INVESTOR RIGHTS AGREEMENT
This INVESTOR RIGHTS AGREEMENT (this "AGREEMENT") is made as of June
17, 2005 by and among AXS-One Inc., a Delaware corporation (the "COMPANY") and
the investors listed on Exhibit A hereto (each an "INVESTOR" and collectively
the "INVESTORS")
WHEREAS, the Company desires to sell to the Investors, and the
Investors desire to purchase from the Company, (i) an aggregate of 4,534,461
shares of Common Stock of the Company (the "SHARES"), and (ii) three-year
warrants, exercisable to purchase an aggregate of (A) 453,450 shares of Common
Stock, with pricing set at $1.90 per share (the "CLASS C WARRANTS"), and (B)
453,442 shares of Common Stock at $2.15 per share (the "CLASS D WARRANTS", and
together with the Class C Warrants, the "PURCHASED WARRANTS"), upon the terms
and conditions set forth in that certain Unit Subscription Agreement of even
date herewith, among the Company and the Investors (the "UNIT SUBSCRIPTION
AGREEMENT"); and
WHEREAS, the terms of the Unit Subscription Agreement provide that it
shall be a condition precedent to the closing of the transactions thereunder for
the Company and the Investors to execute and deliver this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto hereby agree as follows:
1. DEFINITIONS. Defined terms used herein but not defined herein
shall have the respective meanings ascribed to them in the Unit Subscription
Agreement. The following terms shall have the meanings provided below:
"BOARD OF DIRECTORS" shall mean the board of directors of the
Company.
"GROSS PROCEEDS" has the meaning set forth in Section 7(b).
"HOLDER" shall mean any of the Investors or any transferee of the
Purchased Warrants or Registrable Shares.
"MANDATORY REGISTRATION TERMINATION DATE" has the meaning set
forth in Section 3(c).
"NOTICE" has the meaning set forth in Section 11(d).
"OTHER SECURITIES" refers to any stock (other than Common Stock)
and other securities of the Company or any other Person (corporate or otherwise)
which the Holders of the Purchased Warrants at any time shall be entitled to
receive, or shall have received, upon the exercise of the Purchased Warrants, in
lieu of or in addition to Common Stock, or which at any time shall be issuable
or shall have been issued in exchange for or in replacement of Common Stock or
Other Securities pursuant to the terms of the Purchased Warrants.
"REGISTER", "REGISTERED" and "REGISTRATION" refer to a
registration of Common Stock or other securities of the Company effected by
preparing and filing a registration statement in compliance with the Securities
Act and the declaration or ordering of the effectiveness of such registration
statement.
"REGISTRABLE SHARES" shall mean any Shares or any shares of Common
Stock or Other Securities issued or issuable from time to time upon the exercise
of a Purchased Warrant; provided, however, that as to any such securities so
issued or issuable, such securities will cease to be Registrable Shares when
such securities have been sold to the public pursuant to a registration or
pursuant to Rule 144 or are eligible to be sold pursuant to Rule 144(k).
"REGISTRATION STATEMENT" has the meaning set forth in Section
3(a).
"RULE 144" shall mean Rule 144 promulgated under the Securities
Act and any successor or substitute rule, law or provision.
"SEC" shall mean the Securities and Exchange Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, and all of the rules and regulations promulgated thereunder.
"SUSPENSION" has the meaning set forth in Section 9(b).
2. EFFECTIVENESS. This Agreement shall become effective upon the
Closing.
3. MANDATORY REGISTRATION.
(a) No later than thirty (30) days after each Closing, the Company
will prepare and file with the SEC a registration statement on Form S-3 (or, if
Form S-3 is not then available to the Company, on such form of registration
statement that is then available to effect a registration of all Registrable
Shares) for the purpose of registering under the Securities Act all of the
Registrable Shares for resale by, and for the account of, the applicable
Investors as selling stockholders thereunder (each a "REGISTRATION STATEMENT").
Each Registration Statement shall permit the applicable Investors to offer and
sell, on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act, any or all of such Investor's Registrable Shares. Each Registration
Statement also shall cover, to the extent allowable under the Securities Act and
the rules promulgated thereunder (including Rule 416), such indeterminate number
of additional shares of Common Stock resulting from stock splits, stock
dividends or similar transactions with respect to the Registrable Shares. The
offer and sale of the Registrable Shares pursuant to each Registration Statement
shall not be underwritten.
(b) The Company agrees to use commercially reasonable efforts to
cause each Registration Statement to become effective within ninety (90) days
after filing.
(c) The Company shall be required to keep each Registration
Statement, as amended, effective until such date that is the earliest to occur
of (i) the second anniversary of the applicable Closing, (ii) the date when all
of the Registrable Shares registered thereunder shall have been sold, and (iii)
such time as all the Registrable Shares held by the applicable Investors
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can be sold pursuant to Rule 144(k) under the Securities Act and without
compliance with the registration requirements of the Securities Act (each such
date is referred to herein, as applicable, as a "MANDATORY REGISTRATION
TERMINATION DATE"). Thereafter, the Company shall be entitled to withdraw such
Registration Statement and the Investors shall have no further right to offer or
sell any of the Registrable Shares pursuant to such Registration Statement (or
any prospectus relating thereto).
(d) During the period beginning on the Closing Date and ending
on the date of the effectiveness of each Registration Statement, the Company
shall not grant any registration rights that are pari passu with or senior to
the registration rights of the Investors under this Agreement if such
registration rights would adversely affect the Investors' ability to sell
Registrable Shares pursuant to each Registration Statement. Except as set forth
in the SEC Documents or in the Company Disclosure Letter, the Company represents
and warrants to the Investors that no stockholders other than the Investors have
the right to sell any Common Stock or other securities of the Company pursuant
to each Registration Statement.
(e) If: (i) the applicable Registration Statement is not filed
on or prior to the date that is thirty (30) days after the applicable Closing,
or (ii) the Registration Statement is not declared effective by the Securities
and Exchange Commission ("SEC") on or prior to the ninetieth (90) day following
the filing thereof, or (iii) if the SEC reviews the Registration Statement it is
not declared effective on or prior to the one hundred twentieth (120) day
following the filing thereof, or (iv) after the effectiveness date thereof, such
Registration Statement ceases to be effective and available to the applicable
Holders as to all applicable Shares (but not as to any Registrable Shares
underlying the Purchased Warrants) in violation of this Agreement (any such
failure or breach being referred to as an "EVENT" and the date on which such
Event occurs being referred to as "EVENT DATE"), then, in addition to any other
rights available to the applicable Holders, on each such Event Date and on each
monthly anniversary of each such Event Date (if the applicable Event shall not
have been cured by such date) until the applicable Event is cured, the Company
shall pay to each applicable Holder in cash, as partial liquidated damages and
not as a penalty, a payment ("PAYMENT") equal to 1% of the aggregate purchase
price paid by such Investor to the Company with respect to the Shares (but not
as to any Registrable Shares underlying the Purchased Warrants) then held by
such Holder. The Payment pursuant to the terms hereof shall apply on a pro rata
basis for any portion of a month prior to the cure of an Event. Such cumulative
Payment shall not exceed 10% of the aggregate purchase price paid by such
Investor, with such purchase price being computed exclusive of the value of any
exercises of the Purchased Warrants.
4. OBLIGATIONS OF THE COMPANY. In connection with the Company's
obligation under Section 3 hereof to file each Registration Statement with the
SEC and to use its reasonable efforts to cause such Registration Statement to
become effective as soon as practicable after filing, the Company shall, as
expeditiously and as reasonably as possible, subject to Section 9 hereof:
(a) Prepare and file with the SEC such amendments and
supplements to the Registration Statement and the prospectus used in connection
therewith as may be necessary to keep the Registration Statement effective until
the Mandatory Registration Termination Date;
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(b) Furnish to the selling Investors such reasonable number of
copies of the Registration Statement, prospectus and preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other documents
(including, without limitation, prospectus amendments and supplements as are
prepared by the Company in accordance with Section 4(a) above) as the selling
Investors may reasonably request, in order to facilitate the disposition of such
selling Investors' Registrable Shares pursuant to the Registration Statement;
(c) Use reasonable efforts to register and qualify the
Registrable Shares covered by the Registration Statement under all applicable
Blue Sky Laws of all states requiring such registration or qualification,
provided, however, that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions; and
(d) Use reasonable efforts to cause all such Registrable
Shares registered hereunder to be listed on each national securities exchange on
which securities of the same class issued by the Company are then listed.
5. FURNISH INFORMATION. (a) It shall be a condition precedent
to the obligations of the Company to take any action pursuant to this Agreement
that the selling Investors shall furnish to the Company such information
regarding them and the securities held by them as the Company shall reasonably
request and as shall be required in order to effect any registration by the
Company pursuant to this Agreement.
(b) Each Registration Statement will provide, at the request
of the applicable Investors, for a plan of distribution with respect to the
applicable Registrable Shares substantially as follows: The Registrable Shares
may be sold from time to time by the selling Investors. Such sales may be made
on one or more exchanges or in the over-the-counter market, or otherwise at
prices and at terms then prevailing or at prices related to the then-current
market price, or in negotiated transactions. The Registrable Shares may be sold
by selling Investors in one or more of the following types of transactions: (i)
a block trade in which the broker or dealer so engaged will attempt to sell the
shares as agent but may position and resell a portion of the block as principal
to facilitate the transaction; (ii) purchases by a broker or dealer as principal
and resale by such broker or dealer for its account pursuant to the resale
registration statement; (iii) an exchange distribution in accordance with the
rules of such exchange; (iv) ordinary brokerage transactions and transactions in
which the broker solicits purchasers; and (v) transactions between sellers and
purchasers without a broker/dealer. In addition, any securities covered by the
Registration Statement which qualify for sale pursuant to Rule 144 may be sold
under Rule 144 rather than pursuant to the Registration Statement. From time to
time the selling Investors may engage in short sales, short sales versus the
box, puts and calls and other transactions in securities of the issuer or
derivatives thereof, and may sell and deliver the shares in connection
therewith. In effecting sales, brokers or dealers engaged by the selling
Investors may arrange for other brokers or dealers to participate. Brokers or
dealers will receive commissions or discounts from selling Investors in amounts
to be negotiated immediately prior to the sale.
6. EXPENSES OF REGISTRATION. All expenses incurred by the
Company in connection with the registration of the Registrable Shares pursuant
to this Agreement (excluding underwriting, brokerage and other selling
commissions and discounts), including without
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limitation all registration and qualification and filing fees, printing
expenses, fees and disbursements of counsel for the Company, and the reasonable
fees and disbursements of one counsel for the selling Investors selected by the
selling Investors, shall be borne by the Company; provided, however, that the
Company shall not be required to pay any fees and expenses of such counsel for
the selling Investors, which, together with the Legal Fee exceed $30,000.
7. INDEMNIFICATION.
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each selling Investor (including the partners or officers,
directors and stockholders of such Investor), and each Person, if any, who
controls such selling Investor within the meaning of the Securities Act, against
any losses, claims, damages or liabilities, joint or several, to which they may
become subject under the Securities Act, the Exchange Act, and other federal or
state securities laws, or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) (i) arise out of or are based upon
any untrue or alleged untrue statement of any material fact contained in the
applicable Registration Statement, in any preliminary prospectus or final
prospectus relating thereto or in any amendments or supplements to the
applicable Registration Statement or any such preliminary prospectus or final
prospectus, (ii) arise out of or are based upon 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) arise out of any violation
or alleged violation by the Company of the Securities Act, the Exchange Act, any
other federal or state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any other federal or state
securities law; and the Company will reimburse such selling Investor (including
the partners, officers, directors and stockholders of such Investor) or such
controlling Person for any legal or other expenses (but in no event for more
than one law firm) 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 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, nor
shall the Company be liable in any such case for any such loss, damage,
liability or action to the extent that it arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in connection with the applicable Registration Statement, any preliminary
prospectus or final prospectus relating thereto or any amendments or supplements
to the applicable Registration Statement or any such preliminary prospectus or
final prospectus, (i) in reliance upon and in conformity with written
information furnished expressly for use in connection with the applicable
Registration Statement or any such preliminary prospectus or final prospectus or
any amendments or supplements to the applicable Registration Statement,
preliminary prospectus or final prospectus by the selling Investors, any
broker/dealer acting on their behalf or controlling person with respect to them
or (ii) the plan of distribution described in Section 5(b).
(b) To the extent permitted by law, each selling Investor will
severally and not jointly indemnify and hold harmless the Company, its
Affiliates, each of their respective directors, officers, partners, members and
stockholders, each Person, if any, who controls the Company within the meaning
of the Securities Act, any broker/dealer, any underwriter and all other selling
Investors, against any losses, claims, damages or liabilities to which the
Company
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or any such Affiliate, director, officer, partner, member, stockholder,
controlling Person, broker/dealer, underwriter or such other selling Investor
may become subject to, under the Securities Act, the Exchange Act, any other
Federal securities laws, Blue Sky Laws, or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) (i) arise out of
or are based upon any untrue or alleged untrue statement of any material fact
contained in the Registration Statement or any preliminary prospectus or final
prospectus relating thereto or in any amendments or supplements to the
applicable Registration Statement or any such preliminary prospectus or final
prospectus, (ii) arise out of or are based upon 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) arise out of any violation
or alleged violation by the Company of the Securities Act, the Exchange Act, any
other federal or state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any other federal or state
securities law, in each case to the extent and only to the extent (i) that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in the applicable Registration Statement, in any preliminary prospectus or
final prospectus relating thereto or in any amendments or supplements to the
applicable Registration Statement or any such preliminary prospectus or final
prospectus, in reliance upon and in conformity with (A) written information
furnished by the selling Investor expressly for use in connection with the
applicable Registration Statement, or any preliminary prospectus or final
prospectus or any such amendment or supplement, or (B) the plan of distribution
described in Section 5(b), or (ii) such Investor fails to comply with the
prospectus delivery requirements of the Securities Act as applicable to it in
connection with sales of Registrable Shares pursuant to the applicable
Registration Statement; and such selling Investor will reimburse any legal or
other expenses reasonably incurred by the Company or any such Affiliate,
director, officer, partner, member, stockholder, controlling Person,
broker/dealer, underwriter or other selling Investor in connection with
investigating or defending any such loss, claim, damage, liability or action,
provided, however, that the liability of each selling Investor hereunder (when
aggregated with amounts contributed, if any, pursuant to Section 7(d)) shall be
limited to the proceeds received by such Investor from the sale of the
Registrable Securities pursuant to the applicable Registration Statement (the
"GROSS PROCEEDS"), and provided further, however, that the indemnity agreement
contained in this Section 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 those selling Investor(s) against which the request for
indemnity is being made (which consent shall not be unreasonably withheld or
delayed).
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against any indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof and the indemnifying party shall have the right to
participate in and, to the extent the indemnifying party desires, jointly with
any other indemnifying party similarly noticed, to assume at its expense the
defense thereof with counsel mutually satisfactory to the indemnifying parties
with the consent of the indemnified party which consent will not be unreasonably
withheld, conditioned or delayed. In the event that the indemnifying party
assumes any such defense, the indemnified party may participate in such defense
with its own counsel and at its own expense; provided, however, that the counsel
for the indemnifying party shall act as lead counsel in all matters pertaining
to such defense or
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settlement of such claim and the indemnifying party shall only pay for such
indemnified party's reasonable legal fees and expenses for the period prior to
the date of its participation in such defense; provided further, however, that
the indemnified party (together with all indemnified parties which may be
represented without conflict by one counsel) shall have the right to retain one
separate counsel, with the fees and expenses to be paid by the indemnifying
party, if the representation of the indemnified party by the counsel retained by
the indemnifying party would be inappropriate due to actual differing interests
between the indemnified party and any other party represented by such counsel in
such proceeding. Notwithstanding the foregoing, the indemnifying party shall not
be obligated to pay the fees of more than one separate counsel. The failure to
notify an indemnifying party of the commencement of any such action will not
relieve such indemnifying party of any liability to the indemnified party under
this Section 7 (except to the extent that such failure materially prejudiced the
indemnifying party's ability to defend such action), nor shall the omission so
to notify an indemnifying party relieve such indemnifying party of any liability
which it may have to any indemnified party otherwise other than under this
Section 7. 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 general release from all liability in
respect to such claim or litigation and otherwise in form and substance
reasonably satisfactory to the indemnified party.
(d) If the indemnification provided in this Section 7 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, liability, claim, damage or expense referred to
herein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage or expense
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 statements or omissions that shall have resulted in such
loss, liability, claim, damage or expense, as well as any other relevant
equitable considerations; provided that in no event shall any contribution by an
Investor under this Section 7(d), when aggregated with amounts paid, if any,
pursuant to Section 7(b), exceed the Gross Proceeds. The relative fault of the
indemnifying party and of the indemnified party shall be determined 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.
(e) The obligations of the Company and Investors under this
Section 7 shall survive the completion of any offering of Registrable Shares
pursuant to the applicable Registration Statement under Section 3.
8. REPORTS UNDER THE EXCHANGE ACT. With a view to making
available to the Investors the benefits of Rule 144 and any other rule or
regulation of the SEC that may at any time permit the Investors to sell the
Registrable Shares to the public without registration, the Company agrees to use
reasonable efforts: (a) to make and keep public information available, as those
terms are understood and defined in the General Instructions to Form S-3, or any
successor or substitute form, and in Rule 144; (b) to file with the SEC in a
timely manner all reports and other documents required to be filed by an issuer
of securities registered under the Securities Act
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or the Exchange Act; and (c) undertake any additional actions reasonably
necessary to maintain the availability of the applicable Registration Statement
or the use of Rule 144.
9. SELLING PROCEDURES. Any sale of Registrable Shares pursuant
to a Registration Statement filed in accordance with Section 3 hereof shall be
subject to the following conditions and procedures:
(a) Updating the Prospectus.
(i) If the Company informs the selling Investor that
the Registration Statement or final prospectus then on file
with the SEC is not current or otherwise does not comply
with the Securities Act, the Company shall use its
reasonable best efforts to provide to the selling Investor a
current prospectus that complies with the Securities Act as
soon as practicable, but in no event later than three (3)
business days after delivery of such notice.
(ii) If the Company requires more than three (3)
business days to update the prospectus under Section 9(a)(i)
above, the Company shall have the right to delay the
preparation of a current prospectus that complies with the
Securities Act without explanation to such Investor, subject
to the limitations set forth in Section 9(b) below, for a
period of not more than sixty (60) days (or two periods
which total not more than ninety (90) days in the aggregate)
during any twelve-month period.
(b) General. Notwithstanding anything in this Agreement that
may be to the contrary, upon (i) any request by the SEC or any other
federal or state governmental authority during the period of effectiveness
of the Registration Statement for amendments or supplements to the
Registration Statement or related prospectus or for additional information
relating to the Registration Statement, (ii) the issuance by the SEC or any
other federal or state governmental authority of any stop order suspending
the effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose, (iii) the receipt by the Company of any
notification with respect to the suspension of the qualification or
exemption from qualification of any of the Registrable Shares for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose, (iv) the happening of any event which makes any statement
made in the Registration Statement or related prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue in
any material respect or which requires the making of any changes in the
Registration Statement or prospectus so that, in the case of the
Registration Statement, it will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
that in the case of the prospectus, it will not contain an untrue statement
of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading or (v) the determination of the Company's
Board of Directors that it is advisable to suspend use of the prospectus
for a discrete period of time due to pending corporate developments, public
filings with the Commission or that there exists material nonpublic
information about the Company that the Board of Directors, acting in good
faith, determines not to disclose in a registration statement, the Company,
in each such case, may suspend use of the related prospectus (each a
"SUSPENSION"), in which case the
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Company shall promptly so notify each Investor and each Investor shall not
dispose of Registrable Shares covered by the Registration Statement or
prospectus until copies of a supplemented or amended prospectus are
distributed to the Investors or until the Investors are advised in writing
by the Company that the use of the applicable prospectus may be resumed;
provided, however, that, notwithstanding the foregoing, the Company may
suspend use of the prospectus pursuant to Sections 9(a)(ii), 9(b)(iv) and
9(b)(v), and an Investor may be prohibited from selling or otherwise
disposing of the Registrable Shares covered by the Registration Statement
or prospectus, on not more than two occasions in total during any
twelve-month period and for no more than ninety (90) days in the aggregate
during any such twelve-month period. The Company shall use its reasonable
best efforts to ensure the use of the prospectus may be resumed as soon as
practicable. The Company shall use its reasonable best efforts to obtain
the withdrawal of any order suspending the effectiveness of the
Registration Statement, or the lifting of any suspension of the
qualification (or exemption from qualification) of any of the securities
for sale in any jurisdiction, at the earliest practicable moment. The
Company shall, upon the occurrence of any event contemplated by clause
(iv), prepare a supplement or post-effective amendment to the Registration
Statement or a supplement to the related prospectus or any document
incorporated therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of the Registrable Shares
being sold thereunder, such prospectus will not contain an untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
(c) Each Investor agrees that it will comply with the
prospectus delivery requirements of the Securities Act as applicable to it
in connection with sales of Registrable Shares pursuant to the Registration
Statement. Each Investor further agrees that, upon receipt of a notice from
the Company of the occurrence of any event of the kind described in Section
9(a) or 9(b), such Investor will discontinue disposition of such
Registrable Shares under the Registration Statement until such Investor's
receipt of the copies of the supplemented prospectus or amended
Registration Statement, or until it is advised in writing by the Company
that the use of the applicable prospectus may be resumed, and, in either
case, has received copies of any additional or supplemental filings that
are incorporated or deemed to be incorporated by reference in such
prospectus or Registration Statement. The Company may provide appropriate
stop orders to enforce the provisions of this Section 9.
10. ENTIRE AGREEMENT. This Agreement and the other Transaction
Documents constitute the entire contract between the parties relative to the
subject matter hereof and thereof, and no party shall be liable or bound to the
other in any manner by any warranties, representations, agreements or covenants
except as specifically set forth herein or therein. This Agreement and the other
Transaction Documents supersede any previous agreement among the parties with
respect to the subject matter hereof and thereof.
11. MISCELLANEOUS.
(a) Amendment and Waiver. Unless a particular provision or
section of this Agreement requires otherwise explicitly in a particular
instance, any provision of this Agreement may be amended and the observance of
any provision of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
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written consent of the Company and the holders of a majority of the holders of
the Registrable Securities. Any amendment or waiver effected in accordance with
this Section 11(a) shall be binding upon each holder of any Securities at the
time outstanding (including without limitation securities into which any such
Securities are convertible or exercisable), each future holder thereof, and the
Company.
(b) Governing Law; Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
without regard to principles of conflicts of law. Each party hereby irrevocably
consents and submits to the jurisdiction of any New York State or United States
Federal Court sitting in the State of New York, County of New York, over any
action or proceeding arising out of or relating to this Agreement and
irrevocably consents to the service of any and all process in any such action or
proceeding in the manner for the giving of Notices at its address specified in
Section 11(d). Each party further waives any objection to venue in the State of
New York, County of New York and any objection to an action or proceeding in
such state and county on the basis of forum non conveniens. Each party also
waives any right to trial by jury.
(c) Successors and Assigns. Subject to the terms and
conditions of the Unit Subscription Agreement, this Agreement shall inure to the
benefit of and be binding upon the respective executors, administrators, heirs,
successors and assigns of the parties. Subject to the terms and conditions of
the Unit Subscription Agreement, this Agreement shall also be binding upon and
inure to the benefit of and enforceable by any transferee of any of the
Registrable Shares who has executed a copy of this Agreement or otherwise
indicated its agreement to be bound hereby. Notwithstanding anything in this
Agreement to the contrary, if at any time any Investor shall cease to own any
Registrable Shares, all of such Investor's rights under this Agreement shall
immediately terminate.
(d) Notices
(i) Any notice or other communication required or
permitted to be given hereunder (each a "NOTICE") shall be given in
writing and shall be made by personal delivery or sent by courier or
certified or registered first-class mail (postage prepaid), addressed
to a party at its address shown below or at such other address as such
party may designate by three days advance Notice to the other parties.
The date of giving any notice shall be the date of its actual receipt.
(ii) Any Notice to the Company shall be sent to:
AXS-One Inc.
▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
with a copy to:
10
▇▇▇▇▇▇ and ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
(iii) Any Notice to any of the Investors shall be sent to
the address for such Investor set forth on the signature pages hereof, with a
copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
(iv) Any Investor may change the address to which
correspondence to it is to be addressed by notification as provided for herein.
(e) Injunctive Relief. The parties acknowledge and agree that
in the event of any breach of this Agreement, remedies at law may be inadequate,
and each of the parties hereto may be entitled to seek specific performance of
the obligations of the other parties hereto and such appropriate injunctive
relief as may be granted by a court of competent jurisdiction.
(f) Attorney's Fees. If any action at law or in equity is
necessary to enforce or interpret any of the terms of this Agreement, the
prevailing party shall be entitled to reasonable attorneys' fees, costs and
necessary disbursements in addition to any other relief to which such party may
be entitled.
(g) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be deemed
prohibited or invalid under such applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, and such
prohibition or invalidity shall not invalidate the remainder of such provision
or any other provision of this Agreement.
(h) Aggregation of Shares. Registrable Shares 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.
(i) Headings. The headings of the sections of this Agreement
are for convenience and shall not by themselves determine the interpretation of
this Agreement.
(j) Counterparts. This Agreement may be executed (including by
facsimile transmission) with counterpart signature pages or in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(k) Construction. Words (including capitalized terms defined
herein) in the singular shall be held to include the plural and vice versa as
the context requires. The words
11
"herein," "hereinafter," "hereunder" and words of similar import used in this
Agreement shall, unless otherwise stated, refer to this Agreement as a whole and
not to any particular provision of this Agreement. All references to "$" in this
Agreement and the other agreements contemplated hereby shall refer to United
States dollars (unless otherwise specified expressly). Any reference to any
gender includes the other genders.
12
SIGNATURE PAGE
TO AXS-ONE INC.
INVESTOR RIGHTS AGREEMENT
IF the INVESTOR is a PARTNERSHIP, CORPORATION, LIMITED LIABILITY
COMPANY, TRUST or OTHER ENTITY, please complete the following:
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the date first above written.
RIT Capital Partners PLC
Print Full Legal Name of Partnership,
Company, Limited Liability Company, Trust or Other Entity
By: /s/ ▇. ▇. ▇▇▇▇▇ (Authorized Signatory)
----------------
Name: ▇. ▇. ▇▇▇▇▇
Title:
▇▇ ▇▇. ▇▇▇▇▇'▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
---------------------------------------------------------
Address and Fax Number
---------------------------------------------------------
Taxpayer Identification Number
---------------------------------------------------------
Date and State of Incorporation or Organization
---------------------------------------------------------
Date on which Taxable Year Ends
---------------------------------------------------------
E-mail Address
Accepted and Agreed as of the date first above written:
AXS-ONE INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer
SIGNATURE PAGE
TO AXS-ONE INC.
INVESTOR RIGHTS AGREEMENT
IF the INVESTOR is a PARTNERSHIP, CORPORATION, LIMITED LIABILITY
COMPANY, TRUST or OTHER ENTITY, please complete the following:
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the date first above written.
Rathbone Trusters Jersey Limited and Novatrust Limited as
Co-Trustees of the Sirius Trust
----------------------------------------------------------
Print Full Legal Name of Partnership,
Company, Limited Liability Company, Trust or Other Entity
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ (Authorized Signatory)
------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director-Corporate Co-Trustee
Oak Walk, St. ▇▇▇▇▇
Jersey, Channel Islands
----------------------------------------------------------
Address and Fax Number
----------------------------------------------------------
Taxpayer Identification Number
----------------------------------------------------------
Date and State of Incorporation or Organization
----------------------------------------------------------
Date on which Taxable Year Ends
----------------------------------------------------------
E-mail Address
Accepted and Agreed as of the date first above written:
AXS-ONE INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer
SIGNATURE PAGE
TO AXS-ONE INC.
INVESTOR RIGHTS AGREEMENT
IF the INVESTOR is a PARTNERSHIP, CORPORATION, LIMITED LIABILITY
COMPANY, TRUST or OTHER ENTITY, please complete the following:
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the date first above written.
Emancipation Capital Master, Ltd.
----------------------------------------------------------
Print Full Legal Name of Partnership,
Company, Limited Liability Company, Trust or Other Entity
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (Authorized Signatory)
------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Member of General Partner
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------------------------
Address and Fax Number
----------------------------------------------------------
Taxpayer Identification Number
----------------------------------------------------------
Date and State of Incorporation or Organization
----------------------------------------------------------
Date on which Taxable Year Ends
----------------------------------------------------------
E-mail Address
Accepted and Agreed as of the date first above written:
AXS-ONE INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer
SIGNATURE PAGE
TO AXS-ONE INC.
INVESTOR RIGHTS AGREEMENT
IF the INVESTOR is a PARTNERSHIP, CORPORATION, LIMITED LIABILITY
COMPANY, TRUST or OTHER ENTITY, please complete the following:
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the date first above written.
Potomac Capital Partners, LP
---------------------------------------------------------
Print Full Legal Name of Partnership,
Company, Limited Liability Company, Trust or Other Entity
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (Authorized Signatory)
-------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer of Investment Manager
c/o Potomac Capital Management
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇▇
---------------------------------------------------------
Address and Fax Number
---------------------------------------------------------
Taxpayer Identification Number
---------------------------------------------------------
Date and State of Incorporation or Organization
---------------------------------------------------------
Date on which Taxable Year Ends
---------------------------------------------------------
E-mail Address
Accepted and Agreed as of the date first above written:
AXS-ONE INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer
SIGNATURE PAGE
TO AXS-ONE INC.
INVESTOR RIGHTS AGREEMENT
IF the INVESTOR is a PARTNERSHIP, CORPORATION, LIMITED LIABILITY
COMPANY, TRUST or OTHER ENTITY, please complete the following:
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the date first above written.
Potomac Capital International, Ltd.
---------------------------------------------------------
Print Full Legal Name of Partnership,
Company, Limited Liability Company, Trust or Other Entity
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (Authorized Signatory)
-------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer of Investment Manager
c/o Potomac Capital Management
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇▇
---------------------------------------------------------
Address and Fax Number
---------------------------------------------------------
Taxpayer Identification Number
---------------------------------------------------------
Date and State of Incorporation or Organization
---------------------------------------------------------
Date on which Taxable Year Ends
---------------------------------------------------------
E-mail Address
Accepted and Agreed as of the date first above written:
AXS-ONE INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer
SIGNATURE PAGE
TO AXS-ONE INC.
INVESTOR RIGHTS AGREEMENT
IF the INVESTOR is a PARTNERSHIP, CORPORATION, LIMITED LIABILITY
COMPANY, TRUST or OTHER ENTITY, please complete the following:
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the date first above written.
Pleiades Investment Partners-R, LP.
---------------------------------------------------------
Print Full Legal Name of Partnership,
Company, Limited Liability Company, Trust or Other Entity
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (Authorized Signatory)
-------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer of Investment Manager
c/o Potomac Capital Management
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇▇
---------------------------------------------------------
Address and Fax Number
---------------------------------------------------------
Taxpayer Identification Number
---------------------------------------------------------
Date and State of Incorporation or Organization
---------------------------------------------------------
Date on which Taxable Year Ends
---------------------------------------------------------
E-mail Address
Accepted and Agreed as of the date first above written:
AXS-ONE INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer
SIGNATURE PAGE
TO AXS-ONE INC.
INVESTOR RIGHTS AGREEMENT
IF the INVESTOR is a PARTNERSHIP, CORPORATION, LIMITED LIABILITY
COMPANY, TRUST or OTHER ENTITY, please complete the following:
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the date first above written.
Exponential Capital LP
---------------------------------------------------------
Print Full Legal Name of Partnership,
Company, Limited Liability Company, Trust or Other Entity
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇(Authorized Signatory)
---------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Managing Partner
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------------
Address and Fax Number
---------------------------------------------------------
Taxpayer Identification Number
---------------------------------------------------------
Date and State of Incorporation or Organization
---------------------------------------------------------
Date on which Taxable Year Ends
---------------------------------------------------------
E-mail Address
Accepted and Agreed as of the date first above written:
AXS-ONE INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer
S-1
SIGNATURE PAGE
TO AXS-ONE INC.
INVESTOR RIGHTS AGREEMENT
IF the INVESTOR is a PARTNERSHIP, CORPORATION, LIMITED LIABILITY
COMPANY, TRUST or OTHER ENTITY, please complete the following:
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the date first above written.
▇▇▇▇▇ Partners
---------------------------------------------------
Print Full Legal Name of Partnership,
Company, Limited Liability Company, Trust or Other
Entity
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ (Authorized Signatory)
------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chairman & CEO
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------
Address and Fax Number
---------------------------------------------------
Taxpayer Identification Number
---------------------------------------------------
Date and State of Incorporation or Organization
---------------------------------------------------
Date on which Taxable Year Ends
---------------------------------------------------
E-mail Address
Accepted and Agreed as of the date first above written:
AXS-ONE INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Financial Officer
SIGNATURE PAGE
TO AXS-ONE INC.
INVESTOR RIGHTS AGREEMENT
IF the INVESTOR is an INDIVIDUAL, please complete the following:
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the date first above written.
▇▇▇▇▇ ▇. ▇▇▇▇▇ Living Trust dated 6/19/03
-----------------------------------------
Print Name
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
Signature of Investor
----------------------
Social Security Number
▇ ▇▇▇▇▇▇▇▇ ▇▇.
▇. ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------
Address and Fax Number
-----------------------------------
E-mail Address
Accepted and Agreed to as of the date first above written:
AXS-ONE INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer
S-1
SIGNATURE PAGE
TO AXS-ONE INC.
INVESTOR RIGHTS AGREEMENT
IF the INVESTOR is an INDIVIDUAL, please complete the following:
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the date first above written.
▇▇▇▇▇▇▇ ▇. ▇▇▇
--------------
Print Name
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
------------------
Signature of Investor
---------------------
Social Security Number
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------
Address and Fax Number
-----------------------------------
E-mail Address
Accepted and Agreed to as of the date first above written:
AXS-ONE INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Financial Officer
S-1
SIGNATURE PAGE
TO AXS-ONE INC.
INVESTOR RIGHTS AGREEMENT
IF the INVESTOR is an INDIVIDUAL, please complete the following:
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the date first above written.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------
Print Name
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------
Signature of Investor
----------------------
Social Security Number
▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------
Address and Fax Number
-----------------------------------
E-mail Address
Accepted and Agreed to as of the date first above written:
AXS-ONE INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Financial Officer
SIGNATURE PAGE
TO AXS-ONE INC.
INVESTOR RIGHTS AGREEMENT
IF the INVESTOR is an INDIVIDUAL, please complete the following:
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the date first above written.
Vendome Family Limited Partnership
----------------------------------
Print Name
/s/ Gennaro Vendome
-------------------
Signature of Investor
----------------------
Social Security Number
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------
Address and Fax Number
-----------------------------------
E-mail Address
Accepted and Agreed to as of the date first above written:
AXS-ONE INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer
SIGNATURE PAGE
TO AXS-ONE INC.
INVESTOR RIGHTS AGREEMENT
IF the INVESTOR is an INDIVIDUAL, please complete the following:
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the date first above written.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------
Print Name
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------
Signature of Investor
----------------------
Social Security Number
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------
Address and Fax Number
-----------------------------------
E-mail Address
Accepted and Agreed to as of the date first above written:
AXS-ONE INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Financial Officer
S-1
SIGNATURE PAGE
TO
AXS-ONE INC.
INVESTOR RIGHTS AGREEMENT
IF the INVESTOR is an INDIVIDUAL, please complete the following:
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the date first above written.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------
Print Name
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------
Signature of Investor
----------------------
Social Security Number
c/o MacKenzie Partners, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------
Address and Fax Number
-----------------------------------
E-mail Address
Accepted and Agreed to as of the date first above written:
AXS-ONE INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Financial Officer
S-1
EXHIBIT A
---------
SCHEDULE OF INVESTORS
RIT Capital Partners plc
▇▇ ▇▇. ▇▇▇▇▇'▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
The Sirius Trust
▇/▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
CHANNEL ISLANDS
Emancipation Capital Master, Ltd.
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Potomac Capital Partners, LP
c/o Potomac Capital Management LLC
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Potomac Capital International Ltd.
c/o Potomac Capital
Management LLC
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Pleiades Investment Partners-R, LP
c/o Potomac Capital
Management LLC
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Exponential Capital LP
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ Partners
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇ Living
Trust DTD June 19, 2003
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Vendome Family
Limited Partnership
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
c/o MacKenzie Partners, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
S-2
