Exhibit 10.2
Execution Copy
REGISTRATION AGREEMENT
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THIS REGISTRATION AGREEMENT (this "Agreement") is made as of September
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16, 1998, by and among Pac-West Telecomm, Inc., a California corporation (the
"Company"), ▇▇▇▇ ▇. ▇▇ ▇▇▇ ("La Rue"), Bay Alarm Company, a California
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corporation ("Bay Alarm," and collectively with La Rue, the "Existing
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Shareholders"), each of the Persons listed on the Schedule of New Investors
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attached hereto (the "New Investors") and each of the individuals listed on the
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Schedule of Executives attached hereto (the "Executives"). The Existing
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Shareholders the New Investors are collectively referred to herein as the
"Investors" and individually as an "Investor." Unless otherwise indicated
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herein, capitalized terms used herein are defined in paragraph 9 hereof.
WHEREAS, the Existing Shareholders hold shares of the Company's Class
A Participating Preferred Stock, par value $.01 per share (the "Preferred
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Stock"), and shares of the Common Stock, par value $.01 per share (the "Common
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Stock");
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WHEREAS, the New Investors received shares of the Company's Preferred
Stock and Common Stock pursuant to a merger agreement among the Company, the
Existing Shareholders and PWT Acquisition Corp., dated as of June 30, 1998 (as
the same may be amended and modified from time to time in accordance with its
terms, the "Merger Agreement") and shares of the Company's Common Stock pursuant
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to a Stock Purchase Agreement, dated as of the date hereof, between the Company
and certain of the New Investors (as the same may be amended and modified from
time to time in accordance with its terms, the "Purchase Agreement");
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WHEREAS, the Company and certain of the Executives are parties to
executive agreements, stock purchase agreements and/or stock option agreements,
pursuant to which such Executives purchased shares of the Company's Common Stock
or received stock options to purchase shares of the Company's Common Stock;
WHEREAS, in order to induce PWT Acquisition Corp. to enter into the
Merger Agreement the Company has agreed to provide the registration rights set
forth in this Agreement and the execution and delivery of this Agreement is a
condition to the closing under the Merger Agreement (the "Closing").
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
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1. Rights Offering.
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(a) Rights.
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(i) In consideration of Acquisition's entering into the Merger
Agreement the Company shall, upon receipt of the Rights Offering Notice (as
defined below), grant to the holders of common stock of Safeguard
Scientifics, Inc. rights (the "Rights") to purchase from the Company such
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number of shares of Common Stock as determined by the Company's board of
directors (the "Board"), up to a maximum of one-third of the sum of (1) all
issued shares of Common Stock and (2) all shares of Common Stock subject to
issuance pursuant to options, warrants or other agreements, instruments or
understandings all as of the effective date of the registration statement.
The Rights shall be issued in an offering (the "Rights Offering") pursuant
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to a registration statement under the Securities Act shall be exercisable
for a period of not greater than 45 days after the commencement of the
Rights Offering and shall be transferable by the holder thereof during that
period. The Company shall engage an investment banking firm selected by the
Board, which firm shall underwrite, on a standby, firm commitment basis,
any portion of the offered Common Stock not purchased through the exercise
of Rights. The Company shall also engage legal counsel selected by the
Board, which counsel shall represent the Company in connection with the
conduct of the Rights Offering.
(ii) Safeguard may request, subject to the approval of the
Board. The initiation of the Rights Offering by giving written notice to
the Company (a "Rights Offering Notice") at any time during the Rights
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Exclusivity Period (as hereinafter defined). The exercise price of the
Rights shall be determined by negotiation among the Company. The
underwriters and the selling stockholders, if any; provided that in the
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event the equity value of the Company immediately prior to the Rights
Offering (based upon the exercise price of the Rights in such offering) is
less than $100 million, then in such event, the Company shall not initiate
a Rights Offering unless such Rights Offering is approved by each of the
Investor Directors (as defined in the Shareholders Agreement). The
obligations of the Company pursuant to this Section 1 shall commence as of
the Closing and expire on the third anniversary of the Closing (such
period, the "Rights Exclusivity Period") unless a registration statement
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relating the Rights Offering has been filed with the Commission by such
date, in which case the Rights shall not expire until 150 days after the
date such filing was made.
(iii) The Company agrees that it will not undertake any
registration of any of its securities under the Securities Act or the
Exchange Act other than pursuant to the paragraph 1 prior to the earlier of
the expiration of the Rights Exclusivity Period or the completion of a
Rights Offering, except with the consent of each of the Investor Directors.
(b) Services. Each Qualified Holder shall diligently and in a timely
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fashion assist the Company in structuring the Rights Offering, in preparing the
necessary registration statement and related disclosure documentation, in
clearing the Rights Offering with the Commission and applicable state securities
commissions and shall provide such other services and assistance in
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connection with the Rights Offering as the Company shall reasonably request;
provided that nothing contained herein shall require any Qualified Holder to
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provide to the Company any services or assistance which would require any of
them to register as broker-dealers under Section 15 of the Exchange Act, or as
an investment adviser under the Investment Advisor Act of 1940, as amended.
(c) Stock Split. After the Board has approved the commencement of the
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Rights Offering, the Company shall, prior to the filing of such registration
statement as provided hereinafter (or at such earlier date as agreed to by the
Company and Safeguard), take all such actions as shall be necessary to cause a
split of its authorized Common Stock in such ratio as Safeguard shall determine.
All references to share amounts in this Agreement other than as specifically
noted shall be deemed to refer to share amounts prior to such split.
(d) Use of Proceeds. The Company shall apply all proceeds of the
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Rights Offering first to the payment of the expenses of the Rights Offering, and
thereafter to general working capital purposes or such other purposes as
determined by the Company's board of directors and as shall be described in the
prospectus relating to the Rights Offering.
(e) Termination. The provisions of this paragraph 1 shall terminate
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and be of no further force and effect at such time as Safeguard and its
Permitted Transferees: (as defined in the Shareholders Agreement) shall hold
less than 25% of the Investor Registrable Securities held by Safeguard as of the
Closing.
2. Demand Registrations.
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(a) Requests for Registration. After the earlier to occur of (i) 180
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days after the consummation of the Rights Offering and (ii) the expiration of
the Rights Exclusivity Period, any of (i) the Safeguard Holders, (ii) the SCP
Holders, (iii) the TL Holders or (iv) the ▇▇▇▇▇ Holders may request registration
under the Securities Act of all or any portion of their Registrable Securities
on Form S-1 or any similar long-form registration ("Long-Form Registrations") or
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Form S-2 or S-3 or any similar short-form registration ("Short-Form
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Registrations"), if available. All registrations requested pursuant to this
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paragraph 2(a) are referred to herein as "Demand Registrations." Each request
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for a Demand Registration shall specify the approximate number of Registrable
Securities requested to be registered and the anticipated per share price range
for such offering. Within ten days after receipt of a request for a Demand
Registration, the Company shall give written notice of such requested
registration to all holders of Registrable Securities (collectively, "Holders")
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and, subject to paragraph 2(d) below, shall include in such registration all
Registrable Securities with respect to which the Company has received written
requests for inclusion therein within 20 days after the receipt of the Company's
notice.
(b) Long-Form Registrations. The (i) Safeguard Holders, (ii) the SCP
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Holders, (iii) the TL Holders and (iv) the ▇▇▇▇▇ Holders shall each be entitled
to request one Long-Form Registration in which the Company shall pay all
Registration Expenses (".Company-paid Long-Form Registrations"); provided that
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the aggregate offering value of the Registrable Securities requested to be
registered in any Long-Form Registration must equal at least $25 million if the
registration is the Company's initial registered public offering and at least $5
million in all other Long-Form
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Registrations. A registration shall not count as one of the permitted Company-
paid Long-Form Registrations until it has become effective, and neither the last
nor any subsequent Company paid Long-Form Registration shall count as one of the
permitted Company-paid Long-Form Registration unless the holders of Investor
Registrable Securities are able to register and sell at least 90% of the
Investor Registrable Securities requested to be included in such registration;
provided that in any event the Company shall pay all Registration Expenses in
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connection with any registration initiated as a Company-paid Long-Form
Registration whether or not it has become effective and whether or not such
registration has counted as one of the permitted Company-paid Long-Form
Registration hereunder. All Long-Form Registrations shall be underwritten
registrations.
(c) Short-Form Registrations. In addition to the Long-Form
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Registration provided pursuant to paragraph 2(b) above, any of the Safeguard
Holders, the SCP Holders, the TL Holders or the ▇▇▇▇▇ Holders shall be entitled
to request one or more of Short-Form Registrations in which the Company shall
pay all Registration Expenses; provided that the aggregate offering value
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of the Registrable Securities requested to be registered in any Short-Form
Registration must equal to at least $1 million. Demand Registrations shall be
Short-Form Registrations whenever the Company is permitted to use any applicable
short form. After the Company has become subject to the reporting requirements
of the Securities Exchange Act, the Company shall use its best efforts to make
Short-Form Registrations available for the sale of Registrable Securities. The
Company shall pay all Registration Expenses in connection with any registration
initiated as a Short-Form Registration whether or not it has become effective.
(d) Priority on Demand Registrations. The Company shall not include
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in any Demand Registration any securities which are not Registrable Securities
without the prior written consent of the holders of Investor Registrable
Securities initially requesting such registration, If a Demand Registration is
an underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities and. if
permitted hereunder, other securities requested to be included in such offering
exceeds the number of Registrable Securities and other securities, if any, which
can be sold in an orderly manner in such offering within a price range
acceptable to the holders of Investor Registrable Securities initially
requesting such registration, the Company shall include in such registration (i)
first, the Investor Registrable Securities requested to be included in such
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registration, pro rata among the holders of Investor Registrable Securities on
the basis of the number of Investor Registrable Securities owned by each such
holder, (ii) second, the Executive Registrable Securities requested to be
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included in such registration, pro rata among the holders of Executive
Registrable Securities on the basis of the number of such securities owned by
each such holder and (iii) third, any other securities requested to be included
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in such registration, pro rata among the holders thereof.
(e) Expenses. Any Person other than a Holder who participates in
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Demand Registrations which are not at the Company's expense must pay their share
of the Registration Expenses as provided in paragraph 6 hereof.
(f) Selection of Underwriters. The holders of Investor Registrable
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Securities initially requesting a registration shall have the right to select
the investment banker(s) and
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manager(s) to administer the offering, subject to the approval of the Board
which shall not be unreasonably withheld.
(g) Other Registration Rights. Except as provided in this Agreement,
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the Company shall not grant to any Persons the right to request the Company to
register any equity securities of the Company (whether as a demand registration
or piggyback registration), or any securities convertible or exchangeable into
or exercisable for such securities, without the prior written consent of each of
the Investor Directors.
3. Piggyback Registrations.
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(a) Right to Piggyback. Whenever the Company proposes to register any
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of its securities under the Securities Act (other than pursuant to the Rights
Offering, a Demand Registration or a registration on Form S-4 or S-8 or any
successor or similar forms) and the registration form to be used may be used for
the registration of Registrable Securities (a "Piggyback Registration"), the
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Company shall give prompt written notice to all Holders of its intention to
effect such registration and, subject to paragraphs 3(c) and 3(d) below, shall
include in such registration all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within 20 days
after the receipt of the Company's notice.
(b) Piggyback Expenses. The Registration Expenses of the Holders shall
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be paid by the Company in all Piggyback Registrations whether or not such
registration is consummated.
(c) Priority on Primary- Registrations. If a Piggyback Registration is
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an underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering without adversely affecting the marketability
of the offering, the Company shall include in such registration (i) first, the
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securities the Company proposes to sell, (ii) second, the Investor Registrable
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Securities requested to be included in such registration, pro rata among the
holders of Investor Registrable Securities on the basis of the number of
Investor Registrable Securities owned by each such holder, (iii) third, the
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Exclusive Registrable Securities requested to be included in such registration,
pro rata among the holders of Executive Registrable Securities on the basis of
the number of Executive Registrable Securities owned by each such holder and
(iv) fourth, any other securities requested to be included in such registration,
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pro rata among the holders thereof.
(d) Priority on Secondary Registrations. If a Piggyback Registration
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is an underwritten secondary registration on behalf of holders of the Company's
securities (other than the holders of Registrable Securities), and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering without adversely affecting the marketability
of the offering, the Company shall include in such registration (i) first, the
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securities requested to be included therein by the holders requesting such
registration and the Investor Registrable Securities requested to be included in
such registration, pro rata among the holders of such securities and such
Investor Registrable Securities on the basis of the number of securities owned
by each such holder,
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(ii) second, the Executive Registrable Securities requested to be included in
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such registration, pro rata among the holders of Executive Registrable
Securities on the basis of the number of Executive Registrable Securities owned
by each such holder, and (iii) third, any other securities requested to be
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included in such registration, pro rata among the holders thereof.
(e) Withdrawal by the Company. If, at any time after giving written
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notice of an intention to register any of its securities as set forth in
paragraph 3(a) and prior to the effective date of such registration statement
filed in connection with such registration, the Company's board of directors
shall determine in its good faith judgment for any reason not to register such
securities, the Company may, at its election, give written notice of such
determination to each Holder and thereupon shall be relieved of its obligation
to register any Registrable Securities in connection with such registration (but
not from its obligation to pay the Registration Expenses in connection therewith
as provided herein).
4. Holdback Agreements.
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(a) No Holder shall effect any public sale or distribution (including
sales pursuant to Rule 144) of equity securities of the Company, or any
securities convertible into or exchangeable or exercisable for such securities,
during the seven days prior to the date of any proposed registered public
offering of the Company's Common Stock or the Rights as set forth in a written
notice delivered to such Holder at least seven days prior to such date (or of
which such Holder is otherwise aware at least seven days prior to such date) and
the 90-day period beginning on the effective date of the Company's initial
public offering of its Common Stock or the Rights under the Securities Act or
during the seven days prior to the date of any proposed registered public
offering of the Company's Common Stock or the Rights as set forth in a written
notice delivered to such Holder at least seven days prior to such date (or of
which such Holder is otherwise aware at least seven days prior to such date) and
the 90-day period beginning on the effective date of (A) any registered public
offering of the Company's Common Stock other than the initial public offering
and (B) any underwritten Demand Registration or any underwritten Piggyback
Registration in which Registratable Securities are included (except as part of
such underwritten registration); provided that any Holder shall be released from
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the obligations of this paragraph 4 if the underwriters managing the registered
public offering otherwise agree.
(b) The Company (i) shall not effect any public sale or distribution
of its equity securities, or any securities convertible into or exchangeable or
exercisable for such securities during the seven days prior to and the 90-day
period beginning on the effective date of the Company's initial public offering
of its Common Stock or the Rights under the Securities Act or during the seven
days prior to and the 90-day period beginning on the effective date of (A) any
registered public offering of the Company's Common Stock other than the initial
public offering and (B) any underwritten Demand Registration. or any
underwritten Piggyback Registration in which Registrable Securities are included
(except as part of such underwritten registration or pursuant to registrations
on Form S-8 or any successor or similar form), unless the underwriters managing
the registered public offering otherwise agree, and (ii) shall cause each holder
of at least 2% of its Common Stock, or any securities convertible into or
exchangeable or exercisable for Common Stock, purchased from the Company at any
time after the date of this Agreement (other than in a
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registered public offering) to agree not to effect any public sale or
distribution (including sales pursuant to Rule 144) of any such securities
during such periods (except as part of such underwritten registration, if
otherwise permitted), unless the underwriters managing the registered public
offering otherwise agree.
5. Registration Procedures.
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(a) Rights Offering: Upon notice by Safeguard to the Company of its
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desire to commence the Rights Offering and the Board's approval of such Rights
Offering, the Company shall promptly prepare a Registration Statement to
register under the Securities Act, the Rights and the shares of the Common Stock
to be acquired upon exercise of the Rights (the "Rights Shares"). The Company
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covenants that such Registration Statement and the prospectus included therein
shall be in form reasonably satisfactory to Safeguard, shall comply in all
respects with the Securities Act and the rules and regulations of the Commission
promulgated thereunder, and shall 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 light of the circumstances under
which they were made, not misleading. In connection with such Rights offering,
the Company shall:
(i) use its best efforts to cause such registration statement to be
filed with the Commission and to become effective as promptly as
practicable;
(ii) prepare and file with the Commission, promptly upon any
Qualified Holder's request, any amendments or supplements to the
registration statement or prospectus that, in such Qualified Holder's
opinion, may be necessary or advisable in connection with the Rights
Offering, subject to the reasonable approval of counsel for the Company;
(iii) not file any amendment or supplement to the registration
statement or prospectus unless (A) it has furnished each Qualified Holder
with a copy of such amendment or supplement a reasonable time prior to
filing and (B) no Qualified Holder has reasonably objected to such
amendment or supplement by notice to the Company;
(iv) not issue any advertisement, press release, mailing or other
solicitation material of which any Qualified Holder reasonably disapproves
by prompt written notice to the Company after receiving reasonable notice
thereof;
(v) comply with the Securities Act and the roles and regulations
thereunder in connection with the Rights Offering and, until the
termination of the Rights Offering, shall use its best efforts to qualify
the Rights Shares under the securities laws of all jurisdictions in which
qualification is required and there are holders of Safeguard common stock
and to continue such qualifications in effect during the exercise period of
the Rights;
(vi) at the time of mailing the prospectus relating to the Rights
Offering and at the time of the closing of the Rights Offering, deliver to
any Qualified Holder (A) such certificates and documents evidencing
compliance with such representations and warranties of the Company as any
Qualified Holder shall reasonably request, and (B) such opinions and
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documents from the Company's counsel and independent accountants as any
Qualified Holder may reasonably request thereof as if it were applicable to
the Rights Offering, and
(vii) cause its counsel and auditors and the Company's employees to
render such assistance in consummating the Rights Offering, at the
Company's expense, as is customary in the consummation by a company of its
initial public offering. In addition, in rendering services under this
paragraph 5, the holders of a majority of the Investor Registrable
Securities may engage special legal counsel, one or more rights, registrar
and transfer agents and such other consultants as they may deem necessary
or desirable in connection with the Rights Offering. the expense of which
shall be paid by the Company in addition to the expenses paid by the
Company described in paragraph 6 below. In addition, the holders of
majority of the Investor Registrable Securities may require the Company to
engage a registered broker-dealer as they may designate, subject to the
reasonable approval of the Company. to provide such services in connection
with the Rights Offering as such holders may deem reasonably necessary or
desirable, including without limitation, to effect XXX underwrite the
offering of the Rights or the Rights Shares in states in which applicable
state laws require that a registered broker-dealer effect such offering.
(b) Generally. Whenever any Holders have requested that any
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Registrable Securities be registered pursuant to this Agreement, the Company
shall use its best efforts the registration and the sale of such Registrable
Securities in accordance with the intended method of disposition thereof, and
pursuant thereto the Company shall as expeditiously as possible:
(i) prepare and file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and use
its best efforts to cause such registration statement to become effective;
provided that before filing a registration statement or prospectus or any
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amendments or supplements thereto, the Company shall furnish to the counsel
selected by the holders of a majority of the Investor Registrable
Securities covered by such registration statement copies of all such
documents proposed to be filed, which documents shall be subject to the
review and comment of such counsel;
(ii) notify each Holder of the effectiveness of each registration
statement filed hereunder and prepare and file with the Securities and
Exchange 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 for period of
either (i) not less than six months or, if such registration statement
relates to an underwritten offering, such longer period as in the opinion
of counsel for the underwriter, a prospectus is required by law to be
delivered in connection with sales of Registrable Securities by an
underwriter or dealer or (ii) such shorter period as will terminate when
all of the securities covered by such registration statement have been
disposed of in accordance with the intended methods of disposition by the
seller or sellers thereof as set forth in such registration statement (but
in any event not before the expiration of any longer period required under
the Securities Act), and to comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such
registration statement until such time as all such securities have been
disposed of in accordance with the intended
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methods of disposition by the seller or sellers thereof set forth in such
registration statement and the prospectus used in connection therewith;
(iii) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement
thereto, the prospectus included in such. registration statement (including
each preliminary prospectus) 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 under such other securities or blue sky laws of such
jurisdictions as any seller (including any underwriter) reasonably requests
and do any and all other acts and things which may be reasonably necessary
or advisable to enable such seller to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such seller; provided
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that the Company shall not be required to (i) qualify generally to do
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business in any jurisdiction where it would not otherwise be required to
qualify but for this subparagraph, (ii) subject itself to taxation in any
such jurisdiction or (iii) consent to general service of process in any
such jurisdiction;
(v) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue
statement of a material fact or omits any fact necessary to make the
statements therein not misleading, and, at the request of any such seller,
the Company shall prepare a supplement or amendment to such prospectus so
that, as thereafter delivered 1o the purchasers of such Registrable
Securities, such prospectus shall not contain an untrue statement of a
material fact or omit to state any fact necessary to make the statements
therein not misleading;
(vi) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are
then listed and, if not so listed, to be listed on the NASD automated
quotation system and, if listed on the NASD automated quotation system, use
its best efforts to secure designation of all such Registrable Securities
covered by such registration statement as a NASDAQ "national market system
security" within the meaning of Rule 11Aa2-1 of the Securities and Exchange
Commission or, failing that, to secure NASDAQ authorization for such
Registrable Securities and, without limiting the generality of the
foregoing, to arrange for at least two market makers to register as such
with respect to such Registrable Securities with the NASD;
(vii) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration
statement;
(viii) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the
holders of a majority of the Investor Registrable Securities being sold or
the underwriters, if any, reasonably request in order to
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expedite or facilitate the disposition of such Registrable Securities
(including XXXXXX stock split or a combination of shares);
(ix) make available for inspection by one counsel selected by the
holder XX majority of the Investor Registrable Securities included in such
registration statement XX underwriter participating in any disposition
pursuant to such registration statement and XX attorney, accountant or
other agent retained by any such underwriter, all financial and XXX
records, pertinent corporate documents and properties of the Company, and
XXXX Company's officers, directors, employees and independent accountants
to XXXX information reasonably requested by any such attorney, underwriter,
or XXXXXXX attorney, accountant or agent in connection with such
registration statement (provided XXX the Company may impose reasonable
confidentiality restrictions on the recipients XXXX confidential
information);
(x) otherwise use its best efforts to comply with all applicable
rules and regulations of the Securities and Exchange Commission, and make
available to its XXXX holders, as soon as reasonably practicable, an
earnings statement covering the period XXX least twelve months beginning
with the first day of the Company's first full calendar XXXX after the
effective date of the registration statement, which earnings statement
shall XXXX the provisions of Section 11 (a) of the Securities Act and Rule
158 thereunder;
(xi) permit any Holder which, in its sole and exclusive judgment,
might be deemed to be an underwriter or a controlling person of the
Company, to participate in the preparation of such registration or
comparable statement and to require the insertion therein of material,
furnished to the Company in writing, which in the reasonable judgment of
the Holder and its counsel should be included;
(xii) in the event of the issuance of any stop order suspending
the XXXXXX registration statement, or of any order suspending or preventing
the use of any XXXX prospectus or suspending the qualification of any
Common Stock included in XXXX registration statement for sale in any
jurisdiction, the Company shall use its best XXXXXX promptly to obtain the
withdrawal of such order;
(xiii) use its best efforts to cause such Registrable Securities
covered by XXXX registration statement to be registered with or approved by
such other governmental XXXX or authorities as may be necessary to enable
the sellers thereof to consummate the XXXXX of such Registrable Securities;
(xiv) obtain a cold comfort letter from the Company's independent
public accountants in customary form and covering such matters of the type
customarily XXXXX by cold comfort letters as the holders of a majority of
the Investor Registrable XXXXXX being sold reasonably request; and
(xv) provide a legal opinion of the Company's outside counsel,
dated the effective date of such registration statement (and, if such
registration includes an underwritten XXXXX
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offering, dated the date of the closing under the underwriting agreement),
with respect to the registration statement, each amendment and supplement
thereto, the prospectus included therein (including the preliminary
prospectus) and such other documents relating thereto in customary form and
covering such matters of the type customarily covered by legal opinions of
such nature (in a form reasonably acceptable to the holder of a majority of
the Investor Registrable Securities included in the registration).
6. Registration Expenses.
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(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, fees and disbursements
of custodians, and fees and disbursements of counsel for the Company and all
independent certified public accountants, underwriters (excluding discounts and
commissions), valuation firms and consultants and other Persons retained by the
Company (all such expenses being herein called "Registration Expenses"), shall
be borne as provided in this Agreement, except that the Company shall, in any
event, pay its internal expenses (including, without limitation, all salaries
and expenses of its officers and employees performing legal or accounting
duties), the expense of any annual audit or quarterly review, the expense of any
liability insurance and the expenses and fees for listing the securities to be
registered on each securities exchange on which similar securities issued by the
Company are then listed or on the NASD automated quotation system.
(b) In connection with each Demand Registration and each Piggyback
Registration, the Company shall reimburse the Holders included in such
registration for the reason-able fees and disbursements of one counsel chosen by
the holders of a majority of the Investor Registerable Securities initially
requesting such registration.
(c) To the extent Registration Expenses are not required to be paid
by the Company, each holder of securities included in any registration hereunder
shall pay those Registration Expenses allocable to the registration of such
holder's securities so included, and any Registration Expenses not so allocable
shall be borne by all sellers of securities included in such Registration in
proportion to the aggregate selling price of the securities to be so registered.
7. Indemnification.
----------------
(a) The Company agrees to indemnify, to the extent permitted by law,
each holder, its officers and directors and each Person who controls such Holder
(within the meaning of the Securities Act) against all losses, claims, damages,
liabilities and expenses caused by, or relating XXX any action or proceeding
arising out of or based upon, any untrue or alleged untrue statement of material
fact contained in any registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, except insofar as the same are
caused by or contained in any information furnished in writing to the Company by
such Holder expressly for use therein or by such Holder's failure to deliver a
copy of XXXX registration statement or prospectus or any amendments or
supplements thereto after the
-11-
Company has furnished such Holder with a sufficient number of copies of the
same. In XXXXXX with an underwritten offering, the Company shall indemnify such
underwriters, their officers directors and each Person who controls such
underwriters (within the meaning of the Securities to the same extent as
provided above with respect to the indemnification of the Holders.
(b) In connection with any registration statement in which a Holder
participating, each such Holder shall furnish to the Company in writing such
information XXX affidavits as the Company reasonably requests for use in
connection with any such registraXX statement or prospectus and, to the extent
permitted by law, shall indemnify the Company, XXX directors and officers and
each Person who controls the Company (within the meaning of the Securities Act)
against any losses, claims, damages, liabilities and expenses resulting from XXX
untrue or alleged untrue statement of material fact contained in the
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission XX alleged omission of a material
fact required to be stated therein or necessary to make the statement therein
not misleading, but only to the extent that such untrue statement or omission is
contained any information or affidavit so furnished in writing by such Holder;
provided that the obligation indemnify shall be individual, not joint and
-------- ----
several, for each Holder and shall be limited to the amount of proceeds received
by such Holder from the sale of Registrable Securities pursuant to XXX
registration statement.
(c) Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification provided that the failure to give prompt notice
-------- ----
shall not impair any Person's right to indemnification hereunder to the extent
such failure has not prejudiced the indemnifying party and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to XXX the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of XX claim shall not be obligated to pay the fees
and expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which the Company exercising
its rights under this paragraph makes a claim for indemnification pursuant to
this paragraph, but it is judicially determined (by the entry of a final
judgment or decree by a court of competent jurisdiction and the expiration of
time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding that this
paragraph provides for indemnification, then, in such case, the Company and the
Holders will contribute to the aggregate losses, claims, damages or liabilities
to which they may be subject (after contribution from others) in such proportion
as is appropriate to reflect the relative fault of the Company on the one hand
and of the Holders on the other XXX, connection with the statements or omissions
which resulted in such losses, claims, damages or
-12-
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company on the one hand and of the Holders on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company on the one
hand or by the Holders on the other, and each party's relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission; provided that, in any such case, (1) the Holder will not
-------- ----
be required to contribute any amount in excess of the lower of the net proceeds
received or the net offering price of all such securities offered by such Holder
pursuant to such registration statement; and (2) no person or entity guilty of
fraudulent misrepresentation (within the meaning of Section 11 (f) of the
Securities Act) will be entitled to contribution from any person or entity who
was not guilty of such fraudulent misrepresentation.
(e) The indemnification provided for under this Agreement shall
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling Person
of such indemnified party and shall survive the transfer of securities. The
Company also agrees to make such provisions, as are reasonably requested by any
indemnified party, for contribution to such party in the event the Company's
indemnification is i, unavailable for any reason.
8. Participation in Underwritten Registrations. No Person may
-------------------------------------------
participate in any registration hereunder which is underwritten unless such
Person (i) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements.
9. Definitions.
------------
"▇▇▇▇▇" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Partners VI, L.P.
-----
"▇▇▇▇▇ Holders" means the holders of a majority of the ▇▇▇▇▇
-------------
Registrable Securities.
"▇▇▇▇▇ Registrable Securities" means (i) any Common Stock originally
----------------------------
held by ▇▇▇▇▇ and (ii) any securities issued or issuable with respect to the
securities referred to in clause (i) above , by way of a stock dividend or stock
split or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization. As to any particular ▇▇▇▇▇ Registrable
Securities, such securities shall cease to be ▇▇▇▇▇ Registrable Securities when
they have been distributed to the public pursuant to an offering registered
under the Securities Act or sold to the public through a broker, dealer or
market maker in compliance with Rule 144 under the Securities :t Act (or any
similar role then in force) or repurchased by the Company, any Subsidiary or any
Executive.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
------------
-13-
"Executive Registrable Securities" means (i) any Common Stock held by
--------------------------------
the Executives, (ii) any Common Stock issued or issuable with respect to the
Common Stock referred to in clause (i) above by way of a stock dividend or stock
split or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization and (iii) any other shares of Common Stock
held by Persons holding securities described in clauses (i) or (ii) above. As to
any particular Executive Registrable Securities, such securities shall cease to
be Executive Registrable Securities when they have been distributed to the
public pursuant to an offering registered Under the Securities Act or sold to
the public through a broker, dealer or market maker in compliance Rule 144 under
the Securities Act (or any similar role then in force) or repurchased by the
Company, any Subsidiary or any Investor.
"Investor Registrable Securities" means (i) any Common Stock
-------------------------------
originally held by any Investor, (ii) securities issued or issuable with respect
to the securities referred to in clause (i) above by way of a stock dividend or
stock split or in connection with a combination of shares recapitalization,
merger, consolidation or other reorganization and (iii) any other shares of
Common Stock held by Persons holding securities described in clauses (i) or (ii)
above (including, without limitation, any shares of Common Stock issued upon the
conversion of any shares of preferred stock of the Company). As to any
particular Investor Registrable Securities, such securities shall cease to be
Investor Registrable Securities when they have been distributed to the public
pursuant to an offering registered under the Securities Act or sold to the
public through a broker, dealer or market maker in compliance with Rule 144
under the Securities Act (or any similar rule then in force) or repurchased by
the Company, any Subsidiary or any Executive.
"Qualified Holder" means any holder of at least 10% of the Investor
----------------
Registrable Securities; provided that notwithstanding the foregoing, but subject
-------- ----
to the additional proviso set fort below, La Rue shall be a Qualified Holder for
so long as he and his Permitted Transferees (as defined in the Shareholders
Agreement) hold at least 50% of the Investor Registrable Securities held by La
Rue on the date hereof; provided further that any Existing Shareholder shall
-------- ------- ----
cease to be a Qualified Holder in the event such holder, directly or indirectly,
engages in any business which is competitive with that of the Company or any of
its Subsidiaries.
"Registrable Securities" means, collectively, the Investor Registrable
----------------------
Securities and the Executive Registrable Securities. For purposes of this
Agreement, a Person shall be deemed to be a Holder, and the Registrable
Securities shall be deemed to be in existence, whenever such Person has the
right to acquire directly or indirectly such Registrable Securities (upon
conversion or exercise in connection with a transfer of securities or otherwise,
but disregarding any restrictions or limitations upon the exercise of such
right), whether or not such acquisition has actually been effected, and such
Person shall be entitled to exercise the rights of a Holder hereunder (it being
understood, however, that any Registrable Securities which are not shares of
Common Stock shall be converted or otherwise exchanged into shares of Common
Stock immediately prior to the effectiveness of any registration statement
pursuant to which such Common Stock is to be registered).
"Safeguard" means Safeguard 98 Capital, L.P.
---------
-14-
"Safeguard Holders" means the holders of a majority of the Safeguard
-----------------
Registrable Securities.
"Safeguard Registrable Securities" means (i) any Common Stock
--------------------------------
originally held by Safeguard and (ii) any securities issued or issuable with
respect to the securities referred to in clause (i) above by way of a stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. As to any
particular Safeguard Registrable Securities, such securities shall cease to be
Safeguard Registrable Securities when they have been distributed to the public
pursuant to an offering registered under the Securities Act or sold Securities
Act (or any similar rule then in force) or repurchased by the Company, any
Subsidiary or any Executive.
"SCP" means SCP Private Equity Partners, L.P.
---
"SCP Holders" means the holders of a majority of the SCP Registrable
-----------
Securities.
"SCP Registrable Securities" means (i) any Common Stock originally
--------------------------
held by SCP and (ii) any securities issued or issuable with respect to the
securities referred to in clause (i) above by way of a stock dividend or stock
split or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization. As to any particular SCP Registrable
Securities, such securities shall cease to be SCP Registrable Securities when
they have been distributed to the public pursuant to an offering registered
under the Securities Act or sold to the public through a broker, dealer or
market maker in compliance with Rule 144 under the Securities Act (or any
similar rule then in force) or repurchased by the Company, any Subsidiary or any
Executive.
"Securities Act" means the Securities Act of 1934, as amended.
--------------
"Shareholders Agreement" means that certain Shareholders Agreement,
----------------------
dated as of the date hereof, by and among the Company, La Rue, Bay Alarm and the
other parties signatory thereto, as the same may be amended and modified from
time to time in accordance with its terms.
"TL" means, collectively, TL Ventures III L.P., TL Ventures III
--
Offshore L.P., TL Ventures III Interfund L.P. and EnerTech Capital Partners,
L.P.
"TL Holders" means the holders of a majority of the TL Registrable
----------
Securities.
"TL Registrable Securities" means (i) any Common Stock originally held
-------------------------
by TL and (ii) any securities issued or issuable with respect to the securities
referred to in clause (i) above by way of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization. As to any particular TL Registrable Securities, such
securities shall cease to be TL Registrable Securities when the have been
distributed to the public pursuant to an offering registered under the
Securities Act or sold to the public through a broker,
-15-
dealer or market maker in compliance with Rule 144 under the Securities Act (or
any similar rule then in force) or repurchased by the Company, any Subsidiary or
any Executive.
10. Miscellaneous.
-------------
(a) No Inconsistent Agreements. The Company shall not hereafter enter
--------------------------
into any agreement with respect to its securities which is inconsistent with or
violates the rights granted to the Holders in this Agreement.
(b) Remedies. Any Person having rights under any provision of this
--------
Agreement shall be entitled to enforce such rights, specifically, to recover
damages cause by reason of any breach of any provision of this Agreements and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(c) Amendments and Waivers. Except as otherwise provided herein, the
----------------------
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company, the holders of a 85% of the Investor Registrable
Securities and, to the extent that any holder or holders of Executive
Registrable Securities would be adversely affected by such amendment or waiver
in a manner different from the holders of Investor Registrable Securities, the
holders of a majority of such adversely affected Executive Registrable
Securities and, to the extent that any holder or holders of Investor Registrable
Securities would be adversely affected by such amendment or waiver in a manner
different from the other holders of Investor Registrable Securities the holders
of such adversely affected Investor Registrable Securities.
(d) Successors and Assigns. All covenants and agreements in this
----------------------
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or Holders are also for the benefit of, and enforceable by, any
subsequent Holder except as expressly provided herein.
(e) Severability. Whenever possible, each provision of this Agreement
------------
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(f) Counterparts. This Agreement may be executed simultaneously in
------------
two or more counterparts (including by means of telecopied signature pages), any
one of which need not contain the signatures of more than one party, but all
such counterparts taken together shall constitute one and the same Agreement.
-16-
(g) Descriptive Headings. The descriptive headings of this Agreement
--------------------
are inserted for convenience only and do not constitute a part of this
Agreement.
(h) Governing Law. All issues and questions concerning the
-------------
construction. validity, interpretation and enforcement of this Agreement shall
be governed by, and construed in accordance with, the laws of the State of
California, without giving effect to any choice of law or conflict of law rules
or provisions (whether of the State of California or any other jurisdiction)that
would cause the application of the laws of any jurisdiction other than the State
of California.
(i) Notices. All notices, demands or other communications to be given
-------
or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, sent to the recipient by reputable overnight courier service (charges
prepaid) or mailed to the recipient by certified or registered mail, return
receipt requested and postage prepaid or sent to the recipient by facsimile
(with an additional copy by U.S. mail). Such notices, demands and other
communications shall be sent to each Investor at the address indicated on the
Schedule of Investors attached hereto, to each Executive at the address
---------------------
indicated on the Schedule of Executive attached hereto, and to the Company at
---------------------
the address indicated below:
To the Company:
--------------
Pac-West Telecomm, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
* * * * *
-17-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
from written above.
PAC-WEST TELECOMM, INC.
By: /s/ ▇▇▇▇ ▇ ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇ ▇▇▇▇▇
-----------------------------------------
Its: President
------------------------------------------
By: /s/ ▇▇▇▇▇ ▇. XXXX
-------------------------------------------
Name: ▇▇▇▇▇ ▇. XXXX
-----------------------------------------
Its: Secretary
------------------------------------------
BAY ALUM COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Its: XXXX
------------------------------------------
/s/ ▇▇▇▇ ▇ ▇▇▇▇▇
----------------------------------------------
▇▇▇▇ ▇. ▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL PARTNERS VI,
L.P.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Partners VI, L.L.C., its
General Partner
By: /s/ XXXXX
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its Managing Director
[SIGNATURE PAGE TO REGISTRATION AGREEMENT]
SCP PRIVATE EQUITY PARTNERS, L.P.
By: SCP Private Equity Management, L.P.,
its General Partner
By:______________________________________
Name:____________________________________
Its General Partner
SAFEGUARD 98 CAPITAL, L.P.
By: Safeguard Delaware, Inc.
its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Title: Senior Vice President
-----------------------------------
TL VENTURES III L.P.
By: TL Ventures III Management L.P.,
its General Partner
By: TL Ventures III LLC,
its General Partner
By: /s/ XXXX
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Title: Managing Director
[SIGNATURE PAGE TO REGISTRATION AGREEMENT]
TL VENTURES III OFFSHORE L.P.
By: TL Ventures III Offshore Partners L.P.,
its General Partner
By: TL Ventures III Offshore Ltd.,
its General Partner
By: /s/ XXXX
--------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Title: Managing Director
TL VENTURES III INTERFUND L.P.
By: TL Ventures III LLC,
its General Partner
By: /s/ XXXX
--------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Title: Managing Director
ENERTECH CAPITAL PARTNERS, L.P.
By: EnerTech Management, L.P.
its General Partner
By: EnerTech Management Company, L.L.C.,
its General Partner
By: /s/ XXXX
--------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Title: Managing Director
▇▇▇▇▇ HOLDINGS, INC.
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
[SIGNATURE PAGE TO REGISTRATION AGREEMENT]
TL VENTURES III OFFSHORE L.P.
By: TL Ventures III Offshore Partners L.P.,
its General Partner
By: TL Ventures III Offshore Ltd.,
its General Partner
By:____________________________________________
Name:__________________________________________
Title:
TL VENTURES III INTERFUND L.P.
By: TL Ventures III LLC,
its General Partner
By:____________________________________________
Name:__________________________________________
Title: Managing Director
ENERTECH CAPITAL PARTNERS, L.P.
By: EnerTech Management, L.P.
its General Partner
By: EnerTech Management Company, L.L.C.,
its General Partner
By:____________________________________________
Name:__________________________________________
Title: Managing Director
▇▇▇▇▇ HOLDINGS, INC.
By: /s/ XXXX
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Title: President
-----------------------------------------
[SIGNATURE PAGE TO REGISTRATION AGREEMENT]
BANKAMERICA INVESTMENT
CORPORATION
By: /s/ M. ▇▇▇ ▇'▇▇▇▇▇
---------------------------------------
Name: M. ▇▇▇ ▇'▇▇▇▇▇
-------------------------------------
Title: Managing Director
------------------------------------
MIG PARTNERS VII
By: /s/ M. ▇▇▇ ▇'▇▇▇▇▇
---------------------------------------
Name: M. ▇▇▇ ▇'▇▇▇▇▇
-------------------------------------
Title: General Partner
------------------------------------
__________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ FAMILY LIMITED PARTNERSHIP
By:_______________________________________
Name:_____________________________________
Title:____________________________________
[SIGNATURE PAGE TO REGISTRATION AGREEMENT]
BANKAMERICA INVESTMENT
CORPORATION
By:_______________________________________
Name:_____________________________________
Title:____________________________________
MIG PARTNERS VII
By:_______________________________________
Name:_____________________________________
Title:____________________________________
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ FAMILY LIMITED PARTNERSHIP
By: /s/ XXXX
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Title: General Partner
------------------------------------
[SIGNATURE PAGE TO REGISTRATION AGREEMENT]
BANKAMERICA INVESTMENT
CORPORATION
By:_______________________________________
Name:_____________________________________
Title:____________________________________
MIG PARTNERS VII
By:_______________________________________
Name:_____________________________________
Title:____________________________________
__________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ FAMILY LIMITED PARTNERSHIP
By: /s/ XXXX
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Title: General Partner
------------------------------------
[SIGNATURE PAGE TO REGISTRATION AGREEMENT]
SCHEDULE OF INVESTORS
SCP Private Equity Partners, L.P.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Safeguard 98 Capital, L.P.
c/o Safeguard Scientifics, Inc.
800 The Safeguard Building
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
TL Ventures III L.P.
c/o TL Ventures LLC
800 The Safeguard Building
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
TL Ventures III Offshore L.P.
c/o Trident Trust Company (Cayman) Limited
▇.▇. ▇▇▇ ▇▇▇
One Capital Place, Fourth Floor
Grand Cayman, Cayman Islands
with a copy to:
TL Ventures LLC
800 The Safeguard Building
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
TL Ventures III Interfund L.P.
c/o TL Ventures LLC
800 The Safeguard Building
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
EnerTech Capital Partners
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Partners VI, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ Holdings, Inc.
c/o Segal & Co. Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
BankAmerica Investment Corporation
c\o Bank of America Mezzanine Investments Group
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MIG Partners VII
c\o Bank of America Mezzanine Investments Group
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▇▇▇▇▇ Family Limited Partnership
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SCHEDULE OF EXECUTIVES
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