FALLBROOK TECHNOLOGIES INC. REGISTRATION RIGHTS AGREEMENT
Exhibit
4.2
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of January
11, 2010 by and among Fallbrook Technologies Inc., a Delaware corporation (the “Company”), and each
of the investors listed on Exhibit A hereto (each an “Investor” and collectively, the
“Investors”), and shall be effective as of the Effective Time (as defined below).
RECITALS
A. The Company and the Investors are parties to an Amended and Restated Investor Rights
Agreement dated as of December 18, 2008 (the “Prior Agreement”), which sets forth certain
registration rights, rights of first offer and information rights granted to the Investors by the
Company.
B. The Company intends to effect an initial public offering of the Company’s Common Stock on
the Toronto Stock Exchange (the “IPO”).
C. In order to facilitate the completion of the IPO, the Company and the Investors desire to
amend and restate the Prior Agreement to provide as set forth in this Agreement, which amendment
and restatement would be effective immediately prior to the closing of the IPO (the “Effective
Time”) and contingent upon the closing of the IPO.
Therefore, the Prior Agreement is, as of the Effective Time, amended and restated and
superseded and replaced in its entirety by this Agreement, and in consideration of the foregoing
recitals and the mutual promises hereinafter set forth, the parties hereto further agree as
follows:
1. Definitions.
1.1 “Affiliate” means, with respect to any specified individual or entity, any other
individual or entity who or that, directly or indirectly, controls, is controlled by, or is under
common control with such specified individual or entity, including without limitation any partner,
officer, director, manager or employee of such entity and any venture capital fund now or hereafter
existing that is controlled by or under common control with one or more general partners or
managing members of, or shares the same management company with, such individual or entity.
1.2 “Board of Directors” means the Company’s Board of Directors.
1.3 “Common Stock” means the Common Stock, $0.001 par value, of the Company.
1.4 “Equity Securities” means (i) Common Stock, rights, options or warrants to purchase Common
Stock, (ii) any security other than Common Stock having voting rights in the election of the Board
of Directors, other than rights contingent upon a failure to pay dividends, or (iii) any security
convertible into or exchangeable for any of the foregoing.
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1.5 “Exchange Act” means the Securities Exchange Act of 1934, as amended.
1.6 “Form S-3” means such form under the Securities Act as is in effect on the date hereof or
any successor registration form under the Securities Act subsequently adopted by the SEC (as
defined below) which permits inclusion or incorporation of substantial information by reference to
other documents filed by the Company with the SEC (as defined below).
1.7 “Holder” means any Investor that holds Registrable Securities (as defined below) or
securities convertible into Registrable Securities or any assignee of record of such Registrable
Securities to whom rights under Section 2 have been duly assigned in accordance with Section 2.11
hereof.
1.8 “Immediate Family Member” means a child, stepchild, grandchild, parent, stepparent,
grandparent, spouse, sibling, domestic partner, mother-in-law, father-in-law, son-in-law,
daughter-in-law, brother-in-law, or sister-in-law, including adoptive relationships, of a natural
person referred to herein.
1.9 “Preferred Stock” means the Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock and Series D Preferred Stock (each as defined below).
1.10 “Register,” “registered” and “registration” refer to a registration effected by the
preparation and filing of a registration statement in compliance with the Securities Act, and the
declaration or ordering of effectiveness of such registration statement.
1.11 “Registrable Securities” means: (i) any and all shares of Common Stock issued or issuable
upon conversion of the shares of Preferred Stock held by the Investors, (ii) the Common Stock
issuable upon exercise of the Common Stock Purchase Warrant issued by the Company to ▇▇▇▇ ▇▇▇▇▇▇,
and (iii) any shares of Common Stock issued as (or issuable upon the conversion or exercise of any
warrant, right or other security which is issued as) a dividend or other distribution with respect
to, in exchange for, or in replacement of, such shares of Common Stock described in clause (i);
provided, however, that particular shares of any of the foregoing shall cease to be Registrable
Securities once they have been sold in any public offering or transferred by the Holder in a
transaction in which its rights under this Agreement are not assigned in accordance with the
provisions of this Agreement.
1.12 “Registrable Securities then outstanding” means the number of shares of Common Stock
which are Registrable Securities and (i) are then issued and outstanding or (ii) are then issuable
pursuant to the exercise or conversion of options, warrants or convertible securities.
1.13 “SEC” means the United States Securities and Exchange Commission.
1.14 “Securities Act” means the Securities Act of 1933, as amended.
1.15 “Series A Preferred Stock” means the Company’s Series A Preferred Stock, $0.001 par
value.
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1.16 “Series B Preferred Stock” means the Company’s Series B Preferred Stock, $0.001 par
value.
1.17 “Series C Preferred Stock” means the Company’s Series C Preferred Stock, $0.001 par
value.
1.18 “Series D Preferred Stock” means the Company’s Series D Preferred Stock, $0.001 par
value.
1.19 “Voting Agreement” means that certain Voting Agreement by and between the Company and the
Stockholders (as defined therein) from time-to-time party thereto.
2. Registration Rights.
2.1 Demand Registration.
(a) Request by Holders. If the Company shall receive at any time after six (6) months after
the closing of the IPO a written request from the Holders of at least 30% of the Registrable
Securities then outstanding (“Initiating Holders”) that the Company file a registration statement
under the Securities Act covering the registration of such number of Registrable Securities as
would have an anticipated aggregate public offering price of not less than US$7,500,000, then the
Company shall, within fifteen (15) business days of the receipt of such written request, give
written notice of such request (“Demand Notice”) to all Holders and, as soon as practicable, file a
registration statement under the Securities Act covering all Registrable Securities that the
Initiating Holders requested to be registered and any additional Registrable Securities requested
to be included in such registration by any other Holders, as specified by notice given by each such
Holder to the Company within twenty (20) days of the date the Demand Notice is given, and in each
case, subject to the limitations of this Section 2.
(b) Underwriting. If the Initiating Holders intend to distribute the Registrable Securities
covered by their request by means of an underwriting, then they shall so advise the Company as a
part of their request made pursuant to Section 2.1(a) and the Company shall include such
information in the Demand Notice. In such event, the right of any Holder to include such Holder’s
Registrable Securities in such registration shall be conditioned upon such Holder’s participation
in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting
(unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such
Holder) to the extent provided herein. The underwriters will be selected by the Company and shall
be reasonably acceptable to a majority in interest of the Initiating Holders. All Holders proposing
to distribute their Registrable Securities through such underwriting shall enter into an
underwriting agreement in customary form with the managing underwriter or underwriters selected for
such underwriting. Notwithstanding any other provision of this Section 2.1, if the managing
underwriters advise the Company in writing that marketing factors require a limitation of the
number of securities to be underwritten, then the Company shall so advise all Holders of
Registrable Securities that would otherwise be registered and underwritten pursuant hereto, and the
number of Registrable Securities that may be included in the underwriting shall be reduced as
required by the underwriters and allocated among the Holders on a pro rata basis according to the
number of Registrable Securities held by each Holder
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requesting registration (including the Initiating Holders); provided, however, that the number
of shares of Registrable Securities to be included in such underwriting and registration shall not
be reduced unless all other securities of the Company are first entirely excluded from the
underwriting and registration. Any Registrable Securities excluded and withdrawn from such
underwriting shall be withdrawn from the registration.
(c) Exceptions to Registration Obligations. The Company shall not be obligated to effect, or
to take any action to effect, any registration pursuant to this Section 2.1: (i) during the period
starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of
filing of, and ending on the date that is one hundred eighty (180) days after the effective date
of, a Company-initiated registration, provided that the Company is actively employing in good faith
commercially reasonable efforts to cause such registration statement to become effective; (ii)
after the Company has effected two (2) such registrations; or (iii) if the Initiating Holders
propose to dispose of shares of Registrable Securities that may be immediately registered on Form
S-3 pursuant to a request made pursuant to Section 2.3. A registration shall not be counted as
“effected” for purposes of this Section 2.1 until such time as the applicable registration
statement has been declared effective by the SEC, unless the Initiating Holders withdraw their
request for such registration and forfeit their right to one demand registration pursuant to
Section 2.6.
(d) Deferral of Registration. Notwithstanding the foregoing, if the Company shall furnish to
Holders requesting registration pursuant to this Section 2.1 a certificate signed by the President
or Chief Executive Officer of the Company stating that, in the good faith judgment of the Board of
Directors, it would be materially detrimental to the Company and its stockholders for such
registration statement to be filed and it is therefore essential to defer the filing of such
registration statement, then the Company shall have the right to defer such filing for a period of
not more than 120 days following receipt of the request of the Initiating Holders; provided,
however, that the Company may not utilize this right more than once in any 12-month period.
(e) Other Company Shares. If the managing underwriters have not limited the Registrable
Securities to be underwritten, the Company may include securities for its own account or for the
account of others in such registration if the managing underwriters so agree and if the number of
Registrable Securities which would otherwise have been included in such registration and
underwriting will not thereby be limited.
2.2 Company Registration.
(a) Notice to Holders. If (but without any obligation to do so) the Company proposes to
register (including for this purpose a registration effected by the Company for shareholders other
than the Holders) any of its stock in connection with the public offering of such stock (other than
a registration relating solely to the issuance of securities by the Company pursuant to a stock
option, stock purchase or similar benefit plan or an SEC Rule 145 transaction, or a registration in
which the only stock being registered is stock issuable upon conversion of debt securities that are
also being registered), the Company shall promptly give each Holder written notice of such
registration. Upon the request of each Holder given within twenty (20) days after such notice is
given by the Company, the Company shall, subject to the provisions of
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Section 2.2(c), use all reasonable efforts to cause to be registered all of the Registrable
Securities that each such Holder has requested to be included in such registration.
(b) Right to Terminate Registration. The Company shall have the right to terminate or withdraw
any registration initiated by it under this Section 2.2 before the effective date of such
registration, whether or not any Holder has elected to include Registrable Securities in such
registration. The expenses of such withdrawn registration shall be borne by the Company in
accordance with Section 2.6.
(c) Underwriting. If a registration of which the Company gives notice under this Section 2.2
is for an underwritten offering, then the Company shall so advise the Holders. In such event, the
right of any Holder to include such Holder’s Registrable Securities in such registration shall be
conditioned upon such Holder’s participation in such underwriting and the inclusion of such
Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders
proposing to distribute their Registrable Securities through such underwriting shall enter into an
underwriting agreement in customary form with the managing underwriters selected for such
underwriting. Notwithstanding any other provision of this Agreement, if the managing underwriters
advise the Company in writing that marketing factors require a limitation of the number of
securities to be underwritten, then the managing underwriters may exclude shares (including
Registrable Securities) from the registration and the underwriting, and the number of shares that
may be included in the registration and the underwriting shall be allocated, first, to the Company,
and second, to each of the Holders requesting inclusion of their Registrable Securities in such
registration statement on a pro rata basis based on the total number of Registrable Securities then
held by each such Holder; provided, however, that no such reduction shall reduce the amount of
securities of the selling Holders included in the registration below 25% of the total amount of
securities included in such registration, unless such offering is the IPO, in which event all
Registrable Securities may be excluded. In no event will shares of any other selling shareholder be
included in such registration which would reduce the number of shares that may be included by
selling Holders without the written consent of not less than a majority in interest of the selling
Holders. If any Holder disapproves of the terms of any such underwriting, such Holder may elect to
withdraw therefrom by written notice to the Company and the managing underwriters. Any Registrable
Securities excluded or withdrawn from such underwriting shall be excluded and withdrawn from the
registration. For any Holder that is a partnership, limited liability company or corporation, the
partners or members, retired partners or members or shareholders of such Holder, the estates and
immediate family members of any of the foregoing persons and any trusts for the benefit of any of
the foregoing persons shall be deemed to be a single Holder, and any pro rata reduction with
respect to such Holder shall be based upon the aggregate amount of shares carrying registration
rights owned by all entities and individuals included in such Holder.
2.3 Form S-3 Registration. Following its initial public offering, the Company shall use
commercially reasonable efforts to qualify for registration on Form S-3 or its successor form or
forms. In case the Company shall receive from any Holder or Holders of at least 30% of the
Registrable Securities then outstanding a written request or requests that the Company effect a
registration on Form S-3 or a successor form and any related qualification or compliance with
respect to all or a part of the Registrable Securities owned by such Holder or Holders, then the
Company shall:
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(a) promptly give written notice of the proposed registration and the Holder’s or Holders’
request therefor, and any related qualification or compliance, to all other Holders of Registrable
Securities; and
(b) as soon as practicable, use commercially reasonable efforts to effect such registration as
would permit or facilitate the sale and distribution of all or such portion of such Holder’s or
Holders’ Registrable Securities as are specified in such request, together with all or such portion
of the Registrable Securities of any other Holders joining in such request as are specified in a
request given to the Company within fifteen (15) days after the S-3 Notice is given; provided,
however, that the Company shall not be obligated to effect any such registration pursuant to this
Section 2.3:
(i) if Form S-3 is not then available for such offering by the Holders;
(ii) if the Holders, together with the holders of any other securities of the Company entitled
to and requesting inclusion in such registration, propose to sell Registrable Securities and such
other securities (if any) at an aggregate price to the public of less than US$1,000,000;
(iii) if the Company furnishes to the Holders a certificate signed by the President or Chief
Executive Officer of the Company stating that, in the good-faith judgment of the Board of
Directors, it would be materially detrimental to the Company and its shareholders for such
registration to be effected at such time, in which event the Company shall have the right to defer
the filing of the Form S-3 registration statement for a period of not more than 120 days after
receipt of the request of the Initiating Holders under this Section 2.3; provided, however, that
the Company shall not invoke this right more than once in any twelve (12) month period; or
(iv) if the Company has, within the twelve (12) month period preceding the date of such
request, already effected one registration on Form S-3 for the Holders pursuant to this Section
2.3; or
(v) during the period ending one hundred eighty (180) days after the effective date of a
registration effected under Section 2.2 hereof.
(c) Registrations effected pursuant to this Section 2.3 shall not be counted as demands for
registration effected pursuant to Section 2.1.
(d) If the registration is for an underwritten offering, the provisions of Section 2.1(b)
hereof shall apply to such registration.
2.4 Obligations of the Company. Whenever required under this Section 2 to effect the
registration of any Registrable Securities, the Company shall, as expeditiously as reasonably
possible:
(a) prepare and file with the SEC a registration statement with respect to such Registrable
Securities and use commercially reasonable efforts to cause such registration statement to become
effective, and, upon the request of the Holders of a majority of the Registrable Securities
registered thereunder, keep such registration statement effective for up to
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one hundred twenty (120) days or until the Holders have completed the distribution described
in the registration statement relating thereto, whichever first occurs; provided, however, that
such 120-day period shall be extended for a period of time equal to the period the Holders refrain
from selling any securities included in such registration at the request of an underwriter of
securities of the Company;
(b) prepare and file with the SEC such amendments and supplements to such registration
statement and the prospectus used in connection with such registration statement as may be
necessary to comply with the provisions of the Securities Act with respect to the disposition of
all securities covered by such registration statement and, in connection with any registration on
Form S-3 pursuant to Section 2.3 above, use reasonable, diligent efforts to timely file all reports
required under the 1934 Act in order to maintain the right to continue to use such Form and to
maintain such registration in effect;
(c) furnish to the selling Holders such number of copies of a prospectus, including a
preliminary prospectus, in conformity with the requirements of the Securities Act, and such other
documents as they may reasonably request in order to facilitate the disposition of the Registrable
Securities owned by them that are included in such registration;
(d) use commercially reasonable efforts to register and qualify the securities covered by such
registration statement under such other securities or blue sky laws of such states or other
jurisdictions as shall be reasonably requested by the selling Holders, provided that the Company
shall not be required in connection therewith or as a condition thereto to qualify to do business
or to file a general consent to service of process in any such states or jurisdictions;
(e) in the event of any underwritten public offering, enter into and perform its obligations
under an underwriting agreement, in usual and customary form, with the managing underwriters of
such offering (it being understood and agreed that, as a condition to the Company’s obligations
under this clause (e), each Holder participating in such underwriting shall also enter into and
perform its obligations under such an agreement);
(f) notify each Holder of Registrable Securities covered by 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 as a result of which the prospectus included 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
the light of the circumstances then existing;
(g) cause all such Registrable Securities registered pursuant hereunder to be listed on each
securities exchange and trading system (if any) on which similar securities issued by the Company
are then listed;
(h) provide a transfer agent and registrar for all Registrable Securities registered pursuant
to such registration statement and a CUSIP number for all such Registrable Securities, in each case
not later than the effective date of such registration; and
(i) promptly make available for inspection by the selling Holders, any managing underwriter
participating in any disposition pursuant to such registration statement,
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and any attorney or accountant or other agent retained by any such underwriter or selected by
the selling Holders, all financial and other records, pertinent corporate documents and properties
of the Company and cause the Company’s officers, directors, employees and independent accountants
to supply all information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with any such registration statement.
(j) Opinion and “Comfort” Letter. Furnish, at the request of any Holder requesting
registration of Registrable Securities, on the date that such Registrable Securities are delivered
to the underwriters for sale, if such securities are being sold through underwriters, or, if such
securities are not being sold through underwriters, on the date that the registration statement
with respect to such securities becomes effective: (1) an opinion, dated as of such date, of the
counsel representing the Company for the purposes of such registration, in form and substance as is
customarily given to underwriters in an underwritten public offering, addressed to the
underwriters, if any, and to the Holders requesting registration of Registrable Securities, and
(2) a “comfort” letter dated as of such date, from the independent certified public accountants of
the Company, in form and substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering, addressed to the underwriters, if
any, and to the Holders requesting registration of Registrable Securities.
(k) Earnings Statement. Otherwise use its commercially reasonable efforts to comply with all
applicable rules and regulations of the SEC, the Securities Act and the Exchange Act, and make
available to its security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve (12) months beginning with the first day of the Company’s
first full calendar quarter after the effective date of the registration statement, which earnings
statement shall satisfy in all respects the provisions of Section 11(a) of the Securities Act and
Rule 158 promulgated thereunder.
2.5 Furnish Information. It shall be a condition precedent to the obligations of the Company
to take any action pursuant to Sections 2.1, 2.2 or 2.3 hereof that the selling Holders shall
furnish to the Company such information regarding themselves, the Registrable Securities held by
them and the intended method of disposition of such securities as shall be required to timely
effect the registration of their Registrable Securities.
2.6 Expenses. All expenses (other than underwriting discounts and commissions) incurred in
connection with a registration pursuant to Sections 2.1, 2.2 and 2.3, including, without
limitation, registration, filing and qualification fees, printers’ and accounting fees, fees and
disbursements of counsel for the Company and the reasonable fees and disbursements of one counsel
for the selling Holders, shall be borne by the Company. Notwithstanding the foregoing, the Company
shall not be required to pay for any expenses of any registration proceeding begun pursuant to
Sections 2.1 or 2.3 if the registration request is subsequently withdrawn at the request of the
Holders of a majority of the Registrable Securities to be registered (in which case all
participating Holders shall bear such expenses on a pro rata basis based on the number of
Registrable Securities that were to requested be included in the withdrawn registration), unless
the Holders of a majority of the Registrable Securities then outstanding agree to forfeit their
right to one demand registration pursuant to Section 2.1.
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2.7 Delay of Registration. No Holder shall have any right to obtain or seek an injunction
restraining or otherwise delaying any such registration as the result of any controversy that might
arise with respect to the interpretation or implementation of this Section 2.
2.8 Indemnification. In the event any Registrable Securities are included in a registration
statement under Sections 2.1, 2.2 or 2.3 hereof:
(a) By the Company. To the extent permitted by law, the Company shall indemnify and hold
harmless each Holder, the partners, members, officers and directors of each Holder, legal counsel
and accountants for each Holder, any underwriter (as defined in the Securities Act) for such Holder
and each person, if any, who controls such Holder or underwriter within the meaning of the
Securities Act or the Exchange Act, against any expenses, losses, claims, damages or liabilities
(joint or several) to which they may become subject under the Securities Act, the Exchange Act or
other federal or state law, insofar as such expenses, losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any of the following statements,
omissions or violations (each a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such
registration statement, including any preliminary prospectus or final prospectus contained therein
or any amendments or supplements thereto;
(ii) 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; or
(iii) any violation or alleged violation by the Company of the Securities Act, the Exchange
Act, any federal or state securities law or any rule or regulation promulgated under the Securities
Act, the Exchange Act or any federal or state securities law in connection with the offering
covered by such registration statement;
and the Company shall reimburse each such Holder, partner, officer or director, underwriter or
controlling person for any legal or other expenses reasonably incurred by them, as incurred, in
connection with investigating or defending any such loss, claim, damage liability or action;
provided, however, that the indemnity agreement contained in this Section 2.8(a) shall not apply to
amounts paid in settlement of any such expense, loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company (which consent shall not be unreasonably
withheld), nor shall the Company be liable in any such case for any such loss, claim, damage,
liability or action to the extent that it arises out of or is based upon actions or omissions made
in reliance upon and in conformity with written information furnished by or on behalf of any such
Holder, partner, officer or director, underwriter or controlling person expressly for use in
connection with such registration by such Holder, partner, officer, director, underwriter or
controlling person.
(b) By Selling Holders. To the extent permitted by law, each selling Holder shall indemnify
and hold harmless the Company, each of its directors, each of its officers who have signed the
registration statement, each person, if any, who controls the Company within the meaning of the
Securities Act, legal counsel and accountants for the Company, any underwriter and any other Holder
selling securities under such registration statement or any of such other
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Holder’s partners, directors or officers or any person who controls such Holder within the
meaning of the Securities Act or the Exchange Act, against any expenses, losses, claims, damages or
liabilities (joint or several) to which any of the foregoing persons may become subject under the
Securities Act, the Exchange Act or other federal or state law, insofar as such expenses, losses,
claims, damages or liabilities (or actions in respect thereto) arise out of or are based upon any
Violation, in each case to the extent (and only to the extent) that such Violation arises out of or
is based on actions or omissions made in reliance upon and in conformity with written information
furnished by such Holder expressly for use in connection with such registration; and each such
Holder shall reimburse the Company and such other persons for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the indemnity agreement contained in this
Section 2.8(b) shall not apply to amounts paid in settlement of any such expense, loss, claim,
damage, liability or action if such settlement is effected without the consent of the Holder, which
consent shall not be unreasonably withheld; and provided further, that the total amounts payable in
indemnity by a Holder under this Section 2.8(b) in respect of any Violation shall not exceed the
net proceeds received by such Holder in the registered offering out of which such Violation arises.
(c) Notice. Promptly after receipt by an indemnified party under this Section 2.8 of notice of
the commencement of any action (including any governmental action) for which a party may be
entitled to indemnification hereunder, such indemnified party shall, if a claim in respect thereof
is to be made against any indemnifying party under this Section 2.8, deliver to the indemnifying
party a written notice of the commencement thereof, and the indemnifying party shall have the right
to participate in such action and, to the extent the indemnifying party so desires, jointly with
any other indemnifying party to which notice has been given, to assume the defense thereof with
counsel mutually satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties that may be represented without conflict by one
counsel) shall have the right to retain its own counsel, with the fees and expenses to be paid by
the indemnifying party, if representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing interests between
such indemnified party and any other party represented by such counsel in such proceeding. The
failure to deliver written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to defend such action, shall relieve
such indemnifying party of any liability to the indemnified party under this Section 2.8, but the
omission so to deliver written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than under this Section 2.8.
(d) Contribution. In order to provide for just and equitable contribution to joint liability
under the Securities Act in any case in which either (i) any party otherwise entitled to
indemnification hereunder makes a claim for indemnification pursuant to this Section 2.8 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 2.8 provides for indemnification in such case, or (ii) contribution under the Securities
Act may be required on the part of any party hereto for which indemnification is provided under
this Section 2.8; then, and in each such case, such parties will contribute to the aggregate
expenses,
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losses, claims, damages or liabilities to which they may be subject (after contribution from
others) in such proportion as is appropriate to reflect the relative fault of the indemnifying
party and the indemnified party in connection with the Violation that resulted in such expense,
loss, claim, damage or liability as well as other equitable considerations. The relative fault of
such parties shall be determined by reference to, among other things, whether the untrue or
allegedly untrue statement of a material fact or the omission or alleged omission of a material
fact relates to information supplied by the indemnifying party or indemnified party and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission; provided, however, that, in any such case, (A) no such Holder will be
required to contribute any amount in excess of the net proceeds from the sale of all such
Registrable Securities offered and sold by such Holder pursuant to such registration statement, and
(B) no individual or entity guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) will be entitled to contribution from any individual or entity
who was not guilty of such fraudulent misrepresentation; and provided further, that in no event
shall a Holder’s liability pursuant to this Section 2.8(d), when combined with the amounts paid or
payable by such Holder pursuant to Section 2.8(b), exceed the net proceeds from the offering
received by such Holder, except in the case of willful misconduct or fraud by such Holder.
(e) Survival. The obligations of the Company and Holders under this Section 2.8 shall survive
the completion of any offering of Registrable Securities in a registration under this Section 2,
and otherwise shall survive the termination of this Agreement.
2.9 Rule 144 Reporting. With a view to making available the benefits of certain rules and
regulations of the SEC which may at any time permit the sale of the Registrable Securities to the
public without registration, after such time as a public market exists for the Common Stock, 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, at all times after the effective date of the first registration
under the Securities Act filed by the Company for an offering of its securities to the general
public;
(b) use commercially reasonable efforts to file with the SEC in a timely manner all reports
and other documents required of the Company under the Securities Act and the Exchange Act (at any
time after it has become subject to such reporting requirements); and
(c) furnish to any Holder, so long as the Holder owns any Registrable Securities, forthwith
upon request (i) a written statement by the Company as to its compliance with the reporting
requirements of said Rule 144 (at any time after ninety (90) days after the effective date of the
first registration statement filed by the Company for an offering of its securities to the general
public), and of the Securities Act and the Exchange Act (at any time after it has become subject to
the reporting requirements of the Exchange Act), (ii) a copy of the most recent annual or quarterly
report of the Company and (iii) such other reports and documents of the Company as a Holder may
reasonably request in availing itself of any rule or regulation of the Commission allowing a Holder
to sell any such securities without registration (at any time after the Company has become subject
to the reporting requirements of the Exchange Act).
11
2.10 “Market Stand-Off” Agreement. Each Holder hereby agrees that it will not, without the
prior written consent of the managing underwriters, during the period commencing on the effective
date of registration statement relating to the IPO and ending on the date specified by the Company
and the managing underwriters (such period not to exceed one hundred eighty (180) days, unless
requested by the Company or an underwriter to accommodate regulatory restrictions on (a) the
publication or other distribution of research reports and (b) analyst recommendations and opinions,
including, but not limited to, the restrictions contained in FINRA Rule 2711(f)(4) or NYSE Rule
472(f)(4), or any successor provisions or amendments thereto), (i) lend, offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option or contract to sell,
grant any option, right, or warrant to purchase, or otherwise transfer or dispose of, directly or
indirectly, any shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock (whether such shares or any such securities are then owned by the
Holder or are thereafter acquired) or (ii) enter into any swap or other arrangement that transfers
to another, in whole or in part, any of the economic consequences of ownership of the Common Stock,
whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of
Common Stock or other securities, in cash, or otherwise. The foregoing provisions of this Section
2.10 shall not apply to the sale of any shares to an underwriter pursuant to an underwriting
agreement, and shall be applicable to the Holders only if all officers, directors and shareholders
individually owning more than one percent (1%) of the Company’s outstanding Common Stock are
subject to the same restrictions. The underwriters in connection with the offering are intended
third-party beneficiaries of this Section 2.10 and shall have the right, power, and authority to
enforce the provisions hereof as though they were a party hereto. Each Holder further agrees to
execute such agreements as may be reasonably requested by the managing underwriters in the offering
that are consistent with this Section 2.10 or that are necessary to give further effect thereto.
The Company shall use commercially reasonable efforts to obtain the consent of the underwriter(s)
to decrease the restrictions set forth in this Section 2.10 by providing for periodic releases of
portions of the securities restricted pursuant to this Section 2.10 and to have the restrictions
terminate if the trading price of the Common Stock after the effective date of the IPO exceeds a
certain threshold for a certain time period. Any discretionary waiver or termination of the
restrictions of any or all of such agreements by the Company or the underwriters shall apply pro
rata to all Holders subject to such agreements, based on the number of shares subject to such
agreements.
In order to enforce the foregoing covenant, the Company may impose stop-transfer instructions
with respect to the Registrable Securities of each Holder (and the shares or securities of every
other person subject to the foregoing restriction) until the end of such period.
2.11 Assignment of Registration Rights. The rights to cause the Company to register
Registrable Securities pursuant to this Section 2 may be assigned to a transferee or assignee in
connection with any transfer or assignment of Registrable Securities by the Holder, provided that
(i) such transfer or assignment may otherwise be effected in accordance with applicable securities
laws, (ii) such transferee or assignee acquires at least ten percent (10%) of the Registrable
Securities held by the Holder, (iii) written notice is promptly given to the Company and (iv) such
transferee or assignee agrees to be bound by the provisions of this Agreement and (v) such
transferee or assignee is not a competitor of the Company; provided however, that the foregoing
limitation shall not apply to transfers or assignments by a Holder to (a) a partner,
12
member or shareholder of a Holder that is a partnership, limited liability company or
corporation, respectively, (b) a retired partner or member of such partnership or limited liability
company who retires after the date hereof, (c) the estate of any such partner, member or
shareholder (d) an Affiliate of any such partnership, limited liability company or corporation, (e)
such Holder’s Affiliates, Immediate Family Members or family partnership, family limited liability
company or trust for the benefit of an individual Holder or one or more of such Holder’s Immediate
Family Members, or (f) any domestic partner of such partner, member or shareholder or of the Holder
who is covered under an applicable domestic relations statute, provided, that all such transferees
or assignees agree in writing to appoint a single representative as their attorney-in-fact for the
purpose of exercising any rights, receiving notices, or taking any action under this Section 2.
2.12 Termination of Registration Rights. The Company’s obligations pursuant to Sections 2.1,
2.2 and 2.3 shall terminate upon the earlier of (i) five (5) years after the closing date of the
IPO or (ii) as to any Registrable Securities, at such time following such IPO, as such Registrable
Securities may immediately be sold in any three-month period without registration pursuant to
Rule 144 under the Securities Act.
2.13 Limitations on Subsequent Registration Rights. From and after the date of this Agreement,
the Company shall not, without the prior written consent of the Holders of a majority of the
Registrable Securities then outstanding (voting together as a single class and on an as converted
basis), enter into any agreement with any holder or prospective holder of any securities of the
Company that provides such holder or prospective holder with registration rights with respect to
such securities unless (i) such other registration rights are subordinate to the registration
rights granted to the Holders hereunder and the inclusion of such securities will not reduce the
amount of the Registrable Securities of the Holders that are included in a given registration, or
(ii) such registration rights are pari passu rights granted in connection with certain equipment
leases or bank credit arrangements approved by the Board of Directors including the affirmative
vote of the director designated by NGEN III, L.P. (“NGEN”) pursuant to the Voting Agreement (“NGEN
Designee”); provided however, that with respect to (i) and (ii) the holders of such rights are
subject to market standoff obligations no more favorable to such persons than those contained
herein, provided that this limitation shall not apply to any additional Investor who becomes a
party to this Agreement in accordance with Section 6.14 hereof.
3. Reserved.
4. Reserved.
5. Reserved.
6. Miscellaneous.
6.1 Notices. Any notice, request or other communication required or permitted hereunder shall
be in writing and shall be deemed to have been duly given if delivered personally, by facsimile
when receipt is electronically confirmed, one business day after delivery to a nationally
recognized overnight delivery service, or otherwise upon receipt, addressed (i) if to Investor, at
the address set forth below such Investor’s name on Exhibit A, and (ii) if to the Company, at the
address set forth below:
13
Fallbrook Technologies Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
with a copy to:
DLA Piper LLP (US)
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Any party hereto may, by ten (10) days’ prior notice so given, change its address for future
notices hereunder.
6.2 Successors and Assigns. Each Investor agrees that it may not assign any of its rights or
obligations hereunder unless such rights and obligations are assigned by such Investor to an
individual or entity to which Registrable Securities are transferred by such Investor pursuant to
Section 2.11, and such assignee shall be deemed an “Investor” for purposes of this Agreement,
provided that such assignment shall be contingent upon the assignee providing a written instrument
to the Company notifying the Company of such assignment and agreeing in writing to be bound by the
terms of this Agreement. Except as otherwise provided herein, the provisions of this Agreement
shall inure to the benefit of, and shall be binding upon, the successors and permitted assigns of
the parties hereto.
6.3 Amendments and Waivers. Any provision of this Agreement may be amended and the observance
thereof may be waived, either generally or in a particular instance and either retroactively or
prospectively, only with the written consent of the Company and the holders of a majority of the
Registrable Securities; provided, however, that this Agreement may not be amended and the
observance of any term hereof may not be waived with respect to any Investor without the written
consent of such Investor unless such amendment or waiver applies to all Investors in the same
fashion. The Company shall give prompt notice of any amendment hereof or waiver hereunder to any
party hereto that did not consent in writing to such amendment or waiver. Any amendment or waiver
effected in accordance with this Section 6.3 shall be binding upon each Investor, each permitted
successor or assignee of such Investor and the Company.
6.4 Entire Agreement. This Agreement, together with all the exhibits hereto, constitutes and
contains the entire agreement and understanding of the parties with respect to the subject matter
hereof and supersedes any and all prior negotiations, correspondence, agreements, understandings,
duties or obligations between the parties with respect to the subject matter hereof. Furthermore,
each of the parties hereto agrees that upon the effectiveness of this Agreement, any and all prior
oral or written agreements between the Company and such party regarding a right of such party to
attend board meetings as an observer (including any right to designate an individual to attend
board meetings as an observer and/or any right to receive
14
materials provided to the members of the board of directors) is hereby terminated and shall be
of no further force or effect.
6.5 Governing Law. This Agreement shall be governed by and construed exclusively in accordance
with the internal laws of the State of California as applied to agreements among California
residents entered into and to be performed entirely within California.
6.6 Severability. If any provision of this Agreement is held to be unenforceable under
applicable law, then such provision shall be excluded from this Agreement and the balance of this
Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
6.7 Delays or Omissions. No delay or omission to exercise any right, power or remedy accruing
to any party under Agreement upon any breach or default of any other party under this Agreement
shall impair any such right, power or remedy of the nonbreaching or nondefaulting party, nor shall
it be construed to be a waiver of any such breach or default, or an acquiescence therein, or waiver
of or acquiescence in any similar breach or default theretofore or thereafter occurring, nor shall
any waiver of any single breach or default be deemed a waiver of any other breach or default
therefore or thereafter occurring. All remedies, either under this Agreement or by law or otherwise
afforded to any Holder, shall be cumulative and not alternative.
6.8 Captions. The captions to sections of this Agreement have been inserted for identification
and reference purposes only and shall not be used to construe or interpret this Agreement.
6.9 Counterparts. This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same instrument. In the
event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf”
format data file, such signature shall create a valid and binding obligation of the party executing
(or on whose behalf such signature is executed) with the same force and effect as if such facsimile
or “.pdf” signature page were an original thereof.
6.10 Costs and Attorneys’ Fees. In the event that any action, suit or other proceeding is
instituted concerning or arising out of this Agreement or any transaction contemplated hereunder,
the prevailing party shall recover all of such party’s costs and attorneys’ fees incurred in each
such action, suit or other proceeding, including any and all appeals or petitions therefrom.
6.11 Adjustments for Recapitalization Events. Wherever in this Agreement there is a reference
to a specific number of shares of Common Stock or Preferred Stock of the Company or a specific
dollar amount per share, then, upon the occurrence of any stock split, stock dividend, reverse
stock split or similar recapitalization event affecting such shares, the specific number of shares
or dollar amount so referenced in this Agreement shall automatically be proportionally adjusted to
reflect the effect on the outstanding shares of such class or series of stock of such
recapitalization event.
15
6.12 Aggregation of Stock. All shares held or acquired by Affiliates shall be aggregated
together for the purpose of determining the availability of any rights under this Agreement.
6.13 Waiver of Registration Rights. By executing this Agreement, the undersigned Investors
hereby waive on behalf of all Holders any registration rights (including any notice provisions)
granted under Section 2.2 of the Prior Agreement or Section 2.2 of this Agreement with respect to
the IPO. Such waiver shall be effective as of the date of execution of this Agreement (and not as
of the Effective Time) and shall be as to and binding upon all of the Investors and their
respective permitted successors and assigns.
6.14 Failure to Consummate IPO. Notwithstanding anything to the contrary in this Agreement,
in the event that the IPO is not consummated on or prior to December 31, 2010, this Agreement shall
terminate and shall be of no further force or effect and the Prior Agreement shall continue
unmodified in full force and effect; provided that the waiver of registration rights set forth in
Section 6.13 with respect to the IPO shall survive the termination of this Agreement pursuant to
this Section 6.14.
[Remainder of page left intentionally blank]
16
IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement as of
the date and year first above written.
| Company: | ||||||
| FALLBROOK TECHNOLOGIES INC. | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III | |||||
| President and Chief Executive Officer | ||||||
| Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇ | ||||||
| ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||||||
| Individual Investor: | Entity Investor: | |||||
| (Signature) |
(Print Name of Entity) |
|||||
Name:
|
By: | |||||
| (Signature) |
||||||
| Name: | ||||||
| Title: | ||||||
EXHIBIT A
INVESTORS
NGEN Partners III, L.L.C.
Stichting Custody Robeco Master Clean Tech II (EUR)
Stichting Custody Robeco Master Clean Tech II (USD)
Robeco Clean Tech Co-Investment Fund II, L.P.
A. ▇▇▇▇▇▇ France Revocable Trust Agreement 01/04/1983
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇
AllHug Investors, L.L.P. Dated 08/01/06
▇▇▇▇▇ From
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Family Trust dtd 7/27/00
▇▇▇▇▇ ▇. ▇▇▇▇▇, Trustee of the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Trust
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇ Family Trust
▇▇▇▇▇▇▇ ▇▇▇▇▇
Big Wood Holdings L.P.
Black Rock, LLC
▇▇▇▇▇ Family Community Foundation
▇▇▇▇▇ ▇. ▇▇▇▇ or ▇▇▇▇▇▇ ▇. ▇▇▇▇, Trustees, U.D.T. dated Nov. 19, 1982
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
C. ▇▇▇▇ ▇▇▇▇▇▇▇▇
The ▇▇▇▇▇▇▇▇▇▇ Family Trust
CHEP 2, LLC
Chestnut Capital, LLC
CJL Family Trust, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
▇▇▇▇ Family Trust UTD 3/29/94
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Co-Trustees of the ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ Trust
of 1994 UDT 4/13/94
▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇, Joint Tenants
▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Family
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Ickovic & Co. PC Profit Sharing Plan and Trust
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee of the ▇▇▇▇▇▇▇▇ Family Trust DTD 2/24/2000
▇▇▇▇▇ Affiliates, LP
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Trustees of the ▇▇▇▇▇ Family Trust DTD 1/31/1986
▇▇▇▇▇ ▇▇▇-▇▇▇ ▇▇▇▇ Trust Dated 3/11/2002
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇ or ▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust DTD 3/29/91
Emhel Investors Limited Partnership
▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
ESRAY LLC
Estate of ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇-▇▇▇ ▇▇▇▇▇▇, Trustees of the ▇▇▇▇▇▇ Family Trust
▇▇▇▇ ▇. ▇▇▇▇▇
Genoka ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. Small, SEP ▇▇▇
▇▇▇▇ ▇. ▇▇ and ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Revocable Trust
▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Trustees of the ▇▇▇▇▇▇▇▇ Revocable Trust DTD 11/12/91
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III Revocable Trust 11/11/91
Hun-▇▇▇▇ ▇▇▇▇, Trustee of the ▇▇▇▇▇▇▇▇ Family Trust UTD 10/12/2002
▇▇▇▇▇▇▇▇ For International Economics
▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ trustees, ▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Family
Trust dtd 1/21/00
▇▇▇ ▇. ▇▇▇▇▇▇▇ Charitable Remainder Trust DTD 12/21/1988
J. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Family Trust, UTD 4/1/93
▇▇▇▇ ▇▇▇▇▇▇▇ and/or ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Custodians for ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ Investment Company LLC
▇▇▇▇▇ Family Trust
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Revocable Trust 6/30/97
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇, Trustee of the ▇▇▇▇▇ Living Trust UDT 3/17/94
▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇ Revocable Trust
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Trustee of the ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 2000 Trust UTD 3/23/2000
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇▇▇ Family Trust DTD 5/10/2002
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Revocable Trust DTD 10/29/99
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as Tenants in Common
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Irrevocable Family Trust
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. Wild, Jr.
▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Trustee of the ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 1995 Trust
▇▇▇▇▇▇▇/▇▇▇▇▇▇▇ 1990 Revocable Trust
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇, Trustee of the ▇▇▇ ▇. ▇▇▇▇▇ Revocable Trust dated 9/1/75
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Trust U/A 4/19/66
▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Intergenerational Trust
Madison Ventures, LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee of the ▇▇▇▇▇▇▇ Family Trust
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ L. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Family Trust Dated Oct 8, 2002
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Trustee of the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Trust
▇▇▇▇▇▇▇▇▇▇ Family Holdings LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Custodian for ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ Rollover dated 7/30/98
Motion One CVT, LLC
Motion Systems, Inc.
MPKM Private Equity Fund II L.P.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, Trustee ▇▇▇▇ Children trust DTD 9/9/99
▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustees of the Gibsen Trust Agreement Dtd 11/29/05
NSF, LLC Custodian-▇▇▇ Rollover FBO ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, Trustee, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Family Trust DTD 1/9/98
Project High Hopes
Revocable Trust of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Dated 9/13/1994
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Revocable Trust 9/13/94
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, Jr. ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co., Inc. as Custodian
▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP Profit Sharing Plan FBO ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Dtd
1/1/97
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇ Revocable Trust
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
S&L Investments, LLC
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Select Ventures, LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Perestam, Trustee ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Family Trust
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇. Fair, Custodian for Ashley Fair
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
T. ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
The ▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Living Trust
The King Living Trust, Rockwell ▇. ▇▇▇▇, Trustee
The Pajama Family Trust, Dated 12/27/07
▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Trust
▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Vanguard Fiduciary Trust Company as custodian F/B/O ▇▇▇ FBO ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Non-Exempt Trust
W. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Fargo Bank ▇▇▇ C/F ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Whistler Capital LTD
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ or ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Family Trust
Windhorse Partners, ▇▇
▇▇▇-▇▇▇▇ ▇▇▇▇
Adventure Seekers Travel, Inc.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ SPT 10/13/95
CLMS Management LLC
▇▇▇▇▇ Family Trust
▇▇▇▇▇▇▇▇ Sera
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Revocable Trust
▇▇▇▇ ▇’▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇ Family Trust
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Fallbrook Series of LTS Capital Partners II, LLC
Fallbrook II Series of LTS Capital Partners II, LLC
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Trust
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Custodian for ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Custodian for ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee of the ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust dated March 29, 1991
▇▇▇▇ ▇▇▇▇▇▇▇, Trustee of the ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Revocable Living Trust dated 5/31/89
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustees U.D.T dated March 10, 1999, the ▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, husband and wife, as joint tenants