XXXXXX CORPORATION
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is entered into as
of the 4th day of June 2002, by and among XXXXXX CORPORATION, a Delaware
corporation (the "Company"), and each stockholder of Celiant Corporation, a
Delaware corporation ("Celiant"), listed on the signature pages hereto (each,
a "Stockholder" and, collectively, the "Stockholders").
RECITALS
A. The Company, Celiant and Ptolemy Acquisition Co., a Delaware
corporation ("Sub"), have entered into an Agreement and Plan of Merger (the
"Merger Agreement"), dated February 18, 2002, pursuant to which Celiant will
be merged (the "Merger") with and into Sub and the shares of capital stock of
Celiant held by the Stockholders will be converted into cash and Common Stock.
B. It is a condition to Celiant's obligation to consummate the Merger
Agreement that the Company enter into this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises, covenants and
conditions set forth in this Agreement, the parties mutually agree as follows:
SECTION 1. GENERAL
1.1 Definitions. As used in this Agreement the following terms shall have
the following respective meanings:
"Common Stock" means the common stock, $0.01 par value, of the
Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Form S-3" means such form under the Securities Act as in effect on
the date hereof or any successor registration form under the Securities
Act subsequently adopted by the SEC which permits inclusion or
incorporation of substantial information by reference to other documents
filed by the Company with the SEC.
"Holder" means any Person owning of record Registrable Securities
that have not been sold to the public or any assignee of record of such
Registrable Securities in accordance with Section 2.8 hereof, including
without limitation the Stockholders and their respective permitted
successors and assigns.
"Person" means any individual, trust, corporation, partnership,
limited partnership, limited liability company or other business
association or entity, court, governmental body or governmental agency.
"Register," "registered," and "registration" refer to a registration
effected by preparing and filing a registration statement in compliance
with the Securities Act, and the declaration or ordering of effectiveness
of such registration statement or document.
"Registrable Securities" means Common Stock issued to the
Stockholders in connection with the Merger.
"Registration Expenses" shall mean all expenses incurred by the
Company in complying with Sections 2.1, 2.2 and 2.3 hereof, including,
without limitation, all registration and filing fees, printing expenses,
fees and disbursements of counsel for the Company, Blue Sky fees and
expenses, the expense of any auditor letter and any special audits
incident to or required by any such registration, but shall specifically
exclude Selling Expenses.
"Rule 144" means Rule 144 promulgated under the Securities Act as in
effect on the date hereof or any successor rule or regulation under the
Securities Act subsequently adopted by the SEC.
"SEC" or "Commission" means the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to any sale hereunder and all fees and expenses of
legal counsel to the Holders.
SECTION 2. REGISTRATION
2.1 Required Registration.
(a) Registration Statement. The Company shall use its reasonable best
efforts to prepare and file as promptly as practicable after the Effective
Time (as defined in the Merger Agreement) with the SEC a registration
statement on Form S-3 with respect to the Registrable Securities (the
"Registration Statement") and to effect all such registrations, qualifications
and compliances (including, without limitation, obtaining appropriate
qualifications under applicable state securities or "blue sky" laws and
compliance with any other applicable governmental requirements or regulations)
as any Holder may reasonably request and that would permit or facilitate the
sale of Registrable Securities in the open market (provided, however, that the
Company shall not be required in connection therewith to qualify to do
business or to file a general consent to service of process in any such state
or jurisdiction), and shall use its reasonable best efforts so that such
Registration Statement and all other such registrations, qualifications and
compliances may become effective no later than ninety (90) days following the
Effective Time. Notwithstanding the foregoing, the Company shall not be
obligated to effect an underwritten registration statement.
(b) Effectiveness, Suspension Right.
(i) The Company will use its reasonable best efforts to maintain the
effectiveness of the Registration Statement and other applicable
registrations, qualifications and compliances for up to two (2) years from the
Effective Time (the "Registration Effective Period"), and from time to time
will amend or supplement the Registration Statement and the prospectus
contained therein as and to the extent necessary to comply with the Securities
Act, the Exchange Act and any applicable state securities statute or
regulation, subject to the following limitations and qualifications.
(ii) Following the date on which the Registration Statement is first
declared effective, the Holders will be permitted (subject in all cases to
Section 2.2 below) to offer and sell Registrable Securities during the
Registration Effective Period in the manner described in the Registration
Statement, provided that the Registration Statement remains effective and has
not been suspended, and provided further that until the first anniversary of
the Effective Time, no Holder shall be permitted to sell Registrable
Securities in excess of the number of Registrable Securities that such Holder
would be entitled to sell under subsection (e) of Rule 144 if the Registrable
Securities were "restricted securities" as defined in Rule 144 (assuming for
such purpose (and for the avoidance of doubt) that one year has elapsed since
the Effective Time and accordingly the volume requirements under subsection
(e) of Rule 144 are immediately applicable to the Holders). No such volume
limitation shall apply to any Holder after the first anniversary of the
Effective Time;
(iii) Notwithstanding any other provision of this Section 2.1 but
subject to Section 2.2, the Company shall have the right at any time (but only
five times during the term of this Agreement and no more than three times in
any twelve-month period) to require that all Holders suspend further open
market offers and sales of Registrable Securities whenever, and only if, in
the reasonable good faith judgment of the Company after receipt of advice from
outside counsel there is or there is reasonably likely to be in existence
material undisclosed information or events with respect to the Company (the
"Suspension Right"). In the event the Company exercises the Suspension Right,
such suspension will continue only for the period of time reasonably necessary
for disclosure to occur at a time that is not detrimental to the Company or
its stockholders or until such time as the information or event is no longer
material (but in no event more than 30 days), each as determined in good faith
by the Company after receipt of advice from outside counsel. The Company will
promptly give the Holders notice of any such suspension and will use all
reasonable efforts to minimize the length of the suspension.
2.2 Procedure for Sale of Shares under Registration Statement.
(a) Delivery of Prospectus. For any offer or sale of any of the
Registrable Securities by a Holder in a transaction that is not exempt under
the Securities Act, the Holder, in addition to complying with any other
federal securities laws, shall deliver a copy of the final prospectus (or
amendment of or supplement to such prospectus) of the Company covering the
Registrable Securities in the form furnished to the Holder by the Company to
the purchaser of any of the Registrable Securities on or before the settlement
date for the purchase of such Registrable Securities.
(b) Copies of Prospectuses. The Company shall furnish to each Holder a
reasonable number of copies of the final prospectus (or amendment of or
supplement to such prospectus) of the Company covering the Registrable
Securities as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus shall not as of the
date of delivery to the Holder 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 or incomplete in the light of the
circumstances then existing, in each case exclusive of information supplied by
such Holder expressly for inclusion in the Registration Statement.
2.3 Piggyback Registrations.
(a) The Company shall notify all Holders in writing at least thirty
(30) days prior to the filing of any registration statement under the
Securities Act for purposes of a public offering of securities of the
Company (including, but not limited to, registration statements relating
to offerings of securities of the Company for the account of stockholders
of the Company, but excluding the Registration Statement and registration
statements on Forms S-4 and S-8) and will offer to include in such
registration statement all of such Registrable Securities held by such
Holder. If the registration statement under which the Company gives
notice under this Section 2.3 is for an underwritten offering, the
Company shall so advise the Holders in such notice. Each Holder desiring
to include in any such registration statement all or any part of the
Registrable Securities held by it shall, within fifteen (15) days after
receipt of the above-described notice from the Company, so notify the
Company in writing, provided that until the first anniversary of the
Effective Time, no Holder shall be permitted to sell Registrable
Securities in excess of the number of Registrable Securities that such
Holder would be entitled to sell under subsection (e) of Rule 144 if the
Registrable Securities were "restricted securities" as defined in Rule
144 (assuming for such purpose (and for the avoidance of doubt) that one
year has elapsed since the Effective Time and accordingly the volume
requirements under subsection (e) of Rule 144 are immediately applicable
to the Holders). No such volume limitation shall apply to any Holder
after the first anniversary of the Effective Time. If a Holder decides
not to include all of its Registrable Securities in any registration
statement thereafter filed by the Company, such Holder shall nevertheless
continue to have the right to include any Registrable Securities in any
subsequent registration statement or registration statements as may be
filed by the Company with respect to offerings of its securities, all
upon the terms and conditions set forth herein.
(b) If the registration statement under which the Company gives
notice under this Section 2.3 is for an underwritten offering, and the
managing underwriters advise the Company in writing that in their opinion
the number of securities requested to be included in such registration
(i) creates a substantial risk that the price per share in such
registration will be materially and adversely affected, or (ii) exceeds
the number which can be reasonably sold in such offering, then the number
of shares that may be included in the underwriting shall be allocated,
first, to the Company if the Company, and not a stockholder, initiated
the filing of the registration statement; second, to the Holders on a pro
rata basis based on the total number of Registrable Securities held by
the Holders desiring to participate in the registration and underwriting
pursuant to the terms of this Section 2.3; and third, to any other
stockholder of the Company participating in such underwritten offering on
a pro rata basis based on the number of shares that all such stockholders
desire to register.
(c) Right to Terminate Registration. The Company shall have the
right to terminate or withdraw any registration initiated by it under
this Section 2.3 prior to the effectiveness of such registration whether
or not any Holder has elected to include Registrable Securities in such
registration. The Registration Expenses of such withdrawn registration
shall be borne by the Company in accordance with Section 2.4 hereof.
2.4 Expenses of Registration. Except as provided herein, all Registration
Expenses incurred in connection with any registration, qualification or
compliance pursuant to Section 2.1 or any registration under Section 2.3
herein shall be borne by the Company. All Selling Expenses incurred in
connection with any registrations hereunder shall be borne by the holders of
the securities so registered pro rata on the basis of the number of shares so
registered.
2.5 Termination of Registration Rights. All registration rights granted
under this Section 2 shall terminate and be of no further force and effect
upon the second anniversary of the Effective Time.
2.6 Delay of Registration; Furnishing Information. It shall be a
condition precedent to the obligations of the Company to take any action
pursuant to Section 2.1 or 2.3 that the selling Holders shall furnish to the
Company such information regarding themselves, the Registrable Securities held
by them and the intended method of disposition of such securities as
reasonably shall be required to effect the registration of their Registrable
Securities.
2.7 Indemnification. In the event any Registrable Securities are included
in a registration statement under Section 2.1 or 2.3:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, the partners, members, officers and directors
of each Holder, any underwriter (as defined in the Securities Act) and
each person, if any, who controls such Holder or underwriter within the
meaning of the Securities Act or the Exchange Act, against any losses,
claims, damages, or liabilities (joint or several) to which they may
become subject under the Securities Act, the Exchange Act or other
federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any of the following statements, omissions or violations
(collectively a "Violation") by the Company: (i) any untrue statement or
alleged untrue statement of a material fact contained in such
registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto,
(ii) the omission or alleged omission to state therein a material fact
required to be stated therein, or necessary to make the statements
therein not misleading, or (iii) any violation or alleged violation by
the Company of the Securities Act, the Exchange Act, any state securities
law or any rule or regulation promulgated under the Securities Act, the
Exchange Act or any state securities law in connection with the offering
covered by such registration statement; and the Company will promptly
reimburse to each such Holder, partner, member, officer, director,
underwriter or controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided however, that
the indemnity agreement contained in this Section 2.7(a) shall not apply
to amounts paid in settlement of any such loss, claim, damage, liability
or action if such settlement is effected without the consent of the
Company, which consent shall not be unreasonably withheld, nor shall the
Company be liable in any such case for any such loss, claim, damage,
liability or action to the extent that it arises out of or is based upon
a Violation which occurs in reliance upon and in conformity with
information furnished expressly for use in connection with such
registration by such Holder, partner, member, officer, director,
underwriter or controlling person of such Holder.
(b) To the extent permitted by law, each Holder severally and not
jointly will, if Registrable Securities held by such Holder are included
in the securities as to which such registration is being effected,
indemnify and hold harmless the Company, each of its directors, its
officers and each person, if any, who controls the Company within the
meaning of the Securities Act, any underwriter and any other Holder
selling securities under such registration statement or any of such other
Holder's partners, members, directors or officers or any person who
controls such Holder, against any losses, claims, damages or liabilities
(joint or several) to which the Company or any such director, officer,
controlling person, underwriter or other such Holder, or partner, member,
director, officer or controlling person of such other Holder may become
subject under the Securities Act, the Exchange Act or other federal or
state law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereto) arise out of or are based upon any Violation,
in each case to the extent (and only to the extent) that such Violation
occurs in reliance upon and in conformity with information furnished by
such Holder to the Company expressly for use in connection with such
registration; and each such Holder will promptly reimburse to the Company
or any such director, officer, controlling person, underwriter or other
Holder, or partner, member, officer, director or controlling person of
such other Holder any legal or other expenses reasonably incurred by such
party in connection with investigating or defending any such loss, claim,
damage, liability or action if it is judicially determined that there was
such a Violation; provided, however, that the indemnity agreement
contained in this Section 2.7(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder, which consent
shall not be unreasonably withheld; provided further, that in no event
shall any indemnity under this Section 2.7 exceed the net proceeds from
the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 2.7 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section
2.7, deliver to the indemnifying party a written notice of the
commencement thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel mutually satisfactory to the parties;
provided, however, that an indemnified party shall have the right to
retain its own counsel, with the fees and expenses to be paid by the
indemnifying party, if, upon written advice of counsel, representation of
such indemnified party by the counsel retained by the indemnifying party
would be inappropriate due to actual or potential differing interests
between such indemnified party and any other party represented by such
counsel in such proceeding. If an indemnified party fails to deliver
written notice to the indemnifying party within a reasonable time after
the indemnified party's receipt of notice of the commencement of any such
action, the indemnifying party's liability under this Section 2.7 shall
be reduced to the extent such failure to notify was prejudicial to the
indemnifying party's ability to defend such action, but the omission to
so deliver written notice to the indemnifying party will not relieve it
of any liability that it may have to any indemnified party otherwise than
under this Section 2.7.
(d) If the indemnification provided for in this Section 2.7 is held
by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any losses, claims, damages or liabilities referred
to herein, the indemnifying party, in lieu of indemnifying such
indemnified party thereunder, shall to the extent permitted by applicable
law contribute to the amount paid or payable by such indemnified party as
a result of such loss, claim, damage or liability in such proportion as
is appropriate to reflect the relative fault of the indemnifying party on
the one hand and of the indemnified party on the other in connection with
the Violation(s) that resulted in such loss, claim, damage or liability,
as well as any other relevant equitable considerations. The relative
fault of the indemnifying party and of the indemnified party shall be
determined by a court of law by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission
to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission; provided, that in no event shall any
contribution by a Holder hereunder exceed the net proceeds from the
offering received by such Holder.
(e) The obligations of the Company and Holders under this Section
2.7 shall survive completion of any offering of Registrable Securities in
a registration statement and the termination of this Agreement. No
indemnifying party, in the defense of any such claim or litigation,
shall, except with the consent of each indemnified party, consent to
entry of any judgment or enter into any settlement which does not include
as an unconditional term thereof the giving by the claimant or plaintiff
to such indemnified party of a complete release from all liability in
respect to such claim or litigation without any admission of guilt or
wrongdoing.
2.8 Assignment of Registration Rights. The rights to cause the Company to
register Registrable Securities pursuant to this Section 2 may be assigned by
a Holder to a transferee of Registrable Securities that is: (a) the estate of
such Holder, or the spouse, siblings or lineal descendants of such Holder, or
such Holder's spouse's siblings or lineal descendants or trusts for the
benefit of any of the foregoing; (b) a stockholder, partner, retired partner
who retires after the date hereof, limited partner, retired limited partner
who retires after the date hereof, member, or retired member who retires after
the date hereof of such Holder; (c) a corporation, partnership, limited
liability company, joint venture, trust or individual who or which, directly
or indirectly through one or more intermediaries, is controlled by or under
common control with such Holder or which controls, directly or indirectly
through one or more intermediaries, such Holder; (d) a trust for the benefit
of, or partnership, corporation, limited liability company or other entity
owned or controlled by, any of the foregoing; or (e) any other transferee of
all, but not less than all, of such Holder's Registrable Securities; provided,
however, (i) the transferor shall, within ten (10) days after such transfer,
furnish to the Company written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned and (ii) such transferee shall agree to
become a party to and be subject to all restrictions set forth in this
Agreement. For purposes of this Section 2.8, the terms "control", "controlled"
and "common control with" mean the ability, whether by the direct or indirect
ownership of voting securities or other equity interest, by contract or
otherwise, to elect a majority of the directors of a corporation, to select
the managing or general partner of a partnership or limited partnership,
respectively, or otherwise to select a majority of those persons exercising
governing authority over an entity. Notwithstanding the foregoing and for the
avoidance of doubt, a pledge, collateral assignment or other similar
arrangement shall not be restricted under this Agreement in any manner and
neither the Holder nor the secured party (or creditor) party to such pledge,
collateral assignment or other similar arrangement shall be required to comply
with the provisions of the immediately preceding proviso in the absence of a
foreclosure or other realization of collateral with respect to such pledge,
collateral assignment or other similar arrangement.
2.9 Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time permit
the sale of the Registrable Securities to the public without registration, at
all times the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) furnish to each Holder promptly upon request a written statement
by the Company as to its compliance with the reporting requirements of such
Rule 144 and of the Securities Act and the Exchange Act, a copy of the most
recent annual or quarterly report of the Company, and such other reports and
documents so filed by the Company as such holder may reasonably request in
availing itself of any rule or regulation of the Commission allowing such
holder to sell any Registrable Securities without registration.
2.10 Representation and Warranties of the Company. The Company represents
and warrants as follows:
(a) The execution, delivery and performance of this Agreement by the
Company have been duly authorized by; all requisite corporate action and will
not violate any provision of law, any order of any court or other agency of
government, Certificate of Incorporation of the Company or By-laws of the
Company or any provision of any indenture, agreement or other instrument to
which it or any of its properties or assets is bound, conflict with, result in
a breach of or constitute (with due notice or lapse of time or both) a default
under any such indenture, agreement or other instrument or result in the
creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the properties or assets of the Company.
(b) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms except as enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights in general and
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and except
as the provisions of Section 2.7 may be deemed to conflict with public policy.
SECTION 3. MISCELLANEOUS
3.1 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of Delaware as applied to agreements among
Delaware residents entered into and to be performed entirely within Delaware.
3.2 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors, and administrators of the
parties hereto; provided, however, that prior to the receipt by the Company of
written notice of the transfer of any Registrable Securities specifying the
full name and address of the transferee, the Company may deem and treat the
person listed as the holder of such shares in its records as the absolute
owner and holder of such shares for all purposes, including the payment of
dividends or any redemption price.
3.3 Entire Agreement. This Agreement (together with the Merger Agreement)
constitutes the full and entire understanding and agreement between the
parties with regard to the subjects hereof and no party shall be liable or
bound to any other in any manner by any representations, warranties, covenants
and agreements except as specifically set forth herein and therein.
3.4 Severability. In case any provision of the Agreement shall be
invalid, illegal, or unenforceable, the validity, legality, and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
3.5 Amendment and Waiver.
(a) This Agreement may be amended or modified only upon the written
consent of the Company and the Holders of at least two-thirds (66 2/3%)
of the Registrable Securities.
(b) The obligations of the Company and the rights of the Holders
under this Agreement may be waived only with the written consent of the
Holders of at least sixty-six and two-thirds percent (66 2/3%) of the
Registrable Securities.
3.6 Delays or Omissions. It is agreed that no delay or omission to
exercise any right, power, or remedy accruing to any Holder, upon any breach,
default or noncompliance of the Company under this Agreement shall impair any
such right, power, or remedy, nor shall it be construed to be a waiver of any
such breach, default or noncompliance, or any acquiescence therein, or of any
similar breach, default or noncompliance thereafter occurring. It is further
agreed that any waiver, permit, consent, or approval of any kind or character
on any Holder's part of any breach, default or noncompliance under the
Agreement or any waiver on such Holder's part of any provisions or conditions
of this Agreement must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement, by law, or otherwise afforded to Holders, shall be cumulative and
not alternative.
3.7 Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (a) upon personal delivery to
the party to be notified, (b) when sent by confirmed facsimile if sent during
normal business hours of the recipient; if not, then on the next business day,
(c) five (5) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid, or (d) one (1) day after deposit
with a nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt. All communications shall be sent to the
party to be notified at the address or facsimile number as set forth on the
signature pages hereof or at such other address or facsimile number as such
party may designate by ten (10) days advance written notice to the other
parties hereto.
3.8 Titles and Subtitles. The titles of the sections and subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
3.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
3.10 Aggregation of Stock. All of the Registrable Securities held or
acquired by affiliated entities or persons shall be aggregated together for
the purpose of determining the availability of any rights under this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this REGISTRATION
RIGHTS AGREEMENT as of the date set forth in the first paragraph hereof.
STOCKHOLDERS:
XXXXXX CORPORATION PEQUOT PRIVATE EQUITY FUND III, L.P.
By: Pequot Capital Management, Inc.,
By: /s/ Xxxxx X. English its Investment Manager
Title: Chairman and CEO
Address: 00000 Xxxx 000xx Xxxxxx By: /s/ Xxxxx X. X'Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000 ---------------------------------
Attention: Xxxxx X. English Name: Xxxxx X. X'Xxxxx
Telephone: 000-000-0000 Title: General Counsel
Telecopy: 000-000-0000
Address: c/o Xxxxx Xxxxxx
Xxxxx Xxxxxx
Pequot Capital Management, Inc.
000 Xxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
Fax: 000-000-0000
PEQUOT OFFSHORE PRIVATE EQUITY
PARTNERS III, L.P.
By: Pequot Capital Management, Inc.,
its Investment Manager
By: /s/ Xxxxx X. X'Xxxxx
---------------------------------
Name: Xxxxx X. X'Xxxxx
Title: General Counsel
Address: c/o Xxxxx Xxxxxx
Xxxxx Xxxxxx
Pequot Capital Management, Inc.
000 Xxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
Fax: 000-000-0000
PEQUOT ENDOWMENT FUND, L.P.
By: Pequot Capital Management, Inc.,
its Investment Manager
By: /s/ Xxxxx X. X'Xxxxx
---------------------------------
Name: Xxxxx X. X'Xxxxx
Title: General Counsel
Address: c/o Xxxxx Xxxxxx
Xxxxx Xxxxxx
Pequot Capital Management, Inc.
000 Xxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
Fax: 000-000-0000
NV PARTNERS II LP
By: New Venture Partners LLC,
its General Partner
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Partner
Address: c/o Xxxxxx Xxxxxx
Xxxx Xxxxxx
New Venture Partners LLC
00 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Fax: 000-000-0000
XXXX X. XXXX
/s/ Xxxx X. Xxxx
---------------------------------
Xxxx X. Xxxx
Address: c/o Credit Suisse First Boston
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
02720.0001 #330247