along Notice, each Participating Seller shall be released from its
obligations under its Tag Along Offer, the Tag Along Notice shall be null
and void, and it shall be necessary for a separate Tag Along Notice to be
furnished, and the terms and provisions of this Section 3.1 separately
complied with, in order to consummate such proposed Sale pursuant to this
Section 3.1, unless the failure to complete such proposed Sale resulted
from any failure by any Participating Seller to comply with the terms of
this Section 3.1.
3.1.6. Excluded Transactions. Notwithstanding the foregoing, (a)
holders of Xxxxxxxx Shares or Series C Shares shall not be obligated to
comply with the foregoing provisions of this Section 3.1 and (b) no other
holder of Shares shall have any right of participation pursuant to the
terms of this Section 3.1, or otherwise, in each case, with respect to any
Transfer of Shares:
(i) subject to the provisions of Section 9.1, by a holder of
Xxxxxxxx Shares or Series C Shares to its partners or
Affiliates;
(ii) to the Company or its subsidiaries;
(iii) subject to the provisions of Section 7.4.4, in a Public
Offering or, after the closing of the Initial Public
Offering, pursuant to Rule 144; or
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(iv) in accordance with the exercise by the Series C
Investors, the Xxxxxxxx Investors, or the Xxxxxxxx
Investors and the Bain Investors of their "drag along"
rights pursuant to Section 3.2, 3.3 or 3.4 of this
Agreement.
3.2. Series C Investors Drag Along. Each holder of Shares hereby agrees,
if requested by the Majority Series C Investors at any time following the third
anniversary of the date of the Closing hereunder, to Sell a specified percentage
(the "Drag Along Sale Percentage") of such Shares, directly or indirectly, to a
Prospective Buyer in the manner and on the terms set forth in this Section 3.2
in connection with the Sale by one or more holders of Series C Shares (each such
holder, a "Prospective Selling Investor") of the Drag Along Sale Percentage of
the total number of Series C Shares held by all holders of Series C Shares to
the Prospective Buyer.
3.2.1. Exercise. If the Majority Series C Investors elect to
exercise their rights under this Section 3.2, the Prospective Selling
Investors shall furnish a written notice (the "Drag Along Notice") to each
other holder of Shares and to the Company. The Drag Along Notice shall set
forth the material terms of the proposed Sale insofar as it relates to the
sale of Shares including the number of Shares to be acquired from the
Prospective Selling Investors, the Drag Along Sale Percentage, the per
share consideration to be received in the proposed Sale and the name,
address and any Affiliate relationship to the Series C Investors of the
Prospective Buyer. If the Prospective Selling Investors consummate the
proposed Sale to which reference is made in the Drag Along Notice, each
other holder of Shares (each a "Participating Seller", and, together with
the Prospective Selling Investors, collectively, the "Drag Along Sellers")
shall be bound and obligated to Sell the Drag Along Sale Percentage of its
Shares in the proposed Sale on the same terms and conditions, with respect
to each Share Sold (subject to Section 3.5.4 in the case of Options), as
the Prospective Selling Investors shall Sell each Series C Share in the
Sale (subject to Section 3.5.4 in the case of Options). If at the end of
the 180th day following the date of the effectiveness of the Drag Along
Notice the Prospective Selling Investors have not completed the proposed
Sale, each Participating Seller shall be released from its obligation
under the Drag Along Notice, the Drag Along Notice shall be null and void,
and it shall be necessary for a separate Drag Along Notice to be furnished
and the terms and provisions of this Section 3.2 separately complied with,
in order to consummate such proposed Sale pursuant to this Section 3.2.
3.2.2. Appraisal Process. In the case of a proposed Sale pursuant to
Section 3.2 to a Prospective Buyer which is an Affiliate of a Series C
Investor, such proposed Sale shall not be effected pursuant to the
provisions of Section 3.2 unless the Appraisal Process is followed.
3.3. Xxxxxxxx Investors Drag Along. Each holder of Shares hereby agrees,
if requested by the Majority Xxxxxxxx Investors on or after April 1, 2004 and if
at the time of such request
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the Xxxxxxxx Investors own at least 33 1/3% of the Equivalent Shares, to Sell a
specified percentage (the "Drag Along Sale Percentage") of such Shares, directly
or indirectly, to a Prospective Buyer in the manner and on the terms set forth
in this Section 3.3 in connection with the Sale by one or more holders of
Xxxxxxxx Shares (each such holder of Xxxxxxxx Shares, a "Prospective Selling
Investor") of the Drag Along Sale Percentage of the total number of Shares held
by all holders of Xxxxxxxx Shares to the Prospective Buyer.
3.3.1. Exercise. If the Majority Xxxxxxxx Investors elect to
exercise their rights under this Section 3.3, the Prospective Selling
Investors shall furnish a written notice (the "Drag Along Notice") to each
other holder of Shares and to the Company. The Drag Along Notice shall set
forth the material terms of the proposed Sale insofar as it relates to the
sale of Shares including the number of Shares to be acquired from the
Prospective Selling Investors, the Drag Along Sale Percentage, the per
share consideration to be received in the proposed Sale and the name,
address and any Affiliate relationship to the Xxxxxxxx Investors of the
Prospective Buyer. If the Prospective Selling Investors consummate the
proposed Sale to which reference is made in the Drag Along Notice, each
other holder of Shares (each a "Participating Seller", and, together with
the Prospective Selling Investors, collectively, the "Drag Along Sellers")
shall be bound and obligated to Sell the Drag Along Sale Percentage of its
Shares in the proposed Sale on the same terms and conditions, with respect
to each Share Sold (subject to Section 3.5.4 in the case of Options), as
the Prospective Selling Investors shall Sell each Share in the Sale
(subject to Section 3.5.4 in the case of Options). If at the end of the
180th day following the date of the effectiveness of the Drag Along Notice
the Prospective Selling Investors have not completed the proposed Sale,
each Participating Seller shall be released from its obligation under the
Drag Along Notice, the Drag Along Notice shall be null and void, and it
shall be necessary for a separate Drag Along Notice to be furnished and
the terms and provisions of this Section 3.3 separately complied with, in
order to consummate such proposed Sale pursuant to this Section 3.3.
3.3.2. Appraisal Process. In the case of a proposed Sale pursuant to
Section 3.3 to a Prospective Buyer which is an Affiliate of a Xxxxxxxx
Investor, such proposed Sale shall not be effected pursuant to the
provisions of Section 3.3 unless the Appraisal Process is followed.
3.4. Xxxxxxxx Investors and Bain Investors Drag Along. If (i) the Majority
Xxxxxxxx Investors or their Affiliates and (ii) the Majority Bain Investors,
acting together, either with or without any other holders of Shares (each such
holder, together with such Majority Xxxxxxxx Investors and such Majority Bain
Investors, a "Prospective Selling Investor"), propose to Transfer a specified
percentage (the "Drag Alone Sale Percentage") of the total number of Shares held
by such Prospective Selling Investors to a Prospective Buyer, then each holder
of Shares hereby agrees, if requested by the Majority Xxxxxxxx Investors and the
Majority Bain Investors, to Sell the Drag Along Sale Percentage of such Shares,
directly or indirectly, to such
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Prospective Buyer in the manner and on the terms set forth in this Section 3.4
in connection with the Sale by the Prospective Selling Investors of the Drag
Along Sale Percentage of the total number of Shares held such Prospective
Selling Investors to the Prospective Buyer.
3.4.1. Exercise. If the Majority Xxxxxxxx Investors and the Majority
Bain Investors elect to exercise their rights under this Section 3.4, the
Prospective Selling Investors shall furnish a written notice (the "Drag
Along Notice") to each other holder of Shares. The Drag Along Notice shall
set forth the material terms of the proposed Sale insofar as it relates to
the sale of Shares including the number of Shares to be acquired from the
Prospective Selling Investors, the Drag Along Sale Percentage, the per
share consideration to be received in the proposed Sale and the name,
address and any Affiliate relationship to the Bain Investors or the
Xxxxxxxx Investors of the Prospective Buyer. If the Prospective Selling
Investors consummate the proposed Sale to which reference is made in the
Drag Along Notice, each other holder of Shares (each a "Participating
Seller", and, together with the Prospective Selling Investors,
collectively, the "Drag Along Sellers") shall be bound and obligated to
Sell the Drag Along Sale Percentage of its Shares in the proposed Sale on
the same terms and conditions, with respect to each Share Sold (subject to
Section 3.5.4 in the case of Options), as the Prospective Selling
Investors shall Sell their Shares in the Sale (subject to Section 3.5.4 in
the case of Options). If at the end of the 180th day following the date of
the effectiveness of the Drag Along Notice the Prospective Selling
Investors have not completed the proposed Sale, each Participating Seller
shall be released from its obligation under the Drag Along Notice, the
Drag Along Notice shall be null and void, and it shall be necessary for a
separate Drag Along Notice to be furnished and the terms and provisions of
this Section 3.4 separately complied with, in order to consummate such
proposed Sale pursuant to this Section 3.4.
3.4.2. Appraisal Process. In the case of a proposed Sale pursuant to
Section 3.4 to a Prospective Buyer which is an Affiliate of a Xxxxxxxx
Investor or a Bain Investor, such proposed Sale shall not be effected
pursuant to the provisions of Section 3.4 unless the Appraisal Process is
followed.
3.5. Miscellaneous. The following provisions shall be applied to any
prospective Sale to which Section 3.1, 3.2, 3.3 or 3.4 applies:
3.5.1. Certain Legal Requirements. In the event the consideration to
be paid in exchange for Shares in a proposed Sale pursuant to Section 3.1,
3.2, 3.3 or 3.4 includes any securities, and the receipt thereof by a
Participating Seller would require under applicable law (a) the
registration or qualification of such securities or of any person as a
broker or dealer or agent with respect to such securities or (b) the
provision to any Tag Along Seller or Drag Along Seller of any information
regarding such securities or the issuer thereof that would not be required
to be provided to the Prospective Selling Investors, and the Prospective
Selling Investors determine not to have the issuer
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register or qualify such securities or person or have the issuer provide
such information, as the case may be, then in lieu of the receipt of
securities in the proposed Sale, against surrender of the Shares (in
accordance with Section 3.5.6 hereof) which are to be Sold by such
Participating Seller to the Prospective Buyer in the proposed Sale, the
Prospective Selling Investors shall, contemporaneously with such Sale,
cause to be paid to the Participating Seller an amount in cash equal to
the Fair Market Value of such Shares as of the date of the issuance of
securities in exchange for Shares.
3.5.2. Further Assurances. Each Participating Seller, whether in its
capacity as a Participating Seller, stockholder, officer or director of
the Company, or otherwise, shall take or cause to be taken all such
actions as may be necessary or reasonably desirable in order expeditiously
to consummate each Sale pursuant to Section 3.1, 3.2, 3.3 or 3.4 and any
related transactions, including, without limitation, executing,
acknowledging and delivering consents, assignments, waivers and other
documents or instruments; furnishing information and copies of documents;
filing applications, reports, returns, filings and other documents or
instruments with governmental authorities; and otherwise cooperating with
the Prospective Selling Investors and the Prospective Buyer; provided,
however, that Participating Sellers shall be obligated to become liable in
respect of any representations, warranties, covenants, indemnities or
otherwise to the Prospective Buyer solely to the extent provided in the
immediately following sentence. Without limiting the generality of the
foregoing, each Participating Seller agrees to execute and deliver such
agreements as may be reasonably specified by the Prospective Selling
Investors, to which such Prospective Selling Investors will also be party,
including, without limitation, agreements to (a) make individual
representations, warranties, covenants and other agreements as to the
unencumbered title to its Shares and the power, authority and legal right
to Transfer such Shares and the absence of any Adverse Claim with respect
to such Shares and (b) be liable (whether by purchase price adjustment,
indemnity payments or otherwise) in respect of representations,
warranties, covenants and agreements in respect of the Company and its
subsidiaries; provided, however, that, except with respect to individual
representations, warranties, covenants, indemnities and other agreements
of Participating Sellers of the type described in clause (a) above, the
aggregate amount of such liability shall not exceed the lesser of (i) such
Participating Seller's pro rata portion of any such liability, to be
determined in accordance with such Participating Seller's portion of the
total number of Shares included in such Sale or (ii) the proceeds to such
Participating Seller in connection with such Sale.
3.5.3. Sale Process. The Prospective Selling Investors shall, in
their sole discretion, decide whether or not to pursue, consummate,
postpone or abandon any proposed Sale and the terms and conditions
thereof. No Prospective Selling Investor or any Affiliate of any
Prospective Selling Investor shall have any liability to any other holder
of Shares arising from, relating to or in connection with the pursuit,
consummation, postponement, abandonment or terms and conditions of any
proposed
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Sale except to the extent such Prospective Selling Investor shall have
failed to comply with the provisions of this Section 3.
3.5.4. Treatment of Options. If any Participating Seller shall Sell
Options in any Sale pursuant to Section 3.1, 3.2, 3.3 or 3.4, such
Participating Seller shall receive in exchange for such Options
consideration equal to the amount (if greater than zero) determined by
multiplying (a) the purchase price per share of Common Stock received by
the Prospective Selling Investors in such Sale less the exercise price per
share of such Option by (b) the number of shares of Common Stock issuable
upon exercise of such Option (to the extent exercisable at the time of
such Sale), subject to reduction for any tax or other amounts required to
be withheld under applicable law.
3.5.5. Expenses. All reasonable costs and expenses incurred by the
Prospective Selling Investors or the Company in connection with any
proposed Sale pursuant to this Section 3 (whether or not consummated),
including without limitation all attorneys fees and expenses, all
accounting fees and charges and all finders, brokerage or investment
banking fees, charges or commissions, shall be paid by the Company. The
reasonable fees and expenses of a single legal counsel representing any or
all of the other Tag Along Sellers or Drag Along Sellers in connection
with any proposed Sale pursuant to this Section 3 (whether or not
consummated) shall be paid by the Company. Any other costs and expenses
incurred by or on behalf of any or all of the other Tag Along Seller or
Drag Along Seller in connection with any proposed Sale pursuant to this
Section 3 (whether or not consummated) shall be borne by such Tag Along
Seller(s) or Drag Along Seller(s).
3.5.6. Closing. The closing of a Sale pursuant to Section 3.1, 3.2,
3.3 or 3.4 shall take place at such time and place as the Prospective
Selling Investors shall specify by notice to each Participating Seller. At
the closing of any Sale under this Section 3, each Participating Seller
shall deliver the certificates evidencing the Shares to be Sold by such
Participating Seller, duly endorsed, or with stock (or equivalent) powers
duly endorsed, for transfer with signature guaranteed, free and clear of
any liens or encumbrances, with any stock (or equivalent) transfer tax
stamps affixed, against delivery of the applicable consideration.
3.6. Initiation of Sale of Company or Subsidiaries. Any other provision of
this Agreement to the contrary notwithstanding, the Majority Series C Investors
shall have the right at any time following the fourth anniversary of the date of
the Closing hereunder to control the initiation of the sale of all or
substantially all of the assets of the Company or the merger of the Company with
another Person (a "Liquidity Event") and to control the timing and terms of any
Liquidity Event initiated by the Majority Series C Investors; provided, however,
that such Liquidity Event shall be subject, in the case of a sale of Shares, to
the applicable provisions of this Section 3.
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3.7. Period. The provisions of this Section 3 shall expire on the earlier
of (a) a Change of Control or (b) the closing of a Qualified Public Offering.
4. TRANSFER RIGHTS.
4.1. Transfer Restrictions. No holder of Minority Shares shall Transfer
any such Shares to any Person except in the manner and on the terms set forth in
this Section 4. Any attempted Transfer of Shares not permitted by this Section 4
shall be null and void, and the Company shall not in any way give effect to any
such impermissible Transfer.
4.1.1. Right of First Refusal. Except as may be permitted under
Section 4.2, or under any other provision of this Agreement, if a Minority
Stockholder or any of its Permitted Transferees shall at any time propose
to Transfer all or any portion of its Shares (a "Minority Sale"), or is to
be divested of its interest in all or a portion of its Shares though
seizure or sale by legal process or any Transfer through operation of law,
such Minority Stockholder or Permitted Transferee (the "Minority
Transferor") shall notify the Board and shall first offer such Shares for
sale in writing to the Company. Such written offer (the "Offer") shall
state the number and type of Shares to be Transferred, the name and
address of the proposed transferee, and the terms, conditions and third
party price of the proposed Transfer.
Upon receipt of such Offer, the Company (and if a right to purchase
is granted to the Xxxxxxxx Investors and the Xxxx Investors pursuant to
Section 4.1.2.2, the Xxxxxxxx Investors and the Xxxx Investors) shall have
the following rights and options:
4.1.1.1. In the case of a proposed Minority Sale, the Company
(and the Xxxxxxxx Investors and the Xxxx Investors, if applicable)
may purchase the Shares set forth in the Offer at the purchase price
and upon such terms and conditions as follows:
(a) The purchase price for the Shares offered for sale
will be the lesser of (x) the purchase price proposed by the
third party as described in the Offer, and (y) an amount equal
to 100% of the Contract Price (provided, however, that the
purchasing party may, at its option, elect to forego
determination of the Contract Price and set the purchase price
at the third party offer price); and
(b) If the purchase price is that proposed by the third
party, the terms of payment shall be as proposed by the third
party (except that if the purchasing party elects to pay the
lesser of the third party sale price or the Contract Price,
the "date of purchase" may be deferred until a date which will
be no later than 20 days after determination of the Contract
Price); and
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(c) If the purchase price is the Contract Price, the
terms of payment shall be the Contract Terms.
4.1.1.2. If the Minority Transferor is to be divested of its
interest in said Shares through seizure or sale by legal process or
by any Transfer through operation of law, including without
limitation, a Transfer in connection with a judgment lien or a
proceeding under the Bankruptcy Code, the purchase price of the
Shares shall be an amount equal to the Contract Price and the terms
of payment shall be the Contract Terms.
4.1.2. Acceptance of Offer.
4.1.2.1. The Company may, by majority vote of the Board,
accept the Offer as to all or any portion of the Shares proposed to
be Transferred, by giving written notice of such acceptance to the
Minority Transferor within 15 days after the making of the Offer.
4.1.2.2. In the event the Company does not exercise its option
to purchase all of the Shares being offered for sale, and the Board
by majority vote agrees that the Offer shall be extended to the
Xxxxxxxx Investors and the Xxxx Investors, the Board shall provide a
copy of the Offer to the Xxxxxxxx Investors and the Xxxx Investors,
and the Xxxxxxxx Investors and the Xxxx Investors may purchase the
Shares not being purchased by the Company in accordance with the
following procedure:
(a) The Xxxxxxxx Investors and the Xxxx Investors may
purchase all or any portion of the Shares not being purchased
by the Company by giving written notice of such acceptance to
the Minority Transferor, with a copy to the Company, within 15
days after the expiration of the Company's option. A Xxxxxxxx
Investor or a Xxxx Investor that timely submits a notice of
acceptance hereunder will be conclusively deemed to have
exercised its option to purchase its pro rata portion of the
Shares offered for sale hereunder or, if less, the number of
Shares specified by such Xxxxxxxx Investor or Xxxx Investor in
its notice of acceptance or, if any one or more of the other
Xxxx Investors or Xxxxxxxx Investors does not exercise its
option to purchase its entire pro rata portion of the Shares,
such greater number of Shares as specified by such Xxxxxxxx
Investor or Xxxx Investor in its notice of acceptance.
(b) The Shares which are available for purchase by the
Xxxxxxxx Investors and the Xxxx Investors hereunder will be
allocated among the Xxxxxxxx Investors and the Xxxx Investors
that have timely submitted notices of acceptance
proportionately, i.e., each such Xxxxxxxx Investor
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or Xxxx Investor shall be allocated that number of Shares
which is calculated by multiplying the total number of
available Shares by a fraction, the numerator of which is the
number of Shares owned by such Xxxxxxxx Investor or Xxxx
Investor and its Permitted Transferees, and the denominator of
which is the total number of Shares owned by all Xxxxxxxx
Investors and Xxxx Investors (and their Permitted Transferees)
that have timely submitted notices of acceptance hereunder
(or, if less, such Xxxxxxxx Investor or Xxxx Investor shall be
allocated the number of Shares specified by such Xxxxxxxx
Investor or Xxxx Investor in its notice of acceptance).
4.1.3. Disposition to Third Party. If the Offer is not accepted by
the Company and/or the Xxxxxxxx Investors or the Xxxx Investors (if
applicable) with respect to all of the Shares offered for sale, then none
of the acceptances under Section 4.1.2 shall be effective and the Minority
Transferor shall have the right to Transfer all (but not less than all) of
its Shares subject to the Offer to the third party designated in the
Offer, on the same terms, conditions and price specified in the Offer;
provided, however, that such Transfer is made within 30 days after the
last date on which an Offer may be accepted under Section 4.1.2 and
provided, further, that the transferee agrees in writing to be bound by
this Agreement (other than the provisions of Section 5 hereof) to the same
extent as if such transferee had originally been a Minority Stockholder
hereunder. In the event of a Transfer to such third party in accordance
with this Section 4.1.3, the Company, the Xxxxxxxx Investors and the Xxxx
Investors shall provide the Minority Transferor with such documents and
instruments as may be reasonably necessary to permit the Transfer free of
the right of first refusal options granted to the Company, the Xxxxxxxx
Investors and the Xxxx Investors as set forth in this Section 4.1.
4.1.4. Failure of Sale. If neither the Company, the Xxxxxxxx
Investors, the Xxxx Investors nor the third party purchases all of the
Shares offered for sale within the periods provided in Sections 4.1.2 and
4.1.3, such Shares shall continue to be subject to the restrictions of
this Agreement.
4.1.5. Remedy for Violation. Upon any voluntary Transfer of Shares
by a Minority Stockholder or any of its Permitted Transferees in violation
of any of the provisions of this Agreement, the Company, the Xxxxxxxx
Investors and the Xxxx Investors shall have, in addition to such other
remedies and damages as may be available to them under applicable law, the
right and option to purchase all or any of such Shares from the holder or
holders thereof at a price equal to 90% of the price that would otherwise
have been applicable if the Minority Stockholder had complied with the
terms hereof and the terms of payment shall be the Contract Terms. Such
option shall be exercisable in the manner and in accordance with the
procedures set forth in Sections 4.1.1 through 4.1.3, provided that, for
purposes of applying such procedures,
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the date of discovery of such violation shall be deemed to be the date on which
the Offer is made.
4.1.6. Sale Involving Non-Cash Consideration. In the case of a
Minority Sale in which the prospective purchaser's terms include
consideration other than cash or deferred payments, the Offer by the
Minority Transferor shall set forth as the proposed third party sale price
an equivalent value cash price; provided, however, that the Board may in
good faith dispute the equivalent value cash price set forth in the Offer
by providing a notice in writing ("Notice of Dispute") to the Minority
Transferor within five days of the giving of the Offer. In the event of
such dispute, a determination of the equivalent value cash price shall be
made as soon as practicable after delivery of the Offer by an Appraiser
mutually agreeable to the Minority Transferor and the Board. If the
Minority Transferor and the Board are unable to select an Appraiser by
mutual agreement within five days following the date the Notice of Dispute
is provided, the Board and the Minority Transferor shall each select an
Appraiser, and the two Appraisers so selected shall select the Appraiser
who shall determine the equivalent value cash price for purposes hereof.
The Minority Transferor shall bear one-half of the cost of any appraisal
required hereunder and the Company shall bear the balance of the cost of
such appraisal. The equivalent value cash price determined by the
Appraiser finally selected hereunder shall be binding and conclusive on
the parties, and the Offer shall be deemed to have been made as of the
date such determination of the equivalent value cash price is final.
4.2. Transfers of Minority Shares. Notwithstanding anything to the
contrary in Section 4.1, any holder of Minority Shares may Transfer any or all
of the Minority Shares held by such holder as set forth below:
4.2.1. Company. Any holder of Minority Shares may, at any time
during his lifetime, voluntarily Transfer any or all of such Minority
Shares, with the Board's prior written approval, to the Company or any
subsidiary of the Company.
4.2.2. Xxxx Investors and Xxxxxxxx Investors. Any holder of Minority
Shares may Transfer any or all of such Minority Shares to the Xxxx
Investors and the Xxxxxxxx Investors, provided that (a) such Minority
Shares to be Transferred are offered to both the Xxxx Investors and the
Xxxxxxxx Investors and (b) if both the Xxxx Investors and the Xxxxxxxx
Investors agree to accept such Minority Shares, then such Minority Shares
shall be allocated between the Xxxx Investors and the Xxxxxxxx Investors
in proportion to the number of Shares then held by the Xxxx Investors and
the Xxxxxxxx Investors.
4.2.3. Members of Immediate Family. Subject to the provisions of
Section 9, with the prior written approval of the Board which shall not be
unreasonably withheld, any holder of Minority Shares may Transfer any or
all of such Minority Shares to a Member of the Immediate Family of such
holder.
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4.2.4. Partners; Affiliates. Subject to the provisions of Section 9,
with the prior written approval of the Board which shall not be
unreasonably withheld, any holder of Minority Shares that is not a natural
person may Transfer any or all of such Minority Shares to a partner or
Affiliate of such holder.
4.2.5. Calls. Any holder of Minority Shares may Transfer any or all
of such Minority Shares in accordance with the provisions, terms and
conditions of Section 5 hereof.
4.2.6. Tag Alongs, Drag Alongs, etc. Any holder of Minority Shares
may Transfer any or all of such Minority Shares in accordance with the
provisions, terms and conditions of Section 3 hereof.
4.2.7. Public. Subject to the provisions of Section 7.4.4, any
holder of Minority Shares may Transfer any or all of such Minority Shares
in a Public Offering or, after the closing of an Initial Public Offering,
pursuant to Rule 144.
Any attempted Transfer of Minority Shares not in compliance with this Section 4
shall be null and void, and the Company shall not in any way give effect to any
such impermissible Transfer.
4.3. Period. The foregoing provisions of this Section 4 shall expire upon
the earlier of (a) a Change of Control and (b) the closing of a Qualified Public
Offering.
5. PURCHASES OF MINORITY SHARES.
5.1. Purchases Upon Termination of Employment. In the event the employment
of a Minority Stockholder with the Company terminates for any reason whatsoever,
whether such termination is voluntary or involuntary and whether it is with or
without Cause, the following shall apply:
5.1.1. In the event the employment of the Minority Stockholder is
terminated by the Company by reason of Disability or terminates by reason
of death, the Company shall purchase all Shares owned by the Minority
Stockholder and his Permitted Transferees, and such holders shall sell all
such Shares to the Company, at a price equal to the Contract Price and on
the Contract Terms.
5.1.2. In the event the Minority Stockholder voluntarily terminates
his employment with the Company, or the Company terminates his employment
other than by reason of Disability (and whether with or without Cause),
the Company shall have the right and option, exercisable by written notice
to the terminated Minority Stockholder at any time within four months
following the effective date of termination
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of employment, to purchase all (but not less than all except as set forth
in Section 5.2) Shares then owned by the terminated Minority Stockholder
and his Permitted Transferees at a price equal to (i) the Base Price
thereof, in the event of termination of employment with Cause, or (ii) the
Contract Price, in the event of termination of employment without Cause or
in the event of voluntary termination of employment. The terms of payment
shall be the Contract Terms. If the Company does not timely exercise its
option hereunder or cannot exercise any purchase under Section 5.1.1 or
5.1.2 as described in Section 5.2, the Xxxxxxxx Investors and the Xxxx
Investors shall have the right and option, exercisable by giving written
notice to the terminated Minority Stockholder within 30 days following
expiration of the Company's option hereunder, to purchase all Shares then
owned by the Minority Stockholder and his Permitted Transferees at the
same price and on the same terms of payment as would have been applicable
had the Company timely exercised its option to purchase such Shares. Such
Shares shall be allocated among the Xxxxxxxx Investors and the Xxxx
Investors so electing in the manner set forth in Section 4.1.2.
5.1.3. In the event the Minority Stockholder voluntarily terminates
his employment with the Company, or the Company terminates his employment,
the Minority Stockholder shall have the right and option, exercisable by
written notice to the Company at any time within four months following the
effective date of termination of employment, to require the Company to
purchase all (but not less than all) of the Shares then owned by the
terminated Minority Stockholder and his Permitted Transferees at a price
equal to (i) the Base Price thereof, in the event of termination of
employment with Cause, or (ii) the Contract Price, in the event of
termination of employment without Cause or in the event of voluntary
termination of employment. The terms of payment shall be the Contract
Terms.
5.1.4. In the event a Minority Stockholder disputes that his
employment has been terminated for Cause, such dispute shall be resolved
via arbitration conducted in accordance with the then current rules of the
American Arbitration Association ("AAA") Upon the filing of a notice for
demand for arbitration by a Minority Stockholder, the dispute shall be
referred to and decided by an arbitrator appointed by the AAA in
accordance with the then current rules of the AAA. Except as set forth
below, each party shall bear its own costs incurred in connection with the
arbitration proceeding. A party shall have the right to conduct and
enforce prehearing discovery in accordance with the then current Federal
Rules of Civil Procedure. Document discovery and other discovery shall be
under the control of and enforceable by the arbitrator and the arbitrator
shall permit and facilitate such discovery as it shall determine is
appropriate under the circumstances. If the arbitrator rules against the
Company, any sale and purchase of Shares owned by such terminated Minority
Stockholder and his Permitted Transferees pursuant to the provisions of
this Section 5 shall be at the Contract Price. In addition, if the
arbitrator determines that the Company did not have a reasonable basis for
concluding that the actions or inactions of
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the Minority Stockholder giving rise to his termination of employment
constituted a basis for Cause, the arbitrator shall so state and, in such
event, the Company shall be required to reimburse the Minority Stockholder
for all reasonable fees and expenses incurred in connection with such
arbitration hearing.
For purposes of this Section 5.1, Shares subject to purchase and sale
pursuant to the provisions of this Section 5.1 shall also include any and all
Shares which could be acquired by a Minority Stockholder pursuant to any
outstanding vested options and/or warrants held by such Minority Stockholder as
of the date of such purchase.
5.2. Inability to Purchase. Notwithstanding the provisions of this Section
5, if the Company is the purchaser and it shall not have authority to permit it
to lawfully, purchase all of the Shares which are subject to purchase under
Sections 5.1.1, 5.1.2 and 5.1.3 hereof, or if its Senior Lenders shall prohibit
the cash payment described in clause (b) of the definition of Contract Terms at
such time, then (i) the Company shall not be deemed to be in breach or violation
hereof as a result thereof, (ii) the Minority Stockholder shall not be required
to sell his Shares to the Company at that time, and (iii) the rights of the
Minority Stockholder and the Company to demand purchase and sale of Shares held
by such Minority Stockholder and his Permitted Transferees shall be deferred
until such time as the Company shall legally be able to purchase such Shares or
the Senior Lenders agree that such purchase may be made. The Company shall
promptly give notice to the Minority Stockholder once it is legally able to
purchase such Shares or the Senior Lenders agree to the cash payment (the
"Waiver of Deferral Notice") and the purchase and sale obligations set forth in
Section 5.1.1 and the four month period in which the Minority Stockholder and
the Company have the option to exercise put and call rights as described in this
Section 5 shall begin running from the date of such notice. In the event of any
Transfers of Shares held by the Minority Stockholder and/or his Permitted
Transferees in accordance with this Agreement prior to the Waiver of Deferral
Notice, the reinstated put and call options described herein shall not apply to
such Transferred Shares. Notwithstanding the foregoing, if the seller shall so
request, the Company shall purchase as many of the Shares involved as it legally
shall be able to purchase or as its Senior Lenders may permit it to purchase
with the corresponding cash payment on the date the purchase is otherwise to
close hereunder.
5.3. Employment with Subsidiary. For purposes of this Section 5, a
Minority Stockholder's employment with any subsidiary of the Company shall be
deemed to be employment with the Company. Any termination thereof shall be
deemed to be termination of such employment with the Company; provided, however,
that any termination of employment with Company or any subsidiary when such
employee is immediately employed by another subsidiary of the Company shall not
be deemed termination for purposes here.
5.4. Contingent Put Option. In the event the Internal Revenue Service
("IRS") determines that the transfer by any Xxxx Stockholder of its shares of
common stock of Xxxx Communications, Inc. ("CCI Stock") to the Company in
exchange for Preferred Stock of the
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Company does not satisfy the requirements of Section 351 of the Internal Revenue
Code of 1986, as amended (the "Code"), for tax- free exchange treatment and,
therefore, determines that such Xxxx Stockholder must recognize gain upon the
exchange of CCI stock for Preferred Stock (the "Gain"), then the following
shall apply:
5.4.1. The Xxxx Stockholder shall have the right and option,
exercisable by written notice to the Company delivered within 30 days
after a final IRS determination, to require the Company to purchase that
number of Shares of the Company held by such Xxxx Stockholder as have an
aggregate Contract Price equal to the amount of federal and state capital
gains taxes required to be paid by the Xxxx Stockholder on the Gain. For
purposes hereof, an IRS determination shall be "final" if no right of
appeal exists or the time allowed for appeal has expired without the Xxxx
Stockholder appealing such determination. In the event of a sale and
purchase pursuant to this Section 5.4, the purchase price for the Shares
subject to the put option shall be the Contract Price and the terms of
payment shall be the Contract Terms except that no promissory note shall
be issued and the purchase price shall be paid in full in cash at the
closing of the purchase and sale of such Shares.
5.4.2. Notwithstanding the provisions of Section 5.4.1, if the
Company's Senior Lenders shall prohibit payment by the Company with
respect to the put option described herein, then the Company shall not be
required to purchase any Shares pursuant to this Section 5.4.
5.5. Period. The provisions of Section 5 (other than Section 5.4) shall
expire on the closing of a Qualified Public Offering.
6. PREEMPTIVE RIGHTS. The Company shall not issue or sell any shares of any of
its capital stock or any securities convertible into or exchangeable for any
shares of its capital stock, issue or grant any options or warrants for the
purchase of, or enter into any agreements providing for the issuance (contingent
or otherwise) of, any of its capital stock or any stock or securities
convertible into or exchangeable for any shares of its capital stock, in each
case, to any Person (each an "Issuance" of "Subject Securities"), except in
compliance with the provisions of this Section 6.
6.1. Right of Participation.
6.1.1. Offer. Not fewer than 15 days prior to the consummation of
the Issuance, a notice (the "Participation Notice") shall be furnished by
the Company to each of the Xxxx Investors, the Xxxxxxxx Investors,
Xxxxxxxx X. Xxxxxxxx, Xxxx X. Xxxx, Xxxxxx X. Xxxx, Xxxxx X. Xxxx and Xxx
Xxxx, Xxxxx X. Xxxxxx and Xxxxxx Xxxxxx, and Xxxxx X. Xxxxx (the
"Participation Offerees"). The Participation Notice shall include:
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(a) The principal terms of the proposed Issuance, including,
without limitation, the amount and kind of Subject Securities to be
included in the Issuance, the number of Equivalent Shares
represented by such Subject Securities (if applicable), the
percentage of the total number of Equivalent Shares outstanding as
of immediately prior to giving effect to such Issuance which the
number of Equivalent Shares held by such Participation Offeree
constitutes (the "Participation Portion"), the maximum and minimum
price (including, without limitation, if applicable, the maximum and
minimum Price Per Equivalent Share) per unit of the Subject
Securities, which maximum price shall be no greater than the lesser
of $1.00 or five percent above the minimum price, and the name and
address of the Person to whom the Subject Securities will be Issued
(the "Prospective Subscriber"); and
(b) An offer by the Company to Issue, at the option of each
Participation Offeree, to such Participation Offeree such portion of
the Subject Securities to be included in the Issuance as may be
requested by such Participation Offeree (not to exceed the
Participation Portion of the total amount of Subject Securities to
be included in the Issuance), on the same economic terms and
conditions, with respect to each unit of Subject Securities issued
to the Participation Offerees, as each of the Prospective
Subscribers shall be Issued units of Subject Securities.
6.1.2. Exercise.
6.1.2.1. General. Each Participation Offeree desiring to
accept the offer contained in the Participation Notice shall send a
written commitment to the Company within 15 days after the
effectiveness of the Participation Notice specifying the amount of
Subject Securities (not in any event to exceed its Participation
Portion of the total amount of Subject Securities to be included in
the Issuance) which such Participation Offeree desires to be issued
(each a "Participating Buyer"). Each Participation Offeree who has
not so accepted such offer shall be deemed to have waived all of its
rights with respect to the Issuance, and the Company shall
thereafter be free to Issue Subject Securities in the Issuance to
the Prospective Subscriber and any Participating Buyers, at a price
no less than the minimum price set forth in the Participation Notice
and on other principal terms not substantially more favorable to the
Prospective Subscriber than those set forth in the Participation
Notice, without any further obligation to such non-accepting
Participation Offerees. If, prior to consummation, the terms of such
proposed Issuance shall change with the result that the price shall
be less than the minimum price set forth in the Participation Notice
or the other principal terms shall be substantially more favorable
to the Prospective Subscriber than those set forth in the
Participation Notice, it shall be necessary for a separate
Participation Notice to be furnished, and the terms and
-20-
provisions of this Section 6.1 separately complied with, in order to
consummate such Issuance pursuant to this Section 6.1.
6.1.2.2. Irrevocable Acceptance. The acceptance of each
Participating Buyer shall be irrevocable except as hereinafter
provided, and each such Participating Buyer shall be bound and
obligated to acquire in the Issuance on the same terms and
conditions, with respect to each unit of Subject Securities Issued,
as the Prospective Subscriber, such amount of Subject Securities as
such Participating Buyer shall have specified in such Participating
Buyer's written commitment.
6.1.2.3. Time Limitation. If at the end of the 180th day
following the date of the effectiveness of the Participation Notice
the Company has not completed the Issuance (for any reason other
than the failure by any Participating Buyer to pay the applicable
purchase price), each Participating Buyer shall be released from its
obligations under the written commitment, the Participation Notice
shall be null and void, and it shall be necessary for a separate
Participation Notice to be furnished, and the terms and provisions
of this Section 6.1 separately complied with, in order to consummate
such Issuance pursuant to this Section 6.1.
6.1.3. Other Securities. The Company may condition the participation
of the Participation Offerees in an Issuance upon the purchase by such
Participation Offerees of any securities (including, without limitation,
debt securities) other than Subject Securities ("Other Securities") in the
event that the participation of the Prospective Subscriber in such
Issuance is so conditioned. In such case, each Participating Buyer shall
acquire in the Issuance, together with the Subject Securities to be
acquired by it, Other Securities in the same proportion to the Subject
Securities to be acquired by it as the proportion of Other Securities to
Subject Securities being acquired by the Prospective Subscriber in the
Issuance, on the same terms and conditions, as to each unit of Subject
Securities and Other Securities issued to the Participating Buyers, as the
Prospective Subscriber shall be issued units of Subject Securities and
Other Securities.
6.1.4. Certain Legal Requirements. In the event that the
participation in the Issuance by a Participation Offeree as a
Participating Buyer would require under applicable law (i) the
registration or qualification of such securities or of any person as a
broker or dealer or agent with respect to such securities or (ii) the
provision to any participant in the Sale of any information regarding the
Company or the securities that would not be required to be provided to
Xxxx or either of the Xxxxxxxx Investors, then such holder of Shares shall
not have the right to participate in the Issuance. Without limiting the
generality of the foregoing, it is understood and agreed that the Company
shall not be under any obligation to effect a registration of such
securities under the Securities Act or similar state statutes.
-21-
6.1.5. Further Assurances. Each Participation Offeree and each
Stockholder to whom the Shares held by such Participation Offeree were
originally issued, shall, whether in its capacity as a Participating
Buyer, Stockholder, officer or director of the Company, or otherwise, take
or cause to be taken all such reasonable actions as may be necessary or
reasonably desirable in order expeditiously to consummate each Issuance
pursuant to this Section 6.1 and any related transactions, including,
without limitation, executing, acknowledging and delivering consents,
assignments, waivers and other documents or instruments; filing
applications, reports, returns, filings and other documents or instruments
with governmental authorities; and otherwise cooperating with the Company
and the Prospective Subscriber. Without limiting the generality of the
foregoing, each such Participating Buyer and Stockholder agrees to execute
and deliver such subscription and other agreements specified by the
Company to which the Prospective Subscriber will be party.
6.1.6. Expenses. All reasonable costs and expenses incurred by the
Participation Offerees or the Company in connection with any proposed
Issuance of Subject Securities (whether or not consummated), including
without limitation all accounting fees and charges, all finders, brokerage
or investment banking fees, charges or commissions, and the reasonable
fees and expenses of a single legal counsel representing any or all of the
Participation Offerees in connection with any proposed Issuance of Subject
Securities (whether or not consummated) shall be paid by the Company.
6.1.7. Closing. The closing of an Issuance pursuant to Section 6.1
shall take place at such time and place as the Company shall specify by
notice to each Participating Buyer. At the closing of any Issuance under
this Section 6.1.7, each Participating Buyer shall be delivered the notes,
certificates or other instruments evidencing the Subject Securities (and,
if applicable, Other Securities) to be Issued to such Participating Buyer,
registered in the name of such Participating Buyer or its designated
nominee, free and clear of any liens or encumbrances, with any transfer
tax stamps affixed, against delivery by such Participating Buyer of the
applicable consideration.
6.2. Excluded Transactions. Notwithstanding the preceding provisions of
this Section 6, the preceding provisions of this Section 6 shall not restrict:
(a) Any Issuance of Common Stock upon the exercise or conversion of
any Common Stock, Options or Convertible Securities outstanding on the
date hereof or Issued after the date hereof in compliance with the
provisions of this Section 6;
(b) Any Issuance of Subject Securities in connection with the
acquisition by the Company or its subsidiaries of the business, assets or
stock of another entity;
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(c) Any Issuance of Subject Securities to employees, directors or
consultants of the Company or its subsidiaries;
(d) Any Issuance of Subject Securities in connection with the
placement of debt;
(e) Any Issuance of Common Stock in connection with a Public
Offering;
(f) The Issuance of Series C Shares to the Series C Investors at the
Closing and the Subsequent Closings (as defined in the Purchase
Agreement);
(g) The Issuance of Series B Preferred upon exchange of any of (i)
the Company's Series A 8% Convertible Subordinated Promissory Notes
currently convertible into shares of Common Stock at a per share price of
$1.8207, (ii) the Company's Series A 8% Convertible Subordinated
Promissory Notes currently convertible into shares of Common Stock at a
per share price of $2.0318, (iii) the Company's Series B 8% Convertible
Subordinated Notes currently convertible into shares of Common Stock at a
per share price of $2.0822 (collectively, all such notes, the "Notes"), or
(iv) any interest that has or will have accrued on such converted Notes;
(h) The Issuance of Subject Securities pursuant to the terms of the
Agreement and Plan of Merger, dated as of June 22, 1998, by and among the
Company, Xxxx Communications, Inc. and One Call Telecom, Inc.;
(i) The Issuance of warrants or Common Stock pursuant to the terms
of the Stock Purchase Warrant Agreement, dated as of July 19, 1999, by and
among the Company and General Electric Capital Corporation;
(j) The Issuance of Common Stock pursuant to the terms of the Stock
Purchase Warrant Agreement, dated as of April 12, 1999, by and among the
Company and Imperial Bank;
(k) The Issuance of Series A Preferred upon exchange of shares of
the Company's Class B Common Stock;
(l) The Issuance of Common Stock by reason of a dividend, stock
split, split-up or other distribution on Common Stock; or
(m) The Issuance of other Subject Securities upon the written
consent of the holders of 66 2/3% of the Shares held by the Participation
Offerees (following a written notice to such Participation Offerees
requesting such exclusion, which notice shall include the type of security
to be issued, the number of shares of the security to be issued, and the
consideration to be received by the Company for such security(ies)).
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6.3. Certain Provisions Applicable to Options. In the event that the
Issuance of Subject Securities shall result in any increase in the number of
shares of Common Stock issuable upon exercise of the Options, the number of
shares (or Equivalent Shares, if applicable) of Subject Securities (and Other
Securities, if applicable) which the holders of such Options shall be entitled
to purchase pursuant to Section 6.1, if any, shall be reduced, share for share,
by the amount of any such increase.
6.4. Period. The foregoing provisions of this Section 6 shall expire on
the earlier of (a) a Change of Control or (b) the closing of a Qualified Public
Offering.
7. REGISTRATION RIGHTS. The Company will perform and comply, and cause each of
its subsidiaries to perform and comply, with such of the following provisions as
are applicable to it. Each holder of Shares will perform and comply with such of
the following provisions as are applicable to such holder.
7.1. Demand Registration Rights for Xxxx Shares.
7.1.1. General. At any time after the earlier of (i) the second
anniversary of the date of the Closing, or (ii) 180 days after the closing
of the Initial Public Offering, one or more holders of Xxxx Shares
representing at least 25% of the total amount of Registrable Securities
into which the Xxxx Shares then outstanding are convertible ("Initiating
Xxxx Investors"), by notice to the Company specifying the intended method
or methods of disposition, may request that the Company effect the
registration under the Securities Act for a Public Offering of at least
25% of the then outstanding Registrable Xxxx Securities or of Registrable
Securities having an aggregate offering price of at least $5,000,000
(based upon the then current public market price or Fair Market Value of
such Registrable Securities) (for purposes of this Agreement, "Registrable
Xxxx Securities" shall mean Registrable Securities into which the Xxxx
Shares are convertible). At any time after the Company becomes eligible to
file a registration statement on Form S-3 (or any successor form relating
to secondary offerings), holders of Xxxx Shares will have the right to
require the Company to effect a registration on Form S-3 (or such
successor form), of Registrable Securities having an aggregate offering
price in each registration on Form S-3 in excess of $500,000 (based on the
current public market price at the time the registration is requested).
The Company will then use its best efforts to effect the registration
under the Securities Act of the Registrable Securities which the Company
has been requested to register by such Initiating Xxxx Investors together
with all other Registrable Securities which the Company has been requested
to register pursuant to Section 7.3 by notice delivered to the Company
within 20 days after the Company has given the notice required by Section
7.3.1 (which request shall specify the intended method of disposition of
such Registrable Securities), all to the extent requisite to permit the
disposition (in accordance with the intended methods thereof as aforesaid)
of the Registrable Securities which the Company has been so requested to
register.
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7.1.2. Number of Registrations; Form. The Company shall be required
to effect only two registrations on Form S-1 (or any successor form) and
an unlimited number of registrations on Form S-3 (or any successor form)
pursuant to Section 7.1; provided, however, that the Company shall not be
required to effect any registration (other than on Form S-3 or any
successor form relating to secondary offerings) within six months after
the effective date of any other registration statement of the Company;
provided further; that the Company shall not be required to effect more
than two registrations pursuant to Section 7.1 in any 12-month period.
7.1.3. Company Delay. If at the time of any request to register
Registrable Securities pursuant to this Section 7.1, the Company is
engaged or has fixed plans to engage within 30 days of the time of the
request in a registered public offering as to which the holders of Xxxx
Shares may include Registrable Securities pursuant to Section 7.3 or is
engaged in any other activity which, in the good faith determination of
the Board, would be adversely affected by the requested registration to
the material detriment of the Company, then the Company may at its option
direct that such request be delayed for a period not in excess of 90 days
from the effective date of such offering or the date of commencement of
such other material activity, as the case may be, such right to delay a
request to be exercised by the Company not more than once in any two year
period.
7.1.4. Effective Demands. Except as provided in Section 7.1.5, no
registrations of Registrable Securities which shall not have become and
remained effective in accordance with the provisions of this Section 7,
and no registrations of Registrable Securities pursuant to which the
Initiating Xxxx Investors and all other holders of Registrable Xxxx
Securities joining therein are not able to include at least 90% of the
Registrable Securities which they desired to include, shall be included in
the calculation of numbers of registrations contemplated by this Section
7.1.
7.1.5. Payment of Expenses. The Company shall pay all reasonable
costs and expenses incurred by the holders of Xxxx Shares, including the
reasonable fees and expenses of a single legal counsel representing any or
all of the Initiating Xxxx Investors, in connection with each registration
of Registrable Securities requested pursuant to this Section 7.1, other
than underwriting discount and commission, if any, and applicable transfer
taxes, if any; provided, however, that if a registration under this
Section 7.1 is withdrawn at the request of the Initiating Xxxx Investors
(other than as a result of information concerning the business or
financial condition of the Company which is made known to the Initiating
Xxxx Investors after the date on which such registration was requested and
other than as a result of a significant deterioration of the financial
markets) and if the Initiating Xxxx Investors elect not to have such
registration counted as a registration requested under this Section 7.1,
the Initiating Xxxx Investors
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shall pay the registration expenses of such registration pro rata in
accordance with the number of their Registrable Securities included in
such registration.
7.1.6. Additional Procedures. In the case of a registration pursuant
to Section 7.1 hereof, whenever the holders of at least a majority of the
Registrable Xxxx Securities to be included in the proposed registration
statement in question (the "Majority Participating Investors") shall
request that such registration shall be effected pursuant to an
underwritten offering, the Company shall include such information in the
written notices to holders of Registrable Securities referred to in
Section 7.3. In such event, the right of any holder of Registrable
Securities to have securities owned by such holder included in such
registration pursuant to Section 7.1 shall be conditioned upon such
holder's participation in such underwriting and the inclusion of such
holder's Registrable Securities in the underwriting (unless otherwise
mutually agreed upon by the Majority Participating Investors and such
holder). If requested by such underwriters, the Company together with the
holders of Registrable Securities proposing to distribute their securities
through such underwriting will enter into an underwriting agreement with
such underwriters for such offering containing such representations and
warranties by the Company and such holders and such other terms and
provisions as are customarily contained in underwriting agreements with
respect to secondary distributions, including, without limitation,
customary indemnity and contribution provisions (subject, in each case, to
the limitations on such liabilities set forth in this Agreement).
7.2. Demand Registration Rights for Xxxxxxxx Shares.
7.2.1. General. At any time after the earlier of (i) 180 days after
the closing of the Initial Public Offering or (ii) subject to the
provisions of Section 7.2.7, the third anniversary of the date of the
Closing, one or more holders of Xxxxxxxx Shares representing at least 25%
of the total amount of Registrable Securities into which the Xxxxxxxx
Shares then outstanding are convertible ("Initiating Xxxxxxxx Investors"),
by notice to the Company specifying the intended method or methods of
disposition, may request that the Company effect the registration under
the Securities Act for a Public Offering of at least 25% of the then
outstanding Registrable Xxxxxxxx Securities or of Registrable Securities
having an aggregate offering price of at least $5,000,000 (based upon the
then current public market price or Fair Market Value of such Registrable
Securities) (for purposes of this Agreement, "Registrable Xxxxxxxx
Securities" shall mean Registrable Securities into which the Xxxxxxxx
Shares are convertible). At any time after the Company becomes eligible to
file a registration statement on Form S-3 (or any successor form relating
to secondary offerings), holders of Xxxxxxxx Shares will have the right to
require the Company to effect a registration on Form S-3 (or such
successor form), of Registrable Securities having an aggregate offering
price in each registration on Form S-3 in excess of $500,000 (based on the
current public market price at the time the registration is requested).
The Company will then use its best
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efforts to effect the registration under the Securities Act of the
Registrable Securities which the Company has been requested to register by
such Initiating Xxxxxxxx Investors together with all other Registrable
Securities which the Company has been requested to register pursuant to
Section 7.3 by notice delivered to the Company within 20 days after the
Company has given the notice required by Section 7.3.1 (which request
shall specify the intended method of disposition of such Registrable
Securities), all to the extent requisite to permit the disposition (in
accordance with the intended methods thereof as aforesaid) of the
Registrable Securities which the Company has been so requested to
register.
7.2.2. Number of Registrations; Form. The Company shall be required
to effect only two registrations on Form S-1 (or any successor form) and
an unlimited number of registrations on Form S-3 (or any successor form)
pursuant to Section 7.2; provided, however, that the Company shall not be
required to effect any registration (other than on Form S-3 or any
successor form relating to secondary offerings) within six months after
the effective date of any other registration statement of the Company;
provided further; that the Company shall not be required to effect more
than two registrations pursuant to Section 7.2 in any 12-month period.
7.2.3. Company Delay. If at the time of any request to register
Registrable Securities pursuant to this Section 7.2, the Company is
engaged or has fixed plans to engage within 30 days of the time of the
request in a registered public offering as to which the holders of
Xxxxxxxx Shares may include Registrable Securities pursuant to Section 7.3
or is engaged in any other activity which, in the good faith determination
of the Board, would be adversely affected by the requested registration to
the material detriment of the Company, then the Company may at its option
direct that such request be delayed for a period not in excess of 90 days
from the effective date of such offering or the date of commencement of
such other material activity, as the case may be, such right to delay a
request to be exercised by the Company not more than once in any two year
period.
7.2.4. Effective Demands. No registrations of Registrable Securities
which shall not have become and remained effective in accordance with the
provisions of this Section 7, and no registrations of Registrable
Securities pursuant to which the Initiating Xxxxxxxx Investors and all
other holders of Registrable Xxxxxxxx Securities joining therein are not
able to include at least 90% of the Registrable Securities which they
desired to include, shall be included in the calculation of numbers of
registrations contemplated by this Section 7.2.
7.2.5. Payment of Expenses. The Company shall pay all reasonable
costs and expenses incurred by the holders of Xxxxxxxx Shares, including
the reasonable fees and expenses of a single legal counsel representing
any or all of the Initiating Xxxxxxxx Investors, in connection with each
registration of Registrable Securities requested
-27-
pursuant to this Section 7.2, other than underwriting discount and
commission, if any, and applicable transfer taxes, if any; provided,
however, that if a registration under this Section 7.2 is withdrawn at the
request of the Initiating Xxxxxxxx Investors (other than as a result of
information concerning the business or financial condition of the Company
which is made known to the Initiating Xxxxxxxx Investors after the date on
which such registration was requested and other than as a result of a
significant deterioration of the financial markets) and if the Initiating
Xxxxxxxx Investors elect not to have such registration counted as a
registration requested under this Section 7.2, the Initiating Xxxxxxxx
Investors shall pay the registration expenses of such registration pro
rata in accordance with the number of their Registrable Securities
included in such registration.
7.2.6. Additional Procedures. In the case of a registration pursuant
to Section 7.2 hereof, whenever the holders of at least a majority of the
Registrable Xxxxxxxx Securities to be included in the proposed
registration statement in question (the "Majority Participating
Investors") shall request that such registration shall be effected
pursuant to an underwritten offering, the Company shall include such
information in the written notices to holders of Registrable Securities
referred to in Section 7.3. In such event, the right of any holder of
Registrable Securities to have securities owned by such holder included in
such registration pursuant to Section 7.2 shall be conditioned upon such
holder's participation in such underwriting and the inclusion of such
holder's Registrable Securities in the underwriting (unless otherwise
mutually agreed upon by the Majority Participating Investors and such
holder). If requested by such underwriters, the Company together with the
holders of Registrable Securities proposing to distribute their securities
through such underwriting will enter into an underwriting agreement with
such underwriters for such offering containing such representations and
warranties by the Company and such holders and such other terms and
provisions as are customarily contained in underwriting agreements with
respect to secondary distributions, including, without limitation,
customary indemnity and contribution provisions (subject, in each case, to
the limitations on such liabilities set forth in this Agreement).
7.2.7. IRR Threshold. In the case of a registration pursuant to
Section 7.2.1 in connection with the Initial Public Offering, the Company
shall not effect such registration unless the Estimated Net Offering Price
Per Share (as defined below) for such offering is equal to or greater than
the Target Net Offering Price Per Share. The "Estimated Net Offering Price
Per Share" shall mean the average of the highest and lowest net offering
prices per share in the range of estimated net offering prices per share
determined by the underwriter retained in connection with such offering,
which underwriter shall be selected by the Initiating Xxxxxxxx Investors
with the consent of the Board and the Majority Xxxx Investors.
Notwithstanding anything to the contrary in this Section 7.2, in the event
that the final net offering price per share determined by the underwriter
immediately prior to the effective date of such offering is less than 95%
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of the Target Net Offering Price Per Share, then the Company shall, upon
the request of the Majority Xxxx Investors, cause such offering to be
terminated.
7.3. Piggyback Registration Rights.
7.3.1. Piggyback Registration.
7.3.1.1. General. Each time the Company proposes to register
any shares of Common Stock under the Securities Act on a form which
would permit registration of Registrable Securities for sale to the
public, for its own account and/or for the account of one or more
Xxxx Investors or Xxxxxxxx Investors (pursuant to Section 7.1 or 7.2
or otherwise) for sale in a Public Offering, the Company will give
notice to all holders of Registrable Securities of its intention to
do so. Any such holder may, by written response delivered to the
Company within 20 days after the effectiveness of such notice,
request that all or a specified part of the Registrable Securities
held by such holder be included in such registration. The Company
thereupon will use its reasonable efforts to cause to be included in
such registration under the Securities Act all shares of Common
Stock which the Company has been so requested to register by such
holders, to the extent required to permit the disposition (in
accordance with the methods to be used by the Company or other
holders of shares of Common Stock in such Public Offering) of the
Registrable Securities to be so registered. No registration of
Registrable Securities effected under this Section 7.3 shall relieve
the Company of any of its obligations to effect registrations of
Registrable Securities pursuant to Section 7.1 or 7.2 hereof.
7.3.1.2. Excluded Transactions. The Company shall not be
obligated to effect any registration of Registrable Securities under
this Section 7.3 incidental to the registration of any of its
securities in connection with:
(a) Any Public Offering relating to employee benefit
plans or dividend reinvestment plans;
(b) Any Public Offering relating to the acquisition or
merger after the date hereof by the Company or any of its
subsidiaries of or with any other businesses; or
(c) The Initial Public Offering except as to (i)
Registrable Securities requested to be included in such
offering by one or more of the Xxxx Investors and the Xxxxxxxx
Investors and (ii) securities requested to be included in such
offering pursuant to registration rights that exist on the
date of this Agreement.
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7.3.2. Payment of Expenses. The Company shall pay all reasonable
expenses of a single legal counsel representing any and all holders of
Registrable Securities incurred in connection with each registration of
Registrable Securities requested pursuant to this Section 7.3; provided,
however, that if the Company is paying the expenses of counsel to the
Initiating Xxxx Investors pursuant to Section 7.1.5 or counsel to the
Initiating Xxxxxxxx Investors pursuant to Section 7.2.5, the Company shall
not be required to pay expenses for any additional legal counsel to the
holders of Registrable Securities.
7.3.3. Additional Procedures. Holders of Shares participating in any
Public Offering pursuant to this Section 7.3 shall take all such actions
and execute all such documents and instruments that are reasonably
requested by the Company to effect the sale of their Shares in such Public
Offering, including, without limitation, being parties to the underwriting
agreement entered into by the Company and any other selling shareholders
in connection therewith and being liable in respect of the representations
and warranties by, and the other agreements (including without limitation
customary selling stockholder representations, warranties,
indemnifications and "lock-up" agreements) for the benefit of the
underwriters; provided, however, that (a) with respect to individual
representations, warranties, indemnities and agreements of sellers of
Shares in such Public Offering, the aggregate amount of such liability
shall not exceed such holder's net proceeds from such offering and (b) to
the extent selling stockholders give further representations, warranties
and indemnities, then with respect to all other representations,
warranties and indemnities of sellers of shares in such Public Offering,
the aggregate amount of such liability shall not exceed the lesser of (i)
such holder's pro rata portion of any such liability, in accordance with
such holder's portion of the total number of Shares included in the
offering or (ii) such holder's net proceeds from such offering.
7.4. Certain Other Provisions.
7.4.1. Underwriter's Cutback. In connection with any registration of
shares, the underwriter may determine that marketing factors (including,
without limitation, an adverse effect on the per share offering price)
require a limitation of the number of shares to be underwritten.
Notwithstanding any contrary provision of this Section 7 and subject to
the terms of this Section 7.4.1, the underwriter may limit the number of
shares which would otherwise be included in such registration by excluding
any or all Registrable Securities from such registration (it being
understood that the number of shares which the Company seeks to have
registered in such registration shall not be subject to exclusion, in
whole or in part, under this Section 7.4.1). Upon receipt of notice from
the underwriter of the need to reduce the number of shares to be included
in the registration, the Company shall advise all holders of the Company's
securities that would otherwise be registered and underwritten pursuant
hereto, and the number of shares of such securities, including Registrable
Securities, that may be included in the
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registration shall be allocated in the following manner, unless the
underwriter shall determine that marketing factors require a different
allocation: shares, other than Registrable Securities, requested to be
included in such registration by shareholders shall be excluded unless the
right to register such shares exists on the date of this Agreement or
unless the Company has, with the consent of the Majority Series C
Investors, granted registration rights which are to be treated on an equal
basis with Registrable Securities for the purpose of the exercise of the
underwriter cutback; and, if a limitation on the number of shares is still
required, the number of Registrable Securities and other shares of Common
Stock that may be included in such registration shall be allocated among
holders thereof in proportion, as nearly as practicable, to the respective
amounts of Common Stock which each shareholder requested be registered in
such registration. For purposes of any underwriter cutback, all Common
Stock held by any holder of Registrable Securities which is a partnership
or corporation shall also include any Common Stock held by the partners,
retired partners, shareholders or affiliated entities of such holder, or
the estates and family members of any such partners and retired partners
and any trusts for the benefit of any of the foregoing persons, and such
holder and other persons shall be deemed to be a single selling holder,
and any pro rata reduction with respect to such selling holder shall be
based upon the aggregate amount of Common Stock owned by all entities and
individuals included in such selling holder, as defined in this sentence.
No securities excluded from the underwriting by reason of the
underwriter's marketing limitation shall be included in such registration.
If any holder of Registrable Securities disapproves of the terms of the
underwriting, it may elect to withdraw therefrom by written notice to the
Company and the underwriter. The Registrable Securities so withdrawn shall
also be withdrawn from registration.
7.4.2. Other Actions. If and in each case when the Company is
required to use its reasonable best efforts to effect a registration of
any Registrable Securities as provided in this Section 7, the Company
shall take appropriate and customary actions in furtherance thereof,
including, without limitation: (a) promptly preparing and filing with the
Commission a registration statement with respect to such Registrable
Securities and using reasonable efforts to cause such registration
statement to become effective; (b) preparing and filing with the
Commission such amendments and supplements to such registration statement
as may be required to comply with the Securities Act and to keep such
registration statement effective for a period not to exceed 180 days from
the date of effectiveness or such earlier time as the Registrable
Securities covered by such registration statement shall have been disposed
of in accordance with the intended method of distribution therefor or the
expiration of the time when a prospectus relating to such registration is
required to be delivered under the Securities Act; (c) furnishing to the
holders of Registrable Securities such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of
the Securities Act, and such other documents as they may reasonably
request in order to facilitate the disposition of Registrable Securities
owned by them; (d) notifying each holder of Registrable Securities covered
by such registration statement at any time when
-31-
a prospectus relating thereto is required to be delivered under the
Securities Act of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing and, at the request of the majority of the holders of Registrable
Securities, preparing a supplement or amendment to such prospectus so
that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus shall not contain an untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; (e) in
the event of an underwritten public offering, entering into and performing
its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter(s) of such offering; provided,
however, that each holder of Registrable Securities participating in such
underwriting shall also enter into and perform its obligations under such
an agreement; (f) using its reasonable best efforts to furnish, on the
date that such Registrable Securities are delivered to the underwriters
for sale, if such securities are being sold through underwriters, (i) an
opinion, dated as of such date, of the counsel representing the Company
for the purposes of such registration, in form and substance as is
customarily given to underwriters in an underwritten public offering and
(ii) a letter, dated as of such date, from the independent certified
public accountants of the Company, in form and substance as is customarily
given by independent certified public accountants to underwriters in an
underwritten public offering; (g) using its reasonable best efforts to
register or qualify such Registrable Securities under the state securities
or "blue sky" laws of such jurisdictions as the holders of Registrable
Securities shall reasonably request; provided, however, that the Company
shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation in any jurisdiction in which it is
not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it would not otherwise be so
subject; (h) causing all Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are
then listed and, if not so listed, to be listed on the NASD automated
quotation system and, if listed on the NASD automated quotation system,
using its reasonable best efforts to secure designation of all Registrable
Securities covered by such registration statement as a NASDAQ "national
market system security" within the meaning of Rule 11Aa2-1 of the
Commission or, failing that, securing NASDAQ authorization for such
Registrable Securities and, without limiting the generality of the
foregoing, arranging for at least two market makers to register as such
with respect to such Registrable Securities with the NASD; (i) making
available for inspection by any seller of Registrable Xxxx Securities or
Registrable Xxxxxxxx Securities, any underwriter participating in any
disposition pursuant to such registration statement and any attorney,
accountant or other agent retained by any such seller or underwriter, all
financial and other records, pertinent corporate documents and properties
of the Company, and causing the Company's officers, directors, employees
and independent accountants to supply all information
-32-
reasonably requested by any such seller, underwriter, attorney, accountant
or agent in connection with such registration statement, in each case
subject to the requirement that recipients execute appropriate
confidentiality agreements; and (j) otherwise cooperating reasonably with,
and take such customary actions as may reasonably be requested by the
holders of Registrable Securities in connection with, such registration.
7.4.3. Selection of Underwriters and Counsel. The underwriters to be
retained in connection with any Public Offering shall be selected by the
Board with the joint consent of the Majority Xxxxxxxx Investors and the
Majority Xxxx Investors which in each case shall not be unreasonably
withheld or, in the case of an offering following a request therefor under
Section 7.1.1, the Initiating Xxxx Investors with the consent of the Board
which shall not be unreasonably withheld or, in the case of an offering
following a request therefor under Section 7.2.1, except as set forth in
Section 7.2.7, the Initiating Xxxxxxxx Investors with the consent of the
Board which shall not be unreasonably withheld. The legal counsel to be
retained in connection with any Public Offering shall be selected by the
Board or, in the case of an offering following a request therefor under
Section 7.1.1, the Initiating Xxxx Investors or, in the case of an
offering following a request therefor under Section 7.2.1, the Initiating
Xxxxxxxx Investors.
7.4.4. Lock-Up. Without the prior written consent of the
underwriters managing any Public Offering, for a period beginning seven
days immediately preceding and ending on the 180th day following the
effective date of the registration statement used in connection with such
offering, no holder of Shares (whether or not a selling shareholder
pursuant to such registration statement) shall (a) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise Transfer, directly or indirectly, any shares
of Common Stock or any securities convertible into or exercisable or
exchangeable for such Common Stock or (b) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of Common Stock, whether any such
transaction described in clause (a) or (b) above is to be settled by
delivery of such Common Stock or such other securities, in cash or
otherwise; provided, however, that the foregoing restrictions shall not
apply to (i) transactions relating to shares of Common Stock or other
securities acquired in open market transactions after the completion of
the Initial Public Offering, (ii) Transfers to a Permitted Transferee of
such holder in accordance with the terms of this Agreement or (iii)
conversions of shares of Common Stock into other classes of Common Stock
without change of holder.
7.5. Indemnification and Contribution.
7.5.1. Indemnities of the Company. In the event of any registration
of any Registrable Securities or other debt or equity securities of the
Company or any of its subsidiaries under the Securities Act pursuant to
this Section 7 or otherwise, and in
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connection with any registration statement or any other disclosure
document produced by or on behalf of the Company or any of its
subsidiaries including, without limitation, reports required and other
documents filed under the Exchange Act, and other documents pursuant to
which any debt or equity securities of the Company or any of its
subsidiaries are sold (whether or not for the account of the Company or
its subsidiaries), the Company will, and hereby does, and will cause each
of its subsidiaries, jointly and severally, to indemnify and hold harmless
each seller of Registrable Securities, any Person who is or might be
deemed to be a controlling Person of the Company or any of its
subsidiaries within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, their respective direct and indirect
partners, advisory board members, directors, officers, trustees, members
and shareholders, and each other Person, if any, who controls any such
seller or any such holder within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act (each such person being
referred to herein as a "Covered Person"), against any losses, claims,
damages or liabilities (or actions or proceedings in respect thereof),
joint or several, to which such Covered Person may be or become subject
under the Securities Act, the Exchange Act, any other securities or other
law of any jurisdiction, the common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of or are based upon (i) any untrue statement
or alleged untrue statement of any material fact contained or incorporated
by reference in any registration statement under the Securities Act, any
preliminary prospectus or final prospectus included therein, or any
related summary prospectus, or any amendment or supplement thereto, or any
document incorporated by reference therein, or any other such disclosure
document (including without limitation reports and other documents filed
under the Exchange Act and any document incorporated by reference therein)
or other document or report, (ii) 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 or (iii) any violation or
alleged violation by the Company or any of its subsidiaries of any
federal, state, foreign or common law rule or regulation applicable to the
Company or any of its subsidiaries and relating to action or inaction in
connection with any such registration, disclosure document or other
document or report, and will reimburse such Covered Person for any legal
or any other expenses incurred by it in connection with investigating or
defending any such loss, claim, damage, liability, action or proceeding;
provided, however, that neither the Company nor any of its subsidiaries
shall be liable to any Covered Person in any such case to the extent that
any such loss, claim, damage, liability, action or proceeding arises out
of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement, incorporated document or other such disclosure document or
other document or report, in reliance upon and in conformity with written
information furnished to the Company or to any of its subsidiaries through
an instrument duly executed by such Covered Person specifically stating
that it is for use in the preparation
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thereof or specifically furnished for use in the preparation thereof. The
indemnities of the Company and of its subsidiaries contained in this
Section 7.5.1 shall remain in full force and effect regardless of any
investigation made by or on behalf of such Covered Person and shall
survive any transfer of securities.
7.5.2. Indemnities to the Company. In the event of any registration
of any Registrable Securities under the Securities Act pursuant to this
Section 7, each seller of Registrable Securities, severally and not
jointly, shall indemnify and hold harmless the Company and any of its
subsidiaries, each director of the Company or any of its subsidiaries,
each officer of the Company or any of its subsidiaries who shall sign such
registration statement and each other Person (other than such seller), if
any, who controls the Company and any of its subsidiaries within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act and each other prospective seller of such securities with respect to
any statement in or omission from such registration statement, any
preliminary prospectus, final prospectus or summary prospectus included
therein, or any amendment or supplement thereto, or any other disclosure
document (including, without limitation, reports and other documents filed
under the Exchange Act or any document incorporated therein) or other
document or report, if such statement or omission was made in reliance
upon and in conformity with written information furnished to the Company
or any of its subsidiaries through an instrument executed by such seller
specifically stating that it is for use in the preparation or specifically
furnished for use in the preparation of such registration statement,
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement, incorporated document or other document or report. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company, any of its subsidiaries
or any such director, officer or controlling Person and shall survive any
transfer of securities.
7.5.3. Contribution. If the indemnification provided for in Section
7.5.1 or 7.5.2 hereof is unavailable to a party that would have been
entitled to indemnification pursuant to the foregoing provisions of this
Section 7.5 (an "Indemnitee") in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to
therein, then each party that would have been an indemnifying party
thereunder shall, in lieu of indemnifying such Indemnitee, contribute to
the amount paid or payable by such Indemnitee as a result of such losses,
claims, damages or liabilities (or actions or proceedings in respect
thereof) in such proportion as is appropriate to reflect the relative
fault of such indemnifying party on the one hand and such Indemnitee on
the other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof). The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by such indemnifying party or such
Indemnitee and the parties' relative intent,
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knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties agree that it would not be just or
equitable if contribution pursuant to this Section 7.5.3 were determined
by pro rata allocation or by any other method of allocation which does not
take account of the equitable considerations referred to in the preceding
sentence. The amount paid or payable by a contributing party as a result
of the losses, claims, damages or liabilities (or actions or proceedings
in respect thereof) referred to above in this Section 7.5.3 shall include
any legal or other expenses reasonably incurred by such Indemnitee in
connection with investigating or defending any such action or claim. 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.
7.5.4. Limitation on Liability of Holders of Registrable Securities.
The liability of each holder of Registrable Securities in respect of any
indemnification or contribution obligation of such holder arising under
this Section 7.5 shall not in any event exceed an amount equal to the net
proceeds to such holder (after deduction of all underwriters' discounts
and commissions) from the disposition of the Registrable Securities
disposed of by such holder pursuant to such registration.
7.6. Limitations on Subsequent Registration Rights. From and after the
date of this Agreement, the Company shall not, without the prior written consent
of the Majority Series C Investors, enter into any agreement with any holder or
prospective holder of any securities of the Company relating to registration
rights unless such agreement includes: (a) to the extent the agreement would
allow such holder or prospective holder to include such securities in any
registration filed under Section 7.1, 7.2 or 7.3 hereof, a provision that such
holder or prospective holder may include such securities in any such
registration only to the extent that the inclusion of its securities will not
reduce the amount of the Registrable Securities of the Xxxx Investors or
Xxxxxxxx Investors which would otherwise be included; and (b) no provision which
would allow such holder or prospective holder to make a demand registration
which could result in such registration statement being declared effective prior
to the earlier of the dates or events set forth in Section 7.1.1 or 7.2.1.
8. REVALUATION OF SHARE PRICES
8.1. Look-Back by Company, etc,. Notwithstanding anything contained in
this Agreement to the contrary, if (i) Shares are purchased pursuant to Section
4.1 or 5.1 from a Minority Stockholder or its Permitted Transferees (the
"Subject Minority Shares") and such Minority Stockholder is or was ever an
employee of the Company or any of its subsidiaries (or related to such employee
or director), (ii) the purchaser of the Subject Minority Shares was the Company,
any of the Xxxxxxxx Investors or any of the Xxxx Investors, and (iii) the
purchase price paid for the Subject Minority Shares exceeded $100,000, then the
Xxxxxxxx Investors, the Xxxx Investors and/or the Company will have the option
(the "Look-Back Option"), exercisable
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by written notice to such Minority Stockholder at any time within the one year
period following the notice of exercise of an option to sell or purchase the
Subject Minority Shares pursuant to Section 4.1 or 5.1 (the date of notice of
exercise of the Look-Back Option is referred to herein as the "Look-Back Date"),
to require that the Contract Price of the Subject Minority Shares be
redetermined as of the Look-Back Date (the "Look-Back Valuation") by the same
Appraiser who determined the Contract Price of the Subject Minority Shares (or
if no Appraiser was used, such Appraiser shall be chosen in the manner described
in the definition of Contract Price in Section 13.2). The fees and expenses of
such Appraiser shall be borne by the purchaser. If the Look-Back Option is
exercised, the following shall apply:
8.1.1. If the Look-Back Valuation is an amount which is less than
90% of the purchase price paid by the Xxxxxxxx Investors, the Xxxx
Investors and/or the Company for the Subject Minority Shares, the purchase
price paid to such Minority Stockholder and/or any of his Permitted
Transferees will be reduced to an amount equal to the Look-Back Valuation.
Any such reduction in the purchase price for the Subject Minority Shares
shall be deducted in equal installments over the remaining term of any
promissory note issued in connection with the purchase of the Subject
Minority Shares and, if no such promissory note was issued and remains
outstanding, such reduction shall be due and payable immediately by the
Minority Stockholder and/or his Permitted Transferees to the purchaser in
cash. Any amounts not paid by the Minority Stockholder and/or his
Permitted Transferees when due shall either (i) bear interest at a fixed
rate per annum from the due date to the date of payment at the lesser of
12% or the Prime Rate in effect as of the due date or (ii) at the option
of the Xxxxxxxx Investors, the Xxxx Investors and/or the Company, as
applicable, be paid by surrendering a number of Shares with a value based
on the Look-Back Valuation equal to the amount due from the Minority
Stockholders and/or his Permitted Transferees.
8.1.2. If the Look-Back Valuation equals or exceeds 90% of the
purchase price paid to such Minority Stockholder and/or his Permitted
Transferees for the Subject Minority Shares, the purchase price for the
Subject Minority Shares will not be changed and, in addition, the interest
rate on any outstanding promissory note issued to the Minority Stockholder
and/or his Permitted Transferees in connection with the purchase of such
Subject Minority Shares will be increased by 100 basis points effective as
of the Look-Back Date.
8.2 Look-Back by Minority Stockholder. Notwithstanding anything contained
in this Agreement to the contrary, if (i) Shares are purchased from any Minority
Stockholder and/or his Permitted Transferees pursuant to Section 5.1.1 or 5.1.2
(such Shares purchased pursuant to Section 5.1.1 or 5.1.2 (specifically
excluding, however, any shares of Stock purchased upon termination of such
Minority Stockholder's employment for Cause) are referred to herein as the
"Employee Stock"), and (ii) there is a Sale of the Company within the one year
period following the date of notice of exercise of such option to purchase, such
Minority Stockholder shall have the right and option, exercisable by written
notice to the
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purchaser of the Employee Stock within 15 days after notice of such Sale has
been provided to the Minority Stockholder, to require that the Contract Price
for the Employee Stock be redetermined as of the date of Sale based on the
consideration received in the Sale and determined as if the Employee Stock were
issued and outstanding on the date of Sale. At the time notice of the Sale is
provided to the Minority Stockholder, the Minority Stockholder shall also be
advised of the terms, conditions and price received in connection with the Sale.
The Minority Stockholder shall have the right to review those portions of the
Sale documentation relating to the determination, payment and any adjustment of
the consideration paid in connection with such Sale; provided, however, that
such Minority Stockholder shall first agree to treat all such information as
confidential information and shall sign such confidentiality agreement as may be
reasonably requested with respect thereto. If the consideration in the Sale is
for other than cash and the parties cannot agree on the redetermined Contract
Price, such redetermined Contract Price shall be determined by the same
Appraiser who originally determined the Contract Price (or, if no Appraiser was
used, such Appraiser shall be chosen in the manner described in the definition
of Contract Price in Section 13.2). In the event the redetermined Contract price
for the Employee Stock is higher than the price paid to such Minority
Stockholder and/or his Permitted Transferees for the Employee Stock, then the
excess shall be paid to such Minority Stockholder and/or his Permitted
Transferees on the same terms and conditions as the remaining Stockholders of
the Company receive amounts payable to them in connection with the Sale. The
cost of any re-appraisal shall be borne by the Minority Stockholder.
8.3. Re-evaluation Upon Initial Public Offering Notwithstanding anything
in this Agreement to the contrary, if (i) Employee Stock is purchased, and (ii)
there is an Initial Public Offering of the Company within the one year period
following the date of notice of exercise of the option to purchase such Employee
Stock, the Company shall give written notice of the proposed Initial Public
Offering to such Minority Stockholder not less than 30 days prior to the
proposed effective date of such Initial Public Offering. Upon receipt of such
notice, such Minority Stockholder and/or his Permitted Transferees shall each
have the right and option, exercisable by written notice delivered to the
Company and the purchaser of the Employee Stock within 15 days after receipt of
notice of the proposed Initial Public Offering, to rescind the sale of the
Employee Stock. If the Minority Stockholder and its Permitted Transferees so
elect to rescind the sale of the Employee Stock, and contingent upon the
effectiveness of the Initial Public Offering, the Minority Stockholder and his
Permitted Transferees shall remit to the purchaser of the Employee Stock all
consideration received for such Employee Stock and, upon receipt of such funds,
the Minority Stockholder and/or his Permitted Transferees shall receive a return
of the Employee Stock. Notwithstanding the foregoing, if a Minority Stockholder
or its Permitted Transferee elects to rescind a sale of Employee Stock to a Xxxx
Investor or a Xxxxxxxx Investor pursuant to this Section 8.3 and (i) such
recision would give rise to taxable income and (ii) the Xxxx Investor or
Xxxxxxxx Investor who is required to rescind the sale of Employee Stock so
notifies the Minority Stockholder (or Permitted Transferee) electing to exercise
the right of recision prior to the time of such recision, which notice shall set
forth the Make-Whole Amount (as defined below), the Minority
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Stockholder (or Permitted Transferee) in question shall have the option either
(a) of electing to rescind the notice of recision or (b) proceeding with the
recision so long as prior to such recision the Minority Stockholder (or
Permitted Transferee) in question pays to the Xxxx Investor or Xxxxxxxx Investor
in question an amount (the "Make-Whole Amount") which after deducting all taxes
payable as a result of the receipt thereof would equal the taxes on the taxable
income referred to above (both such taxes to be calculated at the maximum
marginal rate applicable to individuals).
9. CERTAIN ISSUANCES AND TRANSFERS, ETC. Notwithstanding any other provision of
this Agreement, (a) Shares Transferred in a Public Offering or, after the
Initial Public Offering, pursuant to Rule 144 shall be conclusively deemed
thereafter not to be Series C Shares, Xxxx Shares, Xxxxxxxx Shares or Minority
Shares, as applicable, under this Agreement and not to be subject to any of the
provisions hereof or entitled to the benefit of any of the provisions hereof,
and (b) any Shares Transferred or acquired other than as contemplated in clause
(a) shall upon such Transfer or acquisition continue to be deemed for all
purposes hereof to be Series C Shares, Xxxx Shares, Xxxxxxxx Shares or Minority
Shares, as applicable, under this Agreement and no such Transfer shall be
effective unless the transferee of such Shares has delivered to the Company a
written acknowledgment and agreement in form and substance reasonably
satisfactory to the Company that such Shares to be received by such transferee
shall remain Series C Shares, Xxxx Shares, Xxxxxxxx Shares or Minority Shares
hereunder, as the case may be, and shall continue to be subject to all of the
provisions of this Agreement and that such transferee shall be bound by and a
party to this Agreement as the holder of Series C Shares, Xxxx Shares, Xxxxxxxx
Shares or Minority Shares, as the case may be, hereunder.
10. REMEDIES.
10.1. Generally. The Company and each holder of Shares shall have all
remedies available at law, in equity or otherwise in the event of any breach or
violation of this Agreement or any default hereunder by the Company or any
holder of Shares. The parties acknowledge and agree that in the event of any
breach of this Agreement, in addition to any other remedies which may be
available, each of the parties hereto shall be entitled to specific performance
of the obligations of the other parties hereto and, in addition, to such other
equitable remedies (including, without limitation, preliminary or temporary
injunctive relief) as may be appropriate in the circumstances.
10.2. Deposit. Without limiting the generality of Section 10.1, if any
holder of Shares fails to deliver to the purchaser thereof the certificate or
certificates evidencing Shares to be Sold pursuant to Section 3 or 5 hereof,
such purchaser may, at its option, in addition to all other remedies it may
have, deposit the purchase price (including any promissory note constituting all
or any portion thereof) for such Shares with any national bank or trust company
having combined capital, surplus and undivided profits in excess of One Hundred
Million Dollars ($100,000,000) (the "Escrow Agent") and the Company shall cancel
on its books the
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certificate or certificates representing such Shares and thereupon all of such
holder's rights in and to such Shares shall terminate. Thereafter, upon delivery
to such purchaser by such holder of the certificate or certificates evidencing
such Shares (duly endorsed, or with stock powers duly endorsed, for transfer,
with signature guaranteed, free and clear of any liens or encumbrances, and with
any stock transfer tax stamps affixed), such purchaser shall instruct the Escrow
Agent to deliver the purchase price (without any interest from the date of the
closing to the date of such delivery, any such interest to accrue to such
purchaser) to such holder.
11. LEGENDS.
11.1. Restrictive Legend. Each certificate representing Shares shall have
the following legend endorsed conspicuously thereupon:
The voting of the shares of stock represented by this certificate,
and the sale, encumbrance or other disposition thereof, are subject to the
provisions of a Stockholders Agreement to which the issuer and certain of
its stockholders are party, a copy of which may be inspected at the
principal office of the issuer or obtained from the issuer without charge.
Any person who acquires Shares which are not subject to all or part of the
terms of this Agreement shall have the right to have such legend (or the
applicable portion thereof) removed from certificates representing such Shares.
11.2. 1933 Act Legends. Each certificate representing Shares shall have
the following legend endorsed conspicuously thereupon:
The securities represented by this certificate were issued in a
private placement, without registration under the Securities Act of 1933,
as amended (the "Act"), and may not be sold, assigned, pledged or
otherwise transferred in the absence of an effective registration under
the Act covering the transfer or an opinion of counsel, satisfactory to
the issuer, that registration under the Act is not required.
11.3. Stop Transfer Instruction. The Company will instruct any transfer
agent not to register the Transfer of any Shares until the conditions specified
in the foregoing legends are satisfied.
11.4. Termination of 1933 Act Legend. The requirement imposed by Section
11.2 hereof shall cease and terminate as to any particular Shares (a) when, in
the opinion of Ropes & Xxxx, or other counsel reasonably acceptable to the
Company, such legend is no longer required in order to assure compliance by the
Company with the Securities Act or (b) when such Shares have been effectively
registered under the Securities Act or transferred pursuant to
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Rule 144. Wherever (x) such requirement shall cease and terminate as to any
Shares or (y) such Shares shall be transferable under paragraph (k) of Rule 144,
the holder thereof shall be entitled to receive from the Company, without
expense, new certificates not bearing the legend set forth in Section 11.2
hereof.
12. AMENDMENT, TERMINATION, ETC.
12.1. Oral Modifications. This Agreement may not be orally amended,
modified, extended or terminated, nor shall any oral waiver of any of its terms
be effective.
12.2. Written Modifications. This Agreement may be amended, modified,
extended or terminated, and the provisions hereof may be waived, only by an
agreement in writing signed by the Company and the Majority Stockholders;
provided, however, that:
12.2.1. the consent of the Majority Series C Investors shall be
required for any amendment, modification, extension, termination or waiver
which has a material adverse effect on the rights of the holders of Series
C Shares as such under this Agreement;
12.2.2. the consent of the Majority Xxxxxxxx Investors shall be
required for any amendment, modification, extension, termination or waiver
which has a material adverse effect on the rights of the holders of
Xxxxxxxx Shares as such under this Agreement;
12.2.3. the consent of the holders of a majority of the Minority
Shares then outstanding shall be required for (i) any amendment,
modification, extension, termination or waiver of Section 3.1 which would
eliminate the rights of the holders of Minority Shares to participate in a
Sale under Section 3.1 or any amendment, modification, extension,
termination or waiver of Section 3.1 which would disproportionately
materially adversely affect the rights of the holders of Minority Shares
vis-a-vis the rights of the holders of Shares other than Minority Shares,
(ii) any amendment, modification, extension, termination or waiver of
Section 7.3 which would eliminate the rights of the holders of Minority
Shares to participate in a registration under Section 7.3 or any
amendment, modification, extension, termination or waiver of Section 7.3
which would disproportionately materially adversely affect the rights of
the holders of Minority Shares vis-a-vis the rights of the holders of
Shares other than Minority Shares, (iii) any amendment, modification,
extension, termination or waiver of Section 3.2.2, 3.3.2 or 3.4.2 which
would disproportionately materially adversely affect the rights of the
holders of Minority Shares vis-a-vis the rights of the holders of Shares
other than Minority Shares, and (iv) any amendment, modification,
extension, termination or waiver of Section 4.2, 5 or 8;
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12.2.4. the consent of the holders of a majority of the Shares held
by the Xxxx Stockholders shall be required for any amendment,
modification, extension, termination or waiver of Section 5.4; and
12.2.5. the consent of the holders of a majority of the Shares held
by the Participation Offerees shall be required for any amendment,
modification, extension, termination or waiver of Section 6.
Each such amendment, modification, extension, termination and waiver shall
be binding upon each party hereto and each holder of Shares subject hereto. In
addition, each party hereto and each holder of Shares subject hereto may waive
any right hereunder by an instrument in writing signed by such party or holder.
12.3. Termination. No termination under this Agreement shall relieve any
Person of liability for breach prior to termination.
13. DEFINITIONS. For purposes of this Agreement:
13.1. Certain Matters of Construction. In addition to the definitions
referred to or set forth below in this Section 13:
(a) The words "hereof", "herein", "hereunder" and words of similar
import shall refer to this Agreement as a whole and not to any particular
Section or provision of this Agreement, and reference to a particular
Section of this Agreement shall include all subsections thereof;
(b) Definitions shall be equally applicable to both nouns and verbs
and the singular and plural forms of the terms defined; and
(c) The masculine, feminine and neuter genders shall each include
the other.
13.2. Definitions. The following terms shall have the following meanings:
"AAA" shall have the meaning set forth in Section 5.1.4.
"Adverse Claim" shall have the meaning set forth in Section 8-302 of
the applicable Uniform Commercial Code.
"Affiliate" shall mean, with respect to any specified Person, (a)
any other Person which directly or indirectly through one or more
intermediaries controls, or is controlled by, or is under common control
with, such specified Person (for the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect
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to any Person, means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by agreement
or otherwise) and (b) each Person of which such specified Person or an
Affiliate (as defined in clause (a) above) thereof shall, directly or
indirectly, beneficially own at least five percent of the outstanding
capital stock or other evidence of beneficial interest at such time. With
respect to any natural Person, "Affiliate" shall also include without
limitation any Member of the Immediate Family of such natural Person.
"Affiliated Fund" shall mean each corporation, trust, limited
liability company, general or limited partnership or other entity under
common control with any Xxxx Investor or Xxxxxxxx Investor, as the case
may be.
"Agreement" shall have the meaning set forth in the Preamble.
"Appraisal Process" shall mean the following process: within three
business days after the effectiveness of the Drag Along Notice, the
Participating Sellers shall, by majority vote, select a representative
(the "Representative") to meet with the Prospective Selling Investors. If
no such representative has been selected within such three business day
period, then the Company shall serve as the Representative. The
Prospective Selling Investors shall meet with the Representative to
discuss the per share price to be paid in the proposed Sale as set forth
in the Drag Along Notice. If the Representative agrees to the per share
price set forth in the Drag Along Notice, then the Prospective Selling
Investors may effect the proposed Sale pursuant to Section 3.2, 3.3 or
3.4, as applicable. If the Representative does not agree to the per share
price set forth in the Drag Along Notice within three business days after
the first meeting between the Prospective Selling Investors and the
Representative, then the Representative and the Prospective Selling
Investors shall each select an Appraiser within three business days and
the two Appraisers shall each make an independent appraisal as to the per
share fair value of the Shares to be sold in the proposed Sale. If the
average of the two per share fair values determined by the Appraisers is
less than or equal to the per share price as set forth in the Drag Along
Notice, then the Prospective Selling Investors may effect the proposed
Sale pursuant to Section 3.2, 3.3 or 3.4, as applicable, at the per share
price set forth in the Drag Along Notice. If the average of the two per
share fair values determined by the Appraisers is greater than the per
share price as set forth in the Drag Along Notice, then the Prospective
Selling Investors may either effect the proposed Sale pursuant to Section
3.2, 3.3 or 3.4, as applicable, at such average per share fair value or
request that a third appraiser be selected, in which case the Prospective
Selling Investors and the Representative shall attempt to agree on a third
Appraiser. If, within three business days, the Prospective Selling
Investors and the Representative cannot agree on a third Appraiser, then
the two Appraisers selected by each of the Prospective Selling Investors
and the Representative shall select a third Appraiser who shall make an
independent appraisal as to the per share fair value of the
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Shares to be sold in the proposed Sale. An average shall be taken of the
two out of three per share fair values determined by the Appraisers that
are closest together, or, if the three per share fair values are
equidistant from one another, an average shall be taken of all three per
share fair values. If such average is less than or equal to the per share
price as set forth in the Drag Along Notice, then the Prospective Selling
Investors may effect the proposed Sale pursuant to Section 3.2, 3.3 or
3.4, as applicable, at such average per share fair value. If such average
is greater than the per share price as set forth in the Drag Along Notice,
then the Prospective Selling Investors may either effect the proposed Sale
pursuant to Section 3.2, 3.3 or 3.4, as applicable, at such average per
share fair value or elect not to proceed with the proposed Sale pursuant
to Section 3.2, 3.3 or 3.4, as applicable. The costs and expenses of each
of the Appraisers will be borne by the Company.
"Appraiser" shall mean an independent business appraiser or
investment banker of recognized standing with knowledge and experience
related to the industry in which the Company operates.
"Xxxx" shall have the meaning set forth in the Preamble.
"Xxxx Investors" shall have the meaning set forth in the Preamble.
"Xxxx Shares" shall mean (a) all shares of Common Stock originally
issued to, or issued with respect to shares originally issued to, or held
by, the Xxxx Investors, whenever issued, including, without limitation,
all shares of Common Stock issued pursuant to the exercise of any Options
and all shares of Common Stock issued upon conversion of any shares of
Preferred Stock, (b) all shares of Preferred Stock originally issued to,
or issued with respect to shares originally issued to, or held by, the
Xxxx Investors, whenever issued (treating such shares of Preferred Stock
as a number of Shares equal to the number of Equivalent Shares represented
by such shares of Preferred Stock for all purposes of this Agreement
except as otherwise specifically set forth herein), and (c) all Options
originally granted or issued to the Xxxx Investors (treating such Options
as a number of Shares equal to the number of Equivalent Shares represented
by such Options for all purposes of this Agreement except as otherwise
specifically set forth herein).
"Bankruptcy Code" shall mean 11 U.S.C. ss.101 et seq., or any
successor provisions thereto.
"Base Price" of any Share, as of any date, shall mean an amount
equal to the lesser of (i) the Contract Price of such Share as of such
date, or (ii) the amount originally paid to the Company for such Share by
the original holder upon issuance thereof, increased from the date of
issuance through the date in question at a non-compounded per annum rate
of six percent.
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"Board" shall have the meaning set forth in Section 2.1.
"Xxxx Stockholder" shall mean Xxxx X. Xxxx, Xxxxxx X. Xxxx, Xxxxx X.
Xxxx and Xxx Xxxx, Xxxxx X. Xxxxxx and Xxxxxx Xxxxxx, and Xxxxxx X. Xxxxx.
"Cause" shall be deemed to exist if a Minority Stockholder: (i)
violates any federal, state or local law or commits any act of dishonesty
involving the Company or any of its subsidiaries if such violation or act
(x) causes material damages to the Company or any of its subsidiaries, or
(y) in the reasonable judgment of the Board, would materially and
adversely affect the Minority Stockholder's ability to perform his duties
for the Company or any of its subsidiaries; (ii) solicits or contacts
customers of the Company or any of its subsidiaries, becomes employed by a
competitor of the Company or any of its subsidiaries or actively and
knowingly assists in the establishment or operation of any competitive
business in violation of any agreement with the Company or any of its
subsidiaries concerning noncompetition; (iii) breaches any agreement with
the Company or any of its subsidiary concerning noncompetition in a manner
other than as described in the foregoing clause (ii) and fails to
discontinue the offending conduct within ten days following receipt of
notice thereof; (iv) knowingly or intentionally breaches any
confidentiality agreement with the Company or any of its subsidiaries; (v)
unintentionally breaches any confidentiality agreement with the Company or
any of its subsidiaries and continues to engage in behavior in violation
of such confidentiality agreement following receipt of notice of such
breach; (v) commits an act of willful misconduct in the course of his
employment with the Company or any of its subsidiaries that causes
material damage to the Company or any of its Subsidiaries; (vi) commits
any act of gross negligence in the course of his employment or breaches in
any material respect any of the terms of his employment with the Company
or any of its subsidiaries if the Minority Stockholder fails to
discontinue the offending conduct within ten days following receipt of
notice thereof and such act of gross negligence or breach has caused
material damage to the Company or any of its subsidiaries. Nothing
contained in this definition or this Agreement shall be deemed to affect
the right of the Company or any of its Subsidiaries to discipline or
discharge a Minority Stockholder and this Cause definition shall be used
solely for purposes of determining the price to be paid for Shares held by
a Minority Stockholder upon termination of his employment which are
purchased in accordance with the terms of this Agreement.
"CCI Stock" shall have the meaning set forth in Section 5.4.
"Change of Control" shall mean any change in the ownership of the
capital stock of the Company if, immediately after giving effect thereto,
the Xxxxxxxx Investors, the Xxxx Investors and the Minority Stockholders
and their Affiliates shall own less than ten percent of the Equivalent
Shares.
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"Closing" shall have the meaning set forth in Section 1.1.
"Code" shall have the meaning set forth in Section 5.4.
"Commission" shall mean the Securities and Exchange Commission.
"Common Stock" shall have the meaning set forth in the recitals.
"Company" shall have the meaning set forth in the Preamble.
"Contract Price," as of any date, of any Share subject to purchase
hereunder, shall mean the aggregate price at which a purchaser and seller
would buy and sell such Share on such date and shall be determined as
follows:
(a) The seller and the purchaser(s) will attempt to agree on the
Contract Price. For those purchaser(s) with whom the seller is able to
agree on the Contract Price, the amount so agreed will be the Contract
Price.
(b) If the seller and any purchaser(s) are unable to agree on the
Contract Price for such Shares, the Contract Price shall be determined by
an Appraiser mutually acceptable to the seller and such purchaser(s). If
the parties cannot agree on an Appraiser, the purchaser(s) and the seller
shall each select an Appraiser and the two Appraisers so selected shall
select the Appraiser who shall determine the Contract Price and the
determination of such Appraiser shall be binding and conclusive on such
parties for purposes hereof. In appraising the Shares subject to purchase,
the Appraiser shall utilize a valuation method based upon the market
values of publicly-held companies which are comparable to the Company. The
Appraiser shall apply such discount as the Appraiser deems appropriate
(but not to exceed 27.5%) for lack of marketability but shall not apply
any discount for minority interests. The seller shall bear one-half of the
costs and expenses of such Appraiser or, if less, an amount equal to ten
percent of the aggregate Contract Price (as determined by such Appraiser)
for all Shares available for purchase from the seller and the purchaser(s)
shall bear the balance of the costs and expenses of such Appraiser.
(c) The Contract Price of the Shares subject to repurchase hereunder
shall be determined as of (i) the date an Offer is made in the event of a
purchase under Section 4.1, or (ii) the date of notice of exercise of an
option to purchase or sell such Shares (as the case may be) in the event
of a purchase pursuant to Section 5; provided, however, that in the event
a purchase or sale option is deferred in accordance with Section 5.2, the
date of determination shall be the date of notice of exercise of an option
on or after the Waiver of Deferral Notice is delivered.
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"Contract Terms" with respect to Shares purchased pursuant hereto
shall mean the following terms of payment:
(a) The purchaser will be required to pay the purchase price for
such Shares in cash or other immediately available funds as of the date of
purchase if the aggregate purchase price for such Shares is $100,000 or
less and, if the Company is the purchaser, such cash payment is permitted
by the Company's Senior Lenders.
(b) If the purchase price for such Shares exceeds $100,000 or the
Company is the purchaser and is prohibited by its Senior Lenders from
making such cash payment, the purchaser will pay the purchase price for
such Shares by delivering to the seller on the date of purchase cash or
other immediately available funds in an amount equal to the greater of
$75,000 or ten percent of the purchase price and the balance of the
purchase price shall be paid by purchaser's delivery to the seller on the
date of purchase of a promissory note with terms as follows:
(i) The remaining purchase price will be payable in 12 equal
consecutive quarterly installments commencing 90 days after the date
of purchase;
(ii) Interest will accrue on the principal balance outstanding
from time to time at a fixed rate per annum equal to the lesser of
(i) the Prime Rate in effect as of the date of purchase, or (ii) 12%
and will be payable together with each installment of principal; and
(iii) The promissory note will be subordinated to the
Company's Senior Lenders on such terms as may be requested by such
Senior Lenders.
(c) The "date of purchase" shall be such date as the seller and the
purchaser(s) shall agree but in no event shall such date of purchase be
more than 20 days after the date of notification of the final
determination of the Contract Price (or, if applicable, the Base Price) of
the Shares being sold.
(d) On the date of purchase, the seller shall deliver to the
purchaser(s) certificates evidencing ownership of the Shares being sold
properly endorsed or with properly executed stock powers, free and clear
of all liens, claims, restrictions and encumbrances other than this
Agreement.
"Convertible Securities" shall mean any evidence of indebtedness,
shares of stock (other than Common Stock) or other securities (other than
Options) which are directly or indirectly convertible into or exchangeable
or exercisable for shares of Common Stock.
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"Cost" shall mean, for any security, the price paid to the issuer
for such security.
"Covered Person" shall have the meaning set forth in Section 7.5.1.
"Disability" shall mean the inability of a Minority Stockholder to
perform his regular duties for the Company or any of its subsidiaries on a
full-time basis as a result of a physical or mental illness or condition,
regardless of the nature or cause thereof, which continues for a period in
excess of 180 consecutive days or 210 days in any consecutive 12 month
period.
"Drag Along Notice" shall have the meaning set forth in Sections
3.2.1, 3.3.1 and 3.4.1.
"Drag Along Sale Percentage" shall have the meaning set forth in
Sections 3.2, 3.3 and 3.4.
"Drag Along Sellers" shall have the meaning set forth in Sections
3.2.1, 3.3.1 and 3.4.1.
"Employee Stock" shall have the meaning set forth in Section 8.2.
"Equivalent Shares" shall mean as to any outstanding shares of
Common Stock, such number of shares of Common Stock, and as to any
outstanding Options or Convertible Securities, the maximum number of
shares of Common Stock for which or into which such Options or Convertible
Securities may at the time be exercised or converted.
"Escrow Agent" shall have the meaning set forth in Section 10.2.
"Estimated Net Offering Price Per Share" shall have the meaning set
forth in Section 7.2.7.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as in
effect from time to time.
"Fair Market Value" shall mean, as of any date, as to any share of
Common Stock, the Board's good faith determination of the fair value of
such share as of the applicable reference date.
"Gain" shall have the meaning set forth in Section 5.4.
"Indemnitee" shall have the meaning set forth in Section 7.5.3.
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"Initial Public Offering" means the initial Public Offering
registered on Form S-1 (or any successor form under the Securities Act).
"Initial Stockholders Agreement" shall have the meaning set forth in
the Recitals.
"Initiating Xxxx Investors" shall have the meaning set forth in
Section 7.1.1.
"Initiating Xxxxxxxx Investors" shall have the meaning set forth in
Section 7.2.1.
"IRS" shall have the meaning set forth in Section 5.4.
"Issuance" shall have the meaning set forth in Section 6.
"Joining Parties" shall have the meaning set forth in Section 14.7.
"Liquidity Event" shall have the meaning set forth in Section 3.6.
"Look-Back Date" shall have the meaning set forth in Section 8.1.
"Look-Back Option" shall have the meaning set forth in Section 8.1.
"Look-Back Valuation" shall have the meaning set forth in Section
8.1.
"Majority Xxxx Investors" shall mean, as of any date, Xxxx Investors
holding a majority of the outstanding Series C Shares held by all Xxxx
Investors.
"Majority Series C Investors" shall mean, as of any date, the
holders of a majority of the Series C Shares outstanding on such date.
"Majority Participating Investors" shall have the meaning set forth
in Sections 7.1.6 and 7.2.6.
"Majority Stockholders" shall mean, as of any date, the holders of a
majority of the Shares outstanding on such date.
"Majority Xxxxxxxx Investors" shall mean, as of any date, Xxxxxxxx
Investors holding a majority of the outstanding Xxxxxxxx Shares held by
all Xxxxxxxx Investors.
"Major Transaction" shall mean, with respect to any entity, (a)
merger or consolidation, whether or not such entity is the surviving
entity (other than a merger effected solely for the reincorporation of
such entity), (b) disposition of properties (whether effected by merger,
sale of assets, lease, equity exchange or otherwise), other
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than in any transaction or series of related transactions involving less
than $100,000, (c) acquisition of or lease of properties (whether effected
by merger, purchase of assets, lease, equity exchange or otherwise), other
than in any transaction or series of related transactions involving less
than $100,000, and (d) borrowing of money (whether in the public or
private markets), obtaining of credit (other than trade credit in the
ordinary course of business), issuance of notes, debentures or securities,
or the refinancing thereof, except to the extent that the aggregate
principal amount of indebtedness of the type described in this clause (d)
at any time outstanding and not approved according to the procedures
described in Section 2.3 hereof does not exceed $100,000.
"Make Whole Amount" shall have the meaning set forth in Section 8.3.
"Members of the Immediate Family" shall mean, with respect to any
individual, each spouse or child or other descendants of such individual,
each trust created for the primary benefit of one or more of the
aforementioned Persons and their spouses and each custodian or guardian of
any property of one or more of the aforementioned Persons in its capacity
as such custodian or guardian.
"Minority Shares" shall mean (a) all shares of Common Stock
originally issued to, or issued with respect to shares originally issued
to, or held by, a Minority Stockholder, whenever issued, including,
without limitation, all shares of Common Stock issued pursuant to the
exercise of any Options and all shares of Common Stock issued upon
conversion of any shares of Preferred Stock, (b) all shares of Preferred
Stock originally issued to, or issued with respect to shares originally
issued to, or held by, a Minority Stockholder, whenever issued (treating
such shares of Preferred Stock as a number of Shares equal to the number
of Equivalent Shares represented by such shares of Preferred Stock for all
purposes of this Agreement except as otherwise specifically set forth
herein), and (c) all Options originally granted or issued to a Minority
Stockholder (treating such Options as a number of Shares equal to the
number of Equivalent Shares represented by such Options for all purposes
of this Agreement except as otherwise specifically set forth herein).
"Minority Sale" shall have the meaning set forth in Section 4.1.1.
"Minority Stockholders" shall have the meaning set forth in the
Preamble.
"Minority Transferor" shall have the meaning set forth in Section
4.1.1.
"Notes" shall have the meaning set forth in Section 6.2.
"Notice of Dispute" shall have the meaning set forth in Section
4.1.6.
"Offer" shall have the meaning set forth in Section 4.1.1.
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"Options" shall mean any options or warrants to subscribe for,
purchase or otherwise acquire either Common Stock or Convertible
Securities.
"Other Securities" shall have the meaning set forth in Section
6.1.3.
"Participating Buyer" shall have the meaning set forth in Section
6.1.2.
"Participating Seller" shall have the meaning set forth in Sections
3.1.2, 3.2.1, 3.3.1 and 3.4.1.
"Participation Notice" shall have the meaning set forth in Section
6.1.1.
"Participation Offerees" shall have the meaning set forth in Section
6.1.1.
"Participation Portion" shall have the meaning set forth in Section
6.1.1.
"Permitted Transferee" shall mean (a) as to each Series C Share, a
Transferee of such Series C Share resulting from a Transfer to an
Affiliated Fund, partner or Affiliate of a holder of Series C Shares, (b)
as to each Xxxxxxxx Share, a Transferee of such Xxxxxxxx Share an
Affiliated Fund, partner or Affiliate of a holder of Xxxxxxxx Shares, and
(c) as to each Minority Share, a Transferee of such Minority Share in
compliance with Sections 4.2.3, 4.2.4 and 4.2.5.
"Person" shall mean any individual, partnership, corporation,
company, association, trust, joint venture, unincorporated organization,
entity or division, or any government, governmental department or agency
or political subdivision thereof.
"Preferred Stock" shall have the meaning set forth in the Recitals.
"Price Per Equivalent Share" shall mean the Board's good faith
determination of the price per Equivalent Share of any Convertible
Securities or Options which are the subject of an Issuance pursuant to
Section 8 hereof.
"Prime Rate" shall mean the rate per annum published in the Wall
Street Journal (or any comparable successor publication) as the Prime Rate
(i.e., the base rate on corporate loans posted by at least 75% of the
nation's 30 largest banks).
"Prospectus Buyer" shall mean any Person.
"Prospective Selling Investor" shall have the meaning set forth in
Sections 3.1, 3.2, 3.3 and 3.4.
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"Prospective Selling Stockholder" shall have the meaning set forth
in Section 4.1.1.
"Prospective Subscriber" shall have the meaning set forth in Section
6.1.1.
"Public Offering" shall mean a public offering and sale of Common
Stock for cash pursuant to an effective registration statement under the
Securities Act.
"Purchase Agreement" shall have the meaning set forth in the
Recitals.
"Qualified Public Offering" shall mean a Public Offering, other than
any Public Offering or sale pursuant to a registration statement on Form
S-8 or comparable form, in which the aggregate price to the public of all
such common stock sold in such offering shall exceed $30,000,000.
"Registrable Bain Securities" shall have the meaning set forth in
Section 7.1.1.
"Registrable Securities" shall mean (a) all shares of Common Stock,
(b) all shares of Common Stock issuable upon exercise of any Option or
Convertible Security and (c) all shares of Common Stock directly or
indirectly issued or issuable with respect to the securities referred to
in clauses (a) or (b) above by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization, in each case constituting Shares.
As to any particular Registrable Securities, such shares shall cease to be
Registrable Securities when (v) such shares shall have been Transferred
pursuant to Section 3.1 (other than Section 3.1.6(i), (ii), (iii) or
(iv)), 3.2, 3.3 or 3.4 hereof, (w) a registration statement with respect
to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in
accordance with such registration statement, (x) such securities shall
have been Transferred pursuant to Rule 144, (y) subject to the provisions
of Section 12 hereof, such securities shall have been otherwise
transferred, new certificates for them not bearing a legend restricting
further transfer shall have been delivered by the Company and subsequent
disposition of them shall not require registration of them under the
Securities Act and such securities may be distributed without volume
limitation or other restrictions on transfer under Rule 144 (including
without application of paragraphs (c), (e) (f) and (h) of Rule 144) or (z)
such securities shall have ceased to be outstanding.
"Registrable Xxxxxxxx Securities" shall have the meaning set forth
in Section 7.2.1.
"Representative" shall have the meaning set forth in the definition
of "Appraisal Process" in this Section 13.2.
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"Rule 144" shall mean Rule 144 under the Securities Act (or any
successor Rule).
"Rule 145 Transaction" shall mean a registration on Form S-4
pursuant to Rule 145 of the Securities Act (or any successor Form or
provision, as applicable).
"Sale" shall have the meaning set forth in Section 3.1. The terms
"Sell" and "Sold" shall reference the sale of Shares pursuant to a "Sale."
"Securities Act" shall mean the Securities Act of 1933, as in effect
from time to time.
"Senior Lenders" shall mean any financial institution providing
credit or financing to the Company whether in the form of term loans,
revolving lines of credit, letters of credit, industrial revenue bonds or
otherwise; provided, however, that "Senior Lenders" shall not include the
Xxxxxxxx Investors.
"Senior Management" shall mean the Chief Executive Officer, Chief
Financial Officer or Chief Operating Officer.
"Series A Preferred" shall have the meaning set forth in the
Recitals.
"Series B Preferred" shall have the meaning set forth in the
Recitals.
"Series C Investors" shall have the meaning set forth in the
Preamble.
"Series C Preferred" shall have the meaning set forth in the
Preamble.
"Series C Shares" shall mean (a) all shares of Series C Preferred
originally issued to, or issued with respect to shares originally issued
to, or held by, the Series C Investors, whenever issued (treating such
shares of Series C Preferred as a number of Shares equal to the number of
Equivalent Shares represented by such shares of Series C Preferred for all
purposes of this Agreement except as otherwise specifically set forth
herein) and (b) all shares of Common Stock issued upon conversion of any
shares of Series C Preferred originally issued to, or held by, the Series
C Investors.
"Shares" shall mean all Series C Shares, Xxxxxxxx Shares, and
Minority Shares.
"Stockholders" shall have the meaning set forth in the Preamble.
"Xxxxxxxx Investors" shall have the meaning set forth in the
Preamble.
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"Xxxxxxxx Shares" shall mean (a) all shares of Common Stock
originally issued to, or issued with respect to shares originally issued
to, or held by, the Xxxxxxxx Investors, whenever issued, including,
without limitation, all shares of Common Stock issued pursuant to the
exercise of any Options and all shares of Common Stock issued upon
conversion of any shares of Preferred Stock, (b) all shares of Preferred
Stock originally issued to, or issued with respect to shares originally
issued to, or held by, the Xxxxxxxx Investors, whenever issued (treating
such shares of Preferred Stock as a number of Shares equal to the number
of Equivalent Shares represented by such shares of Preferred Stock for all
purposes of this Agreement except as otherwise specifically set forth
herein), and (c) all Options originally granted or issued to the Xxxxxxxx
Investors (treating such Options as a number of Shares equal to the number
of Equivalent Shares represented by such Options for all purposes of this
Agreement except as otherwise specifically set forth herein), in each case
excluding, for all purposes of this Agreement other than the provisions of
Section 7.2, all Series C Shares originally issued to, or issued with
respect to shares originally issued to, or held by, the Xxxxxxxx
Investors.
"Subject Minority Shares" shall have the meaning set forth in
Section 8.1.
"Subject Securities" shall have the meaning set forth in Section 6.
"Tag Along Holder" shall have the meaning set forth in Section
3.1.1.
"Tag Along Notice" shall have the meaning set forth in Section
3.1.1.
"Tag Along Offer" shall have the meaning set forth in Section 3.1.2.
"Tag Along Sale Percentage" shall have the meaning set forth in
Section 3.1.1.
"Tag Along Sellers" shall have the meaning set forth in Section
3.1.2.
"Target Net Offering Price Per Share" shall mean, with respect to
any public offering of shares of Common Stock, the net offering price per
share which would result in proceeds to the Bain Investors, if the Bain
Investors were to sell one share of Registrable Bain Securities at such
net offering price per share, equal to $5.00 per share (as adjusted for
stock splits, stock dividends and the like) plus an amount sufficient to
generate an internal rate of return thereon of 50% per annum compounded
quarterly.
"Transfer" shall mean any sale, pledge, assignment, encumbrance or
other transfer or disposition of any Shares to any other Person, whether
directly, indirectly, voluntarily, involuntarily, by operation of law,
pursuant to judicial process or otherwise.
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"Waiver of Deferral Notice" shall have the meaning set forth in
Section 5.2.
14. MISCELLANEOUS.
14.1. Authority; Effect. Each party hereto represents and warrants to and
agrees with each other party that the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized on behalf of such party and do not violate any agreement or other
instrument applicable to such party or by which its assets are bound. This
Agreement does not, and shall not be construed to, give rise to the creation of
a partnership among any of the parties hereto, or to constitute any of such
parties members of a joint venture or other association.
14.2. Notices. Any notices and other communications required or permitted
in this Agreement shall be effective if in writing and (a) delivered personally
or (b) sent (i) by Federal Express, DHL or UPS or (ii) by registered or
certified mail, postage prepaid, in each case, addressed as follows:
If to the Company, to it:
Advanced Telecommunications, Inc.
000 0xx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Attention: Chief Executive Officer
with a copy to:
Piper & Marbury
0000 Xxxxxxxx Xx., X.X.
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
and with a copy to:
Robins, Kaplan, Xxxxxx & Xxxxxx L.L.P.
0000 XxXxxxx Xxxxx
000 XxXxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
If to the Bain Investors, to them:
c/o Bain Capital, Inc.
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Xxx Xxxxxx Xxxxx, 0xx Floor
Boston, Massachusetts 02116
Attention: Xxxxxxx X. Xxxxxx
with a copy to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
If to the Xxxxxxxx Investors, to them:
c/x Xxxxxxxx Partners, L.P.
000 00xx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxx Van Genderen
with a copy to:
Holland & Xxxx
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
X.X. Xxx 0000
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxx, Esq.
If to a Minority Stockholder, to it at the address set forth in the
stock record book of the Company.
Notice to the holder of record of any shares of capital stock shall be
deemed to be notice to the holder of such shares for all purposes hereof.
Unless otherwise specified herein, such notices or other communications
shall be deemed effective (a) on the date received, if personally delivered,
(b) two business days after being sent by Federal Express, DHL or UPS and (c)
three business days after deposit with the U.S. Postal Service, if sent by
registered or certified mail. Each of the parties hereto shall be entitled to
specify a different address by giving notice as aforesaid to each of the other
parties hereto.
14.3. Binding Effect, etc. Except for restrictions on Transfer of Shares
set forth in other agreements, plans or other documents, this Agreement
constitutes the entire agreement of the parties with respect to its subject
matter, supersedes all prior or contemporaneous oral or
-56-
written agreements or discussions with respect to such subject matter, and shall
be binding upon and inure to the benefit of the parties hereto and their
respective heirs, representatives, successors and assigns.
14.4. Descriptive Headings. The descriptive headings of this Agreement are
for convenience of reference only, are not to be considered a part hereof and
shall not be construed to define or limit any of the terms or provisions hereof.
14.5. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one instrument.
14.6. Severability. In the event that any provision hereof would, under
applicable law, be invalid or unenforceable in any respect, such provision shall
be construed by modifying or limiting it so as to be valid and enforceable to
the maximum extent compatible with, and possible under, applicable law. The
provisions hereof are severable, and in the event any provision hereof should be
held invalid or unenforceable in any respect, it shall not invalidate, render
unenforceable or otherwise affect any other provision hereof.
14.7. Joinder. The parties hereto intend that (a) transferees of shares
hereunder, (b) holders of securities of the Company that are not parties hereto
and (c) future holders of securities of the Company (collectively, the "Joining
Parties") may become parties to this Agreement. The parties agree that the
Joining Parties may become parties hereto by executing a joinder agreement and
upon execution of such joinder agreement shall be entitled to rights and subject
to obligations applicable to such Joining Parties hereunder.
14.8. Consent to Amendment and Restatement. By executing this Agreement,
each party hereto consents to this amendment and restatement of the Initial
Stockholders Agreement pursuant to the terms of Section 16.1 of the Initial
Stockholders Agreement.
14.9. Supersession of Prior Registration Rights Agreement. By executing
this Agreement, each party hereto agrees that this Agreement supersedes the
Registration Rights Agreement dated as of February 7, 1997, as amended, by and
among the Company, the Xxxxxxxx Investors and the Holders (as defined therein).
15. GOVERNING LAW, ETC.
15.1. Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic substantive laws of the State of Delaware without
giving effect to any choice or conflict of laws provision or rule that would
cause the application of the domestic substantive laws of any other
jurisdiction.
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15.2. Consent to Jurisdiction. Each party to this Agreement, by its
execution hereof, (a) hereby irrevocably submits to the exclusive jurisdiction
of the state courts of the State of Delaware sitting in the County of Wilmington
or the United States District Court for the District of Delaware for the purpose
of any action, claim, cause of action or suit (in contract, tort or otherwise),
inquiry, proceeding or investigation arising out of or based upon this Agreement
or relating to the subject matter hereof, (b) hereby waives to the extent not
prohibited by applicable law, and agrees not to assert, and agrees not to allow
any of its subsidiaries to assert, by way of motion, as a defense or otherwise,
in any such action, any claim that it is not subject personally to the
jurisdiction of the above-named courts, that its property is exempt or immune
from attachment or execution, that any such proceeding brought in one of the
above-named courts is improper, or that this Agreement or the subject matter
hereof or thereof may not be enforced in or by such court and (c) hereby agrees
not to commence or maintain any action, claim, cause of action or suit (in
contract, tort or otherwise), inquiry, proceeding or investigation arising out
of or based upon this Agreement or relating to the subject matter hereof or
thereof other than before one of the above-named courts nor to make any motion
or take any other action seeking or intending to cause the transfer or removal
of any such action, claim, cause of action or suit (in contract, tort or
otherwise), inquiry, proceeding or investigation to any court other than one of
the above-named courts whether on the grounds of inconvenient forum or
otherwise. Notwithstanding the foregoing, to the extent that any party hereto is
or becomes a party in any litigation in connection with which it may assert
indemnification rights set forth in this agreement, the court in which such
litigation is being heard shall be deemed to be included in clause (a) above.
Each party hereto hereby consents to service of process in any such proceeding
in any manner permitted by Delaware law, and agrees that service of process by
registered or certified mail, return receipt requested, at its address specified
pursuant to Section 14.2 hereof is reasonably calculated to give actual notice.
15.3. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW
WHICH CANNOT BE WAIVED, EACH PARTY HERETO HEREBY WAIVES AND COVENANTS THAT IT
WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO
TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE OR ACTION, CLAIM, CAUSE OF
ACTION OR SUIT (IN CONTRACT, TORT OR OTHERWISE), INQUIRY, PROCEEDING OR
INVESTIGATION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER
HEREOF OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE TRANSACTIONS
CONTEMPLATED HEREBY, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING.
EACH PARTY HERETO ACKNOWLEDGES THAT IT HAS BEEN INFORMED BY THE OTHER PARTIES
HERETO THAT THIS SECTION 15.3 CONSTITUTES A MATERIAL INDUCEMENT UPON WHICH THEY
ARE RELYING AND WILL RELY IN ENTERING INTO THIS AGREEMENT. ANY PARTY HERETO MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 15.3 WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT TO
TRIAL BY JURY.
-58-
15.4. Exercise of Rights and Remedies. No delay of or omission in the
exercise of any right, power or remedy accruing to any party as a result of any
breach or default by any other party under this Agreement shall impair any such
right, power or remedy, nor shall it be construed as a waiver of or acquiescence
in any such breach or default, or of any similar breach or default occurring
later; nor shall any such delay, omission nor waiver of any single breach or
default be deemed a waiver of any other breach or default occurring before or
after that waiver.
-59-
IN WITNESS WHEREOF, each of the undersigned has duly executed this
Agreement (or caused this Agreement to be executed on its behalf by its officer
or representative thereunto duly authorized) under seal as of the date first
above written.
THE COMPANY: ADVANCED TELECOMMUNICATIONS, INC.
By: /s/ Xxxxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxxxx X. Xxxxxxxx,
Chief Executive Officer
BAIN INVESTORS: XXXX CAPITAL FUND VI, L.P.
By: Xxxx Capital Partners VI, L.P.,
its general partner
By: Xxxx Capital Investors VI, Inc.,
its general partner
By:______________________________________
Name:
Title: Managing Director
BCIP ASSOCIATES II
BCIP TRUST ASSOCIATES II
BCIP ASSOCIATES II-B
BCIP TRUST ASSOCIATES II-B
BCIP ASSOCIATES II-C
By: Xxxx Capital, Inc.,
their Managing Partner
PEP INVESTMENTS PTY LTD.
By: Xxxx Capital, Inc.,
its attorney-in-fact
By:______________________________________
Name:
Title: Managing Director
(Signature pages to Amended and Restated
Stockholder Agreement of Advanced Telecommunications, Inc.)
S-1
IN WITNESS WHEREOF, each of the undersigned has duly executed this
Agreement (or caused this Agreement to be executed on its behalf by its officer
or representative thereunto duly authorized) under seal as of the date first
above written.
THE COMPANY: ADVANCED TELECOMMUNICATIONS, INC.
By: _____________________________________
Xxxxxxxx X. Xxxxxxxx,
Chief Executive Officer
BAIN INVESTORS: XXXX CAPITAL FUND VI, L.P.
By: Xxxx Capital Partners VI, L.P.,
its general partner
By: Xxxx Capital Investors VI, Inc.,
its general partner
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
BCIP ASSOCIATES II
BCIP TRUST ASSOCIATES II
BCIP ASSOCIATES II-B
BCIP TRUST ASSOCIATES II-B
BCIP ASSOCIATES II-C
By: Xxxx Capital, Inc.,
their Managing Partner
PEP INVESTMENTS PTY LTD.
By: Xxxx Capital, Inc.,
its attorney-in-fact
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
(Signature pages to Amended and Restated
Stockholder Agreement of Advanced Telecommunications, Inc.)
S-1
RGIP, LLC
By: /s/ X. Xxxxxxxx Malt
-------------------------------------
Name: X. Xxxxxxxx Malt
Title: Managing Member
XXXXXXXX INVESTORS:
XXXXXXXX PARTNERS, L.P.,
By: SGMS, L.P., General Partner
By: Xxxxxxxx Xxxxxx & Xxxxx, Inc.
General Partner
By: _____________________________________
Name:
Title:
XXXXXXXX XXXXXX & XXXXX II, L.P.
a Delaware limited partnership
By: Xxxxxxxx Xxxxxx & Xxxxx LLC,
General Partner
By: _____________________________________
Name:
Title:
THE MINORITY STOCKHOLDERS:
XXXXXXXX PARTNERS, L.P.,
as Nominee for Xxxx X. Xxxxxx, 780
Partners, Xxxxx Xxxxxx, Xxxxxxxx
Xxxxxxxx, Xxxxx Van Genderen, and
Nottingham & Xxxxx Design, Inc.
By: SGMS, L.P., General Partner
By: Xxxxxxxx Xxxxxx & Xxxxx, Inc.
General Partner
By: _____________________________________
Name:
Title:
(Signature pages to Amended and Restated
Stockholder Agreement of Advanced Telecommunications, Inc.)
S-2
RGIP, LLC
By: _____________________________________
Name:
Title:
XXXXXXXX INVESTORS:
XXXXXXXX PARTNERS, L.P.,
By: SGMS, L.P., General Partner
By: Xxxxxxxx Xxxxxx & Xxxxx, Inc.
General Partner
By: /s/ E. Xxxxxxxx Xxxxxxxx
-------------------------------------
Name: E. Xxxxxxxx Xxxxxxxx
Title: Partner
XXXXXXXX XXXXXX & XXXXX II, L.P.
a Delaware limited partnership
By: Xxxxxxxx Xxxxxx & Xxxxx LLC,
General Partner
By: /s/ Xxxxx Van Genderen
-------------------------------------
Name: Xxxxx Van Genderen
Title: Partner
THE MINORITY STOCKHOLDERS:
XXXXXXXX PARTNERS, L.P.,
as Nominee for Xxxx X. Xxxxxx, 780
Partners, Xxxxx Xxxxxx, Xxxxxxxx
Xxxxxxxx, Xxxxx Van Genderen, and
Nottingham & Xxxxx Design, Inc.
By: SGMS, L.P., General Partner
By: Xxxxxxxx Xxxxxx & Xxxxx, Inc.
General Partner
By: /s/ [ILLEGIBLE]
-------------------------------------
Name:
Title:
(Signature pages to Amended and Restated
Stockholder Agreement of Advanced Telecommunications, Inc.)
S-2
ARTESIAN CAPITAL LIMITED PARTNERSHIP II
By: Artesian Management, Inc
-------------------------------------
Its: General Partner
By: Xxxxx X. Xxxxxxx
Its: President
ARTESIAN MANAGEMENT, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
RWJ Co.
By: _____________________________________
Name:
Title:
MOSES FAMILY LIMITED PARTNERSHIP
By: _____________________________________
Name:
Title:
_________________________________________
Xxxxxx Xxxxx
_________________________________________
Xxxxx Xxxxxx
X X XXXXX PARTNERS LLC
By: _____________________________________
Name:
Title:
(Signature pages to Amended and Restated
Stockholder Agreement of Advanced Telecommunications, Inc.)
S-3
ARTESIAN CAPITAL LIMITED PARTNERSHIP II
By: _____________________________________
Name:
Title:
ARTESIAN MANAGEMENT, INC.
By: _____________________________________
Name:
Title:
RWJ Co.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: XXXXX X. XXXXXX
Title: AGENT PARTNER
MOSES FAMILY LIMITED PARTNERSHIP
By: _____________________________________
Name:
Title:
_________________________________________
Xxxxxx Xxxxx
_________________________________________
Xxxxx Xxxxxx
X X XXXXX PARTNERS LLC
By: _____________________________________
Name:
Title:
(Signature pages to Amended and Restated
Stockholder Agreement of Advanced Telecommunications, Inc.)
S-3
ARTESIAN CAPITAL LIMITED PARTNERSHIP II
By: _____________________________________
Name:
Title:
ARTESIAN MANAGEMENT, INC.
By: _____________________________________
Name:
Title:
RWJ Co.
By: _____________________________________
Name:
Title:
MOSES FAMILY LIMITED PARTNERSHIP
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: XXXXXX X. XXXXX
Title: MANAGING MEMBER OF CHESTNUT
SPRINGS, L.L.C., GENERAL PARTNER
/s/ Xxxxxx X. Xxxxx
-----------------------------------------
Xxxxxx Xxxxx
_________________________________________
Xxxxx Xxxxxx
X X XXXXX PARTNERS LLC
By: _____________________________________
Name:
Title:
(Signature pages to Amended and Restated
Stockholder Agreement of Advanced Telecommunications, Inc.)
S-3
ARTESIAN CAPITAL LIMITED PARTNERSHIP II
By: _____________________________________
Name:
Title:
ARTESIAN MANAGEMENT, INC.
By: _____________________________________
Name:
Title:
RWJ Co.
By: _____________________________________
Name:
Title:
MOSES FAMILY LIMITED PARTNERSHIP
By: _____________________________________
Name:
Title:
_________________________________________
Xxxxxx Xxxxx
/s/ Xxxxx Xxxxxx
-----------------------------------------
Xxxxx Xxxxxx
X X XXXXX PARTNERS LLC
By: _____________________________________
Name:
Title:
(Signature pages to Amended and Restated
Stockholder Agreement of Advanced Telecommunications, Inc.)
S-3
ARTESIAN CAPITAL LIMITED PARTNERSHIP II
By: _____________________________________
Name:
Title:
ARTESIAN MANAGEMENT, INC.
By: _____________________________________
Name:
Title:
RWJ Co.
By: _____________________________________
Name:
Title:
MOSES FAMILY LIMITED PARTNERSHIP
By: _____________________________________
Name:
Title:
_________________________________________
Xxxxxx Xxxxx
_________________________________________
Xxxxx Xxxxxx
X X XXXXX PARTNERS LLC
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Member
(Signature pages to Amended and Restated
Stockholder Agreement of Advanced Telecommunications, Inc.)
S-3
MINNESOTA MANAGEMENT PARTNERS I
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: XXXX X. XXXXXX
Title: EXECUTIVE DIRECTOR
SIT INVESTMENT ASSOCIATES, INC.
By: _____________________________________
Name:
Title:
_________________________________________
Xxxxxx Xxxxx & Xxxxxxxxxx Xxxxx,
as Joint Tenants
_________________________________________
Xxxxxx Xxxxx
_________________________________________
Xxxx X. Xxxxxx & Xxxxxxxx Xxxxxx,
as Joint Tenants
_________________________________________
Xxxx X. Xxxxxx
_________________________________________
Xxxxxxx X. Xxxxxxx & Xxxxx X. Xxxxxxx,
Joint Tenants
(Signature pages to Amended and Restated
Stockholder Agreement of Advanced Telecommunications, Inc.)
S-4
MINNESOTA MANAGEMENT PARTNERS I
By: _____________________________________
Name:
Title:
SIT INVESTMENT ASSOCIATES, INC.
By: /s/ Xxxxx X. Xxxx
-------------------------------------
Name: Xxxxx X. Xxxx
Title: V.P. Administration & Deputy
Controller
_________________________________________
Xxxxxx Xxxxx & Xxxxxxxxxx Xxxxx,
as Joint Tenants
_________________________________________
Xxxxxx Xxxxx
_________________________________________
Xxxx X. Xxxxxx & Xxxxxxxx Xxxxxx,
as Joint Tenants
_________________________________________
Xxxx X. Xxxxxx
_________________________________________
Xxxxxxx X. Xxxxxxx & Xxxxx X. Xxxxxxx,
Joint Tenants
(Signature pages to Amended and Restated
Stockholder Agreement of Advanced Telecommunications, Inc.)
S-4
MINNESOTA MANAGEMENT PARTNERS I
By: _____________________________________
Name:
Title:
SIT INVESTMENT ASSOCIATES, INC.
By: _____________________________________
Name:
Title:
/s/ Xxxxxx Xxxxx Xxxxxxxxxx X. Xxxxx
-----------------------------------------
Xxxxxx Xxxxx & Xxxxxxxxxx Xxxxx,
as Joint Tenants
/s/ Xxxxxx Xxxxx
-----------------------------------------
Xxxxxx Xxxxx
_________________________________________
Xxxx X. Xxxxxx & Xxxxxxxx Xxxxxx,
as Joint Tenants
_________________________________________
Xxxx X. Xxxxxx
_________________________________________
Xxxxxxx X. Xxxxxxx & Xxxxx X. Xxxxxxx,
Joint Tenants
(Signature pages to Amended and Restated
Stockholder Agreement of Advanced Telecommunications, Inc.)
S-4
MINNESOTA MANAGEMENT PARTNERS I
By: _____________________________________
Name:
Title:
SIT INVESTMENT ASSOCIATES, INC.
By: _____________________________________
Name:
Title:
_________________________________________
Xxxxxx Xxxxx & Xxxxxxxxxx Xxxxx,
as Joint Tenants
_________________________________________
Xxxxxx Xxxxx
/s/ Xxxx X. Xxxxxx Xxxxxxxx Xxxxxx
-----------------------------------------
Xxxx X. Xxxxxx & Xxxxxxxx Xxxxxx,
as Joint Tenants
/s/ Xxxx X. Xxxxxx
-----------------------------------------
Xxxx X. Xxxxxx
_________________________________________
Xxxxxxx X. Xxxxxxx & Xxxxx X. Xxxxxxx,
Joint Tenants
(Signature pages to Amended and Restated
Stockholder Agreement of Advanced Telecommunications, Inc.)
S-4
MINNESOTA MANAGEMENT PARTNERS I
By: _____________________________________
Name:
Title:
SIT INVESTMENT ASSOCIATES, INC.
By: _____________________________________
Name:
Title:
_________________________________________
Xxxxxx Xxxxx & Xxxxxxxxxx Xxxxx,
as Joint Tenants
_________________________________________
Xxxxxx Xxxxx
_________________________________________
Xxxx X. Xxxxxx & Xxxxxxxx Xxxxxx,
as Joint Tenants
_________________________________________
Xxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxxx & Xxxxx X. Xxxxxxx
[ILLEGIBLE]
-----------------------------------------
Xxxxxxx X. Xxxxxxx & Xxxxx X. Xxxxxxx,
Joint Tenants
(Signature pages to Amended and Restated
Stockholder Agreement of Advanced Telecommunications, Inc.)
S-4
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx ATTY
-----------------------------------------
Xxxxx X. Xxxxxxx
_________________________________________
Xxxxxxxx Xxxxx Xxxxxx &
Xxxxx Xxxxxx, as Joint Tenants
BAYVIEW CAPITAL GROUP, INC.
By: _____________________________________
Name:
Title:
_________________________________________
Xxxxxx X. Xxxxxxx & Xxxx X. Xxxxxxx,
as Joint Tenants
_________________________________________
Xxxx X. Xxxxxxx
_________________________________________
Xxxxxxx X. Xxxxxxx
_________________________________________
Xxxxxxx X. Xxxxxxxxx
(Signature pages to Amended and Restated
Stockholder Agreement of Advanced Telecommunications, Inc.)
S-5
_________________________________________
Xxxxxxx X. Xxxxxxx
_________________________________________
Xxxxx X. Xxxxxxx
/s/ Xxxxxxxx Xxxxx Xxxxxx
/s/ Xxxxx Xxxxxx
-----------------------------------------
Xxxxxxxx Xxxxx Xxxxxx &
Xxxxx Xxxxxx, as Joint Tenants
BAYVIEW CAPITAL GROUP, INC.
By: _____________________________________
Name:
Title:
_________________________________________
Xxxxxx X. Xxxxxxx & Xxxx X. Xxxxxxx,
as Joint Tenants
_________________________________________
Xxxx X. Xxxxxxx
_________________________________________
Xxxxxxx X. Xxxxxxx
_________________________________________
Xxxxxxx X. Xxxxxxxxx
(Signature pages to Amended and Restated
Stockholder Agreement of Advanced Telecommunications, Inc.)
S-5
_________________________________________
Xxxxxxx X. Xxxxxxx
_________________________________________
Xxxxx X. Xxxxxxx
_________________________________________
Xxxxxxxx Xxxxx Xxxxxx &
Xxxxx Xxxxxx, as Joint Tenants
BAYVIEW CAPITAL GROUP, INC.
By: /s/ Bayview Capital Group, Inc.
Name: R. Jeffrey [ILLEGIBLE]
Title: CEO
_________________________________________
Xxxxxx X. Xxxxxxx & Xxxx X. Xxxxxxx,
as Joint Tenants
_________________________________________
Xxxx X. Xxxxxxx
_________________________________________
Xxxxxxx X. Xxxxxxx
_________________________________________
Xxxxxxx X. Xxxxxxxxx
(Signature pages to Amended and Restated
Stockholder Agreement of Advanced Telecommunications, Inc.)
S-5
_________________________________________
Xxxxxxx X. Xxxxxxx
_________________________________________
Xxxxx X. Xxxxxxx
_________________________________________
Xxxxxxxx Xxxxx Xxxxxx &
Xxxxx Xxxxxx, as Joint Tenants
BAYVIEW CAPITAL GROUP, INC.
By: _____________________________________
Name:
Title:
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxx & Xxxx X. Xxxxxxx,
as Joint Tenants
_________________________________________
Xxxx X. Xxxxxxx
_________________________________________
Xxxxxxx X. Xxxxxxx
_________________________________________
Xxxxxxx X. Xxxxxxxxx
(Signature pages to Amended and Restated
Stockholder Agreement of Advanced Telecommunications, Inc.)
S-5
_________________________________________
Xxxxxxx X. Xxxxxxx
_________________________________________
Xxxxx X. Xxxxxxx
_________________________________________
Xxxxxxxx Xxxxx Xxxxxx &
Xxxxx Xxxxxx, as Joint Tenants
BAYVIEW CAPITAL GROUP, INC.
By: _____________________________________
Name:
Title:
/s/ Xxxx X. Xxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxx & Xxxx X. Xxxxxxx,
as Joint Tenants
/s/ Xxxx X. Xxxxxxx
-----------------------------------------
Xxxx X. Xxxxxxx
_________________________________________
Xxxxxxx X. Xxxxxxx
_________________________________________
Xxxxxxx X. Xxxxxxxxx
(Signature pages to Amended and Restated
Stockholder Agreement of Advanced Telecommunications, Inc.)
S-5
_________________________________________
Xxxxxxx X. Xxxxxxx
_________________________________________
Xxxxx X. Xxxxxxx
_________________________________________
Xxxxxxxx Xxxxx Xxxxxx &
Xxxxx Xxxxxx, as Joint Tenants
BAYVIEW CAPITAL GROUP, INC.
By: _____________________________________
Name:
Title:
_________________________________________
Xxxxxx X. Xxxxxxx & Xxxx X. Xxxxxxx,
as Joint Tenants
_________________________________________
Xxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxx
_________________________________________
Xxxxxxx X. Xxxxxxxxx
(Signature pages to Amended and Restated
Stockholder Agreement of Advanced Telecommunications, Inc.)
S-5
_________________________________________
Xxxxxxx X. Xxxxxxx
_________________________________________
Xxxxx X. Xxxxxxx
_________________________________________
Xxxxxxxx Xxxxx Xxxxxx &
Xxxxx Xxxxxx, as Joint Tenants
BAYVIEW CAPITAL GROUP, INC.
By: _____________________________________
Name:
Title:
_________________________________________
Xxxxxx X. Xxxxxxx & Xxxx X. Xxxxxxx,
as Joint Tenants
_________________________________________
Xxxx X. Xxxxxxx
_________________________________________
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxxx
(Signature pages to Amended and Restated
Stockholder Agreement of Advanced Telecommunications, Inc.)
S-5
GHYSELINCK & ASSOCIATES LLC
By: /s/ Xxxx Xxxxxxxxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxxxx Xxxxxxx
Title: Partner
XXXXXXX LIVING TRUST
By:
----------------------------------
Name:
Title:
-------------------------------------
Xxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx Xxxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx & Xxxxxxx X. Xxxxxx,
as Joint Tenants
XXXXXX REAL ESTATE ADVISORS, INC.
By:
----------------------------------
Name:
Title:
-------------------------------------
Xxxxxxxx X. Xxxxxxxx
S-6
GHYSELINCK & ASSOCIATES LLC
By:
----------------------------------
Name:
Title:
XXXXXXX LIVING TRUST
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title:
-------------------------------------
Xxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx Xxxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx & Xxxxxxx X. Xxxxxx,
as Joint Tenants
XXXXXX REAL ESTATE ADVISORS, INC.
By:
----------------------------------
Name:
Title:
-------------------------------------
Xxxxxxxx X. Xxxxxxxx
S-6
GHYSELINCK & ASSOCIATES LLC
By:
----------------------------------
Name:
Title:
XXXXXXX LIVING TRUST
By:
----------------------------------
Name:
Title:
/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx Xxxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx & Xxxxxxx X. Xxxxxx,
as Joint Tenants
XXXXXX REAL ESTATE ADVISORS, INC.
By:
----------------------------------
Name:
Title:
-------------------------------------
Xxxxxxxx X. Xxxxxxxx
S-6
GHYSELINCK & ASSOCIATES LLC
By:
----------------------------------
Name:
Title:
XXXXXXX LIVING TRUST
By:
----------------------------------
Name:
Title:
-------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxx Xxxxxxxxx
-------------------------------------
Xxxxxx Xxxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx & Xxxxxxx X. Xxxxxx,
as Joint Tenants
XXXXXX REAL ESTATE ADVISORS, INC.
By:
----------------------------------
Name:
Title:
-------------------------------------
Xxxxxxxx X. Xxxxxxxx
S-6
GHYSELINCK & ASSOCIATES LLC
By:
----------------------------------
Name:
Title:
XXXXXXX LIVING TRUST
By:
----------------------------------
Name:
Title:
-------------------------------------
Xxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx Xxxxxxxxx
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx & Xxxxxxx X. Xxxxxx,
as Joint Tenants
XXXXXX REAL ESTATE ADVISORS, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: CEO
-------------------------------------
Xxxxxxxx X. Xxxxxxxx
S-6
GHYSELINCK & ASSOCIATES LLC
By:
----------------------------------
Name:
Title:
XXXXXXX LIVING TRUST
By:
----------------------------------
Name:
Title:
-------------------------------------
Xxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx Xxxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx & Xxxxxxx X. Xxxxxx,
as Joint Tenants
XXXXXX REAL ESTATE ADVISORS, INC.
By:
----------------------------------
Name:
Title:
/s/ Xxxxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxxxx X. Xxxxxxxx
S-6
Xxxxx X. Xxxxxxxx, as custodian for
Xxxxx Xxxxxxx Xxxxxxxx under the
Minnesota Uniform Transfers to Minors
Act
/s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx, as custodian for
Xxxxx Xxx-Xxxx Xxxxxxxx under the
Minnesota Uniform Transfers to Minors
Act
/s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxxx
/s/ Xxxxx Xxxxxxx Xxxxxxxx
-------------------------------------
Xxxxx Xxxxxxx Xxxxxxxx
/s/ Xxxxx Xxx-Xxxx Xxxxxxxx
-------------------------------------
Xxxxx Xxx-Xxxx Xxxxxxxx
-------------------------------------
Xxxx X. Xxxx
-------------------------------------
Xxxxxxx Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx
S-7
Xxxxx X. Xxxxxxxx, as custodian for
Xxxxx Xxxxxxx Xxxxxxxx under the
Minnesota Uniform Transfers to Minors
Act
-------------------------------------
Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx, as custodian for
Xxxxx Xxx-Xxxx Xxxxxxxx under the
Minnesota Uniform Transfers to Minors
Act
-------------------------------------
Xxxxx X. Xxxxxxxx
-------------------------------------
Xxxxx Xxxxxxx Xxxxxxxx
-------------------------------------
Xxxxx Xxx-Xxxx Xxxxxxxx
/s/ Xxxx X. Xxxx
-------------------------------------
Xxxx X. Xxxx
-------------------------------------
Xxxxxxx Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx
S-7
Xxxxx X. Xxxxxxxx, as custodian for
Xxxxx Xxxxxxx Xxxxxxxx under the
Minnesota Uniform Transfers to Minors
Act
-------------------------------------
Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx, as custodian for
Xxxxx Xxx-Xxxx Xxxxxxxx under the
Minnesota Uniform Transfers to Minors
Act
-------------------------------------
Xxxxx X. Xxxxxxxx
-------------------------------------
Xxxxx Xxxxxxx Xxxxxxxx
-------------------------------------
Xxxxx Xxx-Xxxx Xxxxxxxx
-------------------------------------
Xxxx X. Xxxx
/s/ Xxxxxxx Xxxxx
-------------------------------------
Xxxxxxx Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx
S-7
Xxxxx X. Xxxxxxxx, as custodian for
Xxxxx Xxxxxxx Xxxxxxxx under the
Minnesota Uniform Transfers to Minors
Act
-------------------------------------
Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx, as custodian for
Xxxxx Xxx-Xxxx Xxxxxxxx under the
Minnesota Uniform Transfers to Minors
Act
-------------------------------------
Xxxxx X. Xxxxxxxx
-------------------------------------
Xxxxx Xxxxxxx Xxxxxxxx
-------------------------------------
Xxxxx Xxx-Xxxx Xxxxxxxx
-------------------------------------
Xxxx X. Xxxx
-------------------------------------
Xxxxxxx Xxxxx
/s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx
S-7
Xxxxx X. Xxxxxxxx, as custodian for
Xxxxx Xxxxxxx Xxxxxxxx under the
Minnesota Uniform Transfers to Minors
Act
-------------------------------------
Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx, as custodian for
Xxxxx Xxx-Xxxx Xxxxxxxx under the
Minnesota Uniform Transfers to Minors
Act
-------------------------------------
Xxxxx X. Xxxxxxxx
-------------------------------------
Xxxxx Xxxxxxx Xxxxxxxx
-------------------------------------
Xxxxx Xxx-Xxxx Xxxxxxxx
-------------------------------------
Xxxx X. Xxxx
-------------------------------------
Xxxxxxx Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx
S-7
/s/ Xxxxxxx X. Xxxxxxx, Xx.
-------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
-------------------------------------
Xxxxxx X. Xxxx & Xxxx Xxxx,
as Joint Tenants
-------------------------------------
Xxxxxx X. Xxxxx
-------------------------------------
Xxxxxx Xxxxxxx
-------------------------------------
Xxxxx Xxxxx-Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxx Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx & Xxxxxx X. Xxxxxx,
as Joint Tenants
-------------------------------------
Xxxxx Xxxxxxxx
S-8
-------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
/s/ Xxxxxx X. Xxxx /s/ Xxxx Xxxxxx Xxxx
-------------------------------------
Xxxxxx X. Xxxx & Xxxx Xxxxxx Xxxx,
as Joint Tenants
-------------------------------------
Xxxxxx X. Xxxxx
-------------------------------------
Xxxxxx Xxxxxxx
-------------------------------------
Xxxxx Xxxxx-Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxx Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx & Xxxxxx X. Xxxxxx,
as Joint Tenants
-------------------------------------
Xxxxx Xxxxxxxx
S-8
-------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
-------------------------------------
Xxxxxx X. Xxxx & Xxxx Xxxx,
as Joint Tenants
/s/ Xxxxxx X. Xxxxx
-------------------------------------
Xxxxxx X. Xxxxx
-------------------------------------
Xxxxxx Xxxxxxx
-------------------------------------
Xxxxx Xxxxx-Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxx Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx & Xxxxxx X. Xxxxxx,
as Joint Tenants
-------------------------------------
Xxxxx Xxxxxxxx
S-8
-------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
-------------------------------------
Xxxxxx X. Xxxx & Xxxx Xxxx,
as Joint Tenants
-------------------------------------
Xxxxxx X. Xxxxx
/s/ Xxxxxx Xxxxxxx
-------------------------------------
Xxxxxx Xxxxxxx
-------------------------------------
Xxxxx Xxxxx-Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxx Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx & Xxxxxx X. Xxxxxx,
as Joint Tenants
-------------------------------------
Xxxxx Xxxxxxxx
S-8
-------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
-------------------------------------
Xxxxxx X. Xxxx & Xxxx Xxxx,
as Joint Tenants
-------------------------------------
Xxxxxx X. Xxxxx
-------------------------------------
Xxxxxx Xxxxxxx
/s/ Xxxxx Xxxxx-Xxxxxxx
-------------------------------------
Xxxxx Xxxxx-Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxx Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx & Xxxxxx X. Xxxxxx,
as Joint Tenants
-------------------------------------
Xxxxx Xxxxxxxx
S-8
-------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
-------------------------------------
Xxxxxx X. Xxxx & Xxxx Xxxx,
as Joint Tenants
-------------------------------------
Xxxxxx X. Xxxxx
-------------------------------------
Xxxxxx Xxxxxxx
-------------------------------------
Xxxxx Xxxxx-Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxx Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx & Xxxxxx X. Xxxxxx,
as Joint Tenants
-------------------------------------
Xxxxx Xxxxxxxx
S-8
-------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
-------------------------------------
Xxxxxx X. Xxxx & Xxxx Xxxx,
as Joint Tenants
-------------------------------------
Xxxxxx X. Xxxxx
-------------------------------------
Xxxxxx Xxxxxxx
-------------------------------------
Xxxxx Xxxxx-Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxx Xxxxxx
-------------------------------------
Xxxxx Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx & Xxxxxx X. Xxxxxx,
as Joint Tenants
-------------------------------------
Xxxxx Xxxxxxxx
S-8
-------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
-------------------------------------
Xxxxxx X. Xxxx & Xxxx Xxxx,
as Joint Tenants
-------------------------------------
Xxxxxx X. Xxxxx
-------------------------------------
Xxxxxx Xxxxxxx
-------------------------------------
Xxxxx Xxxxx-Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxx Xxxxxx
/s/ Xxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx & Xxxxxx X. Xxxxxx,
as Joint Tenants
-------------------------------------
Xxxxx Xxxxxxxx
S-8
-------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
-------------------------------------
Xxxxxx X. Xxxx & Xxxx Xxxx,
as Joint Tenants
-------------------------------------
Xxxxxx X. Xxxxx
-------------------------------------
Xxxxxx Xxxxxxx
-------------------------------------
Xxxxx Xxxxx-Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxx Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx & Xxxxxx X. Xxxxxx,
as Joint Tenants
/s/ Xxxxx Xxxxxxxx
-------------------------------------
Xxxxx Xxxxxxxx
S-8
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxx Xxxxxxxxx
-------------------------------------
Xxx Xxxxxxx
-------------------------------------
Xxxxx Xxxxxxxx
-------------------------------------
Xxxxx X. Xxxx & Xxx X. Xxxx,
as Joint Tenants
-------------------------------------
Xxxxxx Xxxxxxx
-------------------------------------
Xxxxxxx Xxxx & Xxxxx Xxxx,
as Joint Tenants
-------------------------------------
Xxxxx X. Xxxxxxx
-------------------------------------
Xxxx X. Xxxxxx
-------------------------------------
Xxxx X. Xxxxxx
S-9
-------------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxx Xxxxxxxxx
-------------------------------------
Xxxxx Xxxxxxxxx
-------------------------------------
Bob Pentico
-------------------------------------
Arlin Goldberg
-------------------------------------
David G. Cady & Kim S. Cady,
as Joint Tenants
-------------------------------------
Laurie Goldman
-------------------------------------
Stephen Cady & Robin Cady,
as Joint Tenants
-------------------------------------
Diane M. Petroff
-------------------------------------
John M. Monson
-------------------------------------
Gary R. Nelson
S-9
-------------------------------------
Michael A. Donahue
-------------------------------------
David Patterson
/s/ Bob Pentico
-------------------------------------
Bob Pentico
-------------------------------------
Arlin Goldberg
-------------------------------------
David G. Cady & Kim S. Cady,
as Joint Tenants
-------------------------------------
Laurie Goldman
-------------------------------------
Stephen Cady & Robin Cady,
as Joint Tenants
-------------------------------------
Diane M. Petroff
-------------------------------------
John M. Monson
-------------------------------------
Gary R. Nelson
S-9
-------------------------------------
Michael A. Donahue
-------------------------------------
David Patterson
-------------------------------------
Bob Pentico
/s/ Arlin Goldberg 9/17/99
-------------------------------------
Arlin Goldberg
-------------------------------------
David G. Cady & Kim S. Cady,
as Joint Tenants
-------------------------------------
Laurie Goldman
-------------------------------------
Stephen Cady & Robin Cady,
as Joint Tenants
-------------------------------------
Diane M. Petroff
-------------------------------------
John M. Monson
-------------------------------------
Gary R. Nelson
S-9
-------------------------------------
Michael A. Donahue
-------------------------------------
David Patterson
-------------------------------------
Bob Pentico
-------------------------------------
Arlin Goldberg
/s/ David G. Cady /s/ Kim S. Cady
-------------------------------------
David G. Cady & Kim S. Cady,
as Joint Tenants
-------------------------------------
Laurie Goldman
-------------------------------------
Stephen Cady & Robin Cady,
as Joint Tenants
-------------------------------------
Diane M. Petroff
-------------------------------------
John M. Monson
-------------------------------------
Gary R. Nelson
S-9
-------------------------------------
Michael A. Donahue
-------------------------------------
David Patterson
-------------------------------------
Bob Pentico
-------------------------------------
Arlin Goldberg
-------------------------------------
David G. Cady & Kim S. Cady,
as Joint Tenants
/s/ Laurie Goldman
-------------------------------------
Laurie Goldman
-------------------------------------
Stephen Cady & Robin Cady,
as Joint Tenants
-------------------------------------
Diane M. Petroff
-------------------------------------
John M. Monson
-------------------------------------
Gary R. Nelson
S-9
-------------------------------------
Michael A. Donahue
-------------------------------------
David Patterson
-------------------------------------
Bob Pentico
-------------------------------------
Arlin Goldberg
-------------------------------------
David G. Cady & Kim S. Cady,
as Joint Tenants
-------------------------------------
Laurie Goldman
/s/ Stephen Cady /s/ Robin Cady
-------------------------------------
Stephen Cady & Robin Cady,
as Joint Tenants
-------------------------------------
Diane M. Petroff
-------------------------------------
John M. Monson
-------------------------------------
Gary R. Nelson
S-9
-------------------------------------
Michael A. Donahue
-------------------------------------
David Patterson
-------------------------------------
Bob Pentico
-------------------------------------
Arlin Goldberg
-------------------------------------
David G. Cady & Kim S. Cady,
as Joint Tenants
-------------------------------------
Laurie Goldman
-------------------------------------
Stephen Cady & Robin Cady,
as Joint Tenants
/s/ Diane M. Petroff
-------------------------------------
Diane M. Petroff
-------------------------------------
John M. Monson
-------------------------------------
Gary R. Nelson
S-9
-------------------------------------
Michael A. Donahue
-------------------------------------
David Patterson
-------------------------------------
Bob Pentico
-------------------------------------
Arlin Goldberg
-------------------------------------
David G. Cady & Kim S. Cady,
as Joint Tenants
-------------------------------------
Laurie Goldman
-------------------------------------
Stephen Cady & Robin Cady,
as Joint Tenants
-------------------------------------
Diane M. Petroff
/s/ John M. Monson
-------------------------------------
John M. Monson
-------------------------------------
Gary R. Nelson
S-9
-------------------------------------
Michael A. Donahue
-------------------------------------
David Patterson
-------------------------------------
Bob Pentico
-------------------------------------
Arlin Goldberg
-------------------------------------
David G. Cady & Kim S. Cady,
as Joint Tenants
-------------------------------------
Laurie Goldman
-------------------------------------
Stephen Cady & Robin Cady,
as Joint Tenants
-------------------------------------
Diane M. Petroff
-------------------------------------
John M. Monson
/s/ Gary R. Nelson
-------------------------------------
Gary R. Nelson
S-9
/s/ Toni T. Albani
-------------------------------------
Toni T. Albani
-------------------------------------
Greg W. Griffiths
-------------------------------------
Richard W. Smith
S-10
-------------------------------------
Toni T. Albani
/s/ Greg W. Griffiths
-------------------------------------
Greg W. Griffiths
-------------------------------------
Richard W. Smith
S-10
-------------------------------------
Toni T. Albani
/s/ Greg W. Griffiths
-------------------------------------
Greg W. Griffiths
/s/ Richard W. Smith 9/29/99
-------------------------------------
Richard W. Smith
S-10
BAIN INVESTORS (continued): SANKATY HIGH YIELD ASSET PARTNERS, L.P.
By: /s/ Jonathan S. Lavine
----------------------------------
Name: Jonathan S. Lavine
Title: Managing Director
S-11
THE MINORITY STOCKHOLDERS (continued):
BANCBOSTON ROBERTSON STEPHENS INC.
By: /s/ Dana Welch
----------------------------------
Name: Dana Welch
Title: Chief Administrative Officer
BAYVIEW 99 I, L.P.
By: Bayview 99 GP, LLC,
its General Partner
By: /s/ Dana Welch
----------------------------------
Name: Dana Welch
Title: Chief Administrative Officer
BAYVIEW 99 II, L.P.
By: Bayview 99 GP, LLC,
its General Partner
By: /s/ Dana Welch
----------------------------------
Name: Dana Welch
Title: Chief Administrative Officer
-------------------------------------
Clark Callander
-------------------------------------
Richard Innenberg
S-12
THE MINORITY STOCKHOLDERS (continued):
BANCBOSTON ROBERTSON STEPHENS INC.
By:
----------------------------------
Name:
Title:
BAYVIEW 99 I, L.P.
By: Bayview 99 GP, LLC,
its General Partner
By:
----------------------------------
Name:
Title:
BAYVIEW 99 II, L.P.
By: Bayview 99 GP, LLC,
its General Partner
By:
----------------------------------
Name:
Title:
/s/ Clark Callander
-------------------------------------
Clark Callander
/s/ Richard Innenberg
-------------------------------------
Richard Innenberg
S-12
SCHEDULE I
MINORITY STOCKHOLDERS
Stolberg Partners, L.P.,
as Nominee for Gary E. Snyder, 780 Partners, Larry Walker, Lawrence Freeborg,
Peter Van Genderen and Nottingham & Spirk Design, Inc.
Artesian Capital Limited Partnership II
Artesian Management, Inc.
RWJ Co.
Moses Family Limited Partnership
Marvin Moses
Peter Fyhrie
J M Hixon Partners LLC
Minnesota Management Partners I
SIT Investment Associates, Inc.
Joseph Rubin & Marguerite Rubin, as Joint Tenants
Joseph Rubin
John R. Dennis & Maryanne Dennis, as Joint Tenants
John R. Dennis
Winslow W. Bennett & Adele W. Bennett, as Joint Tenants
Kathleen Brown Zerwas & James Zerwas, as Joint Tenants
Bayview Capital Group, Inc.
Ronald W. Mullins & Sara G. Mullins, as Joint Tenants
Sara G. Mullins
Timothy I. Maudlin
Richard E. Struthers
Ghyselinck & Associates LLC
Mullins Living Trust
George T. Holden
Joseph Alexander
Thomas W. Burton & Georgia L. Burton, as Joint Tenants
Burton Real Estate Advisors, Inc.
Clifford D. Williams
{Schedule I to Amended and Restated
Stockholder Agreement to Advanced Telecommunications, Inc.}
I-13
Myrna L. Williams, as custodian for Scott Frasier Williams under the Minnesota
Uniform Transfers to Minors Act
Myrna L. Williams, as custodian for Regan Rea-Anna Williams under the Minnesota
Uniform Transfers to Minors Act
Scott Frasier Williams
Regan Rea-Anna Williams
Paul D. Cady
Sheldon Allen
Michael D. Lopata
Satish C. Tiwari
William E. Shanley, Jr.
Daniel P. Cady & Jane Maland Cady, as Joint Tenants
Steven M. Simon
Robert Pickens
Carol Braun-Wolfram
William S. Whitney
Scott Bussey
Susan E. Rivera & Thomas J. Rivera, as Joint Tenants
James Lawrence
Michael A. Donahue
David Patterson
Bob Pentico
Arlin Goldberg
David G. Cady & Kim S. Cady, as Joint Tenants
Laurie Goldman
Stephen Cady & Robin Cady, as Joint Tenants
Diane M. Petroff
John M. Monson
Gary R. Nelson
Toni T. Albani
Greg W. Griffiths
Richard A. Smith
BancBoston Robertson Stephens Inc.
Bayview 99 I, L.P.
Bayview 99 II, L.P.
Clark Callander
Richard Innenberg
{Schedule I to Amended and Restated
Stockholder Agreement of Advanced Telecommunications, Inc.}
I-14
Common Series A Series B1 Series B2 Series B3
Shares Preferred Preferred Preferred Preferred
OUTSIDE SHAREHOLDERS
Stolberg Partners, L.P. 54,660 4,800,000 1,130,059 1,476,523 480,261
Bain Investors -- -- -- -- --
Stolberg, Meehan & Scano II, L.P. 112,740 -- -- -- 720,391
General Electric Capital Corp (warrants) -- -- -- -- --
Artesian Capital L.P. II 245,640 -- -- -- --
RWJ Co. 97,320 -- -- -- --
Moses Family Limited Partnership 88,260 -- -- -- --
Marvin Moses 17,640 -- -- -- --
Peter Fyhrie 70,440 -- -- -- --
J.M. Hixon Partners LLC 64,620 -- -- -- --
Minnesota Management Partners I 42,180 -- -- -- --
Stolberg Partners, L.P., as Nominee for 780
Partners, a Wisconsin general partnership 0 13,740 13,739 9,843 --
Sit Investment Associates, Inc. 33,720 -- -- -- --
Michael Karangelen -- -- -- -- --
Stolberg Partners, L.P., as Nominee for Larry Walker -- -- 13,739 9,843 --
Stolberg Partners, L.P., as Nominee for Lawrence Freeborg -- 10,320 13,739 -- --
Joseph & Marguerite Rubin 9,600 -- -- -- --
John & Maryanne Dennis 17,220 -- -- -- --
Gary Snyder -- 13,740 -- -- --
Nottingham & Spirk -- 13,740 -- -- --
Adele W. Bennett & Winslow W. Bennett 12,600 -- -- -- --
Imperial Bank (warants) -- -- -- -- --
Stolberg Partners, L.P., as Nominee for Peter Van Genderen -- -- -- 9,843 --
Kathleen Brown Zerwas & James Zerwas 5,760 -- -- -- --
Bayview Capital Group, Inc. 6,660 -- -- -- --
Ronald W. Mullins & Sara G. Mullins 6,300 -- -- -- --
Tim Maudlin 4,140 -- -- -- --
Richard E. Struthers 3,360 -- -- -- --
Ghyselinck & Associates LLC 3,300 -- -- -- --
Mullins Living Trust 2,460 -- -- -- --
Artesian Management, Inc. 1,800 -- -- -- --
George T. Holden 1,740 -- -- -- --
Joseph Alexander 1,620 -- -- -- --
TOTAL PERCENT
Series B4 Series C SHARES (Pre- OWNERSHIP
Preferred Preferred Options) (Pre-Option)
OUTSIDE SHAREHOLDERS
Stolberg Partners, L.P. 227,946 2,000,000 10,169,449 48.11%
Bain Investors -- 7,080,000 7,080,000 33.49%
Stolberg, Meehan & Scano II, L.P. 43,029 -- 876,160 4.14%
General Electric Capital Corp (warrants) -- -- 0 0.00%
Artesian Capital L.P. II -- -- 245,640 1.16%
RWJ Co. -- -- 97,320 0.46%
Moses Family Limited Partnership -- -- 88,260 0.42%
Marvin Moses -- -- 17,640 0.08%
Peter Fyhrie -- -- 70,440 0.33%
J.M. Hixon Partners LLC -- -- 64,620 0.31%
Minnesota Management Partners I -- -- 42,180 0.20%
Stolberg Partners, L.P., as Nominee for 780
Partners, a Wisconsin general partnership 1,660 -- 38,982 0.18%
Sit Investment Associates, Inc. -- -- 33,720 0.16%
Michael Karangelen -- -- 0 0.00%
Stolberg Partners, L.P., as Nominee for Larry Walker 1,660 -- 25,242 0.12%
Stolberg Partners, L.P., as Nominee for Lawrence Freeborg 1,056 -- 25,115 0.12%
Joseph & Marguerite Rubin -- -- 9,600 0.05%
John & Maryanne Dennis -- -- 17,220 0.08%
Gary Snyder -- -- 13,740 0.06%
Nottingham & Spirk -- -- 13,740 0.06%
Adele W. Bennett & Winslow W. Bennett -- -- 12,600 0.06%
Imperial Bank (warants) -- -- 0 0.00%
Stolberg Partners, L.P., as Nominee for Peter Van Genderen 604 -- 10,447 0.05%
Kathleen Brown Zerwas & James Zerwas -- -- 5,760 0.03%
Bayview Capital Group, Inc. -- -- 6,660 0.03%
Ronald W. Mullins & Sara G. Mullins -- -- 6,300 0.03%
Tim Maudlin -- -- 4,140 0.02%
Richard E. Struthers -- -- 3,360 0.02%
Ghyselinck & Associates LLC -- -- 3,300 0.02%
Mullins Living Trust -- -- 2,460 0.01%
Artesian Management, Inc. -- -- 1,800 0.01%
George T. Holden -- -- 1,740 0.01%
Joseph Alexander -- -- 1,620 0.01%
ATI Options/ Vested TOTAL
Warrants Options/ Common Stock SHARES (Post-
(Total) Warrants Equivalents* Options/Warrants)
OUTSIDE SHAREHOLDERS
Stolberg Partners, L.P. -- -- 10,169,449 10,169,449
Bain Investors -- -- 7,080,000 7,080,000
Stolberg, Meehan & Scano II, L.P. -- -- 876,160 876,160
General Electric Capital Corp (warrants) 428,500 428,500 428,500 428,500
Artesian Capital L.P. II -- -- 245,640 245,640
RWJ Co. -- -- 97,320 97,320
Moses Family Limited Partnership -- -- 88,260 88,260
Marvin Moses 58,800 19,620 37,260 76,440
Peter Fyhrie -- -- 70,440 70,440
J.M. Hixon Partners LLC -- -- 64,620 64,620
Minnesota Management Partners I -- -- 42,180 42,180
Stolberg Partners, L.P., as Nominee for 780
Partners, a Wisconsin general partnership -- -- 38,982 38,982
Sit Investment Associates, Inc. -- -- 33,720 33,720
Michael Karangelen 29,160 29,160 29,160 29,160
Stolberg Partners, L.P., as Nominee for Larry Walker -- -- 25,242 25,242
Stolberg Partners, L.P., as Nominee for Lawrence Freeborg -- -- 25,115 25,115
Joseph & Marguerite Rubin 15,480 15,480 25,080 25,080
John & Maryanne Dennis -- -- 17,220 17,220
Gary Snyder -- -- 13,740 13,740
Nottingham & Spirk -- -- 13,740 13,740
Adele W. Bennett & Winslow W. Bennett -- -- 12,600 12,600
Imperial Bank (warants) 12,000 12,000 12,000 12,000
Stolberg Partners, L.P., as Nominee for Peter Van Genderen -- -- 10,447 10,447
Kathleen Brown Zerwas & James Zerwas 7,860 7,860 13,620 13,620
Bayview Capital Group, Inc. -- -- 6,660 6,660
Ronald W. Mullins & Sara G. Mullins -- -- 6,300 6,300
Tim Maudlin -- -- 4,140 4,140
Richard E. Struthers -- -- 3,360 3,360
Ghyselinck & Associates LLC -- -- 3,300 3,300
Mullins Living Trust -- -- 2,460 2,460
Artesian Management, Inc. -- -- 1,800 1,800
George T. Holden -- -- 1,740 1,740
Joseph Alexander -- -- 1,620 1,620
Thomas & Georgia Burton 840 -- -- -- --
Burton Real Estate Advisors, Inc. 300 -- -- -- --
-------------------------------------------------------------------------------------------------------------------------------
SUBTOTAL 904,920 4,851,540 1,171,276 1,506,052 1,200,652
INSIDE SHAREHOLDERS
Cliff D. Williams -- 406,980 76,893 -- --
Paul D. Cady -- 280,000 -- -- --
Sheldon Allen 206,120 -- -- -- --
Richard A. Smith -- -- -- -- 96,052
Michael Lopata 231,000 -- -- -- --
Satish C. Tiwari -- 55,440 13,739 9,843 --
Bill Shanley 123,060 -- -- -- --
Daniel P. Cady & Jane Maland Cady -- 90,000 20,596 -- --
Steven M. Simon 16,200 60,000 13,730 22,147 --
Robert E. Pickens -- 3,480 2,746 -- --
David A. Kunde -- -- -- -- --
Carol L. Braun-Wolfram -- 30,000 10,984 7,440 --
William Whitney 77,040 -- -- -- --
Greg W. Griffiths -- -- 13,730 -- --
Scott Bussey 56,340 -- -- -- --
Thomas J. & Susan E. Rivera -- 30,000 4,119 -- --
Jim Lawrence -- 7,140 -- -- --
Michael A. Donahue -- 6,900 8,238 -- --
David A. Patterson -- 10,320 2,746 -- --
Bob Pentico 40,140 -- -- -- --
Arlin B. Goldberg -- 6,900 2,746 -- --
David G. & Kim S. Cady -- 30,000 4,119 -- --
Laurie A. Goldman -- 13,740 1,098 984 --
Stephen and Robin Cady -- 30,000 -- -- --
Jim Gordon -- -- -- -- --
Diane M. Petroff -- -- 2,746 -- --
Lynne Powers -- -- -- -- --
Maureen Fahey -- -- -- -- --
Janet Darkenwald -- -- -- -- --
John M. Monson -- -- -- 2,460 --
Gary R. Nelson -- -- -- 1,968 --
Gary Sheppard -- -- -- -- --
Todd Kolb -- -- -- -- --
Dianna Dole -- -- -- -- --
Liz Ktytor -- -- -- -- --
Thomas & Georgia Burton -- -- 840 0.00% --
Burton Real Estate Advisors, Inc. -- -- 300 0.00% --
------------------------------------------------------------------------------------------------------------------------------------
SUBTOTAL 275,955 9,080,000 18,990,395 89.83% 551,800
INSIDE SHAREHOLDERS
Cliff D. Williams 5,920 -- 489,793 2.32% 348,240
Paul D. Cady -- -- 280,000 1.32% --
Sheldon Allen -- -- 206,120 0.98% 49,440
Richard A. Smith 1,824 -- 97,876 0.46% 220,020
Michael Lopata -- -- 231,000 1.09% 18,000
Satish C. Tiwari 1,660 -- 80,682 0.38% 90,000
Bill Shanley -- -- 123,060 0.58% 27,000
Daniel P. Cady & Jane Maland Cady 1,587 -- 112,183 0.53% 27,300
Steven M. Simon 2,371 -- 114,448 0.54% 9,000
Robert E. Pickens 211 -- 6,437 0.03% 85,200
David A. Kunde -- -- 0 0.00% 90,000
Carol L. Braun-Wolfram 1,290 -- 49,714 0.24% 37,200
William Whitney -- -- 77,040 0.36% 9,000
Greg W. Griffiths 1,054 -- 14,784 0.07% 51,060
Scott Bussey -- -- 56,340 0.27% 9,000
Thomas J. & Susan E. Rivera 317 -- 34,436 0.16% 27,300
Jim Lawrence -- -- 7,140 0.03% 52,800
Michael A. Donahue 635 -- 15,773 0.07% 37,200
David A. Patterson 211 -- 13,277 0.06% 37,200
Bob Pentico -- -- 40,140 0.19% 9,000
Arlin B. Goldberg 211 -- 9,857 0.05% 37,200
David G. & Kim S. Cady 317 -- 34,436 0.16% 9,000
Laurie A. Goldman 143 -- 15,965 0.08% 19,200
Stephen and Robin Cady -- -- 30,000 0.14% --
Jim Gordon -- -- 0 0.00% 24,000
Diane M. Petroff 211 -- 2,957 0.01% 19,200
Lynne Powers -- -- 0 0.00% 19,200
Maureen Fahey -- -- 0 0.00% 19,200
Janet Darkenwald -- -- 0 0.00% 15,000
John M. Monson 145 -- 2,605 0.01% 9,000
Gary R. Nelson 116 -- 2,084 0.01% 9,000
Gary Sheppard -- -- 0 0.00% 9,000
Todd Kolb -- -- 0 0.00% 9,000
Dianna Dole -- -- 0 0.00% 9,000
Liz Ktytor -- -- 0 0.00% 9,000
Thomas & Georgia Burton -- 840 840
Burton Real Estate Advisors, Inc. -- 300 300
------------------------------------------------------------------------------------------------------------
SUBTOTAL 512,620 19,503,015 19,542,195
INSIDE SHAREHOLDERS
Cliff D. Williams 208,980 698,773 838,033
Paul D. Cady -- 280,000 280,000
Sheldon Allen 29,700 235,820 255,560
Richard A. Smith 46,740 144,616 317,896
Michael Lopata 7,200 238,200 249,000
Satish C. Tiwari -- 80,682 170,682
Bill Shanley 10,800 133,860 150,060
Daniel P. Cady & Jane Maland Cady 16,380 128,563 139,483
Steven M. Simon 5,400 119,848 123,448
Robert E. Pickens 33,720 40,157 91,637
David A. Kunde -- 0 90,000
Carol L. Braun-Wolfram 19,620 69,334 86,914
William Whitney 3,600 80,640 86,040
Greg W. Griffiths 30,600 45,384 65,844
Scott Bussey 5,400 61,740 65,340
Thomas J. & Susan E. Rivera 16,380 50,816 61,736
Jim Lawrence 21,120 28,260 59,940
Michael A. Donahue 19,620 35,393 52,973
David A. Patterson 19,620 32,897 50,477
Bob Pentico 5,400 45,540 49,140
Arlin B. Goldberg 19,620 29,477 47,057
David G. & Kim S. Cady 5,400 39,836 43,436
Laurie A. Goldman 11,520 27,485 35,165
Stephen and Robin Cady -- 30,000 30,000
Jim Gordon 4,800 4,800 24,000
Diane M. Petroff 7,680 10,637 22,157
Lynne Powers 3,840 3,840 19,200
Maureen Fahey 7,680 7,680 19,200
Janet Darkenwald 3,000 3,000 15,000
John M. Monson 2,700 5,305 11,605
Gary R. Nelson 3,600 5,684 11,084
Gary Sheppard 5,400 5,400 9,000
Todd Kolb 5,400 5,400 9,000
Dianna Dole 1,800 1,800 9,000
Liz Ktytor 1,800 1,800 9,000
Julie Dzubay -- -- -- -- -- -- --
Michele Speranza -- -- -- -- -- -- --
Tammy Anderson (Gottas) -- -- -- -- -- -- --
Angela McGregor -- -- -- -- -- -- --
Bob Thompson -- -- -- -- -- -- --
Judith Proell -- -- -- -- -- -- --
Elaine Britt -- -- -- -- -- -- --
Mark Hechtl -- -- -- -- -- -- --
Chris Ammon -- -- -- -- -- -- --
Pete Desrocher -- -- -- -- -- -- --
Alan Keck -- -- -- -- -- -- --
Sally L. Hay -- -- -- -- -- -- --
Tom Hoffman -- -- -- -- -- -- --
Jeff Cammerrer -- -- -- -- -- -- --
Chris Frederiksen -- -- -- -- -- -- --
Toni T. Albani -- -- -- 1,260 -- 76 --
D.J. Ingwaldson -- -- -- -- -- -- --
Tracy Householder -- -- -- -- -- -- --
Corky Raines -- -- -- -- -- -- --
Brian Johnson -- -- -- -- -- -- --
Greg Luvelle -- -- -- -- -- -- --
Darlene Langdon -- -- -- -- -- -- --
Mary Braun -- -- -- -- -- -- --
Ron Davis -- -- -- -- -- -- --
Karen Nystrom -- -- -- -- -- -- --
William Flores -- -- -- -- -- -- --
------------------------------------------------------------------------------------------------------------------------
SUBTOTAL 749,900 1,060,900 178,230 46,102 96,052 18,299 --
========================================================================================================================
GRAND TOTAL 1,654,820 5,912,440 1,349,506 1,552,154 1,296,704 294,254 9,080,000
Julie Dzubay 0 0.00% 9,000 1,800 1,800 9,000
Michele Speranza 0 0.00% 9,000 1,800 1,800 9,000
Tammy Anderson (Gottas) 0 0.00% 9,000 3,600 3,600 9,000
Angela McGregor 0 0.00% 9,000 1,800 1,800 9,000
Bob Thompson 0 0.00% 9,000 1,800 1,800 9,000
Judith Proell 0 0.00% 9,000 1,800 1,800 9,000
Elaine Britt 0 0.00% 9,000 3,000 3,000 9,000
Mark Hechtl 0 0.00% 9,000 3,000 3,000 9,000
Chris Ammon 0 0.00% 9,000 3,000 3,000 9,000
Pete Desrocher 0 0.00% 9,000 3,600 3,600 9,000
Anlan Keck 0 0.00% 9,000 1,800 1,800 9,000
Sally L. Hay 0 0.00% 9,000 1,800 1,800 9,000
Tom Hoffman 0 0.00% 9,000 3,600 3,600 9,000
Jeff Cammerver 0 0.00% 9,000 3,600 3,600 9,000
Chris Frederiksen 0 0.00% 9,000 1,800 1,800 9,000
Toni T. Albani 1,336 0.01% 5,400 5,400 6,736 6,736
D.J. Ingwaldson 0 0.00% 4,500 2,700 2,700 4,500
Tracy Householder 0 0.00% 4,500 2,700 2,700 4,500
Corky Raines 0 0.00% 4,500 900 900 4,500
Brian Johnson 0 0.00% 4,500 900 900 4,500
Greg Luvelle 0 0.00% 4,500 900 900 4,500
Darlene Langdon 0 0.00% 4,500 900 900 4,500
Mary Braun 0 0.00% 4,500 900 900 4,500
Ron Davis 0 0.00% 4,500 900 900 4,500
Karen Nystrom 0 0.00% 3,000 600 600 3,000
William Flores 0 0.00% 1,200 240 240 1,200
--------------------------------------------------------------------------------------------------------------------------------
SUBTOTAL 2,149,483 10.17% 1,630,560 639,360 2,788,843 3,780,043
================================================================================================================================
GRAND TOTAL 21,139,878 100.00% 2,182,360 1,151,980 22,291,858 23,322,238
