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EXHIBIT 4.2
EXECUTION COPY
VIASOURCE COMMUNICATIONS, INC.
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
DATED AS OF JUNE 1, 2000
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS......................................................................................... 2
Section 1.01 Defined Terms..................................................................... 2
ARTICLE II
VOTING AGREEMENT.................................................................................... 7
Section 2.01 Board of Directors of the Company................................................. 7
Section 2.02 Approval of the Crest Group....................................................... 9
Section 2.03 Actions Consistent with Agreement................................................. 11
ARTICLE III
RESTRICTIONS ON TRANSFERS BY THE STOCKHOLDERS....................................................... 11
Section 3.01 Restrictions on Transfers Generally............................................... 11
Section 3.02 Right of First Offer.............................................................. 11
Section 3.03 Drag Along and Forced Sale........................................................ 13
Section 3.04 Transfer to Affiliates............................................................ 14
Section 3.05 Right of First Refusal............................................................ 14
Section 3.06 Tag Along......................................................................... 15
Section 3.07 Restrictive Legends............................................................... 16
Section 3.08 Transferees Subject to Agreement.................................................. 16
Section 3.09 Expiration of Restrictions........................................................ 16
ARTICLE IV
RIGHT TO ACQUIRE SECURITIES......................................................................... 17
Section 4.01 Right to Acquire Securities....................................................... 17
ARTICLE V
REGISTRATION RIGHTS................................................................................. 18
Section 5.01 Demand Registration............................................................... 18
Section 5.02 Piggy-Back Registration........................................................... 20
Section 5.03 Form S-3 Registration............................................................. 21
Section 5.04 Registration Expenses............................................................. 22
Section 5.05 Registration Procedures........................................................... 23
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Section 5.06 Indemnification................................................................... 24
Section 5.07 Information by the Holders........................................................ 26
Section 5.08 Rule 144 Reporting................................................................ 26
Section 5.09 Assignability..................................................................... 26
ARTICLE VI
CERTAIN REPRESENTATIONS AND COVENANTS............................................................... 27
Section 6.01 Stockholder Representation........................................................ 27
Section 6.02 Company Representations........................................................... 27
Section 6.03 Company Covenants................................................................. 27
Section 6.04 Financial Statements and Other Reports............................................ 28
Section 6.05 Inspection of Property............................................................ 29
Section 6.06 Corporate Existence, Licenses and Permits; Maintenance of
Properties........................................................................ 29
ARTICLE VII
MISCELLANEOUS....................................................................................... 30
Section 7.01 Injunctive Relief................................................................. 30
Section 7.02 Further Assurances................................................................ 30
Section 7.03 Governing Law..................................................................... 30
Section 7.04 Entire Agreement; Amendment; Waiver............................................... 30
Section 7.05 Binding Effect.................................................................... 31
Section 7.06 Invalidity of Provision........................................................... 31
Section 7.07 Counterparts...................................................................... 31
Section 7.08 Notices........................................................................... 31
Section 7.09 Headings.......................................................................... 31
Section 7.10 Corporate Development Activities.................................................. 31
Section 7.11 Expiration of Rights.............................................................. 31
Section 7.12 Termination....................................................................... 31
Schedule 1 Address for Notices
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VIASOURCE COMMUNICATIONS, INC.
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
This Amended and Restated Stockholders Agreement dated as of
June 1, 2000 (this "Agreement") by and among VIASOURCE COMMUNICATIONS, INC., a
New Jersey corporation (the "Company"), and each of the individuals or entities
signatory hereto (each a "Stockholder" and together the "Stockholders").
W I T N E S S E T H:
WHEREAS, pursuant to the terms and conditions of the Stock
Purchase Agreement (the "Purchase Agreement") dated June 14, 1999 between the
Company, Crest Communications Partners LP ("Crest") and the other parties
signatory thereto, Crest, BancBoston and ▇▇▇▇▇▇▇ purchased certain of the
shares of common stock of the Company;
WHEREAS, pursuant to the terms and conditions of the
Agreement and Plan of Merger (the "Merger Agreement") dated as of July 23, 1999
among the Company, CRI Acquisition Corp. ("Acquisition Corp") and Communication
Resources Incorporated ("CRI"), CRI merged with Acquisition Corp;
WHEREAS, as a result of such merger, DTJ LLC, a Delaware
limited liability company ("DTJ LLC"), CEEJ LLC, a Delaware limited liability
company ("CEEJ LLC") and the other stockholders of CRI hold shares of common
stock of the Company;
WHEREAS, DTJ LLC, CEEJ LLC and such other stockholders of CRI
entered into an Amended and Restated Stockholders Agreement dated as of July
23, 1999 with the Company and certain other stockholders (the "Previous
Stockholders Agreement") in connection with such merger;
WHEREAS, in connection with the acquisition of the assets of
Nassau Communications, Inc. doing business as Telecrafter Services Corporation
pursuant to an Asset Purchase Agreement dated as of September 7, 1999, the
Company issued shares of common stock to ▇▇▇▇▇ ▇. Nassau, ▇▇▇▇▇ Nassau, and
Telecrafter Services Corporation, each of whom has agreed to enter into this
Agreement;
WHEREAS, the Company issued shares of common stock and
warrants to purchase shares of common stock to General Electric Capital
Corporation pursuant to a Stock and Warrant Purchase Agreement dated as of
September 7, 1999 and shares of common stock to PNC Capital Corp. and Wood
Street Partners, II pursuant to a Stock Purchase Agreement dated as of the date
hereof, each of whom has agreed to enter into this Agreement;
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WHEREAS, in connection with the acquisition of the assets of
DS Cable TV Contractor, Inc., pursuant to an Asset Purchase Agreement dated as
of April 18, 2000 (the "DS Cable Purchase Agreement"), the Company issued
shares of common stock to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇, each of whom has
agreed to enter into this Agreement;
WHEREAS, in connection with the acquisition of the assets of
Service Cable Corporation and Service Cable Electric, Inc. (the "Service Cable
Purchase Agreement"), pursuant to an Asset Purchase Agreement dated as of May
4, 2000, the Company issued shares of common stock to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇, each of whom has agreed to enter into this Agreement;
WHEREAS, in connection with the merger of TeleCore, Inc. with
and into TC Acquisition, Inc., a wholly-owned subsidiary of the Company,
pursuant to the Merger Agreement dated June 1, 2000 (the "TeleCore Merger
Agreement"), among the Company, TC Acquisition, Inc., TeleCore, Inc., and each
of the other parties signatory thereto, the Company issued shares of common
stock and preferred stock to the stockholders of TeleCore, Inc., each of whom
has agreed to enter into this Agreement;
WHEREAS, in connection with the merger of Excalibur Cable
Communications, Ltd. with and into EX Acquisition, Inc., a wholly-owned
subsidiary of the Company, pursuant to the Merger Agreement dated June 1, 2000
(the "Excalibur Merger Agreement"), among the Company, EX Acquisition, Inc.,
Excalibur Cable Communications, Ltd., and each of the other parties signatory
thereto, the Company issued shares of common stock to the stockholders of
Excalibur Cable Communications, Ltd., each of whom has agreed to enter into
this Agreement;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained and other good and valuable consideration the
receipt and adequacy of which are hereby acknowledged, the parties hereto wish
to amend and restate the Previous Stockholders Agreement and hereby agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. All terms capitalized but not defined
herein shall have the meanings attributable to such terms in the Purchase
Agreement, except where the context otherwise requires. The following
additional terms when used in this Agreement, including its preamble and
recitals, shall, except where the context otherwise requires, have the
following meanings, such meanings to be equally applicable to the singular and
plural forms thereof:
"Acceptance" shall have the meaning set forth in Section 3.05
hereof.
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"Affiliate" shall mean, with respect to any Person, (i) any
person that, directly or indirectly, controls, is controlled by or is under
common control with such Person or (ii) any member of such Person's Family
Group. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlled by" and "under common control
with"), as used with respect to any Person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of such Person, whether through the ownership of voting securities
or by contract or otherwise.
"BancBoston" shall mean BancBoston Investments Inc.
"Capital Stock" means all of the (i) Common Stock and (ii)
other equity securities of the Company.
"Cause" means the commission by a person as (a) admitted by
said person, (b) determined by a court of competent jurisdiction (after all
appeals and the expiration of the time to appeal), of a felony if the acts
constituting such felony are materially injurious to the Company (including its
reputation) or the commission of such felony has an injurious financial effect
on the Company or (c) with respect to such person any acts or omissions
constituting cause for termination as set forth in such person's employment
agreement.
"CEEJ LLC" shall have the meaning set forth in the third
WHEREAS clause.
"Closing Date" shall mean June 1, 2000.
"Commission" shall mean the Securities and Exchange
Commission.
"Common Stock" shall mean the Company's common stock, no par
value.
"Crest" shall mean Crest Communications Partners LP.
"Crest Directors" shall have the meaning set forth in Section
2.01.
"Crest Group" shall mean Crest and its Affiliates (but not
including the Company or Communication Resources Incorporated). To the extent
this Agreement requires notice to, the consent of, or any other action by, the
Crest Group, for such purposes only, the Crest Group shall be deemed to be
Crest while it holds any shares of Capital Stock, and to the extent Crest does
not hold any shares of Capital Stock, any Affiliate appointed by Crest.
"Crest Investor" shall mean any investor in Crest or any
Affiliate of Crest.
"CRI Stockholder" shall have the meaning set forth in Section
2.01(d). To the extent this Agreement requires notice to, the consent of, or
any other action by, the CRI Stockholder, for
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such purposes only, the CRI Stockholder shall be deemed to be each of ▇▇▇▇▇▇
▇'▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or their respective designees.
"Demand Holders" shall mean the Crest Group, ▇▇▇▇▇▇▇,
BancBoston, Prudential, GECC and PNC.
"DTJ/CEEJ Director" shall have the meaning set forth in
Section 2.01.
"DTJ LLC" shall have the meaning set forth in the third
WHEREAS clause.
"Excalibur Stockholder" shall mean Konrad ▇▇▇▇ ▇▇▇▇ or any
Affiliate of Konrad ▇▇▇▇ ▇▇▇▇
"Exempt Stockholders" shall mean each of BancBoston,
Prudential, RFM CRI LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇.
"Exercise Notice" shall have the meaning set forth in Section
3.02 hereof.
"Family Group" shall mean such Stockholder's spouse and
descendants (whether natural or adopted) and any trust solely for the benefit
of a Stockholder and/or such Stockholder's spouse and/or descendants.
"GECC" shall mean General Electric Capital Corporation.
"Holder" shall mean any holder of Registrable Securities.
"HSR Act" shall have the meaning set forth in Section 3.02(c).
"▇▇▇▇▇▇▇" shall mean ▇▇▇▇▇▇▇ National Life Insurance Company
and its Affiliates, including, without limitation, Old Hickory Fund I, LLC.
"Marketable Securities" shall mean securities which are
traded on a national securities exchange in the United States or reported
through the National Association of Securities Dealers, Inc. Automated
Quotation System, National Market System and which are not subject to any
material restrictions on transfer as a result of applicable contract provisions
or the provisions of the Securities Act of 1933, as amended, or regulations
thereunder other than the volume and method-of-sale restrictions of Rule 144
promulgated thereunder or any successor thereto.
"Non-Marketable Securities" shall mean any securities that
are not Marketable Securities.
"Offer Period" shall have the meaning set forth in Section
3.05 herein.
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"Offer to Sell" shall have the meaning set forth in Section
3.05 herein.
"Offering Stockholder" shall mean any Stockholder other than
those Stockholders referenced in the parenthetical in the first sentence of
Section 3.02(a).
"Percentage in Interest" shall mean with respect to any
holder of Capital Stock, the ratio of number of shares of Capital Stock (on a
fully diluted basis) beneficially owned by such holder to the total amount of
shares of Capital Stock outstanding (on a fully diluted basis).
"Permitted Transferees" shall have the meaning set forth in
Section 3.04 hereof.
"Person" shall mean and include an individual, a corporation,
a limited liability company, an association, a partnership, a trust or estate,
a government or any department or agency thereof.
"PNC" shall mean PNC Capital Corp. and Wood Street Partners,
II.
"Priority Holders" shall mean the Crest Group, ▇▇▇▇▇▇▇,
BancBoston, the RTK Stockholder, the CRI Stockholder, Prudential, RFM CRI LLC,
the Telecrafter Stockholder, GECC and PNC.
"Proposed Securities" shall have the meaning set forth in
Section 4.01(a).
"Proposing Shareholders" shall have the meaning set forth in
Section 3.03.
"Prudential" shall mean Roman Arch Fund, L.P. and Roman Arch
Fund II, L.P.
"Purchase Agreement" shall have the meaning set forth in the
first WHEREAS clause.
"Qualified Public Offering" shall mean the closing of a
firm-commitment underwritten public offering pursuant to an effective
registration statement covering the offer and sale of Common Stock to the
public at an aggregate offering price of not less than $35,000,000 and at an
offering price per share equal to or greater than the Threshold Price in which
the shares will be listed on a recognized national securities exchange.
"Registrable Securities" shall mean at any time (i) the
Common Stock held by any Stockholder, (ii) Common Stock into which or for which
any equity security of the Company held by any Stockholder may be converted or
exercised and (iii) any Common Stock issued as a dividend or distribution with
respect to, or in exchange for or in replacement of, any Common Stock or such
other equity security; provided, that any Common Stock sold to the public under
a registration statement filed with the Securities and Exchange Commission or
pursuant to Rule 144 shall not be deemed Registrable Securities.
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"Registration Expenses" shall mean all expenses incident to
the Company's performance of or compliance with its obligations under Sections
5.01, 5.02 and 5.03 hereof, including, without limitation, all Securities and
Exchange Commission, NASD and stock exchange or NASDAQ registration and filing
fees and expenses, fees and expenses of compliance with applicable state
securities or "blue sky" laws (including, without limitation, reasonable fees
and disbursements of counsel for the underwriters in connection with "blue sky"
qualifications of the Registrable Securities), printing expenses, messenger and
delivery expenses, the fees and expenses incurred in connection with the
listing of the securities to be registered in any public offering on each
securities exchange or national market system on which such securities are to
be so listed and, following such public offering, the fees and expenses
incurred in connection with the listing of such securities to be registered on
each securities exchange or national market system on which such securities are
listed, fees and disbursements of counsel for the Company and all independent
certified public accountants (including the expenses of any annual audit and
"cold comfort" letters required by or incident to such performance and
compliance), the fees and disbursements of underwriters customarily paid by
issuers or sellers of securities (including the fees and expenses of any
"qualified independent underwriter" required by the NASD), the reasonable fees
and expenses of any special experts retained by the Company in connection with
such registration, fees and expenses of other Persons retained by the Company
and fees and expenses of one counsel for those Holders requesting registration
(but not including any underwriting discounts or commission or transfer taxes,
if any, attributable to the sale of Registrable Securities by holders of such
Registrable Securities other than the Company).
"RTK Director" shall have the meaning set forth in Section
2.01 hereof.
"RTK Stockholder" shall have the meaning set forth in Section
2.01(c). To the extent this Agreement requires notice to, the consent of, or
any other action by, the RTK Stockholder, for such purposes only, the RTK
Stockholder shall be deemed to be ▇▇▇ ▇▇▇▇▇▇▇▇▇ while he holds any shares of
Capital Stock, and to the extent ▇▇▇ ▇▇▇▇▇▇▇▇▇ does not hold any shares of
Capital Stock, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or any Affiliate appointed by ▇▇▇ ▇▇▇▇▇▇▇▇▇ or
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ as the case may be.
"Sale Notice" shall have the meaning set forth in Section
3.06 hereof.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Selling Shareholder" shall have the meaning set forth in
Section 3.05 hereof.
"Shareholder Securities" shall have the meaning set forth in
Section 3.02 hereof.
"Stockholder" shall have the meaning set forth in the preamble
hereto.
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"Subsidiary" shall mean any Person of which the Company,
directly or indirectly, owns 50% or more of the outstanding voting securities
or has the power to elect or designate a majority of the board of directors (or
similar governing body) or otherwise controls.
"Tag-Along Offer" shall have the meaning set forth in Section
3.06 hereof.
"TeleCore Stockholder" shall mean ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ and/or Palomar Ventures I, L.P. or any Affiliate of ▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or Palomar Ventures I, L.P.
"Telecrafter Director" shall have the meaning set forth in
Section 2.01 hereof.
"Telecrafter Stockholder" shall have the meaning set forth in
Section 2.01(e). To the extent this Agreement requires notice to, the consent
of, or any other action by, the Telecrafter Stockholder, for such purposes
only, the Telecrafter Stockholder shall be deemed to be ▇▇▇▇▇ ▇. Nassau while
he holds any shares of Capital Stock, and to the extent ▇▇▇▇▇ ▇. Nassau does
not hold any shares of Capital Stock, ▇▇▇▇▇ Nassau or any Affiliate appointed
by ▇▇▇▇▇ ▇. Nassau or ▇▇▇▇▇ Nassau as the case may be.
"Third Party Buyer" shall have the meaning set forth in
Section 3.02 hereof.
"Threshold Price" shall mean an amount equal to $4.00 prior
to the second anniversary of the date hereof and $5.00 thereafter, subject to
adjustment for any subdivision of the outstanding shares of Common Stock into a
greater number of shares or a combination of outstanding shares of Common Stock
into a smaller number of shares.
"Transfer Notice" shall have the meaning set forth in Section
3.02 hereof.
"Transfer Shares" shall have the meaning set forth in Section
3.05 hereof.
ARTICLE II
VOTING AGREEMENT
Section 2.01 Board of Directors of the Company.
(a) The Company's Board of Directors shall, as of the
effectiveness of this Agreement, consist of up to seven directors. The Company
will not increase the size of the Board of Directors of the Company without the
consent of the Crest Group.
(b) So long as the Crest Group continues to hold in the
aggregate 5% or more of the total outstanding shares of Capital Stock, each
Stockholder, other than the Exempt Stockholders,
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agrees to vote all shares of Capital Stock as to which it has voting rights for
the election of three directors designated by Crest (the "Crest Directors").
(c) So long as ▇▇▇ ▇▇▇▇▇▇▇▇▇ and/or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or any
Affiliate of ▇▇▇ ▇▇▇▇▇▇▇▇▇ and/or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (collectively, the "RTK
Stockholder") continue to hold in the aggregate 5% or more of the total
outstanding shares of Capital Stock, each Stockholder, other than the Exempt
Stockholders, agrees to vote all shares of Capital Stock as to which it has
voting rights for the election of one director designated by the RTK
Stockholder (the "RTK Director").
(d) So long as ▇▇▇▇▇▇ ▇'▇▇▇▇▇ (or DTJ LLC) and ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ (or CEEJ LLC) (collectively, the "CRI Stockholder") continue to hold
in the aggregate 5% or more of the total outstanding shares of Capital Stock,
each Stockholder, other than the Exempt Stockholders, agrees to vote all shares
of Capital Stock as to which it has voting rights for the election of one
director designated by the CRI Stockholder (the "DTJ/CEEJ Director").
(e) So long as ▇▇▇▇▇ ▇. Nassau and/or ▇▇▇▇▇ Nassau or any
Affiliate of ▇▇▇▇▇ ▇. Nassau and/or ▇▇▇▇▇ Nassau (collectively, the
"Telecrafter Stockholder") continue to hold in the aggregate 5% or more of the
total outstanding shares of Capital Stock, each Stockholder, other than the
Exempt Stockholders, agrees to vote all shares of Capital Stock as to which it
has voting rights for the election of one director designated by the
Telecrafter Stockholder (the "Telecrafter Director").
(f) Each Stockholder, other than the Exempt Stockholders,
agrees to vote all shares of Capital Stock as to which it has voting rights for
the election of the President of the Company as a director of the Company.
(g) The Company and each of the Stockholders shall appear in
person or by proxy at any annual or special meeting of stockholders for the
purpose of obtaining a quorum and shall vote or cause the vote of the Capital
Stock owned by such Stockholder or by any affiliate of such Stockholder, either
in person or by proxy, to be cast in accordance with the provisions of this
Article II.
(h) The officers of the Company will be selected by a
decision of the Board of Directors of the Company, provided however that the
Crest Directors may remove any such officer for Cause.
(i) Each Stockholder, other than the Exempt Stockholders, as
a shareholder of the Company further agrees to vote all the Capital Stock with
respect to which it has voting rights, and to cause all persons designated by
it to vote, in favor of removal from the Board of Directors, upon written
notice by Crest, the RTK Stockholder or the CRI Stockholder or the Telecrafter
Stockholder, of the person or persons designated to the Board of Directors by
such Person or Persons giving notice of removal, and to elect to the unexpired
term of each director so removed another person designated by such Person or
Persons. Each Stockholder, other than the Exempt Stockholders, further agrees
to cooperate fully with Crest, the RTK Stockholder, the CRI
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Stockholder or the Telecrafter Stockholder, in connection with the voting of
its shares of Capital Stock, the execution of written consents, the calling of
meetings and other stockholder matters, as contemplated by this Section 2.01.
(j) If any director is unable to serve, or once having
commenced to serve, is removed or withdraws from the Board of Directors of the
Company, the replacement of such director on the Board of Directors of the
Company will be elected in accordance with the procedures described in (b),
(c), (d), (e), (f), (g) and (i) above.
(k) Each Stockholder, other than the Exempt Stockholders,
further agrees to take all other necessary or desirable actions within its
control (whether in its capacity as a stockholder, director, member of a board
committee or officer of the Company or otherwise, and including, without
limitation, attendance at meetings in person or by proxy for purposes of
obtaining a quorum and execution of written consents in lieu of meetings), and
the Company agrees to take all necessary and desirable actions within its
control (including, without limitation, calling special board and stockholder
meetings), so that the Crest Directors, the RTK Director, the DTJ/CEEJ Director
and the Telecrafter Director are elected to the Board of Directors.
(l) The Company hereby agrees that the Company will pay the
reasonable travel and out of pocket expenses of the Directors.
(m) The Company agrees to nominate and elect the members of
the Board of Directors of any Subsidiary of the Company as directed by the
Board of Directors of the Company.
(n) The Company agrees to establish audit and compensation
committees promptly following the Closing Date with such duties and obligations
as set forth in the by-laws of the Company.
(o) The Company agrees to designate at least one Crest
Director to serve on any executive committee of the Board of Directors or any
committee performing similar functions and if such person is removed, to elect
another member designated by Crest.
(p) Each Stockholder agrees not to and not to permit any
Affiliate to grant any proxy or enter into or be bound by any voting trust with
respect to its Capital Stock, or enter into any stockholder arrangements of any
kind with any person with respect to its Capital Stock, in any such case in a
manner that is inconsistent with the provisions of this Agreement.
(q) ▇▇▇▇▇▇▇ shall be entitled to designate up to two
observers, each of PNC, GECC and BancBoston shall be entitled to designate up
to one observer and the CRI Stockholder shall be entitled to designate up to
one observer to attend meetings of the Boards of Directors of the Company and
its Subsidiaries, which observers shall be reasonably acceptable to the
Company.
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Section 2.02 Approval of the Crest Group. Without the prior written
approval of the Crest Group, neither the Company nor any Subsidiary shall make
any material decisions to take any material action relating to the business and
affairs of the Company or any Subsidiary, including, but not limited to, any
decision to:
(i) authorize or issue any shares of stock of any
class except in connection with certain options to purchase
stock reserved for employees under a stock option plan
approved by the Board of Directors;
(ii) issue bonds, debentures, notes or other
obligations convertible into or exchangeable for, or having
rights to purchase, any shares of stock of the Company or any
Subsidiary (except as set forth in clause (i) above with
respect to options);
(iii) directly or indirectly redeem, purchase or
otherwise acquire, or permit any Subsidiaries to redeem,
purchase or otherwise acquire, any of the Company's equity
securities (including, without limitation, warrants, options
and other rights to acquire equity securities) except for
repurchases of Common Stock from employees of the Company and
its subsidiaries upon termination of employment pursuant to
arrangements approved by all of the members of the Board of
Directors;
(iv) increase the number of shares of Common Stock
issuable pursuant to stock option plans or stock ownership
plans above 8% of the number of shares of Common Stock
outstanding on or immediately after the Closing Date (as such
number is proportionately adjusted for stock splits,
combinations and dividends affecting the Common Stock and
including all such employee stock options or other purchase
rights outstanding on or immediately after the Closing Date)
or otherwise amend or modify any stock option plan or
employee stock ownership plan as in existence on or
immediately after the Closing Date;
(v) incur, refinance, guarantee or assume any
indebtedness (other than in the ordinary course of the
Company's business in amounts less than $100,000);
(vi) declare any dividend or authorize any purchase
or repurchase of stock (other than as permitted in clause
(iii) above);
(vii) hire or terminate any members of the Company's
senior management;
(viii) own, actively manage or operate any business
other than the business of providing communication services
on an outsourced basis and related activities;
(ix) issue any option, warrant, put or call or
other arrangement of any kind to purchase or otherwise
receive from the Company or any Subsidiary any equity
interest, except as set forth in clause (i) above;
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(x) complete an initial public offering or sell
all of or substantially all of its assets;
(xi) approve or change compensation to any member
of senior management;
(xii) enter into any contract for obligations in
total in excess of $100,000, or any contract for employment
in excess of $75,000;
(xiii) acquire or dispose of, in one or more
transactions, assets having a fair market value in excess of
$100,000 or in exchange for consideration valued in excess or
$100,000 (including assumed indebtedness);
(xiv) enter into, amend, modify or terminate any
material agreement outside the ordinary course of business;
(xv) adopt, amend, modify in any material respect
or terminate any employee benefit plan or collective
bargaining agreement or contract with any union;
(xvi) initiate any litigation or undertake any
course of defense in connection with any litigation brought
against the Company or any of its Subsidiaries, or settle any
claim, litigation or insurance claim if the amount exceeds
$50,000;
(xvii) enter into any transaction with Affiliates on
terms that are less favorable than those that can be obtained
from an independent third party in an arm's length
transaction;
(xviii) file or commence a case, proceeding or other
action under any law relating to bankruptcy, insolvency or
relief of debtors or seek an appointment of a receiver,
trustee, custodian or any similar person for the Company; or
(xix) engage or dismiss any certified public
accountants or legal counsel on behalf of the Company or any
of its Subsidiaries.
Section 2.03 Actions Consistent with Agreement. The Company
shall not take any action inconsistent with the provisions of this
Agreement.
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ARTICLE III
RESTRICTIONS ON TRANSFERS BY THE STOCKHOLDERS
Section 3.01 Restrictions on Transfers Generally. Subject to the
provisions of Section 3.09 hereof, each Stockholder hereby agrees that such
Stockholder shall not, and shall not permit any Affiliate to, directly or
indirectly transfer, sell or otherwise dispose of any shares of Capital Stock
other than pursuant to Sections 3.02, 3.03, 3.04, 3.05 and 3.06 and otherwise
in accordance with the terms hereof. Subject to the provisions of Section 3.09
hereof, each party hereto agrees not to pledge, mortgage, hypothecate or
otherwise encumber any shares of Capital Stock.
Section 3.02 Right of First Offer.
(a) At any time prior to a Qualified Public Offering, if an
Offering Stockholder (excluding the Crest Group, ▇▇▇▇▇▇▇, BancBoston,
Prudential, RFM CRI LLC, GECC and PNC for purposes of this Section 3.02)
desires to transfer or sell any Capital Stock held by it (the "Shareholder
Securities") to a third party that is not a Permitted Transferee (a "Third
Party Buyer"), the Offering Stockholder shall give written notice (the
"Transfer Notice") to Crest and the Company, which Transfer Notice shall state
the number of Shareholder Securities such Offering Stockholder proposes to
transfer. Crest and any member of the Crest Group, ▇▇▇▇▇▇▇, BancBoston,
Prudential, RFM CRI LLC, GECC and PNC may transfer or sell any Capital Stock
held by it without being subject to the restrictions of this Section 3.02.
(b) Crest shall have the first irrevocable and exclusive
option, but not the obligation, to purchase the Shareholder Securities. The
option to purchase the offered Shareholder Securities shall be exercisable by
Crest with respect to all or a portion of such Shareholder Securities by
delivery of a written notice of exercise (the "Exercise Notice") to the
Offering Stockholder and the Company within 30 days after receipt of the
Transfer Notice. Such Exercise Notice shall set forth the price and the terms
and conditions on which Crest would be willing to purchase all or a portion of
such Shareholder Securities and the amount of Shareholder Securities offered to
be purchased. Crest shall deliver a copy of its Exercise Notice to the Company,
although failure to do so will not invalidate the delivery of the Exercise
Notice to the Offering Stockholder. In the event that the Offering Stockholder
accepts the price set forth in the Exercise Notice, then Crest shall be
required to purchase the number of Shareholder Securities specified in the
Exercise Notice. In the event that (i) Crest offers to purchase less than all
of the offered Shareholder Securities or (ii) the Offering Stockholder does not
accept the price set forth in Crest's Exercise Notice, then such Offering
Stockholder shall offer to sell all the Shareholder Securities (or any
remaining Shareholder Securities not purchased by Crest) to the Company for a
purchase price not lower than that set forth in Crest's Exercise Notice and on
terms and conditions taken as a whole no more favorable to the Company than
those set forth in Crest's Exercise Notice. The Company shall have the
irrevocable option, but not the obligation, to purchase all (but not less than
all) of the Shareholder Securities which Crest failed to offer to purchase. The
option to purchase the offered Shareholder Securities shall be exercisable by
the Company with respect to such Shareholder Securities by delivery of an
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Exercise Notice to the Offering Stockholder no later than 14 days following
delivery of the Exercise Notice by Crest to the Offering Stockholder and the
Company but in no event more than 45 days after receipt by the Company of the
Transfer Notice. Such Exercise Notice shall set forth the price and the terms
and conditions on which the Company would be willing to purchase all or a
portion of such Shareholder Securities and the amount of Shareholder Securities
to be purchased. In the event that the Offering Stockholder accepts the price
specified in the Company's Exercise Notice, then the Company shall be required
to purchase the number of Shareholder Securities specified in the Company's
Exercise Notice.
In the event that (i) Crest and the Company together offer to
purchase less than all of the offered Shareholder Securities or (ii) the
Offering Stockholder does not accept the price set forth in Crest's or the
Company's Exercise Notice, then such Offering Stockholder shall be permitted to
sell all, but not less than all, of the offered Shareholder Securities (or any
remaining Shareholder Securities not purchased by Crest or the Company) to a
Third Party Buyer for a purchase price not lower than the greater of the
purchase prices set forth in either Crest's Exercise Notice or the Company's
Exercise Notice and on terms and conditions taken as a whole no more favorable
to such Third Party Buyer than the most favorable terms and conditions set
forth in Crest's Exercise Notice and the Company's Exercise Notice; provided
that, in the case where the purchase price set forth in Crest's Exercise Notice
is higher than that set forth in the Company's Exercise Notice, Crest has
offered to purchase at least 25% of the Shareholder Securities proposed to be
transferred.
(c) The closing of any purchase of Shareholder Securities by
Crest or the Company (as the case may be) under this Section 3.02 shall be held
at such place as the Offering Stockholder and Crest or the Company (as the case
may be) shall agree upon on the 15th day following delivery of the relevant
Exercise Notice or such other date as shall be mutually agreeable to the
parties (or such later time as may be necessary to comply with the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act, as amended ("HSR Act"), and other
applicable laws).
(d) If Crest and the Company do not collectively wish to
purchase all of the offered Shareholder Securities, fail to consummate such
purchase within such period, or fail to deliver an Exercise Notice within the
period specified in Section 3.02(b) hereof, the Offering Stockholder may
transfer to the Third Party Buyer, subject to the provisions of this Agreement,
all but not less than all, of the offered Shareholder Securities; provided,
however, that (x) such transfer is bona fide and made before the later of 120
days from the date of the Transfer Notice and the date which is five days after
the expiration or waiver of any applicable waiting period to such transfer
pursuant to the HSR Act and (y) prior to such transfer the Third Party Buyer
shall agree in writing, in a form reasonably satisfactory to the Company, to be
bound by the terms of this Agreement (as a Stockholder), including the
provisions of Section 3.08, and that the Shareholder Securities held by it
shall be subject to the terms of this Agreement. If such sale is not
consummated within the period described in clause (x) of the proviso in the
preceding sentence, the restrictions provided for in this Section 3.02(d) shall
again become effective, and no transfer of such Shareholder Securities may be
made thereafter without again offering the same, first to Crest, and then to
the Company, in accordance with the terms and conditions of this Agreement.
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(e) Crest may assign any of its rights under this Section
3.02 to a third party by providing written notice to the Company. To the extent
Crest assigns to any third party all or a portion of its rights under this
Section 3.02, any notices to be sent to Crest under this Section 3.02 shall
also be delivered to such assignee(s).
Section 3.03 Drag Along and Forced Sale. If at any time prior to a
Qualified Public Offering holders of at least 51% of the Capital Stock or the
Crest Group (so long as it shall continue to own 50% of the Capital Stock held
by it as of the date of this Agreement) ("Proposing Shareholders") propose to
transfer in a bona fide arm's length sale all of the shares of Capital Stock
held by such Proposing Shareholders to a Third Party Buyer (not a Permitted
Transferee), the Proposing Shareholders shall have the right to require each
Stockholder to sell all of the shares of Capital Stock held by each such
Stockholder to such Buyer for the same consideration as proposed to be paid to
the Proposing Shareholders and at the same price and on the same terms and
conditions as apply to such other shares of stock of the Company being
purchased by the Third Party Buyer following notice provided to each other
Stockholder in writing at least 20 days prior to the date set for consummation
of such sale (a "Drag Along"); provided that ▇▇▇▇▇▇▇, BancBoston, Prudential,
PNC, GECC and RFM CRI LLC shall not be required to accept Non-Marketable
Securities. Such notice shall contain the price and other material terms of the
proposed sale and the proposed date of the closing.
The Crest Group (so long as it shall continue to own 50% of
the Capital Stock held by it as of the date of this Agreement) may at any time
request that the Company conduct a Forced Sale (as defined below). Upon receipt
of notice from the Crest Group, the Company shall use its reasonable efforts to
sell its assets at fair market price (a "Forced Sale"), including by retaining
a qualified investment banking firm to be chosen by such holders and by
conducting an auction of its assets within 6 months following such request, for
an amount that would yield proceeds such that the holders of Capital Stock
would receive an amount per share not less than the amount specified in any
such notice from the Crest Group.
The obligations of the Stockholders pursuant to this Section 3.03 are subject
to the satisfaction of the following conditions:
(i) if any Stockholders of a class or series are
given an option as to the form and amount of consideration to
be received, all holders of such class or series will be
given the same option;
(ii) no Stockholder shall be obligated to make any
out-of-pocket expenditure prior to the consummation of the
Drag Along or the Forced Sale (a "Sale") and no Stockholder
shall be obligated to pay more that its pro rata share (based
upon the amount of consideration received) of reasonable
expenses incurred in connection with a consummated Sale to
the extent such costs are incurred for the benefit of all
Stockholders and are not otherwise paid by the Company or the
acquiring party (costs incurred by or on
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behalf of a Stockholder for its sole benefit will not be
considered costs of the transaction hereunder), provided that
a Stockholder's liability for such expenses shall be capped
at the total purchase price received by such Stockholder for
its shares of the capital stock of the Company; and
(iii) In the event that the Stockholders are
required to provide any representations or indemnities in
connection with the Sale (other than representations and
indemnities concerning each Stockholder's valid ownership of
its capital stock in the Company, free of all liens and
encumbrances (other than those arising under applicable
securities laws), and each Stockholder's authority, power,
and right to enter into and consummate such purchase or
merger agreement without violating any other agreement), then
each Stockholder shall not be liable, if at all, for more
than its pro rata share (based upon the amount of
consideration received) of any liability for
misrepresentation or indemnity and such liability shall not
exceed the total purchase price received by such Stockholder
for its securities.
Section 3.04 Transfer to Affiliates. Subject to the provisions of
Section 3.08, Crest may transfer its shares of Capital Stock to any Crest
Investor and a Stockholder may transfer its shares of Capital Stock to an
Affiliate of such Stockholder (a "Permitted Transferee"); provided that such
Stockholder shall not transfer control of any such Affiliate to a person which
is not an Affiliate of such Stockholder without first reacquiring such shares
of Capital Stock; and provided, further, that the Permitted Transferee of a
Stockholder (other than any Crest Investor) may only transfer its shares of
Capital Stock to the transferor Stockholder from whom such Permitted Transferee
received such shares of Capital Stock or any of such transferor's Permitted
Transferees or otherwise in accordance with the terms hereof.
Section 3.05 Right of First Refusal.
(a) Subject to the provisions of this Section 3.05, each
Stockholder (in the context of this Section 3.05, a "Selling Shareholder")
hereby grants to the Crest Group the right of first refusal to purchase all or
any portion of the shares of Capital Stock held by a Selling Shareholder which
such Selling Shareholder may from time to time propose to transfer or sell to a
third party; provided, however, that such right shall not apply to a transfer
or sale to a Permitted Transferee pursuant to Section 3.04. Prior to making any
transfer or sale of any shares of Capital Stock to a third party, the Selling
Shareholder must give written notice to the Crest Group, specifying (i) the
number of shares of Capital Stock that such Selling Shareholder desires to
transfer or sell (the "Transfer Shares"), (ii) the proposed method of transfer
or sale, (iii) the identity of the prospective transferee, and (iv) the terms
of such offer (including the price) made by the prospective transferee or to
the prospective transferee and accepted by such prospective transferee with
which there is a proposed sale; provided, that ▇▇▇▇▇▇▇ shall not be required to
include information with respect to items (iii) and (iv) in such notice,
provided, further, that any such notice from ▇▇▇▇▇▇▇ shall contain the proposed
transfer price. Such notice shall constitute an irrevocable offer to sell such
Transfer
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Shares to the Crest Group for cash at a price and on the terms specified in the
notice (the "Offer to Sell").
(b) Upon receipt of an Offer to Sell from the Selling
Shareholder, the Crest Group shall have a period of twenty (20) days (the
"Offer Period") within which to submit a written acceptance (an "Acceptance")
to the Selling Shareholder to purchase all or any portion of the Transfer
Shares; provided that with respect to ▇▇▇▇▇▇▇, BancBoston, Prudential, PNC,
GECC and RFM CRI LLC only, the Crest Group may purchase all or none of such
Transfer Shares; and provided, further, that with respect to any other Selling
Shareholder who offers to sell less than 500,000 Transfer Shares, the Crest
Group may purchase all or none of such Transfer Shares only. The election by
the Crest Group to purchase the Transfer Shares shall be irrevocable and
binding on the Selling Shareholder and the Crest Group, and the parties shall
be bound to consummate the transaction in accordance with the Offer to Sell not
more than fifteen (15) days after the submission of the Acceptance.
(c) If the Crest Group does not issue an Acceptance during
the Offer Period or the Acceptance is for less than all of the Transfer Shares,
the Selling Shareholder shall be free to transfer all of the Transfer Shares or
any portion not specified in the Acceptance at a price and on terms no less
favorable to the Selling Shareholder than those specified in the Offer to Sell.
If the Selling Shareholder does not transfer all of the Transfer Shares within
180 days following the expiration of the Offer Period, the Selling Shareholder
shall not transfer any of the Transfer Shares without again complying with the
provisions of this Section 3.05.
Section 3.06 Tag Along.
(a) If at any time prior to a Qualified Public Offering,
Crest desires to transfer to any Third Party Buyer (other than in a sale
pursuant to a registered public offering) five percent (5%) or more of its
Shareholder Securities (in the aggregate), Crest shall afford each of ▇▇▇▇▇▇▇,
BancBoston, Prudential, PNC, GECC and RFM CRI LLC the opportunity to sell, in
the same transaction contemplated between Crest and the Third Party Buyer, for
the same consideration and the same price and on the same terms, the same
percentage of the shares owned by ▇▇▇▇▇▇▇, BancBoston, Prudential, PNC, GECC
and RFM CRI LLC as applicable, as the Shareholder Securities represent with
respect to the shares of Capital Stock owned by Crest (the "Tag-Along Offer");
provided that for purposes of this Section 3.06, a Third Party Buyer shall not
include a successor fund of Crest with respect to a sale of Shareholder
Securities thereto.
(b) Written notice (the "Sale Notice") of the Tag-Along Offer
shall be sent to ▇▇▇▇▇▇▇, BancBoston, Prudential, PNC, GECC, RFM CRI LLC and
the Company. Such Sale Notice shall state (i) Crest's intention to transfer all
the offered Shareholder Securities to the Third Party Buyer, (ii) the name and
address of the proposed Third Party Buyer, (iii) the offered purchase price per
share of Common Stock to be transferred, expressed solely as a dollar amount,
the manner of payment thereof and a statement that the price will be payable
wholly in cash and/or marketable securities and (iv) any additional
consideration being paid to Crest and its Affiliates. If ▇▇▇▇▇▇▇,
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BancBoston, Prudential, RFM CRI LLC, GECC or PNC, as applicable, desires to
participate in such Tag-Along sale, it shall, within 15 business days of the
date of delivery of the Sale Notice, notify Crest of its election to sell
shares of Capital Stock pursuant to the provisions of this Section 3.06. The
failure by ▇▇▇▇▇▇▇, BancBoston, Prudential, RFM CRI LLC, GECC or PNC, as
applicable, to deliver a notice pursuant to this Section shall be deemed an
election by such holder not to sell any shares of Capital Stock owned by it and
Crest may transfer its Capital Stock to the Third Party Buyer in accordance
with the terms of the Sale Notice so long as such transfer occurs prior to 120
days after the date the Sale Notice was received by ▇▇▇▇▇▇▇, BancBoston,
Prudential, PNC, GECC or RFM CRI LLC as applicable.
Section 3.07 Restrictive Legends. Each share of Capital Stock shall
bear a legend in substantially the following form:
The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and neither
the securities nor any interest therein may be sold, transferred,
pledged or disposed of in the absence of such registration or an
exemption under such Act and the rules and regulations thereunder. The
transfer of such securities is subject to the restrictions set forth
in that certain Amended and Restated Stockholders Agreement, dated as
of May 24, 2000 among ViaSource Communications, Inc. and certain
Stockholders, copies of which are available for inspection at the
offices of ViaSource Communications, Inc., and such securities may be
transferred only in compliance with the terms and conditions of said
Stockholders Agreement.
Section 3.08 Transferees Subject to Agreement. Any transferee of any
shares of Capital Stock shall, as a condition of the consummation of such
transfer, agree to be subject to this Agreement.
Section 3.09 Expiration of Restrictions. All restrictions imposed by
Article III hereof upon the transferability of Capital Stock shall cease and
terminate (a) as to any particular share of Capital Stock, when such share has
been sold pursuant to Rule 144 or shall have been effectively registered under
the Securities Act and disposed of in accordance with the registration
statement covering such share or (b) upon the consummation of a Qualified
Public Offering. Whenever such restrictions shall terminate as to any Capital
Stock, the holder thereof shall be entitled to receive from the Company without
expense a new certificate or certificates representing such securities not
bearing the legend set forth in Section 3.07 hereof.
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ARTICLE IV
RIGHT TO ACQUIRE SECURITIES
Section 4.01 Right to Acquire Securities. If at any time prior to the
completion of a Qualified Public Offering, the Company proposes to issue in any
offering other than a public offering registered with the Securities and
Exchange Commission equity securities of any kind, including the exercise or
conversion of any equity security (the term "equity securities" including for
these purposes any common stock, warrants, options or other rights to acquire
equity securities and debt securities convertible into equity securities) of
the Company, the Company shall:
(a) give written notice to each Stockholder setting forth in
reasonable detail (i) the designation and all of the terms and provisions of
the equity securities proposed to be issued (the "Proposed Securities"),
including, where applicable, the voting powers, preferences and relative
participating, optional or other special rights, and the qualification,
limitations or restrictions thereof and interest or dividend rate and maturity;
(ii) the price and other terms of the proposed sale of such securities; (iii)
the amount of such securities proposed to be issued; and (iv) such other
information as may be reasonably required or requested by any holder(s) in the
aggregate of 5% or more of the Capital Stock, in order to evaluate the proposed
issuance; and
(b) offer to issue to each such Stockholder its pro rata
share of the Proposed Securities based on its Percentage in Interest;
provided, however, that no such right shall apply, and the Company shall have
no obligation to comply with clauses (a) and (b) above, in connection with (i)
the issuance of any shares of Common Stock upon the exercise of options granted
under any employee or director stock option plan of the Company and approved by
the Board of Directors, (ii) the issuance of warrants, options or other rights
pursuant to employee or director stock option or stock ownership plans approved
by the Crest Group and the Company in accordance with the terms hereof, (iii)
the issuance of any shares of Common Stock issued by the Company in connection
with the acquisition of any business, including without limitation, the
issuance of 5,000,000 shares of Common Stock to GECC and PNC in connection with
the acquisition of the assets of Telecrafter Services Corporation or any merger
approved by the Board of Directors as part of the merger consideration, (iv)
the issuance of any shares of Common Stock in connection with or at any time
after the consummation of a Qualified Public Offering, (v) the issuance of any
shares of Capital Stock to Crest as a warrant which is exercisable into less
than 1% of the outstanding Capital Stock on a cumulative basis (subject to
standard anti-dilution adjustments) and the exercise of such warrant, (vi) the
issuance of warrants to any lender in connection with any financing entered
into by the Company, such warrants not to exceed 5% of the outstanding shares
of Common Stock immediately prior to such issuance, (vii) the issuance of
shares of Common Stock or options to purchase shares of Common Stock to certain
key employees or sellers in connection with any acquisition or merger, such
shares or options not to exceed 4% of the outstanding shares of Common Stock at
any point in time (but at no point for more than 2.2 million shares (as
adjusted for any stock split, reverse stock split or other similar
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reorganization)) and (viii) the issuance of any equity securities upon
conversion or exercise of equity securities issued or permitted to be issued
pursuant to clauses (i) through (viii) of this Section 4.01; provided, that the
aggregate amount of shares issued pursuant to clauses (i) and (ii) above shall
not exceed 8% of the outstanding shares of Common Stock at any point in time
(but at no point more than 4.4 million shares (as adjusted for any stock split,
reverse stock split or other similar reorganization)), and provided that clause
(iii) shall not apply to any shares issued as an advisory fee.
In the event a Stockholder does not purchase all or any of
its pro rata portion of the Proposed Securities, the remaining Stockholders
shall have the right to purchase such unpurchased Proposed Securities or
respective pro rata portion until no other Stockholder desires to purchase any
more Proposed Securities.
Each such Stockholder that wishes to exercise its purchase
rights hereunder shall deliver a written notice to the Company within 15
business days after its receipt of the notice specified in Section 4.1(a) from
the Company stating the quantity of its pro rata share of Proposed Securities
it wishes to purchase and specifying the aggregate number of shares of Proposed
Securities, if any, in addition to its pro rata portion, which such Stockholder
desires to purchase in the event there is an aggregate undersubscription for
all Proposed Securities.
Upon the expiration of such 15 day period, the Company will
be free to sell Proposed Securities that such Stockholders have not elected to
purchase during the 90 days following such expiration on terms and conditions
(considered as a whole) no more favorable to the purchasers thereof than those
offered to such Stockholders. Any Proposed Securities offered or sold by the
Company after such 90 day period must be re-offered to such Stockholders
pursuant to this Section 4.01. The election by any such Stockholder not to
exercise its subscription rights under this Section 4.01 in any one instance
shall not affect its right (other than in respect of a reduction in its
percentage holdings) as to any subsequent proposed issuance. Any sale of such
securities by the Company without first giving such Stockholders the rights
described in this Section 4.01 shall be void and of no force and effect, and
the Company shall cause any correction required to be effected.
For purposes of this Article IV, the pro rata share of the
Proposed Securities (as defined above) offered to and not purchased by Crest,
▇▇▇▇▇▇▇, Prudential, RFM CRI LLC, GECC or PNC, as the case may be, may be
purchased by any Affiliate or any Permitted Transferee thereof, or by any Crest
Investor with respect to Crest's portion.
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ARTICLE V
REGISTRATION RIGHTS
Section 5.01 Demand Registration.
(a) At any time (i) upon the written request of the Crest
Group (the "Exclusive Demand Right") or, if a Qualified Public Offering shall
not have occurred within four years of the date hereof, upon the written
request of ▇▇▇▇▇▇▇ at any time thereafter and (ii) following the earlier of (A)
the consummation of a registration of Registrable Securities in connection with
the Exclusive Demand Right and (B) 6 months following the expiration of any
lockup period imposed by the underwriter(s) in connection with a Qualified
Public Offering, upon the written request of ▇▇▇▇▇▇▇, BancBoston, the RTK
Stockholder, the CRI Stockholder, the Telecrafter Stockholder, the TeleCore
Stockholder, the Excalibur Stockholder, PNC or, following exercise of its
warrants dated as of September 7, 1999 and assuming it has not sold any of its
shares of capital stock, GECC (each, with the Crest Group, an "Initiating
Holder"), the Company shall use its best efforts to effect the registration of
all or part of such Initiating Holder's Registrable Securities under the
Securities Act as described below. Such request shall state the intended method
of disposition by such holders of the Registrable Securities and the Company
will promptly give written notice of such requested registration to all holders
of Registrable Securities. The Company will use its best efforts to effect such
registration of (i) the Registrable Securities which the Company has been so
requested to register for disposition in accordance with the intended method of
disposition stated in such request, and (ii) all other Registrable Securities
the holders of which shall have, within 30 days after the receipt of such
written notice from the Company, made written request (stating the intended
method of disposition of such securities by such holders) to the Company for
registration thereof, all to the extent required to permit the disposition (in
accordance with the intended method thereof as aforesaid) by all such holders
of the Registrable Securities so to be registered; provided, that, the RTK
Stockholder, the CRI Stockholder, ▇▇▇▇▇▇▇, BancBoston, the Telecrafter
Stockholder, the TeleCore Stockholder, the Excalibur Stockholder, PNC and GECC
shall be entitled to no more than one such demand request each; provided,
further, that such Initiating Holder shall not be deemed to have made a demand
request (including the Exclusive Demand Right) unless a registration statement
shall have become effective with respect to at least 65% of the shares
requested to be included therein by such Initiating Holder. The Company, after
consultation with the holders requesting any registration pursuant to this
paragraph, shall select the underwriter or underwriters of recognized standing
to be used in connection with any public offering of securities registered
pursuant to this paragraph; provided, however, that so long as Crest Group
shall continue to hold in the aggregate 5% or more of the total outstanding
shares of Capital Stock, Crest Group shall have the right, in its sole
discretion, to approve of any underwriter, which approval shall not be
unreasonably withheld.
(b) If a requested registration pursuant to this Section 5.01
involves an underwritten offering, and the managing underwriter shall advise
the Company in writing (with a copy to each holder of Registrable Securities
requesting registration) that, in its opinion, the number of securities
requested to be included in such registration exceeds the number which can be
sold in
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such offering within a price range acceptable to the Initiating Holder, the
Company will exclude from such registration, to the extent of the number of
securities which the Company is so advised cannot be sold in such offering,
first, the Registrable Securities requested to be registered for the account of
any Person (including the Company) other than (i) the Demand Holders and (ii)
when it is the Initiating Holder, the RTK Stockholder, the CRI Stockholder, the
Telecrafter Stockholder, the TeleCore Stockholder or the Excalibur Stockholder
as the case may be, and second, on a pro rata basis in accordance with the
fully diluted Common Stock held, the securities requested to be registered by
(x) the Demand Holders and (y), when it is the Initiating Holder, the RTK
Stockholder, the CRI Stockholder or the Telecrafter Stockholder, the TeleCore
Stockholder or the Excalibur Stockholder as the case may be; provided that with
respect to any registration of Registrable Securities pursuant to this Section
5.01 following the registration by the Crest Group of 75% of its Registrable
Securities (measured as of the date of this Agreement) or pursuant to which
registration, the Crest Group will have registered more than 75% of its
Registrable Securities (any Registrable Securities remaining following the
registration by the Crest Group of 75% of its Registrable Securities (measured
as of the date of this Agreement) other than when either the RTK Stockholder,
the CRI Stockholder, the Telecrafter Stockholder, the TeleCore Stockholder or
the Excalibur Stockholder is the Initiating Holder, the "Non-Crest Registrable
Securities"), the Company will exclude from such registration, to the extent of
the Non-Crest Registrable Securities which the Company is so advised cannot be
sold in such offering, first, the Non-Crest Registrable Securities requested to
be registered for the account of any Person (including the Company) other than
the Priority Holders, and second, on a pro rata basis in accordance with the
fully diluted Common Stock held by them, the Non-Crest Registrable Securities
requested to be registered by the Priority Holders. Any holder of Registrable
Securities to be included in any registration pursuant to Section 5.01 by
written notice to the Company within 20 days after its receipt of a copy of a
notice from the managing underwriter delivered pursuant to this Section 5.01(b)
may rescind its request for registration of any Registrable Securities held by
it with respect to all or any part of such Registrable Securities. In addition
to such underwriter cut backs, any such registration will be subject to any
conditions that might be imposed by the managing underwriter of the
underwritten offering.
(c) A registration statement requested pursuant to this
Section 5.01 shall not be deemed to have been effected if (i) the registration
does not remain effective for a period of at least 120 days or such earlier
time as the underwriter allows and all the Registrable Securities requested to
be registered in connection therewith were not sold, (ii) the Initiating Holder
withdraws its request for registration in its entirety pursuant to Section
5.01, (iii) a registration with respect therewith has not become effective,
provided that if such registration statement does not become effective
following its filing by the Company solely by reason of the refusal to proceed
of the Initiating Holder, it shall be deemed to have been effected unless the
Initiating Holder shall have elected to pay all registration expenses in
connection with such registration or (iv) if within 120 days after it has
become effective, such registration is interfered with by any stop order,
injunction or other order or requirement of the Commission or other
governmental agency or court for any reason.
Section 5.02 Piggy-Back Registration.
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(a) If the Company at any time proposes to register any of
its equity securities (other than securities issued with respect to any
acquisition or any employee stock option, stock purchase, or similar plan or
any other securities to be registered pursuant to a special purpose
registration) under the Securities Act on Form ▇-▇, ▇▇▇▇ ▇-▇, Form S-3 or any
other form of general application for sale of securities to the public in an
underwritten offering upon which may be registered securities similar to the
Registrable Securities, it will each such time at least 30 days prior to the
anticipated filing date of such proposed registration statement give written
notice to all holders of all Registrable Securities of its intention so to do
and, upon the written request of any such holder made within 15 days after the
receipt of any such notice (which request shall specify the Registrable
Securities intended to be disposed of by such holder and state the intended
method of disposition thereof), the Company will use its best efforts to effect
the registration under the Securities Act of Registrable Securities which the
Company has been so requested to register, to the extent requisite to permit
the disposition (in accordance with the intended methods thereof as aforesaid)
by such holders of the Registrable Securities to be so registered, subject to
the discretion of the managing underwriter to limit or exclude any of such
equity securities from the offering (subject to the same priorities as set
forth in Section 5.01(b) hereof) if it determines that the inclusion thereof
would adversely affect the marketing of the securities to be sold by the
Company therein; provided, however, that if any Registrable Securities are to
be distributed pursuant to this paragraph through a firm of underwriters to the
public and Crest Group shall be participating in such offering it shall have
the right, after consultation with the Company, to approve of any underwriter.
(b) If a requested registration pursuant to this Section 5.02
involves an underwritten offering, and the managing underwriter shall advise
the Company in writing (with a copy to each holder of Registrable Securities
requesting registration) that in its opinion, the number of securities
requested to be included in such registration exceeds the number which can be
sold in such offering within a price range acceptable to the holders of a
majority of the Registrable Securities requested to be registered therein, the
Company will exclude from such registration, to the extent of the number of
securities which the Company is so advised cannot be sold in such offering,
first the Registrable Securities requested to be registered for the account of
any Person (including the Company) other than the Crest Group, ▇▇▇▇▇▇▇,
BancBoston, Prudential, RFM CRI LLC, GECC and PNC, second, on a pro rata basis
in accordance with fully diluted Common Stock held, the Registrable Securities
requested to be registered for the account of the Crest Group, ▇▇▇▇▇▇▇,
BancBoston, Prudential, RFM CRI LLC, GECC and PNC and third, those Registrable
Securities requested to be registered for the account of the Company; provided
that with respect to any registration of Registrable Securities pursuant to
this Section 5.02 following the registration by the Crest Group of 75% of its
Registrable Securities (measured as of the date of this Agreement) or pursuant
to which registration, the Crest Group will have registered more than 75% of
its Registrable Securities, the Company will exclude from such registration, to
the extent of the number of Non- Crest Registrable Securities which the Company
is so advised cannot be sold in such offering, first, the Non-Crest Registrable
Securities requested to be registered for the account of any Person (including
the Company) other than the Priority Holders, second, on a pro rata basis in
accordance with the fully diluted Common Stock held by them, the Non-Crest
Registrable Securities requested to be registered by the Priority Holders, and
third, those Registrable Securities requested to be
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registered for the account of the Company. Any holder of Registrable Securities
to be included in any registration pursuant to Section 5.02 by written notice
to the Company within 20 days after its receipt of a copy of a notice from the
managing underwriter delivered pursuant to this Section 5.02(b), may rescind
its request for registration of any Registrable Securities held by it with
respect to all or any of such Registrable Securities. In addition to such
underwriter cutbacks, any such registration will be subject to any commercially
reasonable conditions that might be imposed by the managing underwriter of the
underwritten offering.
Section 5.03 Form S-3 Registration.
(a) At any time following the one year anniversary of a
Qualified Public Offering and when the Company is eligible to register
securities on Form S-3, if the Company shall receive from any Holder and
Holders of 5% or more of the Registrable Securities a written request or
requests that the Company effect a registration on Form S-3 and any related
qualification or compliance with respect to all or a part of the Registrable
Securities owned by such Holder or Holders the Company will: (i) promptly give
written notice of the proposed registration, and any related qualification or
compliance, to all other Holders; (ii) as soon as practicable effect such
registration and all such qualification and compliance as may be so requested
and 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 Holder or Holders joining in such request as are specified in a
written request given within 15 days after receipt of written notice from the
Company; provided, however, that the Company shall not be obligated to effect
any such registration, qualification or compliance, pursuant to this Section
5.03 (A) if Form S-3 is not available for such offering by the Holders; (B)
more than two times in any twelve-month period; (C) if the anticipated
aggregate price of all shares requested to be included in such registration is
not at least $500,000; or (D) if the Company shall furnish to the Holders a
certificate signed by the Chief Executive Officer of the Company to the effect
that, in the good faith judgment of the Board of Directors, the filing, the
offering or the disclosure required thereby would adversely affect a pending or
contemplated acquisition, financing or other material transaction of the
Company and it is therefore in the best interests of the Company to defer the
filing of such registration statement, then the Company shall have the right to
defer such filing or to block the sale of shares thereunder for a period of not
more than 90 days after the date of furnishing such certificate; provided,
however, that the Company may not exercise such right more than once in any
twelve-month period; and (iii) subject to the foregoing, the Company shall file
a registration statement covering the Registrable Securities and other
securities so requested to be registered as soon as practicable after receipt
of the request or requests of the Holders. No registration effected pursuant to
this Section 5.03 shall relieve the Company from its obligation to effect any
registration pursuant to Section 5.01 or 5.02.
(b) If a requested registration pursuant to this Section 5.03
involves an underwritten offering, and the managing underwriter shall advise
the Company in writing (with a copy to each holder of Registrable Securities
requesting registration) that in its opinion, the number of securities
requested to be included in such registration exceeds the number which can be
sold in
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such offering within a price range acceptable to the holders of a majority of
the Registrable Securities requested to be registered therein, the Company will
exclude from such registration, to the extent of the number of securities which
the Company is so advised cannot be sold in such offering, first the
Registrable Securities requested to be registered for the account of any Person
(including the Company), other than initiating Holder pursuant to this Section
5.03 and second, on a pro rata basis in accordance with fully diluted Common
Stock held, the Registrable Securities requested to be registered for the
account of such initiating Holder pursuant to this Section 5.03. Any holder of
Registrable Securities to be included in any registration pursuant to Section
5.03 by written notice to the Company within 20 days after its receipt of a
copy of a notice from the managing underwriter delivered pursuant to this
Section 5.03(b), may rescind its request for registration of any Registrable
Securities held by it with respect to all or any of such Registrable
Securities. In addition to such underwriter cutbacks, any such registration
will be subject to any commercially reasonable conditions that might be imposed
by the managing underwriter of the underwritten offering.
Section 5.04 Registration Expenses. The Registration Expenses in
connection with any registration in which Registrable Securities shall be
included pursuant to Sections 5.01 or 5.02 shall be borne by the Company.
Section 5.05 Registration Procedures. If and whenever the Company
is required to use its best efforts to effect the registration of any
Registrable Securities under the Securities Act as provided in this Agreement,
the Company will as promptly as possible:
(i) prepare and (in any event within 120 days after
the end of the period within which requests for registration may be
given to the Company) file with the Commission a registration
statement with respect to such Registrable Securities and use its best
efforts to cause such registration statement to become effective;
provided, however, that before filing with the Commission a
registration statement or prospectus or any amendments or supplements
thereto, the Company will furnish to each Holder of Registrable
Securities included in such registration statement copies of such
documents proposed to be filed for such Holder's review;
(ii) prepare and file with the Commission such
amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep
such registration statement effective and to comply with the
provisions of the Securities Act with respect to the disposition of
all such Registrable Securities and other securities covered by such
registration statement until such time as all of such Registrable
Securities and other securities have been disposed of in accordance
with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statement, but in no event for
a period of less than 120 days after such registration statement
becomes effective;
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(iii) furnish to each seller of such Registrable
Securities such number of copies of such registration statement and of
each such amendment and supplement thereto (in each case including all
exhibits), such number of copies of the prospectus included in such
registration statement (including each preliminary prospectus), in
conformity with the requirements of the Securities Act, and such other
documents, as such seller may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such
seller;
(iv) use its best efforts to register or qualify
such Registrable Securities covered by such registration statement
under such other applicable securities or Blue Sky laws of such
jurisdictions within the United States of America (including
territories and commonwealths thereof) as each seller shall reasonably
request, except that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign corporation
in any jurisdiction wherein it is not so qualified, to subject itself
to taxation in any such jurisdiction, or to consent to general service
of process in any jurisdiction;
(v) notify each seller of any such Registrable
Securities covered by such registration statement, at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act within the period mentioned in subdivision (ii) of this
Section 5.05, 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 any
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under
which they were made (and upon receipt of such notice and until a
supplemented or amended prospectus as set forth below is available,
each such seller shall not offer or sell any securities covered by
such registration statement and shall return all copies of such
prospectus to the Company if requested to do so by it), and at the
request of any such seller prepare and furnish to such seller a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under
which they were made; and
(vi) furnish to each holder for which Registrable
Securities are registered or are to be registered at the time of the
disposition of such Registrable Securities by such holder, a signed
copy of an opinion of counsel dated the effective date of such
registration statement reasonably satisfactory in form and substance
to the three largest such holders (based on their percentage in
interest of the Registrable Securities or the largest such holder if
such holder's percentage in interest of the Registrable Securities is
equal to or greater than 50%) covering substantially the matters with
respect to such registration statement (and the prospectus, included
therein) as are customarily covered in opinions of issuers' counsel
delivered to underwriters in underwritten public offerings of
securities; it being understood
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that such opinion may contain such qualifications and assumptions as
are customary in the rendering of similar opinions.
The Company may require each seller of any Registrable Securities as to which
any registration is being effected to furnish the Company such information
regarding such seller and the distribution of such Registrable Securities as
the Company may from time to time request in writing and as shall be required
by law to effect such registration.
Section 5.06 Indemnification.
(a) In the event of any registration of any Registrable
Securities under the Securities Act pursuant to this Agreement, the Company
will indemnify and hold harmless the seller of such securities and its
directors and officers and partners and each underwriter of such securities and
each other person, if any, who controls such seller or underwriter within the
meaning the Securities Act, against any losses, claims, damages or liabilities,
joint or several, to which such seller, director or officer or underwriter or
controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in any
registration statement under which such securities were registered under the
Securities Act, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereto, or (ii) 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; and the Company
will reimburse such seller (including its employees and agents), each such
director and officer, each such underwriter and each such controlling person
for any legal or any other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability, action
or proceeding; provided, however, that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, amendment or supplement in reliance
upon and in conformity with written information furnished to the Company
through an instrument duly executed by such seller, officer or director,
underwriter r controlling person specifically for use in the preparation
thereof. Such indemnity shall remain in full force and effect irrespective of
any investigation by any person indemnified above.
(b) In connection with any registration statement in which a
holder of Registrable Securities is participating each holder shall indemnify
to the extent permitted by law in the same manner and to the same extent as set
forth in subdivision (a) of this Section 5.06 (but only to an amount, with
respect to such prospective seller, not in excess of the gross proceeds
realized by such seller from the sale of Registrable Securities registered
pursuant to such registration statement), the Company, each director of the
Company, each officer of the Company who shall sign such registration statement
and any person who controls the Company within the meaning of the Securities
Act, with respect to any statement in or omission from such registration
statement, any preliminary prospectus or final prospectus contained therein, or
any amendment or supplement
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thereto, if such statement or omission was made in reliance upon and in
conformity with written information furnished to the Company through an
instrument duly executed by such seller or underwriter, specifically for use in
the preparation of such registration statement, preliminary prospectus, final
prospectus, amendment or supplement.
(c) Promptly after receipt by an indemnified party of notice
of the commencement of any action involving a claim referred to in the
preceding paragraphs of this Section 5.06, such indemnified party shall, if a
claim in respect thereof is to be made against an indemnifying party, give
written notice to the latter of the commencement of such action; provided,
however, that the failure of any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its obligations under the
preceding paragraphs of this Section 5.06, except to the extent that the
indemnifying party is actually materially and irrevocably prejudiced by such
failure to give notice. In case any such action is brought against an
indemnified party, unless in the written opinion of counsel for such
indemnified party a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, the indemnifying party
shall be entitled to participate in and to assume the defense thereof, jointly
with any other indemnifying party similarly notified to the extent that it may
wish, with counsel reasonably satisfactory to such indemnified party, and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party for any legal or other expense subsequently incurred by
the latter in connection with the defense thereof. No indemnifying party, in
the defense of any such claim or litigation, shall, except with the consent of
each indemnified party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such indemnified party of a release from all
liability in respect to such claim or litigation. An indemnifying party shall
not be subject to any liability for any settlement made without its consent
which shall not be unreasonably withheld.
If for any reason the foregoing indemnity is unavailable,
then the indemnifying party shall contribute to the amount paid or payable by
the indemnified party as a result of such losses, claims, damages, liabilities
or expenses in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party on the one hand and the indemnified
party on the other hand.
Section 5.07 Information by the Holders. Each of the Holders included
in any registration shall furnish to the Company such information regarding
such Holder and the distribution proposed by such Holder as the Company may
reasonably request in writing and as shall be reasonably required in connection
with any registration, qualification or compliance referred to in this Article
V.
Section 5.08 Rule 144 Reporting. With a view to making available the
benefits of certain rules and regulations of the Commission which may permit
the sale of the Registrable Securities to the public without registration, the
Company agrees to use all commercially reasonable efforts to:
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(i) make and keep public information available, as
those terms are understood and defined in Rule 144, at all
times from and after the effective date of the first
registration statement under the Securities Act filed by the
Company for an offering of its securities to the general
public;
(ii) file with the Commission in a timely manner all
reports and other documents required of the Company under the
Securities Act and the Exchange Act at any time after it has
become subject to such reporting requirements; and
(iii) so long as any Holder owns any Registrable
Securities, furnish to such Holder upon request a written
statement by the Company as to its compliance with the
reporting requirements of Rule 144 (at any time from and
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 such
reporting requirements), a copy of the most recent annual or
quarterly report of the Company, and such other reports and
documents so filed as any Holder may reasonably request in
availing itself of any rule or regulation of the Commission
allowing such Holder to sell any such securities without
registration.
Section 5.09 Assignability. The registration rights set forth in this
Article V shall be assignable by any Holder, in whole or in part, to any
transferee of Registrable Securities provided such transferee agrees to be
bound by all provisions of this Agreement. Any such assignee of a Holder shall
be deemed to be a Holder for purposes of this Article V.
ARTICLE VI
CERTAIN REPRESENTATIONS AND COVENANTS
Section 6.01 Stockholder Representation. Each Stockholder represents
and warrants as to itself that as of the Closing Date (after giving effect to
all transactions occurring on or as of the Closing Date) such Stockholder is
not a party with any other Person to any other agreement with respect to the
holding, voting, acquisition or disposition of shares of Capital Stock, other
than any of the following agreements to which such Stockholder is a party: the
Purchase Agreement, the Escrow Agreement dated as of June 14, 1999 among Crest,
the Company and certain other parties, the Merger Agreement, the DS Cable
Purchase Agreement, the Service Cable Purchase Agreement, the TeleCore Merger
Agreement, the Excalibur Merger Agreement, the convertible $5,000,000
promissory note of the Company issued to Crest, the warrants to purchase Common
Stock issued to Crest in connection with financing obtained by Crest or the
Company, any employment agreements, the Escrow Agreement dated as of September
7, 1999 among the Company, Telecrafter Acquisition Corp., Nassau Communications
Inc., ▇▇▇▇▇ A Nassau, ▇▇▇▇▇ Nassau and the escrow agent party thereto, the
options issued in connection with the 1999 Stock Incentive Plan of the Company
and in connection with employment agreements, the Stock and Warrant Purchase
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Agreement by and between the Company and GECC, the Stock Purchase Agreement by
and between the Company and PNC and the warrant to purchase common stock issued
to GECC dated as of September 7, 1999.
Section 6.02 Company Representations. The Company represents and
warrants that as of the Closing Date (i) it is not a party with any other
Person to any other agreement with respect to the holding, voting, acquisition
or disposition of shares of Capital Stock other than the Purchase Agreement and
the other agreements referenced in Section 6.01 hereof to which it is a party,
(ii) except pursuant hereto, it has not granted to any other Person any other
registration rights with respect to capital stock of the Company, and no holder
of any capital stock of the Company shall have as of the date hereof any right
to require registration of any capital stock of the Company under the
Securities Act or to include any security in any registration statement filed
by the Company under the Securities Act and (iii) the only holders of capital
stock of the Company are Crest and the other parties hereto.
Section 6.03 Company Covenants.
(a) Subsequent to the Qualified Public Offering, the Company
will comply with the reporting requirements of Sections 13 and 15(d) of the
Exchange Act applicable to it and shall use its best efforts to comply with all
other public information reporting requirements of the Commission (including
reporting requirements which serve as a condition to utilization of Rule 144
promulgated by the Commission under the Securities Act) applicable to it from
time to time in effect and relating to the availability of an exemption from
the Securities Act for the sale of any Registrable Securities. The Company will
also cooperate with each holder of any Registrable Securities in supplying such
information and documentation as may be necessary for such holder to complete
and file any information reporting forms presently or hereafter required by the
Commission as a condition to the availability of an exemption from the
Securities Act for the sale of any Registrable Securities.
(b) The Company covenants not to enter into transactions with
any Stockholder or an Affiliate of any Stockholder except on commercially
reasonable terms no more favorable to such Stockholder or Affiliate thereof
than would reasonably be expected to be offered to an independent third party;
provided, that the Company may enter into employment agreements with any
Stockholder and may purchase shares from any employee in connection with the
termination of employment, each as approved by the Board of Directors of the
Company and provided, further, that this covenant shall not apply with respect
to transactions contemplated by clauses (iii) and (vii) of Section 4.01(b)
hereof.
(c) Except as set forth herein, the Company covenants to each
Stockholder that it will not grant to any other party registration rights that
would be senior to those given to ▇▇▇▇▇▇▇, BancBoston, GECC and PNC in Sections
5.02 and 5.03 hereof; provided, that, this covenant shall not restrict the
Company from granting pari passu or subordinate registration rights in
connection with the acquisitions by the Company of the stock or assets or other
equity interests in other entities.
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Section 6.04 Financial Statements and Other Reports. After the
Closing Date, the Company agrees to send the following reports and notices to
each holder of Capital Stock: (a) within one (1) day after release, copies of
all press releases issued by the Company or any of its subsidiaries; (b)
promptly upon receipt thereof, copies of reports, if any, submitted to the
Company by independent accountants in connection with each annual or interim
audit of the books of the Company made by such accountants; (c) promptly upon
transmission thereof to the Board of Directors, copies of any material
information prepared in addition to that described in Section 6.04(a) or (h),
(d) an annual budget for the following year not later than 45 days prior to the
end of the current fiscal year; (e) upon obtaining knowledge of any defaults
under any material agreement, indenture, mortgage, lease or other instrument,
notification thereof; (f) such additional financial and other information as
any holder of 5% or more of the Capital Stock may from time to time reasonably
request, promptly after such request; (g) as soon as practicable but in any
event within 30 days of the end of each month for the first 24 months following
the Closing Date and thereafter as soon as practicable and in any event within
30 days of the end of such quarter, a letter from a principal financial officer
of the Company discussing the revenues and operations of the Company; and (h)
if the Company is not subject to the requirements of, or otherwise making
filings pursuant to Section 13 or 15(d) of the Exchange Act, the Company will
deliver to each holder of Capital Stock until such holder transfers, assigns or
sells all of its Capital Stock: (1) as soon as practicable and in any event
within 45 days of the end of each month and as soon as practicable and in any
event within 45 days after the end of each fiscal quarter, the following
information: consolidated statements of income, stockholders' equity and cash
flows of the Company and its consolidated subsidiaries for such fiscal period
and for the period from the beginning of the then current fiscal year to the
end of such fiscal period and a comparison of each such item to the then
current budget, and a consolidated balance sheet of the Company and its
consolidated subsidiaries as at the end of such fiscal period, setting forth in
each case in comparative form consolidated figures for the corresponding
periods in the preceding fiscal year, all in reasonable detail, prepared in
accordance with generally accepted accounting principles consistently followed
throughout the periods involved, certified as to fair presentation by the
principal financial officer of the Company and accompanied by a written
discussion of operations in summary form; and (2) as soon as practicable and in
any event within 90 days after the end of each fiscal year of the Company, the
following information: consolidated statements of income, stockholders' equity
and cash flows of the Company and its consolidated subsidiaries for such year,
and a consolidated balance sheet of the Company and its consolidated
subsidiaries as at the end of such year, setting forth in each case in
comparative form corresponding consolidated figures from the preceding fiscal
year and to the then current budget, prepared in accordance with generally
accepted accounting principles consistently followed throughout the periods
involved, and accompanied by an opinion of a firm among the five largest
independent public accountants of recognized national standing selected by the
Company, or another firm of independent public accountants of national standing
mutually agreeable to the Company and the holders of a majority of the shares
of Capital Stock, to the effect that the consolidated financial statements have
been prepared in accordance with generally accepted accounting principles
consistently applied (except for changes in application in which such
accountants concur and as are noted therein) and present fairly the financial
condition of the Company and its subsidiaries and,
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unless independent public accountants are not generally making statements
substantially to the following effect, that the examination of such accountants
in connection with such financial statements has been made in accordance with
generally accepted auditing standards and accordingly included such tests of
the accounting records and such other auditing procedures as were considered
necessary in the circumstances; and accompanied by a written discussion of
operations in summary form with respect to such fiscal year.
Each holder of Capital Stock is further authorized to request
information from and to have access to, the Company's independent public
accountants, and the Company will request such accountants to make available to
any such holder such information as such holder may reasonably request.
The Company agrees that if it shall become, and so long as it
shall be, subject to the requirements of, or so long as it is otherwise making
filings pursuant to, Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended, it will deliver to each holder of Capital Stock within 3 days
after filing with the Securities and Exchange Commission, a copy of its Annual
Report on form 10-K, its Quarterly Reports on Form 10-Q, any proxy statements
and any Current Reports on Form 8-K.
Section 6.05 Inspection of Property. So long as any holder shall hold
any Capital Stock, the Company will permit any Person designated in writing by
such holder to visit and inspect any of the properties of the Company and its
subsidiaries and to discuss the affairs, finances and accounts of the Company
and its subsidiaries, all upon reasonable notice, at such reasonable times
(subject to the bona fide schedule constraints of the relevant officers) and as
often as such holder may reasonably request.
Section 6.06 Corporate Existence, Licenses and Permits; Maintenance
of Properties. The Company will at all times use commercially reasonable
efforts to do or cause to be done all things necessary to maintain, preserve
and renew its existence as a corporation organized under the laws of a state of
the United States of America, preserve and keep in force and effect, and cause
each of its subsidiaries to apply for on a timely basis, all licenses and
permits necessary and material to the conduct of the business of the Company
and its consolidated subsidiaries, taken as a whole, and to maintain and keep,
and cause each of its subsidiaries to maintain and keep, its and their
respective properties in good repair, working order and condition (except for
normal wear and tear), and from time to time to make all needful and proper
repairs, renewals and replacements, including, without limitation, all trade
name and trademark registration renewals, in each case so that any business
material to the Company carried on in connection therewith may be properly and
advantageously conducted.
31
35
ARTICLE VII
MISCELLANEOUS
Section 7.01 Injunctive Relief. It is acknowledged that it will be
impossible to measure in money the damages that would be suffered if the
parties fail to comply with certain of the obligations imposed on them by this
Agreement, including, without limitation, those obligations set forth in
Article II, Article III and Article IV, and that in the event of any such
failure, an aggrieved Person will be irreparably damaged and will not have an
adequate remedy at law. Any such Person shall, therefore, be entitled to
injunctive relief and/or specific performance to enforce such obligations, and
if any action should be brought in equity to enforce any of such provisions of
this Agreement, none of the parties hereto shall raise the defense that there
is an adequate remedy at law.
Section 7.02 Further Assurances. Each party hereto shall do and
perform or cause to be done and performed all such further acts and things and
shall execute and deliver all such other agreements, certificates, instruments
and documents as any other party hereto reasonably may request in order to
carry out the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
Section 7.03 Governing Law. This Agreement shall be construed and
enforced in accordance with, and the rights of the parties shall be governed
by, the laws of the State of New Jersey.
Section 7.04 Entire Agreement; Amendment; Waiver. This Agreement (a)
together with the Agreements referenced in Section 6.01 hereof contains the
entire agreement among the parties hereto with respect to the subject matter
hereof, (b) may not be amended or supplemented except by an instrument or
counterparts thereof in writing signed by the Company, the Crest Group (so long
as it holds 5% of the shares of Capital Stock) and the Stockholders holding at
least 51% of the shares of Capital Stock and (c) may not be discharged except
by such written instrument or by performance; provided, that, any amendment
that shall materially adversely affect any Stockholders shall require the
consent of Stockholders holding 51% of the shares of Capital Stock of such
adversely affected Stockholders. Any such amendment so approved shall be
binding on all Stockholders.
Section 7.05 Binding Effect. This Agreement shall be binding on and
inure to the benefit of the parties hereto and, subject to the terms and
provisions hereof, their respective legal representatives, successors and
assigns.
Section 7.06 Invalidity of Provision. The invalidity or
unenforceability of any provision of this Agreement in any jurisdiction shall
not affect the validity or enforceability of the remainder of this Agreement in
that jurisdiction or the validity or enforceability of this Agreement,
including that provision, in any other jurisdiction.
32
36
Section 7.07 Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, all of which shall be deemed but
one and the same instrument and each of which shall be deemed an original, and
it shall not be necessary in making proof of this Agreement to produce or
account for more than one such counterpart.
Section 7.08 Notices. All notices and other communications provided
for or given or made hereunder shall be in writing (including delivery by
facsimile transmission) and, unless otherwise provided herein, shall be deemed
to have been given when received by the party to whom such notice is to be
given at its address set forth on Schedule 1 hereto, or such other address for
the party as shall be specified by notice given pursuant hereto.
Section 7.09 Headings. The descriptive headings of the several
paragraphs of this Agreement are inserted for convenience only and do not
constitute part of this Agreement.
Section 7.10 Corporate Development Activities. The Company hereby
agrees that it will reimburse the Crest Group for reasonable out-of-pocket
expenses incurred while performing corporate development activities of the
Company (which in no event shall include advisory, investment banking or other
similar service fees).
Section 7.11 Expiration of Rights. Notwithstanding any other
provision in this Agreement, the parties hereto agree that the rights and
obligations set forth in this Agreement, other than those contained in Article
V hereof and any provision necessary to effect the rights and obligations under
such Article V, shall expire and be of no further force and effect as of the
date on which the Company shall consummate a Qualified Public Offering.
Section 7.12 Termination. Upon a transfer or sale by any party hereto
of all of its shares of Capital Stock in accordance with the provisions of this
Agreement, such party shall no longer be bound by the provisions of this
Agreement (except for any breach, misrepresentation, liability or
indemnification obligation which arose or shall arise in connection with
actions or omissions by such party prior to the date of transfer of all of such
party's shares of Capital Stock) nor have any rights hereunder and shall no
longer be a party hereto. Any transferor acknowledges that it may be subject to
securities laws with respect to the prior holding of such Capital Stock.
33
37
IN WITNESS WHEREOF, this Agreement has been executed by or on
behalf of each of the parties hereto as of the date first above written.
VIASOURCE COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
STOCKHOLDERS:
CREST COMMUNICATIONS PARTNERS LP
By: Crest Partners II LLC, its general partner
By: WAT Capital LLC, its managing member
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Member
▇▇▇▇▇▇▇ NATIONAL LIFE INSURANCE
COMPANY
By: PPM America Inc., as attorney in fact, on
behalf of ▇▇▇▇▇▇▇ National Life Insurance
Company
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
34
38
OLD HICKORY FUND I, LLC
By: PPM America, Inc., its Manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
BANCBOSTON INVESTMENTS INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
35
39
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------------------
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., as custodian of ▇▇▇▇▇▇▇
▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Family Trust
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ Family Trust
By: /s/ Signature Indecipherable
------------------------------------------------
Signature Indecipherable
CEEJ LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Member
CREST/CRI LLC
By: Crest Partners II LLC, its sole member
By: WAT Capital LLC, its managing member
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Member
36
40
DTJ LLC
By: /s/ ▇▇▇▇▇▇ ▇'▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇'▇▇▇▇▇
Title: Member
RFM CRI LLC
By: /s/ Signature Indecipherable
------------------------------------------------
Name:
Title:
ROMAN ARCH FUND L.P.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Vice President
ROMAN ARCH FUND II L.P.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Vice President
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇'▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇ ▇'▇▇▇▇▇
37
41
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. Nassau
---------------------------------------------------
▇▇▇▇▇ ▇. Nassau
/s/ ▇▇▇▇▇ Nassau
---------------------------------------------------
▇▇▇▇▇ Nassau
NASSAU COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇ ▇. Nassau
------------------------------------------------
Name: ▇▇▇▇▇ ▇. Nassau
Title: President
PNC CAPITAL CORP.
By: /s/ ▇▇▇▇▇ McL. ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇ McL. ▇▇▇▇▇▇▇
Title: Executive Vice President
WOOD STREET PARTNERS, II
By: /s/ ▇▇▇▇▇ McL. ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇ McL. ▇▇▇▇▇▇▇
Title: General Partner
38
42
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
39
43
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
Palomar Ventures I, L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------------
Crest Communications Partners, L.P.
By: /s/ V. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------------------
Name: V. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
Title: Managing Director
------------------------------------------
40
44
BV-P Holding I, L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------------
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
41
45
/s/ ▇. ▇. ▇▇▇▇
---------------------------------------------------
Konrad ▇▇▇▇ ▇▇▇▇
The ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ 2000 Trust
By: ▇▇▇▇▇ ▇▇▇ ▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇ ▇▇▇▇
-------------------------------------------
Title: Trustee
------------------------------------------
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------------------------------
▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. Field
---------------------------------------------------
▇▇▇▇▇▇▇ ▇. Field
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
42
46
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇▇
---------------------------------------------------
▇▇▇ ▇▇▇▇▇
/s/ Duff ▇. ▇▇▇▇▇▇▇
---------------------------------------------------
Duff ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
43
47
Schedule 1
Address for Notice
ViaSource Communications, Inc.
c/o Communication Resources Incorporated
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
STOCKHOLDERS:
Crest Communications Partners L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ National Life Insurance Company
c/o PPM America, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ National Life Insurance Company
c/o PPM America, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
44
48
Old Hickory Fund I, LLC
c/o PPM America, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇/▇▇▇ ▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
BancBoston Investments, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
45
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▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Family Trust
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Family Trust
▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
CEEJ LLC
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▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Creek Road
Suite 200
Ft. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Crest/CRI LLC
c/o Crest Management Holdings, LLC
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DTJ LLC
c/o Communication Resources Incorporated
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RFM CRI LLC
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Roman Arch Fund L.P.
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Roman Arch Fund II L.P.
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Pinnacle Cable Services, Inc.
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Pinnacle Cable Services, Inc.
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▇▇▇▇▇ ▇. Nassau
c/o Telecrafter Services Corporation
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▇▇▇▇▇ Nassau
c/o Telecrafter Services Corporation
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Telecrafter Services Corporation
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PNC Capital Corp.
c/o PNC Equity Management Corp.
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Wood Street Partners, II
c/o PNC Equity Management Corp.
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General Electric Capital Corporation
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Attn: Account Manager - ViaSource
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Palomar Ventures I, L.P.
c/o TeleCore, Inc.
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BV-P Holding I, L.L.C.
c/o TeleCore, Inc.
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Konrad ▇▇▇▇ ▇▇▇▇
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The ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Trust
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▇▇▇▇▇▇▇▇ ▇. Field
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▇▇▇▇▇▇▇ ▇. Kirtbey
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