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Exhibit 10.41
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is entered into as of
December 1, 1995 by and among (1) Unidata, Inc., a Colorado corporation (the
"Company"), (ii) Massachusetts Mutual Life Insurance Company, MassMutual
Corporate Investors, MassMutual Participation Investors and MassMutual Corporate
Value Partners Limited (hereinafter referred to collectively as the
"Institutional Investors"), and (iii) James T. Dresher ("Dresher").
WHEREAS, the Institutional Investors have negotiated with the officers of
the Company to enter into a Note Agreement, dated as of the date hereof (the
"Note Agreement"), pursuant to which the Institutional Investors will purchase
from the Company (i) $10,000,000 aggregate principal amount of the Company's
11.5% Senior Subordinated Notes due December 1, 2003 (the "Notes"), (ii)
Warrants (the "Warrants") to purchase 250,000 shares of Class B Common Stock,
having no par value per share (the "Class B Common Stock"), of the Company, and
(iii) 500,000 shares of Class B Common Stock of the Company for an aggregate
consideration equal to $2,000,000. The Notes, Warrants and Class B Common Stock
are collectively referred to as the "Institutional Investor Securities." The
shares of Class B Common Stock including the shares of Class B Common Stock to
be issued upon exercise of the Warrants together with the shares of Class A
Common Stock, having no par value per share (the "Class A Common Stock") of the
Company, to be issued to the Institutional Investors upon conversion of the
Class B Common Stock, are collectively referred to as the "Institutional
Investor Stock". The term "Common Stock" as used herein shall include the Class
A Common Stock and the Class B Common Stock, including the shares of Class B
Common Stock deliverable upon the exercise of the rights granted under the
Warrants; provided, however, that for purposes of the registration rights
contained in Section 4, Common Stock shall include only Class A Common Stock of
the Company and any class of Common Stock issued in substitution therefor.
WHEREAS, Dresher and his Related Parties (as defined below) own 9,200,000
shares of Class A Common Stock of the Company, which will constitute
approximately 75% of the capital stock outstanding immediately after the
purchase of the Institutional Investor Securities by the Institutional
Investors.
WHEREAS, the Institutional Investors have required as an absolute condition
to the purchase of the Institutional Investor Securities from the Company, that
the Company and Dresher enter into this Agreement, and whereas the Company and
Dresher are desirous that the Institutional Investors enter into the Note
Agreement and purchase from the Company the Institutional Investor Securities
described above, the Company and Dresher have agreed to enter into this
Agreement.
NOW THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration, the parties agree as follows:
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SECTION 1. ACQUISITION OF INSTITUTIONAL INVESTOR STOCK.
(a) Acquired for Own Account. Each of the Institutional Investors
represents and warrants that the Institutional Investor Stock to be acquired by
it pursuant to the Note Agreement will be acquired for investment purposes only
and not with a view toward resale or distribution thereof in violation of the
Securities Act of 1933, as amended (the "Act"), and will not be disposed of in
contravention of the Act.
(b) Institutional Investor Stock Not Registered. Each of the Institutional
Investors acknowledges that none of the Institutional Investor Stock has been
registered pursuant to the Act.
(c) Knowledge of Transaction. Each of the Institutional Investors
represents and warrants that it has had an opportunity to ask questions and
receive answers concerning the terms and conditions of the Note Agreement, has
had legal counsel review such terms and conditions and has had sufficient
opportunity for such Institutional Investor and its legal counsel to conduct
diligence concerning the Company.
SECTION 2. RESTRICTIONS ON TRANSFER.
(a) Transfer of Institutional Investor Stock. With the exception of the
Institutional Investor Stock owned by MassMutual Corporate Value Partners
Limited which may be pledged to its creditors from time to time, none of the
Institutional Investors will sell, pledge or otherwise transfer any interest in
any shares of Institutional Investor Stock except pursuant to the provisions of
subsections (b), (c) or (d) of this Section 2 or unless such sale occurs in
connection with or after a Qualified Public Offering consummated by the Company.
Any attempted transfer of Institutional Investor Stock in violation of this
Agreement shall be void and of no effect. As used herein, "Qualified Public
Offering" shall mean a public offering of Common Stock registered under the Act
which results in net proceeds to the Company and any of its shareholders
participating in such public offering in an aggregate amount of at least
$15,000,000.
(b) First Refusal Rights. Any Institutional Investor desiring to transfer
any shares of Institutional Investor Stock (other than pursuant to Section 2(c)
below), shall, at least 120 days prior to making such transfer, deliver written
notice (a "Sale Notice") to the Company and Dresher disclosing in detail the
identity of the prospective transferee(s) and the terms and conditions of the
proposed transfer. Such Institutional Investor agrees not to consummate any such
transfer until the earlier to occur of (i) 120 days after the Sale Notice has
been delivered to the Company and Dresher, and (ii) the date on which the
parties to the transfer have been determined pursuant to this Section 2(b). The
date of the first to occur of such events is referred to as the "Authorization
Date." Within ninety (90) days of receiving such Sale Notice, the Company may
elect to purchase all or any portion of the Institutional Investor Stock
proposed to be transferred upon the same terms and conditions as set forth in
the Sale Notice by notifying such Institutional Investor in writing within such
90-day period. If the Company does not elect to purchase all of the shares of
Institutional Investor Stock specified in the Sale Notice, Dresher may elect to
purchase any portion of such Institutional Investor Stock that the Company
elects not to purchase upon the same terms and conditions as set forth in the
Sale Notice, provided that Dresher notifies in writing such Institutional
Investor of Dresher's election to purchase within the
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same 90-day period following receipt of the Sale Notice. If the Company and
Dresher together do not elect to purchase all of the shares of Institutional
Investor Stock specified in the Sale Notice, such Institutional Investor may,
during the 90-day period immediately following the Authorization Date, transfer
such shares of Institutional Investor Stock that the Company has not elected to
purchase at a price and on terms no more favorable to the proposed transferee(s)
than specified in the Sale Notice; provided that if such transfer shall be
consummated prior to a Qualified Public Offering, such transferee has agreed in
writing to be bound by the provisions of this Agreement prior to such transfer.
Any shares of Institutional Investor Stock not transferred within such 90-day
period shall be subject to the provisions of this Section 2(b) upon a subsequent
attempt by such Institutional Investor to transfer such Institutional Investor
Stock. The right of first refusal provided in this Section 2(b) shall terminate
upon the Company's consummation of a Qualified Public Offering.
(c) Sale of the Company. If the Board of Directors of the Company and the
holders of at least 66% of shares of Class A Common Stock (or other voting
capital stock) (the "Required Percentage") then outstanding approve the sale of
all or substantially all of the Company's consolidated assets or a sale or
exchange of all or substantially all of its outstanding capital stock (an
"Approved Sale"), the holders of Institutional Investor Stock (i) shall be
offered the opportunity to sell or exchange all of their shares of Institutional
Investor Stock for the same price and otherwise on the same terms and conditions
as said holders of the Required Percentage in such Approved Sale for the same
price and otherwise on the same terms and conditions as said holders and (ii)
shall consent to and raise no objections against the Approved Sale of the
Company and, if requested to vote on such Approved Sale, shall vote all shares
of Class A Common Stock that said holders beneficially own in favor of such
Approved Sale. It is intended that the provisions of this Section 2(c)
constitute a "voting agreement" within the meaning of Section 7-107-302 of the
Colorado Business Corporation Act (the "CBCA") and not a "voting trust" within
the meaning of Section 7-107-301 of the CBCA. If the Approved Sale of the
Company is structured as a sale or exchange of stock, the holders of
Institutional Investor Stock shall agree to sell or exchange all of their shares
of Institutional Investor Stock, including the rights to acquire shares of
Institutional Investor Stock, on the terms and conditions approved by the Board
of Directors and the holders of at least the Required Percentage. In any
Approved Sale, all of the holders of Common Stock (including shares received or
to be received upon exercise of the Warrants) shall be entitled to receive the
same form and amount of consideration per share of Common Stock, or if any
holders of Common Stock are given an option as to the form and amount of
consideration to be received, all holders of Common Stock shall be given the
same option. The holders of Institutional Investor Stock shall take all
necessary and desirable actions in connection with the consummation of the
Approved Sale of the Company as requested by counsel to the Company. The rights
provided in this Section 2(c) shall terminate upon the Company's consummation of
a Qualified Public Offering.
(d) Notice of Proposed Transfer Following A Qualified Public Offering.
Following the consummation of a Qualified Public Offering, any Institutional
Investor desiring to transfer any shares of Institutional Investor Stock, other
than pursuant to an effective registration statement under the Act, shall
deliver written notice to the Company, at least 5 business days prior to the
date of the proposed transfer, describing the manner and circumstances of such
proposed transfer.
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(e) Unless the Company shall have received an opinion from counsel to the
Company (which opinion shall be obtained by the Company on or prior to the date
of such proposed transfer) that a proposed transfer of Institutional Investor
Stock may not be effected without registration or qualification under Federal or
state law, such holder of Institutional Investor Stock shall be entitled to
transfer such Institutional Investor Stock in the manner proposed.
(f) The certificates representing the Institutional Investor Stock to be
issued to the Institutional Investors shall bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT"), AND MAY NOT
BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT OR AN EXEMPTION FROM REGISTRATION THEREUNDER.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER AND CERTAIN OTHER AGREEMENTS SET
FORTH IN A REGISTRATION RIGHTS AGREEMENT DATED AS OF DECEMBER 1, 1995,
A COPY OF WHICH MAY BE OBTAINED BY THE HOLDER HEREOF WITHOUT CHARGE AT
THE COMPANY'S PRINCIPAL PLACE OF BUSINESS.
(g) Each holder of Institutional Investor Stock agrees not to effect any
public sale or distribution of any equity securities of the Company, or any
securities convertible into or exchangeable or exercisable for such securities,
including a sale pursuant to Rule 144 (or any similar provision then in force)
under the Act during the seven days prior to, and during the 180 days beginning
on the effective date of the registration statement relating to any underwritten
public offering of the Company's Common Stock or preferred stock, except as part
of such underwritten public offering or if otherwise permitted.
SECTION 3. TAG-ALONG RIGHT.
With respect to any proposed transfer, sale or other disposition
(collectively, a proposed transfer") of shares of Common Stock ("Shares") by
Dresher or any of his Related Parties (such persons being hereinafter referred
to collectively as the "Dresher Group") to a person (such other person being
hereafter referred to as the "proposed purchaser"), other than pursuant to an
Exempt Transfer (as defined below), each of the Institutional Investors and
their respective Related Parties (collectively, the "Tag-Along Institutional
Investors") shall have the right (the "Tag-Along Right") to require the proposed
purchaser to purchase from such Tag-Along Institutional Investor up to the
number of whole Shares owned by such Tag-Along Institutional Investor, including
the rights to acquire such Shares, equal to the sum of (A) the number derived by
multiplying the total number of Shares the members of the Dresher Group propose
to transfer by a fraction, the numerator of which is the total number of Shares
owned by such Tag-Along Institutional Investor (including Shares to be received
upon exercise of the Warrants), and the denominator of which is the total number
of Shares then outstanding on a fully-diluted basis and (B) any additional
Shares such Tag-Along Institutional Investor shall be entitled to have purchased
pursuant to the next paragraph if any other Tag-Along Institutional Investor
elects not to exercise its rights
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hereunder. Any Shares purchased from Tag-Along Institutional Investors pursuant
to this Section 3 shall be for the same consideration and upon the same terms
and conditions as such proposed transfer by Dresher (or his Related Parties, as
the case may be). Dresher shall, not less than fifteen (15) nor more than thirty
(30) calendar days prior to each proposed transfer, notify, or cause to be
notified, each Tag-Along Institutional Investor in writing of each such proposed
transfer, setting forth in such notice: (i) the name of the transferor and the
number of Shares proposed to be transferred, (ii) the name and address of the
proposed purchaser, (iii) the proposed amount and form of consideration and
terms and conditions of payment offered by such proposed purchaser and (iv) that
the proposed purchaser has been informed of the Tag-Along Right provided for in
this Section 3 and has agreed to purchase Shares in accordance with the terms
hereof.
The Tag-Along Right may be exercised by any Tag-Along Institutional
Investor by delivery of a written notice to Dresher or his Related Party
proposing to sell Shares (the "Tag-Along Notice") within ten (10) calendar days
following its receipt of the notice specified in the last sentence of the
preceding paragraph. The Tag-Along Notice shall state the amount of Shares that
such Tag-Along Institutional Investor proposes to include in such transfer to
the proposed purchaser determined as aforesaid, plus the amount of additional
Shares, if any, that such Tag-Along Institutional Investor would be willing to
sell to the proposed purchaser in the event that any of the other Tag-Along
Institutional Investors elects not to exercise their Tag-Along Rights in whole
or in part. The maximum amount of additional Shares that each such Tag-Along
Institutional Investor shall be entitled to sell, and the proposed purchaser be
required to purchase, shall be determined by multiplying the total number of
Shares that, under the formula described in the previous paragraph, Tag-Along
Institutional Investors could have elected to sell to the proposed purchaser but
elected not to so sell, by a fraction, the numerator of which is the total
number of Shares owned by such Tag-Along Institutional Investor electing to sell
additional Shares and the denominator of which is the total number of Shares
owned by all Tag-Along Institutional Investors who delivered Tag-Along Notices.
In the event that the proposed purchaser does not purchase Shares from the
Tag-Along Institutional Investors on the same terms and conditions as specified
in the notice referred to in the last sentence of the preceding paragraph, then
Dresher and his Related Parties shall not be permitted to sell any Shares to the
proposed purchaser in the proposed transfer. If no Tag-Along Notice is received
during the 10-day period referred to above (or if such Notices do not cover all
the Shares proposed to be transferred), Dresher and his Related Parties shall
have the right, for a period of ninety (90) days after the expiration of the
10-day period referred to above, to transfer the Shares specified in the notice
referred to in the last sentence of the preceding paragraph (or the remaining
Shares) on terms and conditions no more favorable than those stated in the
Tag-Along Notice and in accordance with the provisions of this Section 3.
As used herein, the term "Exempt Transfer" shall mean (1) transfers by
Dresher to his Related Parties, provided that any such transferee agrees in
writing to be bound by this Agreement as if such transferee were Dresher with
respect to such transferred Shares; (2) transfers by any of Dresher's Related
Parties to Dresher; and (3) transfers by Dresher or any of his Related Parties
which do not result in the Dresher Group owning of record less than 50% of the
Shares owned by the Dresher Group on the date of this Agreement.
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As used herein, the term "Related Party" means, with respect to any person,
(A) a spouse or immediate family member or (B) a trust, corporation, partnership
or other entity of which such person is a beneficiary, stockholder, partner,
owner or person holding an 80% or more controlling interest.
The Company agrees not to effect any transfer of Shares by Dresher until it
has received evidence reasonably satisfactory to it that the Tag-Along Right, if
applicable to such transfer, has been complied with. The rights provided in this
Section 3 shall terminate upon the Company's consummation of a Qualified Public
Offering.
SECTION 4. REGISTRATION RIGHTS.
(a) Piggyback Registration Rights.
(1) Right to Piggyback. Subject to the last sentence of this subsection
(1), whenever the Company proposes to register any Common Stock (or securities
convertible into or exchangeable for, or options to acquire, Common Stock) with
the Securities and Exchange Commission (the "Commission") under the Act (other
than a registration on Form S-4 or S-8 or an S-3 registration statement which
relates solely to a dividend reinvestment plan or employee purchase plan) in a
public sale for cash and the registration form to be used may be used for the
registration of the Registrable Securities (as defined in subsection (h) below)
(a "Piggyback Registration "), whether or not for sale for its own account, the
Company will give written notice to each of the Institutional Investors (and any
transferees of such Institutional Investors) and each of the holders of Shares
listed on Exhibit I hereto (collectively, including the Institutional Investors,
the "Significant Holders ") (including Dresher, which, for purposes of this
Section 4, shall include Dresher, his Related Parties and any transferees of
Dresher and his Related Parties), at least fifteen (15) days prior to the
anticipated filing date, of its intention to effect such a registration, which
notice will specify the kind and number of securities proposed to be registered,
the distribution arrangements and such other information that at the time would
be appropriate to include in such notice, and will, subject to subsection (a)(2)
below, include in such Piggyback Registration all Registrable Securities with
respect to which the Company has received written requests for inclusion therein
within ten (10) days after delivery of the Company's notice. Except as may
otherwise be provided in this Agreement, Registrable Securities with respect to
which such request for registration has been received will be registered by the
Company and offered to the public in a Piggyback Registration pursuant to this
Section 4 on the same terms and conditions as those applicable to the
registration of Common Stock (or securities convertible into or exchangeable or
exercisable for Common Stock) to be sold by the Company and by any other person
selling under such registration.
(2) Priority on Piggyback Registrations. If the managing underwriter or
underwriters, if any, advise the holders of Registrable Securities in writing
that in its or their reasonable opinion or, in the case of a Piggyback
Registration not being underwritten, the Company shall reasonably determine (and
notify the holders of Registrable Securities of such determination), after
consultation with an investment banker of nationally recognized standing, that
the number or kind of securities proposed to be sold in such registration
(including Registrable Securities to be included pursuant to subsection (a)(1)
above) will materially adversely affect the success of
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such offering, the Company will include in such registration the number of
securities, if any, which, in the opinion of such underwriter or underwriters,
or the Company, as the case may be, can be sold as follows: (i) first, the
shares the Company proposes to sell, and (ii) second, the Registrable Securities
requested to be included in such registration by the Significant Holders. To the
extent that the privilege of including Registrable Securities in any Piggyback
Registration must be allocated among the Significant Holders, the allocation
shall be made pro rata based on the number of Registrable Securities that each
such participant shall have requested to include therein.
(3) Selection of Underwriters. If any Piggyback Registration is an
underwritten offering (other than an offering initiated as a Demand Registration
as provided in subsection (b) below), the Company will select a managing
underwriter or underwriters to administer the offering, which managing
underwriter or underwriters will be of nationally recognized standing and
reasonably acceptable to the holders of a majority of the Registrable Securities
included therein.
(b) Demand Registration Rights.
(1) Right to Demand. At any time after (i) the Company is eligible to
register Shares of Common Stock under the Act on Form S-3 and (ii) none of the
Shares held by Dresher are subject to an underwriter lock-up agreement relating
to such Shares, the Institutional Investors may, make a written request of the
Company for registration with the Commission, under and in accordance with the
provisions of the Act, of all or part of their Registrable Securities (a "Demand
Registration"); provided, that (x) the Company need not effect a Demand
Registration unless such Demand Registration shall include at least 50% of the
Registrable Securities held on the date of such written request by the
Institutional Investors collectively, (y) the Company may defer the filing of
any registration statement relating to a Demand Registration for (i) a
reasonable period of time (not to exceed ninety (90) days following the end of
the most recently completed fiscal year or forty-five (45) days following the
end of the most recently completed fiscal quarter (whichever is later)) to the
extent necessary to prepare the financial statements of the Company for the
fiscal period most recently ended prior to the related request, (ii) up to
ninety (90) days if the Company would be required to disclose in such
registration statement the existence of any fact relating to a material business
situation, transaction or negotiation not otherwise required to be disclosed, or
(iii) up to ninety (90) days if the Company notifies the Institutional Investors
that a registration at the time and on the terms requested would adversely
affect any equity financing by the Company that had been contemplated by the
Company prior to receipt of notice requesting registration pursuant to this
Section 4(b), and (z) if the Company elects to defer any Demand Registration
pursuant to the terms of this sentence, no Demand Registration shall be deemed
to have occurred for purposes of this Agreement. Subject to subsection (3)
below, the Company will include in such registration all Registrable Securities
of such Significant Holders with respect to which the Company has received
written requests for inclusion therein. All requests made pursuant to this
subsection (b)(1) will specify the aggregate number of Registrable Securities
requested to be registered and will also specify the intended methods of
disposition thereof.
(2) Number of Demand Registrations. The Institutional Investors
collectively shall be
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entitled to one (1) Demand Registration. The expenses of the Institutional
Investors requesting a Demand Registration shall be borne by the Company as
provided in subsection (d) below. A Demand Registration shall not be counted as
a Demand Registration hereunder until such Demand Registration has been declared
effective by the Commission and remains effective for at least 60 consecutive
days without being interfered with by any (i) stop order, injunction or other
order or requirement of the Commission or other governmental agency or court or
regulatory agency or exchange, including NASDAQ or NASD, or (ii) action by the
Company or any stockholder (other than the Institutional Investor(s) requesting
such Demand Registration) requiring the suspension of such offering.
(3) Priority on Demand Registrations. If in any Demand Registration the
managing underwriter or underwriters thereof (or in the case of a Demand
Registration not being underwritten, in the opinion of the holders of a majority
of the Registrable Securities included therein), advise the Company in writing
that in its or their reasonable opinion the number of securities proposed to be
sold in such Demand Registration exceeds the number that can be sold in such
offering without having a material effect on the success of the offering
(including, without limitation, an impact on the selling price or the number of
Shares that any participant may sell), the Company will include in such
registration only the number of securities that, in the reasonable opinion of
such underwriter or underwriters (or holders of Registrable Securities, as the
case may be) can be sold without having a material adverse effect on the success
of the offering as follows: (i) first, the Registrable Securities held by the
Institutional Investors that initiated such Demand Registration, (ii) second,
the Registrable Securities requested to be included in such Demand Registration
by the Significant Holders (excluding the Institutional Investors but including
all other Significant Holders requesting to have Shares included in such Demand
Registration pro rata among those requesting registration on the basis of the
number of Shares requested to be included, and (iii) third, Shares to be issued
and sold by the Company.
(4) Selection of Underwriters. If a Demand Registration is an underwritten
offering, the holders of a majority of the Registrable Securities to be included
in such Demand Registration held by the Institutional Investors that initiated
such Demand Registration shall have the right to select a managing underwriter
or underwriters of recognized national standing that is or are reasonably
satisfactory to the Company to administer the offering.
(c) Registration Procedures. With respect to any Piggyback Registration or
Demand Registration (generically, a "Registration"), the Company will, subject
to Sections (4)(a)(2) and (4)(b)(3), as expeditiously as practicable:
(1) prepare and file with the Commission, within ninety (90) days
after mailing the applicable Notice, a registration statement or
registration statements ("Registration Statement") relating to the
applicable Registration on Form S-3; provided that the Company will include
in any Registration Statement all information that the holders of the
Registrable Securities so to be registered shall reasonably request and
shall include all financial statements required by the Commission to be
filed therewith, cooperate and assist in any filings required to be made
with the National Association of Securities Dealers, Inc. ("NASD"), and use
its best efforts to cause such Registration Statement to become effective;
provided further, that before filing a Registration Statement or prospectus
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related thereto (a "Prospectus") or any amendments or supplements thereto,
the Company will furnish to the holders of the Registrable Securities
covered by such Registration Statement and the underwriters, if any, copies
of all such documents proposed to be filed, which documents will be subject
to the reasonable review of such holders and underwriters and their
respective counsel, and the Company will not file any Registration
Statement or amendment thereto or any Prospectus or any supplement thereto
to which the holders of a majority of the Registrable Securities covered by
such Registration Statement or the underwriters, if any, shall reasonably
object;
(2) use its best efforts to keep such Registration Statement current
for a period of ninety (90) days, or such shorter period which will
terminate when all Registrable Securities covered by such Registration
Statement have been sold, and prepare and file with the Commission such
amendments and post-effective amendments to the Registration Statement as
may be necessary to keep each Registration Statement effective for such
period; cause each Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 under
the Act; and comply with the provisions of the Act with respect to the
disposition of all securities covered by such Registration Statement during
the applicable period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus; the Company shall not be deemed
to have used its best efforts to keep a Registration Statement effective
during the applicable period if it voluntarily takes any action that would
result in selling holders of the Registrable Securities covered thereby not
being able to sell such Registrable Securities during that period unless
such action is required under applicable law, provided that the foregoing
shall not apply to actions taken by the Company in good faith and for valid
business reasons, including without limitation the acquisition or
divestiture of assets, so long as the Company promptly thereafter complies
with the requirements of subsection (11) of this subsection (c), if
applicable;
(3) notify the selling holders of Registrable Securities and the
managing underwriters, if any, promptly, and (if requested by any such
person or entity) confirm such advice in writing, (A) when the Prospectus
or any Prospectus supplement or post-effective amendment has been filed,
and, with respect to the Registration Statement or any post-effective
amendment, when the same has become effective, (B) of any request by the
Commission for amendments or supplements to the Registration Statement or
the Prospectus or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose, (D) if at any time the representations and warranties of the
Company contemplated by subsection (14) below cease to be true and correct,
(E) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose and (F) of the happening of any event which makes any
statement made in the Registration Statement, the Prospectus or any
document incorporated therein by reference untrue or which requires the
making of any changes in the Registration Statement, the Prospectus or any
document incorporated therein by reference in order to make the statements
therein not misleading;
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(4) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of the Registration Statement at the earliest
possible moment;
(5) if requested by the managing underwriter or underwriters or a
holder of Registrable Securities being sold in connection with an
underwritten offering, promptly incorporate in a Prospectus supplement or
post-effective amendment such information as the managing underwriters and
the holders of a majority of the Registrable Securities being sold agree
should be included therein relating to the plan of distribution with
respect to such Registrable Securities, including, without limitation,
information with respect to the number of Registrable Securities being sold
to such underwriters, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the underwritten (or
best efforts underwritten) offering of the Registrable Securities to be
sold in such offering; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as notified of the matters
to be incorporated in such Prospectus supplement or post-effective
amendment;
(6) furnish to each selling holder of Registrable Securities and each
managing underwriter, without charge, at least one conformed copy of the
Registration Statement and any amendment thereto, including financial
statements and schedules, all documents incorporated therein by reference
and all exhibits (including those incorporated by reference);
(7) deliver to each selling holder of Registrable Securities and the
underwriters, if any, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement
thereto as such selling holder of Registrable Securities and underwriters
may reasonably request; the Company consents to the use of each Prospectus
or any amendment or supplement thereto by each of the selling holders of
Registrable Securities and the underwriters, if any, in connection with the
offering and sale of the Registrable Securities covered by such Prospectus
or any amendment or supplement thereto;
(8) prior to any public offering of Registrable Securities, register
or qualify or cooperate with the selling holders of Registrable Securities,
the underwriters, if any, and their respective counsel in connection with
the registration or qualification of such Registrable Securities for offer
and sale under the securities or "blue sky" laws of such jurisdictions as
any seller or underwriter reasonably requests in writing, considering the
amount of Registrable Securities proposed to be sold in each such
jurisdiction, and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the
Registrable Securities covered by the Registration Statement; provided that
the Company will not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action that
would subject it to general service of process in any such jurisdiction
where it is not then so subject;
(9) cooperate with the selling holders of Registrable Securities and
the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive
11
legends and to be in such denominations and registered in such names as the
managing underwriters may request at least two (2) business days prior to
any sale of Registrable Securities to the underwriters;
(10) use its best efforts to cause the Registrable Securities covered
by the applicable Registration Statement to be registered with or approved
by such other governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof or the underwriters, if any, to
consummate the disposition of such Registrable Securities;
(11) upon the occurrence of any event contemplated by subsection
(3)(F) above, prepare a supplement or post-effective amendment to the
Registration Statement or 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
Securities, the Prospectus will not contain an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading;
(12) cause all Registrable Securities covered by any Registration
Statement to be listed on each securities exchange on which similar
securities issued by the Company are then listed, or cause such Registrable
Securities to be authorized for trading on the NASDAQ National Market if
any similar securities issued by the Company are then so authorized, if
requested by the holders of a majority of such Registrable Securities or
the managing underwriters, if any;
(13) provide a CUSIP number for all Registrable Securities, not later
than the effective date of the applicable Registration Statement;
(14) enter into such agreements (including an underwriting agreement)
and take all such other actions in connection therewith in order to
expedite or facilitate the disposition of such Registrable Securities and
in such connection, whether or not an underwriting agreement is entered
into and whether or not the Registration is an underwritten Registration
(A) make such representations and warranties to the holders of such
Registrable Securities and the underwriters, if any, in form, substance and
scope as are customarily, made by issuers to underwriters In primary
underwritten offerings; (B) obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters, if any, and
the holders of a majority of the Registrable Securities being sold)
addressed to each selling holder and the underwriters, if any, covering the
matters customarily covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested by such holders and
underwriters; (C) obtain "cold comfort" letters and updates thereof from
the Company's independent certified public accountants addressed to the
selling holders of Registrable Securities and the underwriters, if any,
such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters by underwriters in connection
with primary underwritten offerings; (D) if an underwriting agreement is
entered into, the same shall set forth in full the indemnification
provisions and procedures set forth in subsection (f) below with
12
respect to all parties to be indemnified pursuant to said subsection; and
(E) the Company shall deliver such documents and certificates as may be
reasonably requested by the holders of a majority of the Registrable
Securities being sold and the managing underwriters, if any, to evidence
compliance with subsection 3(F) above and with any customary conditions
contained in the underwriting agreement or other agreement entered into by
the Company. The above shall be done at each closing under such
underwriting or similar agreement or as and to the extent required
thereunder;
(15) make available for inspection by a representative of the holders
of a majority of the Registrable Securities, any underwriter participating
in any disposition pursuant to such Registration, and any attorney or
accountant retained by the sellers or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, and
cause the Company's officers, directors and employees to supply all
information reasonably requested by any such representative, underwriter,
attorney or accountant in connection with such Registration Statement;
provided that any records, information or documents that are designated by
the Company in writing as confidential shall be kept confidential by such
Persons unless disclosure of such records, information or documents is
required by court or administrative order or any regulatory body having
jurisdiction;
(16) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to
its security holders, earnings statements satisfying the provisions of
Section 11(a) of the Act, no later than forty-five (45) days after the end
of any 12-month period (or ninety (90) days, if such period is a fiscal
year) (A) commencing at the end of any fiscal quarter in which Registrable
Securities are sold to underwriters in a firm or best efforts underwritten
offering, or (B) if not sold to underwriters in such an offering, beginning
with the first month of the Company's first fiscal quarter commencing after
the effective date of the Registration Statement, which statements shall
cover said 12-month periods; and
(17) promptly prior to the filing of any document that is to be
incorporated by reference into any Registration Statement or Prospectus
(after initial filing of the Registration Statement), provide copies of
such document to counsel to the selling holders of Registrable Securities
and to the managing underwriters, if any, make the Company's
representatives available for discussion of such document and make such
changes in such document prior to the filing thereof as counsel for such
selling holders or underwriters may reasonably request.
The Company may require each seller of Registrable Securities as to which
any Registration is being effected to furnish to the Company such information
regarding such seller and the proposed distribution of such securities as
required by applicable laws and regulations.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in subsection (3)(F) of this
subsection (c), such holder will forthwith discontinue disposition of
Registrable Securities pursuant to the Registration Statement until such
holder's
13
receipt of copies of the supplemented or amended Prospectus as contemplated by
subsection (11) of this subsection (c), or until it is advised in writing (the
"Advice ") by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings, that are incorporated
by reference in the Prospectus, and, if so directed by the Company, such holder
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
covering such Registrable Securities current at the time of receipt of such
notice. In the event the Company shall give any such notice, the time periods
referred to in subsection (2) of this subsection (c) shall be extended by the
number of days during the period from and including the date of the giving of
such notice to and including the date when each seller of Registrable Securities
covered by such Registration Statement shall have received the copies of the
supplemented or amended prospectus contemplated by subsection (11) of this
subsection (c) or the Advice.
(d) Registration Expenses. All expenses incident to the Company's
performance of or compliance with this Section 4 will be borne by the Company,
including, without limitation, all registration and filing fees, the fees and
expenses of the counsel and accountants for the Company (including the expenses
of any "cold comfort" letters), all other costs and expenses of the Company
incident to the preparation, printing and filing under the Act of the
Registration Statement (and all amendments and supplements thereto) and
furnishing copies thereof and of the Prospectus included therein, the costs and
expenses incurred by the Company in connection with the qualification of the
Registrable Securities under the state securities or "blue sky" laws of various
jurisdictions, the costs and expenses associated with filings required to be
made with the NASD, the costs and expenses of listing the Registrable Securities
for trading on a national securities exchange or authorizing them for trading on
the NASDAQ National Market and all other costs and expenses incurred by the
Company in connection with any Registration hereunder and, in connection with a
Demand Registration, the reasonable fees and expenses of one (1) firm of counsel
selected by the Institutional Investors holding more than 50% of the Registrable
Securities being sold or registered pursuant to the provisions of this
Agreement; provided, that, except as otherwise provided in Section4(e)(2) below,
the Company shall not bear the costs and expenses of any selling holders of
Registrable Securities for underwriters' commissions or brokerage fees.
(e) Indemnification.
(1) Indemnification by the Company. The Company agrees to indemnify, to the
full extent permitted by law, each Institutional Investor, its officers,
directors and agents and each person who controls such Institutional Investor
(within the meaning of the Act and the Exchange Act), against all losses,
claims, damages, liabilities and expenses caused by any untrue or alleged untrue
statement of a material fact contained in any Registration Statement, Prospectus
or preliminary Prospectus or any omission or alleged omission to state therein a
material fact necessary to make the statements therein (in the case of a
Prospectus or any preliminary Prospectus, in light of the circumstances under
which they were made) not misleading, except insofar as the same are caused by
or contained in any information with respect to such Institutional Investor
furnished in writing to the Company by such Institutional Investor or its
representative expressly for use therein. The Company will also indemnify
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the
14
distribution, their officers and directors and each person who controls such
persons (within the meaning of the Act) to the same extent as provided above
with respect to the indemnification of the Institutional Investor; provided,
however, if pursuant to an underwritten public offering of Registrable
Securities, the Company and any underwriters enter into an underwriting or
purchase agreement relating to such offering that contains provisions relating
to indemnification and contribution between the Company and such underwriters,
such provisions shall be deemed to govern indemnification and contribution as
between the Company and such underwriters.
(2) Indemnification by Institutional Investors. In connection with any
registration in which an Institutional Investor is participating, each such
Institutional Investor will furnish to the Company in writing such information
with respect to such Institutional Investor as the Company reasonably requests
for use in connection with any Registration Statement or Prospectus and agrees
to indemnify, to the full extent permitted by law, the Company, the directors
and officers of the Company signing the Registration Statement, each person who
controls the Company (within the meaning of the Act and the Exchange Act) and
all underwriters participating in the distribution against any losses, claims,
damages, liabilities and expenses resulting from any untrue statement of a
material fact or any omission to state a material fact required to be stated
therein or necessary to make the statements in the Registration Statement or
Prospectus or preliminary Prospectus (in the case of the Prospectus or any
preliminary Prospectus, in light of the circumstances under which they were
made) not misleading, to the extent, but only to the extent, that such untrue
statement or omission is contained in any information with respect to such
Institutional Investor so furnished in writing by such Institutional Investor or
its representative specifically for inclusion therein. In no event shall the
liability of any Institutional Investor hereunder be greater in amount than the
dollar amount of the proceeds received by such Institutional Investor upon the
sale of the Registrable Securities giving rise to such indemnification
obligation. The Company shall be entitled to receive indemnities from
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, to the same extent as provided
above with respect to information with respect to such persons or entities so
furnished in writing by such persons or entities or their representatives
specifically for inclusion in any Prospectus or Registration Statement.
(3) Conduct of Indemnification Proceedings. Any person or entity entitled
to indemnification hereunder will (i) give prompt written notice to the
indemnifying party after the receipt by the indemnified party of a written
notice of the commencement of any action, suit, proceeding or investigation or
threat thereof made in writing for which such indemnified party will claim
indemnification or contribution pursuant to this Agreement; 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
clauses (1) and (2), except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest may exist between
such indemnified and indemnifying parties with respect to such claim, permit
such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. Whether or not such defense is
assumed by the indemnifying party, the indemnifying party will not be subject to
any liability for any settlement made without its consent (but such consent will
not be unreasonably withheld). No indemnifying party will be required to consent
to the entry of any judgment or to enter into any settlement that does not
include as an unconditional term
15
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. An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim will not be obligated to pay the fees and expenses of more than one
counsel in any one jurisdiction for all parties indemnified by such indemnifying
party with respect to such claim, unless in the reasonable judgment of any
indemnified party a conflict of interest may exist between such indemnified
party and any other of such indemnified parties with respect to such claim, in
which event the indemnifying party shall be obligated to pay the fees and
expenses of such additional counsel or counsels.
(4) Contribution. If for any reason the indemnification provided for in the
preceding clauses (1) and (2) is unavailable to an indemnified party as
contemplated by the preceding clauses (1) and (2), then the indemnifying party
in lieu of indemnification shall contribute to the amount paid or payable by the
indemnified party as a result of such loss, claim, damage, liability or expense
in such proportion as is appropriate to reflect not only the relative benefits
received by the indemnified party and the indemnifying party, but also the
relative fault of the indemnified party and the indemnifying party, as well as
any other relevant equitable considerations, provided that no Institutional
Investor shall be required to contribute in an amount greater than the
difference between the net proceeds received by such Institutional Investor with
respect to the sale of any Shares and all amounts already contributed by such
Institutional Investor with respect to such claims, including amounts paid for
any legal or other fees or expenses incurred by such Institutional Investor.
(f) Rule 144. The Company agrees that at all times after it has filed a
registration statement pursuant to the requirements of the Act relating to any
class of equity securities of the Company, it will file in a timely manner all
reports required to be filed by it pursuant to the Act and the Exchange Act.
Notwithstanding the foregoing, the Company may deregister any class of its
equity securities under Section 12 of the Exchange Act or suspend its duty to
file reports with respect to any class of its securities pursuant to Section
15(d) of the Exchange Act if it is then permitted to do so pursuant to the
Exchange Act and the rules and regulations thereunder.
(g) Participation in Underwritten Registrations. No Institutional Investor
may participate in any underwritten registration hereunder unless such
Institutional Investor (i) agrees to sell its Registrable Securities on the
basis provided in any underwriting arrangements approved by the persons entitled
hereunder to select the underwriter pursuant to subsections (3)(a)(3) and
(3)(b)(4) above, and (ii) accurately completes in a timely manner and executes
all questionnaires, powers of attorney, underwriting agreements, custody
agreements and other documents customarily required under the terms of such
underwriting arrangements.
(h) Definition of Registrable Securities. "Registrable Securities" means
the Shares held by the Institutional Investors as of the date this Agreement or
hereafter acquired, but with respect to any such Share, only until such time as
such Share (i) has been effectively registered under the Act and disposed of in
accordance with the Registration Statement covering it or (ii) has been sold to
the public pursuant to Rule 144 (or any similar provision then in force) under
the Act.
(i) Amendments and Waivers. The provisions of this Section 4, including the
16
provisions of this sentence, may not be amended, modified or supplemented, and
waivers of or consents to departures from the provisions hereof may not be given
unless approved by the Company in writing and the Company has obtained the
written consent of Institutional Investors holding at least a majority of the
then outstanding Registrable Securities. This Agreement may be amended,
modified, waived or supplemented only by a written instrument executed by all
the parties hereto that are required to execute the same. No action taken
pursuant to this Agreement, including, without limitation, any investigation by
or on behalf of any party, shall be deemed to constitute a waiver by the party
taking such action. The waiver by any party hereto of a breach of any provision
of this Agreement shall not operate or be construed as waiver of any preceding
or succeeding breach and no failure by any party to exercise any right or
privilege hereunder shall be deemed a waiver of such party's rights or
privileges hereunder or shall be deemed a waiver of such party's rights to
exercise the same at any subsequent time or times hereunder.
SECTION 5. MISCELLANEOUS.
(a) Successors, Assigns and Transferees. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective legal
representatives, heirs, legatees, successors and assigns including any party to
which any Institutional Investor has transferred or sold his or its Shares. Each
transferee of Shares from an Institutional Investor shall take such Shares
subject to the same restrictions as existed in the hands of the transferor.
Shares sold to the public pursuant to an effective Registration Statement shall
no longer be subject to any of the provisions of this Agreement.
(b) Specific Performance, Etc. The Company and each of the Institutional
Investors and Dresher, in addition to being entitled to exercise all rights
provided herein, in the Company's Articles of Incorporation or granted by law,
including recovery of damages, will be entitled to specific performance of its
rights under this Agreement. The parties hereto agree that monetary damages
would not be adequate compensation for any loss incurred by reason of a breach
by it of the provisions of this Agreement and hereby agree to waive the defense
in any action for specific performance that a remedy at law would be adequate.
(c) Notices. All notices and other communications provided for or permitted
hereunder shall be in writing and shall be deemed to have been duly given if
delivered personally, when transmitted by telecopy, electronic or digital
transmission method, or sent by registered or certified mail (return receipt
requested) postage prepaid to the parties at the following addresses (or at such
other address for any party as shall be specified by like notice, provided that
notices of a change of address shall be effective only upon receipt thereof).
Notices sent by mail shall be effective five days after mailing.
17
(i) If to the Company, at:
Unidata, Inc.
1099 18th Street, Suite 2500
Denver, CO 80202
Attention: Harold Nussenfeld, Esq.
Fax: (303) 293-8880
with copies to:
Latham & Watkins
633 West Fifth Street
Suite 4000
Los Angeles, California 90071
Attention: Gary Olson, Esq.
Fax: (213) 891-8763
(ii) If to the Institutional Investors, at:
c/o Massachusetts Mutual Life Insurance Company
1295 State Street
Springfield, Massachusetts 01111
Attention: Richard Morrison
Fax: (413) 744-6127
with copies to:
MassMutual Corporate Value Partners Limited
P.O. Box 1096
George Town, Grand Cayman
Cayman Islands, B.W.I.
Attention: Michael Carey
Fax:
(iii) If to Dresher, at:
James T. Dresher
1339 E. MacPhail Rd.
Bel Air, MD 21015
Fax:(410) 879-6997
(d) Recapitalizations, Exchange, Etc. Affecting the Company's Stock. The
provisions of this Agreement shall apply, to the full extent set forth herein
with respect to the Common Stock, to any and all shares of capital stock of the
Company or any successor or assign of the Company (whether by merger,
consolidation, sale of assets, or otherwise) that may be issued in respect of,
in exchange for, or in substitution of the Common Stock and shall be
appropriately
18
adjusted for any stock dividends, splits, reverse splits, combinations,
recapitalizations and the like occurring after the date hereof.
(e) Termination. This Agreement shall terminate and cease to be of any
further force or effect on the tenth anniversary of the date hereof.
(f) Applicable Law. This Agreement shall be construed, interpreted and the
rights of the parties determined in accordance with the laws of the State of
Illinois without reference to any choice of law rules that would require the
application of the laws of any other jurisdiction.
(g) Severability. The provisions of this Agreement are severable, and if
any clause or provision shall be held invalid or unenforceable in whole or in
part in any jurisdiction, then such invalidity or unenforceability shall affect
only such clause or provision, or part thereof, in such jurisdiction and shall
not in any manner affect such clause or provision in any other jurisdiction, or
any other clause or provision of this Agreement in any jurisdiction.
(h) Interpretation. Time is of the essence of each provision of this
Agreement of which time is an element.
(i) Headings Descriptive. The headings in this Agreement are for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose or be given any substantive effect.
(j) Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement with respect to the subject matter hereof and is
intended as a complete and exclusive statement of the terms and conditions
thereof.
(k) Service of Process. Each party hereto irrevocably consents to the
service of any process, pleading, notices or other papers by the mailing of
copies thereof by registered, certified or first class mail, postage prepaid, to
such party at such party's address set forth herein, or by any other method
provided or permitted under Illinois law.
(1) Consent and Jurisdiction. Each party hereto irrevocably and
unconditionally (A) agrees that any suit, action or other legal proceeding
arising out of this Agreement may be brought in the United States District Court
for the Northern District of Illinois or, if such court does not have
jurisdiction or will not accept jurisdiction, in any court of general
jurisdiction in the County of Cook, Chicago, Illinois; (B) consents to the
jurisdiction or any such court in any such suit, action or proceeding; and (C)
waives any objection which such party may have to the laying of venue of any
such suit, action or proceeding in any such court.
(m) 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 successful party shall be entitled to recover reasonable
attorneys' fees in addition to any other available remedy.
(n) Counterparts. This Agreement may be executed in two or more
counterparts, each
19
of which shall be deemed an original but all of which shall together constitute
one and the same agreement.
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first above written.
UNIDATA, INC.
By /s/ David Brunel
---------------------------
Its: President
20
ACCEPTED AND AGREED TO:
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By /s/ Richard C. Morrison
---------------------------
Its: Vice President
This Agreement is executed on behalf of MassMutual Corporate Investors,
organized under a Declaration of Trust, dated September 13, 1985, as amended
from time to time. The obligations of such trust are not personally binding
upon, nor shall resort be had to the property of, any of the trustees,
shareholders, officers, employees or agents of such trust, but the trust
property only shall be bound.
MASSMUTUAL CORPORATE INVESTORS
By /s/ Richard C. Morrison
---------------------------
Its: Vice President
This Agreement is executed on behalf of MassMutual Participation Investors,
organized under a Declaration of Trust, dated April 7, 1988, as amended from
time to time. The obligations of such trust are not personally binding upon, nor
shall resort be had to the property of, any of the Trustees, shareholders,
officers, employees or agents of such Trust, but the Trust's assets and property
only shall be bound.
MASSMUTUAL PARTICIPATION INVESTORS
By /s/ Richard C. Morrison
-----------------------------
Its: Vice President
MASSMUTUAL CORPORATE VALUE
PARTNERS LIMITED
By Massachusetts Mutual Life Insurance
Company, as Investment Manager
By /s/ Richard C. Morrison
-----------------------------
Its: Vice President
21
ACCEPTED AND AGREED TO:
/s/ James T. Dresher
-----------------------------
James T. Dresher
22
EXHIBIT 1
SIGNIFICANT HOLDERS
(OTHER THAN THE INSTITUTIONAL INVESTORS)
John G. Akers
David W. Brunei
Jeanne D. Butcher
James T. Dresher
James T. Dresher, Jr.
Jeffrey M. Dresher
Bruce D. Fraser
Honor Guiney
Arlene Lacharite
Virginia D. Meoli
Harold Nussenfeld
Allan Snell
John F. Schaefer
Martin T. Hart
Gary Olson
Glenangus Holdings Corp.
Integro Fiduciaire SARL
System Builder Corporation