EXHIBIT 4
This REGISTRATION RIGHTS AGREEMENT (the "Agreement"), is made as of
May 10, 2000, by and among Computer Outsourcing Services, Inc., a Delaware
corporation, (the "Company"), DB Capital Investors, L.P. (the "Initial XX
Xxxxxx"), Xxxxxxx Capital Partners V, L.P., Sandler Internet Partners, L.P.,
Sandler Co-Investment Partners, L.P., Price Family Limited Partners and Xxxxxx,
X.X. (each an "Initial Sandler Holder" and, collectively, the "Initial Sandler
Holders") and Xxxx Xxxxxxxx, a resident of the State of New York ("Lonstein").
W I T N E S S E T H:
WHEREAS, the Company and the Initial Holders have entered into, or
have been assigned an interest in, a Securities Purchase Agreement dated April
7, 2000 (the "Securities Purchase Agreement"); and
WHEREAS, pursuant to the terms of the Securities Purchase Agreement,
the Initial Holders have purchased, or have been assigned an interest in, (x)
157,377 shares (the "Shares") of the 8% Series A Cumulative Convertible
Participating Preferred Stock of the Company (the "Series A Preferred Stock"),
which such Shares are initially convertible into 1,573,770 shares of the Common
Stock, par value $.01 per share, of the Company ("Common Stock"), subject to
adjustment in accordance with the terms of the Series A Preferred Stock, and (y)
Series A Common Stock Warrants (the "Warrants") to purchase, initially 2,531,926
shares of Common Stock, subject to adjustment in accordance with the terms of
the Warrants; and
WHEREAS, Lonstein is the holder of 1,673,349 shares of Common Stock
(the "Lonstein Shares"); and
WHEREAS, Lonstein has granted the Initial Holders an option (the
"Option") to purchase up to 750,000 shares of Common Stock currently owned by
Lonstein; and
WHEREAS, it is a condition precedent to the closing of the
transactions contemplated in the Securities Purchase Agreement that the parties
hereto execute and deliver this Agreement.
NOW THEREFORE, in consideration of the premises, mutual promises and
covenants contained in this Agreement and intending to be legally bound, the
parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Terms defined in the Securities Purchase
Agreement are used herein as therein defined. In addition, the following terms,
as used herein, have the following meanings:
"Agreement" has the meaning set forth in the preamble.
"Commission" means the Securities and Exchange Commission.
"Common Stock" has the meaning set forth in the second recital
"Company" has the meaning set forth in the preamble.
"Conversion Shares" means all shares of Common Stock or other
securities issued upon the conversion of the Series A Preferred Stock in
accordance with its terms.
"Demand Registration" means a registration under the Securities Act
requested in accordance with Section 2.01.
"DB Holders" means the Initial XX Xxxxxx, its direct and indirect
successors and assigns and any direct or indirect transferee of any Registrable
Securities initially held by the Initial XX Xxxxxx.
"Excluded Holders" has the meaning set forth in Section 2.01(f).
"Holders" shall mean the Lonstein Holders, the DB Holders and the
Sandler Holders.
"Indemnified Party" has the meaning set forth in Section 4.03.
"Indemnifying Party" has the meaning set forth in Section 4.03.
"Initial XX Xxxxxx" has the meaning set forth in the preamble.
"Initial Sandler Holder" and "Initial Sandler Holders" have the
meaning set forth in the preamble.
"Initial Holders" means the Initial XX Xxxxxx and the Initial Sandler
Holders.
"Lonstein" has the meaning set forth in the preamble.
"Lonstein Holders" means Lonstein, his direct and indirect heirs,
successors and assigns and any direct or indirect transferee of any Registrable
Securities initially held by Lonstein.
"Lonstein Shares" has the meaning set forth in the third recital.
"Losses" has the meaning set forth in Section 4.01.
"Material Adverse Effect" has the meaning set forth in Section
2.01(f).
"Option" has the meaning set forth in the fourth recital.
"Option Shares" means any shares of Common Stock or other securities
issued upon the exercise of the Option.
"Piggyback Registration" has the meaning set forth in Section 2.02.
"Registrable Common Stock" means the Conversion Shares, the Warrant
Shares and the Option Shares, in each case, together with any additional shares
of Common Stock or other securities issued in respect thereof in connection with
any stock split, stock dividend, merger, consolidation, reclassification,
recapitalization or similar event with respect to such shares of Common Stock.
"Registrable DB Securities" means (a) any Registrable Series A
Preferred Stock purchased by any XX Xxxxxx on the Closing Date or thereafter
acquired, (b) any Registrable Common Stock acquired by any XX Xxxxxx upon the
conversion of any Registrable Series A Preferred Stock, the exercise of any
Registrable Warrants or the exercise of the Option, (c) any Registrable Warrants
purchased by any XX Xxxxxx on the Closing Date or thereafter acquired, and (d)
any securities of the Company or any successor entity into which Registrable
Common Stock, Registrable Warrants or Registrable Series A Preferred Stock may
hereafter be reclassified, converted or changed. As to any particular
Registrable DB Securities, such securities shall cease to be Registrable DB
Securities upon the earlier to occur of (i) a registration statement with
respect to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of under such
registration statement in accordance with the plan of distribution set forth
therein; (ii) such securities shall have been transferred pursuant to Rule 144;
(iii) such securities shall have been otherwise transferred or disposed of, and
new certificates therefor not bearing a legend restricting further transfer
shall have been delivered by the Company, and subsequent transfer of such
securities shall not require registration or qualification under the Securities
Act or any similar state law then in force, or (iv) such securities shall have
ceased to be outstanding.
"Registrable Lonstein Securities" means the Lonstein Shares (other
than any Lonstein Shares subject to the Option), together with any additional
shares of Common Stock or other securities issued in respect thereof in
connection with any stock split, stock dividend, merger, consolidation,
reclassification, recapitalization or similar event with respect to such shares
of Common Stock. As to any particular Registrable Lonstein Securities, such
securities shall cease to be Registrable Lonstein Securities upon the earlier to
occur of (i) a registration statement with respect to the sale of such
securities shall have become effective under the Securities Act and such
securities shall have been disposed of under such registration statement in
accordance with the plan of distribution set forth therein; (ii) such securities
shall have been transferred pursuant to Rule 144; (iii) such securities shall
have been otherwise transferred or disposed of, and new certificates therefor
not bearing a legend restricting further transfer shall have been delivered by
the Company, and subsequent transfer of such securities shall not require
registration or qualification under the Securities Act or any similar state law
then in force, or (iv) such securities shall have ceased to be outstanding.
"Registrable Sandler Securities" means (a) any Registrable Series A
Preferred Stock purchased by any Sandler Holder on the Closing Date or
thereafter acquired, (b) any Registrable Common Stock acquired by any Sandler
Holders upon the conversion of any Registrable Series A Preferred Stock, the
exercise of any Registrable Warrants or the exercise of the Option, (c) any
Registrable Warrants purchased by any Sandler Holder on the Closing Date or
thereafter acquired, and (d) any securities of the Company or any successor
entity into which Registrable Common Stock, Registrable Warrants or Registrable
Series A Preferred Stock may hereafter be reclassified, converted or changed. As
to any particular Registrable Sandler Securities, such securities shall cease to
be Registrable Sandler Securities upon the earlier to occur of (i) a
registration statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall have been
disposed of under such registration statement in accordance with the plan of
distribution set forth therein; (ii) such securities shall have been transferred
pursuant to Rule 144; (iii) such securities shall have been otherwise
transferred or disposed of, and new certificates therefor not bearing a legend
restricting further transfer shall have been delivered by the Company, and
subsequent transfer of such securities shall not require registration or
qualification under the Securities Act or any similar state law then in force,
or (iv) such securities shall have ceased to be outstanding.
"Registrable Series A Preferred Stock" means the Shares, together with
any additional shares of Series A Preferred Stock or other securities issued in
respect thereof (other than any Conversion Shares) in connection with any stock
split, stock dividend, merger, consolidation, reclassification, recapitalization
or similar event with respect to such Shares.
"Registrable Securities" means the Registrable DB Securities, the
Registrable Sandler Securities and the Registrable Lonstein Securities.
"Registrable Warrants" means the Warrants, together with any Warrants
or other securities issued in respect thereof (other than any Warrant Shares) in
connection with any stock split, stock dividend, merger, consolidation,
reclassification, recapitalization or similar event with respect to such
Warrants.
"Requesting Holders" means the Holders requesting a Demand
Registration, and shall include parties deemed "Requesting Holders" pursuant to
Sections 2.01(a)(v), (vi) and (vii).
"Rule 144" means Rule 144 (or any successor rule of similar effect)
promulgated under the Securities Act.
"Sandler Holders" means the Initial Sandler Holders, their direct and
indirect successors and assigns and any direct or indirect transferee of any
Registrable Securities initially held by any Initial Sandler Holder.
"Securities Purchase Agreement" has the meaning set forth in the first
recital.
"Selling Holder" means any Holder who is selling Registrable
Securities pursuant to a public offering registered hereunder.
"Series A Preferred Stock" has the meaning set forth in the second
recital.
"Shares" has the meaning set forth in the second recital.
"Shelf Registration" means a Demand Registration which is effected
pursuant to Rule 415 under the Securities Act.
"Underwriter" means a securities dealer who purchases any Registrable
Securities as principal in connection with a Demand Registration or a Piggyback
Registration and not as part of such dealer's market-making activities.
"Warrants" has the meaning set forth in the second recital.
"Warrant Shares" means all shares of Common Stock or other securities
issued upon the exercise of the Warrants.
Section 1.02 Internal References. Unless the context indicates
otherwise, references to Articles, Sections and paragraphs shall refer to the
corresponding articles, sections and paragraphs in this Agreement, and
references to the parties shall mean the parties to the Securities Purchase
Agreement.
ARTICLE II
REGISTRATION RIGHTS
Section 2.01 Demand Registration. (a) (i) Holders of not less than a
majority of the Registrable DB Securities may make up to two written requests
for a Demand Registration (of which such Demand Registrations, one may be a
Shelf Registration) of all or any part of the Registrable DB Securities held by
such DB Holders; provided that (A) no such Demand Registration may be requested
by the DB Holders prior to the first anniversary of the Closing Date, and (B)
the DB Holders shall not be entitled to a Demand Registration if, during the 6
months preceding such request, the Holders have requested a Demand Registration
(unless such Demand Registration was preempted pursuant to Section 2.01(e)).
(ii) Holders of not less than a majority of the Registrable Sandler
Securities may make up to two written requests for a Demand Registration (of
which such Demand Registrations, one may be a Shelf Registration) of all or any
part of the Registrable Sandler Securities held by such Sandler Holders;
provided that (A) no such Demand Registration may be requested by the Sandler
Holders prior to the first anniversary of the Closing Date, and (B) the Sandler
Holders shall not be entitled to a Demand Registration if, during the 6 months
preceding such request, the Holders have requested a Demand Registration (unless
such Demand Registration was preempted pursuant to Section 2.01(e)).
(iii) Holders of not less than a majority of the Registrable Lonstein
Securities may make up to two written requests for a Demand Registration of all
or any part of the Registrable Lonstein Securities held by such Lonstein
Holders; provided that (A) no such Demand Registration may be requested by the
Lonstein Holders prior to the second anniversary of the Closing Date, and (B)
the DB Holders shall not be entitled to a Demand Registration if, during the 6
months preceding such request, the Holders have requested a Demand Registration
(unless such Demand Registration was preempted pursuant to Section 2.01(e)).
(iv) Any request for a Demand Registration will specify the aggregate
number of shares of Registrable Securities proposed to be sold by the Requesting
Holders and will also specify the intended method of disposition thereof. Any
such request for a Demand Registration shall specify whether such registration
will be a Shelf Registration. For so long as the Initial XX Xxxxxx holds
Registrable DB Securities, no Demand Registration made by any XX Xxxxxx shall be
a Shelf Registration without the consent of the Initial XX Xxxxxx. For so long
as the Initial Sandler Holders hold Registrable Sandler Securities, no Demand
Registration made by any Sandler Holder shall be a Shelf Registration without
the consent of a majority in interest of the Initial Sandler Holders. A
registration will not count as a Demand Registration until it has become
effective. If the Requesting Holders withdraw or do not pursue the request for
the Demand Registration (in each of the foregoing cases, provided that at such
time the Company is in compliance in all material respects with its obligations
under this Agreement), then such Demand Registration shall be deemed to have
been effected, provided that (i) if, the Demand Registration does not become
effective because a material adverse change has occurred, or is reasonably
likely to occur, in the condition (financial or otherwise), business,
properties, assets, liabilities, operations or prospects of the Company and its
subsidiaries taken as a whole subsequent to the date of the written request made
by the Requesting Holders or (ii) if, after the Demand Registration has become
effective, an offering of Registrable Securities pursuant to a registration is
interfered with by any stop order, injunction, or other order or requirement of
the Commission or other governmental agency or court then the Demand
Registration shall not be deemed to have been effected and will not count as a
Demand Registration.
(v) Upon receipt of any request for a Demand Registration by Holders
of not less than a majority of the Registrable DB Securities held by the DB
Holders, the Company shall promptly (but in any event within ten (10) days) give
written notice of such proposed Demand Registration to all other Holders, and
subject to Section 2.01(f), all such Holders shall have the right, exercisable
by written notice to the Company within twenty (20) days of their receipt of the
Company's notice, to elect to include in such Demand Registration such portion
of their Registrable Securities as they may request. All such Holders requesting
to have their Registrable Securities included in a Demand Registration in
accordance with the preceding sentence shall be deemed to be "Requesting
Holders" for purposes of this Section 2.01; provided that any Sandler Holders
and any Lonstein Holders shall not be deemed to be "Requesting Holders" for
purposes of Section 2.01(c).
(vi) Upon receipt of any request for a Demand Registration by Holders
of not less than a majority of the Registrable Sandler Securities held by the
Sandler Holders, the Company shall promptly (but in any event within ten (10)
days) give written notice of such proposed Demand Registration to all other
Holders, and subject to Section 2.01(f), all such Holders shall have the right,
exercisable by written notice to the Company within twenty (20) days of their
receipt of the Company's notice, to elect to include in such Demand Registration
such portion of their Registrable Securities as they may request. All such
Holders requesting to have their Registrable Securities included in a Demand
Registration in accordance with the preceding sentence shall be deemed to be
"Requesting Holders" for purposes of this Section 2.01; provided that any DB
Holders and any Lonstein Holders shall not be deemed to be "Requesting Holders"
for purposes of Section 2.01(c).
(vii) Upon receipt of any request for a Demand Registration by Holders
of a majority of the Registrable Lonstein Securities held by the Lonstein
Holders, the Company shall promptly (but in any event within ten (10) days) give
written notice of such proposed Demand Registration to all other Holders, and
subject to Section 2.01(f), all such Holders shall have the right, exercisable
by written notice to the Company within twenty (20) days of their receipt of the
Company's notice, to elect to include in such Demand Registration such portion
of their Registrable Securities as they may request. All such Holders requesting
to have their Registrable Securities included in a Demand Registration in
accordance with the preceding sentence shall be deemed to be "Requesting
Holders" for purposes of this Section 2.01; provided that any DB Holders and any
Sandler Holders shall not be deemed to be "Requesting Holders" for purposes of
Section 2.01(c).
(b) In the event that the Requesting Holders withdraw or do not pursue
a request for a Demand Registration and, pursuant to Section 2.01(a) hereof,
such Demand Registration is deemed to have been effected, the Holders may
reacquire such Demand Registration (such that the withdrawal or failure to
pursue a request will not count as a Demand Registration hereunder) if the
Selling Holders reimburse the Company for any and all Registration Expenses
actually incurred by the Company in connection with such request for a Demand
Registration.
(c) If the Requesting Holders so elect, the offering of such
Registrable Securities pursuant to such Demand Registration shall be in the form
of a "firm commitment" underwritten offering. A majority in interest of the
Requesting Holders shall have the right to select the managing Underwriters and
any additional investment bankers and managers to be used in connection with any
offering under this Section 2.01, subject to the Company's approval, which
approval shall not be unreasonably withheld.
(d) The Requesting Holders will inform the Company of the time and
manner of any disposition of Registrable Securities (which may be pursuant to a
Shelf Registration), and agree to take reasonable action to cooperate with the
Company in effecting the disposition of the Registrable Securities in a manner
that does not unreasonably disrupt the public trading market for the Common
Stock.
(e) The Company shall have the right for up to 180 days in any
consecutive 360 day period to delay or suspend any Demand Registration in the
event that the Board determines, in good faith, that it is in the best interest
of the Company for the Company to proceed with its own offering of equity
securities. The Company may so proceed by delivering written notice (within five
business days after the Company has received a request for such Demand
Registration) of such intention to the Selling Holder indicating that the
Company has identified a specific business need and use for the proceeds of the
sale of such securities and the Company shall use its best efforts to effect a
primary registration within 60 days of such notice. In the ensuing primary
registration, the Holders will have such piggyback registration rights as are
set forth in Section 2.02 hereof. Upon the Company's preemption of a requested
Demand Registration, such requested registration will not count as the Holders'
Demand Registration. The Company may exercise the right to preempt only once in
any 360-day period. Notwithstanding anything to the contrary contained herein,
during any 360-day period the Company shall not exercise its right to preempt,
delay or postpone the filing or effectiveness of any registration statement,
pre- or post-effective amendment or supplement or prospectus supplement pursuant
to this Section 2.01(e), the first proviso to Section 3.01(a), or Section
3.01(b) for more than 180 days in the aggregate for all such provisions during
any period of 360 consecutive days.
(f) Priority on Demand Registrations. No securities to be sold for the
account of any Person (including the Company) other than a Requesting Holder
shall be included in a Demand Registration unless the managing Underwriter or
Underwriters shall advise the Company and the Requesting Holders in writing that
the inclusion of such securities will not materially and adversely affect the
price, distribution or timing of the offering (a "Material Adverse Effect"). Any
additional securities to be included in a Demand Registration pursuant to this
Section 2.01(f) shall be included in such Demand Registration in accordance with
their relative rights. Furthermore, in the event the managing Underwriter or
Underwriters shall advise the Company or the Requesting Holders that even after
exclusion of all securities of other Persons (including the Company) pursuant to
the immediately preceding sentence, the amount of Registrable Securities
proposed to be included in such Demand Registration by Requesting Holders is
sufficiently large to cause a Material Adverse Effect, the Registrable
Securities of the Requesting Holders to be included in such Demand Registration
shall equal the number of shares which the Company and the Requesting Holders
are so advised can be sold in such offering without a Material Adverse Effect
and such shares shall be allocated pro rata among the Requesting Holders on the
basis of the number of Registrable Securities requested to be included in such
registration by each such Requesting Holder; provided, however, that if any
Registrable Securities requested to be registered pursuant to a Demand
Registration under Section 2.01 are excluded from registration hereunder, then
the Holder(s) having shares excluded ("Excluded Holders") shall have the right
to withdraw all, or any part, of their shares from such registration; provided,
further, that if less than 80% of the Registrable Securities requested to be
included in such Demand Registration are actually included therein, such
registration will not count as a Demand Registration for purposes of this
Section 2.01.
Section 2.02 Piggyback Registration. (a) If the Company at any time
proposes to file a registration statement under the Securities Act with respect
to an offering of securities for its own account or for the account of another
Person (other than a registration statement on Form S-4 or S-8 (or any
substitute form that may be adopted by the Commission) and other than a Demand
Registration hereunder), the Company shall give written notice of such proposed
filing to the Holders at the address set forth in the share register of the
Company as soon as reasonably practicable (but in no event less than 15 days
before the anticipated date on which such registration will be first filed with
the Commission), undertaking to provide each Holder the opportunity to register
on the same terms and conditions such number and type of Registrable Securities
as such Holder may request (a "Piggyback Registration"). Each Holder will have
ten business days after receipt of any such notice to notify the Company as to
whether it wishes to participate in a Piggyback Registration (which notice shall
not be deemed to be a request for a Demand Registration); provided that should a
Holder fail to provide timely notice to the Company, such Holder will forfeit
any rights to participate in the Piggyback Registration with respect to such
proposed offering. In the event that the registration statement is filed on
behalf of a Person other than the Company, the Company will use its best efforts
to have the shares of Registrable Securities that the Holders wish to sell
included in the registration statement. If the Company shall determine in its
sole discretion not to register or to delay the proposed offering, the Company
shall provide written notice of such determination to the Holders and (i) in the
case of a determination not to effect the proposed offering, shall thereupon be
relieved of the obligation to register such Registrable Securities in connection
therewith, and (ii) in the case of a determination to delay a proposed offering,
shall thereupon be permitted to delay registering such Registrable Securities
for the same period as the delay in respect of the proposed offering. As between
the Company and the Selling Holders, the Company shall be entitled to select the
Underwriters in connection with any Piggyback Registration.
(b) Priority on Piggyback Registrations. If the Registrable Securities
requested to be included in the Piggyback Registration by any Holder differ from
the type of securities proposed to be registered by the Company and the managing
Underwriter advises the Company that due solely to such differences the
inclusion of such Registrable Securities would cause a Material Adverse Effect,
then (i) the number of such Holders' Registrable Securities to be included in
the Piggyback Registration shall be reduced to an amount which, in the opinion
of the managing Underwriter, would eliminate such Material Adverse Effect or
(ii) if no such reduction would, in the opinion of the managing Underwriter,
eliminate such Material Adverse Effect, then the Company shall have the right to
exclude all such Registrable Securities from such Piggyback Registration,
provided that no other securities of such type are included and offered for the
account of any other Person in such Piggyback Registration. Any partial
reduction in number of Registrable Securities of any Holder to be included in
the Piggyback Registration pursuant to clause (i) of the immediately preceding
sentence shall be effected pro rata based on the ratio which such Holder's
requested shares bears to the total number of shares requested to be included in
such Piggyback Registration by all Persons other than the Company who have the
contractual right to request that their shares be included in such registration
statement and who have requested that their shares be included. If the
Registrable Securities requested to be included in the registration statement
are of the same type as the securities being registered by the Company and the
managing Underwriter advises the Company that the inclusion of such Registrable
Securities would cause a Material Adverse Effect, the Company will be obligated
to include in such registration statement, as to each Holder only a portion of
the shares such Holder has requested be registered equal to the ratio which such
Holder's requested shares bears to the total number of shares requested to be
included in such registration statement by all Persons who have the contractual
right to request that their shares be included in such registration statement
and who have requested their shares be included; provided, however, that the
provisions of this sentence shall not be applicable to the Person or Persons
initiating such registration statement. If the Company initiated the
registration, then the Company may include all of its securities in such
registration statement before any such Holder's requested shares are included.
If another security holder initiated the registration, then the Company may not
include any of its securities in such registration statement unless all
Registrable Securities requested to be included in the registration statement by
all Holders are included in such registration statement. If as a result of the
provisions of this Section 2.02(b) any Holder shall not be entitled to include
all Registrable Securities in a registration that such Holder has requested to
be so included, such Holder may withdraw such Holder's request to include
Registrable Securities in such registration statement prior to its
effectiveness.
ARTICLE III
REGISTRATION PROCEDURES
Section 3.01 Filings; Information. In connection with the registration
of Registrable Securities pursuant to Section 2.01 and Section 2.02 hereof, the
Company will use its best efforts to effect the registration of such Registrable
Securities as promptly as is reasonably practicable, and in connection with any
such request:
(a) The Company will expeditiously prepare and file as soon as
practicable (but in any event within 60 days) with the Commission a
registration statement on any form for which the Company then qualifies and
which counsel for the Company shall deem appropriate and available for the
sale of the Registrable Securities to be registered thereunder in
accordance with the intended method of distribution thereof, and use its
reasonable best efforts to cause such filed registration statement to
become and remain effective (i) with respect to any Demand Registration
(other than a Shelf Registration) or Piggyback Registration, for such
period, not to exceed 120 days, as may be reasonably necessary to effect
the sale of such securities and (ii) with respect to a Shelf Registration,
until the earlier of the sale of all Registrable Securities thereunder and
the end of the 36th calendar month from the time the second Shelf
Registration becomes effective; provided that if the Company shall furnish
to the Selling Holder a certificate signed by the Company's Chairman or
President stating that the Company's Board of Directors has determined in
good faith that it would be detrimental or otherwise disadvantageous to the
Company or its shareholders for such a registration statement to be filed
as expeditiously as possible because the sale of Registrable Securities
covered by such registration statement or the disclosure of information in
any related prospectus or prospectus supplement would materially interfere
with any acquisition, financing or other material event or transaction
which is then intended or the public disclosure of which at the time would
be materially prejudicial to the Company, the Company may postpone the
filing or effectiveness of a registration statement for a period of not
more than 180 days; provided, further, that the Company shall not exercise
its right to preempt, delay or postpone any registration pursuant to
Section 2.01(e), the first proviso to this Section 3.01(a), or Section
3.01(b) for more than 180 days in the aggregate for all such provisions
during any period of 360 consecutive days; provided, further, that the
Company may exercise its rights under Section 3.01(a) only once with
respect to any particular registration statement; and provided further that
if (i) the effective date of any registration statement filed pursuant to a
Demand Registration would otherwise be at least 45 calendar days, but fewer
than 90 calendar days, after the end of the Company's fiscal year, and (ii)
the Securities Act requires the Company to include audited financial
statements of the Company as of the end of such fiscal year, the Company
may delay the effectiveness of such registration statement for such period
as is reasonably necessary to include therein its audited financial
statements for such fiscal year.
(b) Anything in this Agreement to the contrary notwithstanding,
it is understood and agreed that the Company shall not be required to keep
any Shelf Registration effective or useable for offers and sales of the
Registrable Securities, file a post effective amendment to a Shelf
Registration statement or prospectus supplement or to supplement or amend
any registration statement, if the Company is then involved in discussions
concerning, or otherwise engaged in, any material financing or investment,
acquisition or divestiture transaction or other material business purpose,
if the Company determines in good faith that the making of such a filing,
supplement or amendment at such time would interfere with such transaction
or purpose. The Company shall promptly give the Holders of Registrable
Securities written notice of such postponement containing a general
statement of the reasons for such postponement and an approximation of the
anticipated delay. Upon receipt by a Holder of Registrable Securities of
notice of an event of the kind described in this Section 3.01(b), such
Holder shall forthwith discontinue such Holder's disposition of Registrable
Securities until such Holder's receipt of notice from the Company that such
disposition may continue and of any supplemented or amended prospectus
indicated in such notice. Notwithstanding anything to the contrary
contained herein, the Company shall not be entitled to preempt, delay or
postpone the filing or effectiveness of any registration statement, pre- or
post-effective amendment or supplement to any registration statement or
prospectus supplement pursuant to Section 2.01(e), the first proviso of
Section 3.01(a), or this Section 3.01(b) for more than 180 days in the
aggregate for all such provisions during any period of 360 consecutive
days.
(c) Before filing a registration statement or prospectus or any
amendments or supplements thereto, the Company will furnish to any Selling
Holder and to the applicable managing Underwriters, if any, draft copies of
all such documents proposed to be filed at least ten (10) business days
prior thereto, which documents will be subject to the reasonable review of
such Selling Holders, the applicable managing Underwriters, if any, and
their respective counsel, agents and representatives, and the Company will
not file any registration statement or amendment thereto or any prospectus
or any supplement thereto (including such documents incorporated by
reference) to which any Selling Holder or Underwriter shall reasonably
object;
(d) Notify the Selling Holders requesting such registration and
(if requested) confirm such advice in writing, as soon as practicable after
notice thereof is received by the Company (i) when the registration
statement or any amendment thereto has been filed or becomes effective, the
prospectus or any amendment or supplement to the prospectus has been filed,
(ii) of any request by the Commission for amendments or supplements to the
registration statement or the prospectus or for additional information,
(iii) if at any time the representations and warranties of the Company
contemplated by Section 5.01 cease to be true and correct and (iv) of the
receipt by the Company of any notification with respect to the suspension
of the qualification of the Registrable Securities for offering or sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose;
(e) After the filing of the registration statement, the Company
will promptly notify the Selling Holders of any stop order issued, or, to
the Company's knowledge, threatened to be issued, by the Commission and use
its best efforts to prevent the entry of such stop order or to remove it if
entered.
(f) prepare and file with the Commission such amendments,
post-effective 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 a period of not less than 120
days (or such shorter period which will terminate when all Registrable
Securities covered by such registration statement have been sold or
withdrawn, but not prior to the expiration of the applicable period
referred to in Section 4(3) of the Securities Act and Rule 174 thereunder,
if applicable), cause the prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule
424 under the Securities Act, and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by
such registration statement during such period in accordance with the
intended methods of disposition by the Selling Holders set forth in such
registration statement;
(g) furnish to each Selling Holder requesting such registration
and the managing Underwriter, if any, without charge, one signed copy and
such number of conformed copies of such registration statement, each
amendment and supplement thereto, the prospectus included in such
registration statement (including each preliminary prospectus) and any
amendments or supplements thereto, any documents incorporated by reference
therein and such other documents as any such Selling Holder or such
managing Underwriter may reasonably request in order to facilitate the
disposition of the Registrable Securities (it being understood that the
Company consents to the use of the prospectus (including the preliminary
prospectus) and any amendment or supplement thereto by the Selling Holder
requesting such registration and the managing Underwriter, if any, in
connection with the offering and sale of the Registrable Securities covered
by the prospectus or any amendment or supplement thereto);
(h) The Company will use its best efforts to qualify the
Registrable Securities for offer and sale under such other securities or
blue sky laws of such jurisdictions in the United States as the Selling
Holders reasonably request; keep each such registration or qualification
(or exemption therefrom) effective during the period in which such
registration statement is required to be kept effective; and do any and all
other acts and things which may be reasonably necessary or advisable to
enable each Selling Holder to consummate the disposition of the Registrable
Securities owned by such Selling Holder in such jurisdictions; provided
that the Company will not be required to qualify generally to do business
in any jurisdiction where it would not otherwise be required to qualify but
for this paragraph 3.01(h), (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction.
(i) The Company will as promptly as is practicable notify the
Selling Holders, at any time when a prospectus relating to the sale of the
Registrable Securities is required by law to be delivered under the
Securities Act, of the occurrence of any event requiring the preparation of
a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
will not contain an untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading and promptly make available to the Selling Holders and
to the Underwriters any such supplement or amendment. Upon receipt of any
notice of the occurrence of any event of the kind described in the
preceding sentence, Selling Holders will forthwith discontinue the offer
and sale of Registrable Securities pursuant to the registration statement
covering such Registrable Securities until receipt by the Selling Holders
and the Underwriters of the copies of such supplemented or amended
prospectus and, if so directed by the Company, the Selling Holders will
deliver to the Company all copies, other than permanent file copies then in
the possession of Selling Holders, of the most recent prospectus covering
such Registrable Securities at the time of receipt of such notice. In the
event the Company shall give such notice, the Company shall extend the
period during which such registration statement shall be maintained
effective as provided in Section 3.01(a) hereof by the number of days
during the period from and including the date of the giving of such notice
to the date when the Company shall make available to the Selling Holders
such supplemented or amended prospectus.
(j) The Company will enter into customary agreements (including
an underwriting agreement in customary form, including customary
representations, warranties, covenants, conditions and indemnities) and
take such other actions as are required or reasonably requested by the
Selling Holders or the managing Underwriter in order to expedite or
facilitate the sale of such Registrable Securities.
(k) At the request of any Underwriter in connection with an
underwritten offering the Company will furnish an opinion of counsel,
addressed to the Underwriters, covering such customary matters as the
managing Underwriter may reasonably request and (ii) a comfort letter or
comfort letters (and updates thereof) from the Company's independent public
accountants covering such customary matters as the managing Underwriter may
reasonably request.
(l) If requested by the managing Underwriter or any Selling
Holder, the Company shall promptly incorporate in a prospectus supplement
or post effective amendment such information as the managing Underwriter or
any Selling Holder reasonably requests to be included therein, including
without limitation, with respect to the Registrable Securities being sold
by such Selling Holder, the purchase price being paid therefor by the
Underwriters and with respect to any other terms of the underwritten
offering of the Registrable Securities to be sold in such offering, and
promptly make all required filings of such prospectus supplement or post
effective amendment.
(m) The Company shall promptly make available for inspection by
any Selling Holder or Underwriter participating in any disposition pursuant
to any registration statement, and any attorney, accountant or other agent
or representative retained by any such Selling Holder or Underwriter, all
financial and other records, pertinent corporate documents and properties
of the Company, as shall be reasonably necessary to enable them to exercise
their due diligence responsibility, and cause the Company's officers,
directors and employees to supply all information requested by any such
Selling Holder or Underwriter in connection with such registration
statement.
(n) The Company shall cause the Registrable Securities included
in any registration statement to be (A) listed on each securities exchange,
if any, on which similar securities issued by the Company are then listed,
or (B) authorized to be quoted and/or listed (to the extent applicable) on
the Nasdaq National Market if the Registrable Securities so qualify.
(o) The Company shall provide a CUSIP number, registrar and
transfer agent for the Registrable Securities included in any registration
statement not later than the effective date of such registration statement.
(p) The Company shall cooperate with each Selling Holder and each
Underwriter participating in the disposition of such Registrable Securities
and their respective counsel in connection with any filings required to be
made with the National Association of Securities Dealers, Inc.
(q) The Company shall during the period when the prospectus is
required to be delivered under the Securities Act, promptly file all
documents required to be filed with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act.
(r) The Company will make generally available to its security
holders, as soon as reasonably practicable, an earnings statement covering
a period of 12 months, beginning within three months after the effective
date of the registration statement, which earnings statement shall satisfy
the provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
(s) The Company will use its best efforts to cause all such
Registrable Securities and, in the event of a public offering of Series A
Preferred Stock, the Series A Preferred Stock (subject to applicable
listing requirements), to be listed on each securities exchange or quoted
on each inter-dealer quotation system on which the Common Stock is then
listed or quoted.
The Company may require Selling Holders promptly to furnish in writing
to the Company such information regarding such Selling Holders, the plan of
distribution of the Registrable Securities and other information as may be
legally required in connection with such registration.
Section 3.02 Registration Expenses. The Company will pay all
registration expenses of the Selling Holders in connection with any Demand
and/or Piggyback Registrations including but not limited to (i) registration and
filing fees with the Commission and the National Association of Securities
Dealers, Inc., (ii) fees and expenses of compliance with securities or blue sky
laws (including reasonable fees and disbursements of counsel in connection with
blue sky qualifications of the Registrable Securities), (iii) printing expenses,
(iv) fees and expenses incurred in connection with the listing or quotation of
the Registrable Securities, (v) fees and expenses of counsel to the Company and
the reasonable fees and expenses of independent certified public accountants for
the Company (including fees and expenses associated with the special audits or
the delivery of comfort letters), (vi) the reasonable fees and expenses of any
additional experts retained by the Company in connection with such registration,
(vii) all roadshow costs and expenses not paid by the Underwriters, (viii)
rating agency fees and (ix) fees and expenses of counsel to the holders of
Registrable Securities.
The Company will not be required to pay for any underwriting discounts
and commissions attributable to the sale of Registrable Securities.
ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
Section 4.01 Indemnification by the Company. The Company agrees to
indemnify and hold harmless, to the fullest extent permitted by applicable law,
each Selling Holder and its Affiliates and their respective officers, directors,
partners, stockholders, members, employees, agents and representatives and each
Person (if any) which controls a Selling Holder within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages, liabilities, costs and expenses
(including attorneys, fees) (collectively, "Losses") caused by, arising out of,
resulting from or related to any untrue statement or alleged untrue statement of
a material fact contained in any registration statement, preliminary prospectus
or prospectus relating to the Registrable Securities (as amended or supplemented
from time to time), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such Losses are caused by
or contained in or based upon any information furnished in writing to the
Company by or on behalf of such Selling Holder or any Underwriter expressly for
use therein (which was not subsequently corrected in writing prior to or
concurrently with the sale of Registrable Securities to the Person asserting the
Loss) or by the Selling Holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Company has furnished the Selling Holder with copies of the same. The Company
also agrees to indemnify any Underwriters of the Registrable Securities, their
officers and directors and each person who controls such Underwriters on
substantially the same basis as that of the indemnification of the Selling
Holders provided in this Section 4.01. Notwithstanding the foregoing, the
Company shall have no obligation to indemnify under this Section 4.01 to the
extent any such Losses have been finally and non-appealably determined by a
court of competent jurisdiction to have resulted from a Selling Holder's or
Underwriter's willful misconduct or gross negligence.
Section 4.02 Indemnification by Selling Holders. The Selling Holders
agree to indemnify and hold harmless, to the fullest extent permitted by
applicable law, the Company and its Affiliates and their respective officers,
directors, partners, stockholders, members, employees, agents and
representatives and each Person (if any) which controls the Company within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all Losses caused by, arising out of, resulting
from or related to any untrue statement or alleged untrue statement of a
material fact contained in any registration statement, preliminary prospectus or
prospectus relating to the Registrable Securities (supplemented from time to
time) or any preliminary prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only insofar as
such Losses are caused by or contained in or based upon any information
furnished in writing to the Company by or on behalf of such Selling Holder or
any Underwriter expressly for use therein (which was not subsequently corrected
in writing prior to or concurrently with the sale of Registrable Securities to
the Person asserting the Loss). Notwithstanding the foregoing, the Selling
Holder shall have no obligation to indemnify under this Section 4.02 to the
extent that any such Losses have been finally and non-appealably determined by a
court of competent jurisdiction to have resulted from the Company's willful
misconduct or gross negligence.
Section 4.03 Conduct of Indemnification Proceedings. In case any
proceeding (including any governmental investigation) shall be instituted or
threatened involving any Person in respect of which indemnity may be sought
pursuant to Section 4.01 or Section 4.02, such Person (the "Indemnified Party")
shall promptly notify the Person against whom such indemnity may be sought (the
"Indemnifying Party") in writing (it being understood that the failure to give
such notice shall not relieve any Indemnifying Party from any liability which it
may have hereunder except to the extent the Indemnifying Party is actually and
materially prejudiced by such failure) and the Indemnifying Party, upon the
request of the Indemnified Party, shall retain counsel reasonably satisfactory
to such Indemnified Party to represent such Indemnified Party and any other
Persons the Indemnifying Party may designate in such proceeding and shall pay
the fees and disbursements of such counsel related to such proceeding. If the
Indemnifying Party does not elect within 15 days after receipt of the notice
required hereby to assume the defense of any proceeding, the Indemnified Party
may assume such defense with counsel of its choice at the cost and expense of
the Indemnifying Party. In any such proceeding where the Indemnifying Party has
assumed the defense, any Indemnified Party shall have the right to retain its
own counsel and participate in the defense, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Party unless (i) the
Indemnifying Party and the Indemnified Party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the Indemnified Party and the
Indemnifying Party and, in the opinion of counsel for the Indemnified Party,
representation of both parties by the same counsel would be inappropriate due to
actual or potential conflicting interests between them or there exist defenses
available to the Indemnified Party which are not available to the Indemnifying
Party. It is understood that the Indemnifying Party shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel for each such jurisdiction) at any time for all
such Indemnified Parties, and that all such fees and expenses shall be
reimbursed as they are incurred. In the case of any such separate firm for the
Indemnified Parties, such firm shall be designated in writing by the Indemnified
Parties. The Indemnifying Party shall not settle any claim or proceeding without
the written consent of the Indemnified Party, unless such settlement (x)
requires no relief or penalty other than the payment of money damages, (y) does
not require any Indemnified Party to admit culpability or fault in any respect
and (z) contains a full and complete release of the Indemnified Party with
respect to all matters arising from the facts giving rise to the underlying
claim or proceeding. The Indemnifying Party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent (not to be unreasonably withheld), or if there be a
final judgment for the plaintiff, the Indemnifying Party shall indemnify and
hold harmless such Indemnified Parties from and against any loss or liability
(to the extent stated above) by reason of such settlement or judgment.
Section 4.04 Contribution. If the indemnification provided for in this
Article IV is unavailable to an Indemnified Party in respect of any Losses in
respect of which indemnity is to be provided hereunder, then each such
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall to the
fullest extent permitted by law contribute to the amount paid or payable by such
Indemnified Party as a result of such Losses in such proportion as is
appropriate to reflect the relative fault of such party in connection with the
statements or omissions that resulted in such Losses, as well as any other
relevant equitable considerations. The relative fault of the Company, each
Selling Holder and the Underwriters 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 such party and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and each Selling Holder agrees that it would not be just
and equitable if contribution pursuant to this Section 4.04 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Party as a result of the Losses
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Article IV, no Selling Holder shall be required to indemnify for or contribute
any amount in excess of the amount by which the net proceeds of the offering
received by such Selling Holder exceeds the amount of any damages which such
Selling Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person 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.
ARTICLE V
MISCELLANEOUS
Section 5.01 Participation in Underwritten Registrations. No Person
may participate in any underwritten registered offering contemplated hereunder
unless such Person (a) agrees to sell its securities on the basis provided in
any underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements, (b) completes and executes all questionnaires, powers
of attorney, custody arrangements, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements and this Agreement and (c) furnishes in writing to the Company such
information regarding such Person, the plan of distribution of the Registrable
Securities and other information as the Company may from time to time request or
as may be legally required in connection with such registration; provided,
however, that no such Person shall be required to make any representations or
warranties in connection with any such registration other than representations
and warranties as to (i) such Person's ownership of his or its Registrable
Securities to be sold or transferred free and clear of all liens, claims and
encumbrances, (ii) such Person's power and authority to effect such transfer and
(iii) such matters pertaining to compliance with securities laws as may be
reasonably requested; provided further, however, that the obligation of such
Person to indemnify pursuant to any such underwriting agreements shall be
several, not joint and several, among such Persons selling Registrable
Securities, and the liability of each such Person will be in proportion to, and
limited to, the net amount received by such Person from the sale of such
Person's Registrable Securities pursuant to such registration.
Section 5.02 Rule 144. The Company covenants that it will file any
reports required to be filed by it under the Securities Act and the Exchange Act
and that it will take such further action as the Holders may reasonably request
to the extent required from time to time to enable the Holders to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by Rule 144 under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission. Upon the request of any Holder, the Company
will deliver to such Holder a written statement as to whether it has complied
with such reporting requirements.
Section 5.03 Holdback Agreements. Each Holder agrees, in the event of
an underwritten offering for the account of the Company not to offer, sell,
contract to sell or otherwise dispose of any Registrable Securities, or any
securities convertible into or exchangeable or exercisable for such securities,
including any sale pursuant to Rule 144 under the Securities Act (except as part
of such underwritten offering), during the 14 days prior to, and during the 120
day period (or such lesser period as the lead or managing underwriters may
require) beginning on, the effective date of the registration statement for such
underwritten offering (or, in the case of an offering pursuant to an effective
shelf registration statement pursuant to Rule 415, the pricing date for such
underwritten offering).
Section 5.04 Termination. The registration rights granted under this
Agreement will terminate at such time as there shall no longer be any
Registrable Securities.
Section 5.05 Amendments, Waivers, Etc. This Agreement may not be
amended, waived or otherwise modified or terminated except by an instrument in
writing signed by the Company and Holders of at least 66-2/3% of the Registrable
Securities then held by all Holders, if the amendment is to be effective against
the Holders.
Section 5.06 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement.
Each party need not sign the same counterpart.
Section 5.07 Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter hereof.
Section 5.08 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law thereof.
Section 5.09 Assignment of Registration Rights. Each Holder of the
Registrable Securities may assign all or any part of its rights under this
Agreement to any person to whom such Holder sells, transfers or assigns such
Registrable Securities. In the event that the Holder shall assign its rights
pursuant to this Agreement in connection with the transfer of less than all its
Registrable Securities, the Holder shall also retain his rights with respect to
its remaining Registrable Securities.
Section 5.10 Specific Performance. The Company agrees that monetary
damages would not be adequate compensation for any loss incurred by the Holders
by reason of any breach by it of the provisions of this Agreement and hereby
agrees that the Holders, in addition to any remedies which they may have at law,
including monetary damages, will be entitled to the remedy of specific
performance.
Section 5.11 No Superior Registration Rights. The Company will not
grant registration rights superior to those of the Holders pursuant to this
Agreement.
IN WITNESS WHEREOF, the Company and The Holders have caused this
Agreement to be signed on its behalf by its officer thereunto duly authorized as
of the date first written above.
COMPUTER OUTSOURCING SERVICES, INC.
By /s/Xxxx Xxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxx
Title: Chief Executive Officer
DB CAPITAL INVESTORS, L.P.
By: DB Capital Partners, L.P.,
its General Partner
By: DB Capital Partners, Inc.,
its General Partner
By /s/Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
SANDLER CAPITAL PARTNERS V, L.P.
By: Sandler Investment Partners, L.P.,
General Partner
By: Sandler Capital Management,
General Partner
By: MJDM Corp., a General Partner
By /s/Xx Xxxxxxxxx
-----------------------------------
Name: Xx Xxxxxxxxx
Title: Managing Director
SANDLER INTERNET PARTNERS, L.P.
By: Sandler Investment Partners, L.P.,
General Partner
By: Sandler Capital Management,
General Partner
By: MJDM Corp., a General Partner
By /s/Xx Xxxxxxxxx
------------------------------------
Name: Xx Xxxxxxxxx
Title: Managing Director
SANDLER CO-INVESTMENT PARTNERS, L.P.
By: Sandler Investment Partners, L.P.,
General Partner
By: Sandler Capital Management,
General Partner
By: MJDM Corp., a General Partner
By /s/Xx Xxxxxxxxx
-------------------------------------
Name: Xx Xxxxxxxxx
Title: Managing Director
PRICE FAMILY LIMITED PARTNERS
By /s/Xxxxxxx Xxxxx
--------------------------------------
Name: Xxxxxxx Xxxxx
Title: General Partner
XXXXXX, X.X.
By /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: General Partner
