EXHIBIT I
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NOTE PURCHASE AGREEMENT
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This NOTE PURCHASE AGREEMENT, dated as of [________], 200[ ] (this
"Agreement"), is entered into by and between BLUEFLY, INC., a Delaware
corporation (the "Company"), and the investors listed on Schedule 1 hereto
(each, an "Investor" and, collectively, the "Investors").
RECITALS
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WHEREAS, the Investors desire to purchase from the Company, and the Company
desires to issue and sell to the Investors, convertible promissory notes in the
aggregate principal amount of [_____] dollars ($[_____]), in the form attached
hereto as Exhibit A (the "Notes"), on the terms, and subject to the conditions,
contained herein.
AGREEMENT
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NOW, THEREFORE, in consideration for the mutual covenants contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
ARTICLE I
PURCHASE AND SALE OF NOTES; STOCKHOLDER APPROVAL
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SECTION 1.1 Notes. Subject to the terms and conditions hereof, the Company
hereby issues and sells to the Investors, and each Investor hereby purchases
from the Company, a Note in the aggregate principal amount set forth opposite
such Investor's name in Schedule 1.
SECTION 1.2 Purchase Price. The aggregate purchase price for the Notes to
be purchased by each Investor is the amount set forth opposite such Investor's
name in Schedule 1.
SECTION 1.3 Stockholder Approval. The Company shall take such actions as
are necessary to obtain the Stockholder Approval at the 2008 Annual Meeting of
Stockholders of the Company or, if the Stockholder Approval is not obtained at
such Annual Meeting, to obtain the Stockholder Approval as promptly thereafter
as possible. "Stockholder Approval" means such approval of the stockholders of
the Company as may be necessary under the rules of the Nasdaq Capital Market or
any other national securities exchange or quotation system upon which the Common
Stock may be listed from time to time, in order to permit the exercise in full
of the conversion rights set forth in Section 5 of the Notes (without giving
effect to any limitation in such Section 5 relating to any such rules).
SECTION 1.4 Use of Proceeds. The Company shall use the proceeds from the
issuance of the Notes solely for working capital and general corporate purposes.
SECTION 1.5 Registration Rights. The Investors shall be entitled to
registration rights in respect of the shares of Common Stock or Subsequent Round
Securities (as defined in the Notes) issuable upon conversion of Notes
consistent with the registration rights granted pursuant to the Stock Purchase
Agreement, dated as of June 5, 2006 (the "2006 Agreement"), by and among the
Company and the other parties thereto, applied mutatis mutandis; provided,
however, that the 120-day filing deadline with respect to the Company's
obligation to prepare and file a registration statement covering such shares
shall commence on the first day following the Company's receipt of written
notice from the Investors requesting the registration of such shares and the 180
day Required Effectiveness Deadline shall also commence on the first day
following the Company's receipt of such written notice; and provided, further,
however, that if, despite the Company having used all commercially reasonable
efforts, the Required Effectiveness Deadline (as defined in the 2006 Agreement)
is not satisfied by reason of the failure of the applicable Registration
Statement (as defined in the 2006 Agreement) to be declared effective prior to
such Required Effectiveness Deadline, the penalties set forth in Section 6.1(h)
of the 2006 Agreement shall be deemed not to be triggered by clause (ii) of such
Section 6.1(h) in respect of such shares.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
---------------------------------------------
The Company represents and warrants to the Investors as follows:
SECTION 2.1 Organization, etc. The Company has been duly formed, and is
validly existing as a corporation in good standing under the laws of the State
of Delaware, and is qualified to do business as a foreign corporation in each
jurisdiction in which the failure to be so qualified could reasonably be
expected to have a material adverse effect on the assets, liabilities, condition
(financial or other), business or results of operations of the Company (a
"Material Adverse Effect"). The Company has the requisite corporate power and
authority to own, lease and operate its properties and to conduct its business
as presently conducted. The Company has the requisite corporate power and
authority to enter into, execute, deliver and perform all of its duties and
obligations under this Agreement and to consummate the transactions contemplated
hereby.
SECTION 2.2 Authorization. The execution, delivery and performance of this
Agreement and the issuance of the Notes have been duly authorized by all
necessary corporate action on the part of the Company, including, without
limitation, the due authorization by the affirmative votes of a majority of the
disinterested directors of the Company's Board of Directors.
SECTION 2.3 Validity; Enforceability. This Agreement and the Notes have
each been duly executed and delivered by the Company, and constitute the legal,
valid and binding obligation of the Company, enforceable against the Company in
accordance with their respective terms, except as such enforceability may be
limited by, or subject to, any bankruptcy, insolvency, reorganization,
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moratorium or similar laws affecting the enforcement of creditors' rights
generally and subject to general principles of equity.
SECTION 2.4 Capitalization. As of the date hereof, the authorized capital
stock of the Company consists of 200,000,000 shares of common stock, $0.01 par
value per share (the "Common Stock"), and 25,000,000 shares of preferred stock,
$0.01 par value per share, of which 500,000 shares have been designated Series A
Convertible Preferred Stock, 9,000,000 shares have been designated Series B
Convertible Preferred Stock, 3,500 shares have been designated Series C
Convertible Preferred Stock, 7,150 shares have been designated Series D
Convertible Preferred Stock,1,000 shares have been designated Series E
Convertible Preferred Stock and 7,000 shares have been designated as Series F
Convertible Preferred Stock. The issued and outstanding capital stock of the
Company consists of (i) [_______](1) shares of Common Stock and (ii)
[_______](1) shares of Series F Convertible Preferred Stock. All such shares of
the Company have been duly authorized and are fully paid and non-assessable.
Except as set forth on Schedule 2.4 hereto or as otherwise contemplated by this
Agreement, there are no outstanding options, deferred stock units, warrants or
other equity securities that are convertible into, or exercisable for, shares of
the Company's capital stock.
SECTION 2.5 Governmental Consents. The execution and delivery by the
Company of this Agreement, and the performance by the Company of the
transactions contemplated hereby, do not and will not require the Company to
effectuate or obtain any registration with, consent or approval of, or notice to
any federal, state or other governmental authority or regulatory body, other
than periodic and other filings under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and all required filings with the Nasdaq Capital
Market. The parties hereto agree and acknowledge that, in making the
representations and warranties in the foregoing sentence of this Section 2.5,
the Company is relying on the representations and warranties made by the
Investors in Section 3.4.
SECTION 2.6 No Violation. The execution and delivery of this Agreement and
the performance by the Company of the transactions contemplated hereby will not
(i) conflict with or result in a breach of any provision of the certificate of
incorporation or by-laws of the Company, (ii) result in a default or breach of,
or require any consent, approval, authorization or permit of, or filing or
notification to, any person, company or entity under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, loan, factoring
arrangement, license, agreement, lease or other instrument or obligation to
which the Company is a party or by which the Company or any of its assets may be
bound or (iii) violate any law, judgment, order, writ, injunction, decree,
statute, rule or regulation of any court, administrative agency, bureau, board,
commission, office, authority, department or other governmental entity
applicable to the Company, except, in the case of clause (ii) or (iii) above,
any such event that could not reasonably be expected to have a Material Adverse
Effect or materially impair the transactions contemplated hereby.
---------------------
(1) To be completed upon execution of this Agreement.
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SECTION 2.7 Issuance of Notes. The Notes have been validly issued, and,
upon payment therefor, will be fully paid and non-assessable. The offering,
issuance, sale and delivery of the Notes as contemplated by this Agreement is
exempt from the registration and prospectus delivery requirements of the
Securities Act of 1933, as amended (the "Securities Act"), are being made in
compliance with all applicable federal and (except for any violation or
non-compliance that could not reasonably be expected to have a Material Adverse
Effect) state laws and regulations concerning the offer, issuance and sale of
securities, and are not being issued in violation of any preemptive or other
rights of any stockholder of the Company. The parties hereto agree and
acknowledge that, in making the representations and warranties in the foregoing
sentence of this Section 2.7, the Company is relying on the representations and
warranties made by the Investors in Section 3.4.
SECTION 2.8 Absence of Certain Developments. Since December 31, 2007,
except as disclosed in the Company's public filings (including the Form 10-K for
the fiscal year ended December 31, 2007, drafts of which have been provided to
the Investors), there has not been any: (i) material adverse change in the
condition, financial or otherwise, of the Company or in the assets, liabilities,
properties or business of the Company; (ii) declaration, setting aside or
payment of any dividend or other distribution with respect to, or any direct or
indirect redemption or acquisition of, any capital stock of the Company; (iii)
waiver of any valuable right of the Company or cancellation of any material debt
or claim held by the Company; (iv) material loss, destruction or damage to any
property of the Company, whether or not insured; (v) acquisition or disposition
of any material assets (or any contract or arrangement therefor) or any other
material transaction by the Company otherwise than for fair value in the
ordinary course of business consistent with past practice; or (vi) other
agreement or understanding, whether in writing or otherwise, for the Company to
take any action of the type, or any action that would result in an event of the
type, specified in clauses (i) through (v).
SECTION 2.9 Commission Filings. The Company has filed all required forms,
reports and other documents with the Securities and Exchange Commission (the
"Commission") for periods from and after January 1, 2007 (collectively, the
"Commission Filings"), each of which has complied in all material respects with
all applicable requirements of the Securities Act and/or the Exchange Act (as
applicable). As of their respective dates, the Commission Filings did not
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made, in light of the circumstances
under which they were made, not misleading. The audited financial statements and
unaudited interim financial statements of the Company included or incorporated
by reference in such Commission Filings have been prepared in accordance with
generally accepted accounting principles, consistently applied ("GAAP") (except
as may be indicated in the notes thereto or, in the case of the unaudited
statements, as permitted by Form 10-Q), complied as of their respective dates in
all material respects with applicable accounting requirements and the published
rules and regulations of the Commission with respect thereto, and fairly
present, in all material respects, the financial position of the Company as of
the dates thereof and the results of operations for the periods then ended
(subject, in the case of any unaudited interim financial statements, to the
absence of footnotes required by GAAP and normal year-end adjustments).
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SECTION 2.10 Brokers. Neither the Company, nor any of its officers,
directors or employees, has employed any broker or finder, or incurred any
liability for any brokerage fees, commissions, finder's or other similar fees or
expenses in connection with the transactions contemplated hereby.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE INVESTORS
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Each Investor represents and warrants to the Company, severally but not
jointly, as follows:
SECTION 3.1 Organization, etc. Such Investor has been duly formed and is
validly existing and in good standing under the laws of its jurisdiction of
organization. Such Investor has the requisite organizational power and authority
to enter into, execute, deliver and perform all of its duties and obligations
under this Agreement and to consummate the transactions contemplated hereby.
SECTION 3.2 Authority. The execution, delivery and performance of this
Agreement have been duly authorized by all necessary organizational or other
action on the part of such Investor.
SECTION 3.3 Validity; Enforceability. This Agreement has been duly executed
and delivered by such Investor, and constitutes the legal, valid and binding
obligation of such Investor, enforceable against such Investor in accordance
with its terms, except as such enforceability may be limited by, or subject to,
any bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors' rights generally and subject to general principles
of equity.
SECTION 3.4 Investment Representations. Such Investor acknowledges that the
offer and sale of the Notes to such Investor have not been registered under the
Securities Act, or the securities laws of any state or regulatory body, are
being offered and sold in reliance upon exemptions from the registration
requirements of the Securities Act and such laws and may not be transferred or
resold without registration under such laws unless an exemption is available.
(a) Such Investor is acquiring the Notes for investment, and not with
a view to the resale or distribution thereof, and is acquiring the Notes for its
own account.
(b) Such Investor is an "accredited investor" (as that term is defined
in Rule 501 of Regulation D promulgated under the Securities Act), is
sophisticated in financial matters and is familiar with the business of the
Company so that it is capable of evaluating the merits and risks of its
investment in the Company and has the capacity to protect its own interests.
Such Investor has had the opportunity to investigate on its own the Company's
business, management and financial affairs and has had the opportunity to review
the Company's operations and facilities and to ask questions and obtain whatever
other information concerning the Company as such Investor has deemed relevant in
making its investment decision.
(c) Neither such Investor, nor any of its principal owners, partners,
members, directors or officers is included on the Office of Foreign Assets
Control list of foreign nations,
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organizations and individuals subject to economic and trade sanctions, based on
U.S. foreign policy and national security goals, or a person named on the list
of known or suspected terrorists, terrorist organizations or other sanctioned
persons issued by the U.S. Treasury Department's Office of Foreign Assets and
Control.
(d) No representations or warranties have been made to such Investor
by the Company or any director, officer, employee, agent or affiliate of the
Company, other than the representations and warranties of the Company set forth
herein, and the decision of such Investor to purchase the Notes is based on the
information contained herein, the Commission Filings and such Investor's own
independent investigation of the Company.
SECTION 3.5 Governmental Consents. The execution and delivery by such
Investor of this Agreement, and the performance by such Investor of the
transactions contemplated hereby, do not and will not require such Investor to
effectuate or obtain any registration with, consent or approval of, or notice to
any federal, state or other governmental authority or regulatory body, except
for compliance with the Exchange Act with respect to its acquisition of the
Notes.
SECTION 3.6 No Violation. The execution and delivery of this Agreement and
the performance by such Investor of the transactions contemplated hereby, will
not (i) conflict with or result in a breach of any provision of the articles of
incorporation, by-laws or similar organizational documents of such Investor or
(ii) violate any law, judgment, order, writ, injunction, decree, statute, rule
or regulation of any court, administrative agency, bureau, board, commission,
office, authority, department or other governmental entity applicable to such
Investor, except, in the case of clause (ii) above, any such violation that
could not reasonably be expected to materially impair the transactions
contemplated hereby.
SECTION 3.7 Brokers. Neither the Investors, nor any of their officers,
directors or employees, has employed any broker or finder, or incurred any
liability for any brokerage fees, commissions, finder's or other similar fees or
expenses in connection with the transactions contemplated hereby.
ARTICLE IV
SURVIVAL; INDEMNIFICATION
-------------------------
SECTION 4.1 Survival. The representations and warranties contained in
Articles II and III hereof shall survive until the first anniversary of the date
hereof.
SECTION 4.2 Indemnification. Each party (including its officers, directors,
employees, affiliates, agents, successors and assigns (each an "Indemnified
Party")) shall be indemnified and held harmless by the other parties hereto
(each an "Indemnifying Party") for any and all liabilities, losses, damages,
claims, costs and expenses, interest, awards, judgments and penalties
(including, without limitation, reasonable attorneys' fees and expenses)
actually suffered or incurred by them (collectively, "Losses"), arising out of
or resulting from the breach of any representation or warranty made by an
Indemnifying Party contained in this Agreement. Notwithstanding the foregoing,
the aggregate liability of any Investor under this Article IV shall in no event
exceed fifty
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percent (50%) of the purchase price paid by such Investor for the Notes
purchased by it and the aggregate liability of the Company under this Article IV
shall in no event exceed fifty percent (50%) of the purchase price paid by the
Investors for the Notes, except that the Company's liability for a violation of
any of the representations and warranties contained in the first two sentences
of Section 2.7 may exceed such limitation, but shall in no event exceed one
hundred percent (100%) of the purchase price paid by the Investors for the
Notes.
SECTION 4.3 Indemnification Procedure. The obligations and liabilities of
the Indemnifying Party under this Article IV with respect to Losses arising from
claims of any third party that are subject to the indemnification provided for
in this Article IV ("Third Party Claims") shall be governed by and contingent
upon the following additional terms and conditions: if an Indemnified Party
shall receive notice of any Third Party Claim, the Indemnified Party shall give
the Indemnifying Party notice of such Third Party Claim promptly after the
receipt by the Indemnified Party of such notice (which notice shall include the
amount of the Loss, if known, and method of computation thereof, and containing
a reference to the provisions of this Agreement in respect of which such right
of indemnification is claimed or arises); provided, however, that the failure to
provide such notice shall not release the Indemnifying Party from any of its
obligations under this Article IV except to the extent the Indemnifying Party is
materially prejudiced by such failure and shall not relieve the Indemnifying
Party from any other obligation or liability that it may have to any Indemnified
Party otherwise than under this Article IV. Upon written notice to the
Indemnified Party within five (5) days of the receipt of such notice, the
Indemnifying Party shall be entitled to assume and control the defense of such
Third Party Claim at its or his expense and through counsel of its or his choice
(which counsel shall be reasonably satisfactory to the Indemnified Party);
provided, however, that, if there exists or is reasonably likely to exist a
conflict of interest that would make it inappropriate in the reasonable judgment
of counsel to the Indemnified Party for the same counsel to represent both the
Indemnified Party and the Indemnifying Party, then the Indemnified Party shall
be entitled to retain its or his own counsel in each jurisdiction for which the
Indemnified Party reasonably determines counsel is required, at the expense of
the Indemnifying Party. In the event the Indemnifying Party exercises the right
to undertake any such defense against any such Third Party Claim as provided
above, the Indemnified Party shall cooperate with the Indemnifying Party in such
defense and make available to such Indemnifying Party, at the Indemnifying
Party's expense, all witnesses, pertinent records, materials and information in
the Indemnified Party's possession or under the Indemnified Party's control
relating thereto as is reasonably required by the Indemnifying Party. Similarly,
in the event the Indemnified Party is, directly or indirectly, conducting the
defense against any such Third Party Claim, the Indemnifying Party shall
cooperate with the Indemnified Party in such defense and make available to the
Indemnified Party, at the Indemnifying Party's expense, all such witnesses
(including himself), records, materials and information in the Indemnifying
Party's possession or under the Indemnifying Party's control relating thereto as
is reasonably required by the Indemnified Party. No such Third Party Claim may
be settled by the Indemnifying Party on behalf of the Indemnified Party without
the prior written consent of the Indemnified Party (which consent shall not be
unreasonably withheld); provided, however, in the event that the Indemnified
Party does not consent to any such settlement that would provide it with a full
release from indemnified Loss and would not require it to take, or refrain from
taking, any action, the Indemnifying Party's liability for
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indemnification shall not exceed the amount of such proposed settlement. The
Indemnified Party will refrain from any act or omission that is inconsistent
with the position taken by the Indemnifying Party in the defense of a Third
Party Claim unless the Indemnified Party determines that such act or omission is
reasonably necessary to protect its own interest.
ARTICLE V
MISCELLANEOUS
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SECTION 5.1 Publicity. Except as may be required by applicable law or the
rules of any securities exchange or market on which securities of the Company
are traded, no party hereto shall issue a press release or public announcement
or otherwise make any disclosure concerning this Agreement and the transactions
contemplated hereby, without prior approval of the others; provided, however,
that nothing in this Agreement shall restrict the Company or any Investor from
disclosing such information (a) that is already publicly available, (b) to the
extent required or appropriate in response to any summons or subpoena or to
comply with applicable law, regulations or the rules of any national securities
exchange or quotation system (provided that the disclosing party will use
commercially reasonable efforts to notify the other parties in advance of such
disclosure under this clause (b) so as to permit the non-disclosing parties, in
the case of a summons or subpoena, seek a protective order or otherwise contest
such disclosure, and the disclosing party will use commercially reasonable
efforts to cooperate, at the expense of the non-disclosing parties, in pursuing
any such protective order) or (c) in connection with any litigation involving
disputes as to the parties' respective rights and obligations hereunder.
SECTION 5.2 Entire Agreement. This Agreement and any other agreement or
instrument to be delivered expressly pursuant to the terms hereof constitute the
entire Agreement between the parties hereto with respect to the subject matter
hereof and supersede all previous negotiations, commitments and writings with
respect to such subject matter.
SECTION 5.3 Assignments; Parties in Interest. Neither this Agreement nor
any of the rights, interests or obligations hereunder may be assigned by any of
the parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto, and nothing herein, express or
implied, is intended to or shall confer upon any person not a party hereto any
right, benefit or remedy of any nature whatsoever under or by reason hereof,
except as otherwise provided herein.
SECTION 5.4 Amendments. This Agreement may not be amended or modified
except by an instrument in writing signed by, or on behalf of, the parties
against whom such amendment or modification is sought to be enforced.
SECTION 5.5 Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience of reference only and do not constitute a
part of and shall not be utilized in interpreting this Agreement.
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SECTION 5.6 Notices and Addresses. Any notice, demand, request, waiver, or
other communication under this Agreement shall be in writing and shall be deemed
to have been duly given on the date of service, if personally served or sent by
facsimile; on the business day after notice is delivered to a courier or mailed
by express mail, if sent by courier delivery service or express mail for next
day delivery; and on the fifth business day after mailing, if mailed to the
party to whom notice is to be given, by first class mail, registered, return
receipt requested, postage prepaid and addressed as follows:
To Company: Bluefly, Inc.
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attn:General Counsel
With a copy to:
Dechert LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Fax: (000) 000-0000
Attn:Xxxxxxx X. Xxxxxxxx, Esq.
To the Investors: To the address set forth on Schedule 1.
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SECTION 5.7 Severability. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal, void
or unenforceable, the remainder of this Agreement will continue in full force
and effect and the application of such provision to other persons or
circumstances will be interpreted so as reasonably to effect the intent of the
parties hereto. The parties further agree to replace such void or unenforceable
provision of this Agreement with a valid and enforceable provision that will
achieve, to the extent possible, the economic, business and other purposes of
such void or unenforceable provision.
SECTION 5.8 Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York, without
regard to conflicts of law principles. The parties agree that the federal and
state courts located in New York, New York shall have exclusive jurisdiction
over any dispute involving this Agreement or the transactions contemplated
hereby, and each party hereby irrevocably submits to the jurisdiction of, and
waives any objection to the laying of venue in, such courts.
SECTION 5.9 Counterparts; Facsimile Signatures. This Agreement may be
executed in one or more counterparts, all of which shall be considered one and
the same agreement and shall become effective when one or more counterparts have
been signed by each of the parties and
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delivered to the other parties, it being understood that all parties need not
sign the same counterpart. This Agreement may be executed by facsimile, and a
facsimile signature shall have the same force and effect as an original
signature on this Agreement.
SECTION 5.10 Expenses. The Company shall reimburse the Investors for their
reasonable legal fees and expenses incurred in connection with the negotiation
of this Agreement and the transactions contemplated hereby. Except as provided
above, all costs and expenses, including, without limitation, fees and
disbursements of counsel, incurred in connection with the negotiation, execution
and delivery of this Agreement and its related documents shall be paid by the
party incurring such costs and expenses, whether or not the closing shall have
occurred.
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IN WITNESS WHEREOF, this Agreement has been duly executed on the date first
set forth above.
BLUEFLY, INC.
By:
---------------------------
Name:
Title:
QUANTUM INDUSTRIAL PARTNERS LDC
By:
---------------------------
Name:
Title:
SFM DOMESTIC INVESTMENTS LLC
By:
---------------------------
Name:
Title:
MAVERICK FUND USA, LTD.
By: Maverick Capital, Ltd.,
Its Investment Manager
By:
---------------------------
Name:
Title:
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MAVERICK FUND, L.D.C.
By: Maverick Capital, Ltd.,
Its Investment Manager
By:
---------------------------
Name:
Title:
MAVERICK FUND II, LTD.
By: Maverick Capital, Ltd.,
Its Investment Manager
By:
---------------------------
Name:
Title:
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SCHEDULE 1
INVESTORS AND SHARE AND NOTE ALLOCATIONS
--------------------------------------------------------------------------------
Aggregate Principal Aggregate Purchase
Name and Address of Investor Amount of Note Price
---------------------------- -------------- ------------------
--------------------------------------------------------------------------------
Quantum Industrial Partners LDC [_______] [_______]
Xxxx Xxxxxxxxx 0
Xxxxxxxxxx
Xxxxxxx
Xxxxxxxxxxx-Xxxxxxxx
with a copy to:
Xxxxx Fund Management LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attn: Xxx Xxxxxxxxxxxx, Esq.
--------------------------------------------------------------------------------
SFM Domestic Investments LLC [_______] [_______]
c/x Xxxxx Fund Management LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attn: Xxx Xxxxxxxxxxxx, Esq.
--------------------------------------------------------------------------------
Maverick Fund USA, Ltd. [_______] [_______]
c/o Maverick Capital, Ltd.
000 Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Facsimile: (000)000-0000
Attn: General Counsel:
--------------------------------------------------------------------------------
Maverick Fund, L.D.C. [_______] [_______]
c/o Maverick Capital, Ltd.
000 Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Facsimile: (000)000-0000
Attn: General Counsel:
--------------------------------------------------------------------------------
Maverick Fund II, Ltd. [_______] [_______]
c/o Maverick Capital, Ltd.
000 Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Facsimile: (000)000-0000
Attn: General Counsel:
--------------------------------------------------------------------------------
TOTAL $[___] $[___]
--------------------------------------------------------------------------------
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SCHEDULE 2.4
CAPITALIZATION
As of the date hereof (except as otherwise provided below), but without
giving effect to the transactions contemplated by this Agreement, the following
equity securities are outstanding and convertible into, or exercisable for
shares of Common Stock:
o Warrants to purchase an aggregate of 1,214,249 shares of Common
Stock are issued and outstanding.
o Options issued to purchase 3,402,560 shares of Common Stock are
issued and outstanding under the Company's 1997 Stock Option Plan,
as amended, and 2000 Stock Option Plan, as amended.
o 9,647,447 shares of Common Stock reserved for issuance upon the
settlement of deferred stock units.
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