INVESTORS AGREEMENT
INVESTORS AGREEMENT (the "Agreement"), dated as of December 23, 1998,
between Xxxxxx Communications Corporation, an Oklahoma corporation (together
with any successors and assigns, the "Company"), Xxxxxx XX Limited Partnership,
an Oklahoma limited partnership (the "Partnership"), and the investors
designated as Purchasers on the signature page hereto (individually, a
"Purchaser" and collectively, the "Purchasers").
WHEREAS, each Purchaser has executed a Subscription Agreement, dated as of
December 23, 1998, pursuant to which the Purchasers have subscribed for the
purchase of an aggregate of 30,000 Units, each Unit consisting of one share of
the Company's Class F Preferred Stock, par value $1.00 per share (the "Preferred
Stock"), and one common stock purchase warrant (each a "Warrant" and
collectively, the "Warrants") for the purchase of shares of the Company's Class
A common stock, par value $.001 per share (the "Common Stock") (the Common Stock
issuable upon exercise of the Warrants being referred to herein as the "Warrant
Shares");
WHEREAS, the Company has agreed to amend its certificate of incorporation
(the "Certificate of Incorporation") and to file a certificate of designation
for the Preferred Stock (the "Certificate of Designation") with the office of
the Secretary of State of Oklahoma in order to reflect, among other things, the
authorization of the Preferred Stock; and
WHEREAS, the Company, the Partnership and the Purchasers desire to enter
into this Agreement to set forth, among other things, certain agreements with
respect to the Preferred Stock, Warrants and Warrant Shares, including, without
limitation, the terms and conditions on which they may be transferred;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereto agree as follows:
ARTICLE I
GENERAL PROVISIONS REGARDING
PREFERRED STOCK, WARRANTS, AND WARRANT SHARES
I.1 TERMS OF PREFERRED STOCK; CERTIFICATE OF DESIGNATION. The
Certificate of Designation for the Preferred Stock to be filed with the office
of the Secretary of State of
Oklahoma shall be in the form, and contain the terms and provisions, as set
forth in the form of Certificate of Designation which is attached hereto as
Exhibit A.
I.2 PREFERRED STOCK CERTIFICATE. The Company will issue and deliver a
certificate or certificates ("Preferred Stock Certificate") to each Purchaser
which shall evidence the number of shares of Preferred Stock purchased by each
Purchaser ("Preferred Stock Certificate"). Each Preferred Stock Certificate
shall be in registered form only and shall be dated the date of issuance by the
Company.
I.3 WARRANT CERTIFICATE. The Company will issue and deliver to each
Purchaser a certificate or certificates (the "Warrant Certificates") evidencing
the number of Warrants purchased pursuant to the Subscription Agreement which
shall be substantially in the form of the Warrant Certificate attached as
Exhibit B hereto). Each Warrant Certificate shall be in registered form only
and shall be dated the date of issuance by the Company.
I.4 RESTRICTIVE LEGENDS. Each Preferred Stock Certificate, each Warrant
Certificate and, if applicable, each certificate evidencing Warrant Shares shall
bear the following legend, or contain words of similar import:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE 'ACT'), OR UNDER ANY STATE SECURITIES OR 'BLUE
SKY' LAWS. SAID SECURITIES MAY NOT BE SOLD, TRANSFERRED, ASSIGNED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF, UNLESS AND UNTIL
REGISTERED UNDER THE ACT AND THE RULES AND REGULATIONS THEREUNDER AND
ALL APPLICABLE STATE SECURITIES OR 'BLUE SKY' LAWS OR EXEMPTED
THEREFROM UNDER THE ACT AND ALL APPLICABLE STATE SECURITIES OR 'BLUE
SKY' LAWS.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO AN
INVESTORS AGREEMENT DATED AS OF DECEMBER 23, 1998, A COPY OF WHICH IS
ON FILE AT THE OFFICES OF THE COMPANY AND WILL BE FURNISHED BY THE
COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST. SUCH AGREEMENT
PROVIDES, AMONG OTHER THINGS, FOR CERTAIN RIGHTS TO SELL THE
SECURITIES REPRESENTED BY THIS CERTIFICATE, AND THAT UNDER CERTAIN
CIRCUMSTANCES, THE HOLDER HEREOF MAY BE REQUIRED TO SELL THE
SECURITIES REPRESENTED BY THIS CERTIFICATE. BY ACCEPTANCE OF THIS
CERTIFICATE, EACH HOLDER HEREOF AGREES TO BE BOUND BY THE PROVISIONS
OF SUCH AGREEMENT. THE COMPANY RESERVES THE RIGHT TO REFUSE
TO TRANSFER THE SECURITIES REPRESENTED BY THIS CERTIFICATE UNLESS AND UNTIL
THE CONDITIONS TO TRANSFER THE SECURITIES REPRESENTED BY THIS CERTIFICATE
SET FORTH IN SUCH AGREEMENT HAVE BEEN FULFILLED."
I.5 DISTRIBUTION OF LOGIX. The Purchasers have been advised that the
Company intends to distribute all of the outstanding capital stock of Logix
Communications Enterprises, Inc. ("Logix") to and among certain holders of the
Company's outstanding capital stock. The Purchasers acknowledge and agree that
holders of the Preferred Stock and unexercised Warrants will not participate in
the Company's distribution of the Logix capital stock.
I.6 PAYMENT OF TAXES. The Company will pay all documentary stamp taxes
and other governmental charges (excluding all foreign, federal or state income,
franchise, property, estate, inheritance, gift or similar taxes) in connection
with the issuance or delivery of the Preferred Stock, the Warrants and the
Warrant Shares hereunder. The Company shall not, however, be required to pay
any tax that may be payable in respect of any subsequent transfer of the
Preferred Stock, the Warrants and the Warrant Shares or any transfer involved in
the issuance and delivery of Warrant Shares in a name other than that in which
the Warrants to which such issuance relates were registered, and, if any such
tax would otherwise be payable by the Company, no such issuance or delivery
shall be made unless and until the person requesting such issuance has paid to
the Company the amount of any such tax, or it is established to the reasonable
satisfaction of the Company that any such tax has been paid.
I.7 RESERVATION OF WARRANT SHARES. The Company shall at all times
reserve and keep available, free from preemptive rights, out of the aggregate of
its authorized but unissued Common Stock or its authorized and issued Common
Stock held in its treasury, for the purpose of enabling it to satisfy any
obligation to issue Warrant Shares upon exercise of Warrants, the maximum number
of shares of Common Stock which may then be deliverable upon the exercise of all
outstanding Warrants.
ARTICLE II
PARTICIPATION RIGHTS
II.1 TAG-ALONG RIGHTS.
II.1.1 Subject to Section 2.1.5, the Partnership agrees that it
shall not, directly or indirectly, transfer, in any single transaction or series
of related transactions, to one or more persons who are not Affiliated
Successors of the
Partnership (each such person a "Tag-Along Event Purchaser") shares of Common
Stock (a "Tag-Along Event") representing 50% or more of the Partnership's total
shares of Common Stock, unless the terms and conditions of such sale to such
Tag-Along Event Purchaser shall include an offer to each holder of Warrant
Shares ("Tag-Along Stock") other than the Partnership (each, a "Tag-Along Event
Offeree") to transfer to such Tag-Along Event Purchaser up to that number of
shares of Tag-Along Stock then beneficially owned by each Tag-Along Event
Offeree that bears the same proportion to the total number of shares of
Tag-Along Stock at that time beneficially owned (without duplication) by each
such Tag-Along Event Offeree as the number of the shares of Common Stock being
transferred by the Partnership (including shares theretofore transferred if in
any applicable series of related transactions) bears to the total number of
shares of Common Stock at the time beneficially owned (without duplication) by
the Partnership.
"Affiliated Successor" means any affiliate (as defined in Rule 501(b) of
Regulation D adopted under the Securities Act of 1933) of the Partnership that
is a transferee or a successor in interest to any or all of the Partnership's
Common Stock and also includes partners of the Partnership that are transferees
of Common Stock by the Partnership. An Affiliated Successor shall be required
to become a party to this Agreement in accordance with Section 4.7 hereof. For
purposes of this Agreement, the term "Partnership" shall be deemed to include
the Affiliated Successors, as an entirety.
If, at any time prior to Company's initial offering of its Common Stock
registered pursuant to the Securities Act of 1933, as amended (the "Securities
Act"), in which the Company receives gross proceeds of at least $50 million (an
"IPO") the Partnership receives a bona fide offer from a Tag-Along Event
Purchaser to purchase shares of Common Stock in circumstances in which, after
giving effect to such sales would result in a Tag-Along Event, and which offer
the Partnership wishes to accept, the Partnership shall then cause the Tag-Along
Event Purchaser's offer to be reduced to writing (which writing shall include an
offer to purchase shares of Tag-Along Stock from each Tag-Along Event Offeree
according to the terms and conditions set forth in this Section 2.1) and the
Partnership shall send written notice of the Tag-Along Event Purchaser's offer
(the "Tag-Along Notice") to each Tag-Along Event Offeree, which Tag-Along Notice
shall specify (i) the name and address of the Tag-Along Event Purchaser (ii) the
amount of shares proposed to be transferred and the price, form of consideration
and other terms and conditions of such transfer (including, if in a series of
related transactions, such information with respect to shares of Common Stock
theretofore transferred), (iii) that the Tag-Along Event Purchaser has been
informed of the rights provided for in this Section 2.1 and has agreed to
purchase shares of Tag-Along
Stock in accordance with the terms hereof, and (iv) the date by which each
Tag-Along Event Offeree may exercise its respective rights contained in this
Section 2.1, which date shall not be less than thirty (30) days after the giving
of the Tag-Along Notice. The Tag-Along Notice shall be accompanied by a true
and correct copy of the Tag-Along Event Purchaser's offer. At any time within
thirty (30) days after receipt of the Tag-Along Notice (or within such longer
period as may be provided for in the Tag-Along Notice), each Tag-Along Event
Offeree may accept the offer included in the Tag-Along Notice for up to such
number of shares of Tag-Along Stock as is determined in accordance with this
Section 2.1, by furnishing written notice of such acceptance to the Partnership,
and delivering to an escrow agent (which shall be a bank or a law or accounting
firm designated by the Company) the certificate or certificates representing the
shares of Tag-Along Stock to be sold pursuant to such offer by each Tag-Along
Event Offeree, duly endorsed in blank, together with a limited power-of-attorney
authorizing the escrow agent, on behalf of the Tag-Along Event Offeree, to sell
the shares to be sold pursuant to the terms of such Tag-Along Event Purchaser's
offer.
In the event that the Tag-Along Event Purchaser does not agree to purchase
all of the shares of Common Stock proposed to be sold by the Partnership and
Tag-Along Stock proposed to be sold by the Tag-Along Event Offerees, then the
Partnership and each Tag-Along Event Offeree shall have the right to sell to the
Tag-Along Event Purchaser that number of shares of Common Stock and Tag-Along
Stock, respectively, as shall be equal to (x) the number of shares of the
relevant Common Stock which the Tag-Along Event Purchaser has agreed to purchase
times (y) a fraction, the numerator of which is the number of shares of
Tag-Along Stock at that time beneficially owned (without duplication) by each
such Tag-Along Event Offeree and the denominator of which is the total Common
Stock owned by the Partnership plus the total Tag-Along Stock owned by each
Purchaser, in the aggregate, as of the date of the Tag-Along Notice.
If any Tag-Along Event Offeree desires to sell less than the amount of
shares of Tag-Along Stock that it is entitled to sell pursuant to this Section
2.1, then the Partnership and the remaining Tag-Along Event Offerees shall have
the right to sell to the Tag-Along Event Purchaser an additional amount of
shares of Common Stock and Tag-Along Stock, respectively, as shall be equal to
(x) the number of shares of Tag-Along Stock not being sold by any such Tag-Along
Event Offeree times (y) a fraction, the numerator of which is the number of
shares of the Common Stock or Tag-Along Stock, as the case may be, beneficially
owned (without duplication) by the Partnership or remaining Tag-Along Event
Offeree and the denominator of which is the aggregate number of shares of the
Common Stock and Tag-
Along Stock beneficially owned (without duplication) by the Partnership and all
remaining Tag-Along Event Offerees in the aggregate. Such process shall be
repeated in series until the Partnership and all of the remaining Tag-Along
Event Offerees agree to sell their remaining proportionate number of shares of
Tag-Along Stock.
II.1.2 The purchase from each Tag-Along Event Offeree pursuant to
this Section 2.1 shall be on the same terms and conditions, including the price
per share received by the Partnership and stated in the Tag-Along Notice
provided to each Tag-Along Event Offeree. All Tag-Along Event Offerees shall be
required, as a condition of participating in such transaction, to convert all
Warrants into Warrant Shares and transfer Common Stock to the Tag-Along Event
Purchaser at the closing.
II.1.3 Simultaneously with the consummation of the sale of the
shares of Common Stock of the Partnership and shares of Tag-Along Stock of each
Tag-Along Event Offeree to the Tag-Along Event Purchaser pursuant to the
Tag-Along Event Purchaser's offer, the Partnership shall notify each Tag-Along
Event Offeree and shall cause the Tag-Along Event Purchaser to remit to each
Tag-Along Event Offeree the total sales price of the shares of Tag-Along Stock
held by each Tag-Along Event Offeree sold pursuant thereto and shall furnish
such other evidence of the completion and time of completion of such sale and
the terms thereof as may be reasonably requested by each Tag-Along Event
Offeree.
II.1.4 If within thirty (30) days after receipt of the Tag-Along
Notice, a Tag-Along Event Offeree has not accepted the offer contained in the
Tag-Along Notice, such Tag-Along Event Offeree shall be deemed to have waived
any and all rights with respect to the sale described in the Tag-Along Notice
and the Partnership shall have sixty (60) days in which to sell not more than
the number of shares of Common Stock described in the Tag-Along Notice, on terms
not more favorable to the Partnership than were set forth in the Tag-Along
Notice; provided, however, that if such purchase is subject to the consent of
the Federal Communications Commission or any public service or public utilities
commission, the purchase of the Common Stock shall be closed on the first
business day after all such consents shall have been obtained by final order.
II.1.5 After the IPO, the Purchasers' rights to participate in any
subsequent sale of Common Stock by the Partnership shall terminate.
II.2 DRAG ALONG RIGHTS. If at any time the Board of Directors shall
approve the sale or exchange (in a business combination or otherwise) by holders
of Common Stock in a bona fide arm's-length transaction to a third party
pursuant to an
agreement (i) in which the same price per share shall be payable in respect of
all shares of Common Stock, (ii) which shall have been approved by the Board of
Directors as fair to all stockholders, and (iii) which shall have been approved
by stockholders holding two-thirds of the total shares of the Company determined
as of the date of such approval, then, upon the written request of the Company,
each Purchaser shall be obligated to, and shall, if so requested by such third
party, (a) exercise all Warrants and sell, transfer and deliver or cause to be
sold, transferred and delivered to such third party, all Warrant Shares owned by
such Purchaser, and (b) if approval by the Purchasers of the transaction is
required, vote his, her or its shares of Common Stock in favor thereof. After
the IPO, the Company's rights under this Section 2.2 shall terminate.
ARTICLE III
REGISTRATION RIGHTS
III.1 SHELF REGISTRATION.
(i) COMPANY OBLIGATION. The Company shall, on or prior to the
180th day following the date on which the Purchasers first acquired the
Preferred Stock and Warrants (such date of acquisition herein referred to as the
"Closing Date"), file with the Securities and Exchange Commission (the
"Commission") a registration statement under the Securities Act, (a "Shelf
Registration Statement") relating to the offer and sale of the Preferred Stock,
the Warrants and the Warrant Shares by the Purchasers from time to time in
accordance with the methods of distribution elected by such Purchasers and set
forth in such Shelf Registration Statement and Rule 415 under the Securities
Act. (All such Warrants and Preferred Stock owned by the Purchasers on the
Closing Date, and all Warrant Shares thereafter acquired by such Purchasers
pursuant to the exercise of such Warrants shall be collectively referred to
herein as the "Registrable Securities".)
(ii) EFFECTIVENESS. The Company shall use its best efforts to
cause the Shelf Registration Statement to be declared effective under the
Securities Act as promptly as possible after filing thereof, and, in any case,
on or before the 360th day after the Closing Date, and to keep such Shelf
Registration Statement continuously effective in order to permit the prospectus
(the "Prospectus") contained therein to be usable by Purchasers for a period of
three years from the effective date of the Shelf Registration Statement or such
shorter period that will terminate when (x) all the Registrable Securities
covered by the Shelf Registration Statement have been sold by the initial
holders thereof or (y) when all Registrable Securities covered by the Shelf
Registration Statement shall become eligible for sale by the initial holders
thereof during
any three month period pursuant to Rule 144 adopted pursuant to the Securities
Act, or any successor provision (in any such case, such period being called the
"Shelf Registration Period").
(iii) PENALTY. If the Shelf Registration Statement is not declared
effective by the Commission on or prior to December 31, 2001, the dividend rate
on the Preferred Stock held by any Purchaser shall increase by .5% per annum,
payable in cash or additional shares of Preferred Stock, in accordance with the
Certificates of Designation, until such Registration Statement is declared
effective.
III.2 PIGGYBACK REGISTRATION RIGHTS.
(i) RIGHT TO PIGGYBACK. If at any time the Company proposes to
register any shares of Common Stock (or securities convertible into or
exchangeable for Common Stock) with the Commission under the Securities Act
(other than a Registration on Form S-4 or Form S-8, or any successor forms), and
the registration form to be used may be used for the Registration of the Warrant
Shares (a "Piggyback Registration"), the Company will give written notice (a
"Piggyback Notice") to all holders of Warrants and Warrant Shares, at least
thirty (30) days prior to the anticipated filing date, of its intention to
effect such a Registration, which notice will specify the proposed offering
price (if determined at that time), the kind and number of securities proposed
to be registered, the distribution arrangements and will, subject to Section
3.2(b)(ii), include in such Piggyback Registration all Warrant Shares with
respect to which the Company has received written requests (which requests have
not been withdrawn) for inclusion therein within twenty (20) days after the last
date such Piggyback Notice was deemed to have been given pursuant to Article IV.
If at any time after giving the Piggyback Notice and prior to the effective date
of the Registration Statement filed in connection with such registration, the
Company determines for any reason not to register or to delay registration, the
Company may, at its election, give written notice of such determination to each
holder of Warrant Shares that has requested inclusion of Warrant Shares in such
Registration Statement and
(A) in the case of a determination not to register, shall be
relieved of its obligation to register any Warrant Shares,
and
(B) in the case of a determination to delay registering, shall be
permitted to delay registering any Warrant Shares for the
same period as the delay in registering such other
securities,
PROVIDED, HOWEVER, no holder of Warrants or Warrant Shares shall be entitled to
Piggyback Registration in connection with any IPO which does not include any
other selling shareholder; PROVIDED FURTHER, that no holder of Warrants or
Warrant Shares shall be entitled to Piggyback Registration on a demand
registration initiated by X.X. Childs Equity Partners II, L.P., or any affiliate
thereof ("JWC").
(ii) PRIORITY ON PIGGYBACK REGISTRATIONS. If the managing
underwriter or underwriters, if any, advise the Company and the holders of
Registrable Securities in writing that in its or their opinion, that the number
securities proposed to be sold in such registration (including Registrable
Securities to be included pursuant to Section 3.2(i)) exceeds the number that
can be sold in such offering without
(A) creating a substantial risk that the proceeds or price per
share the Company will derive from such registration will be
reduced, or that the number of shares to be registered is too
large a number to be reasonably sold or
(B) materially and adversely affecting such registration in any
other respect, without any reduction in the amount of
securities the Company proposes to issue and sell for its own
account or in the amount of securities any other security
holder proposes to sell for its own account pursuant to a
demand registration right,
the number of Registrable Securities to be registered for each selling holder
shall be reduced FIRSTLY, against the Partnership and the holders of Registrable
Securities on a PRO RATA BASIS, and LASTLY, against JWC, based on the amount of
securities each of them requested to be included in such registration, to the
extent necessary to reduce the number of Registrable Securities to be registered
to the number recommended by the managing underwriter or determined by the
Company after consultation with its investment banker (notification of which
number shall be given by the Company to the holders of Registrable Securities of
such determination).
III.3 REGISTRATION PROCEDURES. Subject to Sections 3.1(i) and 3.1(ii) and
Sections 3.2(i) and 3.2(ii), with respect to any registration the Company shall,
(i) cooperate and assist in any filings required to be made with
the NASD and use its reasonable best efforts to cause such Registration
Statement to become and (to the extent provided herein) remain effective;
PROVIDED, HOWEVER, that
before filing a Registration Statement or Prospectus or any amendments or
supplements thereto, the Company shall furnish to counsel to the holders of the
Registrable Securities covered by such Registration Statement copies of all such
documents proposed to be filed, which documents will be subject to the
reasonable review of such holders and their counsel, and the Company shall not
file any Registration Statement or amendment thereto or any Prospectus or any
supplement thereto to which the holders of a majority of the Registrable
Securities covered by such Registration Statement shall reasonably object in
writing;
(ii) prepare and file with the Commission such amendments and
supplements to the Shelf Registration Statement as may be necessary to keep each
such Registration Statement effective during the Shelf Registration Period
provided in Section 3.1(ii); cause each Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Securities Act; and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by the
Shelf Registration Statement during the Shelf Registration Period in accordance
with the intended method or methods of distribution by the sellers thereof set
forth in such Registration Statement or supplement to the Prospectus;
(iii) promptly notify the selling holders of Registrable Securities
(A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with
respect to the Registration Statement or any
post-effective amendment, when the same has become
effective;
(B) of any request by the Commission for amendments or
supplements to the Registration Statement or the
Prospectus or for additional information;
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for
that purpose;
(D) if at any time the representations and warranties of
the Company contemplated by subsection (xii) of this
Section 3.3 below cease to be true and correct;
(E) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the
Registrable Securities for sale under the securities
or blue sky laws of any jurisdiction or the initiation
or threatening of any proceeding for such purpose; and
(F) of the happening of any event which makes any
statement made in the Registration Statement, the
Prospectus or any document incorporated therein by
reference untrue or which requires the making of any
changes in the Registration Statement, the Prospectus
or any document incorporated therein by reference in
order to make the statements therein not misleading;
(iv) use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of
(A) the Registration Statement, or
(B) the qualification of the Registrable Securities for
sale under the securities or blue sky laws of any
jurisdiction at the earliest possible time;
(v) if requested by holders of a majority of the Registrable
Securities being sold in connection with an underwritten offering, promptly
incorporate in a Prospectus supplement or post-effective amendment such
information as the managing underwriters and the holders of a majority of the
Registrable Securities being sold agree should be included therein relating to
the plan of distribution with respect to such Registrable Securities, including,
without limitation, information with respect to the number of Registrable
Securities being sold to such underwriters, the purchase price being paid
therefor by such underwriters and any other terms of the underwritten (or best
efforts underwritten) offering of the Registrable Securities to be sold in such
offering; and make all required filings of such Prospectus supplement or
post-effective amendment as soon as notified of the matters to be incorporated
in such Prospectus supplement or post-effective amendment;
(vi) deliver to each selling holder of Registrable Securities,
without charge, as many copies of the Prospectus (including each preliminary
Prospectus) and any amendment or supplement thereto as such selling holder of
Registrable Securities may reasonably request in order to facilitate the public
sale or other disposition of the securities owned by such selling holder;
(vii) prior to any public offering of Registrable Securities, use
its reasonable best efforts to register or qualify or cooperate with the selling
holders of Registrable Securities, and their respective counsel, in connection
with the Registration or qualification of such Registrable Securities for offer
and sale under the securities or "blue sky" laws of such jurisdictions in the
United States as any selling Holder reasonably requests in writing, use its
reasonable best efforts to obtain all appropriate registrations, permits and
consents required in connection therewith, and do any and all other acts or
things reasonably necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by the Registration
Statement; PROVIDED, HOWEVER, that the Company will not be required to qualify
generally to do business in any jurisdiction where it is not then so qualified
or to take any action that would subject it to taxation or general service of
process in any such jurisdiction where it is not then so subject;
(viii) cooperate with the selling holders of Registrable Securities
to facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends at
least two (2) business days prior to any sale of Registrable Securities;
(ix) upon the occurrence of any event contemplated by Section
3.3(iii)(F) above, promptly prepare a supplement or post-effective amendment to
the Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to the purchasers of the Registrable Securities, the
Prospectus will not contain an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein not misleading;
(x) cause all Registrable Securities covered by any Registration
Statement to be listed on each securities exchange on which similar securities
issued by the Company are then listed, or, if not so listed, cause such
Registrable Securities to be authorized for trading on the Nasdaq National
Market if any similar securities issued by the Company are then so authorized,
if requested by the holders of a majority of such Registrable Securities;
(xi) not later than the effective date of the applicable
Registration Statement, provide a CUSIP number for the applicable Registrable
Securities;
(xii) enter into such customary agreements and take all such other
actions reasonably required in connection therewith in order to expedite or
facilitate the disposition of such Registrable Securities and in such
connection, whether or not an underwriting agreement is entered into and whether
or not the Registration is an underwritten Registration,
(A) make such representations and warranties to the
holders of such Registrable Securities as are
customary;
(B) use reasonable best efforts to obtain opinions of
counsel to the Company and updates thereof (which
opinions of counsel shall be in form, scope and
substance reasonably satisfactory to the holders of a
majority of the Registrable Securities being sold),
addressed to each selling Holder covering the matters
customarily covered in opinions requested in similar
offerings and such other matters as may be reasonably
requested by such holders;
(C) use reasonable best efforts to obtain "cold comfort"
letters and updates thereof from the Company's
independent certified public accountants addressed to
the selling holders of Registrable Securities such
letters to be in customary form and covering matters
of the type customarily covered in "cold comfort"
letters in similar transactions; and
(D) deliver such documents and certificates as may be
reasonably requested by the holders of a majority of
the Registrable Securities being sold to evidence
compliance with subsection (x) above and with any
customary conditions contained therein;
(xiii) make available for inspection by a representative of holders
of a majority of the Registrable Securities copies of extracts of all financial
and other records, pertinent corporate documents and properties of the Company
as shall be reasonably necessary, in the opinion of the holders' counsel, to
enable them to fulfill their due diligence responsibilities; and cause the
Company's officers and employees
to supply all information reasonably requested by any such representative in
connection with such Registration Statement; PROVIDED, HOWEVER, that the Company
shall not be required to comply with this paragraph (xiii) unless such person
executes confidentiality agreements whereby such person agrees that any records,
information or documents that are designated by the Company in writing as
confidential shall be kept confidential by such persons and used only in
connection with the proposed registration unless disclosure of such records,
information or documents is required by court or administrative order or any
regulatory body having jurisdiction; and each seller of Registrable Securities
agrees that it will, upon learning that disclosure of such records, information
or documents is sought in a court of competent jurisdiction or by a governmental
agency, give notice to the Company and allow the Company, at the Company's
expense, to undertake appropriate action to prevent disclosure of any records,
information or documents deemed confidential; PROVIDED FURTHER, HOWEVER,
notwithstanding any designation of confidentiality by the Company, confidential
information shall not include information which (i) becomes generally available
to the public other than as a result of a disclosure by or on behalf of any such
Person, or (ii) becomes available to any such Person on a non-confidential basis
from a source other than the Company or its advisors, provided that such source
is not to such Person's knowledge bound by a confidentiality agreement with or
other obligations of secrecy to the Company or another party with respect to
such information; and
(xiv) promptly after the filing of any document that is to be
incorporated by reference into any Registration Statement or Prospectus (after
initial filing of the Registration Statement), provide copies of such document
to counsel to the selling holders of Registrable Securities, and make the
Company's executive officers and other representatives reasonably available for
discussion of such document.
The Company may require each seller of Registrable Securities for which any
registration is being effected to furnish to the Company such information
regarding the proposed distribution of such securities as the Company may from
time to time reasonably request in writing. Each holder of Registrable
Securities agrees by acquisition of such Registrable Securities that, upon
receipt of any notice from the Company of the happening of any event of the kind
described in Section 3.3(iii)(F), such holder shall forthwith discontinue
disposition of Registrable Securities until such holder's receipt of the copies
of the supplemented or amended prospectus contemplated by Section 3.3(ix), or
until it is advised in writing (the "Advice") by the Company that the use of the
Prospectus may be resumed, and has received copies of additional or supplemental
filings that are incorporated by reference in the Prospectus;
and, if so directed by the Company, such holder shall deliver to the Company (at
the Company's expense) all copies, other than permanent file copies then in such
seller's possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice. In the event the Company gives
any such notice, the time periods regarding the maintenance of the effectiveness
of any Registration Statement in Sections 3.1(ii) shall be extended by the
number of days during the period from and including the date of the receipt of
such notice pursuant to Section 3.3(iii)(F) hereof to and including the date
when each seller of Registrable Securities covered by such Registration
Statement shall have received the copies of the supplemented or amended
prospectuses contemplated by Section 3.3(ix) or the Advice.
III.4 INDEMNIFICATION AND CONTRIBUTION.
(i) INDEMNIFICATION OF PURCHASERS. In the event of the
Registration or qualification of any Registrable Securities under the Securities
Act or any other applicable securities laws pursuant to the provisions of this
Article III, the Company agrees to indemnify and hold harmless each holder
thereby offering such Registrable Securities for sale (an "Indemnified Holder"),
and each other person, if any, who controls any such Indemnified Holder within
the meaning of the Securities Act or any other applicable securities laws, from
and against any and all losses, claims, damages, expenses or liabilities (or
actions in respect thereof), joint or several, to which such Indemnified Holder
or controlling person may become subject under the Securities Act or any other
applicable federal or state securities laws or otherwise, insofar as such
losses, claims, damages, expenses or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any Registration Statement under which such
Registrable Securities were registered or qualified under the Securities Act or
any other applicable securities laws, any preliminary prospectus or final
prospectus relating to such Registrable Securities, or any amendment or
supplement thereto, 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 to make the statements therein not misleading, or any violation by the
Company of any rule or regulation under the Securities Act or any other
applicable federal or state securities laws applicable to the Company or
relating to any action or inaction required by the Company in connection with
any such Registration or qualification, and will reimburse each such Indemnified
Holder, underwriter, broker or dealer and each such controlling person for any
legal or other expenses reasonably incurred by such Indemnified Holder,
underwriter, broker or dealer or controlling person in connection with
investigating o defending any such loss, claim,
damage, expense, liability or action; PROVIDED, HOWEVER, that the Company will
not be liable in any such case to the extent that any such loss, claim, damage,
expense or liability arises out of or is based upon an untrue statement or
omission contained in such Registration Statement, such preliminary Prospectus,
such final Prospectus or such amendment or supplement thereto, made in reliance
upon and in conformity with written information furnished to the Company by such
Indemnified Holder or controlling person specifically and expressly for use in
the preparation thereof or by the failure of such Indemnified Holder or
controlling person to deliver a copy of the Registration Statement, such
preliminary Prospectus, such final Prospectus or such amendment or supplement
thereto after the Company has furnished such party with a sufficient number of
copies of the same and such party failed to deliver or otherwise provide a copy
of the final Prospectus to the person asserting an untrue statement or omission
or alleged untrue statement or omission at or prior to the written confirmation
of the sale of securities to such person, if such statement or omission was in
fact corrected in such final Prospectus.
(ii) INDEMNIFICATION OF COMPANY. In the event of the Registration
or qualification of any Registrable Securities of the Indemnified Holders under
the Securities Act or any other applicable federal or state securities laws for
sale pursuant to the provisions hereof, each Indemnified Holder agrees
severally, and not jointly, to indemnify and hold harmless the Company, each
person who controls the Company within the meaning of the Securities Act, and
each officer and director of the Company from and against any losses, claims,
damages, expenses or liabilities (or actions in respect thereof), joint or
several, to which the Company, such controlling person or any such officer or
director may become subject under the Securities Act or any other applicable
securities laws or otherwise, insofar as such losses, claims, damages, expenses
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement of any material fact contained in any Registration
Statement under which such Registrable Securities were registered or qualified
under the Securities Act or any other applicable securities laws, any
preliminary prospectus or final prospectus relating to such Registrable
Securities, or any amendment or supplement thereto, or arise out of or are based
upon an untrue statement therein or the omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, which untrue statement or omission was made therein in reliance
upon and in conformity with written information furnished to the Company by such
Indemnified Holder specifically and expressly for use in connection with the
preparation thereof, and will reimburse the Company, such controlling person and
each such officer or director for any legal or any other expenses reasonably
incurred by them in connection with investigating or
defending any such loss, claim, damage, expense, liability or action; PROVIDED,
HOWEVER, an Indemnified Holder's liability under this Section 5(e)(iii) shall
not exceed the net proceeds received by such Indemnified Holder with respect to
the sale of any Registrable Securities.
(iii) INDEMNIFICATION OF UNDERWRITERS. In the case of an
underwritten offering of Registrable Securities, the Company and each holder of
a Registrable Security included in a Registration Statement shall agree to enter
into an underwriting agreement in customary form and substance with such
underwriters, and to indemnify such underwriters, their officer and directors,
if any, and each person, if any, who controls such underwriters within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act,
to the same extent as provided in the preceding paragraph with respect to
indemnification by such holder of the Company.
(iv) MECHANICS. Promptly after receipt by a person entitled to
indemnification under this Section 3.4 (an "Indemnified Party") of notice of the
commencement of any action or claim relating to any Registration Statement filed
under this Article III as to which indemnity may be sought hereunder, such
Indemnified Party will, if a claim for indemnification hereunder in respect
thereof is to be made against any other party hereto (an "Indemnifying Part"),
give written notice to each such Indemnifying Party of the commencement of such
action or claim, but the omission to so notify each such Indemnifying Party will
not relieve any such Indemnifying Party from any liability which it may have to
any Indemnified Party otherwise than pursuant to the provisions of this Section
3.4 and shall also not relieve any such Indemnifying Party of its obligations
under this Section 5(e) except to the extent that any such Indemnifying Party is
actually prejudiced thereby. In case any such action is brought against an
Indemnified Party, and such Indemnified Party notifies an Indemnifying Party of
the commencement thereof, such Indemnifying Party will be entitled (at its own
expense) to participate in and, to the extent that it may wish, jointly with any
other Indemnifying Party similarly notified, to assume the defense, with counsel
reasonably satisfactory to such Indemnified Party, of such action and/or to
settle such action and, after notice from the Indemnifying Party to such
Indemnified Party of its election so to assume the defense thereof, expenses
subsequently incurred by such Indemnified Party in connection with the defense
thereof, other than the reasonable cost of investigation; PROVIDED, HOWEVER,
that no Indemnifying Party shall consent to the entry of any judgment or enter
into any settlement agreement without the prior written consent of the
Indemnified Party unless such Indemnified Party is fully released and discharged
from any such liability, and no Indemnified Party shall consent to the entry of
any judgment or enter into any settlement of any such action the defense of
which has been assumed by an Indemnifying Party without the consent of each
Indemnifying Party. Notwithstanding the foregoing, the Indemnified Party shall
have the right to employ its own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Party
unless
(A) the employment of such counsel shall have been authorized in
writing by the Indemnifying Party in connection with the
defense of such suit, action, claim or proceeding;
(B) the Indemnifying Party shall not have employed counsel
(reasonably satisfactory to the Indemnified Party) to take
charge of the defense of such action, suit, claim or
proceeding; or
(C) such Indemnified Party shall have reasonably concluded, based
upon the advice of counsel, that there may be defenses
available to it which are different from or additional to
those available to the Indemnifying Party which, if the
Indemnifying Party and the Indemnified Party were to be
represented by the same counsel, could result in a conflict
of interest for such counsel or materially prejudice the
prosecution of the defenses available to such Indemnified
Party.
If any of the events specified in clauses (A), (B) or (C) of the preceding
sentence shall have occurred or shall otherwise be applicable, then the fees and
expenses of one counsel or firm of counsel selected by a majority in interest of
the Indemnified Parties (and reasonably acceptable to the Indemnifying Party)
shall be borne by the Indemnifying Party. If, in any such case, the Indemnified
Party employs separate counsel, the Indemnifying Party shall not have the right
to direct the defense of such action, suit, claim or proceeding on behalf of the
Indemnified Party and the Indemnified Party shall assume such defense and/or
settle such action; PROVIDED, HOWEVER, that an Indemnifying Party shall not be
liable for the settlement of any action, suit, claim or proceeding effected
without its prior written consent, which consent shall not be unreasonably
withheld.
The provisions of this Section 3.4 shall be in addition to any liability
which any party may have to any other party and shall survive any termination of
this Agreement.
III.5 CONTRIBUTION. If for any reason the indemnification provided for in
Section 3.4(i) or 3.4(ii) is
unavailable to an Indemnified Party as contemplated therein, then the
Indemnifying Party, in lieu of indemnification shall contribute to the amount
paid or payable by the Indemnified Party as a result of such loss, claim,
damage, expense or liability (or action in respect thereof) in such proportion
as its appropriate to reflect not only the relative benefits received by the
Indemnified Party and the Indemnifying Party, but also the relative fault of the
Indemnified Party and the Indemnifying Party, as well as any other relevant
equitable considerations, provided that no holder of Registrable Securities
shall be required to contribute in an amount greater than the difference between
the net proceeds received by such holder of Registrable Securities with respect
to the sale of any Registrable Securities and all amounts already contributed by
such holder with respect to such claims, including amounts paid for any legal or
other fees or expenses incurred by such holder. No person guilty of a
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 any such fraudulent misrepresentation. The relative fault of such
Indemnifying Party and Indemnified Party shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information supplied by
such Indemnifying Party or Indemnified Party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action.
III.6 REGISTRATION EXPENSES. Except as hereinafter provided, all expenses
incident to the Company's performance of or compliance with this Article III
will be borne by the Company, including, without limitation, all Registration
and filing fees under the Securities Act and the Exchange Act, the fees and
expenses of the counsel and accountants for the Company (including the expenses
of any "cold comfort" letters and special audits required by or incident to the
performance of such persons), all other costs and expenses of the Company
incident to the preparation, printing and filing under the Securities Act of the
Registration Statement (and all amendments and supplements thereto), and
furnishing copies thereof and of the Prospectus included therein, all
out-of-pocket expenses of underwriters customarily paid for by issuers to the
extent provided for in any underwriting agreement, the costs and expenses
incurred by the Company in connection with the qualification of the Registrable
Securities under the state securities or "blue sky" laws of various
jurisdictions, the costs and expenses associated with filings required to be
made with the NASD, the costs and expenses of listing the Registrable Securities
for trading on a national securities exchange or authorizing them for trading on
Nasdaq and all other costs and expenses incurred by the Company in connection
with any
Registration hereunder. In addition, the Company shall pay or reimburse the
sellers of Registrable Securities the reasonable fees and expenses of one
attorney to such sellers (selected by holders of a majority of the Registrable
Securities to be sold) incurred in connection with a registration subject to
this Article III (collectively, with the expenses referred to in the immediately
preceding sentence, the "Registration Expenses"). Except as provided in the
immediately preceding sentence, each holder of Registrable Securities
participating in the sale of such Registrable Securities shall bear the costs
and expenses of any underwriters' discounts and commissions, brokerage fees or
transfer taxes relating to the Registrable Securities sold by such holder and
the fees and expenses of any attorneys, accountants or other representatives
retained by the holder.
III.7 PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No holder of
Registrable Securities may participate in any underwritten Registration
hereunder unless such holder (i) agrees to sell its Registrable Securities on
the basis provided in any customary and reasonable underwriting arrangements
approved by the Company, and (ii) accurately completes in a timely manner and
executes all questionnaires, powers of attorney, underwriting agreements,
indemnities and other documents customarily required under the terms of such
underwriting arrangements.
III.8 HOLDBACK AGREEMENT. Each holder of Registrable Securities whose
securities are included in a Registration Statement agrees not to effect any
other public sale or distribution of the issue being registered or a similar
security of the Company, or any securities convertible into or exchangeable or
exercisable for such securities, including a sale pursuant to Rule 144 or Rule
144A under the Securities Act, during the fifteen (15) days prior to, and during
the ninety (90)-day period (or such longer period as requested by the managing
underwriter or underwriters in the case of an underwritten public offering)
beginning on, the effective date of such Registration Statement (except as part
of such Registration), if and to the extent requested by the managing
underwriter or underwriters in an underwritten public offering.
ARTICLE IV
MISCELLANEOUS
IV.1 NOTICES. Any notice or demand authorized by this Agreement to be
given or made by any Holder to or on the Company shall be sufficiently given or
made when received at the office of the Company expressly designated by the
Company as its office for purposes of this Agreement until the Holders are
otherwise notified in accordance with this Section by the Company), as follows:
Xxxxxx Communications Corporation
00000 X. Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
with a copy to:
Xxxxxxxx X. Xxxx, Esq.
McAfee & Xxxx A Professional Corporation
Two Leadership Square, 10th Floor
000 Xxxxx Xxxxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Any notice pursuant to this Agreement to be given by the Company to the
Holder(s) shall be sufficiently given when received by such Holder(s) at the
address appearing in the Subscription Agreement (until the Company is otherwise
notified in accordance with this Section by such Holder).
IV.2 SUCCESSORS. All the covenants and provisions of this Agreement by
or for the benefit of the Company or any Holder shall bind and inure to the
benefit of their respective successors and assigns hereunder.
IV.3 GOVERNING LAW. This Agreement shall be deemed to be a contract made
under the laws of the State of Oklahoma and for all purposes shall be construed
in accordance with the internal laws of said state.
IV.4 BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company, the
Partnership and the Purchasers any legal or equitable right, remedy or claim
under this Agreement; but this Agreement shall be for the sole and exclusive
benefit of the Company, the Partnership and the Purchasers.
IV.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
IV.6 AMENDMENT AND WAIVER. Except as provided in (b) below, (a) no
provision of this Agreement may be amended or waived except by an instrument in
writing signed by the party sought to be bound; and (b) the Company may from
time to time supplement or amend this Agreement without the approval of any
holders of Preferred Stock and Warrants only in order to cure any ambiguity or
to correct or supplement any provision contained herein which may be defective
or inconsistent with any other provision herein, or to make any other provisions
in
regard to matters or questions arising hereunder which the Company may deem
necessary or desirable and which shall not in any way adversely affect the
interests of any holder. No failure or delay by any party in exercising any
right or remedy hereunder shall operate as a waiver thereof, and a waiver of a
particular right or remedy on one occasion shall not be deemed a waiver of any
other right or remedy or a waiver of the same right or remedy on any subsequent
occasion.
IV.7 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent holders of Preferred Stock or Warrants. If any
transferee of any holder of Preferred Stock or Warrants shall acquire Preferred
Stock or Warrants, in any manner, whether by operation of law or otherwise, such
Preferred Stock or Warrants shall be held subject to all of the terms of this
Agreement, and by taking and holding such Preferred Stock or Warrants such
person shall be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement and such person shall be
entitled to receive the benefits hereof.
IV.8 COMPANY REPRESENTATION. The Company represents to the Purchasers
that neither the creation, offer or sale of the Class F Preferred Stock or the
Warrants, nor the execution, delivery and performance of the Company's
obligations thereunder or under this Agreement violate or are in contravention
of the Company's Certificate of Incorporation (including the Certificates of
Designation filed therewith), Bylaws or any debt instrument to which the Company
is a party, or any federal law or any law of the State of Oklahoma.
4.9 COMPANY COVENANT. The Company hereby covenants with the Purchasers
that
(i) The Company will not redeem or repurchase, nor will the Company
permit any of its subsidiaries to repurchase, more than 90,000
shares of Class D Preferred Stock or more than 517,000 shares of
Class E Preferred Stock, in each case, at a maximum redemption price
of $1,132.00 per share, and
(ii) shares of Class E Preferred Stock will only be issued upon
conversion of Class D Preferred Stock or in payment of dividends on
Class D Preferred Stock.
IN WITNESS WHEREOF, each of the parties has executed this Agreement as of
the date first written above.
COMPANY: XXXXXX COMMUNICATIONS CORPORATION
By /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
THE PARTNERSHIP: XXXXXX XX LIMITED PARTNERSHIP
By RLD, Inc., its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
PURCHASERS: BOSTON VENTURES, LIMITED
PARTNERSHIP V
By Boston Ventures Company V, LLC
-------------------------------
its General Partner
By: /s/ Xxx X. Xxxxxxxx III
----------------------------
Name: Xxx X. Xxxxxxxx III
----------------------
Title: Managing Director
---------------------
WPW, III CAPITAL LIMITED PARTNERSHIP
By WPW, III Capital, Inc.
-------------------------------
its General Partner
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
----------------------
Title: Sec/Treas
---------------------
WPW, III INVESTMENT LIMITED PARTNERSHIP
By WPW, III Investment, Inc.
-------------------------------
its General Partner
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
----------------------
Title: Sec/Treas
---------------------
JDW, II CAPITAL LIMITED PARTNERSHIP
By JDW, II Capital, Inc.
-------------------------------
its General Partner
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
----------------------
Title: Sec/Treas
---------------------
JDW, II INVESTMENT LIMITED PARTNERSHIP
By JDW, II Investment, Inc.
-------------------------------
its General Partner
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
----------------------
Title: Sec/Treas
---------------------
RST CAPITAL LIMITED PARTNERSHIP
By RST Capital, Inc.
-------------------------------
its General Partner
By /s/ Xxxxx X. Xxxxx
-------------------------------
Name: Xxxxx X. Xxxxx
----------------------
Title: Sec/Treas
---------------------
/s/ Xxxxxx X. Xxxxxx, Xx.
--------------------------------------
Xxxxxx X. Xxxxxx, Xx., Trustee of
the Xxxxxx X. Xxxxxx, Xx. Revocable
Trust
