AGREEMENT FOR THE PURCHASE AND SALE OF SECURITIES
Exhibit
10.1
This
Agreement for the Purchase and Sale of Securities (hereinafter called the
“Agreement”)
is
made and entered into as of the 2nd
day of
July 2007 (the “Effective
Date”)
by and
among CASTion Corporation, a
Massachusetts corporation (“CASTion”),
the
holders of shares of the capital stock of CASTion identified on Exhibit
A
attached
hereto and made a part hereof (each a “Seller”),
and
ThermoEnergy Corporation,
a
Delaware corporation (the “Buyer”).
CASTion, the Sellers and the Buyer are hereinafter collectively called the
“Parties.”
WHEREAS,
the
authorized capital stock of CASTion consists of 2,000,000 shares of common
stock, no par value (the “Common
Stock”),
of
which 4,724 shares are issued and outstanding, and 1,340,000 shares of preferred
stock, no par value (the “Preferred
Stock”),
of
which (i) no shares designated as Series A (the “Series
A Stock”)
are
issued and outstanding, (ii) no shares designated as Series A-1 (the
“Series
A-1 Stock”)
are
issued and outstanding, (iii) no shares designated as Series B-1 (the
“Series
B-1 Stock”)
are
issued and outstanding, (iv) no shares designated as Series B-2 (the
“Series
B-2 Stock”)
are
issued and outstanding, (v) 124,968 shares designated as Series C-1 (the
“Series
C-1 Stock”)
are
issued and outstanding, (vi) 189,278.1 shares designated as Series C-2 (the
“Series
C-2 Stock”)
are
issued and outstanding, (vii) 125,000 shares designated as Series C-3 (the
“Series
C-3 Stock”)
are
issued and outstanding and (viii) 128,756.09 shares designated as Series C-4
(the “Series
C-4 Stock”)
are
issued and outstanding;
and
WHEREAS,
the shares of Common Stock and Preferred Stock owned beneficially and of record
by the Sellers (the “Shares”)
are as
set forth on Exhibit
A
hereto,
and such Shares constitute, in the aggregate, (i) 0.00% of the total issued
and
outstanding shares of the Common Stock, (ii) 71.81% of the total issued and
outstanding shares of the Series C-1 Stock, (iii) 98.97% of the total issued
and
outstanding shares of the Series C-2 Stock, (iv) 100.00% of the total issued
and
outstanding shares of the Series C-3 Stock, (iv) 90.72% of the total issued
and
outstanding shares of the Series C-4 Stock; and (v) 90.31% of the total issued
and outstanding shares of Common Stock on an as-converted basis;
and
WHEREAS,
no shares of Series A Stock, Series A-1 Stock, Series B-1 Stock or Series B-2
Stock are issued and outstanding; and
WHEREAS,
the Sellers are the holders of certain promissory notes or other obligations
of
CASTion (collectively, the “Notes”),
as
set forth on Exhibit
A
hereto;
and
WHEREAS,
each of the Sellers has agreed to sell, assign, transfer, and convey all of
the
Shares and Notes owned by it to the Buyer and the Buyer has agreed to purchase
from the Sellers all of such Shares and Notes on the terms hereinafter set
forth;
NOW
THEREFORE, in consideration of the mutual promises of the Parties hereinafter
set forth and in reliance on the representations, warranties, covenants, and
conditions contained in this Agreement; and for other good and valuable
consideration, the Parties hereby agree as follows:
Recitals
CASTion
operates a waste water technology business in Worcester, Massachusetts
(collectively, the "Business").
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CASTion
is the lessee under the leases which are more particularly described on
Exhibit
B,
attached hereto and made a part hereof (the "Leases").
CASTion
is a party to those other contracts and more particularly described on
Exhibit
C,
attached hereto and made a part hereof (the "Contracts").
CASTion
is the owner of certain intellectual property including patent-pending R-CAST™
brand technology, more particularly described on Exhibit
D,
attached hereto and made a part here of, together with certain proprietary
engineering know-how and trade secrets (the "CASTion
Technology").
CASTion
is the owner of certain other assets used in the operation of, or otherwise
related to the Business (the “Other
Assets”
and,
together with the Leases, the Contracts and the CASTion Technology, the
“Assets”),
including, without limitation, those accounts receivable more particularly
described on Exhibit
E,
attached hereto and made a part here of (the "Accounts
Receivable")
and
those bank accounts more particularly described on Exhibit
F,
attached hereto and made a part hereof.
Agreement
1. Purchase
of Shares and Notes.
1.1 Purchase
of Shares.
Subject
to the terms and conditions set forth herein, at the Closing (as defined below),
each of the Sellers agrees to sell, assign, transfer, and convey to the Buyer
all of the Shares and Notes owned by such Seller and the Buyer agrees to
purchase from each Seller all of the Shares and Notes owned by such
Seller.
1.2. Purchase
Price.
The
total
purchase price payable by the Buyer to the Sellers for the Shares (the “Purchase
Price”) shall consist, in the aggregate, of:
|
a.
|
Cash,
in the aggregate amount of $1,850,000.00;
and
|
|
b.
|
4,394,338
shares of the common stock, par value $0.001 per share, of the Buyer
(“ThermoEnergy
Common Stock”) (the
“Thermo
Shares”);
and
|
|
c.
|
Convertible
Promissory Notes of the Buyer, in substantially the form of Exhibit
G
attached hereto (the “Convertible
Notes”)
in the aggregate principal amount of $3,353,126.62, convertible into
shares of ThermoEnergy Common Stock (the “Conversion
Shares”)
as set forth in the Convertible Notes; and
|
| d. |
Warrants,
in substantially the form of Exhibit
H
attached hereto (the “Warrants”)
for the purchase an aggregate of 4,232,425 shares
of ThermoEnergy Common Stock (the “Warrant
Shares”).
|
The
Purchase Price shall be allocated to and among the Sellers as set forth on
Exhibit
A.
2. Closing.
The
closing of the purchase and sale of the Shares hereunder (the “Closing”)
shall
be held at the offices of the Buyer in Little Rock, Arkansas or at such other
place as CASTion and the Buyer may designate at 10:00 a.m. Central Time on
the
Effective Date or on such other date and at such other time as CASTion and
the
Buyer may designate; provided, however, that if all of the Conditions have
not
been satisfied or waived within twenty (20) days after the Effective Date,
then
either (i) CASTion, (ii) the Buyer or (iii) Sellers who, in the aggregate,
hold
a majority of the Shares may, upon notice to the other Parties, terminate this
Agreement with no further obligation to any Party, so long as the failure to
satisfy the Conditions is not the result of any action or inaction on the part
of the terminating Party.
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4.
Sellers’
Representations and Warranties.
Each
Seller, severally and not jointly, hereby represents and warrants to the Buyer
as follows:
4.1. Organization
and Authority.
If such
Seller is an entity, it is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization and has 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.
4.2. Authorization
and Enforceability.
The
execution and delivery of this Agreement by such Seller, and the performance
by
such Seller of the transactions contemplated by this Agreement, have been duly
authorized by all necessary corporate or partnership or other applicable like
action, on the part of such Seller. This Agreement has been duly executed by
such Seller and constitutes the valid and legally binding obligation of such
Seller, enforceable against such Seller in accordance with its terms.
4.3. Title.
Such
Seller has good, valid and merchantable title to the Shares and Notes identified
as owned by such Seller on Exhibit
A,
free
and clear of all liens, encumbrances, or restrictive covenants or other
restrictions, and upon the sale of such Shares and Notes to the Buyer in
accordance with the terms of this Agreement, the Buyer will become the record
and beneficial owner of such Shares and Notes free and clear of all liens,
encumbrances, or restrictive covenants or other restrictions.
4.4. Other
Agreements.
Neither
the execution and delivery of this Agreement nor the performance of this
Agreement by such Seller will (a) result in a violation or breach of any term
or
provision of or constitute a default (or an event which, with notice or lapse
of
time or both, would result in a default) under, or result in the termination
or
in a right of termination, or cancellation of, or accelerate the performance
required by, or result in being declared void or voidable, any of the terms,
conditions or provisions of such Seller’s certificate of incorporation,
operating agreement, partnership agreement or other governing document (if
such
Seller is an entity) or any instrument, commitment or obligation to which such
Seller is a party, or by which such Seller or any of such Seller’s assets
(including, without limitation the Shares and Notes identified as owned by
such
Seller on Exhibit
A)
may be
bound, or (b) result in the creation of any lien, security interest, charge
or
encumbrance on any of the Shares or Notes identified as owned by such Seller
on
Exhibit
A,
or (c)
violate any law, rule, or governmental regulation or order, writ, injunction,
decree, judgment or ruling of any court or governmental authority applicable
to
such Seller or any of the Shares or Notes identified as owned by such Seller
on
Exhibit
A.
None of
the Shares owned by such Seller is subject to any voting agreement, right of
first refusal, “drag along” or “carry along” agreement or any similar agreement
or covenant.
4.5. Access
to Information Regarding CASTion.
Such
Seller acknowledges
that it has been afforded (i) access to information about CASTion and its
financial condition, results of operations, business, properties, management
and
prospects sufficient to enable it to evaluate its investment in the Shares
and
Notes and (ii) the opportunity to obtain such additional information that
CASTion possesses or can acquire without unreasonable effort or expense that
such Seller deems necessary to make an informed investment decision with respect
to its sale of the Shares and Notes pursuant to this Agreement.
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4.6 Independent
Investment Decision.
Such
Seller has independently evaluated the merits of its decision to sell Shares
and
Notes pursuant to this Agreement and to acquire Thermo Shares, Convertible
Notes
and Warrants pursuant to this Agreement and such Seller confirms that it has
not
relied on the advice of CASTion, the Buyer, any other Seller or any of their
respective officers, directors, general partners or managers in making such
decision. Such Seller acknowledges and agrees that the Buyer has not made any
representations or warranties with respect to the transactions contemplated
hereby other than those specifically set forth in Section 6 hereof.
5. CASTion’s
Representations and Warranties.
CASTion
hereby represents and warrants to the Buyer, except
as
set forth on the disclosure statement separately provided to the
Buyer,
as
follows:
5.1 Organization
and Qualification. CASTion
is a corporation duly organized, validly existing and in good standing under
the
laws of the Commonwealth of Massachusetts, with the requisite power and
authority to own and use its properties and assets and to carry on the Business
as
now
being conducted.
CASTion
is not in violation of any of the provisions of its Articles of Organization
or
bylaws. CASTion is duly qualified to conduct business and is in good standing
as
a foreign corporation in each jurisdiction listed on Exhibit
I
attached
hereto and made a part hereof, which are the only jurisdictions in which the
failure to be so qualified and in good standing could have or reasonably be
expected to result in a material adverse effect on CASTion or the Business
as a
whole (a “Material
Adverse Effect”),
and
no proceedings have been instituted in any such jurisdiction revoking, limiting
or curtailing, or seeking to revoke, such power and authority or
qualification.
5.2. Authorization
and Enforceability.
The
execution and delivery by CASTion of this Agreement, and performance by CASTion
of the transactions contemplated by this Agreement, have been duly authorized
by
all necessary corporate action on the part of such CASTion, its Board of
Directors and its shareholders. This Agreement has been duly executed by CASTion
and constitutes the valid and legally binding obligation of CASTion, enforceable
against CASTion in accordance with its terms.
5.3. Default
Under Other Agreements.
Neither
the execution and delivery of this Agreement nor the performance of this
Agreement by CASTion will (a) result in a violation or breach of any term or
provision of or constitute a default (or an event which, with notice or lapse
of
time or both, would result in a default) under, or result in the termination
or
in a right of termination, or cancellation of, or accelerate the performance
required by, or result in being declared void or voidable, any of the terms,
conditions or provisions of (i) CASTion’s Articles of Organization or bylaws or
(ii) except as would not be reasonably expected to have a Material Adverse
Effect, any instrument, commitment or obligation to which CASTion is a party,
or
by which CASTion or, the Business may be bound, or (b) result in the creation
of
any lien, security interest, charge or encumbrance on any of CASTion’s assets or
(c) violate any law, rule, or governmental regulation or order, writ,
injunction, decree, judgment or ruling of any court or governmental authority
applicable to CASTion, the Business or any of CASTion’s assets.
5.4. Subsidiaries.
CASTion
has no direct or indirect subsidiaries.
5.5 The
Shares.
All of
the issued and outstanding shares of capital stock of CASTion, including without
limitation the Shares, are validly issued and are fully paid, non-assessable
and
free of preemptive and similar rights, each having the rights of its particular
class or series as set forth in CASTion’s Articles of Organization.
5.6 The
Notes.
Each of
the Notes is the legal, valid and binding obligation of CASTion, enforceable
against CASTion in accordance with its terms. CASTion has asserted no defense
against the rights of the holders of the Notes to collect the amounts due,
or to
become due, thereunder, and no basis for any such assertion exists.
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5.7 Filings,
Consents and Approvals.
CASTion
is not required to obtain any consent, waiver, authorization or order of, give
any notice to, or make any filing or registration with, any court or other
federal, state, local or other governmental authority (a “Governmental
Authority”)
or
other person or entity in connection with the execution, delivery and
performance by CASTion of this Agreement and the consummation of the
transactions contemplated hereby.
5.8 Capitalization.
The
authorized capital stock of CASTion consists of 2,000,000 shares of common
stock, no par value (the “Common
Stock”),
of
which 4,724 shares are issued and outstanding, and 1,340,000 shares of preferred
stock, no par value (the “Preferred
Stock”),
of
which (i) no shares designated as Series A (the “Series
A Stock”)
are
issued and outstanding, (ii) no shares designated as Series A-1 (the
“Series
A-1 Stock”)
are
issued and outstanding, (iii) no shares designated as Series B-1 (the
“Series
B-1 Stock”)
are
issued and outstanding, (iv) no shares designated as Series B-2 (the
“Series
B-2 Stock”)
are
issued and outstanding, (v) 124,968 shares designated as Series C-1 (the
“Series
C-1 Stock”)
are
issued and outstanding, (vi) 189,278.1 shares designated as Series C-2 (the
“Series
C-2 Stock”)
are
issued and outstanding, (vii) 125,000 shares designated as Series C-3 (the
“Series
C-3 Stock”)
are
issued and outstanding and (viii) 128,756.09 shares designated as Series C-4
(the “Series
C-4 Stock”)
are
issued and outstanding. No person has any right of first refusal, preemptive
right, right of participation, or any similar right to participate in the
transactions contemplated by this Agreement. Except as set forth on
Exhibit
I
attached
hereto and made a part hereof, there are no outstanding options, warrants,
rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities, rights or obligations convertible into or
exchangeable for, or giving any person any right to subscribe for or acquire,
any shares of Common Stock or Preferred Stock, or contracts, commitments,
understandings or arrangements by which CASTion or any Subsidiary is or may
become bound to issue additional shares of Common Stock, Preferred Stock or
any
other equity securities (collectively, the “Options”).
On or
prior to the time of Closing, CASTion shall have taken all action necessary
to
terminate all then-outstanding Options other than Options granted to employees
under CASTion’s stock option plan.
5.9 Financial
Statements and Subsequent Events.
CASTion
has furnished to the Buyer the financial statements of CASTion as of December
31, 2006. Such financial statements have been prepared in accordance with GAAP
applied on a consistent basis during the periods involved, except as may be
otherwise specified in such financial statements or the notes thereto, and
fairly present in all material respects the financial position of CASTion and
as
of and for the dates thereof and the results of operations and cash flows for
the periods then ended, subject, in the case of unaudited statements, to normal,
immaterial, year-end audit adjustments and to the absence of footnotes. Since
December 31, 2006, (i) CASTion has not incurred any liabilities (contingent
or
otherwise) other than (A) trade payables, accrued expenses and other liabilities
incurred in the ordinary course of business, (B) indebtedness represented by
the
Notes, (C) indebtedness to the Buyer, and (D) liabilities not required to be
reflected in CASTion’s financial statements pursuant to GAAP, (iii) CASTion has
not altered its method of accounting or the identity of its auditors, and (iv)
CASTion has not declared or made any dividend or distribution of cash or other
property to its stockholders or purchased, redeemed or made any agreements
to
purchase or redeem any shares of its capital stock,.
5.10 Litigation. There
is
no pending litigation, investigation or other proceeding against CASTion which
(i) adversely affects or challenges the legality, validity or enforceability
of
this Agreement or (ii) could, if there were an unfavorable decision,
individually or in the aggregate, have or reasonably be expected to result
in a
Material Adverse Effect; and no such litigation, investigation or other
proceeding has been threatened in writing. Neither CASTion, nor any officer
thereof (in his or her capacity as such), is the subject of any pending
litigation, investigation or other proceeding involving a claim of violation
of
or liability under federal or state law; and no such litigation, investigation
or other proceedings has been threatened in writing.
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5.11 Compliance.
CASTion
(i) is in default under or in violation of (and no event has occurred that
has
not been waived that, with notice or lapse of time or both, would result in
a
default by CASTion under), nor has CASTion received notice of a claim that
it is
in default under or that it is in violation of, any indenture, loan or credit
agreement or any other agreement or instrument to which it is a party or by
which it or any of its properties is bound (whether or not such default or
violation has been waived), (ii) is in violation of any order of any court,
arbitrator or governmental body, or (iii) is or has been in violation of any
statute, rule or regulation of any governmental authority, including without
limitation all foreign, federal, state and local laws relating to taxes,
environmental protection, occupational health and safety, product quality and
safety and employment and labor matters, except in each case as could not,
individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect.
5.12 Regulatory
Permits.
CASTion
possesses all certificates, authorizations and permits issued by the appropriate
federal, state, local or foreign regulatory authorities necessary to conduct
the
Business, except where the failure to possess such permits could not,
individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect, and CASTion has not received any notice of proceedings relating
to the revocation or modification of any such permits.
5.13 Assets.
CASTion
owns no real property and has good and marketable title in all personal property
owned by it that is material to the Businesses, including without limitation
the
Other Assets, in each case free and clear of all liens, except for liens as
do
not materially affect the value of such property and do not materially interfere
with the use made and proposed to be made of such property by CASTion. The
Other
Assets are in good working order, reasonable wear and tear excepted. The Leases
are valid, subsisting and enforceable leases with which CASTion and, to
CASTion’s knowledge, all of the other parties thereto are in compliance, and
such Leases will remain in full force and effect following consummation of
the
transactions contemplated by this Agreement. The Contracts are valid, subsisting
and enforceable agreements with which CASTion and, to CASTion’s knowledge, all
of the other parties thereto are in compliance, and such Contracts will remain
in full force and effect following consummation of the transactions contemplated
by this Agreement. The Accounts Receivable were generated by valid sales of
goods or services, have not been disputed and are believed by CASTion to be
fully collectible (subject to reasonable reserves for bad accounts).
5.14 Intellectual
Property.
CASTion
owns, or has rights to use, the CASTion Technology and all other patents, patent
applications, trademarks, trademark applications, service marks, trade names,
copyrights, licenses and other similar rights that are necessary or material
for
use in connection with the Business as it is currently conducted and which
the
failure to so have could, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect. There are no claims filed
or,
to CASTion’s knowledge, made by others against CASTion to the effect that the
CASTion Technology or any other intellectual property used by CASTion violates
or infringes upon the rights of such claimant, and CASTion knows of no basis
for
any such claim. All of CASTion’s rights in the CASTion Technology are
enforceable and, to CASTion’s knowledge, there is no existing infringement by
another person or entity of any of such rights. To the knowledge of CASTion,
no
present or former officer or employee of, or consultant to, CASTion who
participated in the development of any of the CASTion Technology was, at the
time of such development, subject to any agreement with any former employer
or
other person or entity that in any way restricted his or her right to be
employed by, or to consult with, CASTion or to participate in the development
of
the CASTion Technology.
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5.15 Transactions
with Affiliates.
None of
the Sellers and none of the officers or directors of CASTion and, to the
knowledge of CASTion, none of the employees of CASTion is a party to any
transaction with CASTion (other than for services as employees, officers and
directors), including any contract, agreement or other arrangement providing
for
the furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any Seller,
officer, director or such employee or, to the knowledge of CASTion, any entity
in which any Seller, officer, director, or any such employee has a substantial
interest or is an officer, director, trustee or partner.
5.16 Application
of Anti-Takeover Provisions.
CASTion
has taken all necessary action, if any, in order to render inapplicable any
control share acquisition, business combination, poison pill (including any
distribution under a rights agreement) or other similar anti-takeover provision
under CASTion’s Articles of Organization or the laws of the Commonwealth of
Massachusetts that is or could become applicable to the Buyer as a result of
the
Buyer, the Sellers and CASTion fulfilling their obligations or exercising their
rights under this Agreement, including without limitation the Sellers’ sale of
the Shares and the Notes and the Buyer’s ownership of the Shares and the
Notes.
5.17 Environmental
Matters.
To the
knowledge of CASTion, (i) CASTion has complied
with all
applicable Environmental Laws; (ii) the properties currently owned or operated
by CASTion (including soils, groundwater, surface water, buildings or other
structures) are not contaminated by CASTion with any Hazardous Substances (and
any representation to any contamination of any of such properties by any third
party is expressly excluded); (iii) the properties formerly owned or operated
by
CASTion were not contaminated by CASTion with Hazardous Substances during the
period of ownership or operation by CASTion (and any representation to any
contamination of any of such properties by any third party is expressly
excluded); (iv) CASTion is not subject to liability for any Hazardous Substance
disposal or contamination on any third party property; (v) CASTion has not
been
associated with any release or threat of release of any Hazardous Substance;
(vi) CASTion has not received any notice, demand, letter, claim or request
for
information alleging that CASTion may be in violation of or liable under any
Environmental Law; and (vii) CASTion is not subject to any orders, decrees,
injunctions or other arrangements with any Governmental Authority or subject
to
any indemnity or other agreement with any third party relating to liability
under any Environmental Law or relating to Hazardous Substances. As used in
this
Agreement, the term “Environmental Law” means any federal, state, local or
foreign law, regulation, order, decree, permit, authorization, opinion, common
law or agency requirement relating to: (A) the protection, investigation or
restoration of the environment, health and safety, or natural resources; (B)
the
handling, use, presence, disposal, release or threatened release of any
Hazardous Substance or (C) noise, odor, wetlands, pollution, contamination
or
any injury or threat of injury to persons or property and the term “Hazardous
Substance” means any substance that is: (i) listed, classified or regulated
pursuant to any Environmental Law; (ii) any petroleum product or by-product,
asbestos-containing material, lead-containing paint or plumbing, polychlorinated
biphenyls, radioactive materials or radon; or (iii) any other substance which
is
the subject of regulatory action by any Governmental Authority pursuant to
any
Environmental Law.
5.18 Taxes.
CASTion
has,
or shall
have as of Closing, filed or validly extended all federal, state, local and
foreign tax returns required by law, including, but not limited to all income,
use, unemployment, federal withholding, payroll, ad valorem and property (real
and personal) and all unemployment compensation taxes and assessments, and
paid
all taxes, assessments and penalties due and payable. There are no present
disputes involving CASTion as to any taxes
and
CASTion has no knowledge of a tax deficiency which has been or might be asserted
or threatened against CASTion which, if adversely determined, would reasonably
be expected to have a Material Adverse Effect.
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5.19 Employees.
CASTion
has no written or oral contracts, understandings or commitments involving the
employment by or compensation of any person by CASTion which are not terminable
at will. Seller has complete and full power to discharge and dismiss any or
all
of its current employees, without obligation to any person or
entity.
6. Buyer’s
Representations and Warranties.
The
Buyer hereby represents and warrants to the Sellers and to CASTion as
follows:
6.1 Organization
and Qualification. The
Buyer
is a corporation duly organized, validly existing and in good standing under
the
laws of the State of Delaware, with the requisite power and authority to own
and
use its properties and assets and to carry on its business as currently
conducted. The Buyer is not in violation of any of the provisions of its
Certificate of Incorporation or bylaws. The Buyer is duly qualified to conduct
business and is in good standing as a foreign corporation in each jurisdiction
in which the failure to be so qualified and in good standing could have or
reasonably be expected to result in a material adverse effect on the Buyer
or
its business, and no proceedings have been instituted in any such jurisdiction
revoking, limiting or curtailing, or seeking to revoke, such power and authority
or qualification.
6.2 Authorization
and Enforceability.
The
execution and delivery by the Buyer of this Agreement, and performance by the
Buyer of the transactions contemplated by this Agreement, have been duly
authorized by all necessary corporate action on the part of such the Buyer,
its
Board of Directors and its shareholders. This Agreement has been duly executed
by the Buyer and constitutes the valid and legally binding obligation of the
Buyer, enforceable against the Buyer in accordance with its terms.
The
Convertible Notes and the Warrants have been duly authorized and, when issued
as
contemplated by this Agreement, will be the legal, valid and binding obligations
of the Buyer, enforceable against the Buyer in accordance with their respective
terms.
6.3 Other
Agreements.
Neither
the execution and delivery of this Agreement nor the performance of this
Agreement by the Buyer will (a) result in a violation or breach of any term
or
provision of or constitute a default (or an event which, with notice or lapse
of
time or both, would result in a default) under, or result in the termination
or
in a right of termination, or cancellation of, or accelerate the performance
required by, or result in being declared void or voidable, any of the terms,
conditions or provisions of the Buyer’s Articles of Incorporation or bylaws or
any instrument, commitment or obligation to which the Buyer is a party, or
by
which the Buyer or any of the Buyer’s assets may be bound, or (b) result in the
creation of any lien, security interest, charge or encumbrance on any of the
Buyer’s assets or (c) violate any law, rule, or governmental regulation or
order, writ, injunction, decree, judgment or ruling of any court or governmental
authority applicable to the Buyer or any of the Buyer’s assets.
6.4 ThermoEnergy
Common Stock.
The
Thermo Shares are duly authorized and, when issued at Closing in accordance
with
the terms of this Agreement, will be validly issued shares of ThermoEnergy
Common Stock, fully paid, non-assessable and free of preemptive and similar
rights.
A
sufficient number of shares of
ThermoEnergy Common Stock to permit exercise in full of the Warrants and full
conversion of the Convertible Notes have been reserved and set aside and the
Warrant Shares and the Conversion Shares will, when issued and paid for upon
exercise of the Warrants or conversion of the Convertible Notes in accordance
with their respective terms, be duly authorized and validly issued shares of
ThermoEnergy Common Stock, fully paid, non-assessable and free of preemptive
and
similar rights.
6.5 SEC
Documents.
The
Buyer has filed all of the reports, proxy statements and other documents
(collectively, SEC
Documents”)
that
the Buyer has been required to file with the Securities and Exchange Commission
(the “Commission”).
As of
their respective dates, the SEC Documents complied in all material respects
with
the requirements of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) and the rules and regulations of the Commission thereunder, and
none of the SEC Documents, when filed, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, at the time and in the light of
the
circumstances under which they were made, not misleading. The financial
statements of the Buyer included in the SEC Documents complied as to form in
all
material respects with applicable accounting requirements and with published
rules and regulations of the Commission with respect thereto, have been prepared
in accordance with generally accepted accounting principles applied on a
consistent basis during the periods involved (except as may be indicated therein
or in the notes thereto or, in the case of the unaudited statements, as
permitted by Form 10-Q (or Form 10-QSB, as the case may be) of the Commission)
and fairly present (subject, in the case of the unaudited statements, to normal
recurring audit adjustments) the consolidated financial position of the Buyer
and its consolidated subsidiaries as at the dates thereof and the consolidated
results of their operations and cash flows for the periods then ended.
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6.6 Independent
Investment Decision.
The
Buyer acknowledges and agrees that neither the Sellers nor CASTion has made
any
representations or warranties with respect to CASTion, the Assets, the Business
or the transactions contemplated hereby other than those specifically set forth
in Sections 4, 5 and 8 hereof.
7. Investment
Representations of the Buyer
7.1.
Investment
Intent.
The
Buyer is acquiring the Shares and the Notes for its own account for purposes
of
investment and without expectation, desire, or need for resale and not with
the
view toward distribution or resale of the Shares or the Notes. The Buyer
understands that no public market now exists for the Shares or the Notes and
that a public market may never exist for the Shares or the Notes.
7.2 Access
to Information.
The
Buyer acknowledges
that it has been afforded (i) access to information about CASTion and its
financial condition, results of operations, business, properties, management
and
prospects sufficient to enable it to evaluate its investment in the Shares
and
the Notes and (ii) the opportunity to obtain such additional information that
CASTion or the Sellers possess or can acquire without unreasonable effort or
expense that the Buyer deems necessary to make an informed investment decision
with respect to its purchase of the Shares and the Notes.
7.3.
Securities
Act.
The
Buyer acknowledges that it understands that the Shares and the Notes to be
purchased have not been registered under the Securities Act of 1933
(“Securities
Act”)
or
under any state securities law and understands that the Shares and the Notes
cannot be resold in a transaction to which the Securities Act and state
securities laws apply unless (i) subsequently registered under the Securities
Act and applicable state securities laws or (ii) exemptions from such
registration requirements are available.
8. Investment
Representations of the Sellers.
Each
Seller, severally and not jointly, hereby represents and warrants to the Buyer
as follows:
8.1.
Investment
Intent.
Such
Seller is acquiring the Thermo Shares being issued to it pursuant to Section
1.2(b) and will, upon conversion of the Convertible Note being issued to it
pursuant to Section 1.2(c) or exercise of the Warrant being issued to it
pursuant to Section 1.2(d), be acquiring the Conversion Shares or the Warrant
Shares issued upon such conversion or exercise, for its own account for purposes
of investment and without expectation, desire, or need for resale and not with
the view toward distribution or resale of such shares of ThermoEnergy Common
Stock.
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26
8.2 Access
to Information.
Such
Seller acknowledges
that it has been afforded (i) access to information about the Buyer and its
financial condition, results of operations, business, properties, management
and
prospects sufficient to enable it to evaluate its investment in ThermoEnergy
Common Stock and (ii) the opportunity to obtain such additional information
that
the Buyer possesses or can acquire without unreasonable effort or expense that
such Seller deems necessary to make an informed investment decision with respect
to its investment in shares of ThermoEnergy Common Stock.
8.3.
Securities
Act.
Such
Seller acknowledges that it understands that the Thermo Shares to be issued
to
it pursuant to Section 1.2(b), the Convertible Note to be issued to it pursuant
to Section 1.2(c) and the Warrant to be issued to it pursuant to Section 1.2(d)
have not been, and that, except as set forth in Section 12 of this Agreement,
the Thermo Shares, the Conversion Shares issuable upon conversion of such
Convertible Note and the Warrant Shares issuable upon exercise of such Warrant
will not be, registered under the Securities Act or under any state securities
law and understands that such ThermoEnergy Shares cannot be resold in a
transaction to which the Securities Act and state securities laws apply unless
(i) subsequently registered under the Securities Act and applicable state
securities laws or (ii) exemptions from such registrations are available.
8.4 Accredited
Investor Status.
Such
Seller is an “accredited investor” (as such term is defined in Rule 501 of
Regulation D promulgated by the Commission pursuant to the Securities
Act.
9. Covenants
Pending Closing.
CASTion
agrees that between the date hereof and the Closing:
9.1. Conduct
of Business.
CASTion
shall maintain its books and records, and carry on the Business in the usual,
regular and ordinary course and in substantially the same manner as heretofore
conducted and shall use its commercially reasonable efforts to preserve intact
its present business organization, keep available the services of its present
employees and preserve its goodwill and its relationships with customers,
suppliers and others having business dealings with it.
9.2. Maintenance
of Assets.
CASTion
shall maintain all of the Assets in good operating condition, ordinary wear
and
tear excepted, and will not sell,
transfer, pledge or voluntarily subject to any lien, charge or other encumbrance
any of the Assets except in the ordinary course of business.
9.3.
Employee
Compensation.
CASTion
shall not pay any bonuses, increase any employee’s salary or other compensation,
or hire any employees except in the ordinary course of business consistent
with
past practices, and shall not enter into any agreements or arrangements to
pay
any such bonuses, to make any such increase in any employee’s salary or other
compensation, or to hire any such employee.
9.4. Insurance.
CASTion
will maintain and keep in full force and effect all insurance existing on the
date hereof relating to the Business or the Assets.
9.5. Corporate
Existence.
CASTion
will continue to maintain its existence as a Massachusetts corporation in good
standing.
9.6 Access.
CASTion
shall allow the Buyer and its representatives and advisers access, during normal
business hours, to visit and inspect all of CASTion’s facilities and shall
permit the Buyer and its representatives and advisers to have reasonable access
to all of the Assets (including the right to review and make extracts of
CASTion’s books and records).
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9.7. Other
Actions.
CASTion
will not take any action which would or could reasonably be expected to result
in any of the representations and warranties of CASTion set forth in this
Agreement becoming untrue in any material respect at any time on or prior to
the
Closing.
9.8.
Advice
of Changes.
CASTion
and each Seller shall promptly advise the Buyer in writing of any change or
event known to CASTion or to such Seller would or could reasonably be expected
to have a Material Adverse Effect.
10. Buyer’s
Conditions to Closing.
The
obligation of the Buyer to purchase the Shares and the Notes under this
Agreement is subject to the fulfillment prior to or at the Closing of each
of
the following conditions (each of which may be waived by the Buyer in its sole
discretion):
10.1. Representations
and Warranties.
The
representations and warranties of the Sellers and CASTion contained herein
or in
any exhibit, schedule, certificate or other document delivered pursuant to
the
provisions hereof, shall be true in all material respects as of the Effective
Date and as of the Closing.
10.2. Performance
of Agreements.
Each of
the Sellers and CASTion shall have performed and complied in all material
respects with all of the agreements and conditions required by this Agreement
to
be performed or complied with by them at or prior to the Closing. It is
expressly acknowledged and agreed that the Buyer shall have no obligation to
proceed to Closing and to purchase the Shares being sold hereunder by any Seller
unless the Sellers are, at Closing, ready, willing and able to sell to the
Buyer
the lesser of (x) all of the Shares identified as owned by such Sellers on
Exhibit
A
and (y)
Shares having a combined voting power of not less than 90% of CASTion’s capital
stock on an as converted basis.
10.3. Material
Adverse Changes.
There
shall have occurred no event which could be reasonably anticipated to have
a
Material Adverse Effect.
10.4 Inspections.
From
the Effective Date to the Closing, CASTion shall have allowed the Buyer and
its
representatives and advisers access, during normal business hours, to visit
and
inspect all of CASTion’s facilities and shall have permitted the Buyer and its
representatives and advisers to have reasonable access to all of the Assets
(including the right to review and make extracts of CASTion’s books and
records).
10.5 Corporate
Actions.
CASTion
shall have delivered to the Buyer (i) copies of all resolutions adopted by
the
Board of Directors and/or the stockholders of CASTion approving this Agreement
and the transactions contemplated hereby, certified by the Secretary of CASTion
as being duly adopted and in full force and effect as of the Closing Date,
(ii)
the resignations of all of the officers and directors of CASTion, effective
as
of the Closing, (iii) copies of the Articles of Organization of CASTion and
all
amendments thereto, certified by the Secretary of State of the Commonwealth
of
Massachusetts, and (iv) a copy of the by-laws of CASTion, certified by the
Secretary of CASTion as being in full force and effect as of the Closing
Date.
10.6 Management
Bonus Pool.
The
Buyer shall have authorized and set aside, for issuance to the officers and
employees of CASTion at the Closing (in distributive amounts to be determined
by
the board of directors of CASTion (as constituted immediately prior to the
Closing), the following:
|
a.
|
$150,000.00
in cash;
|
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|
b.
|
175,000
shares of ThermoEnergy Common Stock (the “Management
Shares”);
and
|
|
c.
|
Warrants,
in substantially the form of Exhibit
H,
for the purchase an aggregate of 300,000 Warrant Shares (the “Management
Warrants”).
|
The
Buyer
shall also have authorized and set aside, for issuance to Xxxxxx &
Associates, Inc. (“Xxxxxx”), an affiliate of the Company, at the Closing, (i)
18,750 ThermoEnergy Common Stock (the “Xxxxxx
Shares”) and
(ii)
a Warrant to purchase 37,500 Warrant Shares.
In
addition, the Buyer shall have executed and delivered to CASTion an agreement,
in substantially the form of Exhibit
I
attached
hereto (the “Bonus
Agreement”),
pursuant to which the Buyer would pay an aggregate of $300,000.00 to the
officers and employees of CASTion (in distributive amounts to be determined
by
the compensation committee of the board of directors of CASTion (as constituted
immediately prior to the Closing)) upon the happening of certain events
specified in the Bonus Agreement.
For
all
purposes herein (including without limitation Section 12), (i) the Management
Warrants referred to in this Section 10.6 shall be deemed to be Warrants,
notwithstanding the fact that such Management Warrants may be in a form, and
may
contain rights and restrictions, different from those of the Warrants and (ii)
the Xxxxxx Shares and the Management Shares shall be deemed to be ThermoShares.
For purposes of Section 12, Xxxxxx, the initial holders of the Management
Warrants, and the initial holders of the Management Shares shall be deemed
to be
“Sellers.”
10A. Sellers’
Conditions to Closing.
The
obligations of the Sellers to sell the Shares and the Notes under this Agreement
are subject to the fulfillment prior to or at the Closing of each of the
following conditions (each of which may be waived by the Sellers in their sole
discretion):
10A.1. Representations
and Warranties.
The
representations and warranties of the Buyer contained herein or in any exhibit,
schedule, certificate or other document delivered pursuant to the provisions
hereof, shall be true in all material respects as of the Effective Date and
as
of the Closing.
10A.2. Performance
of Agreements.
The
Buyer shall have performed and complied in all material respects with all of
the
agreements and conditions required by this Agreement to be performed or complied
with by it prior to the Closing.
10A.3 Corporate
Actions.
The
Buyer shall have delivered to CASTion and the Sellers copies of all resolutions
adopted by the Board of Directors of the Buyer approving this Agreement and
the
transactions contemplated hereby, certified by the Secretary of the Buyer as
being duly adopted and in full force and effect as of the Closing
Date.
10A.4 Management
Bonus Pool.
The
Buyer shall have authorized and set aside the management bonus pool referred
to
in Section 10.6 above.
11. Closing.
11.1 Stock
Certificates and Notes.
At
Closing, each Seller shall deliver to the Buyer (i) the certificate or
certificates representing the Shares identified as owned by such Seller on
Exhibit
A,
together with duly executed stock powers sufficient to effect the transfer
of
such Shares to the Buyer or its nominee and (ii) the Notes identified as owned
by such Seller on Exhibit
A,
duly
endorsed to the order of the Buyer. If
any
Note or any certificate representing the Shares has been lost, stolen or
destroyed, the affected Seller may deliver to the Buyer, in lieu of such Note
or
stock certificate, an affidavit of that fact and an agreement to indemnify
the
Buyer in a manner reasonably satisfactory to Buyer against any claim that may
be
made against the Buyer with respect to such Note or certificate; provided,
however, that Buyer shall not require any Seller to provide any bond or other
security for such indemnity.
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11.2. Payment
of Purchase Price.
At
Closing, against delivery by each Seller to the Buyer of the stock certificate
or certificates, stock powers and Notes deliverable pursuant to Section 11.1,
the Buyer will deliver to such Seller (i) the cash portion of the Purchase
Price
payable to such Seller in the amount specified on Exhibit
A,
(ii) a
Convertible Note, payable to the order of such Seller, in the principal amount
specified on Exhibit
A
and
(iii) a Warrant, registered in the name of such Seller, for the purchase of
the
number of Warrant Shares specified on Exhibit
A.
11.3. Issuance
of ThermoEnergy Common Stock.
At
Closing, the Buyer shall issue and deliver to the transfer agent for the
ThermoEnergy Common Stock irrevocable instructions to issue to the Sellers
the
number of Thermo Shares issuable pursuant to Section 1.2(b), in the amounts
specified on Exhibit
A.
11.4. Management
Bonus Pool.
At the
Closing, the Buyer shall deliver to CASTion, for further distribution to the
officers and employees of CASTion (in distributive amounts to be determined
by
the compensation committee of the board of directors of CASTion (as constituted
immediately prior to the Closing), the cash portion of the management bonus
pool
referred to in Section 10.6 above, and the Buyer shall execute and deliver
to
CASTion, for further distribution to the officers and employees of CASTion
(in
distributive amounts to be determined by the compensation committee of the
board
of directors of CASTion (as constituted immediately prior to the Closing),
the
Management Warrants. In addition, the Buyer shall execute and deliver to CASTion
the Bonus Agreement;
11.5 Other
Documents.
At
Closing, CASTion and the Sellers shall, at the Buyer’s expense, execute and
deliver to the Buyer such other instruments and documents as the Buyer’s
attorney may reasonably determine to be necessary or convenient to effect the
transactions contemplated by this Agreement and to afford the Buyer the benefit
of this Agreement. At Closing, the Buyer shall, at the Buyer’s expense, execute
and deliver to CASTion and/or the Sellers such other instruments and documents
as CASTion’s attorney may reasonably determine to be necessary or convenient to
effect the transactions contemplated by this Agreement and to afford CASTion
and
the Sellers the benefit of this Agreement.
12. Registration
Rights.
12.1. Piggy-Back
Registration.
If
(but
without any obligation to do so) the Buyer proposes to register (including
for
this purpose, a registration effected by the Buyer for stockholders other than
the Sellers) any shares of ThermoEnergy Common Stock under the Securities Act
in
connection with the public offering of such shares of ThermoEnergy Common Stock
solely for cash other than (i) a registration statement on Form S-8 (or any
successor form relating to the sale of securities to employees of the Buyer
pursuant to a stock option, stock purchase or similar plan), (ii) a registration
statement on Form S-4 (or any successor form relating to a merger, consolidation
or similar transaction involving the Buyer), (iii) a registration on any form
which does not include substantially the same information as would be required
to be included in a registration statement covering the sale by the Sellers
of
the Thermo Shares, the Conversion Shares or the Warrant Shares, (iv) a
registration in which the only ThermoEnergy Common Stock being registered is
ThermoEnergy Common Stock issuable upon conversion of debt securities which
are
also being registered, or (v) a registration statement being filed by the Buyer
pursuant to a contractual obligation existing prior to the date of this
Agreement which prohibits the inclusion of additional shares, the Buyer shall,
at such time, promptly give each Seller written notice of such registration.
Upon the written request of a Seller given within twenty (20) days after mailing
of such notice by the Buyer, the Buyer shall, subject to the provisions of
this
Section 12, cause to be registered under the Securities Act all of the
Thermo Shares, Conversion Shares and Warrant Shares (collectively, the
“Registrable
Securities”)
that
each such Seller has requested to be registered. In
the
event that any such registration shall be, in whole or in part, an underwritten
public offering of ThermoEnergy Common Stock, the number of Registrable
Securities to be included in such an underwriting may be reduced or excluded
partially or completely (pro rata among the requesting Sellers based upon the
number of Registrable Securities owned by such Sellers) if and to the extent
that the managing underwriter shall be of the opinion that the inclusion of
some
or all of the Registrable Securities would adversely affect the marketing of
the
securities to be sold by the Buyer therein; provided,
however,
that no
such Registrable Securities may be excluded from such registration unless all
securities of the Buyer held by any person (other than a Seller) who did not
make the original request for registration shall first be excluded from such
registration.
The
Buyer shall have the right, without penalty, to terminate or withdraw any
registration initiated by it under this Section 12.1 prior to the
effectiveness of such registration whether or not any Seller has elected to
include securities in such registration.
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12.2 Registration
Obligations of the Buyer. In
connection with the registration of the Registrable
Securities for the account of the Sellers pursuant to Section 12.1, the Buyer
shall:
(a)Take
all
lawful action such that the registration statement and any amendment thereto
does not, when it becomes effective, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, not misleading and that the prospectus forming
part of such registration statement, and any amendment or supplement thereto,
does not at any time include an untrue statement of a material fact or omit
to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(b)Comply
with the provisions of the Securities Act with respect to the Thermo Shares,
the
Conversion Shares and the Warrant Shares covered by the registration statement
until the earlier of (i) ninety (90) days after the registration statement
has
been declared effective or (ii) such time as all of such Registrable Securities
have been disposed of in accordance with the intended methods of disposition
by
the Sellers as set forth in the prospectus forming part of the registration
statement (the “Registration
Period”).
(c)Prior
to
the filing with the Commission of the
registration statement (including any amendments thereto) and the distribution
or delivery of any prospectus (including any supplements thereto), provide
draft
copies thereof to the Sellers and reflect in such documents all such comments
as
the Sellers (and their counsel) reasonably may propose.
(d)(i) register
or qualify the Registrable Securities covered by the registration statement
under such securities or “blue sky” laws of such jurisdictions as the Sellers
reasonably
request, (ii) prepare and file in such jurisdictions such amendments
(including post-effective amendments) and supplements to such registrations
and
qualifications as may be necessary to maintain the effectiveness thereof at
all
times during the Registration Period, and (iii) take all such other lawful
actions as may be necessary to maintain such registrations and qualifications
in
effect at all times during the Registration Period; provided,
however,
that the
Buyer shall not be required in connection therewith or as a condition thereto
to
(A) qualify to do business in any jurisdiction where it would not otherwise
be required to qualify, (B) subject itself to general taxation in any such
jurisdiction or (C) file a general consent to service of process in any
such jurisdiction.
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(e)As
promptly as practicable after becoming aware of such event, notify each Seller
whose Registrable Securities are covered by the registration statement of the
occurrence of any event, as a result of which the prospectus included in the
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, in light of the circumstances under
which they were made, not misleading, and promptly prepare an amendment to
the
registration statement and supplement to the prospectus to correct such untrue
statement or omission, and deliver a number of copies of such supplement and
amendment to each Seller as such Seller may reasonably request.
(f)As
promptly as practicable after becoming aware of such event, notify each Seller
whose Registrable Securities are covered by the registration statement of the
issuance by the Commission of any stop order or other suspension of the
effectiveness of the registration statement and take all lawful action to effect
the withdrawal, rescission
or
removal of such stop order or other suspension.
(g)Make
generally available to its security holders as soon as practicable, but in
any
event not later than eighteen
(18)
months
after (i) the effective date of the registration statement, and
(ii) the effective date of each post-effective amendment to the
registration statement, as the case may be, an earnings statement of the Buyer
and its subsidiaries complying with Section 11(a) of the Securities Act and
the rules and regulations of the Commission thereunder.
(h)Make
reasonably available for inspection by the Sellers and any underwriter
participating in any disposition pursuant to the registration statement, and
any
attorney, accountant or other agent retained by such Sellers or any such
underwriter all relevant financial and other records, pertinent corporate
documents and properties of the Buyer and its subsidiaries, and (ii) cause
the Buyer’s officers, directors and employees to supply all information
reasonably requested by such Sellers or any such underwriter, attorney,
accountant or agent in connection with the registration statement, in each
case,
as is customary for similar due diligence examinations; provided,
however,
that all
records, information and documents that are designated in writing by the Buyer,
in good faith, as confidential, proprietary or containing any nonpublic
information shall be kept confidential by such Sellers and any such underwriter,
attorney, accountant or agent (pursuant to an appropriate confidentiality
agreement in the case of any such Seller or agent), unless such disclosure
is
made pursuant to judicial process in a court proceeding (after first giving
the
Buyer an opportunity promptly to seek a protective order or otherwise limit
the
scope of the information sought to be disclosed) or is required by law, or
such
records, information or documents become available to the public generally
or
through a third party not in violation of an accompanying obligation of
confidentiality; and provided,
further,
that, if
the foregoing inspection and information gathering would otherwise disrupt
the
Buyer’s conduct of its business, such inspection and information gathering
shall, to the maximum extent possible, be coordinated on behalf of the Sellers
and the other parties entitled thereto by one firm of counsel designated
by and
on behalf of the majority in interest of Sellers and other parties;
and
(i)Use
its
commercially reasonable efforts to cause all Registrable Securities covered
by
the registration statement to be listed or qualified for trading on the
principal trading market, if any, on which the ThermoEnergy Common Stock is
traded or listed on the effective date of the registration
statement.
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12.3 Obligations
and Acknowledgements of the Sellers.
In
connection with the registration of the Thermo Shares and the Warrant Shares
for
the account of the Sellers pursuant to Section 12.1, the Sellers shall have
the
following obligations and hereby make the following
acknowledgements:
(a)It
shall
be a condition precedent to the obligations of the Buyer to include
the
Registrable Securities of a particular Seller
in the
registration statement
that
such Seller (i) shall furnish to the Buyer such information regarding
itself, the shares of Thermo Energy Common Stock held by it and the intended
method of disposition of the Registrable Securities held by it as shall be
reasonably required to effect the registration of such Registrable Securities
and (ii) shall execute such documents in connection with such registration
as the Buyer may reasonably request. At least ten business days prior to the
first anticipated filing date of a registration statement, the Buyer shall
notify each Seller of the information the Company requires from such Seller
(the
“Requested
Information”)
if such
Seller elects to have any of its Registrable Securities included in the
registration statement. If at least two business days prior to the anticipated
filing date the Buyer has not received the Requested Information from a Seller
(a “Non-Responsive
Seller”),
then
the Buyer may file the registration statement without including any Registrable
Securities for the account of such Non-Responsive Seller and the Buyer shall
have no further obligations under this Section 12 to the Non-Responsive
Seller.
(b)Each
Seller agrees to cooperate with the Buyer in connection with the preparation
and
filing of a registration statement under this Section 12, unless such Seller
has
notified the Buyer in writing of its election to exclude all of its Registrable
Securities from such registration statement.
(c)Each
Seller agrees that, upon receipt of any notice from the Buyer of the occurrence
of any event of the kind described in Section 12.2(e) or 12.2(f), it shall
immediately discontinue its disposition of Registrable Securities pursuant
to
the registration statement until such Seller’s receipt of the copies of the
supplemented or amended prospectus contemplated by Section 12.2(e) and, if
so directed by the Buyer, such Seller shall deliver to the Buyer (at the expense
of the Buyer) or destroy (and deliver to the Buyer a certificate of destruction)
all copies in such Seller’s possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such notice.
(d)Each
Seller acknowledges that it may be deemed to be a statutory underwriter within
the meaning of the Securities Act with respect to the Registrable Securities
being registered for resale by it, and each Seller which includes Registrable
Securities for offer and sale within a registration statement pursuant to this
Section 12 hereby consents to the inclusion in such registration statement
of a
disclosure to such effect.
12.4 Expenses
of Registration.
All
expenses incurred in connection with registrations, filings or qualifications
pursuant to this Section 12, including, without limitation, all registration,
listing, and qualifications fees, legal fees, printing and engraving costs,
accounting fees, and the reasonable fees and expenses of one counsel to the
Sellers (other than underwriting discounts and commissions) shall be borne
by
the Buyer.
12.5 Indemnification
and Contribution.
(a) Indemnification
by the Buyer.
The
Buyer shall indemnify and hold harmless each Seller and each underwriter, if
any, which facilitates the disposition of Registrable Securities for the account
of the Sellers, and each of their respective officers and directors and each
person who controls such Seller or underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Securities
Exchange Act of 1934 (the “Exchange
Act”)
(each
such person being sometimes hereinafter referred to as an “Indemnified
Person”)
from
and against any losses, claims, damages or liabilities, joint or several, to
which such Indemnified Person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any registration statement
or
an omission or alleged omission to state therein a material fact required to
be
stated therein or necessary to make the statements therein, not misleading,
or
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any prospectus or an omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and the Buyer hereby agrees to
reimburse such Indemnified Person for all reasonable legal and other expenses
incurred by them in connection with investigating or defending any such action
or claim as and when such expenses are incurred; provided,
however, that
the
Buyer shall not be liable to any such Indemnified Person in any such case to
the
extent that any such loss, claim, damage or liability arises out of or is based
upon (i) an untrue statement or alleged untrue statement made in, or an
omission or alleged omission from, such registration statement or prospectus
in
reliance upon and in conformity with written information furnished to the Buyer
by such Indemnified Person expressly for use therein or (ii) in the case of
the occurrence of an event of the type specified in Section 12.2(e), the
use by the Indemnified Person of an outdated or defective prospectus after
the
Buyer has provided to such Indemnified Person an updated prospectus correcting
the untrue statement or alleged untrue statement or omission or alleged omission
giving rise to such loss, claim, damage or liability.
Page
16
of 26
(b) Indemnification
by the Sellers and Underwriters.
Each
Seller agrees, severally
and not jointly, as
a
consequence of the inclusion of any of its Registrable Securities in a
registration statement pursuant to this Section 12, and each underwriter, if
any, which facilitates the disposition of Registrable Securities shall agree,
severally
and not jointly, as
a
consequence of facilitating such disposition of Registrable Securities to
(i) indemnify and hold harmless the Buyer, its directors, its officers who
sign any registration statement and each person, if any, who controls the Buyer
within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, against any losses, claims, damages or
liabilities to which the Buyer or such other persons may become subject, under
the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
an
untrue statement or alleged untrue statement of a material fact contained in
any
registration statement or an omission or alleged omission to state therein
a
material fact required to be stated therein or necessary to make the statements
therein, not misleading, or arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any prospectus
or an
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of
the
circumstances under which they were made, not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Buyer by such Seller or
underwriter expressly for use therein,
and
(ii) reimburse the Buyer for any legal or other expenses incurred by the
Buyer in connection with investigating or defending any such action or claim
as
such expenses are incurred;
provided,
however,
that no
Seller or underwriter shall be liable under this Section 12.5(b) for any
amount in excess of the net proceeds paid to such Seller or underwriter in
respect of Registrable Securities sold by it.
(c) Notice
of Claims, etc.
Promptly
after receipt by a person seeking indemnification pursuant to this
Section 12.5 (an “Indemnified
Party”)
of
written notice of any investigation, claim, proceeding or other action in
respect of which indemnification is being sought (each, a “Claim”),
the
Indemnified Party promptly shall notify the person against whom indemnification
pursuant to this Section 12.5 is being sought (the “Indemnifying
Party”)
of the
commencement thereof; but the omission to so notify the Indemnifying Party
shall
not relieve the Indemnifying Party from any liability that it otherwise may
have
to the Indemnified Party, except to the extent that the Indemnifying Party
is
materially prejudiced and forfeits substantive rights and defenses by reason
of
such failure. In connection with any Claim as to which both the Indemnifying
Party and the Indemnified Party are parties, the Indemnifying Party shall be
entitled to assume the defense thereof. Notwithstanding the assumption of the
defense of any Claim by the Indemnifying Party, the Indemnified Party shall
have
the right to employ separate legal counsel and to participate in the defense
of
such Claim, and the Indemnifying Party shall bear the reasonable fees,
out-of-pocket costs and expenses of such separate legal counsel to the
Indemnified Party if (and only if): (i) the Indemnifying Party shall have
agreed to pay such fees, costs and expenses, (ii) the Indemnified Party
shall
reasonably have concluded that representation of the Indemnified Party by the
Indemnifying Party by the same legal counsel would not be appropriate due to
actual or, as reasonably determined by legal counsel to the Indemnified Party,
potentially differing interests between such parties in the conduct of the
defense of such Claim, or if there may be legal defenses available to the
Indemnified Party that are in addition to or disparate from those available
to
the Indemnifying Party, or (iii) the Indemnifying Party shall have failed
to employ legal counsel reasonably satisfactory to the Indemnified Party within
a reasonable period of time after notice of the commencement of such Claim.
If
the Indemnified Party employs separate legal counsel in circumstances other
than
as described in the preceding sentence, the fees, costs and expenses of such
legal counsel shall be borne exclusively by the Indemnified Party. Except as
provided above, the Indemnifying Party shall not, in connection with any Claim
in the same jurisdiction, be liable for the fees and expenses of more than
one
firm of counsel for the Indemnified Party (together with appropriate local
counsel). The Indemnified Party shall not, without the prior written consent
of
the Indemnifying Party (which consent shall not unreasonably be withheld),
settle or compromise any Claim or consent to the entry of any judgment that
does
not include an unconditional release of the Indemnifying Party from all
liabilities with respect to such Claim or judgment or
contain any admission of wrongdoing.
Page
17
of 26
(d) Contribution.
If the
indemnification provided for in this Section 12.5 is unavailable to, or
insufficient to hold harmless, an Indemnified Party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
herein, then each Indemnifying Party shall contribute to the amount paid or
payable by such Indemnified Party as a result of such losses, claims, damages
or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative fault of the Indemnifying Party and the Indemnified
Party in connection with the statements or omissions or
alleged statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), 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 the untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact
relates to information supplied by such Indemnifying Party or by such
Indemnified Party, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 12.5(d) were determined by pro rata allocation
(even if the Sellers or any underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the
equitable considerations referred to in this Section 12.5(d). The amount
paid or payable by an Indemnified Party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above shall
be deemed to include any legal or other fees or expenses reasonably incurred
by
such Indemnified Party in connection with investigating or defending any such
action or claim. 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 obligations of the Sellers and any underwriters in this
Section 12.5(d) to contribute shall be several in proportion to the
percentage of Thermo Shares and/or Warrant Shares registered or underwritten,
as
the case may be, by them and not joint.
(e) Limitation
on Sellers’ and Underwriters’ Obligations.
Notwithstanding any other provision of this Section 12.5, in no event shall
any (i) Seller have
any
liability under
this Section 12.5 for any amounts in excess of the dollar amount of the
proceeds actually
received
by such Seller from the sale by such Seller of Registrable Securities (after
deducting any fees, discounts and commissions applicable thereto) pursuant
to
any registration statement under which such Thermo Shares, Conversion Shares
and/or Warrant Shares are
registered under the Securities Act and (ii) underwriter be required to
undertake liability to any person hereunder for any amounts in excess of the
aggregate discount, commission or other compensation payable to such underwriter
with respect to the Registrable Securities underwritten by it and distributed
pursuant to the registration statement.
Page
18
of 26
(f) Other
Liabilities.
The
obligations of the Buyer under this Section 12.5 shall be in addition to
any liability which the Buyer may otherwise have to any Indemnified Person
and
the obligations of any Indemnified Person under this Section 12.5 shall be
in addition to any liability which such Indemnified Person may otherwise have
to
the Buyer. The remedies provided in this Section 12 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to
an
indemnified party at law or in equity.
12.6 Floating
of Shares Outside of the United States.
In the
event that the Buyer proposes to issue and/or sell (including for this purpose,
a sale effected by the Buyer for stockholders other than the Sellers) any shares
of ThermoEnergy Common Stock to the public under the laws of any sovereign
jurisdiction outside of the United States, then the provisions of this Section
12 shall apply to such issuance and/or sale of shares so as to give the Sellers
as nearly as practicable the same rights and benefits as they would have had
had
the Buyer proposed to register shares of ThermoEnergy Common Stock under the
Securities Act pursuant to Section 12.1(a) above; provided,
however,
that
the Buyer shall not be required to include in any such issuance and/or sale
any
shares of ThermoEnergy Common Stock for the benefit of the Sellers if, and
to
the extent that, the laws of any jurisdiction in which such offering is to
made,
or the rules of any exchange or trading system through which such offering
is to
be effected, prohibit the inclusion of shares to be offered by any person or
entity other than the issuer.
13. Offers
to Other Holders of Common Stock and Preferred Stock.
Promptly after the Effective Date, the Buyer shall extend to all holders of
Common Stock and/or Preferred Stock who are not Sellers under this Agreement
the
opportunity to sell to the Buyer their shares of Common Stock and/or Preferred
Stock on substantially the same terms and conditions, and for substantially
the
same consideration, as provided in this Agreement. The Buyer shall keep such
offer open for a period of not less than 30 days beyond the date of
Closing.
Page
19
of 26
14. Board
of Directors.
So long
as any of the Warrants or the Notes remain outstanding, until the sixth
anniversary of the Closing, Xxxxxxx Xxxxx Specialty Group, LLC or any of its
affiliates (“Xxxxxxx Xxxxx”), acting on behalf of the Sellers, shall have the
right to designate one individual to receive notice of and attend all meetings
of the Board of Directors of the Buyer (the “Buyer Board”) and any committees
thereof. The Buyer will permit the Xxxxxxx Xxxxx representative, at Xxxxxxx
Xxxxx’x expense, to visit and inspect any of the properties of the Buyer and of
any subsidiary (including CASTion), and to discuss the affairs, finances and
accounts of the Buyer and of any subsidiary (including CASTion), with its
officers, all upon reasonable notice and to such reasonable extent and at such
reasonable times and intervals as the representative may reasonably request.
The
Buyer will reimburse all direct out-of-pocket expenses reasonably incurred
by
the Xxxxxxx Xxxxx representative in attending meetings of the Buyer Board or
any
committee thereof. Notwithstanding the foregoing, the Buyer may require, as
a
condition to the Xxxxxxx Xxxxx representative’s attendance at meetings of the
Buyer Board or committees thereof or to the provision to the Xxxxxxx Xxxxx
representative of material non-public information regarding the Buyer that
Xxxxxxx Xxxxx and the Xxxxxxx Xxxxx representative execute conventional
non-disclosure agreements in conformity with Regulation FD promulgated under
the
Exchange Act.
15.
Non-Survival
of Representations, Warranties and Agreements.
None of
the representations, warranties, covenants and agreements in this Agreement
or
in any instrument delivered pursuant to this Agreement, including any rights
arising out of any breach of such representations, warranties, covenants and
agreements, shall survive the Closing, except for (i) the Sellers’
representations and warranties in Sections 4 and 8, (ii) the Buyer’s
representations and warranties in Sections 6 and 7, (iii) those covenants and
agreements contained herein that by their terms apply or are to be performed
in
whole or in part at or after the Closing and (iv) Sections 17 through 24 of
this
Agreement.
16. Continued
Access to Records.
CASTion
shall permit the Buyer to have full access to all books, documents, papers
and
records relating to CASTion’s assets, stock ownership, properties, operations,
obligations and liabilities, including, but not limited to, all books of
account, tax records, minute books of directors and shareholders meetings,
organizational documents and any other business activities or prospects after
the Effective Date and Closing.
17. Default.
In
addition to any other remedies available to the non-defaulting Parties under
applicable law (including but not limited to, the right to specific performance
of this Agreement), any Party hereto who fails to comply with the terms of
this
Agreement shall be obligated for, and agrees to pay, all damages, costs, fees,
and expenses incurred or suffered by the non-defaulting Parties, including
without limitation all fees and costs incurred by a non-defaulting Party to
enforce the terms of this Agreement, which fees and costs shall include court
costs and reasonable attorney's fees.
18. Notices.
Any and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be in writing and shall be deemed given and effective
on the earliest of (a) the date of transmission, if such notice or communication
is delivered via facsimile (provided the sender receives a machine-generated
confirmation of successful transmission) at the facsimile number specified
in
this Section 18, (b) the next business day, if sent by a nationally recognized
overnight courier service, (c) the second business day after the date of
mailing, if sent, postage prepaid, by first class U.S. mail or (d) upon actual
receipt by the Party to whom such notice is addressed. The address for such
notices and communications shall be as follows:
|
If
to a Seller:
|
To
such Seller at the address of such Seller set forth on Exhibit
A
|
Page
20
of 26
|
Xx.
Xxxxxxx X. Xxxxxx, President & CEO
|
|
|
CASTion
Corporation
|
|
|
00
Xxx Xxxx Xxxxxx
|
|
|
Xxxxxxxxx,
XX 00000
|
|
|
Fax:
(000) 000-0000
|
|
|
with
copies (which
|
|
|
shall
not constitute
|
|
|
notice)
to:
|
Xxxxxx
X. Xxxxxx, CEO
|
|
Xxxxxxx
Xxxxx Specialty Group, LLC
|
|
|
000
Xxxxxxx Xxxxxx
|
|
|
Xxx
Xxxx, XX 00000
|
|
|
Fax:
(000) 000-0000
|
|
|
E.
Xxxxxxx Xxxxxxxx, Controller
|
|
|
Boston
Community Venture Fund
|
|
|
00
Xxxxxx Xxxxxx
|
|
|
Xxxxxx,
XX 00000
|
|
|
Fax:
(000) 000-0000
|
|
|
Xxxxxx
X. Xxxxxxx, President
|
|
|
Massachusetts
Technology Development Corporation
|
|
|
00
Xxxxx Xxxxxx
|
|
|
Xxxxx
000
|
|
|
Xxxxxx,
XX 00000
|
|
|
Fax:
(000) 000-0000
|
|
|
and
|
|
|
Xxxx
X. Xxxxxx, Esq.
|
|
|
Xxxxx,
Xxxxxx-Xxxxx & Xxxxxxxxx, P.C.
|
|
|
0000
Xxxxxxx Xxxx
|
|
|
Xxxxxxx,
Xxxxxxxxxxxxx 00000
|
|
|
Fax:
(000) 000-0000
|
|
|
If
to the Buyer:
|
Xxxxxx
X. Xxxxxx, CEO
|
|
ThermoEnergy
Corporation
|
|
|
000
Xxxx Xxxxxxx Xxxxxx, Xxxxx 000
|
|
|
Xxxxxx
Xxxx, Xxxxxxxx 00000
|
|
|
Fax:
(000) 000-0000
|
|
|
with
copies (which
|
|
|
shall
not constitute
|
|
|
notice)
to:
|
Xxxxxx
X. Xxxxxx, EVP and CFO
|
|
ThermoEnergy
Corporation
|
|
|
000
Xxxx Xxxxxxx Xxxxxx, Xxxxx 000
|
|
|
Xxxxxx
Xxxx, XX 00000
|
|
|
Fax:
(000) 000-0000
|
|
|
and
|
Page
21
of 26
|
Xxxxxxx
X. Xxxxx, Esq.
|
|
|
Xxxxx
Xxxxxxx LLP
|
|
|
000
Xxxxxx Xxxxxx
|
|
|
Xxxxxx,
XX 00000
|
|
|
Fax:
(000) 000-0000
|
or,
in
any case, to such other address as the addressee may, by notice pursuant to
this
Section 18, designate.
19. Brokerage.
No
brokerage or finder’s fees or commissions are or will be payable by the any
Party to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other person with respect to the transactions
contemplated by this Agreement. The Sellers, on the one hand, and the Buyer,
on
the other hand, shall indemnify and hold each other harmless from and against
any claims made by or on behalf of any persons for fees of a type contemplated
in this Section 19 that may be due in connection with the transactions
contemplated by this Agreement as a result of any commitment, understanding,
agreement or arrangement made by it or them.
20. Prior
Agreements; Amendments and Waivers.
This
Agreement supersedes all prior Agreements, offers or communications with respect
to the matters set forth herein. This Agreement may not be amended except by
a
written instrument signed by all Parties hereto. The enforcement of any
provision of this Agreement may be waived only by a written instrument signed
by
the Party against which such waiver is to be effective; waiver of any provision
in any single instance shall not operate as a waiver of such provision in any
other instance. No delay in or failure to exercise any right granted herein
shall impair any such right or shall act as a waiver of any subsequent breach
by
any Party.
21. Successors.
This
Agreement shall be binding on the Parties hereto and their respective heirs,
successors and assigns.
22. Governing
Law.
This
Agreement shall be governed exclusively by the provisions hereof and by the
laws
of the Commonwealth of Massachusetts as the same may from time to time
exist.
23. Headings.
The
paragraph headings throughout this instrument are for convenience and reference
only, and the words contained herein shall in no way be held to explain, modify,
amplify or aid in the interpretation, construction or meaning of the provisions
of this Agreement.
24. Counterparts.
This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed and delivered by all Parties.
In
the event that any signature is delivered by facsimile transmission, such
signature shall create a valid and binding obligation of the Party executing
and
transmitting such counterpart with the same force and effect as if such
facsimile signature page were an original thereof notwithstanding any subsequent
failure or refusal of such Party to deliver the original thereof.
[The
remainder of this page has intentionally been left blank.]
Page
22
of 26
In
witness whereof, the Parties have executed this Agreement on the dates
indicated.
|
THERMOENERGY
CORPORATION
|
||
| |
|
|
|
Date:
July
2, 2007
|
By: | /s/ Xxxxxx X. Xxxxxx |
|
Xxxxxx
X. Xxxxxx
Executive
Vice President and
Chief
Financial Officer
|
||
|
CASTION
CORPORATION
|
||
| |
|
|
|
Date:
July
2, 2007
|
By: | /s/ Xxxxxxxx X. Xxxxxx |
|
Xxxxxxx
X. Xxxxxx
President
and Chief Executive Officer
|
||
|
BANCBOSTON
VENTURES,
INC.
|
||
| |
|
|
| By: |
MASSACHUSETTS
TECHNOLOGY
DEVELOPMENT
CORPORATION
Attorney-in-Fact
|
|
|
Date:
July
2, 2007
|
By: | /s/ Xxxxxx X. Xxxxxxx |
|
Name: Xxxxxx X. Xxxxxxx |
||
| Title: President | ||
|
BCLF
VENTURES
I,
LLC
|
||
| |
|
|
|
Date:
July
2, 2007
|
By: | /s/ E. Xxxxxxx Xxxxxxxx |
|
Name:
E.
Xxxxxxx Xxxxxxxx
Title:
Controller
|
||
|
ESSEX
REGIONAL
RETIREMENT
BOARD
|
||
| |
|
|
| By: |
MASSACHUSETTS
TECHNOLOGY
DEVELOPMENT
CORPORATION
Attorney-in-Fact
|
|
Page
23
of 26
|
Date:
July
2, 2007
|
By: | /s/ Xxxxxx X. Xxxxxxx |
|
Name: Xxxxxx X. Xxxxxxx |
||
| Title: President | ||
|
MASSACHUSETTS
TECHNOLOGY
DEVELOPMENT
CORPORATION
|
||
| |
|
|
|
Date:
July
2, 2007
|
By: | /s/ Xxxxxx X. Xxxxxxx |
|
Name: Xxxxxx X. Xxxxxxx |
||
| Title: President | ||
|
XXXXXXX
XXXXX
SPECIALTY
GROUP,
LLC
|
||
| |
|
|
|
Date:
July
2, 2007
|
By: | /s/ Xxxxxx X. Xxxxxx |
|
Name: Xxxxxx X. Xxxxxx |
||
| Title: CEO | ||
|
XXXXXXX
XXXXX
PRIVATE
EQUITY
ACCREDITED
FUND
III, LLC
|
||
| |
|
|
|
Date:
July
2, 2007
|
By: | /s/ Xxxxxx X. Xxxxxx |
|
Name: Xxxxxx X. Xxxxxx |
||
| Title: CEO | ||
Page
24
of 26
Exhibit
A
|
Name
and Address of Seller
|
Class
and Number of Shares
|
Principal
Amount of (and interest on) Notes
|
Cash
Payment
|
Number
of ThermoEnergy Shares
|
Number
of Warrants
|
Principal
Amount of Convertible Notes
|
|||||||||||||
|
BancBoston
Ventures Inc.
|
C-2:
3,093.52
|
$
|
0.00
|
$
|
0.00
|
34,450
|
35,969
|
$
|
29,010.17
|
||||||||||
|
BCLF
Ventures I, LLC
|
C-1:
33,654.00
C-2:
21,623.81
|
$
|
715,486
|
$
|
620,683.49
|
723,273
|
619,898
|
$
|
479,808.35
|
||||||||||
|
Essex
Regional Retirement Board
|
C-2:
1546.81
|
$
|
0.00
|
$
|
0.00
|
17,225
|
17,985
|
$
|
14,505.56
|
||||||||||
|
Massachusetts
Technology Development Corporation
|
C-1:
56,090.00
C-2:
45,475.21
|
$
|
703,140
|
$
|
603,480.42
|
1,183,523
|
1,091,034
|
$
|
879,961.77
|
||||||||||
|
Xxxxxxx
Xxxxx Specialty Group, LLC
|
C-2:
115,207.49
C-3:
125,000
C-4:
116,808.00
|
484,248
|
$
|
415,613.09
|
2,410,867
|
2,417,539
|
$
|
1,949,840.7
|
|||||||||||
|
Xxxxxxx
Xxxxx Private Equity Accredited Fund III, LLC
|
N/A
|
210,223
|
$
|
210,223.00
|
25,000
|
50,000
|
$
|
0.00
|
|||||||||||
Page
25
of 26
Addresses
of Sellers
BancBoston
Ventures Inc.
c/o
Massachusetts
Technology Development Corporation
00
Xxxxx
Xxxxxx
Xxxxx
000
Xxxxxx,
XX 00000
Attn:
Xxxxxx X. Xxxxxxx, President
Fax:
(000) 000-0000
BCLF
Ventures I, LLC
c/o
Boston Community Venture Fund
00
Xxxxxx
Xxxxxx
Xxxxxx,
XX 00000
Attn:
E.
Xxxxxxx Xxxxxxxx, Controller
Fax:
(000) 000-0000
Essex
Regional Retirement Board
c/o
Massachusetts
Technology Development Corporation
00
Xxxxx
Xxxxxx
Xxxxx
000
Xxxxxx,
XX 00000
Attn:
Xxxxxx X. Xxxxxxx, President
Fax:
(000) 000-0000
Massachusetts
Technology Development Corporation
00
Xxxxx
Xxxxxx
Xxxxx
000
Xxxxxx,
XX 00000
Attn:
Xxxxxx X. Xxxxxxx, President
Fax:
(000) 000-0000
Xxxxxxx
Xxxxx Specialty Group, LLC
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxxxx X. Xxxxxx, CEO
Fax: (000)
000-0000
Xxxxxxx
Xxxxx Private Equity Accredited Fund III, LLC
c/o
Xxxxxxx Xxxxx Specialty Group, LLC
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxxxx X. Xxxxxx, CEO
Fax: (000)
000-0000
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