Exhibit 10.4
AGREEMENT
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THIS AGREEMENT (the "AGREEMENT") is made as of January 13, 2006, by and
between UTIX Group, Inc., a Delaware corporation, with its principal executive
offices at 0 Xxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000 ("UTIX"), and
certain investors of Utix as set forth on the signature pages hereto
(collectively, "INVESTORS"). (Utix and Investors may hereinafter be referred to
singularly as a "PARTY," and collectively as the "PARTIES.")
PREAMBLES:
WHEREAS, on various dates ranging from November, 2003 to December, 2005,
certain Investors (such Investors, the "DEBTHOLDERS") made loans to Utix
(collectively the "LOANS") in the aggregate principal amount of Four Million
Nine Hundred and Thirty One ($4,931,000) Dollars (the "PRINCIPAL AMOUNT"), in
such amounts as further set forth on SCHEDULE A hereto;
WHEREAS, in addition to the Loans, on various dates ranging from
November, 2003 to December, 20005, Utix issued warrants (collectively, the
"ORIGINAL WARRANTS") to certain Investors (such Investors, the "WARRANTHOLDERS")
to purchase approximately Thirty Million One Hundred Thirty Four Thousand Five
Hundred and Ninety (30,134,590) shares of common stock of Utix, par value $0.001
per share ("COMMON STOCK"), in such amounts as further set forth on SCHEDULE B
hereto; and
WHEREAS, Utix has been seeking additional financing and in furtherance
thereof Utix has entered into a term sheet dated December 28, 2005 with Special
Situations Fund ("SPECIAL SITUATIONS") whereby Special Situations has agreed to
invest or arrange for the investment of up to $6,500,000 by purchasing Utix's
Series A Convertible Preferred Stock; and
WHEREAS, as a condition to Special Situations agreeing to make or arrange
this investment in Utix, Special Situations requires that Utix restructure its
current obligations to the Debtholders and the Warrantholders as follows: (i)
all Loans payable to the Debtholders shall be paid in full by Utix by (A)
converting fifty (50%) percent of the principal amount of the Loans into shares
of Utix's Common Stock at the conversion rate of $0.02 per share; and (B)
converting the remaining fifty (50%) percent of the principal amount of the
Loans into shares of Utix's Common Stock at the conversion rate of $0.125; and
(C) issuing warrants (the "Debtholder Warrants") to purchase an aggregate of
30,818,750 shares of Utix's Common Stock at the exercise price of $0.04 per
share for a period of five (5) years, which Debtholder Warrants shall be
substantially in the form attached hereto as EXHIBIT A; and (ii) all Original
Warrants held by the Warrantholders shall be amended and restated (the "RESTATED
WARRANTS") whereby the Warrantholders will have the right to purchase fifty
(50%) percent of the number of shares of Common Stock each Warrantholder can
purchase under the Original Warrants at the exercise price of $0.04 per share
for a period of five (5) years, which Restated Warrants shall be substantially
in the form attached hereto as EXHIBIT B ((i) and (ii) above collectively
referred to herein as the "RESTRUCTURING"); and
WHEREAS, Utix and the Investors recognize that it is in the best interest
of the parties that Utix enter into the financing transaction with Special
Situations and in connection therewith the parties agree to the terms of the
Restructuring; and
WHEREAS, in furtherance of the Restructuring, the parties are desirous of
settling any claims the Investors now have against Utix for any and all
defaults, penalties, accelerations (the "INVESTORS' CLAIMS") arising out of the
terms of the Loans or the Original Warrants (assuming full and complete
performance by Utix of its obligations hereunder and under the Restructuring)
without resorting to litigation.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
1. DEFAULT. With the exception of those Loans set forth on SCHEDULE C
hereto, Utix hereby acknowledges that it is in default on the Loans, for, among
other things, the failure to repay the principal amount of the Loans. Utix
further acknowledges and agrees that it has no offset, defense or counterclaim
of any kind, nature or description with respect to any of its defaults and the
unpaid monies due to the Investors, as set forth herein.
2. RESTRUCTURING. Subject to the terms and conditions set forth
herein, on January __, 2006 (the "CLOSING DATE") which closing shall occur
concurrently with the closing of the Special Situations financing, in settlement
of the Investors' Claims and in connection with the Restructuring, the parties
hereby agree as follows:
(a) DEBTHOLDERS - CONVERSION OF LOANS.
(i) On the Closing Date, Utix will convert Two Million
Four Hundred and Sixty Five Thousand Five Hundred ($2,465,500) Dollars of the
outstanding Loans into shares of Common Stock at the conversion rate of $0.02
per share. Each Debtholder shall receive the number of shares of Common Stock as
is set forth on SCHEDULE D hereto.
(ii) On the Closing Date, Utix will convert Two Million
Four Hundred and Sixty Five Thousand Five Hundred ($2,465,500) Dollars of the
outstanding Loans into shares of Common Stock at the conversion rate of $0.125
per share. Each Debtholder shall be issued the number of shares of Common Stock
as is set forth on SCHEDULE E hereto. The shares to be issued pursuant to
Sections 2(a)(i), 2(a)(ii) shall be collectively referred to herein as the
"CONVERSION SHARES".
(iii) On the Closing Date, in addition to the shares to be
issued to the Investors pursuant to Sections 2(a)(i), and 2(a)(ii) above, in
further consideration for the Investor's agreement herein, Utix will issue the
Debtholder Warrants to the Debtholders to purchase an aggregate of Thirty
Million Eight Hundred and Eighteen Thousand Seven Hundred
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and Fifty (30,818,750) shares of Common Stock (the "DEBTHOLDER WARRANT SHARES").
Each Debtholder shall be issued a New Warrant to purchase the number of shares
of Common Stock as is set forth on SCHEDULE F hereto.
(iv) On the Closing Date, any accrued and unpaid interest
on the Loans shall be paid for the period ending December 31, 2005.
(b) WARRANTHOLDERS - ISSUANCE OF RESTATED WARRANTS. On the
Closing Date, Utix, in exchange for each Investor's Original Warrants, will
issue Restated Warrants to each Warrantholder to purchase an aggregate of
17,142,293 shares of Common Stock (the "RESTATED WARRANT SHARES"). Each
Warrantholder shall be issued a Restated Warrant to purchase the number of
shares as is set forth on SCHEDULE G hereto.
3. WARRANTIES AND REPRESENTATIONS OF UTIX. In order to induce
Investors to enter into this Agreement in settlement of the Investor's Claims
(assuming full and complete performance by Utix of its obligations hereunder),
Utix hereby represents and warrants to the Investors as follows:
(a) ORGANIZATION, GOOD STANDING AND QUALIFICATION. Utix is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware, and has all requisite corporate power and authority to
own and operate its assets and properties and to carry on its current or
contemplated business. Utix is duly qualified to transact business and is in
good standing in each jurisdiction wherein the properties owned or leased or the
business transacted by Utix makes such qualification to do business as a foreign
corporation necessary, except where the failure to so qualify could not
reasonably be expected to have a material adverse effect on the condition,
financial or otherwise, results of operations, business, prospects or properties
of Utix.
(b) CAPITALIZATION. As of the Closing Date (exclusive of the
securities issued pursuant to the Special Situations financing and hereunder),
Utix has presplit(A) 37,413,467 outstanding shares of common stock, (B)
75,000,000 outstanding options to purchase shares of its common stock, (C)
30,134,586 outstanding warrants to purchase shares of its common stock, and (D)
except as set forth on Schedules to this Agreement, no convertible securities,
or other rights, calling for the issuance of shares of its common stock
(collectively, the "UTIX SECURITIES"). The Utix Securities have, as applicable,
been duly authorized and validly issued and are fully paid and non-assessable,
have been issued and sold in compliance with applicable securities laws of the
United States and jurisdictions thereof and any other applicable securities
laws, and were not issued in violation of any preemptive rights, rights of first
refusal or other similar rights granted by Utix. There are no shareholders
agreements, voting agreements or other similar agreements with respect to the
outstanding shares of common stock of Utix to which Utix is a party or, to the
knowledge of Utix (having undertaken no independent investigation), between or
among any of Utix's stockholders.
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(c) POWER AND AUTHORITY. All corporate action on the part of
Utix and its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement, the Conversion Shares,
the Debtholder Warrants, the Restated Warrants, the Debtholder Warrant Shares
and the Restated Warrant Shares (collectively, the "Restructuring Securities"),
the performance of all obligations of Utix hereunder and thereunder, have been
taken or will be taken, as required. The Conversion Shares, the Debtholder
Warrants and the Restated Warrants have been duly executed and delivered by Utix
and constitute the valid and legally binding obligations of Utix, enforceable in
accordance with their terms.
(d) VALID ISSUANCE OF SECURITIES.
(i) The Conversion Shares, the Debtholder Warrant Shares
and Restated Warrant Shares when issued, sold and delivered in accordance with
the terms hereof, for the consideration expressed herein, and therein, will be
duly and validly issued, fully paid and non-assessable and free of any liens or
encumbrances created by Utix.
(ii) After the Amendment and the Reverse Split (as
defined in Section 5(k) herein), the Conversion Shares, the Debtholder Warrant
Shares and Restated Warrant Shares will be duly and validly reserved for
issuance upon conversion of the Loans in accordance with Section 2(a) hereof and
upon exercise of the Debtholder Warrants and the Restated Warrants, and upon
issuance in accordance with the terms of this Agreement and the Debtholder
Warrants and Restated Warrants, will be fully paid and non-assessable and will
be free of restrictions on transfer other than restrictions on transfer under
applicable state and federal securities laws. No preemptive right, right of
first refusal granted by Utix, or other similar right exists with respect to the
Conversion Shares, the Debtholder Warrant Shares or Restated Warrant Shares, or
the issuance and sale thereof.
(iii) Utix understands and acknowledges the potentially
dilutive effect to its common stock upon the issuance of the Conversion Shares,
the Debtholder Warrant Shares and the Restated Warrant Shares. Utix further
acknowledges that its obligation to issue the Conversion Shares, the Debtholder
Warrant Shares and the Restated Warrant Shares in accordance with this Agreement
and the terms of the Debtholder Warrants and the Restated Warrants is absolute
and unconditional, regardless of the dilutive effect that such issuance may have
on the ownership interests of other stockholders of Utix.
(e) GOVERNMENTAL CONSENTS. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, regional, state or local governmental authority on the
part of Utix is required in connection with Utix's authorization, issuance and
sale of the Conversion Shares, the Debtholder Warrant Shares or the Restated
Warrant Shares, and the transactions contemplated by this Agreement, except for
filings, if any, required pursuant to applicable state securities or Blue Sky
laws, which filings will be made within the required statutory or regulatory
periods, and any filing pursuant to Regulation D of the Securities and Exchange
Commission, which filing, if made, will be made
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within fifteen (15) days of the Closing Date.
(f) LITIGATION. There is no action, suit, claim, proceeding or
investigation pending or, to Utix's knowledge, threatened against Utix, which
could reasonably be expected to have a material adverse effect on the condition,
financial or otherwise, results of operations, business, prospects or properties
of Utix. Utix is not, and to Utix's knowledge (having undertaken no independent
investigation), no founder, director, officer or key employee is, a party or
subject to the provisions of any order, writ, injunction, judgment or decree of
any court or government agency or instrumentality that could reasonably be
expected to have a material adverse effect on the condition, financial or
otherwise, results of operations, business, prospects or properties of Utix.
4. WARRANTIES AND REPRESENTATIONS OF THE INVESTORS. Each Investor
hereby, as to itself only and for no other Investor, represents and warrants to
Utix as follows:
(a) ORGANIZATION; AUTHORITY. Such Investor is an individual or
entity duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization with the requisite corporate or partnership
power and authority to enter into and to consummate the transactions
contemplated by this Agreement and otherwise to carry out its obligations
hereunder and thereunder. The acceptance of the Restructuring as set forth
herein has been duly authorized by all necessary action on the part of such
Investor. This Agreement has been duly executed and delivered by such Investor
and constitutes the valid and binding obligation of such Investor, enforceable
against it in accordance with its terms.
(b) INVESTMENT INTENT. Such Investor is acquiring the
Conversion Shares, as principal for its own account for investment purposes only
and not with a view to or for distributing or reselling such Conversion Shares
or any part thereof, without prejudice, however, to such Investor's right,
subject to the provisions of this Agreement, at all times to sell or otherwise
dispose of all or any part of such Conversion Shares pursuant to an effective
registration statement under the Securities Act or under an exemption from such
registration and in compliance with applicable federal and state securities
laws. Nothing contained herein shall be deemed a representation or warranty by
such Investor to hold the Conversion Shares for any period of time. Such
Investor does not have any agreement or understanding, directly or indirectly,
with any Person to distribute any of the Conversion Shares. "PERSON" means an
individual, corporation, partnership, limited liability company, trust, business
trust, association, joint stock company, joint venture, sole proprietorship,
unincorporated organization, governmental authority or any other form of entity
not specifically listed herein.
(c) INVESTOR STATUS. At the time such Investor was offered the
Conversion Shares, the Debtholder Warrants and Restated Warrants it was, and at
the date hereof it is, an "accredited investor" as defined in Rule 501(a) under
the Securities Act.
(d) EXPERIENCE OF SUCH INVESTOR. Such Investor, either alone or
together with its representatives, has such knowledge, sophistication and
experience in business and financial
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matters, including investments in entities that are listed on the "Over the
Counter Bulletin Board", so as to be capable of evaluating the merits and risks
of the prospective investment in the Restructuring Securities and has so
evaluated the merits and risks of such investment. Such Investor is (i) aware
that the volume of the trading market for the Conversion Shares, the Debtholder
Warrant Shares and the Restated Warrant Shares is limited or may be non-existent
for a period of time; and (ii) able to bear the economic risk of an investment
in the Restructuring Securities, and, at the present time, is able to afford a
complete loss of such investment.
(e) ACCESS TO INFORMATION. Such Investor acknowledges that it
has been afforded (i) the opportunity to ask such questions as it has deemed
necessary of, and to receive answers from, representatives of Utix concerning
the terms and conditions of the Restructuring and the merits and risks of
investing in the Restructuring Securities; (ii) access to information about Utix
and its respective financial condition, results of operations, business,
properties, management and prospects sufficient to enable it to evaluate its
investment; and (iii) the opportunity to obtain such additional information that
Utix possesses or can acquire without unreasonable effort or expense that is
necessary to make an informed investment decision with respect to the
Restructuring. Neither such inquiries nor any other investigation conducted by
or on behalf of such Investor or its representatives or counsel shall modify,
amend or affect such Investor's right to rely on the truth, accuracy and
completeness of Utix's representations and warranties contained in this
Agreement.
5. COVENANTS OF UTIX. Utix covenants and agrees with Investors as
follows:
(a) STOP ORDERS. Utix will advise Investors, promptly after it
receives notice of issuance by the Securities and Exchange Commission (the
"COMMISSION"), any state securities commission or any other regulatory authority
of any stop order or of any order preventing or suspending any offering of any
securities of Utix, or of the suspension of the qualification of the common
stock of Utix for offering or sale in any jurisdiction, or the initiation of any
proceeding for any such purpose.
(b) LISTING. Utix will maintain the listing or quotation of its
common stock on the American Stock Exchange, Nasdaq SmallCap Market, Nasdaq
National Market System, Bulletin Board, or New York Stock Exchange (whichever of
the foregoing is at the time the principal trading exchange or market for the
shares of common stock of Utix (the "PRINCIPAL MARKET")), and will comply in all
respects with its reporting, filing and other obligations under the bylaws or
rules of the Principal Market, as applicable. Utix will provide Investors with
copies of all notices it receives notifying Utix of the threatened and actual
delisting of its common stock from any Principal Market. As of the date of this
Agreement, the Bulletin Board is and will be the Principal Market.
(c) MARKET REGULATIONS. Utix shall notify the Commission, the
Principal Market and applicable state authorities, in accordance with their
requirements, of the transactions contemplated by this Agreement, and shall take
all other necessary action and proceedings as may be required and permitted by
applicable law, rule and regulation, for the legal and valid
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issuance of the Conversion Shares, the Debenture Warrant Shares and the Restated
Warrant Shares to Investors and promptly provide copies thereof to Investors.
(d) REPORTING REQUIREMENTS. From the date of this Agreement and
until the sooner of (i) two (2) years after the Closing Date, or (ii) until all
the Conversion Shares, the Debtholder Warrant Shares and the New Warrant Shares
have been resold or transferred by the Investors pursuant to the Registration
Statement (as defined in Section 8(a) hereof) or pursuant to Rule 144, without
regard to volume limitation, Utix will (A) cause its common stock to continue to
be registered under Section 12(b) or 12(g) of the 1934 Act, (B) comply in all
material respects with its reporting and filing obligations under the 1934 Act,
(C) comply with all reporting requirements that are applicable to an issuer with
a class of shares registered pursuant to Section 12(b) or 12(g) of the 1934 Act,
as applicable, and (D) comply with all requirements related to any registration
statement filed pursuant to this Agreement. Utix will use its best efforts not
to take any action or file any document (whether or not permitted by the 1933
Act or the 1934 Act or the rules thereunder) to terminate or suspend such
registration or to terminate or suspend its reporting and filing obligations
under said acts until three (3) years after the Closing Date. Until the resale
of the Conversion Shares, the Debtholder Warrant Shares or the Restated Warrant
Shares by Investors, Utix will use its best efforts to continue the listing or
quotation of its common stock on a Principal Market and will comply in all
respects with its reporting, filing and other obligations under the bylaws or
rules of the Principal Market. Utix agrees to timely file a Form D with respect
to the Conversion Shares if required under Regulation D and to provide a copy
thereof to Investors promptly after such filing.
(e) TAXES. From the date of this Agreement and until the sooner
of (i) three (3) years after the Closing Date, or (ii) until all the Conversion
Shares, the Debtholder Warrant Shares and the Restated Warrant Shares have been
resold or transferred by the Investors pursuant to the Registration Statement
(as defined in Section 8(a) hereof) or pursuant to Rule 144, without regard to
volume limitations, Utix will promptly pay and discharge, or cause to be paid
and discharged, when due and payable, all lawful taxes, assessments and
governmental charges or levies imposed upon the income, profits, property or
business of Utix; PROVIDED, HOWEVER, that any such tax, assessment, charge or
levy need not be paid if the validity thereof shall currently be contested in
good faith by appropriate proceedings and if Utix shall have set aside on its
books adequate reserves with respect thereto, and provided, further, that Utix
will pay all such taxes, assessments, charges or levies forthwith upon the
commencement of proceedings to foreclose any lien which may have attached as
security therefore.
(f) BOOKS AND RECORDS. From the date of this Agreement and
until the sooner of (i) three (3) years after the Closing Date, or (ii) until
all the Conversion Shares, the Debtholder Warrant Shares and the Restated
Warrant Shares have been resold or transferred by the Investors pursuant to the
Registration Statement (as defined in Section 8(a) hereof) or pursuant to Rule
144, without regard to volume limitations, Utix will keep true records and books
of account in which full, true and correct entries will be made of all dealings
or transactions in relation to its business and affairs in accordance with
generally accepted accounting principles applied on a consistent basis.
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(g) GOVERNMENTAL AUTHORITIES. From the date of this Agreement
and until the sooner of (i) three (3) years after the Closing Date, or (ii)
until all the Conversion Shares, the Debtholder Warrant Shares and the Restated
Warrant Shares have been resold or transferred by the Investors pursuant to the
Registration Statement (as defined in Section 8(a) hereof) or pursuant to Rule
144, without regard to volume limitations, Utix shall duly observe and conform
in all material respects to all valid requirements of governmental authorities
relating to the conduct of its business or to its properties or assets.
(h) INTELLECTUAL PROPERTY. From the date of this Agreement and
until the sooner of (i) three (3) years after the Closing Date, or (ii) until
all the Conversion Shares, the Debtholder Warrant Shares and the Restated
Warrant Shares have been resold or transferred by the Investors pursuant to the
Registration Statement (as defined in Section 8(a) hereof) or pursuant to Rule
144, without regard to volume limitations, Utix shall maintain in full force and
effect its corporate existence, rights and franchises and all licenses and other
rights to use intellectual property owned or possessed by it and reasonably
deemed to be necessary to the conduct of its business.
(i) PROPERTIES. From the date of this Agreement and until the
sooner of (i) three (3) years after the Closing Date, or (ii) until all the
Conversion Shares, the Debtholder Warrant Shares and the Restated Warrant Shares
have been resold or transferred by the Investors pursuant to the Registration
Statement (as defined in Section 8(a) hereof) or pursuant to Rule 144, without
regard to volume limitations, Utix will keep its properties in good repair,
working order and condition, reasonable wear and tear excepted, and from time to
time make all necessary and proper repairs, renewals, replacements, additions
and improvements thereto; and Utix will at all times comply with each provision
of all leases to which it is a party or under which it occupies property if the
breach of such provision could reasonably be expected to have a material adverse
effect on Utix's operations.
(j) NON-PUBLIC INFORMATION. Utix covenants and agrees that
neither it nor any other person acting on its behalf will provide the Investors
or its agents or counsel with any information that Utix believes constitutes
material non-public information, unless prior thereto the Investors shall have
agreed in writing to receive such information. Utix understands and confirms
that the Investors shall be relying on the foregoing representations in
effecting transactions in securities of Utix.
(k) INFORMATION STATEMENT. Utix shall take all action necessary
to effectuate an amendment to its Amended and Restated Certificate of
Incorporation increasing the number of shares of Common Stock that Utix is
authorized to issue to 375,000,000 (the "AMENDMENT") and a one-for-100 reverse
split of Utix's Common Stock (the "REVERSE SPLIT") as promptly as practicable.
In connection therewith, assuming Utix obtains the written consent of a majority
of its shareholders, Utix will promptly prepare and file with the Commission an
information statement and, after receiving and promptly responding to any
comments of the Commission thereon, shall promptly mail such information
statement to Utix's stockholders (as so mailed, the "INFORMATION STATEMENT").
Each Investor shall promptly furnish in writing to Utix such information
relating to such Investor and its investment in Utix as Utix may reasonably
request
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for inclusion in the Information Statement and, if requested, shall provide a
stockholder consent to the Amendment and the Reverse Split. Utix will comply
with Section 14(c) of the 1934 Act and the rules promulgated thereunder in
relation to the Information Statement, and the Information Statement shall not,
on the date that the Information Statement (or any amendment thereof or
supplement thereto) is first mailed to stockholders, or at the time that the
Amendment or Reverse Split is effectuated, contain any statement which, at the
time and in light of the circumstances under which it was made, is false or
misleading with respect to any material fact, or which omits to state any
material fact necessary in order to make the statements therein not false or
misleading or necessary to correct any statement in any earlier communication
with respect to same subject matter which has become false or misleading. If
Utix should discover at any time prior to the effectuation of the Amendment and
the Reverse Split, any event relating to Utix or any of their respective
affiliates, officers or directors that is required to be set forth in a
supplement or amendment to the Information Statement, in addition to the Utix's
obligations under the 1934 Act, Utix will promptly inform the Investors thereof.
6. OTHER AGREEMENTS OF THE PARTIES.
(a) TRANSFER RESTRICTIONS. The Conversion Shares, the
Debtholder Warrant Shares and the Restated Warrant Shares may only be disposed
of pursuant to an effective registration statement under the Securities Act or
pursuant to an available exemption from the registration requirements of the
Securities Act, and in compliance with any applicable state securities laws. In
connection with any transfer of the Conversion Shares, the Debtholder Warrant
Shares and the Restated Warrant Shares other than pursuant to an effective
registration statement or to Utix or pursuant to Rule 144(k), except as
otherwise set forth herein, Utix may require the transferor to provide to Utix
an opinion of counsel selected by the transferor (with the costs associated with
the production of such opinion borne by Utix), the form and substance of which
opinion shall be reasonably satisfactory to Utix, to the effect that such
transfer does not require registration under the Securities Act. Notwithstanding
the foregoing, Utix hereby consents to and agrees to register on the books of
Utix and with its Transfer Agent, without any such legal opinion, any transfer
of the Conversion Shares, the Debtholder Warrant Shares or the Restated Warrant
Shares by an Investor to an Affiliate of such Investor, provided that the
transferee certifies to Utix that it is an "accredited investor" as defined in
Rule 501(a) under the Securities Act. In addition, if an Investor reasonably
believes that a transfer may be made in compliance with the rules and
regulations of the Commission, the Investor may request a transfer of the
Conversion Shares, the Debtholder Warrant Shares and the Restated Warrant Shares
without obtaining such legal opinion, but Utix (if it is unsure of
transferability) may itself seek a legal opinion before being required to take
any action.
The Investors agree to the imprinting, so long as is required by
this Section 6, of the following legend on any Conversion Shares, the Debtholder
Warrant Shares or the Restated Warrant Shares:
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THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND
EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE
UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.
NOTWITHSTANDING THE FOREGOING, THESE SECURITIES MAY BE PLEDGED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING
ARRANGEMENT SECURED BY SUCH SECURITIES.
Certificates evidencing the Conversion Shares, the Debtholder Warrant
Shares and the Restated Warrant Shares shall not be required to contain such
legend or any other legend (i) while a Registration Statement covering the
resale of such Conversion Shares, the Debtholder Warrant Shares and the Restated
Warrant Shares is effective under the Securities Act, or (ii) following any sale
of such Conversion Shares, the Debtholder Warrant Shares or the Restated Warrant
Shares pursuant to Rule 144, or (iii) if such Conversion Shares, the Debtholder
Warrant Shares or the Restated Warrant Shares are eligible for sale under Rule
144(k), or (iv) if (in the written opinion of competent securities counsel
rendered to Utix, with the costs associated with the production of such opinion
borne by Utix) such legend is not required under applicable requirements of the
Securities Act (including judicial interpretations and pronouncements issued by
the Commission). Following the Effective Date or at such earlier time as a
legend is no longer required for certain Conversion Shares, the Debtholder
Warrant Shares or the Restated Warrant Shares, Utix will no later than three (3)
Trading Days following the delivery by an Investor to Utix or the Transfer Agent
of a legended certificate representing such Conversion Shares, deliver or cause
to be delivered to such Investor a certificate representing such Conversion
Shares, Debtholder Warrant Shares or Restated Warrant Shares that are free from
all restrictive and other legends. Utix may not make any notation on its records
or give instructions to any transfer agent of Utix that enlarge the restrictions
on transfer set forth in this Section.
(b) SECURITIES LAWS DISCLOSURE; PUBLICITY. Utix shall, on the
Closing Date or as soon as reasonably practicable, issue a press release
reasonably acceptable to the Investors disclosing all material terms of the
transactions contemplated hereby. Not later than four days after the Closing
Date, Utix shall file a Current Report on Form 8-K with the Commission (the "8-K
FILING") describing the material terms of the transactions contemplated by the
Transaction Documents and including as exhibits to such Current Report on Form
8-K this Agreement in the form required by the Exchange Act. Thereafter, Utix
shall timely file any filings and notices required by the Commission or
applicable law with respect to the transactions contemplated hereby and provide
copies thereof to the Investors promptly after filing. Except with respect to
the 8-K Filing and the press release referenced above, Utix shall, at least two
Trading Days prior to the filing or dissemination of any disclosure required by
this paragraph, provide a copy thereof
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to the Investors for their review. Utix and the Investors shall consult with
each other in issuing any press releases or otherwise making public statements
or filings and other communications with the Commission or any regulatory agency
or Trading Market with respect to the transactions contemplated hereby, and
neither party shall issue any such press release or otherwise make any such
public statement, filing or other communication without the prior consent of the
other, except if such disclosure is required by law, in which case the
disclosing party shall promptly provide the other party with prior notice of
such public statement, filing or other communication. Notwithstanding the
foregoing, Utix shall not publicly disclose the name of any Investor, or include
the name of any Investor in any filing with the Commission or any regulatory
agency or Trading Market, without the prior written consent of such Investor,
except to the extent such disclosure is required by law or applicable
regulations, in which case Utix shall provide the Investors with prior notice of
such disclosure. Utix shall not, and shall cause each of its officers,
directors, employees and agents not to, provide any Investor with any material
nonpublic information regarding Utix or any of its Subsidiaries from and after
the filing of the 8-K Filing without the express written consent of such
Investor. In the event of a breach of the foregoing covenant by Utix, any of its
Subsidiaries, or any of its or their respective officers, directors, employees
and agents, in addition to any other remedy provided herein or in the
Transaction Documents, a Investor shall have the right to make a public
disclosure, in the form of a press release, public advertisement or otherwise,
of such material nonpublic information without the prior approval by Utix, its
Subsidiaries, or any of its or their respective officers, directors, employees
or agents. No Investor shall have any liability to Utix or any its officers,
directors, employees, stockholders or agents for any such disclosure. Subject to
the foregoing, neither Utix nor any Investor shall issue any press releases or
any other public statements with respect to the transactions contemplated
hereby; provided, however, that Utix shall be entitled, without the prior
approval of any Investor, to make any press release or other public disclosure
with respect to such transactions (i) in substantial conformity with the 8-K
Filing and contemporaneously therewith and (ii) as is required by applicable law
and regulations (provided that in the case of clause (i) each Investor shall be
consulted by Utix in connection with any such press release or other public
disclosure prior to its release). Each press release disseminated during the 12
months preceding the date of this Agreement did not at the time of release
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading.
7. CONDITIONS.
(a) CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE INVESTORS.
The obligation of each Investor to accept the Conversion Shares, the Debtholder
Warrants and the Restated Warrants in settlement of the Investors' Claims and in
connection with the Restructuring on the Closing Date is subject to the
satisfaction or waiver by such Investor, on or before the Closing Date, of each
of the following conditions:
(i) REPRESENTATIONS AND WARRANTIES. The representations
and warranties of Utix contained herein shall be true and correct in all
material respects as of the date when made on the Closing Date, as though made
on such date; and
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(ii) PERFORMANCE.
(A) Utix shall deliver or cause to be delivered
to each Debtholder: (1) the Conversion Shares, and (2) the Debtholder Warrants.
(B) Utix shall deliver or cause to be delivered
to each Warrantholder: (1) the Restated Warrants.
(C) Utix shall pay any accrued and unpaid
interest on the Loans for the period ending December 31, 2005.
(b) CONDITIONS PRECEDENT TO THE OBLIGATIONS OF UTIX. The
obligation of Utix to issue the Conversion Shares, the Debtholder Warrants and
the Restated Warrants at the Closing Date is subject to the satisfaction or
waiver by Utix, at or before the Closing Date, of each of the following
conditions:
(i) REPRESENTATIONS AND WARRANTIES. The representations
and warranties of the Investors contained herein shall be true and correct in
all material respects as of the date when made and as of the applicable Closing
Date as though made on and as of such date; and
(ii) PERFORMANCE.
(A) Each Debtholder shall deliver to Utix, his or
its original promissory notes (or debentures, as the case may be) in the
Principal Amount of the Loans marked "cancelled."
(B) Each Warrantholder shall deliver to Utix, his
or its Original Warrant marked "cancelled."
8. REGISTRATION RIGHTS.
(a) PIGGY-BACK REGISTRATION. If Utix at any time proposes to
register any of its securities under the Securities Act of 1933, as amended (the
"1933 ACT") for sale to the public, whether for its own account or for the
account of other security holders or both, except with respect to registration
statements on Forms X-0, X-0 or another form not available for registering the
Conversion Shares, the Debtholder Warrant Shares and the Restated Warrant Shares
(the Conversion Shares, the Debtholder Warrant Shares and the Restated Warrant
Shares, being referred to in this Section 8 as the "REGISTRABLE SECURITIES") for
sale to the public, provided the Registrable Securities are not otherwise
registered for resale by the Investor pursuant to an effective registration
statement, each such time it will give at least 30 days' prior written notice to
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the record holder of the Registrable Securities of its intention. Upon the
written request of the Investor, received by Utix within 20 days after the
giving of any such notice by Utix, to register any of the Registrable
Securities, Utix will cause such Registrable Securities as to which registration
shall have been so requested to be included with the securities to be covered by
the registration statement proposed to be filed by Utix (the "REGISTRATION
STATEMENT"), all to the extent required to permit the sale or other disposition
of the Registrable Securities so registered by the holder of such Registrable
Securities (the "SELLER"). In the event that any registration pursuant to this
Section 8(a) shall be, in whole or in part, an underwritten public offering of
common stock of Utix, the number of shares of Registrable Securities to be
included in such an underwriting may be reduced by the managing underwriter if
and to the extent that Utix and the underwriter shall reasonably be of the
opinion that such inclusion would adversely affect the marketing of the
securities to be sold by Utix therein; provided, however, that Utix shall notify
the Seller in writing of any such reduction. Utix may withdraw or delay or
suffer a delay of any Registration Statement referred to in this Section 8(a)
without thereby incurring any liability to the Seller.
(b) REGISTRATION PROCEDURES. If and whenever Utix is required
by the provisions hereof to effect the registration of any shares of Registrable
Securities under the 1933 Act, Utix will, as expeditiously as possible:
(i) prepare and file with the Commission a Registration
Statement with respect to such securities and use
its best efforts to cause such Registration
Statement to become and remain effective for the
period of the distribution contemplated thereby
(determined as herein provided), and promptly
provide to the Sellers copies of all filings and
Commission letters of comment;
(ii) prepare and file with the Commission such amendments
and supplements to such Registration Statement and
the prospectus used in connection therewith as may
be necessary to keep such Registration Statement
effective until the latest of: (i) all Conversion
Shares, Debtholder Warrant Shares and Restated
Warrant Shares have been resold or transferred by
the Investors pursuant to the Registration
Statement; or (ii) two years after the Closing Date
and comply with the provisions of the 1933 Act with
respect to the disposition of all of the Registrable
Securities covered by such Registration Statement in
accordance with the Seller's intended method of
disposition set forth in such Registration Statement
for such period;
(iii) use commercially reasonable efforts to comply with
all applicable rules and regulations of the
Commission under the
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1933 Act and the 1934 Act, including, without
limitation, Rule 172 under the 1933 Act, file any
final prospectus, including any supplement or
amendment thereof, with the Commission pursuant to
Rule 424 under the 1933 Act, promptly inform the
Investors in writing if, at any time during which
the Registration Statement is effective, Utix does
not satisfy the conditions specified in Rule 172
and, as a result thereof, the Investors are required
to deliver a prospectus in connection with any
disposition of Registrable Securities and take such
other actions as may be reasonably necessary to
facilitate the registration of the Registrable
Securities hereunder;
(iv) use its best efforts to register or qualify the
Sellers' Registrable Securities covered by such
Registration Statement under the securities or "blue
sky" laws of such jurisdictions as the Seller and in
the case of an underwritten public offering, the
managing underwriter shall reasonably request,
provided, however, that Utix shall not for any such
purpose be required to qualify generally to transact
business as a foreign corporation in any
jurisdiction where it is not so qualified or to
consent to general service of process in any such
jurisdiction;
(v) list the Registrable Securities covered by such
Registration Statement with any securities exchange
on which the Common Stock of Utix is then listed;
(vi) immediately notify the Seller and each underwriter
under such Registration Statement at any time when a
prospectus relating thereto is required to be
delivered under the 1933 Act, of the happening of
any event of which Utix has knowledge as a result of
which the prospectus contained in such Registration
Statement, as then in effect, includes an untrue
statement of a material fact or omits to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading in light of the circumstances then
existing;
(vii) make available for inspection by the Seller, any
underwriter participating in any distribution
pursuant to such Registration Statement, and any
attorney, accountant or other agent retained by the
Seller or underwriter, all publicly available,
non-confidential financial and other records,
pertinent corporate documents and properties of
Utix, and cause Utix's officers,
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directors and employees to supply all publicly
available, non-confidential information reasonably
requested by the seller, underwriter, attorney,
accountant or agent in connection with such
Registration Statement;
(viii) In connection with each registration hereunder, the
Seller will furnish to Utix in writing such
information and representation letters with respect
to itself and the proposed distribution by it as
reasonably shall be necessary in order to assure
compliance with federal and applicable state
securities laws. In connection with each
registration pursuant to Section 8(a) covering an
underwritten public offering, Utix and the Seller
agree to enter into a written agreement with the
managing underwriter in such form and containing
such provisions as are customary in the securities
business for such an arrangement between such
underwriter and companies of Utix's size and
investment stature.
(c) EXPENSES. All expenses incurred by Utix in complying with
Section 8, including, without limitation, all registration and filing fees,
printing expenses, fees and disbursements of counsel and independent public
accountants for Utix, expenses (including reasonable counsel fees) incurred in
connection with complying with state securities or "blue sky" laws, fees of the
National Association of Securities Dealers, Inc., transfer taxes, fees of
transfer agents and registrars, and costs of insurance are called "REGISTRATION
EXPENSES". All underwriting discounts and selling commissions applicable to the
sale of Registrable Securities are called "SELLING EXPENSES". Except as
otherwise provided in this paragraph 8(c), the Seller shall pay the fees of its
own counsel, if any. Utix will pay all Registration Expenses in connection with
the Registration Statement under Section 8. All Selling Expenses in connection
with each Registration Statement under Section 8 shall be borne by the Seller
and may be apportioned among the Sellers in proportion to the number of shares
sold by the Seller relative to the number of shares sold under such Registration
Statement or as all Sellers thereunder may agree.
(d) INDEMNIFICATION AND CONTRIBUTION.
(i) In the event of a registration of any Registrable
Securities under the 1933 Act pursuant to Section 8,
Utix will indemnify and hold harmless the Seller,
each officer of the Seller, each director of the
Seller, each underwriter of such Registrable
Securities thereunder and each other person, if any,
who controls such Seller or underwriter within the
meaning of the 1933 Act, against any losses, claims,
damages or liabilities, joint or several, to which
the Seller, or such underwriter or controlling
person may become subject under the 1933 Act or
otherwise,
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insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or
alleged untrue statement of any material fact
contained in any Registration Statement under which
such Registrable Securities was registered under the
1933 Act pursuant to Section 8, any preliminary
prospectus or final prospectus contained therein, or
any amendment or supplement thereof, or 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, and will reimburse the
Seller, each such underwriter and each such
controlling person for any legal or other expenses
reasonably incurred by them in connection with
investigating or defending any such loss, claim,
damage, liability or action; provided, however, that
Utix shall not be liable to the Seller to the extent
that any such damages arise out of or are based upon
an untrue statement or omission made in any
preliminary prospectus if (i) the Seller failed to
send or deliver a copy of the final prospectus
delivered by Utix to the Seller with or prior to the
delivery of written confirmation of the sale by the
Seller to the person asserting the claim from which
such damages arise, (ii) the final prospectus would
have corrected such untrue statement or alleged
untrue statement or such omission or alleged
omission, or (iii) to the extent that any such loss,
claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement
or omission or alleged omission so made in
conformity with information furnished by any such
Seller, or any such controlling person, in writing
specifically for use in such Registration Statement
or prospectus.
(ii) In the event of a registration of any of the
Registrable Securities under the 1933 Act pursuant
to Section 8, the Seller will indemnify and hold
harmless Utix, and each person, if any, who controls
Utix within the meaning of the Act, each officer of
Utix who signs the Registration Statement, each
director of Utix, each underwriter and each person
who controls any underwriter within the meaning of
the 1933 Act, against all losses, claims, damages or
liabilities, joint or several, to which Utix or such
officer, director, underwriter or controlling person
may become subject under the 1933 Act or otherwise,
insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or
alleged untrue
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statement of any material fact contained in the
Registration Statement under which such Registrable
Securities were registered under the 1933 Act
pursuant to Section 8, any preliminary prospectus or
final prospectus contained therein, or any amendment
or supplement thereof, or 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, and will reimburse Utix and each
such officer, director, underwriter and controlling
person for any legal or other expenses reasonably
incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or
action, provided, however, that the Seller will be
liable hereunder in any such case if and only to the
extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in
conformity with information pertaining to such
Seller, as such, furnished in writing to Utix by
such Seller specifically for use in such
Registration Statement or prospectus, and provided,
further, however, that the liability of the Seller
hereunder shall be limited to the gross proceeds
received by the Seller from the sale of Registrable
Securities covered by such Registration Statement.
(iii) Promptly after receipt by an indemnified party
hereunder of notice of the commencement of any
action, such indemnified party shall, if a claim in
respect thereof is to be made against the
indemnifying party hereunder, notify the
indemnifying party in writing thereof, but the
omission so to notify the indemnifying party shall
not relieve it from any liability which it may have
to such indemnified party other than under this
Section 8(d) and shall only relieve it from any
liability which it may have to such indemnified
party under this Section 8(d), except and only if
and to the extent the indemnifying party is
prejudiced by such omission. In case any such action
shall be brought against any indemnified party and
it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall
be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense
thereof with counsel satisfactory to such
indemnified party, and, after notice from the
indemnifying party to such indemnified party of its
election so to assume and undertake the defense
thereof, the indemnifying party shall not be liable
to such indemnified party under this
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Section 8(d) for any legal expenses subsequently
incurred by such indemnified party in connection
with the defense thereof other than reasonable costs
of investigation and of liaison with counsel so
selected, provided, however, that, if the defendants
in any such action include both the indemnified
party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may
be reasonable defenses available to it which are
different from or additional to those available to
the indemnifying party or if the interests of the
indemnified party reasonably may be deemed to
conflict with the interests of the indemnifying
party, the indemnified parties shall have the right
to select one separate counsel and to assume such
legal defenses and otherwise to participate in the
defense of such action, with the reasonable expenses
and fees of such separate counsel and other expenses
related to such participation to be reimbursed by
the indemnifying party as incurred.
(iv) In order to provide for just and equitable
contribution in the event of joint liability under
the 1933 Act in any case in which either (i) the
Seller, or any controlling person of the Seller,
makes a claim for indemnification pursuant to this
Section 8(d) but it is judicially determined (by the
entry of a final judgment or decree by a court of
competent jurisdiction and the expiration of time to
appeal or the denial of the last right of appeal)
that such indemnification may not be enforced in
such case notwithstanding the fact that this Section
8(d) provides for indemnification in such case, or
(ii) contribution under the 1933 Act may be required
on the part of the Seller or controlling person of
the Seller in circumstances for which
indemnification is provided under this Section 8(d);
then, and in each such case, Utix and the Seller
will contribute to the aggregate losses, claims,
damages or liabilities to which they may be subject
(after contribution from others) in such proportion
so that the Seller is responsible only for the
portion represented by the percentage that the
public offering price of its securities offered by
the Registration Statement bears to the public
offering price of all securities offered by such
Registration Statement, provided, however, that, in
any such case, (y) the Seller will not be required
to contribute any amount in excess of the public
offering price of all such securities offered by it
pursuant to such Registration Statement; and (z) no
person or entity guilty of fraudulent
misrepresentation (within the meaning of Section
10(f) of the 0000 Xxx) will be entitled to
contribution from any
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person or entity who was not guilty of such
fraudulent misrepresentation.
9. FURTHER ASSURANCES. Utix hereby agrees, at its own cost and
expense, to execute and to deliver such additional documents, agreements and
instruments and take or cause to be taken such additional action as the
Investors may request in order to more fully give effect to the settlement
reflected in this Agreement.
10. SPECIFIC PERFORMANCE. Utix hereby acknowledges that irreparable
damage would occur in the event that any of the provisions of this Agreement are
not performed in accordance with their specific terms, or are otherwise
breached. Accordingly, the parties agree that the Investors are entitled to an
injunction to prevent breaches of this Agreement and to enforce specifically the
terms and provisions hereof and thereof in addition to any other remedy to which
they are entitled in law or in equity.
11. BROKER FEES. Utix on the one hand, and the Investors on the other
hand, agree to indemnify the other against and hold the other harmless from any
and all liabilities to any persons claiming brokerage commissions or finder's
fees on account of services purported to have been rendered on behalf of the
indemnifying party in connection with this Agreement or the transactions
contemplated hereby and arising out of such party's actions. Utix represents
that there are no parties entitled to receive fees, commissions, or similar
payments in connection with the transactions described in this Agreement.
12. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties, and supersede all prior agreements, understandings
and arrangements, oral or written, among the parties with respect to the subject
matter hereof.
(b) AMENDMENTS AND WAIVERS. This Agreement may not be modified
or amended except by an instrument or instruments in writing signed by the party
against whom enforcement of any such modification or amendment is sought. Any
party may, by an instrument in writing, waive performance or compliance by any
other party with respect to any term or provision of this Agreement on the part
of such other party to be performed or complied with. The waiver by any party of
a breach of any term or provision of this Agreement shall not be construed as a
waiver of any subsequent breach.
(c) NOTICES. Any notice or other communication required or
permitted hereunder shall be in writing and delivered at the addresses
designated below, or mailed by registered or certified mail, return receipt
requested, postage prepaid, addressed as follows, or to such other address or
addresses as may hereafter be furnished by one party to the other party in
compliance with the terms hereof:
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If to the Investors to the address beneath each Investors
name on the signature page hereto.
If to Utix to:
Utix Group, Inc.
0 Xxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn.: Xxxx Xxxx
with a copy to:
Xxxxxxx Xxxx LLP
00 Xxxx 00xx Xx., 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
All such notices and communications shall be effective when delivered at the
designated addresses or five days after deposited in the mails in conformity
with the provisions hereof.
(d) ASSIGNMENT. Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable by either party without the prior written consent of the other party.
(e) SECTION AND OTHER HEADINGS. The section and other headings
contained in this Agreement are for reference purposes only and shall not be
deemed to be a part of this Agreement or to affect the meaning or interpretation
of this Agreement.
(f) EXECUTION IN COUNTERPARTS. This Agreement may be executed
in counterparts, each of which shall be deemed to be an original and all of
which together shall be deemed to be one and the same instrument.
(g) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the City of New York, State of New
York, without giving effect to the conflicts of law provisions thereof.
(h) CONSENT TO JURISDICTION. Each of the parties hereto: (i)
consents and submits to the jurisdiction of the Courts of the State of New York
and of the Courts of the United States for a judicial district within the
territorial limits of the State of New York for all purposes of this Agreement,
including, without limitation, any action or proceeding instituted for the
enforcement of any right, remedy, obligation and liability arising under or by
reason of this Agreement; and (ii) consents and submits to the venue of such
action or proceeding in the City and County of New York (or such judicial
district of a Court of the United States as shall include the same).
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COUNTERPART SIGNATURE PAGE TO AGREEMENT, DATED________________ , 2006
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written. UTIX GROUP, INC.
By:
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Its:
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