EXHIBIT 23
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
by and among
▇▇▇▇▇▇'▇ FURNITURE, INC.
and
THE STOCKHOLDERS LISTED ON THE SIGNATURE PAGES HEREOF
Dated as of January 14, 2000
Amended and Restated Registration Rights Agreement (this "Agreement"),
dated as of January 14, 2000, by and among ▇▇▇▇▇▇'▇ Furniture, Inc., a Delaware
corporation (the "Company"), and each of the stockholders of the Company listed
on the signature pages hereto (the "Investors").
1. Background. The Investors own shares of either the Company's common
stock, par value $.001 per share (the "Common Stock") or the Company's Series A
Convertible Preferred Stock, par value $.0001 per share, (the "Series A
Preferred Stock"), which is convertible into Common Stock. In connection with a
Securities Purchase Agreement between the Company and the purchasers listed
thereto, dated August 26, 1996, the Company entered into a Registration Rights
Agreement with certain stockholders dated August 26, 1996 (the "Prior
Registration Rights Agreement").
Pursuant to a Securities Purchase Agreement among the Company and the
purchasers listed thereto, dated the date hereof, the Company and the Investors
have entered into this Agreement to amend, restate and supersede the Prior
Registration Rights Agreement.
2. Registration Under Securities Act, Etc.
2.1 Registration on Request.
(a) Request. Subject to Section 2.8 hereof, at any time and from
time to time upon the written request of Holders (the "Initiating Holders") of
not less than the Required Number of Shares that the Company effect the
registration under the Securities Act (other than pursuant to a Shelf
Registration Statement) of all or part of such Initiating Holders' Registrable
Securities (provided that the Company shall not be obligated to register less
than the Required Number of Shares pursuant to such request), the Company will
promptly give written notice of such requested registration to all registered
Holders, and thereupon the Company will use its best efforts to effect the
registration under the Securities Act of:
(i) the Registrable Securities (representing not less than the
Required Number of Shares) which the Company has been so requested to
register by such Initiating Holders, and
(ii) all other Registrable Securities which the Company has been
requested to register by the Holders thereof (such Holders together
with the Initiating Holders are hereinafter referred to as the
"Selling Holders") by written request given to the Company within 20
days after the giving of such written notice by the Company, all to
the extent required to permit the disposition of the Registrable
Securities so to be registered.
(b) Registration of Other Securities. Whenever the Company shall
effect a registration pursuant to this Section 2.1 in connection with an
underwritten offering by one or more Selling Holders, no securities other than
Registrable Securities shall be included among the securities covered by such
registration unless (i) the managing underwriter of such offering shall have
advised each Selling Holder to be covered by such registration in writing that
the inclusion of such other securities would not adversely affect such offering
or (ii) the Selling Holders of not less than a majority of all Registrable
Securities to be covered by such registration shall have consented in writing to
the inclusion of such other securities.
(c) Registration Statement Form. Registrations under this Section
2.1 shall be on such appropriate registration form of the Commission as shall be
selected by the Company.
(d) Expenses. The Company will pay the Registration Expenses in
connection with any registration requested pursuant to this Section 2.1.
(e) Effective Registration Statement. A registration requested
pursuant to this Section 2.1 shall not be deemed to have been effected:
(i) unless a registration statement with respect thereto has
become effective,
(ii) if after it has become effective, such registration is
interfered with by any stop order, injunction or other order or requirement of
the Commission or other governmental agency or court for any reason not
attributable to the Selling Holders and such registration has not thereafter
become effective, or
(iii) if the conditions to closing specified in the underwriting
agreement, if any, entered into in connection with such registration are not
satisfied or waived, other than by reason of a failure on the part of the
Selling Holders.
(f) Selection of Underwriters. The underwriter or underwriters of
each underwritten offering of the Registrable Securities shall be selected by
the mutual agreement of the Company and the Selling Holders of a majority of the
Registrable Securities so to be registered.
(g) Priority in Requested Registration. If the managing
underwriter of any underwritten offering shall advise the Company in writing
(with a copy to each Selling Holder) that, in its opinion, the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering within a price range acceptable to the
Selling Holders of a majority of the Registrable Securities requested to be
included in such registration, the Company will include in such registration, to
the extent of the number which the Company is so advised can be sold in such
offering, Registrable Securities requested to be included in such registration,
pro rata among the Selling Holders on the basis of the percentage of the
Registrable Securities of such Selling Holders requested so to be registered. In
connection with any such registration to which this Section 2.1(g) is
applicable, no securities other than Registrable Securities shall be covered by
such registration.
(h) Limitations on Registration on Request. Notwithstanding
anything in this Section 2.1 to the contrary, the Company shall not be required
to effect, in the aggregate pursuant to this Section 2.1, without regard to the
Holder making such request, more than two registrations during any twelve month
period.
2.2 Incidental Registration.
(a) Right to Include Registrable Securities. If the Company
proposes at any time to register any of its securities under the Securities Act
(other than a Shelf Registration Statement) by registration on Forms ▇-▇, ▇-▇ or
S-3 or any successor or similar form(s) (except registrations on such Forms or
similar form(s) solely for registration of securities in connection with an
employee benefit plan or dividend reinvestment plan or a merger, reorganization,
or consolidation), whether or not for sale for its own account, it will, subject
to Section 2.8 hereof, each such time give prompt written notice to all
registered Holders of its intention to do so and of such Holders' rights under
this Section 2.2. Upon the written request of any such Holder (a "Requesting
Holder") made as promptly as practicable and in any event within 20 days after
the receipt of any such notice (10 days if the Company states in such written
notice or gives telephonic notice to all registered Holders, with written
confirmation to follow promptly thereafter, that (i) such registration will be
on Form S-3 and (ii) such shorter period of time is required because of a
planned filing date) (which request shall specify the Registrable Securities
intended to be disposed of by such Requesting Holder), the Company will, subject
to Section 2.8 hereof, use its best efforts to effect the registration under the
Securities Act of all Registrable Securities which the Company has been so
requested to register by the Requesting Holders thereof; provided, that if, at
any time after giving written notice of its intention to register any securities
and prior to the effective date of the registration statement filed in
connection with such registration, the Company shall determine for any reason
not to register or to delay registration of such securities, the Company may, at
its election, give written notice of such determination to each Requesting
Holder and (i) in the case of a determination not to register, shall be relieved
of its obligation to register any Registrable Securities in connection with such
registration (but not from any obligation of the Company to pay the Registration
Expenses in connection therewith), without prejudice, however, to the rights of
any Holder or Holders entitled to do so to request that such registration be
effected as a registration under Section 2.1 and (ii) in the case of a
determination to delay registering, shall be permitted to delay registering any
Registrable Securities, for the same period as the delay in registering such
other securities. No registration effected under this Section 2.2 shall relieve
the Company of its obligation to effect any registration upon request under
Section 2.1. The Company will pay all Registration Expenses in connection with
registration of Registrable Securities requested pursuant to this Section 2.2.
(b) Priority in Incidental Registrations. If the managing
underwriter of any underwritten offering shall inform the Company (or, in the
case of a secondary offering, the selling stockholders initiating such offering)
of its belief that the number or type of Registrable Securities requested to be
included in such registration would materially adversely affect such offering,
then the Company will include in such registration, to the extent of the number
and type which the Company is (or the selling stockholders initiating such
offering are) so advised can be sold in (or during the time of) such offering,
first, all securities proposed by the Company (or, in the case of a secondary
offering, the selling stockholders initiating such offering) to be sold for its
(or their) own account, and second, such Registrable Securities and any other
securities of the Company requested to be included in such registration, pro
rata among all such Holders on the basis of the estimated gross proceeds of the
securities of such Holders requested to be so included.
(c) Selection of Managing Underwriter. The managing underwriter
of any underwritten offering pursuant to this Section 2.2 shall be selected by
the Company at its sole discretion.
2.3 Registration Procedures. If and whenever the Company is required
to use its best efforts to effect the registration of any Registrable Securities
under the Securities Act as provided in Section 2.1, 2.2 or 2.8, the Company
will as expeditiously as possible:
(a) in the case of a registration pursuant to Section 2.1 or 2.2,
prepare and (as soon as practicable, and in any event within 75 days in the case
of Form S-1 or S-2 and 30 days in the case of a registration requested on Form
S-3 after the end of the period within which requests for registration may be
given to the Company) file with the Commission the requisite registration
statement to effect such registration and thereafter use its best efforts to
cause such registration statement to become effective; provided, that the
Company may discontinue any registration of its securities which are not
Registrable Securities (and, under the circumstances specified in Section
2.2(a), its securities which are Registrable Securities) at any time prior to
the effective date of the registration statement relating thereto;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
to comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities covered by such registration statement
for such period as shall be required for the disposition of all of such
Registrable Securities, provided, that in the case of a registration pursuant to
Section 2.1 or 2.2, such period need not exceed 90 days;
(c) furnish to each seller of Registrable Securities covered by
such registration statement, such number of conformed copies of such
registration statement and of each such amendment and supplement thereto (in
each case including all exhibits), such number of copies of the prospectus
contained in such registration statement (including each preliminary prospectus
and any summary prospectus) and any other prospectus filed under Rule 424 under
the Securities Act, in conformity with the requirements of the Securities Act,
and such other documents, as such seller may reasonably request;
(d) use its best efforts:
(i) to register or qualify all Registrable Securities and
other securities covered by such registration statement under such other
securities or blue sky laws of such states of the United States of America where
an exemption is not available and as the sellers of Registrable Securities
covered by such registration statement shall reasonably request;
(ii) to keep such registration or qualification in effect
for so long as such registration statement remains in effect; and
(iii) to take any other action which may be reasonably
necessary or advisable to enable such sellers to consummate the disposition in
such jurisdictions of the securities to be sold by such sellers, except that the
Company shall not for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction wherein it would not but
for the requirements of this subdivision (d) be obligated to be so qualified or
to consent to general service of process in any such jurisdiction;
(e) use its best efforts to cause all Registrable Securities
covered by such registration statement to be registered with or approved by such
other federal or state governmental agencies or authorities as may be necessary
in the opinion of counsel to the Company and counsel to the seller or sellers
thereof to consummate the disposition of such Registrable Securities;
(f) in the case of a registration pursuant to Section 2.1 or 2.2,
furnish to each seller of Registrable Securities a signed counterpart of (i) an
opinion of counsel for the Company and (ii) a "comfort" letter signed by the
independent public accountants who have certified the Company's financial
statements included or incorporated by reference in such registration statement
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of the
accountant's comfort letter, with respect to events subsequent to the date of
such financial statements, as are customarily covered in opinions of issuer's
counsel and in accountant's comfort letters delivered to the underwriters in
underwritten public offerings of securities (and dated the dates such opinions
and comfort letters are customarily dated) and, in the case of the accountant's
comfort letter, such other financial matters, and in the case of the legal
opinion, such other legal matters, as the sellers of a majority of the
Registrable Securities covered by such registration statement, or the
underwriters, may reasonably request;
(g) notify each seller of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, upon discovery that, or upon
the happening of any event as a result of which, in the judgment of the Company,
the prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, in the light of the circumstances under which they were made,
and at the request of any such seller promptly prepare and furnish to it a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, in the judgment of the Company, as
thereafter delivered to the purchasers of such securities, such prospectus shall
not include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances under which they were made;
(h) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering the
period of at least twelve months, but not more than eighteen months, beginning
with the first full calendar month after the effective date of such registration
statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 promulgated thereunder, and promptly
furnish to each such seller of Registrable Securities a copy of any amendment or
supplement to such registration statement or prospectus;
(i) provide and cause to be maintained a transfer agent and
registrar (which, in each case, may be the Company) for all Registrable
Securities covered by such registration statement from and after a date not
later than the effective date of such registration; and
(j) use its best efforts to list all Registrable Securities
covered by such registration statement on any national securities exchange or
national quotations system on which Registrable Securities of the same class
covered by such registration statement are then listed.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish the Company in writing as
promptly as reasonably practicable such information regarding such seller and
the distribution of such securities as the Company may from time to time
reasonably request in writing.
Each Holder agrees that upon receipt of any notice from the Company of
the happening of any event of the kind described in subdivision (g) of this
Section 2.3, such Holder will forthwith discontinue such Holder's disposition of
Registrable Securities pursuant to the registration statement relating to such
Registrable Securities until such Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by subdivision (g) of this
Section 2.3 and, if so directed by the Company, will deliver to the Company (at
the Company's expense) all copies, other than permanent file copies, then in
such Holder's possession, of the prospectus relating to such Registrable
Securities current at the time of receipt of such notice.
2.4 Underwritten Offerings.
(a) Requested Underwritten Offerings. If requested by the
underwriters for any underwritten offering by Holders pursuant to a registration
requested under Section 2.1, the Company will enter into an underwriting
agreement with such underwriters for such offering, such agreement to be
reasonably satisfactory in substance and form to the Company, each such Holder
and the underwriters and to contain such representations and warranties by the
Company and such other terms as are generally prevailing in agreements of that
type, including, without limitation, indemnities to the effect and to the extent
provided in Section 2.7. The Holders of the Registrable Securities proposed to
be distributed by such underwriters will cooperate with the Company in the
negotiation of the underwriting agreement and will give consideration to the
reasonable suggestions of the Company regarding the form thereof. Such Holders
to be distributed by such underwriters shall be parties to such underwriting
agreement and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also be made to and
for the benefit of such Holders and that any or all of the conditions precedent
to the obligations of such underwriters under such underwriting agreement be
conditions precedent to the obligations of such Holders. Any such Holder shall
not be required to make any representations or warranties to or agreements with
the Company or the underwriters other than representations, warranties or
agreements regarding such Holder, such Holder's Registrable Securities, such
Holder's intended method of distribution and any other representations required
by law.
(b) Incidental Underwritten Offerings. If the Company proposes to
register any of its securities under the Securities Act as contemplated by
Section 2.2 and such securities are to be distributed by or through one or more
underwriters, the Company will, subject to Section 2.8 hereof, if requested by
any Requesting Holder arrange for such underwriters to include all the
Registrable Securities to be offered and sold by such Requesting Holder among
the securities of the Company to be distributed by such underwriters. The
Holders of Registrable Securities to be distributed by such underwriters shall
be parties to the underwriting agreement between the Company and such
underwriters and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also be made to and
for the benefit of such Holders and that any or all of the conditions precedent
to the obligations of such underwriters under such underwriting agreement be
conditions precedent to the obligations of such Holders. Any such Requesting
Holder shall not be required to make any representations or warranties to or
agreements with the Company or the underwriters other than representations,
warranties or agreements regarding such Requesting Holder, such Requesting
Holder's Registrable Securities and such Requesting Holder's intended method of
distribution or any other representations required by law. Notwithstanding the
foregoing provisions of this Section 2.4(b), the Company need not include any
Registrable Securities of any such Requesting Holder in an underwritten offering
of the Company's securities if the inclusion of such Requesting Holder's
securities, in the opinion of the managing underwriter for such offering by the
Company, might adversely affect such offering by the Company.
(c) Hold-back Agreements.
(i) In the case of any underwritten public offering by the
Company of shares of Common Stock, each Holder agrees not to effect
any disposition (other than a disposition of Registrable Securities
under such underwritten public offering or a bona fide pledge or a
disposition to an Affiliate of such Holder who agrees to be bound by
the provisions of this paragraph) (a "Disposition") of any Registrable
Securities, and not to effect any such Disposition of any other equity
security of the Company or of any security convertible into or
exchangeable or exercisable for any equity security of the Company (in
each case, other than as part of such underwritten public offering)
during the 15 days prior to, and during the 90-day period (or such
longer period as may be reasonably requested by the underwriter of
such offering) beginning on, the effective date of such registration
statement (except as apart of such registration); provided that each
Holder has received written notice of such registration at least 15
days prior to such effective date.
(ii) If any registration of Registrable Securities shall be in
connection with an underwritten public offering, the Company agrees
(x) not to effect any public sale or distribution of any of its equity
securities or of any security convertible into or exchangeable or
exercisable for any equity security of the Company (other than any
such sale or distribution of such securities in connection with any
merger or consolidation by the Company or any subsidiary of the
Company of the capital stock or substantially all the assets of any
other person or in connection with an employee stock option or other
benefit plan) during the 90 days prior to, and during the 180-day
period beginning on, the effective date of such registration statement
(except as part of such registration) and (y) that any agreement
entered into after the date of this Agreement pursuant to which the
Company issues or agrees to issue any privately placed equity
securities shall contain a provision under which Holders of such
securities agree not to effect any Disposition of any such securities
during the period referred to in the foregoing clause (x) (except as
part of such registration, if permitted).
2.5 Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company will give the Holders of Registrable
Securities registered under such registration statement, their underwriters, if
any, and their respective counsel and accountants the opportunity to participate
in the preparation of such registration statement, each prospectus included
therein or filed with the Commission, and, to the extent practicable, each
amendment thereof or supplement thereto, and give each of them such access to
its books and records (to the extent customarily given to underwriters of the
Company's securities) and such opportunities to discuss the business of the
Company with its officers and the independent public accountants who have
certified its financial statements as shall be necessary, in the opinion of such
Holders' and such underwriters' respective counsel, to conduct a reasonable
investigation within the meaning of the Securities Act.
2.6 Limitations, Conditions and Qualifications to Obligations Under
Registration Covenants. The obligation of the Company to use its best efforts to
cause the Registrable Securities to be registered under the Securities Act is
subject to the following limitations, conditions and qualifications.
(a) The Company shall be entitled to postpone for a reasonable
period of time (but not exceeding 180 days, in the case of a registration
pursuant to Section 2.1 or 2.2, and 30 days in the case of a registration
pursuant to Section 2.8) the filing of any registration statement otherwise
required to be prepared and filed by it pursuant to Section 2.1, if the Company
determines, in its reasonable judgment, that such registration and offering (i)
would interfere with any financing, acquisition, merger, consolidation, material
joint venture, corporate reorganization or other material transaction involving
the Company or any of its Affiliates, or (ii) would require premature disclosure
of any of the foregoing transactions (or of the existence of negotiations,
discussions or pending proposals with respect thereto) or of any pending or
threatened litigation, claim, assessment or governmental investigation which
would be material to the Company, and promptly gives the Holders requesting
registration thereof pursuant to Section 2.1 written notice of such delay. If
the Company shall so postpone the filing of a registration statement, such
Holders of Registrable Securities requesting registration thereof pursuant to
Section 2.1 shall have the right to withdraw the request for registration by
giving written notice to the Company within 30 days after receipt of the notice
of postponement and, in the event of such withdrawal, such request shall not be
counted for purposes of the requests for registration to which Holders are
entitled pursuant to Section 2.1 hereof.
(b) The Company shall not be obligated to effect the registration
of Registrable Securities of any Holder pursuant to Section 2.1, 2.2 or 2.8
unless such Holder consents to reasonable conditions imposed by the Company,
including without limitation:
(i) conditions prohibiting the sale of shares by such Holder
until the registration shall have been effective for a specified
period of time;
(ii) conditions requiring such Holder to comply with all
prospectus delivery requirements of the Securities Act and with all
anti-stabilization, anti-manipulation and similar provisions of
Section 10 of the Exchange Act and any rules issued thereunder by the
Commission, and to furnish to the Company information about sales made
in such public offering;
(iii) conditions prohibiting such Holder from effecting the
sale of shares upon receipt of telegraphic or written notice from the
Company (until further notice) given to permit the Company to correct
or update a registration statement or prospectus; and
(iv) conditions requiring that at the end of the period
during which the Company is obligated to keep the registration
statement effective under Section 2.3(b) or 2.8(c), such Holder shall
discontinue sales of shares pursuant to such registration statement
upon receipt of notice from the Company of its intention to remove
from registration the shares covered by such registration statement
that remain unsold, and requiring such Holder to notify the Company of
the number of Registrable Securities registered that remain unsold
promptly upon receipt of notice from the Company.
(c) Holders shall use their reasonable best efforts to effect as
wide a distribution of such Registrable Securities as reasonably practicable,
and in no event shall any sale of Registrable Securities be made knowingly to
(i) any Person (including its Affiliates) or (ii) any Persons or entities which
are to the knowledge of such Holders (or to the knowledge of any underwriter for
such Holders) part of any "group" within the meaning of Regulation 13D of the
Exchange Act which includes such purchaser or any of its Affiliates that, after
giving effect to such sale, would beneficially own securities representing more
than 5% of the aggregate voting power of all outstanding voting securities of
the Company. The Holders of such Registrable Securities shall secure the
agreement of their underwriter or underwriters, if any, for such offering to
comply with the foregoing.
2.7 Indemnification.
(a) Indemnification by the Company. In the event of any
registration of any securities of the Company under the Securities Act, the
Company will, and hereby does, indemnify and hold harmless, in the case of any
registration statement filed pursuant to Section 2.1, 2.2 or 2.8, each seller of
any Registrable Securities covered by such registration statement, its
directors, officers, partners, agents and Affiliates and each other Person who
participates as an underwriter in the offering or sale of such securities and
each other Person, if any, who controls such seller or any such underwriter
within the meaning of the Securities Act (a "Controlling Person"), insofar as
losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any registration statement under which such securities were registered under the
Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein in light of the
circumstances in which they were made not misleading, and the Company will
reimburse such seller and each such director, officer, partner, agent or
affiliate, underwriter and Controlling Person for any legal or any other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, liability, action or proceeding; provided, that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage, liability (or action or proceeding in respect thereof) or
expense arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement,
any such preliminary prospectus, final prospectus, summary prospectus, amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company through an instrument executed by or on behalf of such
seller or underwriter, as the case may be, specifically stating that it is for
use in the preparation thereof; and provided further, that the Company shall not
be liable to any Person who participates as an underwriter in the offering or
sale of Registrable Securities or any other Person, if any, who controls such
underwriter within the meaning of the Securities Act, in any such case to the
extent that any such loss, claim, damage, liability (or action or proceeding in
respect thereof) or expense arises out of such Person's failure to send or give
a copy of the final prospectus, as the same may be then supplemented or amended,
to the Person asserting an untrue statement or alleged untrue statement or
omission or alleged omission at or prior to the written confirmation of the sale
of Registrable Securities to such Person if such statement or omission was
corrected in such final prospectus so long as such final prospectus, and any
amendments or supplements thereto, have been furnished to such underwriter. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of such seller or any such director, officer, partner,
agent or affiliate or Controlling Person and shall survive the transfer of such
securities by such seller.
(b) Indemnification by the Sellers. As a condition to including
any Registrable Securities in any registration statement, the Company shall have
received an undertaking satisfactory to it from the prospective seller of such
Registrable Securities, to indemnify and hold harmless (in the same manner and
to the same extent as set forth in subdivision (a) of this Section 2.7) the
Company, and each director of the Company, each officer of the Company and each
other Person, if any, who controls the Company within the meaning of the
Securities Act (a "Company Controlling Person"), with respect to any statement
or alleged statement in or omission or alleged omission from such registration
statement, any preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, if such statement or
alleged statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company through an
instrument duly executed by such seller specifically stating that it is for use
in the preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement; provided, however, that
the liability of such indemnifying party under this Section 2.7(b) shall be
limited to the amount of proceeds received by such indemnifying party in the
offering giving rise to such liability. Such indemnity shall remain in full
force and effect, regardless of any investigation made by or on behalf of the
Company or any such director, officer or Company Controlling Person and shall
survive the transfer of such securities by such seller.
(c) Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this Section 2.7,
such indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give written notice to the latter of the commencement of
such action; provided, however, that the failure of any indemnified party to
give notice as provided herein shall not relieve the indemnifying party of its
obligations under the preceding subdivisions of this Section 2.7, except to the
extent that the indemnifying party is actually prejudiced by such failure to
give notice. In case any such action is brought against an indemnified party,
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties is reasonably likely to exist
in respect of such claim, the indemnifying party shall be entitled to
participate in and, to assume the defense thereof, jointly with any other
indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than reasonable costs of
investigation unless in such indemnified party's reasonable judgment a conflict
of interest between such indemnified and indemnifying parties arises in respect
of such claim after the assumption of the defense thereof and the indemnified
party notifies the indemnifying party of such indemnified party's judgment and
the basis therefor. No indemnifying party shall be liable for any settlement of
any action or proceeding effected without its written consent, which consent
shall not be unreasonably withheld. No indemnifying party shall, without the
consent of the indemnified party, consent to entry of any judgment or enter into
any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from
all liability in respect of such claim or litigation.
(d) Contribution. If the indemnification provided for in this
Section 2.7 shall for any reason be held by a court to be unavailable to an
indemnified party under subparagraph (a) or (b) hereof in respect of any loss,
claim, damage or liability, or any action in respect thereof, then, in lieu of
the amount paid or payable under subparagraph (a) or (b) hereof, the indemnified
party and the indemnifying party under subparagraph (a) or (b) hereof shall
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating the
same), (i) in such proportion as is appropriate to reflect the relative fault of
the Company and the prospective sellers of Registrable Securities covered by the
registration statement which resulted in such loss, claims, damage or liability,
or action in respect thereof, with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as shall be appropriate to reflect the relative benefits received by
the Company and such prospective sellers from the offering of the securities
covered by such registration statement. 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. Such prospective sellers' obligations to
contribute as provided in this subparagraph (d) are several in proportion to the
relative value of their respective Registrable Securities covered by such
registration statement and not joint. In addition, no Person shall be obligated
to contribute hereunder any amounts in payment for any settlement of any action
or claim effected without such Person's consent, which consent shall not be
unreasonably withheld.
(e) Other Indemnification. Indemnification and contribution
similar to that specified in the preceding subdivisions of this Section 2.7
(with appropriate modifications) shall be given by the Company and each seller
of Registrable Securities with respect to any required registration or other
qualification of securities under any Federal or state law or regulation of any
governmental authority other than the Securities Act.
(f) Indemnification Payments. The indemnification and
contribution required by this Section 2.7 shall be made by periodic payments of
the amount thereof during the course of the investigation or defense, as and
when bills are received or expense, loss, damage or liability is incurred. In
any case in which it shall be judicially determined that a party is not entitled
to indemnification or contribution, any payments previously received by such
party hereunder shall be promptly reimbursed.
2.8 Shelf Registration Statements.
(a) Within 120 days of the date hereof, the Company shall have
filed with the Commission and shall use its best efforts to cause to be declared
effective within 180 days from the date hereof, a Shelf Registration Statement,
relating to the offer and sale of the Registrable Securities owned by the
Holders listed on Schedule A hereto.
(b) The Company will use its best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the prospectus
forming part thereof to be usable by such Holders for a period of three years
from the date such Shelf Registration Statement is first declared effective by
the Commission, or for such shorter period that will terminate when all
Registrable Securities covered by such Shelf Registration Statement have been
sold pursuant thereto or cease to be outstanding or otherwise to be Registrable
Securities.
(c) The Company will pay the Registration Expenses in connection
with any Shelf Registration Statement pursuant to this Section 2.8.
3. Definitions. As used herein, unless the context otherwise requires,
the following terms have the following respective meanings (capitalized terms
used but not defined herein having the meanings set forth in the Stockholders
Agreement):
"Affiliate" shall have the meaning ascribed to such term in Rule 12b-2
of the General Rules and Regulations under the Exchange Act.
"Commission" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. Reference to a
particular section of the Securities Exchange Act of 1934, as amended, shall
include a reference to the comparable section, if any, of any such similar
Federal statute.
"Holder" means any holder of Registrable Securities.
"Person" means a corporation, an association, a partnership, an
organization, a business, an individual, a governmental or political subdivision
thereof or a governmental agency.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with Section 2, including, without limitation, all
registration, filing and fees of the National Association of Securities Dealers,
Inc., all listing fees, all fees and expenses of complying with securities or
blue sky laws (including, without limitation, reasonable fees and disbursements
of counsel for the underwriters in connection with blue sky qualifications of
the Registrable Securities), all word processing, duplicating and printing
expenses, messenger and delivery expenses, the fees and disbursements of counsel
for the Company and of its independent public accountants, including the
expenses of "cold comfort" letters required by or incident to such performance
and compliance, any fees and disbursements of underwriters (including, without
limitation, fees and expenses of counsel to the underwriters) customarily paid
by issuers or sellers of securities and the reasonable fees and expenses of one
counsel to the Selling Holders (selected by Selling Holders representing at
least a majority of the Registrable Securities covered by such registration);
provided, however, that Registration Expenses shall exclude, and the sellers of
the Registrable Securities being registered shall pay, underwriters' fees and
underwriting discounts and commissions and transfer taxes in respect of the
Registrable Securities being registered.
"Registrable Securities" means (i) the shares of Common Stock and the
shares of Common Stock issuable upon conversion of the Series A Preferred Stock
held or otherwise acquired by the Investors (including by way of issuance upon
exercise or conversion of any warrants or other securities) and (ii) any Common
Stock of the Company issuable or issued with respect to the Common Stock, the
Series A Preferred Stock and/or warrants or other securities referred to in
clause (i) by way of a merger, consolidation, stock split, stock dividend,
recapitalization of the Company or similar transaction. As to any particular
Registrable Securities, once issued such securities shall cease to be
Registrable Securities when (a) a registration statement with respect to the
sale of such securities shall have become effective under the Securities Act and
such securities shall have been disposed of in accordance with such registration
statement, (b) they shall have been sold as permitted by, and in compliance
with, Rule 144 (or successor provision) promulgated under the Securities Act,
(c) they shall have been otherwise transferred, new certificates for them not
bearing a legend restricting further transfer under the Securities Act shall
have been delivered by the Company and subsequent public distribution of them
shall not require registration of them under the Securities Act, or (d) they
shall have ceased to be outstanding.
"Required Number of Shares" means shares of Common Stock (or
securities convertible into or exchangeable or exercisable for Common Stock)
representing a total of 1,000,000 shares of Common Stock, subject to adjustment
as provided in Section 12.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. References to a
particular section of the Securities Act of 1933, as amended, shall include a
reference to the comparable section, if any, of any such similar Federal
statute.
"Shelf Registration Statement" means either Shelf Registration
Statement No. 1 or Shelf Registration Statement No. 2.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company filed pursuant to Section 2.8, on an appropriate form
under Rule 415 under the Securities Act, or any similar rule that may be adopted
by the Commission, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Stockholders Agreement" shall mean the Amended and Restated
Stockholders Agreement dated the date hereof between the Company and the
stockholders listed on the signature pages thereof.
4. Rule 144. The Company shall take all actions reasonably necessary
to enable Holders of Common Stock or Series A Preferred Stock to sell such
securities without registration under the Securities Act within the limitation
of the exemptions provided by (a) Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or (b) any similar rule or regulation
hereafter adopted by the Commission including, without limiting the generality
of the foregoing, filing on a timely basis all reports required to be filed by
the Exchange Act. Upon the request of any Holder of Common Stock or Series A
Preferred Stock, the Company will deliver to such Holder a written statement as
to whether it has complied with such requirements.
5. Amendments and Waivers. This Agreement may be amended with the
consent of the Company and the Company may take any action herein prohibited, or
omit to perform any act herein required to be performed by it, only if the
Company shall have obtained the written consent to such amendment, action or
omission to act, of:
(i) the Holders of at least a majority of the Registrable
Securities (calculated on a fully diluted basis);
(ii) GE Capital Equity Investments, Inc. (collectively, with
General Electric Capital Corporation, "GECC"), in the event GECC beneficially
owns at least 2,000,000 shares of Registrable Securities; and
(iii) TH ▇▇▇.▇▇▇▇▇▇ Internet Partners, L.P. and TH ▇▇▇.▇▇▇▇▇▇
Internet Parallel Partners, L.P. (collectively with their affiliates, "THLi"),
in the event THLi beneficially owns at least 2,000,000 shares of Registrable
Securities.
Each beneficial owner of any Registrable Securities at the time or thereafter
outstanding shall be bound by any consent authorized by this Section 5, whether
or not such Registrable Securities shall have been marked to indicate such
consent.
6. Nominees for Beneficial Owners. In the event that any Registrable
Securities are held by a nominee for the beneficial owner thereof, the
beneficial owner thereof may, at its election in writing delivered to the
Company, be treated as the Holder of such Registrable Securities for purposes of
any request or other action by any Holder or Holders pursuant to this Agreement
or any determination of any number or percentage of Registrable Securities held
by any Holder or Holders contemplated by this Agreement. If the beneficial owner
of any Registrable Securities so elects, the Company may require assurances
reasonably satisfactory to it of such owner's beneficial ownership of such
Registrable Securities.
7. Notices. All communications provided for hereunder shall be sent by
courier or other overnight delivery service, shall be effective upon receipt,
and shall be addressed as follows:
(a) if to an Investor, at such address as the Investor shall have
furnished to the Company in writing;
(b) if to any other Holder, at the address that such Holder
shall have furnished to the Company in writing, or, until any such other holder
so furnishes to the Company an address, then to and at the address of the last
Holder of such Registrable Securities who has furnished an address to the
Company; or
(c) if to the Company, addressed to it at ▇▇▇▇▇▇'▇ Furniture,
Inc. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Esq. or at such other address as the Company shall have furnished to each Holder
at the time outstanding.
8. Assignment; Calculation of Interests in Registrable Securities.
(a) This Agreement shall be binding upon and inure the benefit of
and be enforceable by the parties hereto and, with respect to the Company, its
respective successors and assigns and, with respect to the Investors, any
beneficial owner of any Registrable Securities, subject to the provisions
respecting the minimum number or proportion of shares of Registrable Securities
required in order to be entitled to certain rights, or take certain actions,
contained herein.
(b) All references to Registrable Securities shall be calculated
as if all shares of Series A Preferred Stock had been converted into shares of
Common Stock as of the date of such calculation; provided, that any proportion
of the Registrable Securities necessary to be determined in connection with a
specific registration shall be calculated based upon the number of Registrable
Securities participating in such registration only (assuming any shares of
Series A Preferred Stock had been converted into shares of Common Stock.)
9. Descriptive Headings. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only and
shall not limit or otherwise affect the meaning hereof.
10. Governing Law; Consent to Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York,
including, without limitation, Sections 5-1401 and 5-1402 of the New York
General Obligations Law and New York Civil Practice Laws and Rules 327(b). Each
of the parties hereto hereby irrevocably and unconditionally consents to submit
to the exclusive jurisdiction of the courts of the State of New York and of the
United States of America, in each case located in the County of New York, for
any action, proceeding or investigation in any court or before any governmental
authority ("litigation") arising out of or relating to this Agreement and the
transactions contemplated hereby (and agrees not to commence any litigation
relating thereto except in such courts), and further agrees that service of any
process, summons, notice or document by U.S. Registered Mail to its respective
address set forth in this Agreement shall be effective service of process for
any litigation brought against it in any such court. Each of the parties hereto
hereby irrevocably and unconditionally waives any objection to the laying of
venue of any litigation arising out of this Agreement or the transactions
contemplated hereby in the courts of the State of New York or the United States
of America, in each case located in the County of New York, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such litigation brought in any such court has been brought
in an inconvenient forum. Each of the parties irrevocably and unconditionally
waives, to the fullest extent permitted by applicable law, any and all rights to
trial by jury in connection with any litigation arising out of or relating to
this Agreement or the transactions contemplated hereby.
11. No Inconsistent Agreements. The Company will not hereafter enter
into any agreement with respect to its securities which is inconsistent with the
rights granted to the Holders in this Agreement.
12. Recapitalizations, etc. In the event that any capital stock or
other securities are issued in respect of, in exchange for, or in substitution
of, any Registrable Securities by reason of any reorganization,
recapitalization, reclassification, merger, consolidation, spin-off, partial or
complete liquidation, stock dividend, split-up, sale of assets, distribution to
stockholders or combination of the shares of Registrable Securities or any other
change in the Company's capital structure, appropriate adjustments shall be made
in this Agreement so as to fairly and equitably preserve, to the extent
practicable, the original rights and obligations of the parties hereto under
this Agreement. At the request of the Selling Holders of a majority of
Registrable Securities in connection with any registration pursuant to Section
2.1 hereof, the Company will effect such adjustments to the outstanding Common
Stock, by way of stock split or stock dividend as the Selling Holders may
reasonably request to facilitate the registration and sale of the Common Stock.
13. Attorneys' Fees. In any action or proceeding brought to enforce
any provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the prevailing party to such action or proceeding shall
be entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be executed and delivered by their respective officers thereunto
duly authorized as of the date first above written.
▇▇▇▇▇▇'▇ FURNITURE, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
GE CAPITAL EQUITY INVESTMENTS, INC.
By:
-------------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By:
-------------------------------------
Name:
Title:
PERMAL CAPITAL MANAGEMENT, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name:
Title:
PERMAL SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name:
Title:
PERMAL CAPITAL PARTNERS, L.P.
By: PERMAL MANAGEMENT
CORPORATION, its Investment
Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name:
Title:
PERMAL ASSET MANAGEMENT
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name:
Title:
PERMAL SPECIAL OPPORTUNITIES, LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name:
Title:
JAPAN OMNIBUS LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name:
Title:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ SOUEDE
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ Souede
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. AND ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
UNITED GULF BANK (B.S.C.) E.C.
By:
-------------------------------------
Name:
Title:
KUWAIT INVESTMENT PROJECTS COMPANY
By:
-------------------------------------
Name:
Title:
ATCO HOLDINGS, LTD.
By:
-------------------------------------
Name:
Title:
ATCO DEVELOPMENT, INC.
By:
-------------------------------------
Name:
Title:
PILOT HOLDINGS, L.P.
By: SHED INVESTMENTS, LLC, its General
Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Member
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ TRUST I
By:
-------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ TRUST I
By:
-------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ TRUST I
By:
-------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ TRUST I
By:
-------------------------------------
Name:
Title:
▇▇▇▇▇▇ FAMILY TRUST
By:
-------------------------------------
Name:
Title:
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
By:
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:
-------------------------------------
ASCEND PARTNERS, L.P.
By:
-------------------------------------
Name:
Title:
▇▇▇▇▇ ▇▇▇▇▇
By:
-------------------------------------
▇▇▇▇▇▇▇ REVOCABLE TRUST
By:
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Trustee
By:
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Trustee
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇
By:
-------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By:
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, UTMA, CA
By:
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Custodian
▇▇▇▇▇ ▇. ▇▇▇▇▇, UTMA, CA
By:
-------------------------------------
Name:
Title:
▇▇▇▇ ▇. ▇▇▇
By:
-------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
By:
-------------------------------------
DIAMOND A. PARTNERS, L.P.
By:
-------------------------------------
Name:
Title:
J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By:
-------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ - ▇▇▇
By:
-------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ - ▇▇▇
By:
-------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ ▇. AND ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇ FAMILY TRUST
By:
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Trustee
By:
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Trustee
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:
-------------------------------------
Name:
Title:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:
-------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
By:
-------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ TRUST
By:
-------------------------------------
Name:
Title:
▇▇▇▇▇ ▇▇▇▇▇▇▇
By:
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ PROFESSIONAL
CORPORATION DEFINED BENEFIT
PLAN
By:
-------------------------------------
Name:
Title:
▇▇▇▇ ▇▇▇▇▇▇▇
By:
-------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
By:
-------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
By:
-------------------------------------
▇▇▇▇▇ ▇▇▇▇
By:
-------------------------------------
▇▇▇▇▇▇ LONDON
By:
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:
-------------------------------------
THE MUHL FAMILY TRUST
By:
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Trustee
By:
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Trustee
PACIFIC SECURITY GROUP, INC.
By:
-------------------------------------
Name:
Title:
POINTE INVESTMENTS CAPITAL, LTD.
By:
-------------------------------------
Name:
Title:
POLLAT, ▇▇▇▇▇ & CO., INC.
By:
-------------------------------------
Name:
Title:
▇▇▇▇▇ AND ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
By:
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
By:
-------------------------------------
Name: ▇▇▇▇ Przbocki
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
By:
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
By:
-------------------------------------
G. ▇▇▇▇▇ ▇▇▇▇▇▇▇.
By:
-------------------------------------
LORD ▇▇▇▇▇ ▇▇▇▇▇▇▇
By:
-------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By:
-------------------------------------
WAVE ENTERPRISES, INC.
By:
-------------------------------------
Name:
Title:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇
By:
-------------------------------------
Name:
Title:
▇.▇. ▇▇▇▇▇
By:
-------------------------------------
Name:
Title:
ZAXIS PARTNERS, L.P.
By:
-------------------------------------
Name:
Title:
TH ▇▇▇.▇▇▇▇▇▇ INTERNET PARTNERS, L.P.
By: TH ▇▇▇.▇▇▇▇▇▇ INTERNET FUND
ADVISORS, L.P., its General Partner
By: TH ▇▇▇.▇▇▇▇▇▇ INTERNET FUND
ADVISORS, LLC, its General Partner
By:
-------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇
Title: Vice President
TH ▇▇▇.▇▇▇▇▇▇ INTERNET PARALLEL
PARTNERS, L.P.
By: TH ▇▇▇.▇▇▇▇▇▇ INTERNET FUND
ADVISORS, L.P., its General Partner
By: TH ▇▇▇.▇▇▇▇▇▇ INTERNET FUND
ADVISORS, LLC, its General Partner
By:
-------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇
Title: Vice President
SCHEDULE A
Ascend Partners, L.P.
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ Revocable Trust
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇, UTMA, CA
▇▇▇▇▇ ▇. ▇▇▇▇▇, UTMA, CA
▇▇▇▇ ▇. ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
Diamond A. Partners, L.P.
J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ - ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ - ▇▇▇
▇▇▇▇▇▇▇ ▇. and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇ Family Trust
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Trust I
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Trust I
▇▇▇▇▇▇ Family Trust
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Trust I
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust I
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Trust
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Professional Corporation Defined Benefit Plan
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ London
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
The Muhl Family Trust
Pacific Security Group, Inc.
Pilot Holdings, L.P.
Pointe Investments Capital, Ltd.
Pollat, ▇▇▇▇▇ & Co., Inc.
▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
G. ▇▇▇▇▇ ▇▇▇▇▇▇▇.
Lord ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Wave Enterprises, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇
Zaxis Partners, L.P.