REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made
and entered into as of April 5, 2007, by and among CISTERA NETWORKS INC., a
Nevada corporation (the "Company"), and the purchasers listed on Schedule I
hereto (the "Purchasers").
This Agreement is being entered into pursuant to the Note
Purchase Agreement dated as of the date hereof among the Company and the
Purchasers (the "Purchase Agreement").
The Company and the Purchasers hereby agree as follows:
1. Definitions.
Capitalized terms used and not otherwise defined herein shall
have the meanings given such terms in the Purchase Agreement. As used in this
Agreement, the following terms shall have the following meanings:
"Advice" shall have meaning set forth in Section 3(l).
"Affiliate" means, with respect to any Person, any other
Person that directly or indirectly controls or is controlled by or under common
control with such Person. For the purposes of this definition, "control," when
used with respect to any Person, means the possession, direct or indirect, of
the power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities, by contract or
otherwise; and the terms of "affiliated," "controlling" and "controlled" have
meanings correlative to the foregoing.
"Board" shall have meaning set forth in Section 3(m).
"Business Day" means any day except Saturday, Sunday and any
day which shall be a legal holiday or a day on which banking institutions in the
state of New York generally are authorized or required by law or other
government actions to close.
"Closing Date" means the date of the last closing of the
purchase and sale of the Notes and Warrants pursuant to the Purchase Agreement.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the Company's Common Stock, par value
$.001 per share.
"Effectiveness Date" means with respect to the Registration
Statement the earlier of the date which is within five (5) days of the date on
which the Commission informs the Company that the Commission (i) will not review
the Registration Statement or (ii) that the Company may request the acceleration
of the effectiveness of the Registration Statement and the Company makes such
request.
"Effectiveness Period" shall have the meaning set forth in
Section 2.
"Event" shall have the meaning set forth in Section 7(d).
"Event Date" shall have the meaning set forth in Section 7(d).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Filing Date" means the earlier of (a) one hundred and
eightieth (180th) day following the Closing Date, and (b) March 31, 2007.
"Holder" or "Holders" means the holder or holders, as the case
may be, from time to time of Registrable Securities.
"Indemnified Party" shall have the meaning set forth in
Section 5(c).
"Indemnifying Party" shall have the meaning set forth in
Section 5(c).
"Losses" shall have the meaning set forth in Section 5(a).
"Note" means the Senior Unsecured Convertible Promissory Notes
issued pursuant to the Agreement.
"Person" means an individual or a corporation, partnership,
trust, incorporated or unincorporated association, joint venture, limited
liability company, joint stock company, government (or an agency or political
subdivision thereof) or other entity of any kind.
"Proceeding" means an action, claim, suit, investigation or
proceeding (including, without limitation, an investigation or partial
proceeding, such as a deposition), whether commenced or threatened.
"Prospectus" means the prospectus included in the Registration
Statement (including, without limitation, a prospectus that includes any
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by the Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference in such Prospectus.
"Registrable Securities means the shares of Common Stock
issuable upon conversion of the Notes and the shares of Common Stock issuable
upon exercise of the Warrants.
"Registration Statement" means the registration statements and
any additional registration statements contemplated by Section 2, including (in
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each case) the Prospectus, amendments and supplements to such registration
statement or Prospectus, including pre- and post-effective amendments, all
exhibits thereto, and all material incorporated by reference in such
registration statement.
"Rule 144" means Rule 144 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"Rule 158" means Rule 158 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"Rule 415" means Rule 415 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"Securities Act" means the Securities Act of 1933, as amended.
2. Resale Registration.
On or prior to the Filing Date the Company shall prepare and
file with the Commission a "resale" Registration Statement covering all
Registrable Securities for an offering to be made on a continuous basis pursuant
to Rule 415. The Registration Statement shall be on Form SB-2 or other
appropriate form in accordance herewith). The Company shall (i) not permit any
securities other than the Registrable Securities and the securities listed on
Schedule II hereto to be included in the Registration Statement and (ii) use its
best efforts to cause the Registration Statement to be declared effective under
the Securities Act as promptly as possible after the filing thereof, but in any
event prior to the Effectiveness Date, and to keep such Registration Statement
continuously effective under the Securities Act until such date as is the
earlier of (x) the date when all Registrable Securities covered by such
Registration Statement have been sold or (y) the date on which the Registrable
Securities may be sold without any restriction pursuant to Rule 144 as
determined by the counsel to the Company pursuant to a written opinion letter,
addressed to the Company's transfer agent to such effect (the "Effectiveness
Period"). If at any time and for any reason, an additional Registration
Statement is required to be filed because at such time the actual number of
shares of Common Stock into which the Notes are convertible and the Warrants are
exercisable exceeds the number of shares of Registrable Securities remaining
under the Registration Statement, the Company shall have twenty (20) Business
Days to file such additional Registration Statement, and the Company shall use
its best efforts to cause such additional Registration Statement to be declared
effective by the Commission as soon as possible, but in no event later than
sixty (60) days after filing.
3. Registration Procedures.
In connection with the Company's registration obligations
hereunder, the Company shall:
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(a) Prepare and file with the Commission, on or prior to the
Filing Date, a Registration Statement on Form SB-2 (or other appropriate form in
accordance herewith) in accordance with the method or methods of distribution
thereof as specified by the Holders (except if otherwise directed by the
Holders) and in accordance with applicable law, and cause the Registration
Statement to become effective and remain effective as provided herein; provided,
however, that not less than three (3) Business Days prior to the filing of the
Registration Statement or any related Prospectus or any amendment or supplement
thereto, the Company shall (i) furnish to the Holders, copies of all such
documents proposed to be filed, which documents will be subject to the review of
such Holders, and (ii) cause its officers and directors, counsel and independent
certified public accountants to respond to such inquiries as shall be necessary,
to conduct a reasonable review of such documents. The Company shall not file the
Registration Statement or any such Prospectus or any amendments or supplements
thereto to which the Holders of a majority of the Registrable Securities shall
reasonably object in writing within three (3) Business Days of their receipt
thereof.
(b) (i) Prepare and file with the Commission such amendments,
including post-effective amendments, to the Registration Statement as may be
necessary to keep the Registration Statement continuously effective as to the
applicable Registrable Securities for the Effectiveness Period and prepare and
file with the Commission such additional Registration Statements in order to
register for resale under the Securities Act all of the Registrable Securities;
(ii) cause the related Prospectus to be amended or supplemented by any required
Prospectus supplement, and as so supplemented or amended to be filed pursuant to
Rule 424 (or any similar provisions then in force) promulgated under the
Securities Act; (iii) respond as promptly as possible, but in no event later
than ten (10) Business Days, to any comments received from the Commission with
respect to the Registration Statement or any amendment thereto and as promptly
as possible provide the Holders true and complete copies of all correspondence
from and to the Commission relating to the Registration Statement; and (iv)
comply in all material respects with the provisions of the Securities Act and
the Exchange Act with respect to the disposition of all Registrable Securities
covered by the Registration Statement during the Effectiveness Period in
accordance with the intended methods of disposition by the Holders thereof set
forth in the Registration Statement as so amended or in such Prospectus as so
supplemented.
(c) Notify the Holders of Registrable Securities as promptly
as possible (and, in the case of (i)(A) below, not less than three (3) days
prior to such filing) and (if requested by any such Person) confirm such notice
in writing no later than two (2) Business Days following the day (i)(A) when a
Prospectus or any Prospectus supplement or post-effective amendment to the
Registration Statement is filed; (B) when the Commission notifies the Company
whether there will be a "review" of such Registration Statement and whenever the
Commission comments in writing on such Registration Statement and (C) with
respect to the Registration Statement or any post-effective amendment, when the
same has become effective; (ii) of any request by the Commission or any other
Federal or state governmental authority for amendments or supplements to the
Registration Statement or Prospectus or for additional information; (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement covering any or all of the Registrable Securities or the
initiation or threatening of any Proceedings for that purpose; (iv) if at any
time any of the representations and warranties of the Company contained in any
agreement contemplated hereby ceases to be true and correct in all material
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respects; (v) of the receipt by the Company of any notification with respect to
the suspension of the qualification or exemption from qualification of any of
the Registrable Securities for sale in any jurisdiction, or the initiation of
any Proceeding for such purpose; and (vi) of the occurrence of any event that
makes any statement made in the Registration Statement or Prospectus or any
document incorporated or deemed to be incorporated therein by reference untrue
in any material respect or that requires any revisions to the Registration
Statement, Prospectus or other documents so that, in the case of the
Registration Statement or the Prospectus, as the case may be, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading.
(d) Use its best efforts to avoid the issuance of, or, if
issued, obtain the withdrawal of, as promptly as possible, (i) any order
suspending the effectiveness of the Registration Statement or (ii) any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction.
(e) If requested by the Holders of a majority in interest of
the Registrable Securities, (i) promptly incorporate in a Prospectus supplement
or post-effective amendment to the Registration Statement such information as
the Company reasonably agrees should be included therein and (ii) make all
required filings of such Prospectus supplement or such post-effective amendment
as soon as practicable after the Company has received notification of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment.
(f) If requested by any Holder, furnish to such Holder, without charge, at least
one conformed copy of each Registration Statement and each amendment thereto,
including financial statements and schedules, all documents incorporated or
deemed to be incorporated therein by reference, and all exhibits to the extent
requested by such Person (including those previously furnished or incorporated
by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder, without charge, as many copies of the
Prospectus or Prospectuses (including each form of prospectus) and each
amendment or supplement thereto as such Persons may reasonably request; and
subject to the provisions of Sections 3(l) and 3(m), the Company hereby consents
to the use of such Prospectus and each amendment or supplement thereto by each
of the selling Holders in connection with the offering and sale of the
Registrable Securities covered by such Prospectus and any amendment or
supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts
to register or qualify or cooperate with the selling Holders in connection with
the registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
any Holder requests in writing, to keep each such registration or qualification
(or exemption therefrom) effective during the Effectiveness Period and to do any
and all other acts or things necessary or advisable to enable the disposition in
such jurisdictions of the Registrable Securities covered by a Registration
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Statement; provided, however, that the Company shall not be required to qualify
generally to do business in any jurisdiction where it is not then so qualified
or to take any action that would subject it to general service of process in any
such jurisdiction where it is not then so subject or subject the Company to any
material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold pursuant to a Registration Statement, which certificates, to the extent
permitted by the Purchase Agreement and applicable federal and state securities
laws, shall be free of all restrictive legends, and to enable such Registrable
Securities to be in such denominations and registered in such names as any
Holder may request in connection with any sale of Registrable Securities.
(j) Upon the occurrence of any event contemplated by Section
3(c)(vi), as promptly as possible, prepare a supplement or amendment, including
a post-effective amendment, to the Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference, and file any other required document so that, as
thereafter delivered, neither the Registration Statement nor such Prospectus
will contain 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,
in the light of the circumstances under which they were made, not misleading.
(k) Comply in all material respects with all applicable rules
and regulations of the Commission and make generally available to its security
holders all documents filed or required to be filed with the Commission.
(l) The Company may require each selling Holder to furnish to
the Company information regarding such Holder and the distribution of such
Registrable Securities as is required by law to be disclosed in the Registration
Statement, Prospectus, or any amendment or supplement thereto, and the Company
may exclude from such registration the Registrable Securities of any such Holder
who unreasonably fails to furnish such information within a reasonable time
after receiving such request.
Each Holder covenants and agrees that (i) it will not sell any
Registrable Securities under the Registration Statement until it has received
copies of the Prospectus as then amended or supplemented as contemplated in
Section 3(g) and notice from the Company that such Registration Statement and
any post-effective amendments thereto have become effective as contemplated by
Section 3(c) and (ii) it and its officers, directors or Affiliates, if any, will
comply with the prospectus delivery requirements of the Securities Act as
applicable to them in connection with sales of Registrable Securities pursuant
to the Registration Statement.
Each Holder agrees by its acquisition of such Registrable
Securities that, upon receipt of a notice from the Company of the occurrence of
any event of the kind described in Section 3(c)(ii), 3(c)(iii), 3(c)(iv),
3(c)(v), 3(c)(vi) or 3(m), such Holder will forthwith discontinue disposition of
such Registrable Securities under the Registration Statement until such Holder's
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receipt of the copies of the supplemented Prospectus and/or amended Registration
Statement contemplated by Section 3(j), or until it is advised in writing (the
"Advice") by the Company that the use of the applicable Prospectus may be
resumed, and, in either case, has received copies of any additional or
supplemental filings that are incorporated or deemed to be incorporated by
reference in such Prospectus or Registration Statement.
(m) If (i) there is material non-public information regarding
the Company which the Company's Board of Directors (the "Board") reasonably
determines not to be in the Company's best interest to disclose and which the
Company is not otherwise required to disclose, or (ii) there is a significant
business opportunity (including, but not limited to, the acquisition or
disposition of assets (other than in the ordinary course of business) or any
merger, consolidation, tender offer or other similar transaction) available to
the Company which the Board reasonably determines not to be in the Company's
best interest to disclose, then the Company may postpone or suspend filing or
effectiveness of a registration statement for a period not to exceed 20
consecutive days, provided that the Company may not postpone or suspend its
obligation under this Section 3(m) for more than 45 days in the aggregate during
any 12 month period; provided, however, that no such postponement or suspension
shall be permitted for consecutive 20 day periods, arising out of the same set
of facts, circumstances or transactions.
4. Registration Expenses.
All fees and expenses incident to the performance of or
compliance with this Agreement by the Company, except as and to the extent
specified in Section 4, shall be borne by the Company whether or not the
Registration Statement is filed or becomes effective and whether or not any
Registrable Securities are sold pursuant to the Registration Statement. The fees
and expenses referred to in the foregoing sentence shall include, without
limitation, (i) all registration and filing fees (including, without limitation,
fees and expenses (A) with respect to filings required to be made with each
securities exchange or market on which Registrable Securities are required
hereunder to be listed, (B) with respect to filing fees required to be paid by
the Company to the National Association of Securities Dealers, Inc. and the NASD
Regulation, Inc. and (C) in compliance with state securities or Blue Sky laws
(including, without limitation, fees and disbursements of counsel for the
Holders in connection with Blue Sky qualifications of the Registrable Securities
and determination of the eligibility of the Registrable Securities for
investment under the laws of such jurisdictions as the Holders of a majority of
Registrable Securities may designate)), (ii) printing expenses (including,
without limitation, expenses of printing certificates for Registrable Securities
and of printing prospectuses if the printing of prospectuses is requested by the
holders of a majority of the Registrable Securities included in the Registration
Statement), (iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Company, (v) Securities Act liability
insurance, if the Company so desires such insurance, and (vi) fees and expenses
of all other Persons retained by the Company in connection with the consummation
of the transactions contemplated by this Agreement, including, without
limitation, the Company's independent public accountants (including the expenses
of any comfort letters or costs associated with the delivery by independent
public accountants of a comfort letter or comfort letters). In addition, the
Company shall be responsible for all of its internal expenses incurred in
connection with the consummation of the transactions contemplated by this
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Agreement (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit, the fees and expenses incurred in connection with the listing
of the Registrable Securities on any securities exchange as required hereunder.
5. Indemnification.
(a) Indemnification by the Company. The Company shall,
notwithstanding any termination of this Agreement, indemnify and hold harmless
each Holder, the officers, directors, agents, brokers (including brokers who
offer and sell Registrable Securities as principal as a result of a pledge or
any failure to perform under a margin call of Common Stock), investment advisors
and employees of each of them, each Person who controls any such Holder (within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) and the officers, directors, agents and employees of each such controlling
Person, to the fullest extent permitted by applicable law, from and against any
and all losses, claims, damages, liabilities, costs (including, without
limitation, costs of preparation and attorneys' fees) and expenses
(collectively, "Losses"), as incurred, arising out of or based upon any untrue
or alleged untrue statement of a material fact contained in the Registration
Statement, any Prospectus or any form of prospectus or in any amendment or
supplement thereto or in any preliminary prospectus, or arising out of or based
upon any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein (in the case of any
Prospectus or form of prospectus or supplement thereto), in the light of the
circumstances under which they were made, not misleading, except to the extent,
but only to the extent, that such untrue statements or omissions arise out of or
are based upon information regarding the Holders or such other Indemnified Party
furnished in writing to the Company by a Holder expressly for use therein, which
information was reasonably relied on by the Company for use therein or to the
extent that such information relates to a Holder or such Holder's proposed
method of distribution of Registrable Securities and was reviewed and expressly
approved in writing by a Holder expressly for use in the Registration Statement,
such Prospectus or such form of Prospectus or in any amendment or supplement
thereto. The Company shall notify the Holders promptly of the institution,
threat or assertion of any Proceeding of which the Company is aware in
connection with the transactions contemplated by this Agreement.
(b) Indemnification by Holders. Each Holder shall, severally
and not jointly, indemnify and hold harmless the Company, its directors,
officers, agents and employees, each Person who controls the Company (within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act),
and the directors, officers, agents or employees of such controlling Persons, to
the fullest extent permitted by applicable law, from and against all Losses, as
incurred, arising out of or based upon any untrue or alleged untrue statement of
a material fact contained in the Registration Statement, any Prospectus, or any
form of prospectus, or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or based upon any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein (in the case of any Prospectus or form of prospectus or
supplement thereto), in the light of the circumstances under which they were
made, not misleading, to the extent, but only to the extent, that such untrue
statement or omission is contained in any information so furnished in writing by
such Holder or other Indemnified Party to the Company expressly for use therein
and that such information was reasonably relied upon by the Company for use
therein, or to the extent that such information relates to such Holder or such
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Holder's proposed method of distribution of Registrable Securities and was
reviewed and expressly approved in writing by such Holder expressly for use in
the Registration Statement, such Prospectus or such form of Prospectus or any
amendment or supplement thereto. Notwithstanding anything to the contrary
contained herein, the Holders shall be liable under this Section 5(b) for only
that amount as does not exceed the net proceeds to such Holder as a result of
the sale of Registrable Securities pursuant to such Registration Statement.
(c) Conduct of Indemnification Proceedings. If any Proceeding
shall be brought or asserted against any Person entitled to indemnity hereunder
(an "Indemnified Party"), such Indemnified Party promptly shall notify the
Person from whom indemnity is sought (the "Indemnifying Party) in writing, and
the Indemnifying Party shall be entitled to assume the defense thereof,
including the employment of counsel reasonably satisfactory to the Indemnified
Party and the payment of all fees and expenses incurred in connection with
defense thereof; provided, that the failure of any Indemnified Party to give
such notice shall not relieve the Indemnifying Party of its obligations or
liabilities pursuant to this Agreement, except (and only) to the extent that it
shall be finally determined by a court of competent jurisdiction (which
determination is not subject to appeal or further review) that such failure
shall have proximately and materially adversely prejudiced the Indemnifying
Party.
An Indemnified Party shall have the right to employ separate
counsel in any such Proceeding and to participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such
Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in
writing to pay such fees and expenses; or (2) the Indemnifying Party shall have
failed promptly to assume the defense of such Proceeding and to employ counsel
reasonably satisfactory to such Indemnified Party in any such Proceeding; or (3)
the named parties to any such Proceeding (including any impleaded parties)
include both such Indemnified Party and the Indemnifying Party, and such parties
shall have been advised by counsel that a conflict of interest is likely to
exist if the same counsel were to represent such Indemnified Party and the
Indemnifying Party (in which case, if such Indemnified Party notifies the
Indemnifying Party in writing that it elects to employ separate counsel at the
expense of the Indemnifying Party, the Indemnifying Party shall not have the
right to assume the defense thereof and such counsel shall be at the expense of
the Indemnifying Party). The Indemnifying Party shall not be liable for any
settlement of any such Proceeding effected without its written consent, which
consent shall not be unreasonably withheld or delayed. No Indemnifying Party
shall, without the prior written consent of the Indemnified Party, effect any
settlement of any pending or threatened Proceeding in respect of which any
Indemnified Party is a party and indemnity has been sought hereunder, unless
such settlement includes an unconditional release of such Indemnified Party from
all liability on claims that are the subject matter of such Proceeding.
All fees and expenses of the Indemnified Party (including
reasonable fees and expenses to the extent incurred in connection with
investigating or preparing to defend such Proceeding in a manner not
inconsistent with this Section) shall be paid to the Indemnified Party, as
incurred, within ten (10) Business Days of written notice thereof to the
Indemnifying Party (regardless of whether it is ultimately determined that an
Indemnified Party is not entitled to indemnification hereunder; provided, that
the Indemnified Party shall reimburse all such fees and expenses to the extent
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it is finally judicially determined that such Indemnified Party is not entitled
to indemnification hereunder).
(d) Contribution. If a claim for indemnification under Section
5(a) or 5(b) is due but unavailable to an Indemnified Party because of a failure
or refusal of a governmental authority to enforce such indemnification in
accordance with its terms (by reason of public policy or otherwise), then each
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such Losses, in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party and Indemnified Party in connection with the
actions, statements or omissions that resulted in such Losses as well as any
other relevant equitable considerations. The relative fault of such Indemnifying
Party and Indemnified Party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission of a material fact,
has been taken or made by, or relates to information supplied by, such
Indemnifying, Party or Indemnified Party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a result
of any Losses shall be deemed to include, subject to the limitations set forth
in Section 5(c), any reasonable attorneys' or other reasonable fees or expenses
incurred by such party in connection with any Proceeding to the extent such
party would have been indemnified for such fees or expenses if the
indemnification provided for in this Section was available to such party in
accordance with its terms.
The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Section 5(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
No Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this
Section are in addition to any liability that the Indemnifying Parties may have
to the Indemnified Parties pursuant to the law.
6. Rule 144.
As long as any Holder owns the Notes Warrants or any Registrable
Shares, the Company covenants to timely file (or obtain extensions in respect
thereof and file within the applicable grace period) all reports required to be
filed by the Company after the date hereof pursuant to Section 13(a) or 15(d) of
the Exchange Act. As long as any Holder owns Notes, Warrants or Regstrable
Shares, if the Company is not required to file reports pursuant to Section 13(a)
or 15(d) of the Exchange Act, it will prepare and furnish to the Holders and
make publicly available in accordance with Rule 144(c) promulgated under the
Securities Act annual and quarterly financial statements, together with a
discussion and analysis of such financial statements in form and substance
substantially similar to those that would otherwise be required to be included
in reports required by Section 13(a) or 15(d) of the Exchange Act, as well as
any other information required thereby, in the time period that such filings
would have been required to have been made under the Exchange Act. The Company
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further covenants that it will take such further action as any Holder may
reasonably request, all to the extent required from time to time to enable such
Person to sell the Registrable Shares without registration under the Securities
Act within the limitation of the exemptions provided by Rule 144 promulgated
under the Securities Act, including providing any legal opinions relating to
such sale pursuant to Rule 144. Upon the request of any Holder, the Company
shall deliver to such Holder a written certification of a duly authorized
officer as to whether it has complied with such requirements.
7. Miscellaneous.
(a) Remedies. In the event of a breach by the Company or by a
Holder, of any of their obligations under this Agreement, such Holder or the
Company, as the case may be, in addition to being entitled to exercise all
rights granted by law and under this Agreement, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement. The
Company and each Holder agree that monetary damages would not provide adequate
compensation for any losses incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agrees that, in the event of any
action for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Neither the Company nor any of
its subsidiaries has, as of the date hereof entered into and currently in
effect, nor shall the Company or any of its subsidiaries, on or after the date
of this Agreement, enter into any agreement with respect to its securities that
is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. Except as disclosed in Schedule
2.1(c) of the Purchase Agreement, neither the Company nor any of its
subsidiaries has previously entered into any agreement currently in effect
granting any registration rights with respect to any of its securities to any
Person. Without limiting the generality of the foregoing, without the written
consent of the Holders of a majority of the then outstanding Registrable
Securities, the Company shall not grant to any Person the right to request the
Company to register any securities of the Company under the Securities Act
unless the rights so granted are subject in all respects to the prior rights in
full of the Holders set forth herein, and are not otherwise in conflict with the
provisions of this Agreement.
(c) No Piggyback on Registrations. Neither the Company nor any
of its security holders (other than the Holders in such capacity pursuant hereto
or as disclosed in Schedule 2.1(c) of the Purchase Agreement or Schedule II
hereto) may include securities of the Company in the Registration Statement, and
the Company shall not after the date hereof enter into any agreement providing
such right to any of its securityholders, unless the right so granted is subject
in all respects to the prior rights in full of the Holders set forth herein, and
is not otherwise in conflict with the provisions of this Agreement.
(d) Failure to File Registration Statement and Other Events.
The Company and the Purchasers agree that the Holders will suffer damages if the
Registration Statement is not filed on or prior to the Filing Date and not
declared effective by the Commission on or prior to the Effectiveness Date and
maintained in the manner contemplated herein during the Effectiveness Period or
11
if certain other events occur. The Company and the Holders further agree that it
would not be feasible to ascertain the extent of such damages with precision.
Accordingly, if, except as set forth in Section 3(m), (i) the Registration
Statement is not filed on or prior to the Filing Date, or (ii) the Registration
Statement is not declared effective by the Commission on or prior to the
Effectiveness Date (or in the event an additional Registration Statement is
filed because the actual number of shares of Common Stock into which the Note is
convertible and the Warrants are exercisable exceeds the number of shares of
Common Stock initially registered is not filed and declared effective with the
time periods set forth in Section 2), or (iii) the Company fails to file with
the Commission a request for acceleration in accordance with Rule 461
promulgated under the Securities Act within five (5) days of the date that the
Company is notified (orally or in writing, whichever is earlier) by the
Commission that a Registration Statement will not be "reviewed," or is not
subject to further review, or (iv) the Registration Statement is filed with and
declared effective by the Commission but thereafter ceases to be effective as to
all Registrable Securities at any time prior to the expiration of the
Effectiveness Period, without being succeeded immediately by a subsequent
Registration Statement filed with and declared effective by the Commission in
accordance with Section 2 hereof or (v) the Company has breached Section 3(m)
(any such failure or breach being referred to as an "Event," and for purposes of
clauses (i) and (ii) the date on which such Event occurs, or for purposes of
clause (iii) the date on which such five Business Day period is exceeded, or for
purposes of clause (iv) after more than twenty Business Days, or for purposes of
clause (v) the date on which such three Business Day period is exceeded, being
referred to as "Event Date"), the Company shall pay an amount as liquidated
damages to each Holder equal to 1.0% per calendar month (prorated for shorter
periods) of the outstanding principal and accrued interest on the Note held by
such Holder, from the Event Date (provided that, with respect to the Event
described in clause (ii), the first calendar month shall be deemed to commence
on the 30th day prior to the applicable Event Date), less any amount that has
been converted and sold by such Holder, until the applicable Event is cured.
Notwithstanding anything to the contrary in this paragraph (e), if (I) any of
the Events described in clauses (i), (ii or (iii) shall have occurred, (II) on
or prior to the applicable Event Date, the Company shall have exercised its
rights under Section 3(m) hereof and (III) the postponement or suspension
permitted pursuant to such Section 3(m) shall remain effective as of such
applicable Event Date, then the applicable Event Date shall be deemed instead to
occur on the second Business Day following the termination of such postponement
or suspension.
(f) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the same shall be in writing and signed by the Company
and the Holders of seventy-five percent (75%) of the Registrable Securities
outstanding.
(g) Notices. Any and all notices or other communications or
deliveries required or permitted to be provided hereunder shall be in writing
and shall be deemed given and effective on the earlier of (i) the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile telephone number specified for notice prior to 5:00 p.m., Dallas time,
on a Business Day, (ii) the Business Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile telephone
number specified for notice later than 5:00 p.m., Dallas time, on any date and
12
earlier than 11:59 p.m., Dallas time, on such date, (iii) the Business Day
following the date of mailing, if sent by overnight delivery by nationally
recognized overnight courier service or (iv) actual receipt by the party to whom
such notice is required to be given. The addresses for such communications shall
be with respect to each Holder at its address set forth under its name on
Schedule I attached hereto, or with respect to the Company, addressed to:
CISTERA NETWORKS INC.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address or addresses or facsimile number or numbers as any such
party may most recently have designated in writing to the other parties hereto
by such notice. Copies of notices to the Company shall be sent to Colbert &
▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Telephone No: (972) 724-3338 ext. 203, Facsimile No: (972)
724-1922.
(h) Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties and their successors and permitted
assigns and shall inure to the benefit of each Holder and its successors and
assigns. The Company may not assign this Agreement or any of its rights or
obligations hereunder without the prior written consent of each Holder. Each
Purchaser may assign its rights hereunder in the manner and to the Persons as
permitted under the Purchase Agreement.
(i) Assignment of Registration Rights. The rights of each
Holder hereunder, including the right to have the Company register for resale
Registrable Securities in accordance with the terms of this Agreement, shall be
automatically assignable by each Holder to any Affiliate of such Holder or any
other Holder or Affiliate of any other Holder of all or a portion of the Notes
or the Registrable Securities if: (1) the Holder agrees in writing with the
transferee or assignee to assign such rights, and a copy of such agreement is
furnished to the Company within a reasonable time after such assignment, (2) the
Company is, within a reasonable time after such transfer or assignment,
furnished with written notice of (a) the name and address of such transferee or
assignee, and (b) the securities with respect to which such registration rights
are being transferred or assigned, (3) following such transfer or assignment the
further disposition of such securities by the transferee or assignees is
restricted under the Securities Act and applicable state securities laws, (4) at
or before the time the Company receives the written notice contemplated by
clause (2) of this Section, the transferee or assignee agrees in writing with
the Company to be bound by all of the provisions of this Agreement, and (5) such
transfer shall have been made in accordance with the applicable requirements of
the Purchase Agreement. In addition, each Holder shall have the right to assign
its rights hereunder to any other Person with the prior written consent of the
Company, which consent shall not be unreasonably withheld. The rights to
assignment shall apply to the Holders (and to subsequent) successors and
assigns.
13
(j) Counterparts. This Agreement may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an
original and, all of which taken together shall constitute one and the same
Agreement. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid binding obligation of the
party executing (or on whose behalf such signature is executed) the same with
the same force and effect as if such facsimile signature were the original
thereof.
(k) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Texas, without
giving effect to any of the conflicts of law principles which would result in
the application of the substantive law of another jurisdiction. This Agreement
shall not be interpreted or construed with any presumption against the party
causing this Agreement to be drafted.
(l) Cumulative Remedies. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law.
(m) Severability. If any term, provision, covenant or
restriction of this Agreement is held to be invalid, illegal, void or
unenforceable in any respect, the remainder of the terms, provisions, covenants
and restrictions set forth herein shall remain in full force and effect and
shall in no way be affected, impaired or invalidated, and the parties hereto
shall use their reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(n) Headings. The headings herein are for convenience only, do
not constitute a part of this Agreement and shall not be deemed to limit or
affect any of the provisions hereof.
(o) Shares Held by the Company and its Affiliates. Whenever
the consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Company or
its Affiliates (other than any Holder or transferees or successors or assigns
thereof if such Holder is deemed to be an Affiliate solely by reason of its
holdings of such Registrable Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
(p) Independent Nature of Purchasers. The Company acknowledges
that the obligations of each Purchaser under the Loan Documents are several and
not joint with the obligations of any other Purchaser, and no Purchaser shall be
responsible in any way for the performance of the obligations of any other
Purchaser under the Loan Documents. The Company acknowledges that the decision
of each Purchaser to purchase securities pursuant to the Purchase Agreement has
been made by such Purchaser independently of any other purchase and
independently of any information, materials, statements or opinions as to the
business, affairs, operations, assets, properties, liabilities, results of
operations, condition (financial or otherwise) or prospects of the Company or of
its Subsidiaries which may have made or given by any other Purchaser or by any
agent or employee of any other Purchaser, and no Purchaser or any of its agents
14
or employees shall have any liability to any Purchaser (or any other person)
relating to or arising from any such information, materials, statements or
opinions. The Company acknowledges that nothing contained herein, or in any
Transaction Document, and no action taken by any Purchaser pursuant hereto or
thereto (including, but not limited to, the (i) inclusion of a Purchaser in the
Registration Statement and (ii) review by, and consent to, such Registration
Statement by a Purchaser) shall be deemed to constitute the Purchasers as a
partnership, an association, a joint venture or any other kind of entity, or
create a presumption that the Purchasers are in any way acting in concert or as
a group with respect to such obligations or the transactions contemplated by the
Loan Documents. The Company acknowledges that each Purchaser shall be entitled
to independently protect and enforce its rights, including without limitation,
the rights arising out of this Agreement or out of the other Loan Documents, and
it shall not be necessary for any other Purchaser to be joined as an additional
party in any proceeding for such purpose. The Company acknowledges that for
reasons of administrative convenience only, the Loan Documents have been
prepared by counsel for one of the Purchasers and such counsel does not
represent all of the Purchasers but only such Purchaser and the other Purchasers
have retained their own individual counsel with respect to the transactions
contemplated hereby. The Company acknowledges that it has elected to provide all
Purchasers with the same terms and Loan Documents for the convenience of the
Company and not because it was required or requested to do so by the Purchasers.
The Company acknowledges that such procedure with respect to the Loan Documents
in no way creates a presumption that the Purchasers are in any way acting in
concert or as a group with respect to the Loan Documents or the transactions
contemplated hereby or thereby.
IN WITNESS WHEREOF, the parties hereto have caused this Registration
Rights Agreement to be duly executed by their respective authorized persons as
of the date first indicated above.
CISTERA NETWORKS INC.
By:_____________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
PURCHASER:
Signature:________________________
Print Name: ______________________________________
Title: ___________________________________________
Address: _________________________________________
15
----------------------------------------------
SSN/Taxid: _______________________
Telephone: _______________________________________
Fax: _____________________________________________
16
SCHEDULE I
PURCHASERS
--------- -------------------------------------------------------------- ---------------------- ----------------------
NAME TOTAL TOTAL NUMBER OF
PURCHASE WARRANTS
--------- -------------------------------------------------------------- ---------------------- ----------------------
1. ▇▇▇▇▇ ▇. ▇▇▇▇▇ & ▇▇▇▇ ▇. ▇▇▇▇▇ $15,000.00 15,000
--------- -------------------------------------------------------------- ---------------------- ----------------------
2. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ $25,000.00 25,000
(Bradsby Group)
--------- -------------------------------------------------------------- ---------------------- ----------------------
3. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ $15,000.00 15,000
--------- -------------------------------------------------------------- ---------------------- ----------------------
4. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ $20,000.00 20,000
--------- -------------------------------------------------------------- ---------------------- ----------------------
5. The ▇▇▇ Family Trust, ▇▇▇▇▇▇ ▇. ▇▇▇, Trustee $20,000.00 20,000
--------- -------------------------------------------------------------- ---------------------- ----------------------
6. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ $15,000.00 15,000
--------- -------------------------------------------------------------- ---------------------- ----------------------
7. ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. $18,000.00 18,000
--------- -------------------------------------------------------------- ---------------------- ----------------------
8. ▇. ▇▇▇▇▇▇▇ $15,000.00 15,000
--------- -------------------------------------------------------------- ---------------------- ----------------------
9. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ $15,000.00 15,000
--------- -------------------------------------------------------------- ---------------------- ----------------------
10. ▇▇▇▇ ▇. Van de Putte $16,000.00 16,000
--------- -------------------------------------------------------------- ---------------------- ----------------------
11. ▇▇▇▇ ▇. & ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ TTEE ▇▇▇▇▇▇▇▇▇ Family Trust $25,000.00 25,000
U/A DTD 10/02/90
--------- -------------------------------------------------------------- ---------------------- ----------------------
12. Kid Gro-Co, LLC $15,000.00 15,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------- -------------------------------------------------------------- ---------------------- ----------------------
13. National Investor Services Corp. FBO: $16,000.00 16,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.#▇▇▇-▇▇▇▇▇
--------- -------------------------------------------------------------- ---------------------- ----------------------
14. National Investor Services Corp. FBO: $15,000.00 15,000
▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇.#▇▇▇-▇▇▇▇▇
--------- -------------------------------------------------------------- ---------------------- ----------------------
15. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ $15,000.00 15,000
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co., Inc. Custodian
Acct.#7198-4413
--------- -------------------------------------------------------------- ---------------------- ----------------------
16. ▇▇▇▇▇ ▇▇▇▇▇▇ $30,000.00 30,000
--------- -------------------------------------------------------------- ---------------------- ----------------------
17. ▇▇▇▇ ▇▇▇▇▇▇▇▇ $35,862.02 35,862
--------- -------------------------------------------------------------- ---------------------- ----------------------
18. ▇▇▇ ▇▇▇▇▇▇▇▇▇ $20,075.56 20,075
--------- -------------------------------------------------------------- ---------------------- ----------------------
19. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ $25,000.00 25,000
--------- -------------------------------------------------------------- ---------------------- ----------------------
20. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Trust DTD May 9, 2001 $37,500.00 37,500
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
--------- -------------------------------------------------------------- ---------------------- ----------------------
21. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ $25,000.00 25,000
--------- -------------------------------------------------------------- ---------------------- ----------------------
22. Sterling Trust Company, Custodian FBO: ▇▇▇▇▇ ▇▇▇▇▇▇▇ 37,500.00 37,500
▇▇▇▇▇▇▇▇ #092369
--------- -------------------------------------------------------------- ---------------------- ----------------------
23. ▇▇▇▇▇ Family Trust DTD 6/5/2000 ▇▇▇▇▇ ▇▇▇▇▇, Trustee, 15,000.00 15,000
▇▇▇▇▇▇▇ ▇▇▇▇▇, Trustee
--------- -------------------------------------------------------------- ---------------------- ----------------------
24. ▇▇▇▇▇▇ Family Trust, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee 50,000.00 50,000
--------- -------------------------------------------------------------- ---------------------- ----------------------
25. The ▇▇▇ Family Trust, ▇▇▇▇▇▇ ▇. ▇▇▇, Trustee 50,000.00 50,000
--------- -------------------------------------------------------------- ---------------------- ----------------------
26. ▇▇▇▇▇ ▇▇▇▇▇▇▇ 30,000.00 30,000
--------- -------------------------------------------------------------- ---------------------- ----------------------
27. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. 40,000.00 40,000
--------- -------------------------------------------------------------- ---------------------- ----------------------
28. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Trust DTD 11/9/1993 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, 15,000.00 15,000
Trustee
--------- -------------------------------------------------------------- ---------------------- ----------------------
29. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 15,000.00 15,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
30. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ or ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 36,000.00 36,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
31. ▇▇▇▇▇ ▇▇▇▇▇▇ 7,500.00 7,500
--------- -------------------------------------------------------------- ---------------------- ---------------------
32. F. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 15,000.00 15,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
33. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 15,000.00 15,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
34. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 15,000.00 15,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
35. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ 15,000.00 15,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
36. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 25,000.00 25,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
37. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 15,000.00 15,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
38. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ 75,000.00 75,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
39. ▇▇▇▇▇▇-▇▇▇▇▇ Kijora 15,000.00 15,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
40. Heinz & ▇▇▇▇ ▇▇▇▇▇ 15,000.00 15,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
41. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 10,000.00 10,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
42. ▇▇▇▇ ▇. Rock 15,000.00 15,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
43. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 11,000.00 11,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
44. ▇▇▇▇ ▇▇▇▇▇ 15,000.00 15,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
45. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 10,000.00 10,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
46. ▇▇▇▇ ▇▇ 10,000.00 10,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
47. ▇▇▇▇▇▇ ▇▇▇▇▇▇ 58,125.00 58,125
--------- -------------------------------------------------------------- ---------------------- ---------------------
48. ▇▇▇▇ ▇▇▇▇▇▇▇ 50,000.00 50,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
49. ▇▇▇▇-Loan ▇▇▇▇ ▇▇▇▇▇ 10,000.00 10,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
50. ▇▇▇▇▇▇▇ ▇▇▇▇ 50,000.00 50,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
51. Extenprise/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 70,619.00 70,619
--------- -------------------------------------------------------------- ---------------------- ---------------------
52. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 20,000.00 20,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
53. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 15,000.00 15,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
54. ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 15,000.00 15,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
55. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 10,000.00 10,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
56. ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 15,000.00 15,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
57. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇ 7,500.00 7,500
--------- -------------------------------------------------------------- ---------------------- ---------------------
58. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 25,000.00 25,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
59. ▇▇▇▇ ▇. ▇▇▇▇▇ 25,000.00 25,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
60. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 15,000.00 15,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
61. ▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇ Living Trust DTD 4/25/2000, ▇▇▇▇▇▇▇▇▇▇▇ 25,000.00 25,000
-----------------------------------------------------------
▇. ▇▇▇▇ Trustee
--------- -------------------------------------------------------------- ---------------------- ---------------------
62. ▇▇▇▇▇ ▇. ▇▇ & ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇ 15,000.00 15,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
63. ▇▇▇▇▇ ▇. ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 20,000.00 20,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
64. ▇▇▇▇▇ ▇. ▇▇▇▇▇, Trustee ▇▇▇▇▇ ▇. ▇▇▇▇▇, DDS, A Professional 25,000.00 25,000
Corp. Employees' Profit Sharing Plan & Trust
--------- -------------------------------------------------------------- ---------------------- ---------------------
65. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Trustee of the ▇▇▇▇▇▇▇▇▇ Marketing, Inc. 25,000.00 25,000
Profit Sharing Plan & Trust
--------- -------------------------------------------------------------- ---------------------- ---------------------
66. ▇▇▇▇ ▇▇▇▇▇, Trustee of the Sub-Trust 1 of the 2003 ▇▇▇▇▇ 5,000.00 5,000
Family Trust DTD 02/19/2003
--------- -------------------------------------------------------------- ---------------------- ---------------------
67. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 26,000.00 26,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
68. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 10,000.00 10,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
69. ▇▇▇▇ ▇▇▇▇▇ 15,000.00 15,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
70. ▇▇▇▇▇▇▇ ▇. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Trustees of the Kleemann 100,000.00 100,000
Family 2004 Revocable Trust
--------- -------------------------------------------------------------- ---------------------- ---------------------
71. ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 15,000.00 15,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
72. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 20,000.00 20,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
73. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 10,000.00 10,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
74. ▇▇▇▇ ▇▇▇▇ & Cezanne ▇▇▇▇ ▇▇ WROS 33,000.00 33,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
75. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 100,000.00 100,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
76. ▇▇▇▇ ▇. ▇▇▇▇▇▇ Trustee ▇▇▇▇▇▇ Family Trust DTD 11/12/73 AMD 15,000.00 15,000
06/25/2003
--------- -------------------------------------------------------------- ---------------------- ---------------------
77. ▇▇▇▇ ▇▇▇▇▇▇▇ 20,000.00 15,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
78. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 15,000.00 15,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
79. ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 10,000.00 10,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
80. ▇▇▇▇ ▇▇▇▇▇▇ 5,000.00 5,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
81. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 15,000.00 15,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
82. ▇▇▇▇ Sportsman & ▇▇▇▇▇ Sportsman 50,000.00 50,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
83. Wall Street Capital Partners, LP (▇▇▇▇ ▇▇▇▇) 150,000.00 150,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
84. ▇▇▇▇ ▇▇▇▇▇▇▇▇ 10,000.00 10,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
85. Roaring Fork Capital SBIC, L.P. 1,000,000.00 1,000,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
86. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 10,000.00 10,000
--------- -------------------------------------------------------------- ---------------------- ---------------------
Schedule II
Other Securities to be Included on the Registration Statement