Exhibit 10.22
AGREEMENT AND PLAN OF RECAPITALIZATION
This Agreement and Plan of Recapitalization dated as of June
18, 1997 (the "Agreement") by and among Xxxxxxx Xxxxxx Inc., a Virginia
corporation (the "Company"), Geocapital II, L.P., a Delaware limited
partnership ("Geocapital II"), Geocapital III, L.P., a Delaware
limited partnership ("Geocapital III"), JMI Equity Fund, L.P., a
Delaware limited partnership ("JMI"), Xxxxxxx Xxxxxxxx and Xxxxxxx X.
Xxxxxxx (JMI, Geocapital II, Geocapital III and Messrs. Xxxxxxxx and
Xxxxxxx, each an "Investor" and collectively the "Investors"):
WITNESSETH:
WHEREAS, the Company, JMI, Geocapital II and Geocapital
III, among others, entered into the Series A Convertible Preferred Stock
Purchase Agreement dated as of August 19, 1993 (the "Stock Purchase
Agreement") pursuant to which the Investors purchased an aggregate of
504,950 shares (the "Purchased Shares") of the Company's Series A
Convertible Preferred Stock, no par value per share (the "Series A
Preferred Stock");
WHEREAS, the Series A Preferred Stock is convertible into
shares of the Company's Common Stock, $.02 par value per share (the
"Common Stock"), is redeemable in three installments on August 31 of
each of 1998, 1999 and 2000, and has accruing dividends;
WHEREAS, the Company desires that the Investors exchange
all the Purchased Shares for shares of the Common Stock, and the
Investors are willing to exchange all the Purchased Shares for shares
of the Common Stock, on the terms and subject to the conditions set
forth in this Agreement; and
WHEREAS, the parties intend by executing and delivering this
Agreement, to adopt a plan of recapitalization within the meaning of
Section 368(a)(1)(E) of the Internal Revenue Code of 1986, as amended
(the "Code");
NOW, THEREFORE, in consideration of these premises and
the mutual agreements, provisions and covenants contained in this
Agreement, the Company and the Investors hereby agree as follows:
ARTICLE I
EXCHANGE OF THE PURCHASED SHARES
1.1 Exchange of the Purchase Shares. At the Closing, on the
terms and subject to the conditions set forth in this Agreement, each
Investor shall exchange each Purchased Share held by it for, and the
Company shall issue to each Investor in exchange for each Purchased
Share held by such Investor, 1.3857 shares of Common Stock (all such
shares of Common Stock issued in exchange for Purchased Shares, the
"Exchange Shares").
1.2 No Fractional Shares. Certificates for fractional
shares of the Common Stock shall not be issued to any Investor
pursuant to this Agreement. Each Investor who otherwise would have
been entitled to receive a fraction of a share of the Common Stock shall
receive cash in lieu thereof, without interest, in an amount determined
by multiplying such Investor's fractional interest by $9.75.
1.3 Closing. The closing of the transactions contemplated
by this Agreement (the "Closing") shall be held at the offices of
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP in Boston Massachusetts on July 3,
1997 or as soon thereafter as practicable (the "Closing Date"). At the
Closing, (i) the Company (or its duly authorized agent) shall deliver
to the Investors the appropriate certificates representing the
Exchange Shares and the appropriate amounts of cash in lieu of
fractional shares, and (ii) each Investors shall deliver to the
Company a certificate representing the Purchased Shares held by
such Investor, duly endorsed (or accompanied by appropriate stock
powers duly endorsed) for transfer.
1.4 Exchange Deemed Conversion. For all purposes of the Stock
Purchase Agreement, the Stockholders Agreement dated as of August 19,
1993 by and among the Company, Xxxx X. Xxxxxx and the Investors (the
"Stockholders Agreement") and the Registration Rights Agreement dated
as of August 19, 1993 by and among the Company and the Investors (the
"Registration Rights Agreement"), the issuance of the Exchange Shares
in exchange for the Purchased Shares pursuant to this Agreement
shall be deemed a conversion of the Purchased Shares and the Exchange
Shares shall be deemed to have been issued upon conversion of the
Purchased Shares. Notwithstanding anything to the contrary in the Stock
Purchase Agreement or this Agreement, Section 4 (except for Section
4.12 of the Stock Purchase Agreement which shall continue in effect
in accordance with its terms) and Section 5.2 of the Stock Purchase
Agreement shall terminate effective as of the Closing.
1.5 Certain Tax Matters. The Company shall not take any
position inconsistent with the treatment of the transactions
contemplated by this Agreement as a recapitalization within the
meaning of Section 368(a)(1)(E) of the Code without the prior written
approval of the Investors who hold as of the date hereof at least a
majority of the Purchased Shares.
1.6 Investor Representations. Each Investor hereby, severally
and not jointly, represents and warrants to the Company as follows:
(a) Such Investor is acquiring the Exchange
Shares to be issued to it pursuant to this Agreement for its own
account, for investment, and not with a view to any "distribution"
thereof within the meaning of the Securities Act of 1933 (the
"Securities Act") nor with any present intention of distributing or
selling such Exchange Shares.
(b) Such Investor is knowledgeable and experienced
in the making of venture capital investments, is able to bear the
economic risk of loss of its investment in the Company, has been
granted the opportunity to make a thorough investigation of the
affairs of the Company, and has availed itself of such opportunity to
the extent it has deemed necessary, either directly or through its
authorized representatives.
(c) Such Investor understands that because the
Exchange Shares have not been registered under the Securities Act, it
cannot dispose of any or all of the Exchange Shares unless such
Exchange Shares are subsequently registered under the Securities Act
or exemptions from such registration are available. Such Investor
further understands that the Company may, as a condition to the
transfer of any of the Securities, require that the request for transfer
be accompanied by opinion of counsel the identify of which is deemed
reasonably acceptable to the Company, in form and substance
satisfactory to the Company, to the effect that the proposed transfer
does not result in violation of the Securities Act, unless such
transfer is covered by an effective registration statement under
the Securities Act. Such Investor understands that each certificate
representing the Exchange Shares will bear the following legends or
ones substantially similar thereto:
These shares have not been registered under the
Securities Act of 1933. These shares have been acquired for
investment and not with a view to distribution or resale,
and may not be sold, mortgaged, pledged, hypothecated or
otherwise transferred without an effective registration
statement for such shares under the Securities Act of 1933,
or an opinion of counsel for the corporation that registration
is not required under such act.
The shares represented by this certificate are
subject to the terms and conditions of a Stockholders Agreement
dated August 19, 1993. A copy of such agreement is on file at
the principal executive offices of Xxxxxxx Xxxxxx Inc., and
Xxxxxxx Xxxxxx Inc. will furnish copies of such agreement to
the holder of this certificate upon request and without
charge.
(d) Such Investor is an "accredited investor" as that
term is defined in Rule 501 of Regulation D under the Securities Act.
(e) This Agreement has been duly authorized (with
respect to JMI, Geocapital II and Geocapital III only), executed
and delivered by such Investor and constitutes the valid and binding
obligation of such Investor, enforceable against such Investor in
accordance with its terms.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Investors as
follows:
2.1 Business; Organization, Corporate Power and Authority,
etc. The Company is a corporation duly organized, validly existing and
in good standing under the laws of the Commonwealth of Virginia and has
full corporate power and authority to own and hold its properties and
to carry on its business as presently conducted. The Company is
duly licensed or qualified and in good standing as a foreign
corporation authorized to do business in all jurisdictions in which the
character of property owned or leased, or the nature of the
activities conducted by it, makes such licensing or qualification
necessary, except where the failure to so qualify would not have a
material adverse effect on the business, operations, financial
condition or results of operations of the Company (a "Material Adverse
Effect")
2.2 Validity. The Company has all of the necessary power and
authority, and has taken all action required, to execute, deliver
and perform this Agreement and to issue the Exchange Shares in
exchange for the Purchased Shares. This Agreement has been duly
authorized, executed and delivered by the Company and constitutes the
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms. All other documents and
instruments executed or to be executed by the Company pursuant
hereto when delivered, are and will be duly authorized, executed and
delivered by the Company and are and will constitute valid and
binding obligations of the Company, enforceable against the Company
in accordance with their respective terms. Upon the issuance of the
Exchange Shares in accordance with the terms hereof, the Exchange
Shares will be duly authorized, validly issued, fully paid and
nonassessable and will be free and clear of all liens,
charges, restrictions, claims and encumbrances of any kind, other than
restrictions on transfer under Federal and state securities laws.
2.3 Capitalization; Status of Capital Stock. The Company has
a total authorized capitalization consisting of (i) 10,000,000 shares
of Common Stock, $.02 par value per share, of which 4,543,421 shares
were issued and outstanding as of the close of business on June 17,
1997, and (ii) 1,000,000 shares of Preferred Stock, no par value, of
which 504,950 shares are designated Series A Preferred Stock and are
issued or outstanding. The Company has authorized and reserved a
sufficient number of shares of the Common Stock for issuance in
exchange for the Purchased Shares as contemplated by this Agreement.
Except as set forth in the Registration Statement (as defined below)
or as otherwise contemplated by this Agreement: (a) the Company has
no options or rights to purchase shares of its capital stock, or
securities convertible into shares of its capital stock, authorized,
issued or outstanding, nor is the Company obligated in any manner
to issue shares of its capital stock or securities convertible into
or evidencing any right to acquire shares of its capital stock, or to
distribute to holders of any of its capital stock any evidence of
indebtedness or assets; (b) no entity has any preemptive right, right
of first refusal or similar right to acquire additional shares of
capital stock in connection with the issuance of the Exchange Shares
pursuant to this Agreement or otherwise; (c) there are no restrictions
on the transfer of the shares of capital stock of the Company, other
than those imposed by relevant state and Federal securities laws; (d)
no entity has any right to cause the Company to effect the registration
under the Securities Act of any shares of capital stock or any other
securities (including debt securities) of the Company; (e) the
Company has no obligation to purchase, redeem or otherwise acquire
any of its equity securities or any interests therein, or to pay any
dividend or make any other distribution in respect thereto; and (f)
there are no voting trusts, stockholders' agreements, or proxies
relating to any securities of the Company.
2.4 Litigation. Except as set forth in this Registration
Statement, there is no action, suit, proceeding or investigation
pending or threatened in writing against or affecting the Company which
might result, either in any case or in the aggregate, in any Material
Adverse Effect, or which questions the validity of, or hinders the
enforceability or performance of, this Agreement or any action taken or
to be taken pursuant hereto; nor, to the knowledge of the Company,
has there occurred any event or does there exist any condition on the
basis of which any litigation, proceeding or investigation might
properly be instituted which may have a Material Adverse Effect. Except
as set forth in this Registration Statement, the Company is not in
default with respect to any order, writ, injunction, decree, ruling or
decision of any court, commission, board or other government agency
that might result, either in any case or in the aggregate, in any
Material Adverse Effect.
2.5 No Violations. The execution, delivery and performance
of this Agreement, and any documents or instruments delivered,
executed and performed (or to be delivered, executed and performed)
in connection herewith, the consummation of the transactions
contemplated hereby (including the issuance of the Exchange Shares),
and compliance with the provisions hereof, will not violate any
provision of law, the Articles of Incorporation or Bylaws, as
amended, of the Company, any order of any court or other agency of
government or indenture, agreement or other instrument to which the
Company is bound, or conflict with, result in the breach of or
constitute (with due notice or lapse of time or both) a default under
any such indenture, agreement or other instrument, or result in
the creation or imposition of any lien, charge, restriction, claim
or encumbrance of any nature whatsoever upon any of the properties
or assets of the Company in each case which would have a Material
Adverse Effect.
2.6 Governmental Consents, etc. No consents,
approvals or authorizations of, or registrations, qualifications,
designations, declarations or filings with, any Federal, state or local
governmental authority are required in connection with the execution,
delivery and performance of this Agreement by the Company, and any
documents or instruments delivered, executed and performed (or to be
delivered, executed and performed) by the Company in connection
herewith, the consummation by the Company of the transactions
contemplated hereby (including the issuance of the Exchange Shares),
and compliance by the Company with the provisions hereof, other than
the filing of an additional listing application for listing of the
Exchange Shares on the Nasdaq National Market. The issuance of the
Exchange Shares in exchange for the Purchased Shares is exempt from the
registration requirements of Section 5 of the Securities Act of 1933
and all applicable state securities laws.
2.7 Reports and Financial Statements. (a) The Company has
filed with the Securities and Exchange Commission (the "Commission")
its (i) annual report on Form 10-KSB for the fiscal year ended April
30, 1996 (as amended on July 31, 1996), (ii) quarterly reports on
Form 10-QSB for the periods ended July 31, 1996, October 31, 1996 (as
amended on January 29, 1997), and January 31, 1997, (iii) proxy
statement dated September 11, 1996, and (iv) all other reports,
registration statements and proxy materials required to be filed by the
Company with the Commission under the Securities Act or the Securities
Exchange Act of 1934 since May 1, 1996, all in the form
(including exhibits) so filed (collectively, the "Reports"). As of
their respective dates, the Reports did not contain any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading. Each
of the audited financial statements and unaudited interim financial
statements included in the Reports has been prepared in accordance with
GAAP applied on a consistent basis (except as may be indicated therein
or in the notes thereto) and fairly presents the financial position of
the Company as at its date or the results of operations, stockholders
equity or cash flows, as is appropriate, of the Company for the
periods then ended (subject, in the case of unaudited interim
financial statements, to normal year-end adjustments and any other
adjustments described therein, which adjustments will not be material
in amount or effect).
(b) The Company has previously furnished to
each of the Investors true and complete copies of the June 25,
1997 draft of the Registration Statement on Form S-1 (without
exhibits) (the "Registration Statement") to be filed by the Company
with the Commission on or about June 30, 1997. As of the date hereof,
the Registration Statement did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. Each of the
audited financial statements included in the Registration Statement has
been prepared in accordance with GAAP applied on a consistent basis
(except as may be indicated therein or in the notes thereto) and fairly
presents the financial position of the Company as at its date or the
results of operations, stockholders equity or cash flows, as is
appropriate, of the Company for the periods then ended.
2.8 Material Contracts. Except for those exhibits that will
be filed with the Registration Statement, the Company has filed with
the Commission all material contracts and other documents and materials
required to be filed by the Company as exhibits to the Reports or the
Registration Statement.
2.9 Disclosure. This Agreement, together with the Reports
and the Registration Statement, does not contain any untrue statement of
a material fact or omit to state any material fact necessary in order
to make the statements contained herein and therein not misleading in
the light of the circumstances under which they are or were made. There
exists no fact or circumstances which materially and adversely
affects, or which in the future, has a possibility of materially and
adversely affecting, the the business, operations, financial
condition or results of operations of the Company, which has not been
reflected in financial statements of the Company contained in, or
otherwise disclosed in, the Reports or the Registration Statement.
ARTICLE III
CONDITIONS TO CLOSING
3.1 Conditions to Investors' Obligations. The obligations of
each of the Investors under this Agreement to exchange the Purchased
Shares held by such Investor for the Exchange Shares at the Closing
are, at its option, subject to the satisfaction, or waiver in writing
by the Investors who hold at least a majority of the Purchased Shares,
of the following conditions:
(a) Performance of This Agreement. All the terms,
covenants and conditions of this Agreement to be complied with and
performed by the Company on or before the Closing Date shall have
been complied with, and performed in, all material respects.
(b) Accuracy of Representations and
Warranties. The representations and warranties of the Company set
forth in this Agreement shall be true and correct in all material
respects both on the date of this Agreement and as of the Closing
Date with the same force and effect as if such representations
and warranties were made anew at and as of the Closing Date, except:
(i) to the extent such representations and warranties are by their
express provisions made as of the date of this Agreement or another
specified date; and (ii) for the effect of any activities or
transactions which may have taken place after the date of this
Agreement which are contemplated by this Agreement.
(c) No Material Adverse Change. Since the date
of this Agreement, there shall have been no material adverse change
in the business, operations, financial condition or results of
operations of the Company.
(d) Litigation; Injunctions. No action, suit,
litigation, proceeding or investigation shall (i) have been formally
instituted and be pending, or (ii) be threatened by any party, which,
if resolved substantially in accordance with the plaintiff's demands,
would be reasonably likely to materially and adversely affect the
transactions contemplated by this Agreement. On the Closing Date, there
shall not be in force any order or decree restraining or enjoining
consummation of the transactions contemplated by this Agreement, or
placing any limitation upon such consummation or to invalidate,
suspend or require modification of any provision of this Agreement.
(e) Closing Certificates. The Investors shall have
received a certificate dated the Closing Date, signed by the chief
executive officer and the chief financial officer of each of the
Company, to the effect that the conditions set forth in clauses (a)
through (d) of this Section 3.1 have been satisfied.
(f) Opinion of Counsel. The Investors shall have
received from Xxxxxxx & Xxxxxxx, counsel to the Company, an opinion
dated the Closing Date, which shall be in form and substance
satisfactory to the Investors, substantially to the following
effects:
(i) The Company is a corporation duly
organized, validly existing and in good standing under
the laws of the Commonwealth of Virginia and has full
corporate power and authority to own and hold its properties
and to carry on its business as presently conducted;
(ii) The Company has all of the necessary
corporate power and authority, and has taken all action
required, to execute, deliver and perform this Agreement and
to issue the Exchange Shares in exchange for the Purchased
Shares; this Agreement has been duly authorized, executed
and delivered by the Company and constitutes the valid and
binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as such
enforceability may be subject to or affected by any
bankruptcy, reorganization, insolvency, moratorium or similar
laws of general application from time to time in effect and
relating to or affecting the rights or remedies of creditors
generally;
(iii) Upon the issuance of the Exchange
Shares in accordance with the terms hereof, the Exchange
Shares will be duly authorized, validly issued, fully paid
and nonassessable and will be free and clear of all liens,
charges, restrictions, claims and encumbrances of any kind
imposed by or through the Company, other than restrictions on
transfer under Federal and state securities laws;
(iv) The execution, delivery and performance
of this Agreement, and any documents or instruments
delivered, executed and performed (or to be delivered,
executed and performed) in connection herewith, the
consummation of the transactions contemplated hereby
(including the issuance of the Exchange Shares), and
compliance with the provisions hereof, will not violate any
provision of law, the Articles of Incorporation or Bylaws, as
amended, of the Company, any order of any court or other
agency of government known to such counsel or any indenture,
agreement or other instrument which has been filed as an
exhibit to the Reports or is currently expected to be filed
as an exhibit to the Registration Statement, or conflict with,
result in the breach of or constitute (with due notice or
lapse of time or both) a default under any such indenture,
agreement or other instrument, or result in the creation or
imposition of any lien, charge, restriction, claim or
encumbrance of any nature whatsoever upon any of the
properties or assets of the Company; and
(v) The issuance of the Exchange Shares in
exchange for the Purchased Shares is exempt from the
registration requirements of Section 5 of the Securities Act
of 1933 and all applicable state securities laws.
(g) Authorization; Consents. The Company shall have
obtained any and all consents, permits and waivers and made all filings
necessary or appropriate for consummation of the transactions
contemplated by this Agreement.
(h) All Proceedings Satisfactory. All corporate
and other proceedings taken prior to or on the Closing in connection
with the transactions contemplated by this Agreement, and all
documents and evidences incident thereto, shall be reasonably
satisfactory in form and substance to the Investors, and the
Investors shall receive such copies thereof and other materials
(certified, if requested) as they may reasonably request in connection
therewith.
3.2 Conditions to Company's Obligations. The obligations of the
Company under this Agreement to exchange the Purchased Shares held by
the Investors for the Exchange Shares at the Closing are, at its
option, subject to the satisfaction or waiver of the following
conditions:
(a) Performance of This Agreement. All the terms,
covenants and conditions of this Agreement to be complied with and
performed by the Investors on or before the Closing Date shall have
been complied with, and performed in, all material respects.
(b) Accuracy of Representations and
Warranties. The representations and warranties of the Investors set
forth in Section 1.6 shall be true and correct in all material respects
both on the date of this Agreement and as of the Closing Date with
the same force and effect as if such representations and
warranties were made anew at and as of the Closing Date, except for
the effect of any activities or transactions which may have taken
place after the date of this Agreement which are contemplated by this
Agreement.
(c) Litigation; Injunctions. No action, suit,
litigation, proceeding or investigation shall (i) have been formally
instituted and be pending, or (ii) be threatened by any party, which,
if resolved substantially in accordance with the plaintiff's demands,
would be reasonably likely to materially and adversely affect the
transactions contemplated by this Agreement. On the Closing Date, there
shall not be in force any order or decree restraining or enjoining
consummation of the transactions contemplated by this Agreement, or
placing any limitation upon such consummation or to invalidate,
suspend or require modification of any provision of this Agreement.
(d) Closing Certificates. The Investors shall have
received a certificate dated the Closing Date, signed by the Investors,
to the effect that the conditions set forth in clauses (a) through
(c) of this Section 3.2 have been satisfied.
ARTICLE IV
MISCELLANEOUS
4.1 Amendments and Waivers. This Agreement may not be
amended or modified, and no provisions hereof may be waived, without the
written consent of the Company, and the Investors who hold as of
the date hereof at least a majority of the Purchased Shares.
4.2 Survival of Covenants; Assignability of
Rights. The representations, warranties, covenants and agreements
made by the parties hereto in this Agreement or any certificate or other
writing delivered pursuant hereto or in connection herewith shall
survive the Closing. Any investigation or other examination that may
have been made at any time by or on behalf of the party to whom
representations and warranties are made shall not limit, diminish or in
any way affect the representations and warranties in this Agreement, and
the parties may rely on the representations and warranties in this
Agreement irrespective of any information obtained by them by any
investigation, examination or otherwise.
4.3 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Virginia,
without giving effect to the principles of conflicts of law thereof.
4.4 Section Headings. The descriptive headings in this
Agreement have been inserted for convenience only and shall not be
deemed to limit or otherwise affect the construction of any provision
hereof.
4.5 Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered
shall be taken to be an original; but such counterparts shall
together constitute but one and the same document.
4.6 Notices and Demands. All notices or other communications
to either party hereunder shall be in writing (including telex,
telecopy or similar writing) and shall be given, as follows:
If to the Company, to:
Xxxxxxx Xxxxxx Inc.
0000 Xxxxxx Xxxx
Xxxxxxxx Xxxxx, XX 00000
Attn: President
If to Geocapital II or Geocapital III, to such entity at:
Xxx Xxxxxx Xxxxx
Xxxx Xxx, XX 00000
Attn: Xxxxxxxx Xxxxxx
If to JMI, to:
JMI Equity Fund, L.P.
0000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
If to Xx. Xxxxxxxx or Xx. Xxxxxxx, to such person at:
c/o Broadview Associates
Xxx Xxxxxx Xxxxx
Xxxx Xxx, XX 00000
4.7 Invalidity of Provisions. Each of the provisions contained
in this Agreement is distinct and severable and a declaration of
invalidity or unenforceability of any such provision or part thereof
by a court of competent jurisdiction shall not affect the validity
or enforceability of any other provision hereof or thereof.
4.8 Expenses. The Company shall pay all costs and expenses
that (i) it incurs with respect to the negotiation, execution, delivery
and performance of this Agreement and (ii) the Investors shall
incur with respect to the negotiation, execution, delivery and
performance of this Agreement.
4.9 Entire Agreement. This Agreement and the other documents
delivered pursuant hereto constitute the full and entire understanding
and agreement among the parties with respect to the subjects
contemplated hereby.
4.10 Specific Performance. Each of the parties to this
Agreement hereby acknowledges that the other parties will have no
adequate remedy at law if it fails to perform any of its obligations
under this Agreement. In such event, each of the parties agrees that
the other parties shall have the right, in addition to any other
rights it may have (whether at law or in equity), to specific
performance of this Agreement.
4.11 Brokers Fees. Each party to this Agreement represents and
warrants to the other parties to this Agreement that no fees are payable
to anyone acting in the capacity of broker or finder in connection
with the transactions contemplated by this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first above written.
XXXXXXX XXXXXX INC.
By: /s/ Xxxxxxxxxxx Xxxxx
---------------------
Xxxxxxxxxxx Xxxxx
Secretary, Treasurer and Chief
Financial Officer
GEOCAPITAL II, L.P.
By: Softven Management, L.P.
Its General Partner
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Xxxxx X. Xxxxxxxx
General Partner
GEOCAPITAL III, L.P.
By: Geocapital Management, L.P.
Its General Partner
By: /s/ Xxxxxxx Xxxxx
-----------------
Xxxxxxx Xxxxx
General Partner
JMI EQUITY FUND, L.P.
By: JMI Partners, L.P.
Its General Partner
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Xxxxxxx X. Xxxxx
General Partner
/s/ Xxxxxxx Xxxxxxxx
--------------------
Xxxxxxx Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
----------------------
Xxxxxxx X. Xxxxxxx
