REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement"), dated
as of July 27, 1998, is made by and between the undersigned
members (the "Sellers") of DataChoice Network Services, L.L.C., a
Nevada limited liability company ("DataChoice"), and ICG
Communications, Inc., a Delaware corporation (the "Company").
RECITALS
A. The Sellers and ICG D.C. Holdings, Inc. have entered
into a Purchase Agreement dated as of June 11, 1998, as amended
by an Amendment dated July 27, 1998 (as the same may be amended
from time to time, the "Purchase Agreement"), providing for the
purchase by the Company of all the Sellers' interests in
DataChoice.
B. Upon consummation of the transactions contemplated by
the Purchase Agreement, the Sellers will be entitled to receive
from the Company 145,997 ICG Shares (collectively, the "Shares"),
in consideration of the purchase price of the interests in
DataChoice.
C. It is a condition to the Closing of the transactions
contemplated by the Purchase Agreement that the Company and the
Sellers enter into this Agreement.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the
receipt, sufficiency and adequacy of which are hereby
acknowledged, the parties to this Agreement agree as follows:
1. Defined Terms. Capitalized terms used in this Agreement and
-------------
not otherwise defined herein have the meanings assigned to them
in the Purchase Agreement.
2. Registration Rights.
-------------------
(a) Registration. The Company shall be obligated to
------------
register under the Securities Act, a number of shares of ICG
Common Stock sufficient to permit the resale by the Sellers of
any and all ICG Shares issued pursuant to the Purchase Agreement
(the "Registrable Shares"). The Company shall use commercially
reasonable efforts to prepare and file with the Securities and
Exchange Commission (the "Commission") a registration statement
under the Securities Act covering the Registrable Shares issued
at the Closing (the "Registration Statement") and use its best
efforts to cause the Registration Statement to become effective
on or before the date that is the earlier of (i) April 1, 1999,
and (ii) nine months after the Closing Date (or if such date is
not a Business Day, the next Business Day). Subject to the
terms and conditions of this Agreement, the Company agrees to
maintain the effectiveness of the Registration Statement until
the close of business on July 27, 1999 (the first anniversary of
the Closing Date).
(b) Withdrawal from Registration. The Sellers may, before
----------------------------
a Registration Statement becomes effective, withdraw their
Registrable Shares from sale, should the terms of sale not be
satisfactory to the Sellers; provided however that should the
Sellers so withdraw, such registration shall be deemed to have
occurred for the purposes of Section 2(a) hereof.
(c) Limitations on Registration Rights. Notwithstanding
----------------------------------
the provisions of Section 2(a) hereof, the Company shall not be
required to effect any registration pursuant hereto if the
Company, in order to comply with such request, would be required
to (i) undergo a special interim audit or (ii) prepare and file
with the Commission, sooner than would otherwise be required, pro
forma or other financial statements relating to any proposed or
probable transaction. Notwithstanding the provisions of this
Section 2, the Company shall not be required to effect any
registration pursuant to this Section 2 , or to maintain the
effectiveness of any Registration Statement filed hereunder, if
the Sellers could sell the number of Registrable Shares then
issued without registration under the Securities Act (whether
under Rule 144 promulgated under the Securities Act or any
successor to such rule or otherwise) and without an adverse
effect on the market price of the Registrable Shares. Without
limiting the generality of the foregoing, the Company shall not
be required to maintain the effectiveness of any Registration
Statement filed pursuant to this Agreement after July 27, 1999
(the first anniversary of the Closing Date).
(d) Obligations with Respect to Preparation and Filing of
-----------------------------------------------------
Registration Statement. In connection with its obligation
----------------------
pursuant to this Agreement to effect a registration of
Registrable Shares, the Company shall, as soon as practicable:
(i) furnish, before filing any Registration Statement,
a draft of the prospectus to be included therein ("Prospectus")
and any amendments or supplements relating to such Registration
Statement or Prospectus and copies of all other documents
proposed to be filed, to the Sellers;
(ii) use commercially reasonable efforts to
prepare and file with the Commission any amendments and
supplements to the Registration Statement and to the Prospectus
included therein as may be necessary to keep the Registration
Statement effective and to comply with the provisions of the
Securities Act with respect to the disposition of all Registrable
Shares covered by the Registration Statement for the period
required to effect the distribution of such Registrable Shares
but in no event shall the Company be required to do so after the
earlier to occur of (A) July 27, 1999 (the first anniversary of
the Closing Date) and (B) the date on which all of the
Registrable Shares have been sold by Sellers;
(iii) furnish, at the Company's expense, to the
Sellers such number of copies of the Prospectus, including a
preliminary Prospectus, in conformity with the requirements of
the Securities Act and the rules and regulations promulgated
thereunder, as may reasonably be required in order to facilitate
the disposition of the Registrable Shares covered by a
Registration Statement, but only during the period the Company is
required under the provisions of this Agreement to cause such
Registration Statement to remain effective;
-2-
(iv) use commercially reasonable efforts to register or
qualify the Registrable Shares covered by a Registration
Statement under the securities or blue sky laws of such
jurisdictions in the United States as the Sellers reasonably
request, and do any and all other acts and things which may be
necessary to enable the Sellers to consummate the disposition of
such Registrable Shares in such jurisdictions; provided however,
that the Company shall in no event be required to qualify to do
business as a foreign corporation or a dealer in any jurisdiction
where it is not so qualified, to execute or file any general
consent or become subject to service of process under the laws of
any jurisdiction, or subject itself to taxation in any
jurisdiction where it has not been so subject;
(v) use commercially reasonable efforts to cause the
Registrable Shares to be registered with or approved by such
other governmental agencies or authorities as may be necessary by
virtue of the business and operations of the Company to enable
the Sellers to consummate the disposition of the Registrable
Shares;
(vi) notify each Seller at any time when a Prospectus
relating to the Registrable Shares is required to be delivered
under the Securities Act within the appropriate period mentioned
in clause (iii) of this Section 2(d) of the happening of any
event as a result of which the Prospectus included in any such
Registration Statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then
existing and, at the request of such Seller, prepare and furnish
to such Seller a reasonable number of copies of a supplement to
or an amendment of such Prospectus as may be necessary so that,
as thereafter delivered to the offerees of such Registrable
Shares, such Prospectus shall not include an 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 not
misleading in light of the circumstances then existing; and
(vii) use commercially reasonable efforts to cause
the Registrable Shares to be listed on any national securities
exchange on which any shares of the ICG Common Stock are then
listed.
(e) Blackout Rights. Notwithstanding any other provision
---------------
of this Agreement to the contrary, if the Company determines, in
its reasonable business judgment, that the registration and
offering to be effected pursuant to any Registration Statement
could interfere with or otherwise adversely affect any financing,
acquisition, corporate reorganization, sale, merger,
consolidation or other material transaction or development
involving the Company or any of its affiliates or require the
Company to disclose any matter that otherwise would not be
required to be disclosed at such time, then the Company may, upon
written notice to Sellers' Agent (i) postpone the filing of a
Registration Statement for a reasonable period of time, but in no
event in excess of 60 days after receipt of the initial request
for registration or (ii) if a Registration Statement has become
effective, require the Sellers to suspend the distribution of any
of the Registrable Shares by giving notice to the Sellers. Any
such notice need not specify the reasons for such suspension if
the Company determines, in its reasonable judgment, that doing so
-3-
would interfere with or adversely affect such transaction or
development or would result in the disclosure of material non-
public information. Subject to the following sentence, until the
Company has determined, in its reasonable judgment, that such
postponement or suspension is no longer necessary and has given
notice of that determination to the Sellers, the Company's
obligations to use commercially reasonable efforts to cause a
Registration Statement to become or remain effective and the
Sellers' right to sell Registrable Shares under the Registration
Statement shall be suspended. The Company may exercise its right
to suspend the Seller's registration rights pursuant to this
subparagraph (e) on four occasions and then for a period not to
exceed 60 days per occasion, and the period during which the
Company is required to cause the Registration Statement to remain
effective shall be extended by a period equal to the period of
such suspension.
3. Information and Compliance with Legal Requirements. The
--------------------------------------------------
Sellers agree to cooperate fully with the Company in the
preparation and filing of the Registration Statements pursuant to
this Agreement and further covenant that all information supplied
or to be supplied in writing to the Company by the Sellers or any
of the Sellers' representatives expressly for inclusion in the
Registration Statements, any Prospectus and any amendment or
supplement thereto will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading.
4. Expenses. The Company shall be responsible for all expenses
--------
incurred by the Company in complying with Section 2, including,
without limitation, all registration and filing fees, fees and
expenses of complying with securities and blue sky laws, printing
expenses and fees and expenses of the Company s counsel and
accountants. The Sellers shall be responsible for all
underwriting or broker's discounts and commissions and transfer
taxes, if any, relating to the resale by the Sellers of the
Registrable Shares, as well as all fees and expenses of counsel
and of any other advisor to the Sellers.
5. Indemnification.
---------------
(a) Indemnification by The Company, The Company agrees to
------------------------------
indemnify and hold harmless the Sellers and each Person (if any)
who controls any Seller within the meaning of either the
Securities Act or the Exchange Act (collectively, the "Seller
Indemnified Parties") from and against any losses, claims,
damages or liabilities (collectively "Losses"), joint or several,
to which such Seller Indemnified Parties may become subject,
insofar as such Losses (or actions in respect thereof) are based
upon any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or any
Prospectus, or any omission or alleged omission to state therein
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; and, subject to Section
5(c), the Company shall reimburse such Seller Indemnified Parties
for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such Losses;
provided, however, that the Company shall not indemnify or hold
--------
harmless any Seller Indemnified Party from or against any such
-4-
Losses (i) that arise out of or are based upon any violation of
any federal or state securities laws, rules or regulations
committed by any of the Seller Indemnified Parties (or any Person
who controls any of them or any agent, broker-dealer or
underwriter engaged by them) or in the case of a non-underwritten
offering, any failure by such Sellers to give any purchaser of
Registrable Shares, at or prior to the written confirmation of
such sale, a copy of the most recent Prospectus or (ii) if the
untrue statement, omission or allegation thereof upon which such
Losses or expenses are based (x) was made in reliance upon and in
conformity with the information provided by or on behalf of any
Seller Indemnified Party specifically for use or inclusion in any
Registration Statement or any Prospectus, or (y) was made in any
Prospectus used after such time as the Company advised such
Seller that the filing of a post-effective amendment or
supplement thereto was required, except the Prospectus as so
amended or supplemented, or (z) was made in any Prospectus used
after such time as the obligation of the Company hereunder to
keep such Registration Statement effective and current has
expired or been suspended hereunder.
(b) Indemnification by Sellers. The Sellers, severally and
--------------------------
not jointly, agree to indemnify and hold harmless the Company,
its directors and officers and each person, if any, who controls
the Company within the meaning of either the Securities Act or
the Exchange Act (the "Company Indemnified Parties"), from and
against any Losses, joint or several, to which the Company
Indemnified Parties may become subject, insofar as such Losses
(or actions in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or any
Prospectus, or any omission or alleged omission to state therein
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, if the statement or omission
was made in reliance upon and in conformity with the information
provided by or on behalf of a Seller or any Person who controls such
Seller specifically for use or inclusion in the Registration
Statements or any Prospectus, (ii) the use of any Prospectus after
such time as the Company has advised a Seller that the filing of a
post-effective amendment or supplement thereto is required, except
the Prospectus as so amended or supplemented, (iii) the use of any
Prospectus after such time as the obligation of the Company hereunder
to keep such Registration Statement effective and current has expired
or been suspended hereunder or (iv) any violation by a Seller or
any Person who controls such Seller within the meaning of either
the Securities Act or the Exchange Act (or any agent, broker-dealer
or underwriter engaged by such Seller or any such controlling person)
of any federal or state securities law or rule or regulation
thereunder or any failure by such Seller to give any purchaser of
Registrable Shares at or prior to the written confirmation of such
sale a copy of the most recent Prospectus; and, subject to Section
5(c), such Seller shall reimburse such the Company Indemnified
Parties for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such Losses.
For purposes of this Agreement, including but not limited to clause
(i) of the preceding sentence and clause (ii) of the proviso set
forth in Section 5(a), any information concerning any Seller
Indemnified Party or plan of distribution included in any
Registration Statement or Prospectus that is provided to a Seller for
his review within a reasonable period before filing or use thereof
and as to which such Seller has not promptly provided written notice
of objection or correction to the Company shall be deemed to have
been provided by such Seller specifically for use in such
Registration Statement or Prospectus.
-5-
(c) Indemnification Procedure. Each party entitled to
-------------------------
indemnification under this Section 5 (the "Indemnified Party") shall
give notice to the party required to provide indemnification (the
"Indemnifying Party") promptly after such Indemnified Party has
actual knowledge of any claim as to which indemnity may be sought, and
the Indemnifying Party may participate at its own expense in the
defense, or if it so elects, to assume the defense of any such claim
and any action or proceeding resulting therefrom, including the
employment of counsel and the payment of all expenses. The failure of
any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party from its obligations to indemnify
such Indemnified Party, except to the extent the Indemnified Party's
failure so to notify actually prejudices the Indemnifying Party's
ability to defend against such claim, action or proceeding. If the
Indemnifying Party elects to assume the defense in any action or
proceeding, the Indemnified Party shall have the right to employ
separate counsel in any such action or proceeding and to participate
in the defense thereof, but the fees and expenses of such separate
counsel shall be such Indemnified Party's expense unless (i) the
Indemnifying Party has agreed to pay such fees and expenses or (ii)
the named parties to any such action or proceeding (including any
impleaded parties) include an Indemnified Party and the Indemnifying
Party, and such Indemnified Party shall have been advised by counsel
that there may be a conflict of interest between such Indemnified
Party and the Indemnifying Party in the conduct of the defense of such
action (in which case, if such Indemnified Party notifies the
Indemnifying Party in writing that it elects to employ separate
counsel at the expense of the Indemnifying Party, the Indemnifying
Party shall not assume the defense of such action or proceeding on
such Indemnified Party's behalf, it being understood, however, that
the Indemnifying Party shall not, in connection with any one such
action or proceeding or separate but substantially similar or related
actions or proceedings arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more
than one separate firm of attorneys at any time for all Indemnified
Parties, which firm will be designated in writing by the Seller or
the Company, as the case may be). No Indemnifying Party, in the
defense of any such claim or litigation, shall, except with the
consent of the Indemnified Party, 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 such
Indemnified Party of a release from all liability with respect to such
claim or litigation. The Indemnifying Party shall not be liable for
any settlement of any such action or proceeding effected without its
written consent, but if settled with its written consent, or if there
be a final judgment for the plaintiff in any such action or
proceeding, the Indemnifying Party shall indemnify and hold harmless
the Indemnified Party from and against any loss or liability by reason
of such settlement or judgment.
(d) Allocation and Contribution. If the indemnification
---------------------------
provided for under this Section 5 is unavailable to or
insufficient to hold the Indemnified Party harmless in respect of any
Losses referred to in Section 5(a) or (b) above for any reason other
than as specified therein, then the Indemnifying Party shall
contribute to the amount paid or payable by such Indemnified Party as
a result of such Losses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Indemnifying Party on
the one hand and such Indemnified Party on the other from the
subject offering or distribution or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
-6-
referred to in clause (i) above but also the relative fault of the
Indemnifying Party on the one hand and such Indemnified Party on the
other in connection with the statements or omissions which resulted
in such Losses as well as any other relevant equitable considerations.
The relative benefits received by the Indemnifying Party on the one
hand and the Indemnified Party on the other hand shall be deemed to
be in the same proportion as the net proceeds of the offering or
other distribution (after deducting expenses) received by the
Indemnifying Party bears to the net proceeds of the offering or other
distribution (after deducting expenses) received by the Indemnified
Party. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a
material fact relates to information supplied by (or omitted to be
supplied by) the Company or the Sellers, the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission, the relative benefits received by
each party from the sale of the Registrable Shares and any other
equitable considerations appropriate under the circumstances. The
amount paid or payable by an Indemnified Party as a result of the
Losses referred to above in this Section 5(d) shall be deemed to
include any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending any
such action or claim. No person who was guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
6. Further Assurances. After the Closing Date, the Sellers shall
------------------
take such other actions and enter into such other agreements as may be
deemed reasonably necessary or advisable by the Company in connection
with any resale by the Sellers of the Shares.
7. Miscellaneous.
-------------
(a) Entire Agreement. This Agreement constitutes the entire
----------------
agreement between the parties with respect to the subject matter
hereof and supersedes all prior written and oral, and all
contemporaneous oral, agreements and understandings with respect to
the subject matter of this Agreement.
(b) Notices. All notices and other communications hereunder
-------
shall be in writing and shall be deemed to have been duly given when
delivered in person, by telecopy, or by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties
as follows:
If to the Company: ICG Communications, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: H. Xxx Xxxxxx, Esq.
Executive Vice President,
Secretary and General Counsel
-7-
With a copy to: Xxxxxxx & Xxxxxx L.L.C.
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx Xxxxx, Esq.
If to the Sellers: G. Xxxxxx Xxxxx
0000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
with a copy to:
Olona & Associates, P.C.
Attention: Xxxxxxx X. Xxxxx, Esq.
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
or to such other address as the party to whom notice is given may have
previously furnished to the others in writing in the manner set forth
above. Any notice or communication delivered in person shall be
deemed effective on delivery. Any notice or communication sent by
telecopy shall be deemed effective when confirmed. Any notice or
communication sent by registered or certified mail, return receipt
requested, shall be deemed effective when received, as evidenced by
the return receipt.
(c) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
-------------
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE
REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER PRINCIPLES OF
CONFLICTS OF LAWS APPLICABLE THERETO.
(d) Rules of Construction. The descriptive headings in this
---------------------
Agreement are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation of
this Agreement. Words used in this Agreement, regardless of the
gender and number specifically used, shall be deemed and construed to
include any other gender, masculine, feminine, or neuter, and any
other number, singular or plural, as the context requires. As used in
this Agreement, the word "including" is used in an illustrative sense
rather than a limiting sense, and the word "or" is not exclusive.
(e) Parties in Interest. This Agreement shall be binding
-------------------
upon and inure solely to the benefit of the parties to this Agreement
and their legal successors-in-interest, and nothing in this
Agreement, express or implied, is intended to confer upon any other
person any rights or remedies of any nature whatsoever under or by
reason of this Agreement.
-8-
(f) Counterparts. This Agreement may be executed in
------------
counterparts, each of which shall be deemed to be an original, but all
of which shall constitute one and the same agreement. This Agreement
may be delivered by facsimile and facsimile signatures will be treated
as original signatures for all applicable purposes.
(g) Assignment. This Agreement may not be assigned by either
----------
party to this Agreement.
(h) Amendment. This Agreement may not be amended except by
---------
an instrument in writing signed on behalf of both the parties.
(i) Extension; Waiver. Either party to this Agreement may
-----------------
(a) agree to extend the time for the performance of any of the
obligations or other acts of the other party to this Agreement, (b)
waive any inaccuracies in the representations and warranties of the
other party contained herein or in any document, certificate, or
writing delivered pursuant to this Agreement by the other party, or
(c) waive compliance by the other party with any of the agreements or
conditions contained herein or any breach thereof. Any agreement on
the part of either party to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf
of such party.
(j) Legal Fees; Costs. If either party to this Agreement
-----------------
institutes any action or proceeding, whether before a court or
arbitrator, to enforce any provision of this Agreement, the prevailing
party therein shall be entitled to receive from the losing party
reasonable attorneys' fees and costs incurred in such action or
proceeding, whether or not such action or proceeding is prosecuted to
judgment.
(k) Arbitration. Any disputes arising under or in connection
-----------
with this Agreement, including, without limitation, those involving
claims for specific performance or other equitable relief, will be
submitted to binding arbitration under the Commercial Arbitration
Rules of the American Arbitration Association under the authority of
federal and state arbitration statutes, and will not be the subject
of litigation in any forum. EACH PARTY, BY SIGNING THIS AGREEMENT,
VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY WAIVES ANY RIGHTS SUCH
PARTY MAY OTHERWISE HAVE TO SEEK REMEDIES IN COURT OR OTHER FORUMS,
INCLUDING THE RIGHT TO JURY TRIAL. The arbitration will be conducted
only in Denver, Colorado, or another location mutually agreed by the
Sellers and the Company, before a single arbitrator selected by the
parties or, if they are unable to agree on an arbitrator, before a
panel of three arbitrators, one selected by Sellers, one selected
by the Company and the third selected by the other two arbitrators.
The arbitrators will have full authority to order specific
performance and award damages and other relief available under this
Agreement or applicable law, but will have no authority to add to,
detract from, change or amend the terms of this Agreement or existing
law. All arbitration proceedings, including settlements and awards,
will be confidential. The decision of the arbitrators will be final
and binding, and judgment on the award by the arbitrators may be
entered in any court of competent jurisdiction. THIS SUBMISSION AND
AGREEMENT TO ARBITRATE WILL BE
-9-
SPECIFICALLY ENFORCEABLE. The arbitrator will have no power to award
punitive or exemplary damages, to ignore or vary the terms of this
Agreement, and will be bound to apply controlling law. The party who
prevails on entry of the award of judgment will be entitled to his or
its costs and expenses, including reasonable attorney's fees incurred
in connection with the arbitration. A judgment upon the award may be
entered in any court having jurisdiction.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
ICG COMMUNICATIONS, INC.
By: --------------------------------------
Name: --------------------------------
Title: -------------------------------
SELLERS:
G. Xxxxxx Xxxxx Trust
By: --------------------------------------
G. Xxxxxx Xxxxx, Trustee
XXXXXX X. XXXX DAUGHTERS TRUST
By: --------------------------------------
Xxxxxx X. Xxxxx, Trustee
By: G. Xxxxxx Xxxxx,
as attorney in fact
--------------------------------------
Xxxxxxx R.K. Fought
T&D CONSULTING, INC.
By: ----------------------------------------
Xxxxx Xxxxxxx
-10-
