EXHIBIT 3(a)(ii)
FIRST AMENDMENT TO AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
(this "AMENDMENT") is made and entered into as of this 10th day of April, 2002
(the "EFFECTIVE DATE"), by and among TCI Solutions, Inc., a Delaware corporation
(the "COMPANY"), the stockholders and option holders listed on Schedule I hereto
(collectively, the "MANAGEMENT SHAREHOLDERS"), the holders of Series A Preferred
Stock of the Company listed on Schedule I hereto (collectively, the "SERIES A
INVESTORS"), and the holders of Series B Preferred Stock of the Company listed
on Schedule I hereto (collectively, the "SERIES B INVESTORS").
RECITALS
WHEREAS, the Company, Management Shareholders, Series A Investors and
Series B Investors entered into that certain Amended and Restated Stockholders
Agreement as of December 21, 2001 (as amended, the "AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT");
WHEREAS, Blue Chip Capital Fund IV Limited Partnership ("BLUE CHIP") has
purchased 6,000,000 shares of Series B Preferred Stock of the Company and
desires to become a party to the Amended and Restated Stockholders Agreement;
and
WHEREAS, the parties hereto desire to amend the Amended and Restated
Stockholders Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual undertakings set forth
herein, the parties hereby agree as follows:
1. Definitions. For purposes of this Amendment, all capitalized terms
used but not defined herein shall have the meanings ascribed thereto in the
Amended and Restated Stockholders Agreement.
2. Admission of New Series B Holder. The parties hereto consent to Blue
Chip being admitted as a "Series B Investor," as defined in the recitals to the
Amended and Restated Stockholders Agreement, and as a "New Series B Holder," as
such term is defined in Section 2.1(b) of the Amended and Restated Stockholders
Agreement. Schedule I to the Amended and Restated Stockholder Agreement, which
lists the Series B Investors, is hereby amended to include Blue Chip and is
amended and restated by Schedule I attached hereto. Blue Chip hereby agrees to
be bound by provisions of the Amended and Restated Stockholders Agreement as a
Series B Investor and a New Series B Holder.
3. Amendment to Section 2.3. Section 2.3 of the Amended and Restated
Stockholders Agreement is hereby amended and restated as follows:
"2.3 OTHER VOTING AGREEMENTS. The Company and Holders agree that
the maximum number of shares of Series B Preferred Stock that will be
sold by the Company shall be 26,653,094 shares and that following the
Closing with Blue Chip to be held on April ___, 0000 (xxx "Xxxxx
Xxxxxxx"), the ownership of the Series B Preferred Stock shall be as set
forth on Schedule II attached hereto. On the Third Closing the Company
will have amended its 2001 Equity Incentive Plan to increase the number
of shares of Common Stock reserved under the Plan to 6,195,000 shares."
4. Amendment of Section 5.4. Subsection (f) is hereby added to Section
5.4 of the Amended and Restated Stockholders Agreement as follows:
"(f) With respect to the appointment of the New Series B Holder
Director in Section 2.1(b), only by written consent of the New Series B
Holder (so long as the New Series B Holder and/or its affiliates own at
least 1,750,000 shares of Series B Preferred Stock, as adjusted for
stock dividends, splits, recapitalizations, combinations and the like
after the Effective Date)."
5. Entire Agreement. Except as otherwise expressly set forth herein,
this Amendment together with the Amended and Restated Stockholders Agreement
embodies the complete agreement and understanding among the parties hereto with
respect to the subject matter hereof and supersedes and preempts any prior
understandings, agreements or representations by or among the parties, written
or oral, which may have related to the subject matter hereof in any way.
6. Benefit and Binding Effect. This Amendment shall be binding upon and
inure to the benefit of the parties and their executors, administrators,
personal representatives, heirs, successors and permitted assigns.
7. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
8. Governing Law. This Amendment shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware, without giving
effect to the choice of law principles thereof.
9. Effective Date. This Amendment shall be effective upon receipt by the
Company of the signatures of a majority in interest of the Management Holders
and the Required Preferred Percentage.
[signature pages to follow]
-2-
[SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment to Amended and Restated Stockholders Agreement as of the day and year
first above written.
TCI SOLUTIONS, INC.
By: /s/ Xxxxxxx X. XxXxxxxx
---------------------------------
Xxxxxxx X. XxXxxxxx
Chief Financial Officer
[SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment to Amended and Restated Stockholders Agreement as of the day and year
first above written.
MANAGEMENT SHAREHOLDERS:
/s/ Xxxxx Xxxxxx
----------------------------
Xxxxx Xxxxxx
/s/ Xxxxx Xxxxxxxx
----------------------------
Xxxxx Xxxxxxxx
/s/ Xxxxxxx XxXxxxxx
----------------------------
Xxxxxxx XxXxxxxx
/s/ Xxxxx Xxxx
----------------------------
Xxxxx Xxxx
[SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment to Amended and Restated Stockholders Agreement as of the day and year
first above written.
/s/ Xxxx Xxxxxxxxxxx
----------------------------------------
XXXX XXXXXXXXXXX
ENVIRONMENTAL & INFORMATION TECHNOLOGY
PRIVATE EQUITY FUND III, a civil
partnership with limitation of liability
established under the laws of the
Federal Republic of Germany
By: Infrastructure and Environmental
Private Equity Management, L.L.C.,
Its General Partner
By: First Analysis IEPEF Management
Company, III, L.L.C., A Member
By: First Analysis Corporation, A
Member
By: /s/ Xxxx Xxxxxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Managing Director
INFRASTRUCTURE AND ENVIRONMENTAL PRIVATE
EQUITY FUND III, L.P.
By: Infrastructure and Environmental
Private Equity Management, L.L.C.,
Its General Partner
By: First Analysis IEPEF Management
Company, III, L.L.C., A Member
By: First Analysis Corporation, A
Member
By: /s/ Xxxx Xxxxxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Managing Director
[SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment to Amended and Restated Stockholders Agreement as of the day and year
first above written.
PRODUCTIVITY FUND IV, L.P.
By: First Analysis Management Company
IV L.L.C., its
General Partner
By: First Analysis Venture Operations
and Research, L.L.C., Managing
Member
By: /s/ Xxxx Xxxxxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Managing Director/Member
PRODUCTIVITY FUND IV ADVISORS FUND, L.P.
By: First Analysis Management Company
IV, L.L.C.
Its: General Partner
By: First Analysis Venture
Operations & Research, L.L.C.
Its: Management Member
By: /s/ Xxxx Xxxxxxxxxxx
------------------------
Name: Xxxx Xxxxxxxxxxx
Its: Managing Director/
Member
[SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment to Amended and Restated Stockholders Agreement as of the day and year
first above written.
ARGENTUM CAPITAL PARTNERS, L.P.
By: B.R. Associates, Inc,
its General Partner
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Chairman
ARGENTUM CAPITAL PARTNERS II, L.P.
By: Argentum Partners II, L.L.C.,
its General Partner
By: Argentum Investments, L.L.C.,
its Managing Member
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Xxxxxx Xxxxxx, Managing Member
TCI ACPII LIMITED PARTNERS, L.P.
By: Argentum Investments, L.L.C.,
its Managing Member
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Xxxxxx Xxxxxx, Managing Member
GUARANTEE & TRUST CO., TTEE XXXXXX
XXXXXX GTC XXX
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx,
Title:
[SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment to Amended and Restated Stockholders Agreement as of the day and year
first above written.
/s/ Xxxxxx Xxxxxx, Xx.
--------------------------------
XXXXXX XXXXXX, XX.
INNOCAL II, L.P.
By: InnoCal Management II, L.P.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxxx III
------------------------------
Name: Xxxxx X. Xxxxxxxx III
Its: Managing Director
[SIGNATURE PAGE TO FIRST AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment to Amended and Restated Stockholders Agreement as of the day and year
first above written.
BLUE CHIP CAPITAL FUND IV LIMITED
PARTNERSHIP
By: Blue Chip Venture Company, Ltd.
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Xxxx X. Xxxxxxx, Director
SCHEDULE I
MANAGEMENT SHAREHOLDERS:
XXXXX XXXXXX
XXXXX XXXXXXXX
XXXXXXX XXXXXXXX
XXXXX XXXX
SERIES A INVESTORS:
ENVIRONMENTAL & INFORMATION TECHNOLOGY PRIVATE
EQUITY FUND III
INFRASTRUCTURE AND ENVIRONMENTAL PRIVATE EQUITY FUND III, L.P.
ARGENTUM CAPITAL PARTNERS, L.P.
ARGENTUM CAPITAL PARTNERS II, L.P.
TCI ACPII LIMITED PARTNERS, L.P.
GUARANTEE & TRUST CO., TTEE XXXXXX XXXXXX GTC XXX
XXXX XXXXXXXXXXX
XXXXXX XXXXXX, XX.
SERIES B INVESTORS:
INNOCAL II, L.P.
PRODUCTIVITY FUND IV, L.P.
PRODUCTIVITY FUND IV ADVISORS FUND, L.P.
ENVIRONMENTAL & INFORMATION TECHNOLOGY PRIVATE
EQUITY FUND III
INFRASTRUCTURE AND ENVIRONMENTAL PRIVATE EQUITY FUND III, L.P.
ARGENTUM CAPITAL PARTNERS, L.P.
ARGENTUM CAPITAL PARTNERS II, L.P.
TCI ACPII LIMITED PARTNERS, L.P.
XXXX XXXXXXXXXXX
GUARANTEE & TRUST CO., TTEE XXXXXX XXXXXX GTC XXX
BLUE CHIP CAPITAL FUND IV LIMITED PARTNERSHIP
SCHEDULE II
SCHEDULE OF SERIES B INVESTORS
ALL SERIES B INVESTORS INVESTMENT PRICE # OF SHARES
---------------------- ----------- -------- -----------
InnoCal II, L.P. ........................ $ 3,500,000 $ 0.50 7,000,000
Productivity Fund IV, L.P. .............. $ 3,722,075 $ 0.50 7,444,150
Productivity Fund IV Advisors Fund, L.P. $ 143,077 $ 0.50 286,154
Argentum Capital Partners II L.P. ....... $ 1,007,749 $ 0.50 2,015,498
Argentum Capital Partners L.P. .......... $ 151,515 $ 0.50 303,030
TCI ACPII Limited Partners L.P. ......... $ 113,212 $ 0.50 226,424
Infrastructure & Environmental Private
Equity Fund, III L.P. ........... $ 571,054 $ 0.50 1,142,108
Environmental & Information Technology
Private Equity Fund III, a German
civil law partnership ........... $ 142,764 $ 0.50 285,527
Xxxx X. Xxxxxxxxxxx ..................... $ 404,938 $ 0.50 809,875
Guarantee & Trust Co., TTEE Xxxxxx
Xxxxxx GTC XXX .................. $ 8,087 $ 0.50 16,174
Common Shareholders ..................... $ 562,077 $ 0.50 1,124,154
Blue Chip Fund IV Limited Partnership ... $ 3,000,000 $ 0.50 6,000,000
----------- -----------
Total Series B Preferred ................ $13,326,547 26,653,094
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