EXHIBIT 10.2
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COMMAND SYSTEMS, INC.
REGISTRATION RIGHTS AGREEMENT
AUGUST 26, 1997
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REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (the "Agreement") is entered into as of
August 26, 1997 by and between Command Systems, Inc., a Delaware corporation
(the "Company"), and Phoenix Home Life Mutual Insurance Company (the
"Investor").
WHEREAS, the Company is issuing up to 100 shares of Series A Convertible
Preferred Stock, $.01 par value ("Series A Preferred"), in exchange for certain
promissory notes (the "Notes") by and among the Company and its subsidiaries and
the Investor pursuant to the Exchange Agreement of even date herewith among the
Company and the Investor (the "Exchange Agreement"); and
WHEREAS, one of the conditions to the consummation of the transactions
contemplated by the Exchange Agreement is the execution and delivery of this
Agreement to provide for registration rights for the shares of Series A
Preferred exchanged for the Notes by the Investor as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and the exchange of the Series A Preferred for the Notes by the
Investor under the Exchange Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms shall
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have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission and any
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successor agency of the Federal government administering the Securities Act.
"Common Stock" shall mean (i) the common stock, $.01 par value per share, of
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the Company, (ii) any other capital stock of the Company, however designated,
authorized on or after the date hereof, which shall neither be limited to a
fixed sum or percentage of par value in respect of the rights of the holders
thereof to participate in dividends nor entitled to a preference in the
distribution of assets upon the voluntary or involuntary liquidation,
dissolution or winding up of the Company and (iii) any other securities into
which or for which any of the securities described in (i) or (ii) may be
converted or exchanged pursuant to a plan of recapitalization, reorganization,
merger, consolidation, sale of assets or other similar transaction.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended, and
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any similar or successor Federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to time.
"Opportunity Date" shall have the meaning specified in Section 7.
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"Preferred Shares" shall mean the shares of the Series A Preferred.
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"Register," "registered" and "registration" shall refer to a registration
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effected by preparing and filing a registration statement in compliance with the
Securities Act and applicable rules and regulations thereunder, and the
declaration or ordering of the effectiveness of such registration statement, or,
as the context may require, under the Exchange Act or applicable state
securities laws.
"Registrable Securities" shall mean (i) the Preferred Shares, (ii) shares of
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Common Stock or other securities issued or issuable pursuant to the conversion
of the Preferred Shares and (iii) any shares of Common Stock or such other
securities issued or issuable in respect of such shares of Common Stock or such
other securities issued or issuable pursuant to the conversion of the Preferred
Shares upon any stock split, stock dividend, recapitalization, reorganization,
merger, consolidation, sale of assets or similar event, excluding in any event
securities (a) which have been registered under the Securities Act pursuant to
an effective registration statement filed thereunder and disposed of in
accordance with the registration statement covering them or (b) which may be or
have been publicly sold pursuant to Rule 144 under the Securities Act. Wherever
reference is made in this Agreement to a request or consent of holders of a
certain percentage of Registrable Securities, the determination of such
percentage shall be calculated on the basis of shares of Common Stock issued or
issuable upon conversion of the Preferred Shares even if such conversion has not
been effected.
"Registration Expenses" shall mean the expenses so described in Section 8.
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"Securities Act" shall mean the Securities Act of 1933, as amended, and any
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similar or successor Federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to time.
"Selling Expenses" shall mean the expenses so described in Section 8.
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2. Restrictive Legend. Each certificate representing Registrable Securities
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shall, except as otherwise provided in this Section 2 or in Section 3, be
stamped or otherwise imprinted with a legend substantially in the following form
(in addition to any legend required under applicable state securities laws):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR APPLICABLE STATE SECURITIES LAWS.
THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO
DISTRIBUTION OR RESALE. SUCH SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD,
DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE
OF (1) AN EFFECTIVE REGISTRATION STATEMENT COVERING SUCH SECURITIES UNDER
THE SECURITIES ACT OF 1933 AND ANY APPLICABLE STATE SECURITIES LAWS OR (2)
AN OPINION OF COUNSEL, WHICH MAY BE THE IN-HOUSE COUNSEL FOR PHOENIX HOME
LIFE MUTUAL INSURANCE COMPANY, REASONABLY SATISFACTORY TO THE COMPANY THAT
AN EXEMPTION FROM REGISTRATION THEREUNDER IS AVAILABLE.
Upon request of a holder of such a certificate, the Company shall remove the
foregoing legend from the certificate or issue to such holder a new certificate
therefor free of any transfer legend, if (i) there is an effective registration
statement covering the securities represented by such certificate, or (ii) with
such request, the Company shall have received either the opinion referred to in
Section 3(i) or the "no-action" letter referred to in Section 3(ii).
3. Notice of Proposed Transfer. Prior to any proposed sale, pledge,
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hypothecation or other transfer of any Registrable Securities (other than under
the circumstances described in Section 4, 5 or 7 or pursuant to a distribution
of the type described in the proviso to the next succeeding sentence), the
holder thereof shall give written notice to the Company of its intention to
effect such
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sale, pledge, hypothecation or other transfer. Each such notice shall describe
the manner of the proposed sale, pledge, hypothecation or other transfer and, if
requested by the Company, shall be accompanied by either (i) an opinion of
counsel (which may be the in-house counsel of the Investor) reasonably
satisfactory to the Company to the effect that the proposed sale, pledge,
hypothecation or other transfer may be effected without registration under the
Securities Act or (ii) a "no action" letter from the Commission to the effect
that the distribution of such securities without registration will not result in
a recommendation by the staff of the Commission that action be taken with
respect thereto, whereupon the holder of such stock shall be entitled to
transfer such stock in accordance with the terms of its notice, provided,
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however, that no such opinion of counsel shall be required for a distribution to
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one or more partners of the transferor (in the case of a transferor that is a
partnership) or to a stockholder (in the case of a transferor that is a
corporation) in each case in respect of the beneficial interest of such partner
or stockholder. Each certificate for Registrable Securities transferred as above
provided shall bear the appropriate restrictive legend set forth in Section 2,
except that such certificate shall not bear such legend if (i) such transfer is
in accordance with the provisions of Rule 144 (or any other rule permitting
public sale without registration under the Securities Act), or (ii) the opinion
of counsel or "no-action" letter referred to above is to the further effect that
the transferee and any subsequent transferee (other than an affiliate of the
Company) would be entitled to transfer such securities in a public sale without
registration under the Securities Act or that such legend is not required to
establish compliance with any provisions of the Securities Act. Notwithstanding
any other provision hereof, the restrictions provided for in this Section 3
shall not apply to securities which are not required to bear the legend
prescribed by Section 2 in accordance with the provisions of that Section.
4. Incidental Registration. If the Company at any time (other than
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pursuant to Section 5) proposes to register any of its securities under the
Securities Act for sale to the public, whether for its own account or for the
account of other security holders or both (except with respect to registration
statements on Forms X-0, X-0 or any successor to such forms or another form not
available for registering the Registrable Securities for sale to the public),
each such time it will promptly give written notice to all holders of the
Registrable Securities of its intention so to do. Upon the written request of
any such holder, received by the Company within twenty (20) days after the
giving of any such notice by the Company, to register any or all of its
Registrable Securities, the Company will use all reasonable efforts to cause the
Registrable Securities as to which registration shall have been so requested to
be included in the securities to be covered by the registration statement
proposed to be filed by the Company, all to the extent requisite to permit the
sale or other disposition by the holder (in accordance with its written request)
of such Registrable Securities so registered. Notwithstanding any other
provision of this Section 4, the Company shall not be obligated to register any
Preferred Shares for sale pursuant to any such registration, provided, however,
that in any underwritten public offering contemplated by this Agreement, the
holders of Preferred Shares shall be entitled to sell such Preferred Shares to
the underwriters for conversion and sale of the shares of Common Stock issued
upon conversion thereof. If the registration of which the Company gives notice
is for a registered public offering involving an underwriting, the Company shall
so advise the holders of Registrable Securities as a part of the written notice
given pursuant to this Section 4. In such event the right of any holder of
Registrable Securities to registration pursuant to this Section 4 shall be
conditioned upon such holder's participation in such underwriting to the extent
provided herein. All holders of Registrable Securities proposing to distribute
their securities through such underwriting shall (together with the Company and
persons who by virtue of similar agreements with the Company are entitled to
include such shares in such registration (the "Other Shareholders") are
distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for underwriting by the Company. Notwithstanding any other provision
of this Section 4, if the underwriter determines that marketing factors require
a limitation on the number of shares to be underwritten, the underwriter may
(subject to the allocation priority
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set forth below) exclude from such registration and underwriting some or all of
the Registrable Securities which would otherwise be underwritten pursuant
hereto. The Company shall so advise all holders of securities requesting
registration of any limitations on the number of shares to be underwritten, and
the number of shares of securities that are entitled to be included in the
registration and underwriting shall be allocated in the following manner: (i) in
connection with any registration for the Company's own account, first to the
Company, provided that until the Opportunity Date the number of shares of
securities entitled to be included in the registration and underwriting shall be
shared by the Company and the Investor ratably in accordance with the number of
shares of securities of the Company and the Investor then desired to be included
therein; (ii) second to any holder who is entitled to and is exercising a demand
or required registration right, provided that, to the extent that the Company
and the Investor desire to include any shares of securities in any registration
or underwriting initiated by such holder, until the Opportunity Date, the number
of shares of securities entitled to be included in the registration and
underwriting and available to the Company and the Investor shall be shared by
the Company and the Investor ratably in accordance with the number of shares of
securities of the Company and the Investor then desired to be included therein
and, after the Opportunity Date, the Company's shares of securities shall have
priority over those of the Investor under this proviso; (iii) third, until the
Opportunity Date, to the Investor in preference to any other holders of the
Company's securities; and (iv) fourth, after the Opportunity Date, among all
holders of the Company's securities who are entitled to be included in such
registration and have elected to be included in such registration in proportion,
as nearly as practicable, to the respective amounts of securities owned by them.
Notwithstanding the foregoing provisions, the Company may withdraw any
registration statement referred to in this Section 4 without thereby incurring
any liability to the holders of Registrable Securities. If any holder of
Registrable Securities disapproves of the terms of any such underwriting, it may
elect to withdraw therefrom by written notice to the Company and the
underwriter. Any Registrable Securities or other securities excluded or
withdrawn from such underwriting shall be withdrawn from such registration. The
Company shall be obligated to register the Registrable Securities pursuant to
this Section 4 for so long as the Investor holds Registrable Securities.
5. Registration on Form S-3.
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(a) If, at any time following the revocation of the Shelf Registration
Statement referred to in Section 7, (i) any holder or holders of the Registrable
Securities request that the Company file a registration statement on Form S-3 or
any comparable or successor form thereto for a public offering of all or any
portion of the shares of Registrable Securities held by such requesting holder
or holders, the reasonably anticipated aggregate price to the public of which
would exceed $500,000 and (ii) the Company is a registrant entitled to use Form
S-3 or any comparable or successor form thereto to register such shares, then
the Company shall use all reasonable efforts to register under the Securities
Act on Form S-3 or any comparable or successor form thereto, for public sale in
accordance with the method of disposition specified in such notice, the number
of shares of Registrable Securities specified in such notice. Whenever the
Company is required by this Section 5 to use all reasonable efforts to effect
the registration of Registrable Securities, each of the procedures and
requirements of Section 4, including, but not limited to, the requirement that
the Company notify all holders of Registrable Securities from whom notice has
not been received and provide them with the opportunity to participate in the
offering (provided, however that holders shall have no more than twenty (20)
days to reply to the Company's notice in order to participate in the offering),
shall apply to such registration, provided, however, that no more than one
registration during any nine month period may be requested and obtained under
this Section 5. Notwithstanding any other provision of this Section 5, the
Company shall not be obligated to register any Preferred Shares for sale
pursuant to any such registration.
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(b) The Company shall use its best efforts to qualify for registration on
Form S-3 or any comparable or successor form or forms and to that end the
Company shall register (whether or not required by law to do so) the Common
Stock under the Exchange Act in accordance with the provisions of that Act
following the effective date of the first registration of any securities of the
Company on Form S-1 or any comparable or successor form.
6. Registration Procedures. If and whenever the Company is required by
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the provisions of Section 4 or 5 to use all reasonable efforts to effect the
registration of any Registrable Securities under the Securities Act, the Company
will, as expeditiously as possible:
(a) Prepare and file with the Commission a registration statement (which, in
the case of an underwritten public offering pursuant to Section 4, may be on
Form S-1 or other form of general applicability satisfactory to the managing
underwriter selected as therein provided) with respect to such securities
including executing an undertaking to file post-effective amendments and use its
best efforts to cause such registration statement to become and remain effective
for the period of the distribution contemplated thereby;
(b) Prepare and file with the Commission such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective for the period
specified herein and comply with the provisions of the Securities Act with
respect to the disposition of all Registrable Securities covered by such
registration statement in accordance with the sellers' intended method of
disposition set forth in such registration statement for such period;
(c) Furnish to each seller of Registrable Securities and to each underwriter
such number of copies of the registration statement and each such amendment and
supplement thereto (in each case including all exhibits) and the prospectus
included therein (including each preliminary prospectus) as such persons
reasonably may request in order to facilitate the public sale or other
disposition of the Registrable Securities covered by such registration
statement;
(d) Use all reasonable efforts to register or qualify the Registrable
Securities covered by such registration statement under the securities or "blue
sky" laws of such jurisdictions as the sellers of Registrable Securities or, in
the case of an underwritten public offering, the managing underwriter reasonably
shall request, provided, however, that the Company shall not for any such
purpose be required to qualify generally to transact business as a foreign
corporation in any jurisdiction where it is not so qualified or to consent to
general service of process in any such jurisdiction, unless the Company is
already subject to service in such jurisdiction;
(e) Use its best efforts to list the Registrable Securities covered by such
registration statement with any securities exchange or quotation system on which
the Common Stock of the Company is then listed;
(f) Comply with all applicable rules and regulations under the Securities
Act and Exchange Act;
(g) Immediately notify each seller of Registrable Securities and each
underwriter under such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
happening of any event of which the Company has knowledge as a result of which
the prospectus contained in 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 promptly prepare
and furnish to such seller a reasonable number
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of copies of a prospectus or amended so that, as thereafter delivered to the
purchasers of such Registrable Securities, 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;
(h) If the offering is underwritten and at the request of any seller of
Registrable Securities, furnish on the date that Registrable Securities are
delivered to the underwriters for sale pursuant to such registration (i) an
opinion dated such date of counsel representing the Company for the purposes of
such registration, addressed to the underwriters to such effects as reasonably
may be requested by counsel for the underwriters and executed counterparts of
such opinion addressed to the sellers of Registrable Securities to the same
effect as requested by counsel for the underwriters and (ii) a letter dated such
date from the independent public accountants retained by the Company, addressed
to the underwriters stating that they are independent public accountants within
the meaning of the Securities Act and that, in the opinion of such accountants,
the financial statements of the Company included in the registration statement
or the prospectus, or any amendment or supplement thereof, comply as to form in
all material respects with the applicable accounting requirements of the
Securities Act and such letter shall additionally cover such other financial
matters (including information as to the period ending no more than five (5)
business days prior to the date of such letter) with respect to such
registration as such underwriters reasonably may request;
(i) Make available for inspection by each seller of Registrable Securities,
any underwriter participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained by such seller
or underwriter, reasonable access to all financial and other records, pertinent
corporate documents and properties of the Company, as such parties may
reasonably request, and cause the Company's officers, directors and employees to
supply all information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such registration statement;
(j) Cooperate with the selling holders of Registrable Securities and the
managing underwriter, if any, to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be sold, such
certificates to be in such denominations and registered in such names as such
holders or the managing underwriter may request at least two business days prior
to any sale of Registrable Securities; and
(k) Permit any holder of Registrable Securities which holder, in the sole
and exclusive judgment, exercised in good faith, of such holder, might be deemed
to be a controlling person of the Company, to participate in good faith in the
preparation of such registration or comparable statement and to require the
insertion therein of material, furnished to the Company in writing, which in the
reasonable judgment of such holder and its counsel should be included provided,
however, that the Company shall not be required to amend or supplement the
prospectus in any manner that, at the advice of the Company's counsel or
independent accountants, may cause the registration statement to 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 or otherwise cause the registration
statement to not be in conformity with the Securities Act or the Exchange Act.
(l) With respect to any underwritten offering under Section 5, enter into
underwriting agreements in customary form and take such other actions as the
Investor may reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities;
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(m) Make generally available to its security holders (as contemplated by
Section 11(a) under the Securities Act) an earnings statement satisfying the
provisions of Rule 158 under the Securities Act no later than ninety (90) days
after the end of the twelve (12) month period beginning with the first month of
the Company's first fiscal quarter commencing after the effective date of the
registration statement, which statement shall cover said twelve (12) month
period.
For purposes of this Agreement, the period of distribution of Registrable
Securities in a firm commitment underwritten public offering shall be deemed to
extend until each underwriter has completed the distribution of all securities
purchased by it, and the period of distribution of Registrable Securities in any
other registration shall be deemed to extend until the earlier of the sale of
all Registrable Securities covered thereby or 120 days after the effective date
thereof.
In connection with each registration hereunder, the sellers of Registrable
Securities will furnish to the Company in writing such information requested by
the Company with respect to themselves and the proposed distribution by them as
shall be necessary in order to assure compliance with Federal and applicable
state securities laws; and such sellers shall provide the Company with
appropriate representations with respect to the accuracy of such information.
7. Shelf Registration . In the event that following a "Qualified Public
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Offering" (as such term is defined in the Company's Amended and Restated
Certificate of Incorporation) the Series A Preferred has not been fully
converted into Common Stock, then:
(a) Following the effectiveness of the registration statement related to
such Qualified Public Offering, the Company shall:
(i) Within 10 business days of such effectiveness, use all reasonable
efforts to register the Registrable Securities for resale on a new
registration statement (pursuant to Rule 415 under the Securities Act or
any similar rule that may be adopted by the Commission) on Form S-1 or, if
available Form S-3 (together with any registration statement that may
replace any such Form S-1 in accordance with Section 7(e), and any
amendments and supplements thereto, the "Shelf Registration Statement") and
shall, use all reasonable efforts to keep such Shelf Registration Statement
effective (including, without limitation, supplementing or amending such
Shelf Registration Statement from time to time, as required by the
registration form utilized by the Company for the same or by the
instructions applicable to such registration form or by the Securities Act)
until the earlier of (i) the Mandatory Conversion Date, or (ii) the
Optional Withdrawal Date; and
(ii) Use its best efforts to list the Registrable Securities covered
by the Shelf Registration Statement with any securities exchange or
quotation system on which the Common Stock of the Company is then listed.
(b) Prior to the withdrawal of the Shelf Registration Statement in
accordance with the following provisions, the Company shall not be obligated to
register any Registrable Securities in accordance with Section 5 (but shall
continue to be obligated to register the Registrable Securities in accordance
with Section 4). The Shelf Registration Statement may be withdrawn: (i) by the
Company at any time after the Series A Preferred has been fully converted into
Common Stock, (ii) by the Company on the date which is 121 days after the
Opportunity Date (such date being referred to as the "Mandatory Conversion
Date"), or (iii) at the request of the holders of a majority of the Preferred
Shares (the date of such request being referred to as the "Optional Withdrawal
Date"). In the event that the Shelf Registration Statement is withdrawn by the
Company or the holders of a majority of the Preferred Shares pursuant to this
Section 7(b), then (i) the Company shall be obligated to register any remaining
Registrable Securities in accordance with both Sections 4 and 5
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and (ii) the holders of the Preferred Shares shall be deemed to have had an
opportunity to sell at least 50% of the shares of Common Stock into which the
Series A Preferred is convertible for the purposes of Section 2(c)(i)(2) and
Section 4 of the Company's Amended and Restated Certificate of Incorporation.
The Company shall not be required to file a registration pursuant to this
Section 7 following the withdrawal of the Shelf Registration Statement as
provided above.
(c) For purposes of this Agreement:
(i) In the event that, following the Qualified Public Offering, the
average closing sale price of a share of Common Stock on the quotation
system or exchange upon which the Common Stock is listed for any ten
consecutive day period is equal to or in excess of $4.78 (which price,
subject to equitable adjustment in the event of any stock dividend, stock
split, combination, reorganization, recapitalization or similar event
involving a change in the Common Stock, shall be referred to as the "Base
Price"), the Company may, within three business days following the
expiration of any such 10-day period, deliver to the holders of the
Preferred Shares a written notice indicating that the Common Stock has so
traded (the "Conversion Notice"). The Conversion Notice shall be
accompanied by a copy of the Shelf Registration Statement and a copy of the
prospectus included therein;
(ii) Within ten business days of receipt of the Conversion Notice and
such accompanying materials (such ten-day period following the delivery of
the Conversion Notice being referred to as the "Review Period"), the
Investor, as representative of the holders of Preferred Shares, may (A)
request copies of the Shelf Registration Statement and related materials in
accordance with Section 7(d)(i), (B) request the insertion of material in
accordance with Section 7(d)(viii), and/or (C) notify the Company that the
holders of Preferred Shares intend to sell Registrable Securities in an
underwritten offering. If the Investor requests any reasonable changes to
the Shelf Registration Statement and the accompanying prospectus during the
Review Period in accordance with clause (B), the Company shall, as soon as
practicable, amend or supplement the Shelf Registration Statement as
requested and thereafter provide the holders of Preferred Shares copies of
the Shelf Registration Statement and related materials in accordance with
Section 7(d)(i);
(iii) If, following (1) the delivery of the requested prospectuses in
accordance with either clause (A) of Section 7(c)(ii) or the penultimate
sentence of Section 7(c)(ii) above, or (2) the expiration of the Review
Period in the event that the Investor requests an underwritten offering in
accordance with clause (C) of Section 7(c)(ii) or does not make any such
request during the Review Period, the closing sale price of a share of
Common Stock on the quotation system or exchange upon which the Common
Stock is listed is equal to or in excess of the Base Price for at least ten
of the next 20 trading days, the tenth day the Common Stock so trades equal
to or in excess of the Base Price shall be deemed the "Opportunity Date"
provided, however, that if the Investor and the Company agree that it would
not have been possible to sell Registrable Securities during the period
commencing on the first day of such 20-day trading period and ending on the
date which is 120 calendar days following the Opportunity Date (1) at a
price per share equal to or in excess of the Base Price and (2) for gross
proceeds to the holders of Preferred Shares of at least (x) $2,500,000 or
(y) in the event that at such time, upon conversion of the Series A
Preferred the holders of Preferred Shares would hold fewer than 523,012
shares of Common Stock (subject to equitable adjustment in the event of any
stock dividend, stock split, combination, reorganization, recapitalization
or similar event involving a change in the Common Stock), the amount
obtained by multiplying the Base Price by the number of shares of Common
Stock into which the Series A Preferred held by the holders of Preferred
Shares is then
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convertible), then, notwithstanding the foregoing, an Opportunity Date
shall not be deemed to have occurred; provided further, that if the
Investor and the Company do not agree with respect to the foregoing
proviso, then the Investor shall select an investment bank of national
standing to determine if, in the judgment of such bank, an Opportunity Date
has occurred, whose cost shall be borne by the Investor in the event that
such investment bank determines that an Opportunity Date has occurred and
by the Company in the event that such investment bank determines that an
Opportunity date has not occurred. If hold-back provisions of Section 12
shall be applicable during the aforesaid 120 calendar days, then,
notwithstanding of the foregoing, an Opportunity Date shall not be deemed
to have occurred. For purposes of this Agreement and the Company's Amended
and Restated Certificate of Incorporation, an Opportunity Date shall also
be deemed to have occurred if and at such time as the aggregate amount of
Registrable Securities sold by the holders of Preferred Shares pursuant to
Sections 4, 5 and 7 of this Agreement have been sold with aggregate
proceeds to the holders of Preferred Shares of at least $2,500,000 and were
sold at an average price per share equal to or in excess of the Base Price.
(d) If, at any time prior to the withdrawal of the Shelf Registration
Statement (other than a withdrawal as provided in clause (e) of this Section),
any holder or holders of Preferred Shares wish to sell Registrable Securities
pursuant to the Shelf Registration Statement (in connection with the giving of
any Conversion Notice or otherwise), they shall give written notification of the
intention to do so to the Company which notice shall specify the intended method
of disposition and the number of shares the holders desire to sell (which, in
the case of an underwritten offering, must be a number for which the reasonably
anticipated aggregate price to the public would exceed $500,000 and for which,
in any other offering, must be a number for which the reasonably anticipated
aggregate price to the public would exceed $250,000). In connection with each
such request, the Company shall:
(i) Furnish to each seller of Registrable Securities and to each
underwriter, if any, such number of copies of the Shelf Registration
Statement and the prospectus included therein (including each preliminary
prospectus) as such persons reasonably may request in order to facilitate
the public sale or other disposition of the Registrable Securities covered
by such registration statement;
(ii) Use all reasonable efforts to register or qualify the Registrable
Securities covered by such registration statement under the securities or
"blue sky" laws of such jurisdictions as the sellers of Registrable
Securities or, in the case of an underwritten public offering, the managing
underwriter reasonably shall request, provided, however, that the Company
shall not for any such purpose be required to qualify generally to transact
business as a foreign corporation in any jurisdiction where it is not so
qualified or to consent to general service of process in any such
jurisdiction, unless the Company is already subject to service in such
jurisdiction;
(iii) Comply with all applicable rules and regulations under the
Securities Act and Exchange Act;
(iv) Immediately notify each seller of Registrable Securities and each
underwriter under such registration statement, at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event of which the Company has
knowledge as a result of which the prospectus contained in 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 promptly
9
prepare and furnish to such seller a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter delivered to the
purchasers of such Registrable Securities, 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;
(v) If the offering is underwritten and at the request of any seller of
Registrable Securities, furnish on the date that Registrable Securities are
delivered to the underwriters for sale pursuant to such registration (i) an
opinion dated such date of counsel representing the Company for the
purposes of such registration, addressed to the underwriters to such
effects as reasonably may be requested by counsel for the underwriters and
executed counterparts of such opinion addressed to the sellers of
Registrable Securities to the same effect as requested by counsel for the
underwriters and (ii) a letter dated such date from the independent public
accountants retained by the Company, addressed to the underwriters stating
that they are independent public accountants within the meaning of the
Securities Act and that, in the opinion of such accountants, the financial
statements of the Company included in the registration statement or the
prospectus, or any amendment or supplement thereof, comply as to form in
all material respects with the applicable accounting requirements of the
Securities Act and such letter shall additionally cover such other
financial matters (including information as to the period ending no more
than five (5) business days prior to the date of such letter) with respect
to such registration as such underwriters reasonably may request;
(vi) Make available for inspection by each seller of Registrable
Securities, any underwriter participating in any distribution pursuant to
such registration statement, and any attorney, accountant or other agent
retained by such seller or underwriter, reasonable access to all financial
and other records, pertinent corporate documents and properties of the
Company, as such parties may reasonably request, and cause the Company's
officers, directors and employees to supply all information reasonably
requested by any such seller, underwriter, attorney, accountant or agent in
connection with such registration statement;
(vii) Cooperate with the selling holders of Registrable Securities and
the managing underwriter, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold,
such certificates to be in such denominations and registered in such names
as such holders or the managing underwriter may request at least two
business days prior to any sale of Registrable Securities; and
(viii) Permit any holder of Registrable Securities which holder, in
the sole and exclusive judgment, exercised in good faith, of such holder,
might be deemed to be a controlling person of the Company, to participate
in good faith in the preparation of such registration or comparable
statement and to require the insertion therein of material, furnished to
the Company in writing, which in the reasonable judgment of such holder and
its counsel should be included provided, however, that the Company shall
not be required to amend or supplement the prospectus in any manner that,
at the advice of the Company's counsel or independent accountants, may
cause the Shelf Registration Statement to 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 or otherwise cause the Shelf
Registration Statement to not be in conformity with the Securities Act or
the Exchange Act.
(ix) with respect to any underwritten offering under this Section 7,
enter into underwriting agreements in customary form and take such other
actions as the Investor may
10
reasonably request in order to expedite or facilitate the disposition of
such Registrable Securities;
(e) In the event that the Shelf Registration Statement is filed on Form S-1,
the Company may, if and when it becomes eligible to register the Registrable
Securities on Form S-3, withdraw the Form S-1 and register the Registrable
Securities on Form S-3 (which Form S-3 shall become the Shelf Registration
Statement).
(f) In connection with any request to sell Registrable Securities pursuant
to this Section 7, the sellers of Registrable Securities will furnish to the
Company in writing such information requested by the Company with respect to
themselves and the proposed distribution by them as shall be necessary in order
to assure compliance with Federal and applicable state securities laws; and such
sellers shall provide the Company with appropriate representations with respect
to the accuracy of such information.
(g) Notwithstanding any other provision of this Section 7, the Company shall
not be obligated to register any Preferred Shares for sale pursuant to any such
registration.
8. Expenses.
--------
(a) All expenses incurred by the Company in complying with Sections 4, 5 and
7 including, without limitation, all registration and filing fees, printing
expenses, fees and disbursements of counsel and independent public accountants
for the Company, fees and expenses (including counsel fees) incurred in
connection with complying with state securities or "blue sky" laws, fees of the
National Association of Securities Dealers, Inc., transfer taxes, fees of
transfer agents and registrars, costs of any insurance which might be obtained
by the Company with respect to the offering by the Company, and fees and
disbursements not to exceed $10,000 of one counsel selected by a majority in
interest of the sellers of Registrable Securities, but excluding any Selling
Expenses, are called "Registration Expenses". All underwriting discounts and
selling commissions applicable to the sale of Registrable Securities are called
"Selling Expenses".
(b) The Company will pay all Registration Expenses in connection with each
registration statement under Section 4, 5 or 7. All Selling Expenses in
connection with each registration statement under Section 4, 5 or 7 shall be
borne by the participating sellers in proportion to the number of shares
registered by each, or by such participating sellers other than the Company (to
the extent the Company shall be a seller) as they may agree.
9. Indemnification and Contribution.
--------------------------------
(a) In the event of a registration of any of the Registrable Securities
under the Securities Act pursuant to Section 4, 5 or 7, the Company will
indemnify and hold harmless each holder of Registrable Securities, its officers,
directors and partners, each underwriter of such Registrable Securities
thereunder and each other person, if any, who controls such holder or
underwriter within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such holder, officer,
director, partner, underwriter or controlling person may become subject under
the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in any prospectus, offering circular or other document incident to such
registration (including any related notification, registration statement under
which such Registrable Securities were registered under the Securities Act
pursuant to Section 4, 5 or 7, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereof), (ii) any blue sky
application or other document executed by the
11
Company specifically for that purpose or based upon written information
furnished by the Company filed in any state or other jurisdiction in order to
qualify any or all of the Registrable Securities under the securities laws
thereof (any such application, document or information herein called a "Blue Sky
Application"), (iii) any omission or alleged omission to state in any such
registration statement, prospectus, amendment or supplement or in any Blue Sky
Applications executed or filed by the Company, a material fact required to be
stated therein or necessary to make the statements therein not misleading, (iv)
any violation by the Company or its agents of the Securities Act or any rule or
regulation promulgated under the Securities Act applicable to the Company or its
agents and relating to action or inaction required of the Company in connection
with such registration, or (v) any failure to register or qualify the
Registrable Securities in any state where the Company or its agents has
affirmatively undertaken or agreed in writing that the Company (the undertaking
of any underwriter chosen by the Company being attributed to the Company) will
undertake such registration or qualification (provided that in such instance the
Company shall not be so liable if it has used its best efforts to so register or
qualify the Registrable Securities) and will reimburse each such holder, and
such officer, director and partner, each such underwriter and each such
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action, promptly after being so incurred, provided, however, that
the Company will not be liable in any such case if and to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission so made in
conformity with written information furnished by any such holder, any such
underwriter or any such controlling person in writing specifically for use in
such registration statement or prospectus.
(b) In the event of a registration of any of the Registrable Securities
under the Securities Act pursuant to Section 4, 5 or 7, each seller of such
Registrable Securities thereunder, severally and not jointly, will indemnify and
hold harmless the Company, each person, if any, who controls the Company within
the meaning of the Securities Act, each officer of the Company who signs the
registration statement, each director of the Company, each other seller of
Registrable Securities, each underwriter and each person who controls any
underwriter within the meaning of the Securities Act, against all losses,
claims, damages or liabilities, joint or several, to which the Company or such
officer, director, other seller, underwriter or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages 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 prospectus offering circular or other document incident to such
registration (including any related notification, registration statement under
which such Registrable Securities were registered under the Securities Act
pursuant to Section 4, 5 or 7, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereof), or any Blue Sky
Application 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, and will reimburse the Company and
each such officer, director, other seller, underwriter and controlling person
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action,
promptly after being so incurred, provided, however, that such seller will be
liable hereunder in any such case if and only to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with information pertaining to such seller, as such, furnished
in writing to the Company by such seller specifically for use in such
registration statement or prospectus; and provided, further, that the liability
of each seller hereunder shall be limited to the proportion of any such loss,
claim, damage, liability or expense which is equal to the proportion that the
public offering price of the securities sold by such seller under such
registration statement bears to the total public offering price of all
securities sold thereunder, but not in any
12
event to exceed the proceeds received by such seller from the sale of
Registrable Securities covered by such registration statement.
(c) Promptly after receipt by an indemnified party hereunder of notice of
the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party hereunder, notify
the indemnifying party in writing thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
such indemnified party other than under this Section 9 and shall only relieve it
from any liability which it may have to such indemnified party under this
Section 9 if and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 9 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected, provided,
however, that, if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be reasonable defenses available to it which are
different from or additional to those available to the indemnifying party or
that the interests of the indemnified party reasonably may be deemed to conflict
with the interests of the indemnifying party, the indemnified party shall have
the right to select a separate counsel and to assume such legal defenses and
otherwise to participate in the defense of such action, with the expenses and
fees of such separate counsel and other expenses related to such participation
to be reimbursed by the indemnifying party as incurred. No indemnifying party,
in the defense of any such claim or action, shall, except with the consent of
each 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 in respect to such claim or action. Each indemnified party shall
furnish such information regarding itself or the claim in question as an
indemnifying party may reasonably request in writing and as shall be reasonably
required in connection with defense of such claim and litigation resulting
therefrom.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either (i) any holder of
Registrable Securities exercising rights under this Agreement, or any
controlling person of any such holder, makes a claim for indemnification
pursuant to this Section 9 but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction and the expiration
of time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
this Section 9 provides for indemnification in such case, or (ii) contribution
under the Securities Act may be required on the part of any such selling holder
or any such controlling person in circumstances for which indemnification is
provided under this Section 9, then, and in each such case, the Company and such
holder will contribute to the aggregate losses, claims, damages or liabilities
to which they may be subject (after contribution from others) in such proportion
so that such holder is responsible for the portion represented by the percentage
that the public offering price of its Registrable Securities offered by the
registration statement bears to the public offering price of all securities
offered by such registration statement, and the Company is responsible for the
remaining portion; provided, however, that, in any such case, (A) no such holder
of Registrable Securities will be required to contribute any amount in excess of
the proceeds received from the sale of all such Registrable Securities offered
by it pursuant to such registration statement; and (B) no person or entity
guilty of fraudulent
13
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
will be entitled to contribution from any person or entity who was not guilty of
such fraudulent misrepresentation.
(e) The indemnities and obligations provided in this Section 9 shall survive
the transfer of any Registrable Securities by such holder.
(f) Notwithstanding the foregoing, to the extent that the provisions on
indemnification and contribution contained in the underwriting agreement entered
into in connection with the underwritten public offering are in conflict with
the foregoing provisions, the provisions in the underwriting agreement shall
control.
10. Changes in Common Stock or Preferred Shares. If, and as often as,
-------------------------------------------
there is any change in the Common Stock and/or Preferred Shares by way of a
stock split, stock dividend, combination or reclassification, or through a
merger, consolidation, reorganization or recapitalization, or by any other
means, appropriate adjustment shall be made in the provisions hereof so that the
rights and privileges granted hereby shall continue with respect to the Common
Stock and/or Preferred Shares as so changed.
11. Rule 144 Reporting. With a view to making available the benefits of
------------------
certain rules and regulations of the Commission which may at any time permit the
sale of the Registrable Securities to the public without registration, except as
provided in paragraph (c) below, at all times after ninety (90) days after any
registration statement covering a public offering of securities of the Company
under the Securities Act shall have become effective, the Company agrees to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act (or any successor
rule);
(b) Use its best efforts to file with the Commission in a timely manner all
reports and other documents required of the Company under the Securities Act and
the Exchange Act; and
(c) Furnish to each holder of Registrable Securities, at any time after it
has become subject to such reporting requirements of the Securities Act and the
Exchange Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed by the Company as such
holder may reasonably request in availing itself of any rule or regulation of
the Commission allowing such holder to sell any Registrable Securities without
registration.
12. "Market Stand-Off" Agreement; Underwriters. The Investor agrees, if
------------------------------------------
requested by the Company and an underwriter of Common Stock (or other
securities) of the Company, not to sell or otherwise transfer or dispose of any
Common Stock (or other securities) of the Company held by such Investor during
the one hundred and eighty (180) day period following the effective date of a
registration statement of the Company filed under the Securities Act in respect
of an underwritten offering of such Common Stock (or other securities) other
than a registration statement filed pursuant to Section 4, 5 or 7 hereof in
which the Investor is participating, provided that all holders of Registrable
Securities, Other Shareholders, all officers and directors of the Company, and
all holders of five percent (5%) or more of the outstanding shares of all
classes of capital stock of the Company (other than any holder who is entitled
to and is exercising a demand or required registration right) enter into similar
agreements.
The Company may impose stop-transfer instructions with respect to the shares
(or securities) subject to the foregoing restriction until the end of said one
hundred and eighty (180) day period.
14
If Registrable Securities that the Company has been requested to register
pursuant to Section 5 or 7 are to be disposed of in an underwritten public
offering, the underwriters of such offering shall be one or more underwriting
firms of recognized standing selected by the Investor and reasonably acceptable
to the Company.
13. Assignment of Registration Rights. The rights to cause the Company to
---------------------------------
register Registrable Securities pursuant to this Agreement may be assigned by
the Investor to a transferee assignee of Registrable Securities which (i) is a
subsidiary, parent, shareholder, general partner, limited partner or retired
partner of the Investor, or (ii) acquires at least 25% of the original amount of
Registrable Securities covered by this Agreement; provided, however, (A) the
transferor shall, within ten (10) days after such transfer, furnish to the
Company written notice of the name and address of such transferee or assignee
and the securities with respect to which such registration rights are being
assigned and (B) such transferee shall agree in writing to be subject to all
restrictions set forth in this Agreement.
14. Miscellaneous.
-------------
(a) All covenants and agreements contained in this Agreement by or on behalf
of any of the parties hereto shall bind and inure to the benefit of the
respective heirs, successors (including, without limitation, by sale or transfer
of all or substantially all assets, merger or consolidation) and assigns of the
parties hereto (including without limitation transferees of any Registrable
Securities), whether so expressed or not.
(b) All notices, requests, consents and other communications hereunder shall
be in writing, shall be addressed to the receiving party's address set forth
below or to such other address as a party may designate by notice hereunder, and
shall be either (i) delivered by hand, (ii) made by telex, telecopy or facsimile
transmission, (iii) sent by overnight courier, or (iv) sent by registered or
certified mail, return receipt requested, postage prepaid.
If to the Company: Command Systems, Inc.
00x Xxxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Fax No: 000-000-0000
With a copy to: Mintz, Levin, Cohn, Ferris, Glovsky
and Popeo, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Stanford X. Xxxxxxx, Esq.
Fax No: (000) 000-0000
If to the Investor: Phoenix Home Life
Xxx Xxxxxxxx Xxx
X.X. Xxx 0000
Xxxxxxxx, XX 00000-0000
Attn: Xxxx X.X. Xxxxxxx
Fax No: 000-000-0000
15
With a copy to: Phoenix Home Life
Xxx Xxxxxxxx Xxx
X.X. Xxx 0000
Xxxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxxx
Fax No: 000-000-0000
With a copy to: Xxxx & Xxxxxx
Xxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxxxxxx
Fax No. 000-000-0000
All notices, requests, consents and other communications hereunder shall be
deemed to have been given either (i) if by hand, at the time of the delivery
thereof to the receiving party at the address of such party set forth above,
(ii) if made by telex, telecopy or facsimile transmission, at the time that
receipt thereof has been acknowledged by electronic confirmation or otherwise,
(iii) if sent by overnight courier, on the next business day following the day
such notice is delivered to the courier service, or (iv) if sent by registered
or certified mail, on the fifth business day following the day such mailing is
made.
(c) This Agreement and the rights and obligations of the parties hereunder
shall be construed in accordance with and governed by the law of the State of
Delaware, without giving effect to the conflict of law principles thereof.
(d) This Agreement may not be amended or modified, and no provision hereof may
be waived, without the written consent of the Company and of holders of not less
than a majority of the Registrable Securities. Any waiver or consent hereunder
shall be effective only in the specific instance and for the purpose for which
it was given, and shall not constitute a continuing waiver or consent.
(e) This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
(f) In the event that any court of competent jurisdiction shall determine that
any provision, or any portion thereof, contained in this Agreement shall be
unenforceable in any respect, then such provision shall be deemed limited to the
extent that such court deems it enforceable, and as so limited shall remain in
full force and effect. In the event that such court shall deem any such
provision, or portion thereof, wholly unenforceable, the remaining provisions of
this Agreement shall nevertheless remain in full force and effect.
(g) The Company recognizes that the rights of the Investor under this
Agreement are unique and, accordingly, the Investor shall, in addition to such
other remedies as may be available to them at law or in equity, have the right
to enforce their rights hereunder by actions for injunctive relief and specific
performance to the extent permitted by law. This Agreement is not intended to
limit or abridge any rights of the Investor which may exist apart from this
Agreement.
(h) The parties hereto acknowledge and agree that (i) each party and its
counsel, if so represented, reviewed and negotiated the terms and provisions of
this Agreement and have contributed to its revision and (ii) the rule of
construction to the effect that any ambiguities are resolved against the
drafting party shall not be employed in the interpretation of this Agreement.
16
(i) The headings and captions of the various subdivisions of this Agreement
are for convenience of reference only and shall in no way modify or affect the
meaning or construction of any of the terms or provisions hereof.
(j) No failure or delay by a party hereto in exercising any right, power or
remedy under this Agreement, and no course of dealing between the parties
hereto, shall operate as a waiver of any such right, power or remedy of the
party. No single or partial exercise of any right, power or remedy under this
Agreement by a party hereto, nor any abandonment or discontinuance of steps to
enforce any such right, power or remedy, shall preclude such party from any
other or further exercise thereof or the exercise of any other right, power or
remedy hereunder. The election of any remedy by a party hereto shall not
constitute a waiver of the right of such party to pursue other available
remedies. No notice to or demand on a party not expressly required under this
Agreement shall entitle the party receiving such notice or demand to any other
or further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the party giving such notice or demand to any other or
further action in any circumstances without such notice or demand.
(k) Wherever this Agreement refers to the neuter gender such reference shall
include the masculine and feminine genders as the context may require.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or caused
this Agreement to be executed by their duly authorized representatives as of the
date first written above.
COMMAND SYSTEMS, INC.
By:/s/ Xxxxxx X. Xxxxxx
-------------------------------
Xxxxxx X. Xxxxxx, President
INVESTOR:
--------
PHOENIX HOME LIFE MUTUAL INSURANCE COMPANY
By:/s/ Xxxxxxx X. Xxxxx
--------------------------------
18
