Exhibit 3 (a) (iii)
SECOND AMENDMENT TO AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (this
"AMENDMENT") is made and entered into as of this ___ day of April, 2002 (the
"EFFECTIVE DATE"), by and among TCI Solutions, Inc., a Delaware corporation (the
"COMPANY"), the stockholders and option holders listed on Schedule I hereto
(collectively, the "MANAGEMENT SHAREHOLDERS"), the holders of Series A Preferred
Stock of the Company listed on Schedule I hereto (collectively, the "SERIES A
INVESTORS"), and the holders of Series B Preferred Stock of the Company listed
on Schedule I hereto (collectively, the "SERIES B INVESTORS"). The Management
Shareholders, Series A Investors and Series B Investors are referred to herein
as the "HOLDERS."
RECITALS
WHEREAS, the parties hereto desire to amend that certain Amended and
Restated Stockholders Agreement dated as of December 21, 2001 (the "Amended and
Restated Stockholders Agreement") among the Company and the Holders other than
Blue Chip Capital Fund IV Limited Partnership, as amended by that certain First
Amendment to Amended and Restated Stockholders Agreement dated as of April 10,
2002 (the "First Amendment") among the Company and the Holders.
NOW, THEREFORE, in consideration of the mutual undertakings set forth
herein, the parties hereby agree as follows:
1. Definitions. For purposes of this Amendment, all capitalized terms used
but not defined herein shall have the meanings ascribed thereto in the Amended
and Restated Stockholders Agreement.
2. Addition of Section 2.5. Section 2.5 is hereby added to the Amended and
Restated Stockholders Agreement which shall read in its entirety as follows:
"2.5 Drag Along Rights. After the fifth anniversary of the date on
which the Series B Preferred Stock is first issued by the Company, if the
Required Preferred Percentage (as defined in the Fourth Amended and
Restated Certificate of Incorporation of the Company, as amended from time
to time (the "Restated Certificate")) approve the (i) sale of all or
substantially all of the assets of the Company or (ii) sale of all of the
outstanding shares of capital stock of the Company (whether by merger,
consolidation, stock sale or otherwise) (an "Approved Sale"), each of the
Holders shall vote to approve and raise no objections against such Approved
Sale (including refraining from exercising any rights of appraisal) and
shall take all reasonably necessary actions in their capacities as
stockholders in connection with the consummation of such Approved Sale. If
the Approved Sale is structured as a sale of all of the outstanding capital
stock of the Company, the Holders shall agree to sell
their pro rata amount of shares and rights to acquire shares which are
subject to such Approved Sale on the terms and conditions approved by the
Required Preferred Percentage. The obligations of the Holders with respect
to any Approved Sale are subject to the condition that, upon the
consummation of such Approved Sale, all of the stockholders of the Company
will receive the same form and amount of consideration per share, or if any
Holders are given an option as to the form and amount of consideration to
be received, all stockholders of the Company will be given the same option,
on a pro rata basis in proportion to the number of shares held by each
(determined by assuming the full conversion of all convertible securities),
provided, however, that the consideration paid to the stockholders of the
Company shall reflect the priorities and preferences provided to the
Preferred Stock in Section A.2 of Article Fourth in the Restated
Certificate."
3. Entire Agreement. Except as otherwise expressly set forth herein, this
Amendment, the First Amendment and the Amended and Restated Stockholders
Agreement embody the complete agreement and understanding among the parties
hereto with respect to the subject matter hereof and thereof and supersede and
preempt any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
4. Benefit and Binding Effect. This Amendment shall be binding upon and
inure to the benefit of the parties and their executors, administrators,
personal representatives, heirs, successors and permitted assigns.
5. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
6. Governing Law. This Amendment shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware, without giving
effect to the choice of law principles thereof.
7. Effective Date. This Amendment shall be effective upon receipt by the
Company of the signatures of a majority in interest of the Management Holders
and the Required Preferred Percentage.
[signature pages to follow]
-2-
[SIGNATURE PAGE TO SECOND AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
to Amended and Restated Stockholders Agreement as of the day and year first
above written.
TCI SOLUTIONS, INC.
By:
----------------------------------------------
Xxxxxxx X. XxXxxxxx
Chief Financial Officer
[SIGNATURE PAGE TO SECOND AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
to Amended and Restated Stockholders Agreement as of the day and year first
above written.
MANAGEMENT SHAREHOLDERS:
-------------------------------------
Xxxxx Xxxxxx
-------------------------------------
Xxxxx Xxxxxxxx
-------------------------------------
Xxxxxxx XxXxxxxx
-------------------------------------
Xxxxx Xxxx
[SIGNATURE PAGE TO SECOND AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
to Amended and Restated Stockholders Agreement as of the day and year first
above written.
XXXX XXXXXXXXXXX
ENVIRONMENTAL & INFORMATION
TECHNOLOGY PRIVATE EQUITY FUND III,
a civil partnership with limitation of
liability established under the laws of
the Federal Republic of Germany
By: Infrastructure and Environmental Private
Equity Management, L.L.C., Its General
Partner
By: First Analysis IEPEF Management Company,
III, L.L.C., A Member
By: First Analysis Corporation, A Member
By: -------------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Managing Director
INFRASTRUCTURE AND ENVIRONMENTAL PRIVATE
EQUITY FUND III, L.P.
By: Infrastructure and Environmental Private
Equity Management, L.L.C., Its
General Partner
By: First Analysis IEPEF Management Company,
III, L.L.C., A Member
By: First Analysis Corporation, A Member
By: -------------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Managing Director
[SIGNATURE PAGE TO SECOND AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
to Amended and Restated Stockholders Agreement as of the day and year first
above written.
PRODUCTIVITY FUND IV, L.P.
By: First Analysis Management Company IV L.L.C.,
its General Partner
By: First Analysis Venture Operations and
Research, L.L.C., Managing Member
By: --------------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Managing Director/Member
PRODUCTIVITY FUND IV ADVISORS FUND, L.P.
By: First Analysis Management Company IV, L.L.C.
Its: General Partner
By: First Analysis Venture Operations & Research,
L.L.C.
Its: Management Member
By: --------------------------------------------
Name: Xxxx Xxxxxxxxxxx
Its: Managing Director/Member
[SIGNATURE PAGE TO SECOND AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
to Amended and Restated Stockholders Agreement as of the day and year first
above written.
ARGENTUM CAPITAL PARTNERS, L.P.
By: B.R. Associates, Inc,
its General Partner
By: --------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Chairman
ARGENTUM CAPITAL PARTNERS II, L.P.
By: Argentum Partners II, L.L.C.,
its General Partner
By: Argentum Investments, L.L.C.,
its Managing Member
By: --------------------------------------------
Xxxxxx Xxxxxx, Managing Member
TCI ACPII LIMITED PARTNERS, L.P.
By: Argentum Investments, L.L.C.,
its Managing Member
By: --------------------------------------------
Xxxxxx Xxxxxx, Managing Member
GUARANTEE & TRUST CO., TTEE XXXXXX XXXXXX GTC XXX
By: --------------------------------------------
Name: Xxxxxx Xxxxxx,
Title:
-------------------------------------
[SIGNATURE PAGE TO SECOND AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
to Amended and Restated Stockholders Agreement as of the day and year first
above written.
-------------------------------------
XXXXXX XXXXXX, XX.
INNOCAL II, L.P.
By: InnoCal Management II, L.P.
Its: General Partner
By:
-------------------------------------------
Name: Xxxxx X. Xxxxxxxx III
Its: Managing Director
[SIGNATURE PAGE TO SECOND AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
to Amended and Restated Stockholders Agreement as of the day and year first
above written.
BLUE CHIP CAPITAL FUND IV LIMITED PARTNERSHIP
By: Blue Chip Venture Company, Ltd.
By:
-------------------------------------------
Xxxx X. Xxxxxxx, Director
SCHEDULE I
----------
MANAGEMENT SHAREHOLDERS:
-----------------------
XXXXX XXXXXX
XXXXX XXXXXXXX
XXXXXXX XXXXXXXX
XXXXX XXXX
SERIES A INVESTORS:
------------------
ENVIRONMENTAL & INFORMATION TECHNOLOGY PRIVATE
EQUITY FUND III
INFRASTRUCTURE AND ENVIRONMENTAL PRIVATE EQUITY FUND III, L.P.
ARGENTUM CAPITAL PARTNERS, L.P.
ARGENTUM CAPITAL PARTNERS II, L.P.
TCI ACPII LIMITED PARTNERS, L.P.
GUARANTEE & TRUST CO., TTEE XXXXXX XXXXXX GTC XXX
XXXX XXXXXXXXXXX
XXXXXX XXXXXX, XX.
SERIES B INVESTORS:
------------------
INNOCAL II, L.P.
PRODUCTIVITY FUND IV, L.P.
PRODUCTIVITY FUND IV ADVISORS FUND, L.P.
ENVIRONMENTAL & INFORMATION TECHNOLOGY PRIVATE
EQUITY FUND III
INFRASTRUCTURE AND ENVIRONMENTAL PRIVATE EQUITY FUND III, L.P.
ARGENTUM CAPITAL PARTNERS, L.P.
ARGENTUM CAPITAL PARTNERS II, L.P.
TCI ACPII LIMITED PARTNERS, L.P.
XXXX XXXXXXXXXXX
GUARANTEE & TRUST CO., TTEE XXXXXX XXXXXX GTC XXX
BLUE CHIP CAPITAL FUND IV LIMITED PARTNERSHIP