WAIVER AND AMENDMENT AGREEMENT
EXHIBIT 10.71
This
Waiver and Amendment Agreement, dated as of August 29, 2008
(the “Agreement”), is by and among
BPO Management Services, Inc. (the “Company”), and the undersigned
Purchasers (defined below), on behalf of all Purchasers (the “Purchaser
Representatives”). All capitalized terms used but not defined
herein shall have the meaning set forth in that certain Registration Rights
Agreement, dated as of June 13, 2007 (the “Registration Rights
Agreement”), by and among the Company and those persons listed on
Schedule I thereto (the “Purchasers”). The
Company and the Purchasers are, together, the “Parties.”
RECITALS
WHEREAS,
the Parties entered into the Registration Rights Agreement to provide the
Purchasers with certain registration rights for certain of the securities in the
Company owned by them;
WHEREAS,
the Company filed a Registration Statement on Form SB-2 with the Securities and
Exchange Commission, pursuant to the Registration Rights Agreement, but such
Registration Statement has not been declared effective;
WHEREAS,
the Purchasers no longer require the Registration Statement to become effective
due to the provisions of Rule 144 and certain other legal and business
agreements; and
WHEREAS,
the Purchaser Representatives, being at least 75% of the Holders of Registrable
Securities, desire to waive any liquidated damages owed to the Purchasers by the
Company that relate to the Registration Rights Agreement and to amend and
restate the Registration Rights Agreement to rid the Company of the requirement
to register for re-sale any securities of the Purchasers.
NOW,
THEREFORE, in consideration of the premises and covenants made herein, and for
such other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties hereby agree as follows:
ARTICLE
1
WAIVER
1. Waiver of
Damages. The undersigned Purchasers, on behalf of all
Purchasers, pursuant to Section 7(f) of the Registration Rights Agreement,
hereby waive and disclaim any right to any and all damages from and after June
13, 2007, through and including the date hereof, owed or potentially owed by the
Company to any of the Purchasers resulting form any provisions of the
Registration Rights Agreement, including without limitation any liquidated
damages owed or potentially owed by the Company to any of the Purchasers
pursuant to Section 7(e) of the Registration Rights Agreement.
-1-
ARTICLE
2
AMENDMENT
2. Amendment of Registration
Rights Agreement. The Registration Rights Agreement is hereby
amended and restated as reflected in Exhibit A of this Agreement.
ARTICLE
3
MISCELLANEOUS
PROVISIONS
3. Miscellaneous
Provisions.
3.1 No Further
Amendments. This Agreement may only be modified or amended by
a written agreement in the manner provided by the Registration Rights
Agreement.
3.2 Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original but all of which when taken together shall constitute one and
the same instrument. Facsimiles or portable document files
transmitted by e-mail containing original signatures shall be deemed for all
purposes to be originally signed copies of the documents which are the subject
of such facsimiles or files.
3.3 Binding on
Successors. This Agreement shall be
binding upon and shall inure to the benefit of the successors and permitted
assigns of the Parties.
3.4 Entire Agreement.
This Agreement
contains the entire understanding among the Parties and supersede any prior
written or oral agreements among them respecting the subject matter contained
herein. There are no representations, agreements, arrangements or
understandings, oral or written, among the Parties relating to the subject
matter hereof that are not fully expressed herein and therein.
[SIGNATURE
PAGES TO FOLLOW]
-2-
IN
WITNESS WHEREOF, the Company and the Purchaser Representatives have executed or
have caused a duly authorized officer to execute this Agreement, all effective
as of the day and year first above written.
THE
COMPANY:
BPO
MANAGEMENT SERVICES, INC.,
a
Delaware corporation
|
By:
|
/s/ Xxxxxxx X. Xxxxx | |
|
Name:
|
Xxxxxxx
X. Xxxxx
|
|
|
Its:
|
Chief
Executive Officer
|
THE
PURCHASER REPRESENTATIVES:
VISION
OPPORTUNITY MASTER FUND, LTD.
|
By:
|
/s/ Xxxx Xxxxxxxx | |
|
Name:
|
Xxxx Xxxxxxxx | |
|
Its:
|
Director |
RENAISSANCE
CAPITAL GROWTH & INCOME FUND III, INC.
|
By:
|
/s/ Xxxxxxx Xxxxxxxxx | |
|
Xxxxxxx
Xxxxxxxxx
|
||
|
President
|
RENAISSANCE
US GROWTH INVESTMENT TRUST PLC
|
By:
|
/s/ Xxxxxxx Xxxxxxxxx | |
|
Xxxxxxx
Xxxxxxxxx
|
||
|
President
|
US
SPECIAL OPPORTUNITIES TRUST PLC
|
By:
|
/s/ Xxxxxxx Xxxxxxxxx | |
|
Xxxxxxx
Xxxxxxxxx
|
||
|
President
|
-3-
PREMIER
XXXX US EMERGING GROWTH FUND LTD.
|
By:
|
/s/ Xxxxxxx Xxxxxxxxx | |
|
Xxxxxxx
Xxxxxxxxx
|
||
|
President
|
BRIDGEPOINTE
MASTER FUND LTD.
|
By:
|
||
|
Name:
|
||
|
Title:
|
XXXXXX
CAPITAL INVESTMENTS LLC
|
By:
|
/s/ Xxxxxx X. Xxxxxx | |
|
Name:
Xxxxxx X. Xxxxxx
|
||
|
Title:
Chief Executive Officer
|
-4-
EXHIBIT
A
Amended
and Restated Registration Rights Agreement
(attached)
-5-
AMENDED
AND RESTATED
REGISTRATION
RIGHTS AGREEMENT
This
Amended and Restated Registration Rights Agreement (this “Agreement”) dated
August 29, 2008, amends and restates that certain Registration Rights Agreement,
made and entered into as of June 13, 2007 (the “Registration Rights
Agreement”), by and among BPO Management Services, Inc., a Delaware
corporation (the “Company”), and those
persons stated on Schedule I hereto (the “Purchasers”). This
Agreement is being entered into pursuant to Section 7(f) of the Registration
Rights Agreement.
The
Company and the Purchasers hereby agree as follows:
1.
Definitions.
Capitalized
terms used and not otherwise defined herein shall have the meanings given such
terms in that certain Series D Convertible Preferred Stock Purchase Agreement,
dated as of June 13, 2007, by and among the Company and the Purchasers (“the
“Purchase
Agreement”). As used in this Amendment, the following terms
shall have the following meanings:
“Affiliate” means,
with respect to any Person, any other Person that directly or indirectly
controls or is controlled by or under common control with such
Person. For the purposes of this definition, “control,” when used
with respect to any Person, means the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, by contract or
otherwise; and the terms of “affiliated,” “controlling” and
“controlled”
have meanings correlative to the foregoing.
“Business Day” mans
any day except Saturday, Sunday and any date which shall be a legal holiday or a
day on which banking institutions in the State of New York generally are
authorized or required by law or other government actions to close.
“Common Stock” means
the Company’s Common Stock, par value $0.01 per share.
“Holder” or “Holders” means the
holder or holders, as the case may be, from time to time of Registrable
Securities.
“Indemnified Party”
shall have the meaning set forth in Section 5(c).
“Indemnifying Party”
shall have the meaning set forth in Section 5(c).
“Losses” shall have
the meaning set forth in Section 5(a).
“NASD” means the
National Association of Securities Dealers, Inc.
-6-
“Person” means an
individual or a corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company,
government (or an agency or political subdivision thereof) or other entity of
any kind.
“Preferred Stock”
means shares of the Company’s Series D Convertible Preferred Stock issued to the
Purchasers pursuant to the Purchase Agreement and shares of the Company’s Series
D-2 Convertible Preferred Stock issued to the Purchasers upon exercise of the
Series J Warrants.
“Proceeding” means an
action, claim, suit, investigation or proceeding (including, without limitation,
an investigation or partial proceeding, such as a deposition), whether commenced
or threatened.
“Registrable
Securities” means the shares of Common Stock issuable upon conversion of
the Preferred Stock and any dividends accrued or payable thereon plus the shares
of Common Stock issuable upon exercise of the Warrants.
“Rule 144” means Rule
144 promulgated by the Commission pursuant to the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission having substantially the same effect as such
Rule.
“Securities Act” means
the Securities Act of 1933, as amended.
“Warrants” means the
warrants to purchase shares of Common Stock and the warrants to purchase shares
of the Company’s Series D-2 Convertible Preferred Stock, all issued to the
Purchasers pursuant to the Purchase Agreement.
2. Registration
Requirements. The Company shall not be required to register
any of the securities of any of the Purchasers in any manner and at any
time.
3. Withdrawal of Registration
Statement. The Company is entitled to, at its sole discretion,
withdraw any registration statement currently pending with the Securities and
Exchange Commission without the Purchasers’ consent, including without
limitation that certain Registration No. 333-144570.
-7-
4. Registration
Expenses.
All fees
and expenses incident to the performance of or compliance with this Agreement by
the Company, except as and to the extent specified in this Section 4, shall be
borne by the Company. The fees and expenses referred to in the
foregoing sentence shall include, without limitation, (i) all registration and
filing fees (including, without limitation, fees and expenses (A) with respect
to filings required to be made with the OTC Bulletin Board and/or each other
securities exchange or market on which Registrable Securities are required
hereunder to be quoted or listed, if any, (B) with respect to filing fees
required to be paid to NASD, the NASD Regulation, Inc. and the OTC Compliance
Unit, if any, each as applicable, and (C) in compliance with state securities or
Blue Sky laws (including, without limitation, fees and disbursements of counsel
for the Holders in connection with Blue Sky qualifications of the Registrable
Securities and determination of the eligibility of the Registrable Securities
for investment under the laws of such jurisdictions as the Holders of a majority
of Registrable Securities may designate)), (ii) printing expenses (including,
without limitation, expenses of printing certificates for Registrable
Securities), (iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Company, (v) Securities Act liability
insurance, if the Company so desires such insurance, and (vi) fees and expenses
of all other Persons retained by the Company in connection with the consummation
of the transactions contemplated by this Agreement, including, without
limitation, the Company’s independent public accountants (including the expenses
of any comfort letters or costs associated with the delivery by independent
public accountants of a comfort letter or comfort letters). In
addition, the Company shall be responsible for all of its internal expenses
incurred in connection with the consummation of the transactions contemplated by
this Agreement (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit, and the fees and expenses incurred in connection with the
listing of the Registrable Securities on any securities exchange as required
hereunder. The Company shall not be responsible for any discounts,
commissions, transfer taxes or other similar fees incurred by the Holders in
connection with the sales of the Registrable Securities.
5. Indemnification.
(a) Indemnification by the
Company. The Company shall, notwithstanding any termination of
this Agreement, indemnify and hold harmless each Holder, the officers,
directors, managers, partners, members, shareholders, agents, brokers,
investment advisors and employees of each of them, each Person who controls any
such Holder (within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act) and the officers, directors, agents and employees of
each such controlling Person, to the fullest extent permitted by applicable law,
from and against any and all losses, claims, damages, liabilities, costs
(including, without limitation, costs of preparation and reasonable attorneys’
fees) and expenses (collectively, “Losses”) , as
incurred, arising out of or relating to any violation of securities laws by the
Company. The Company shall notify the Holders promptly of the
institution, threat or assertion of any Proceeding of which the Company is aware
in connection with the transactions contemplated by this Agreement.
(b) [Reserved].
-8-
(c) Conduct of Indemnification
Proceedings. If any Proceeding shall be brought or asserted
against any Person entitled to indemnity hereunder (an “Indemnified Party”),
such Indemnified Party promptly shall notify the Person from whom indemnity is
sought (the “Indemnifying Party)
in writing, and the Indemnifying Party shall be entitled to assume the defense
thereof, including the employment of counsel reasonably satisfactory to the
Indemnified Party and the payment of all fees and expenses incurred in
connection with defense thereof (including reasonable attorneys’ fees and
expenses); provided, that the failure of any Indemnified Party to give such
notice shall not relieve the Indemnifying Party of its obligations or
liabilities pursuant to this Agreement, except (and only) to the extent that it
shall be finally determined by a court of competent jurisdiction (which
determination is not subject to appeal or further review) that such failure
shall have proximately and materially adversely prejudiced the Indemnifying
Party.
An
Indemnified Party shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party or Parties
unless: (1) the Indemnifying Party has agreed in writing to pay such fees and
expenses; or (2) the Indemnifying Party shall have failed promptly to assume the
defense of such Proceeding and to employ counsel reasonably satisfactory to such
Indemnified Party in any such Proceeding; or (3) the named parties to any such
Proceeding (including any impleaded parties) include both such Indemnified Party
and the Indemnifying Party, and such parties shall have been advised by counsel
that a conflict of interest is likely to exist if the same counsel were to
represent such Indemnified Party and the Indemnifying Party (in which case, if
such Indemnified Party notifies the Indemnifying Party in writing that it elects
to employ separate counsel at the expense of the Indemnifying Party, the
Indemnifying Party shall not have the right to assume the defense thereof and
such counsel shall be at the expense of the Indemnifying Party). The
Indemnifying Party shall not be liable for any settlement of any such Proceeding
effected without its written consent, which consent shall not be unreasonably
withheld or delayed. No Indemnifying Party shall, without the prior
written consent of the Indemnified Party, effect any settlement of any pending
or threatened Proceeding in respect of which any Indemnified Party is a party
and indemnity has been sought hereunder, unless such settlement includes an
unconditional release of such Indemnified Party from all liability on claims
that are the subject matter of such Proceeding.
All fees
and expenses of the Indemnified Party (including reasonable fees and expenses to
the extent incurred in connection with investigating or preparing to defend such
Proceeding in a manner not inconsistent with this Section) shall be paid to the
Indemnified Party, as incurred, within ten (10) Business Days of written notice
thereof to the Indemnifying Party (regardless of whether it is ultimately
determined that an Indemnified Party is not entitled to indemnification
hereunder; provided, that the
Indemnified Party shall reimburse all such fees and expenses to the extent it is
finally judicially determined that such Indemnified Party is not entitled to
indemnification hereunder).
-9-
(d) Contribution. If
a claim for indemnification under Section 5(a) is due but unavailable to an
Indemnified Party because of a failure or refusal of a governmental authority to
enforce such indemnification in accordance with its terms (by reason of public
policy or otherwise), then each Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable
considerations. The relative fault of such Indemnifying Party and
Indemnified Party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission of a material fact, has been
taken or made by, or relates to information supplied by, such Indemnifying,
Party or Indemnified Party, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such action, statement or omission. The amount paid or payable by a
party as a result of any Losses shall be deemed to include, subject to the
limitations set forth in Section 5(c), any reasonable attorneys’ or other
reasonable fees or expenses incurred by such party in connection with any
Proceeding to the extent such party would have been indemnified for such fees or
expenses if the indemnification provided for in this Section was available to
such party in accordance with its terms. In no event shall any
selling Holder be required to contribute an amount under this Section 5(d) in
excess of the net proceeds received by such Holder upon sale of such Holder’s
Registrable Securities.
The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 5(d) were determined by pro rata allocation or by any
other method of allocation that does not take into account the equitable
considerations referred to in the immediately preceding paragraph. No
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
The
indemnity and contribution agreements contained in this Section are in addition
to any liability that the Indemnifying Parties may have to the Indemnified
Parties pursuant to the law.
6. Rule
144.
As long
as any Holder owns Preferred Stock, Warrants or Registrable Securities, the
Company covenants to timely file (or obtain extensions in respect thereof and
file within the applicable grace period) all reports required to be filed by the
Company after the date hereof pursuant to Section 13(a) or 15(d) of the Exchange
Act. As long as any Holder owns Preferred Stock, Warrants or
Registrable Securities, if the Company is not required to file reports pursuant
to Section 13(a) or 15(d) of the Exchange Act, it will prepare and furnish to
the Holders and make publicly available in accordance with Rule 144(c)
promulgated under the Securities Act annual and quarterly financial statements,
together with a discussion and analysis of such financial statements in form and
substance substantially similar to those that would otherwise be required to be
included in reports required by Section 13(a) or 15(d) of the Exchange Act, as
well as any other information required thereby, in the time period that such
filings would have been required to have been made under the Exchange
Act. The Company further covenants that it will take such further
action as any Holder may reasonably request, all to the extent required from
time to time to enable such Person to sell Conversion Shares and Warrant Shares
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 promulgated under the Securities Act, including
providing any legal opinions relating to such sale pursuant to Rule
144. Upon the request of any Holder, the Company shall deliver to
such Holder a written certification of a duly authorized officer as to whether
it has complied with such requirements.
-10-
7. Miscellaneous.
(a) Remedies. In
the event of a breach by the Company or by a Holder, of any of their obligations
under this Agreement, such Holder or the Company, as the case may be, in
addition to being entitled to exercise all rights granted by law and under this
Agreement, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The
Company and each Holder agree that monetary damages would not provide adequate compensation
for any losses incurred by reason of a breach by it of any of the provisions of
this Agreement and hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense that
a remedy at law would be adequate.
(b) No Inconsistent
Agreements. Neither the Company nor any of its subsidiaries
has, as of the date hereof entered into and currently in effect, nor shall the
Company or any of its subsidiaries, on or after the date of this Agreement,
enter into any agreement with respect to its securities that is inconsistent
with the rights granted to the Holders in this Agreement or otherwise conflicts
with the provisions hereof. Except as disclosed in Schedule 2.1(c) of
the Purchase Agreement, neither the Company nor any of its subsidiaries has
previously entered into any agreement currently in effect granting any
registration rights with respect to any of its securities to any
Person. Without limiting the generality of the foregoing, without the
written consent of the Holders of a majority of the then outstanding Registrable
Securities, the Company shall not grant to any Person the right to request the
Company to register any securities of the Company under the Securities Act
unless the rights so granted are subject in all respects to the prior rights in
full of the Holders set forth herein, and are not otherwise in conflict with the
provisions of this Agreement.
(c) [Reserved].
(d) [Reserved].
(e) [Reserved].
(f) Amendments and
Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless the same shall be in writing and signed by the Company and the Holders of
seventy-five percent (75%) of the Registrable Securities
outstanding.
-11-
(g) Notices. Any
notice, demand, request, waiver or other communication required or permitted to
be given hereunder shall be in writing and shall be effective (a) upon hand
delivery, or delivery by telex, e-mail or facsimile at the address or number
designated below (if delivered on a business day during normal business hours
where such notice is to be received), or the first business day following such
delivery (if delivered other than on a business day during normal business hours
where such notice is to be received) or (b) on the second business day following
the date of mailing by express courier service, fully prepaid, addressed to such
address, or upon actual receipt of such mailing, whichever shall first
occur. The addresses for such communications shall be:
|
If
to the Company:
|
BPO
Management Services, Inc.
0000
X. Xxxxxxx, Xxx 000
Xxxxxxx,
XX 00000
Attention:
Chief Executive Officer
Tel.
No.: (000) 000-0000
Fax
No.: (000) 000-0000
E-mail: xxxxxxx.xxxxx@xxxxx.xxx
|
|
|
with
copies (which shall not constitute notice) to:
|
Xxxxx
Xxxx LLP
0000
Xxxx Xxxxxx, Xxxxx 000
Xxxxxx,
XX 00000
Attention:
Xxxxxxx X. Xxxx, Esq.
Tel.
No.: (000) 000-0000
Fax
No.: (000) 000-0000
E-mail:
xxxxxx@xxxxxxxxx.xxx
|
|
|
and:
|
||
|
Xxxxxxx
& Xxxxxx
00000
XxxXxxxxx Xxxx., Xxxxx 000
Xxxxxx,
XX 00000
Attention:
Xxxx X. Xxxxxxx, Esq.
Tel.
No.: (000) 000-0000
Fax
No.: (000) 000-0000
|
||
|
If
to any Purchaser:
|
At
the address of such Purchaser set forth on Schedule I
to this Agreement, with copies to Purchaser’s counsel as set forth
below or as specified in writing by such Purchaser:
|
|
Any party
hereto may from time to time change its address for notices by giving at least
ten (10) days written notice of such changed address to the other party
hereto.
(h) Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their successors and permitted assigns and shall
inure to the benefit of each Holder and its successors and
assigns. The Company may not assign this Agreement or any of its
rights or obligations hereunder without the prior written consent of each
Holder. Each Purchaser may assign its rights hereunder in the manner
and to the Persons as permitted under the Purchase Agreement.
-12-
(i) [Reserved].
(j) [Reserved].
(k) Governing Law;
Jurisdiction. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York, without
giving effect to any of the conflicts of law principles which would result in
the application of the substantive law of another jurisdiction. This
Agreement shall not be interpreted or construed with any presumption against the
party causing this Agreement to be drafted. The Company and the
Holders agree that venue for any dispute arising under this Agreement will lie
exclusively in the state or federal courts located in New York County, New York,
and the parties irrevocably waive any right to raise forum non conveniens or any
other argument that New York is not the proper venue. The Company and
the Holders irrevocably consent to personal jurisdiction in the state and
federal courts of the state of New York. The Company and the Holders
consent to process being served in any such suit, action or proceeding by
delivering a copy thereof to such party at the address in effect for notices to
it under this Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing in this
Section 7(k) shall affect or limit any right to serve process in any other
manner permitted by law. The Company and the Holders hereby agree
that the prevailing party in any suit, action or proceeding arising out of or
relating to this Agreement or the Purchase Agreement, shall be entitled to
reimbursement for reasonable legal fees from the non-prevailing
party. The parties hereby waive all rights to a trial by
jury.
(l) Cumulative
Remedies. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law.
(m) Severability. If any
term, provision, covenant or restriction of this Agreement is held to be
invalid, illegal, void or unenforceable in any respect, the remainder of the
terms, provisions, covenants and restrictions set forth herein shall remain in
full force and effect and shall in no way be affected, impaired or invalidated,
and the parties hereto shall use their reasonable efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is
hereby stipulated and declared to be the intention of
the parties that they would have executed the remaining terms, provisions,
covenants and restrictions without including any of such that may be hereafter
declared invalid, illegal, void or unenforceable.
(n) Headings. The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof.
-13-
(o) Shares Held by the Company
and its Affiliates. Whenever the consent or approval of Holders of a
specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company or its Affiliates (other than any
Holder or transferees or successors or assigns thereof if such Holder is deemed
to be an Affiliate solely by reason of its holdings of such Registrable
Securities) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
(p) Independent Nature of
Purchasers. The Company acknowledges that the obligations of
each Purchaser under the Transaction Documents are several and not joint with
the obligations of any other Purchaser, and no Purchaser shall be responsible in
any way for the performance of the obligations of any other Purchaser under the
Transaction Documents. The Company acknowledges that the decision of
each Purchaser to purchase Securities pursuant to the Purchase Agreement has
been made by such Purchaser independently of any other Purchaser and
independently of any information, materials, statements or opinions as to the
business, affairs, operations, assets, properties, liabilities, results of
operations, condition (financial or otherwise) or prospects of the Company or of
its Subsidiaries which may have been made or given by any other Purchaser or by
any agent or employee of any other Purchaser, and no Purchaser or any of its
agents or employees shall have any liability to any Purchaser (or any other
person) relating to or arising from any such information, materials, statements
or opinions. The Company acknowledges that nothing contained herein,
or in any Transaction Document, and no action taken by any Purchaser pursuant
hereto or thereto shall be deemed to constitute the Purchasers as a partnership,
an association, a joint venture or any other kind of entity, or create a
presumption that the Purchasers are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by the
Transaction Documents. The Company acknowledges that each Purchaser
shall be entitled to independently protect and enforce its rights, including
without limitation, the rights arising out of this Agreement or out of the other
Transaction Documents, and it shall not be necessary for any other Purchaser to
be joined as an additional party in any proceeding for such
purpose. The Company acknowledges that for reasons of administrative
convenience only, the Transaction Documents have been prepared by counsel for
one of the Purchasers and such counsel does not represent all of the
Purchasers. The Company acknowledges that it has elected to provide all
Purchasers with the same terms and Transaction Documents for the convenience of
the Company and not because it was required or requested to do so by the
Purchasers. The Company acknowledges that such procedure with respect
to the Transaction Documents in no way creates a presumption that the Purchasers
are in any way acting in concert or as a group with respect to the Transaction
Documents or the transactions contemplated hereby or thereby.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
-14-
Schedule
I
Purchasers
|
Legal
Entity Name and Address
of
Purchaser
|
|
VISION
OPPORTUNITY MASTER FUND, LTD.
|
|
00
X. 00xx Xxxxxx, 0xx
xxxxx
|
|
Xxx
Xxxx, XX 00000
|
|
Tel:
Fax: 000-000-0000
|
|
Attn: Xxxx
Xxxxxxxx and Antti Uusiheimala
|
|
E-mail:
xxxx@xxxxxxx.xxx & xxxxx@xxxxxxx.xxx
|
|
RENAISSANCE
US GROWTH INVESTMENT TRUST PLC (“RUSGIT”)
|
|
Frost
National Bank
|
|
000
X. Xxxxxxx Xxxxxx
|
|
ATTN:
Xxxxx Xxxxxxxxx T-8
|
|
Xxx
Xxxxxxx, XX 00000
|
|
Contact
for docs: Xxxx Xxxxxxxx
|
|
Tel:
(000) 000-0000/ Fax:
|
|
Email:
xxxxxxxxx@xxxxxxxxxx.xxx
|
|
RENAISSANCE
CAPITAL GROWTH & INCOME FUND III,
INC. (“RENN3”)
|
|
Frost
National Bank
|
|
000
X. Xxxxxxx Xxxxxx
|
|
ATTN:
Xxxxx Xxxxxxxxx T-8
|
|
Xxx
Xxxxxxx, XX 00000
|
|
Contact
for docs: Xxxx Xxxxxxxx
|
|
Tel:
(000) 000-0000/ Fax:
|
|
Email:
xxxxxxxxx@xxxxxxxxxx.xxx
|
|
US
SPECIAL OPPORTUNITIES TRUST PLC (“USSO”)
|
|
Frost
National Bank
|
|
000
X. Xxxxxxx Xxxxxx
|
|
ATTN:
Xxxxx Xxxxxxxxx T-8
|
|
Xxx
Xxxxxxx, XX 00000
|
|
Contact
for docs: Xxxx Xxxxxxxx
|
|
Tel:
(000) 000-0000/ Fax:
|
|
Email:
xxxxxxxxx@xxxxxxxxxx.xxx
|
1
|
PREMIER XXXX US EMERGING GROWTH
FUND LTD. (“PREMIER”)
|
|
Premier
XXXX US Emerging Growth Fund Ltd.
|
|
Acct
# PRN01/17-28085
|
|
c/o
Xxxxxxxx Xxxxxxx
|
|
The
Northern Trust Company
|
|
000
Xxxxx Xxxxx Xxxxxx, X-0-Xxxxx
|
|
Xxxxxxx,
XX 00000
|
|
Contact
for docs: Xxxx Xxxxxxxx
|
|
Tel:
(000) 000-0000/ Fax:
|
|
Email:
xxxxxxxxx@xxxxxxxxxx.xxx
|
|
BRIDGEPOINTE
MASTER FUND LTD.
|
|
0000
Xxxxxxxxx Xxxxxxx, Xxxxx 000
|
|
Xxxxxxxxxx,
XX 00000
|
|
Contact
for docs: Xxxx Xxxxxxx
|
|
Tel:
000-000-0000 xxx 000 Fax: 000.000.0000
|
|
Email:
xxxxxxxxxxx@xxxxxxxxxxxxxxxxxxxxxx.xxx
|
|
XXXXXX
CAPITAL INVESTMENTS LLC
|
|
000
X. Xxxxxxxx Xxx
|
|
Xxxxxxxxx
Xxxxxx, XX 00000
|
|
Contacts
for docs: Xxxxxx Xxxx
|
|
Tel:
000-000-0000/ Fax: 000-000-0000
|
|
Email:
xxxxx@xxxxxxxxxxxxxxxxxxxxx.xxx
|
2
