AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated as of December
31, 1996, between FRONT ROYAL, INC., a North Carolina corporation (the
"Company"), and (i) the purchasers of the Company's Class A Common Stock and
Series 1 Warrants (the "First Warrants") listed on the signature pages hereof
(the "Purchasers") pursuant to the Securities Purchase Agreement, dated as of
May 19, 1993, among the Company and the Purchasers (the "Purchase Agreement"),
the holders of the Company's Class A Common Stock listed on the signature pages
hereof (the "Class A Holders") and F.R. Group, Inc., (the parties in foregoing
clause (i) collectively referred to as the "First Parties"), (ii) the purchasers
of those certain units comprised of 6.00% Secured Senior Subordinated Notes and
Class A Common Stock Warrants (the "Second Warrants") listed on the signature
pages hereto (collectively, the "Second Parties"), pursuant to those certain
Subscription Agreements, dated as of June 30, 1994, among the Company and the
Second Parties (collectively, the "Subscription Agreement"), (iii) the holders
of those certain Series 2 Warrants issued on September 23, 1994 and December 22,
1994 (the "Third Warrants"), listed on the signature pages hereof (collectively,
the "Third Parties"), issued in connection with that certain Loan Agreement,
dated as of September 22, 1994, among the Company and the Third Parties (the
"Loan Agreement"), and (iv) the purchasers listed on the signature pages hereof
of those certain units comprised of shares of the Company's Class C Common Stock
(the "Placement Shares"), Class A Common Stock Purchase Warrants (the "Fourth
Warrants") and Rights (the "Rights"), which Rights the Company may, upon
exercise thereof, pay in shares of the Company's Class A Common Stock
(collectively, the "Fourth Parties"), pursuant to the Subscription Agreement
dated as of December 31, 1996 among the Company and the Fourth Parties (the
"Subscription Agreement").
W I T N E S S E T H:
WHEREAS, the Company and the First Parties are parties to that certain
Registration Rights Agreement, dated as of May 19, 1993 (the "Original
Registration Agreement"), pursuant to which the Company granted to the First
Parties certain registration rights under the Securities Act (as defined below)
(the "Registration Rights") with respect to certain shares of the Company's
stock specified therein;
WHEREAS, the Company has granted Registration Rights to the Second Parties
pursuant to the Second Warrants with respect
to the shares of Class A Common Stock issuable on exercise of the Second
Warrants;
WHEREAS, the Company has granted Registration Rights to the Third Parties
pursuant to the Third Warrants with respect to the shares of Class A Common
Stock issuable on exercise of the Third Warrants;
WHEREAS, the Company has agreed to grant Registration Rights to the Fourth
Parties in connection with the Class A Common Stock issuable on conversion of
the Placement Shares, and the shares of Class A Stock issuable on exercise of
the Fourth Warrants and the Rights, on similar terms and conditions as provided
to the First Parties in the Original Registration Rights Agreement;
WHEREAS, the Company has agreed to grant Registration Rights to the holders
(the "Preferred Holders") of the Company's Series A Preferred Stock (the "Series
A Preferred") issued in connection with the acquisition by the Company of
Rockwood Casualty Insurance Company ("Rockwood") with respect to the shares of
Class A Common Stock issuable on conversion of the Series A Preferred, and to
the holders of certain warrants (the "Fifth Warrants") issued by the Company in
connection with the acquisition of Rockwood (the "Rockwood Warrant Holders"),
identical to the rights set forth in this Agreement and the Preferred Holders
and Rockwood Warrant Holders shall have the right to become parties to this
Agreement;
WHEREAS, all of the parties hereto have agreed that it is in the mutual
best interest of each party hereto that this one Agreement (i) amend and restate
in its entirety the Original Registration Rights Agreement, (i) replace in its
entirety the Registration Rights granted to the Second Parties and the Third
Parties in connection with, respectively, (a) the Second Warrants and (b) the
Third Warrants, (iii) grant Registration Rights to the Fourth Parties with
respect to the Class A Common Stock issuable on conversion or exercise of the
Placement Shares, the Fourth Warrants and the Rights and (iv) grant Registration
Rights to the Preferred Holders and the Rockwood Warrant Holders with respect to
the Class A Common Stock issuable on conversion or exercise of the Series A
Preferred and the Fifth Warrants.
NOW, THEREFORE, in consideration of the mutual covenants, conditions and
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
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ARTICLE I
DEFINITIONS
1.01. Certain Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
(a) "Affiliate" means, with respect to any Person (defined below), (i)
any Person controlling, controlled by or under common control with such
Person and (ii) the spouse, siblings, parents, children or grandchildren of
such Person, or any trust or similar entity formed for the benefit of one
or more of such persons.
(b) "Articles of Incorporation" means the Articles of Incorporation of
the Company, as amended from time to time.
(c) "Board of Directors" means the board of directors of the Company
as constituted from time to time.
(d) "Class A Common Stock" means the Company's Class A Common Stock,
no par value.
(e) "Class B Common Stock" means the Company's Class B Common Stock,
no par value.
(f) "Class C Common Stock" means the Company's Class C Common Stock,
no par value.
(g) "Commission" means the Securities and Exchange Commission.
(h) "Common Stock" means (i) the Class A Common Stock, (ii) the Class
B Common Stock, (iii) the Class C Common Stock, (iv) any other capital
stock of any class or classes (however designated) of the Company,
authorized on or after the date hereof, the holders of which shall have the
right, without limitation as to amount, either to all or to a share of the
balance of current dividends and liquidating dividends after the payment of
dividends and distributions on any shares entitled to preference, and the
holders of which shall ordinarily, in the absence of contingencies or in
the absence of any provision to the contrary in the Company's Articles of
Incorporation, be entitled to vote for the election of a majority of
directors of the Company (even though the right so to vote has been
suspended by the happening of such a contingency or provision), and (v) any
other securities into which or for which any of the securities described in
(i), (ii), (iii) or (iv) may be converted or exchanged pursuant to a plan
of recapitalization, reorganization, merger, sale of assets or otherwise.
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(i) "Company" means Front Royal, Inc., a North Carolina corporation,
and its successors and assigns.
(j) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder, as
amended.
(k) "Initial Public Offering" means the first underwritten public
offering of Common Stock of the Company for the account of the Company and
offered on a "firm commitment" or "best efforts" basis pursuant to an
offering registered under the Securities Act with the Commission on Form
S-1, Form SB-l or their then equivalents forms.
(l) "Parties" means, collectively, the First Parties, the Second
Parties, the Third Parties, the Fourth Parties, the Preferred Holders and
the Rockwood Warrant Holders.
(m) "Person" means an individual, corporation, partnership, joint
venture, trust, university or unincorporated organization or a government
or any agency or political subdivision thereof.
(n) "Qualified Public Offering" means a fully under- written, firm
commitment public offering pursuant to an effective registration under the
Securities Act covering the offer and sale by the Company of its Common
Stock in which the aggregate gross proceeds to the Company exceed
$10,000,000 and in which the price per share of such Common Stock equals or
exceeds $8.00 (such price subject to equitable adjustment in the event of
any stock split, stock dividend, combination, reorganization,
reclassification or other similar event).
(o) "Registrable Securities" means:
(i) Registrable Shares, as defined in the Original Registration
Agreement; and
(ii) Shares of Class A Common Stock issued or issuable on exercise of
the Second Warrants, the Third Warrants, the Fourth Warrants and the Fifth
Warrants, the Rights and any shares of Common Stock issued on account of
such Common Stock; and
(iii) Shares of Class A Common Stock issued or issuable on conversion
of the Class C Common Stock, and any shares of Common Stock issued on
account of such Class A Common Stock; and
(iv) Shares of Class A Common Stock that are issued on exercise of the
Rights, and any shares of Common Stock issued on account of such Class A
Common Stock; and
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(v) Shares of Class A Common Stock issued or issuable on conversion of
the Series A Preferred, and any shares of Common Stock issued on account of
such Class A Common Stock;
provided, however, that shares of Common Stock that are Registrable
Securities shall cease to be Registrable Securities (x) upon the
consummation of any sale of such shares pursuant to an effective
registration statement under the Securities Act or Rule 144 under the
Securities Act or (y) at such time as such Registrable Securities become
eligible for sale under Rule 144(k) under the Securities Act.
(p) "Required Demand Percentage" means the number of Registrable
Securities equal to 15% of the aggregate number of shares of Common Stock
outstanding on the date hereof, assuming conversion in full of the Series A
Preferred and exercise in full of all outstanding warrants and options,
other than the Fourth Warrants. As of January 1, 1997, the number of shares
of Common Stock constituting the Required Demand Percentage is 1,947,645 as
of the date hereof.
(q) "Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder, as amended.
(r) "Subsidiary" means any Person of which the Company directly or
indirectly owns securities or other ownership interests having ordinary
voting power to elect a majority of the board of directors or other persons
performing similar functions.
(s) "Warrants" shall mean the Series 1 Warrants, the First Warrants,
the Second Warrants, the Third Warrants, the Fourth Warrants and the Fifth
Warrants.
ARTICLE II
REGISTRATION RIGHTS
2.01. "Piggy-Back" Registrations. If at any time the Company shall
determine to register for its own account or the account of others under the
Securities Act (including in connection with a Qualified Public Offering, the
Initial Public Offering or a demand for registration of any stockholder of the
Company other than any of the Parties) any of its equity securities, other than
on Form S-8 or Form S-4 or their then equivalents relating to shares of Common
Stock to be issued solely in connection with any acquisition of an entity or
business or shares of Common Stock issuable in connection with stock option or
other employee benefit plans, it shall send to each holder of Registrable
Securities, including each holder who has the right to acquire Registrable
Securities, written notice of such determination and if, within 15 days after
receipt of
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such notice, such holder shall so request in writing, the Company shall use its
best efforts to include in such registration statement all or any part of the
Registrable Securities such holder requests to be registered.
If, in connection with any offering involving an underwriting of Common
Stock to be issued by the Company, the managing underwriter shall impose a
limitation on the number of shares of such Common Stock which may be included in
the registration statement because in its judgment, such limitation is necessary
to affect an orderly public distribution, then the Company shall be obligated to
include in such registration statement only such portion of the Registrable
Securities with respect to which such holder has requested inclusion pursuant
hereto as such limitation permits after the inclusion of all shares of Common
Stock to be registered by the Company for its own account; provided, however, as
between the Company, other stockholders holding contractual registration rights
and the holders of Registrable Securities, in no event shall the Registrable
Securities included in such offering be limited to less than 25% of the
aggregate shares offered. Any exclusion of Registrable Securities shall be made
pro rata among such holders of Registrable Securities (or their assigns) seeking
to include such shares, in proportion to the number of such shares sought to be
included by such holders of Registrable Securities (or their assigns). No
incidental right under this Section 2.01 shall be construed to limit any
registration required under Section 2.02. The obligations of the Company under
this Section 2.01 may be waived at any time upon the written consent of holders
of at least two-thirds in interest of the Registrable Securities and shall
expire on the fifth anniversary following the consummation of an Initial Public
Offering.
2.02. Required Registrations. If on any occasion, one or more holders of
the Required Demand Percentage shall notify the Company in writing that it or
they desire to offer or cause to be offered for public sale at least 10% of the
shares of Common Stock outstanding on the date hereof, assuming conversion in
full of the Series A Preferred and exercise in full of all outstanding options
and warrants, other than the Fourth Warrants, having a minimum market value of
at least $2,000,000 before calculation of underwriting discounts and
commissions, the Company will so notify all holders of Registrable Securities,
including all holders who have a right to acquire Registrable Securities. Upon
written request of any holder given within 15 days after the receipt by such
holder from the Company of such notification, the Company will use its best
efforts to cause such of the Registrable Securities as may be requested by any
holder thereof (including the holder or holders giving the initial notice of
intent to offer) to be registered under the Securities Act as expeditiously as
practicable. The Company shall not be required to effect more than two
registrations in any calendar year, nor
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more than four registrations in the aggregate, pursuant to this Section 2.02. If
the Company determines to include shares to be sold by it or by other selling
shareholders (other than any of the Parties) in any registration request
pursuant to this Section 2.02, such registration shall be deemed to have been a
"piggy back" registration under Section 2.01, and not a "demand" registration
under this Section 2.02 if the holders of Registrable Securities are unable to
include in any such registration statement 85% of the Registrable Securities
initially requested for inclusion in such registration statement. The holders of
Registrable Securities may not exercise their rights under this Section 2.02
prior to the earlier of (i) November 19, 1998, or (ii) 180 days after the
effective date of any registration statement covering the Initial Public
Offering, or after the tenth anniversary of such effective date.
2.03. Registrations on Form S-3. In addition to the rights provided the
holders of Registrable Securities in Sections 2.01 and 2.02 above, if the
registration of Registrable Securities under the Securities Act can be effected
on Form S-3 (or any similar form promulgated by the Commission), then upon the
written request of one or more holders of, or Persons owning or having a right
to acquire, the Required Demand Percentage, the Company will so notify each
holder of Registrable Securities, including each holder who has a right to
acquire Registrable Securities, and then, as expeditiously as possible, use its
best efforts to effect qualification and registration under the Securities Act
on Form S-3 of all or such portion of the Registrable Securities as the holder
or holders shall specify; provided, however, the Company shall not be required
to effect a registration pursuant to this Section 2.03 unless the market value
of the Registrable Securities to be sold in any such registration shall be
estimated by the Board of Directors in good faith to be at least $500,000 at the
time of filing such registration statement, and further provided that the
Company shall not be required to effect more than one registration during any
12-month period pursuant to this Section 2.03, or any such registration if the
request for such registration is not made prior to the tenth anniversary of the
date upon which the Company becomes eligible to use Form S-3 (or any successor
form).
2.04. Effectiveness. The Company will prepare and file with the Commission
a registration statement with respect to the Registrable Securities and will use
its best efforts to maintain the effectiveness for up to 90 days (or such
shorter period of time as the underwriters need to complete the distribution of
the registered offering, or one year in the case of a "shelf" registration
statement on Form S-3) of any registration statement pursuant to which any of
the Registrable Securities are being offered, and will prepare and file with the
Commission such amendments and supplements to such registration statement and
the prospectus contained therein for such period as may be reasonably
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necessary to effect the sale of such securities, not to exceed 90 days, and to
the extent necessary to comply with the Securities Act and any applicable state
securities statute or regulation. The Company will also provide each holder of
Registrable Securities with as many copies of the registration statement and
prospectus contained in any such registration statement and all amendments and
supplements thereto as it may reasonably request.
2.05. Indemnification of Holders of Registrable Securities. In the event
that the Company registers any of the Registrable Securities under the
Securities Act, the Company will indemnify and hold harmless each holder and
each underwriter of the Registrable Securities (including their officers,
directors, affiliates and partners) so registered (including any broker or
dealer through whom such shares may be sold) and each Person, if any, who
controls such holder or any such underwriter within the meaning of Section 15 of
the Securities Act from and against any and all losses, claims, damages,
expenses or liabilities, joint or several, to which they or any of them become
subject under the Securities Act, applicable state securities laws or under any
other statute or at common law or otherwise, as incurred, and, except as
hereinafter provided, will reimburse each such holder, each such underwriter and
each such controlling Person, if any, for any legal or other expenses reasonably
incurred by them or any of them in connection with investigating or defending
any actions whether or not resulting in any liability, as incurred, insofar as
such losses, claims, damages, expenses, liabilities or actions arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the registration statement, in any preliminary or amended
preliminary prospectus or in the final prospectus (or the registration statement
or prospectus as from time to time amended or supplemented by the Company) or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading, or any violation by the Company of any rule
or regulation promulgated under the Securities Act or any state securities laws
applicable to the Company and relating to action or inaction required of the
Company in connection with such registration, unless (i) with respect to any
particular holder, underwriter or controlling Person, such untrue statement or
alleged untrue statement or omission or alleged omission was made in such
registration statement, preliminary or amended preliminary prospectus or final
prospectus in reliance upon and in conformity with information furnished in
writing to the Company in connection therewith by any holder or underwriter (or
in the case of any controlling Person by the holder controlled by such
controlling Person) expressly for use therein or (ii) in the case of a sale
directly by such holder of Registrable Securities (including, without
limitation, a sale of such Registrable Securities through any underwriter
retained by such holder of Registrable Securities to
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engage in a distribution solely on behalf of such holder of Registrable
Securities), such untrue statement or alleged untrue statement or omission or
alleged omission was contained in a preliminary prospectus and corrected in a
final or amended prospectus copies of which were delivered to such holder of
Registrable Securities or such underwriter on a timely basis, and such holder of
Registrable Securities failed to deliver a copy of the final or amended
prospectus at or prior to the confirmation of the sale of the Registrable
Securities to the Person asserting any such loss, claim, damage or liability in
any case where such delivery is required by the Securities Act.
Promptly after receipt by any holder of Registrable Securities, any
underwriter or any controlling Person of notice of the commencement of any
action in respect of which indemnity may be sought against the Company, such
holder of Registrable Securities, or such underwriter or such controlling
person, as the case may be, will notify the Company in writing of the
commencement thereof (provided that failure to so notify the Company shall not
relieve the Company from any liability it may have hereunder except and only to
the extent that it has been damaged thereby) and, subject to the provisions
hereinafter stated, the Company shall be entitled to assume the defense of such
action (including the retention of counsel, who shall be counsel reasonably
satisfactory to such holder of Registrable Securities, such underwriter or such
controlling Person, as the case may be), and the payment of expenses insofar as
such action shall relate to any alleged liability in respect of which indemnity
may be sought against the Company.
Such holder of Registrable Securities, any such underwriter or any such
controlling Person shall have the right to employ separate counsel in any such
action and to participate in the defense thereof but the fees and expenses of
such counsel subsequent to any assumption of the defense by the Company shall
not be at the expense of the Company unless the employment of such counsel has
been specifically authorized in writing by the Company; provided, however, that,
if the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be reasonable defenses available to it which are different from
or additional to those available to the indemnifying party or if the interests
of the indemnified party reasonably may be deemed to conflict with the interests
of the indemnifying party, the indemnified party shall have the right to select
not more than one separate counsel and to assume such legal defenses and
otherwise to participate in the defense of such action, with the expenses and
fees of such separate counsel and other expenses related to such participation
to be reimbursed by the indemnifying party as incurred. At any time, any holder
of Registrable Securities may select separate counsel and assume its own legal
defense with the expenses and fees of such separate
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counsel and other expenses related to such separate counsel to be borne by such
holder electing separate counsel. The Company shall not be liable to indemnify
any Person for any settlement of any such action effected without the Company's
written consent. The Company shall not, except with the approval of each party
being indemnified under this Section 2.05, consent to entry of any judgment or
enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to the parties being so
indemnified of a release from all liability in respect to such claim or
litigation.
In order to provide for just and equitable contribution to joint liability
under the Securities Act, applicable state securities laws, or under any other
statute or at common law or otherwise, in any case in which any holder of
Registrable Securities exercising rights under this Article II, or any
controlling person of any such holder, makes a claim for indemnification
pursuant to this Section 2.05 but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction and the expiration
of time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
this Section 2.05 provides for indemnification in such case, then the Company
and such holder will contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (after contribution from others) in
such proportion as is appropriate to reflect the relative fault of the Company
on the one hand and of the holder of Registrable Securities on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of the
holder of Registrable Securities on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company on the one hand or by the holder of
Registrable Securities on the other, and each party's relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission; provided, however, that, in any such case, (A) no such
holder will be required to contribute any amount in excess of the public
offering price of all such Registrable Securities offered by it pursuant to such
registration statement, and (B) no person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
will be entitled to contribution from any person or entity who was not guilty of
such fraudulent misrepresentation.
The indemnities provided in this Section 2.05 shall survive the transfer of
any Registrable Securities by such holder.
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2.06. Indemnification of the Company. In the event that the Company
registers any of the Registrable Securities under the Securities Act, each
holder of the Registrable Securities so registered will indemnify and hold
harmless the Company, each of its directors, each of its officers who have
signed or otherwise participated in the preparation of the registration
statement, each underwriter of the Registrable Securities so registered
(including, without limitation, any broker or dealer through whom such of the
shares may be sold) and each Person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act from and against any and all losses,
claims, damages, expenses or liabilities, joint or several, to which they or any
of them may become subject under the Securities Act, applicable state securities
laws or under any other statute or at common law or otherwise, and, except as
hereinafter provided, will reimburse the Company and each such director,
officer, underwriter or controlling Person for any legal or other expenses
reasonably incurred by them or any of them in connection with investigating or
defending any actions whether or not resulting in any liability, insofar as such
losses, claims, damages, expenses, liabilities or actions arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in the registration statement, in any preliminary or amended
preliminary prospectus or in the final prospectus (or in the registration
statement or prospectus as from time to time amended or supplemented) or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, but only insofar as any such statement or
omission was made in reliance upon and in conformity with information furnished
in writing to the Company in connection therewith by such holder of Registrable
Securities expressly for use therein; provided, however, that such holder's
obligations hereunder shall be limited to an amount equal to the proceeds
received by such holder of Registrable Securities sold in such registration.
Promptly after receipt of notice of the commencement of any action in
respect of which indemnity may be sought against such holder of Registrable
Securities, the Company will notify such holder of Registrable Securities in
writing of the commencement thereof (provided that failure to so notify such
holder shall not relieve such holder from any liability it may have hereunder,
except and only to the extent that it has been damaged thereby), and, subject to
the provisions hereinafter stated, such holder of Registrable Securities shall
be entitled to assume the defense of such action (including the employment of
counsel, who shall be counsel reasonably satisfactory to the Company) and the
payment of expenses insofar as such action shall relate to the alleged liability
in respect of which indemnity may be sought against such holder of Registrable
Securities.
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The Company and each such director, officer, underwriter or controlling
Person shall have the right to employ separate counsel in any such action and to
participate in the defense thereof, but the fees and expenses of such counsel
subsequent to any assumption of the defense by such holder of Registrable
Securities shall not be at the expense of such holder of Registrable Securities
unless employment of such counsel has been specifically authorized in writing by
such holder of Registrable Securities; provided, however, that, if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be reasonable defenses available to it which are different from
or additional to those available to the indemnifying party or if the interests
of the indemnified party reasonably may be deemed to conflict with the interests
of the indemnifying party, the indemnified parties shall have the right to
select not more than one separate counsel and to assume such legal defenses and
otherwise to participate in the defense of such action, with the expenses and
fees of such separate counsel and other expenses related to such participation
to be reimbursed by the indemnifying party as incurred. At any time, the Company
or any such director, officer, underwriter or controlling Person may select
separate counsel and assume its own legal defense with the expenses and fees of
such separate counsel and other expenses related to such separate counsel to be
borne by the Company or such director, officer, underwriter or controlling
Person, as the case may be. Such holder of Registrable Securities shall not be
liable to indemnify any Person for any settlement of any such action effected
without such holder's written consent. No holder of Registrable Securities
shall, except with the approval of each party being indemnified under this
Section 2.06, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to the parties being so indemnified of a release from all
liability in respect to such claim or litigation.
In order to provide for just and equitable contribution to joint liability
under the Securities Act, applicable state securities laws, or under any other
statute or at common law or otherwise, in any case in which the Company
exercising its rights under this Article II, makes a claim for indemnification
pursuant to this Section 2.06, but it is judicially determined (by the entry of
a final judgment or decree by a court of competent jurisdiction and the
expiration of time to appeal or the denial of the last right of appeal) that
such indemnification may not be enforced in such case notwithstanding that this
Section 2.06 provides for indemnification, in such case, then the Company and
such holder will contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (after contribution from others) in
such proportion as is appropriate to reflect the relative fault of the
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Company on the one hand and of the holder of Registrable Securities on the other
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of the
holder of Registrable Securities on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company on the one hand or by the holder of
Registrable Securities on the other, and each party's relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission; provided, however, that, in any such case, (A) no such
holder will be required to contribute any amount in excess of the public
offering price of all such Registrable Securities offered by it pursuant to such
registration statement, and (B) no person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
will be entitled to contribution from any person or entity who was not guilty of
such fraudulent misrepresentation.
2.07. Exchange Act Registration. If the Company at any time shall list any
class of equity securities of the Company on any national securities exchange or
authorize any such class for quotation by any national securities association
and shall register such class of equity securities under the Exchange Act, the
Company will, at its expense, simultaneously list on such exchange and maintain
such listing of, or authorize for quotation and maintain such authorization of,
the equity securities of the Company receivable upon conversion or exercise of
the Class C Common Stock, Warrants, the Series A Preferred and the Rights. If
the Company becomes subject to the reporting requirements of either Section 13
or Section 15(d) of the Exchange Act, the Company will use its best efforts to
file timely with the Commission such information as the Commission may require
under either of said Sections; and in such event, the Company shall use its best
efforts to take all action as may be required as a condition to the availability
of Rule 144 or Rule 144A under the Securities Act (or any successor exemptive
rules hereinafter in effect) with respect to such equity securities. The Company
shall furnish to any holder of Registrable Securities forthwith upon request (i)
a written statement by the Company as to its compliance with the reporting
requirements of Rule 144, (ii) a copy of the most recent annual or quarterly
report of the Company as filed with the Commission and (iii) such other reports
and documents as a holder may reasonably request in availing itself of any rule
or regulation of the Commission allowing a holder to sell any such Registrable
Securities without registration. After the occurrence of the Initial Public
Offering, the Company agrees to use its best efforts to facilitate and expedite
eligible transfers of the Registrable Securities pursuant to Rule 144
-13-
under the Securities Act, which efforts shall include timely notice to its
transfer agent to expedite such transfers of Registrable Securities.
2.08. Damages. The Company recognizes and agrees that the holders of
Registrable Securities will not have an adequate remedy if the Company fails to
comply with this Article II and that damages may not be readily ascertainable,
and the Company expressly agrees that, in the event of such failure, it shall
not oppose an application by any holder of Registrable Securities or any other
Person entitled to the benefits of this Article II requiring specific
performance of any and all provisions hereof or enjoining the Company from
continuing to commit any such breach of this Article II.
2.09. Further Obligations of the Company. Whenever under the preceding
Sections of this Article II, the Company is required hereunder to register
Registrable Securities it agrees that it shall also do the following:
(a) Furnish to each selling holder such number of copies of each
preliminary and final prospectus and such other documents as said holder
may reasonably request to facilitate the public offering of its Registrable
Securities;
(b) Use its best efforts to register or qualify the Registrable
Securities covered by said registration statement under the applicable
securities or "blue sky" laws of such jurisdictions as any selling holder
may reasonably request, to the extent legally required and to do all acts
and things necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by such registration
statement; provided, however, that the Company shall not be obligated to
qualify to do business in any jurisdictions where it is not then so
qualified or to take any action which would subject it to the service of
process in suits other than those arising out of the offer or sale of the
securities covered by the registration statement in any jurisdiction where
it is not then so subject or subject the Company to any material tax in any
such jurisdiction where it is not then so subject;
(c) Furnish to each selling holder a signed counterpart, addressed to
the selling holders, of (i) an opinion of counsel for the Company, dated
the effective date of the registration statement, covering such matters as
such selling holders and the managing underwriter participating in the
disposition may reasonably request and (ii) "comfort" letters signed by the
Company's independent public accountants who have examined and reported on
the Company's financial statements included in the registration statement,
to the extent permitted by the standards of the American Institute of
Certified Public Accountants, covering substantially the same matters with
respect
-14-
to the registration statement (and the prospectus included therein) and (in
the case of the accountants' "comfort" letters) with respect to events
subsequent to the date of the financial statements, as are customarily
covered in opinions of issuer's counsel and in accountants' "comfort"
letters delivered to the underwriters in underwritten public offerings of
securities;
(d) Permit each selling holder of Registrable Securities, his counsel,
any managing underwriter participating in any disposition pursuant to any
registration statement or other representatives to inspect and copy such
corporate documents and records as may reasonably be requested by them;
(e) Furnish to each selling holder of Registrable Securities a copy of
all documents filed with and all correspondence from or to the Commission
in connection with any such offering of securities;
(f) Use its best efforts to insure the obtaining of all necessary
approvals from the National Association of Securities Dealers, Inc.; and
(g) Otherwise use its best efforts to comply with all applicable rules
and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earning statement covering
the period of at least 12 months, but not more than 18 months, beginning
with the first month after the effective date of the registration statement
covering the Initial Public Offering, which earning statement shall satisfy
the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
(h) Use its best efforts to cause all such Registrable Securities
relating to any registration statement to be listed on each securities
exchange or market, if any, on which similar securities issued by the
Company are then listed;
(i) Use its best efforts to provide a transfer agent and registrar for
all such Registrable Securities not later than the effective date of such
registration statement;
(j) Enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the
selling holders of at least a majority of the Registrable Securities being
sold or the underwriters, if any, reasonably request in order to expedite
or facilitate the disposition of such Registrable Securities;
(k) Notify each selling holder of such Registrable Securities,
promptly after it shall receive notice thereof, of the time when such
registration statement has become effective or
-15-
a supplement to any prospectus forming a part of such registration
statement has been filed;
(l) Notify each selling holder of such Registrable Securities of any
request by the Commission for the amending or supplementing of such
registration statement or prospectus or for additional information;
(m) Prepare and file with the Commission, promptly upon the request of
any selling holer of such Registrable Securities, any amendments or
supplements to such registration statement or prospectus which, in the
opinion of counsel selected by the selling holders of a majority of the
Registrable Securities, is required under the Securities Act or the rules
and regulations thereunder in connection with the distribution of
Registrable Securities by such seller;
(n) Prepare and promptly file with the Commission and promptly notify
each seller of such Registrable Securities of the filing of such amendment
or supplement to such registration statement or prospectus as may be
necessary to correct any statements or omissions if, at the time when a
prospectus relating to such securities is required to be delivered under
the Securities Act, any event shall have occurred as the result of which
any such prospectus or any other prospectus as then in effect would include
an untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
in which they were made, not misleading;
(o) Advise each selling holder of such Registrable Securities,
promptly after it shall receive notice or obtain knowledge thereof, of the
issuance of any stop order by the Commission suspending the effectiveness
of such registration statement or the initiation or threatening of any
proceeding for such purpose and promptly use all reasonable efforts to
prevent the issuance of any stop order or to obtain its withdrawal if such
stop order should be issued; and
(p) At least forty-eight hours prior to the filing of any registration
statement or prospectus or any amendment or supplement to such registration
statement or prospectus, furnish a copy thereof to each selling holder of
such Registrable Securities and refrain from filing any such registration
statement, prospectus, amendment or supplement to which counsel selected by
the selling holders of at least a majority of the Registrable Securities
being registered shall have reasonably objected on the grounds that such
amendment or supplement does not comply in all material respects with the
requirements of the Securities Act or the rules and regulations thereunder,
unless, in the case of an amendment or supplement, in the opinion of
counsel for the Company the filing of such amendment or
-16-
supplement is reasonably necessary to protect the Company form any
liabilities under any applicable federal or state law and such filing will
not violate applicable laws.
Whenever under the preceding Sections of this Article II the holders
of Registrable Securities are registering such shares pursuant to any
registration statement, each such holder agrees to (i) provide to the
Company, promptly upon its request, such information and materials as it
may reasonably request in order to effect the registration of such
Registrable Securities and (ii) with respect to the First Warrants,
exercise all First Warrants necessary to obtain the shares of Common Stock
registered on such holder's behalf in any registration statement, such
conversion to be effective at the closing of such offering pursuant to such
registration statement.
2.10. Expenses. In the case of each registration effected under Sections
2.01, 2.02 or 2.03, the Company shall bear all reasonable costs and expenses of
each such registration on behalf of the selling holders of Registrable
Securities, including, but not limited to the Company's printing, legal and
accounting fees and expenses, Commission and NASD filing fees and "blue sky"
fees and expenses and the reasonable fees and disbursements of one counsel for
all the selling holders of Registrable Securities in connection with the
registration of their Registrable Securities; provided, however, that the
Company shall have no obligation to pay or otherwise bear any portion of the
underwriters commissions or discounts attributable to the Registrable Securities
being offered and sold by the holders of Registrable Securities, or the fees and
expenses of more than one counsel for the selling holders of Registrable
Securities in connection with the registration of the Registrable Securities.
The Company shall pay all expenses of the holders of the Registrable Securities
in connection with any registration initiated pursuant to this Article II which
is withdrawn, delayed or abandoned by the Company, except if such withdrawal,
delay or abandonment is caused by the fraud, material misstatement or omission
of a material fact by a holder of Registrable Securities to be included in such
registration.
2.11. Approval of Underwriter. Any managing underwriter engaged in any
registration made pursuant to Section 2.02 shall be a nationally or regionally
recognized firm requiring the approval in writing of the holders of a majority
of the Registrable Securities requesting such registration, which approval shall
not be unreasonably withheld.
2.12. Transferability. For all purposes of Article II of this Agreement,
the holder of Registrable Securities shall include not only all Parties but (i)
any assignee or transferee of the Registrable Securities, or (ii) any general or
limited partner or any officer or director of any of the Parties,
-17-
provided, however, that such assignee or transferee agrees in writing to be
bound by all of the provisions of this Agreement, including, without limitation,
Section 2.13 hereof.
2.13. "Lock-Up" Agreement. (a) Initial Public Offering. Each holder of
Registrable Securities agrees, if so requested by the Company and an underwriter
of Common Stock or other securities of the Company, not to sell, grant any
option or right to buy or sell, or otherwise transfer or dispose of in any
manner, whether in privately-negotiated or open-market transactions, any Common
Stock or other securities of the Company held by it during the 180-day period
following the effective date of a registration statement filed pursuant to the
Initial Public Offering, provided that:
(i) such agreement shall apply only to the Initial Public Offering;
and
(ii) all holders of Registrable Securities, any other security holders
whose securities are included in such registration statement, and all
officers and directors of the Company shall also enter into similar
agreements.
Such "lock-up" agreement shall be in writing and in form and substance
reasonably satisfactory to the Company and such underwriter. The Company may
impose stop-transfer instructions with respect to the shares subject to the
foregoing restrictions until the end of said 180-day period.
No holder of Registrable Securities shall be so restricted unless all
holders are similarly and proportionately restricted.
(b) Lock-Up after Initial Public Offering. Each holder of Registrable
Securities agrees that in the event the Company proposes to offer for sale to
the public any of its equity securities after the Initial Public Offering, and
(1) if such holder of Registrable Securities is an "affiliate" of the Company
(for example, because a stockholder of any of the Parties is a director of the
Company) or otherwise holds beneficially or of record 10% or more of the
outstanding equity securities of the Company; and (2) if requested by the
Company and an underwriter of Common Stock or other securities of the Company;
and (3) if all other "affiliates" and such 10% stockholders similarly situated
are requested by the Company and such underwriter to sign, and actually do sign,
any "Lock-Up Agreement" (as described herein), then it will not sell, grant any
option or right to buy or sell, or otherwise transfer or dispose of in any
manner, to the public in open market transactions, any Common Stock or other
securities of the Company held by it during the 90-day period following the
effective date of the registration statement of the Company filed under the
Securities Act. The Company agrees that
-18-
it will sign a Lock-Up Agreement upon substantially similar terms and conditions
in the event of a registration effected pursuant to Section 2.02 or 2.03 hereof.
Such agreements shall be in writing and in form and substance reasonably
satisfactory to the holder of Registrable Securities, the Company and such
underwriter and pursuant to customary and prevailing terms and conditions. The
Company may impose stop-transfer instructions with respect to the securities
subject to the foregoing restrictions until the end of said 90-day period.
2.14. Hold-Back Agreements. (a) Restrictions on Public Sale by Holders of
Registrable Securities. Each holder of Registrable Securities hereby understands
and agrees that the registration rights pursuant to this Agreement and its
ability to offer and sell Registrable Securities pursuant to a registration
statement are limited by the provisions of the immediately following sentence.
If the Company determines in its good faith judgment that the filing of a
registration statement in accordance with this Article II or the use of any
prospectus would require the disclosure of material information which the
Company has a bona fide business purpose for preserving as confidential or the
disclosure of which would impede the Company's ability to consummate a
significant transaction, upon written notice of such determination by the
Company, the rights of each holder of Registrable Securities to offer, sell or
distribute any Registrable Securities pursuant to a registration statement will
for up to 60 consecutive days in respect of a single such notice in any 12-month
period be suspended until the date upon which the Company notifies each such
holder in writing that suspension of such rights for the grounds set forth in
this clause (a) is no longer necessary.
(b) Limitation on Blackouts. Notwithstanding anything contained herein to
the contrary, the aggregate number of days (whether or not consecutive) during
which the Company may delay the effectiveness of a registration statement or
prevent offerings, sales or distributions by a holder of Registrable Securities
pursuant to clause (a) above shall in no event exceed 90 days during any
12-month period.
2.15. Mergers, Etc. The Company shall not, directly or indirectly, enter
into any merger, consolidation or reorganization in which the Company shall not
be the surviving corporation unless the proposed surviving corporation shall,
prior to such merger, consolidation or reorganization, agree in writing to
assume the obligations of the Company under Article II of this Agreement, and
for that purpose references hereunder to Registrable Securities shall be deemed
to be references to the securities which the holders of Registrable Securities
would be entitled to receive in exchange for Registrable Securities under any
such merger, consolidation or reorganization; provided, however, that the
provisions of this Section 2.15 shall not apply
-19-
in the event of any merger, consolidation or reorganization in which the Company
is not the surviving corporation if all stockholders are entitled to receive in
exchange for their Registrable Securities consideration consisting solely of (i)
cash, (ii) securities of the acquiring corporation which may be immediately sold
to the public without registration under the Securities Act or (iii) securities
of the acquiring corporation which the acquiring corporation has agreed to
register within 90 days of completion of the transaction for resale to the
public pursuant to the Securities Act.
ARTICLE III
MISCELLANEOUS
3.01. No Inconsistent Agreements. The Company will not hereafter enter into
any agreement with respect to its securities which is inconsistent with the
rights granted to the parties to this Agreement hereunder.
3.02. No Waiver; Cumulative Remedies. No failure or delay on the part of
any party to this Agreement in exercising any right, power or remedy hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or remedy preclude any other or further exercise thereof
or the exercise of any other right, power or remedy hereunder. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
3.03. Amendments, Waivers and Consents. Except as otherwise expressly
provided in this Agreement, changes in, termination or amendments of or
additions to this Agreement may be made, and compliance with any covenant or
provision set forth herein may be omitted or waived, if the Company (i) shall
obtain consent thereto in writing from the holder or holders of more than
two-thirds of the Registrable Securities and (ii) shall deliver copies of such
consent in writing to any holders of Registrable Securities who did not execute
such consent; provided that no consents shall be effective to reduce the
percentage required under this Section 3.02, and provided, further that the
written consent of the holder or holders of 75% or more of the Registrable
Securities shall be required to amend this Agreement to reduce the number of
demand registration rights set forth in Section 2.02 or 2.03 or to increase
either the percentage of the outstanding shares of Common Stock constituting a
Required Demand Percentage or the number of shares of Common Stock required
pursuant to Section 2.02 or 2.03 to be offered for sale to effect such demand
registration right. No amendment, consent or waiver shall be effective as
against the Company unless the Company is a party thereto. Any waiver or consent
may be given subject to satisfaction of conditions stated therein and any waiver
or
-20-
consent shall be effective only in the specific instance and for the specific
purpose for which given.
3.04. Addresses for Notices. All notices, requests, demands and other
communications provided for hereunder shall be in writing (including facsimile
communication) and mailed, transmitted by facsimile or delivered (i) if to a
holder of Registrable Securities, at such holder's address for notice as set
forth in the register maintained by the Company and (ii) if to the Company, at
0000 Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxx, XX 00000, attention:
Chief Executive Officer, facsimile no.: (000) 000-0000, or at such other address
as the Company may inform the other parties in writing.
All such notices, requests, demands and other communications (delivery of
which must be accomplished by hand; electronic facsimile transmission; express
overnight courier service; or registered or certified mail, return receipt
requested) shall be considered to be delivered (A) on the date delivered if
delivered by hand or overnight courier, (B) on the date delivered if sent by
facsimile transmission with a copy thereof sent by certified mail, return
receipt requested, postage prepaid) and (C) three days after sent by certified
mail, return receipt requested, postage prepaid.
3.05. Binding Effect; Assignment. This Agreement shall be binding upon and
inure to the benefit of the Company and All Parties and their respective
successors and assigns.
3.06. Severability. The provisions of this Agreement are severable and, in
the event that any court of competent jurisdiction shall determine that any one
or more of the provisions or part of a provision contained in this Agreement or
the terms of the Rights or Warrants shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision or part of a provision of
this Agreement but this Agreement shall be reformed and construed as if such
invalid or illegal or unenforceable provision, or part of a provision, had never
been contained herein, and such provisions or part reformed so that it would be
valid, legal and enforceable to the maximum extent possible.
3.07. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of North Carolina, without
giving effect to choice of laws provisions thereof.
3.08. Headings. Article, section and subsection headings in this Agreement
are included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose.
-21-
3.09. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument.
-22-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
FRONT ROYAL INC.
By: ___________________________________
Name:
Title:
FIRST PARTIES:
Purchasers:
TECHNOLOGY LEADERS L.P.
By: Technology Leaders Management, Inc.
(General Partner)
By: ___________________________________
Name:
Title:
TECHNOLOGY LEADERS F R CORP.
By: ___________________________________
Name:
Title:
VIRGINIA CAPITAL MANAGEMENT, INC.
By: ___________________________________
Name:
Title:
X.X XXXXXXX TRUST
By: ___________________________________
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Co-Trustee
By: ___________________________________
Name: Xxxxxxxxx X. Xxxxxxx
Title: Co-Trustee
___________________________________
Xxxx Xxxxxx, Xx., as Trustee under
Agreement with Xxxxxx Xxxx, dated
December 10, 1941
Class A Holders:
________________________________________
Xxxxxxxx X. Xxxxx
________________________________________
Xxxx X. Xxxxxxx
________________________________________
Xxxx X. Xxxxxxxx
________________________________________
Xxxxxx X. Xxxx, III
________________________________________
Xxxxx X. Page
X. X. XXXXXXX TRUST
By: ___________________________________
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Co-Trustee
By: ___________________________________
Name: Xxxxxxxxx X. Xxxxxxx
Title: Co-Trustee
________________________________________
Xxxxxx X. Xxxxxxx, Xx.
________________________________________
Xxxx X. Xxxxx
XXXX XXXXX XXXXXXXXXX TRUST
By: ___________________________________
Name: Xxxxxx Xxxxxxx
Title: Trustee
XXXX XXXX XXXXXXXXXX TRUST
By: ___________________________________
Name: Xxxxxx Xxxxxxx
Title: Trustee
________________________________________
Xxxx Xxxxxxx Xxxxx
________________________________________
Xxxxxx X. Xxxxx
________________________________________
Xxxxxx X. Xxxxx
________________________________________
Xxxxxxx X. Xxxxxx
________________________________________
Xxxxxxx Xxxxx
________________________________________
Xxxxx X. Xxxxxx
________________________________________
Xxxxxxx Xxxxxxxxx
________________________________________
Xxxxxx X. Xxxxxxx
ATLANTIC VENTURE PARTNERS, II, L.P.
By: ___________________________________
(General Partner)
By: ___________________________________
Name: Xxxxx X. Xxxxxxxxx
Title:
________________________________________
Xxxx Xxxxxx, Xx., as Trustee under
Agreement with Xxxxxx Xxxx, dated
December 10, 1941
________________________________________
X. Xxxxxx Valentine
________________________________________
Xxxxx X. Xxxxxxxxx
________________________________________
Xxxxxx X. Xxxxxxx, Xx.
________________________________________
Xxxx X. Xxxxxxx
________________________________________
Xxxx X. Xxxxxxx
________________________________________
F.R. GROUP, INC.
By: ___________________________________
Name:
Title:
SECOND PARTIES:
---------------
XXXXXX X. XXXXXXX TRUST
By: ___________________________________
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Co-Trustee
___________________________________
Name: Xxxxxxxxx X. Xxxxxxx
Title: Co-Trustee
________________________________________
Xxxxxx X. Xxxxxxx, Xx.
________________________________________
Xxxx X. Xxxxx
XXXX XXXX XXXXXXXXXX TRUST
By: ___________________________________
Name: Xxxxxx Xxxxxxx
Title: Trustee
NOAH XXXXX XXXXXXXXXX TRUST
By: ___________________________________
Name: Xxxxxx Xxxxxxx
Title: Trustee
________________________________________
Xxxx Xxxxxxx Xxxxx
________________________________________
Xxxxxx X. Xxxxx
ATLANTIC VENTURE PARTNERS II, L.P.
By: ___________________________________
(General Partner)
By: ___________________________________
Name:
Title:
________________________________________
Xxxx Xxxxxx, Xx., as Trustee under
Agreement with Xxxxxx Xxxx, dated
December 10, 1941
________________________________________
Xxxxx X. Xxxxxxxxx
________________________________________
Xxxx X. Xxxxxxx
TECHNOLOGY LEADERS L.P.
By: Technology Leaders Management, Inc.
(General Partner)
By: ___________________________________
Name:
Title:
Xxxxxxx Capital, L.P.
By: Virginia Capital Management, Inc.
(General Partner)
By: ___________________________________
Name:
Title:
________________________________________
J. Xxxx Xxxxx
________________________________________
Xxxxxxx Xxxxxx
XXXXXXX XXXXXXXX POUR OFF TRUST
By: ___________________________________
Name: Xxxxxxx Xxxxxxxx
Title: Trustee
________________________________________
Xxxxx X. Xxxxxx
________________________________________
Xxxxxxx Kvetchmer
TECHNOLOGY LEADERS OFFSHORE C.V.
By: Technology Leaders Management, Inc.
(General Partner)
By: ___________________________________
Name:
Title:
________________________________________
Xxxxx X. Xxxxx
THIRD PARTIES:
--------------
SIRROM CAPITAL, L.P.
By: Sirrom Corporation
(General Partner)
By: ___________________________________
Name:
Title:
TECHNOLOGY LEADERS, L.P.
By: Technology Leaders Management, Inc.
(General Partner)
By: ___________________________________
Name:
Title:
Xxxxxxx Capital, L.P.
By: Virginia Capital Management, Inc.
(General Partner)
By: ___________________________________
Name:
Title:
________________________________________
Xxxxxxx Xxxxxxxx
XXXXXX X. XXXXXXX TRUST
By: ___________________________________
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Co-Trustee
By: ___________________________________
Name: Xxxxxxxxx X. Xxxxxxx
Title: Co-Trustee
________________________________________
J. Xxxx Xxxxx
________________________________________
Xxxxxxx Xxxxxxxxxx
FOURTH PARTIES:
---------------
XXXXX GLOBAL INVESTMENTS, LTD.
By:
By: ___________________________________
Name:
Title:
REMINGTON INVESTMENT STRATEGIES, L.P.
By:
By: ___________________________________
Name:
Title:
HIGH RIDGE CAPITAL PARTNERS
LIMITED PARTNERSHIP
By:
By: ___________________________________
Name:
Title:
[See Attached Signature Pages for
additional Fourth Parties]
Additional Signature Page
to
Amended and Restated Registration Rights Agreement
The undersigned has executed the foregoing Amended and Restated Registration
Rights Agreement as a Fourth Party thereto.
Name of Party: ______________________________________________
By: ____________________________________________
Name:
Title:
Additional Signature Page
to
Rights Agreement
The undersigned has executed the foregoing Rights Agreement as a PARTY thereto.
Name of Party: ______________________________________________
By: ____________________________________________
Name:
Title:
