EXCHANGE AGREEMENT
Exhibit 99.1
Execution Copy
This Exchange Agreement, dated as of January 13, 2006 (the “Agreement”), is entered
into by and among Bookham, Inc., Delaware corporation (the “Company”), Bookham Technology plc, a
company incorporated under the laws of England and Wales (“Bookham plc”) and the parties listed on
Exhibit A hereto (each, an “Investor”).
Recitals
WHEREAS, each Investor holds an Amended and Restated Series B-1 Senior Secured Note due 2006
issued by Bookham plc, the payment of which and performance of all obligations under which had been
fully and unconditionally guaranteed by the Company, of which the amount of principal thereof is
set forth opposite such Investor’s name on Exhibit A and the security for which has
previously been released by the prior holder thereof (each, a “Note”);
WHEREAS, the Company, Bookham plc and each Investor desire that the Note held by such Investor
be surrendered to the Company for cancellation in exchange for such number of shares of common
stock, $0.01 par value per share, of the Company (the “Common Stock”) as is set forth opposite such
Investor’s name on Exhibit A (the “Shares”) and a warrant in the form attached hereto as
Exhibit B (a “Warrant”) to purchase such number shares of Common Stock is set forth
opposite such Investor’s name on Exhibit A (the “Warrant Shares”); and
WHEREAS, on the date hereof, (1) the Company has paid to Nortel Networks UK Limited (“NNUKL”)
all of the outstanding principal and interest accrued on the Company’s Amended and Restated Series
A-2 Senior Secured Note due 2007 (the “Series A Note”) and the Series A Note has been retired and
cancelled; (2) NNUKL, Nortel Networks Corporation (“Nortel”) and certain of their affiliates (the
“Secured Parties”) have entered into a Release Agreement with the Company, Bookham plc and certain
subsidiaries of Bookham plc providing for the release of certain security interests in favor of
such Secured Parties in certain assets and other property of the Company and its affiliates; (3)
Nortel Networks Limited (“NNL”) and Bookham plc have entered into an Addendum to the Optical
Components Supply Agreement effective November 8, 2002 between NNL and Bookham plc; (4) the
Investors have purchased the Notes from NNUKL pursuant to the Note Purchase Agreement dated as of
the date hereof by and among Nortel, NNUKL, the Company, Bookham plc and the Investors (the “Note
Purchase Agreement”); (5) the Company has entered into a Securities Exchange Agreement with the
holders (the “Holders”) of 7% Senior Unsecured Convertible Debentures of the Company (the
“Debentures”) providing for the conversion and exchange of such Debentures for Common Stock,
warrants to purchase Common Stock and cash (the “2006 Securities Exchange Agreement”); (6) the
Company and the Holders entered into a Registration Rights Agreement providing for the registration
of the shares of Common Stock issuable in such exchange and upon exercise of certain of the
warrants issued to the Holders on a resale registration statement (the “Registration Statement”)
and (7) the Company and Nortel have entered into a Registration
and Lock-Up Agreement providing for the registration of 3,999,999 shares of Common Stock held
by Nortel on the Registration Statement and the lock-up of such shares.
NOW THEREFORE, in consideration of the mutual covenants contained herein and for other
valuable consideration, the receipt of which is hereby acknowledged, the parties hereby agree as
follows:
1. AGREEMENT TO EXCHANGE NOTES.
Pursuant to the terms and conditions set forth in this Agreement, at the Closing (as defined
below), each Investor shall surrender its Note to the Company and, in exchange therefore, the
Company shall issue the Shares and the Warrant to such Investor.
2. CLOSING; DELIVERY; RETIREMENT AND CANCELLATION.
2.1 Closing. The closing of the transactions contemplated by Section 1
above (the “Closing”) shall take place at 10:00 a.m. Boston time on January 13, 2006 at the offices
of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 or such
other time and place as the parties may agree.
2.2 Delivery. At the Closing, subject to the terms and conditions hereof,
each Investor shall deliver its Note to the Company and, in exchange therefor, the Company shall
issue and deliver to such Investor (i) a stock certificate representing the Shares and (ii) a
Warrant, each registered in the name of such Investor. Immediately following the Closing, the
Company shall take such actions relating to the reissuance of unlegended stock certificates
representing the Shares and unlegended Warrants as is described in Section 5.2.
2.3 Retirement and Cancellation. The Notes, when surrendered to the Company
for exchange in accordance with this Agreement, shall be immediately retired and canceled.
Effective as of the Closing, all obligations of the Company, Bookham plc and its subsidiaries under
the Notes shall be deemed satisfied in full and, effective as of the Closing, the Investors hereby
release the Company, Bookham plc and its subsidiaries from all liability therefor.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND BOOKHAM PLC.
3.1 Authorization. Each of the Company and Bookham plc has all requisite
corporate power and authority to execute and deliver this Agreement and to execute and deliver any
and all instruments necessary or appropriate in order to effectuate fully the terms and conditions
contained herein and all related transactions and to perform its respective obligations hereunder.
This Agreement has been duly authorized by all necessary action on the part of the Company and
Bookham plc, has been duly executed and delivered by the Company and Bookham plc, and constitutes
the valid and legally binding obligation of the Company and Bookham plc enforceable in accordance
with its terms and conditions.
3.2 Valid Issuance of the Shares and Warrant Shares. The Shares, upon
issuance pursuant to the terms hereof, and the Warrant Shares, when issued upon exercise of the
Warrants in accordance with their terms, will be duly and validly issued, fully paid and
non-assessable
and, assuming the accuracy of the Investors’ representations in this Agreement at the time of
each such issuance, issued in compliance with all applicable securities laws.
3.3 No Conflicts; Approvals and Consents.
(a) Neither the execution or delivery by the Company or Bookham plc of this Agreement, the
consummation of the transactions contemplated hereby, nor the compliance by the Company or Bookham
plc with any of the provisions hereof will (i) conflict with, violate or result in the breach of,
any provision of the certificate of incorporation or by-laws of the Company or the memorandum or
articles of association of Bookham plc; (ii) conflict with, violate, or result in the breach by the
Company or Bookham plc of any applicable law; (iii) conflict with, violate, result in the breach or
termination of, or constitute a default or give rise to any right of termination or acceleration or
right to increase the obligations or otherwise modify the terms under any contract, agreement or
understanding to which the Company or Bookham plc is a party or by which the Company or Bookham plc
or any of its assets is bound; or (iv) result in the creation of any lien upon any of the assets of
the Company or Bookham plc, in each case, with respect to the foregoing, except for such conflicts,
violations, breaches, terminations, defaults, rights or liens that have not had and would not
reasonably by expected to have, individually or in the aggregate, a material adverse effect on the
Company or Bookham plc.
(b) No consent, approval or authorization of, permit from, or declaration, filing or
registration with, any governmental authority or any other person is required to be made or
obtained by the Company or Bookham plc in connection with the execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated hereby, except where the
failure to obtain such consent, approval, authorization or permit, or to make such declaration,
filing or registration, has not had and would not reasonably be expected to have, individually or
in the aggregate, a material adverse effect on the Company or Bookham plc, and except for such
filings required to be made after the Closing under applicable federal and state securities laws.
3.4 Reports; Financial Statements.
(a) As of the respective dates of their filing with the Commission, all reports, together
with any amendments thereto, filed by the Company with the Securities and Exchange Commission (the
“Commission”) under Section 13 of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) since December 31, 2004 (the “SEC Reports”), complied in all material respects with the
applicable requirements of the Exchange Act and the rules and regulations of the Commission
promulgated thereunder. The SEC Reports did not at the time they were filed with the Commission
contain any untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(b) Each of the consolidated financial statements (including, in each case, any related notes
and schedules) contained in the SEC Reports at the time filed (i) complied as to form in all
material respects with applicable accounting requirements and the published rules and regulations
of the Commission with respect thereto, (ii) were prepared in accordance with
generally accepted accounting principles applied on a consistent basis throughout the periods
involved (except as may be indicated in the notes to such financial statements or, in the case of
unaudited statements, as permitted by the Commission on Form 10-Q under the Exchange Act) and (iii)
fairly presented the consolidated financial position of the Company and its subsidiaries as of the
dates thereof and the consolidated results of its operations and cash flows for the periods
indicated, consistent with the books and records of the Company and its subsidiaries, except that
the unaudited interim financial statements were subject to normal and recurring year-end
adjustments which were not expected to be material in amount.
3.5 Absence of Certain Changes or Events. Except as disclosed in the SEC
Reports, since October 1, 2005, there has not been any event, change, circumstance, development or
effect that, individually or in the aggregate, has had, or is reasonably likely to have, any
material adverse change, event, circumstance or development with respect to, or any material
adverse effect on, (i) the business, assets, liabilities, capitalization, condition (financial or
other), or results of operations of the Company and its subsidiaries, taken as a whole or (ii) the
ability of the Company or Bookham plc to consummate the transactions contemplated by this
Agreement.
3.6 Disclosure. Except for the transactions contemplated by this Agreement,
the Company confirms that neither it nor any other person acting on its behalf has provided any of
the Purchasers or their agents or counsel with any information that constitutes material non-public
information.
3.7 Listing. The Company has filed an additional listing application with
The Nasdaq Stock Market, Inc. listing the Shares and the shares of Common Stock issuable upon
exercise of the Warrants.
4. REPRESENTATIONS AND WARRANTIES OF THE INVESTORS.
Each Investor hereby represents and warrants to the Company and Bookham plc as follows:
4.1 Investment. The Investor is acquiring the Shares, its Warrant and the
Warrant Shares (collectively, the “Securities”) for its own account for investment and not with a
view to, or for sale in connection with, any distribution thereof, nor with any present intention
of distributing or selling the same; provided, however that by making the
representations herein, the Investor does not agree to hold the Securities for any minimum or other
specific term and reserves the right to dispose of the Securities at any time in accordance with or
pursuant to a registration statement or an exemption under the Securities Act of 1933, as amended
(the “Securities Act”).
4.2 Authority. The Investor has full power and authority to enter into and
to perform this Agreement in accordance with its terms. Such Investor has not been organized,
reorganized or recapitalized specifically for the purpose of investing in the Company.
4.3 Experience. The Investor has reviewed the representations concerning
the Company contained in this Agreement, and has made inquiry concerning the Company, its business
and its personnel; the officers of the Company have made available to the Investor any and all
written information which it has requested and have answered to the Investor’s
satisfaction all inquiries made by the Investor; and the Investor has sufficient knowledge and
experience in finance and business that it is capable of evaluating the risks and merits of its
investment in the Company and the Investor is able financially to bear the risks thereof.
4.4 Accredited Investor. The Investor is an “accredited investor” within
the meaning of Regulation D under the Securities Act.
4.5 Securities Not Registered. The Investor understands that the Securities
have not been registered under the Securities Act and that such Securities must continue to be held
by the Investor unless a subsequent disposition thereof is registered under the Securities Act or
is exempt from such registration.
4.6 Ownership. The Investor acquired its Note to be tendered by it at the
Closing from NNUKL pursuant to the Note Purchase Agreement, and has not placed or permitted to be
placed on such Note any liens, encumbrances or adverse claims of any kind whatsoever as of the
Closing.
4.7 Independent Investment. No Purchaser has agreed to act with any other
Purchaser for the purpose of acquiring, holding, voting or disposing of the Securities issued
hereunder for purposes of Section 13(d) under the Exchange Act, and each Purchaser is acting
independently with respect to its investment in the Securities.
5. TRANSFER; LEGENDS.
5.1 Transfer Restrictions. The Securities shall not be sold or transferred
unless either (i) they first shall have been registered under the Securities Act, or (ii) the
Company first shall have been furnished with an opinion of legal counsel, reasonably satisfactory
to the Company, to the effect that such sale or transfer is exempt from the registration
requirements of the Securities Act.
5.2 Legend. Each certificate representing Shares and the Warrant shall bear
a legend substantially in the following form:
“The shares represented by this certificate have not been registered under
the Securities Act of 1933, as amended, and may not be offered, sold or
otherwise transferred, pledged or hypothecated unless and until such shares
are registered under such Act or an opinion of counsel satisfactory to the
Company is obtained to the effect that such registration is not required.”
Immediately after the Closing, the Company shall cause its transfer agent to remove the foregoing
legend from the certificates representing any Shares and shall remove the foregoing legend from the
Warrant and shall cause Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP to render such legal opinions to
the Company’s transfer agent as may be required to effect such legend removal (subject to receipt
by the Company of customary representations and other documentation reasonably acceptable to the
Company in connection therewith) substantially in the form attached hereto as Exhibit C.
6. RIGHT OF PARTICIPATION.
6.1 Offered Securities. The Company will not, directly or indirectly,
effect a Subsequent Placement (as defined in Section 6.3), unless in each such case the Company
shall have first offered to sell to the Investors at least twenty five percent (25%) of the
securities being offered in such Subsequent Placement (the securities being offered to the
Investors being referred to herein as the “Offered Securities”); provided, however, the Company’s
obligation under this Section 6.1 to first offer to sell the Investor at least twenty-five percent
(25%) of the securities being offered in such Subsequent Placement shall terminate on the earlier
of (i) January 13, 2010 or (ii) the date on which the aggregate value of the Offered Securities
(such value to be determined by reference to the price contained in the Offer (as defined below))
equals $12.5 million (the “Capped Amount”). The Company shall offer to sell to each Investor (A)
such Investor’s Pro Rata Share of the Offered Securities (the “Basic Amount”), and (B) such
additional portion of the Offered Securities as such Investor shall indicate it will purchase
should the other Investors subscribe for less than their Basic Amounts (the “Undersubscription
Amount”), at a price and on such other terms as shall have been specified by the Company in writing
delivered to such Investor (the “Offer”), which Offer by its terms shall remain open and
irrevocable for a period of not less than ten (10) Business Days from such Investor’s receipt of
the terms of the Offer in writing (the “Offer Period”).
6.2 Offered Securities in Excess of the Capped Amount. In the event that
the Company makes an offer to any Investor or group of Investors (which group is less than all of
the Investors) to purchase any of the securities being offered by the Company in a Subsequent
Placement that is in excess of the Capped Amount on or before January 13, 2010 (an “Uncapped
Offer”), the Company shall be required to also make the Uncapped Offer to all of the Investors.
The Uncapped Offer shall be made to all of the Investors in accordance with the terms of this
Section 6 as if it were an Offer.
6.3 Subsequent Placement. A “Subsequent Placement” shall mean the issuance,
sale or exchange of (1) any shares of Common Stock, (2) any other equity security of the Company,
including without limitation shares of preferred stock, (3) any other security of the Company which
by its terms is convertible into or exchangeable or exercisable for any equity security of the
Company, or (4) any option, warrant or other right to subscribe for, purchase or otherwise acquire
any such security described in the foregoing clauses (1) through (3); provided, however, that a
Subsequent Placement shall not be deemed to include any (i) securities acquired under this
Agreement, including upon the exercise of Warrants; (ii) securities issued or acquired pursuant to
the 2006 Securities Exchange Agreement, including upon the conversion of Debentures or exercise of
any warrants issued thereunder; (iii) securities issued upon conversion of the Debentures or
exercise of warrants to purchase Common Stock issued pursuant to the Securities Purchase Agreement
dated December 20, 2004 between the Company and the investors named therein; (iv) shares of Common
Stock issuable or issued to (x) employees, consultants or directors from time to time either
directly or upon the exercise of options, in such case granted or to be granted by the Board of
Directors, pursuant to one or more stock option plans or restricted stock plans or stock purchase
plans in effect as of the Closing Date or approved by the Board of Directors including a majority
of the independent members of the Board of Directors, or (y) vendors pursuant to warrants to
purchase Common Stock that are outstanding on the date hereof or issued hereafter, provided such
issuances are approved by the Board of Directors and (z) up to
an aggregate of 489,080 shares of Common Stock issuable upon the achievement of certain
revenue milestones pursuant to the Asset Purchase Agreement dated as of July 3, 2003 by and among
Bookham Technology plc, Bookham Technology, Inc. and Cierra Photonics, Inc. and the Agreement and
Plan of Merger dated as of September 24 2003 by and among Xxxxxx Optics, Inc., Bookham Technology
plc, Bookham Technology, Inc. and Xxxxxx Acquisition Corp.; (v) any borrowings, direct or indirect,
from financial institutions by the Company that are approved by the Board of Directors, including
any type of loan or payment evidenced by any type of Debt instrument, provided the value of the
equity portion of any such borrowings, including warrants, options or other rights to purchase
capital stock and other interests convertible into capital stock of the Company, does not exceed
ten percent (10%) of such borrowing; (vi) shares of Common Stock issued in connection with any
stock split, stock dividend or recapitalization of the Company; (vii) shares of capital stock of
the Company issued in connection with the merger with or acquisition by the Company of any
corporation or other entity or substantially all of the assets of any corporation or other entity
or division thereof occurring after the Effective Date; (viii) shares of Common Stock issued upon
the exercise or conversion of any securities of the Company outstanding on the date hereof; (ix)
shares of Common Stock issued to a Person in connection with a joint venture, strategic alliance or
other commercial relationship with such Person relating to the operation of the Company’s business
the primary purpose of which is not to raise equity capital; and (x) securities issued pursuant to
a bona fide firm commitment underwritten public offering with a nationally recognized underwriter.
6.4 Notice of Acceptance. Each Investor that wishes to accept the Offer
shall deliver written notice thereof (a “Notice of Acceptance”) to the Company prior to the
expiration of the Offer Period, specifying the amount of such Investor’s Basic Amount that the
Investor elects to purchase and, if such Investor elects to purchase all of its Basic Amount, the
Undersubscription Amount that Investor elects to purchase. If the aggregate of the Basic Amounts
subscribed for by all Investors is less than the total Offered Securities, each Investor who has
indicated in its Notice of Acceptance that it wishes to purchase Undersubscription Amounts shall be
entitled to purchase all Undersubscription Amounts it has subscribed for; provided, however, that
if the aggregate of the Undersubscription Amounts subscribed for exceed the difference between the
Offered Securities and the Basic Amounts subscribed for (the “Available Undersubscription Amount”),
each Investor who has subscribed for any Undersubscription Amount shall be entitled to purchase
only that portion of the Available Undersubscription Amount as the Undersubscription Amount
subscribed for by such Investor bears to the total Undersubscription Amounts subscribed for by all
Investors, subject to rounding by the Board of Directors to the extent it deems reasonably
necessary.
6.5 Permitted Sales Of Refused Securities. In the event that Notices of
Acceptance are not timely delivered by the Investors in respect of all the Offered Securities, the
Company shall have forty-five (45) days from the expiration of the Offer Period to close the sale
of all or any part of such Offered Securities as to which a Notice of Acceptance has not been given
by an Investor (the “Refused Securities”) to the Person or Persons specified in the Offer, but only
upon terms and conditions, including, without limitation, unit price and interest rates (if
applicable), which are, in the aggregate, no more favorable to such other Person or Persons or less
favorable to the Company than those set forth in the Offer.
6.6 Reduction in Amount of Offered Securities. In the event that the
Company proposes to sell less than all the Refused Securities (any such sale to be in the manner
and on the terms specified in paragraph (c) above), then each Investor may, at its option and in
its sole and absolute discretion, reduce the number or other units of the Offered Securities
specified in its Notice of Acceptance to an amount which shall be not less than the amount of the
Offered Securities which such Investor elected to purchase pursuant to paragraph (b) above
multiplied by a fraction, (A) the numerator of which shall be the amount of Offered Securities
which the Company actually proposes to sell, and (B) the denominator of which shall be the amount
of all Offered Securities. In the event that any Investor so elects to reduce the number or amount
of Offered Securities specified in its Notice of Acceptance, the Company may not sell or otherwise
dispose of more than the reduced amount of the Offered Securities until such securities have been
offered to the Investors in accordance herewith.
6.7 Closing of Offer. Upon each closing of the purchase and sale of Offer
Securities, the Investor shall purchase from the Company, and the Company shall sell to the
Investor the number of Offered Securities specified in the Notices of Acceptance, as reduced
pursuant to paragraph (d) above if the Investors have so elected, upon the terms and conditions
specified in the Offer. The purchase by the Investors of any Offered Securities is subject in all
cases to the preparation, execution and delivery by the Company and the Investors of a purchase
agreement relating to such Offered Securities on the same terms and conditions applicable to other
Persons purchasing the Offered Securities.
6.8 Further Sale. In each case, any Offered Securities not purchased by the
Investors or other Person or Persons in accordance herewith may not be sold or otherwise disposed
of by the Company until they are again offered to the Investors under the procedures specified
herein.
7. MISCELLANEOUS.
7.1 Parties in Interest. All covenants, agreements, representations,
warranties and undertakings in this Agreement made by and on behalf of any of the parties hereto
shall bind and inure to the benefit of the respective successors and permitted assigns of the
parties hereto.
7.2 Amendments and Waivers. Except as set forth in this Agreement, changes
in or additions to this Agreement may be made, or compliance with any term, covenant, agreement,
condition or provision set forth herein may be omitted or waived (either generally or in a
particular instance and either retroactively or prospectively), upon the written consent of (i) the
Company and (ii) the Investor.
7.3 Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York (without reference to the conflicts of
law provisions thereof).
7.4 Notices. All notices, requests, consents, and other communications
under this Agreement shall be in writing and shall be deemed delivered (i) two business days after
being sent by registered or certified mail, return receipt requested, postage prepaid or (ii) one
business day after being sent via a reputable nationwide overnight courier service guaranteeing
next business day delivery, in each case to the intended recipient as set forth below:
(a) If to the Company or Bookham plc, at Bookham, Inc., 00 Xxxxxx Xxxx Xxx, Xxxxxx,
XX X0X 0X0, Xxxxxx, Attention: General Counsel, or at such other address or addresses as may have
been furnished in writing by the Company to the Investor, with a copy to Xxxxxx X. Xxxx, Esq.,
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000; and
(b) If to an Investor, at the address set forth opposite such Investor’s name on
Exhibit A.
(c) Any party may give any notice, request, consent or other communication under
this Agreement using any other means (including, without limitation, personal delivery, messenger
service, telecopy, first class mail or electronic mail), but no such notice, request, consent or
other communication shall be deemed to have been duly given unless and until it is actually
received by the party for whom it is intended. Any party may change the address to which notices,
requests, consents or other communications hereunder are to be delivered by giving the other
parties notice in the manner set forth in this Section.
7.5 Entire Agreement. This Agreement and the exhibits hereto together with
any other agreement referred to herein constitute the entire agreement between the Company and the
Investor with respect to the subject matter hereof. This Agreement supersedes all prior agreements
between the parties with respect to the subject matter hereof.
7.6 Severability. The invalidity or unenforceability of any provision
hereof shall in no way affect the validity or enforceability of any other provision.
7.7 Counterparts; Facsimile Signatures. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original, and all of which shall
constitute one and the same document. This Agreement may be executed by facsimile signatures.
7.8 Registration Rights. The Company hereby agrees to offer each Investors
the right to include the shares of Common Stock issuable upon exercise of the Warrants in the
Registration Statement for resale registration subject to such Investor providing the information
and representations substantially similar to those required of the Holders in the Registration
Rights Agreement.
IN WITNESS WHEREOF, this Exchange Agreement has been executed by the parties hereto as of the
day and year first written above
| COMPANY: | ||||||
| BOOKHAM, INC. | ||||||
| By: | /s/ Xxxxxxx Xxxxx
|
|||||
| Name: Xxxxxxx Xxxxx Title: Chief Financial Officer |
||||||
| BOOKHAM PLC: | ||||||
| BOOKHAM TECHNOLOGY PLC | ||||||
| By: | /s/ Xxxxxxx Xxxxx
|
|||||
| Name: Xxxxxxx Xxxxx Title: Chief Financial Officer |
||||||
| INVESTORS: | ||||||
| Capital Ventures International | ||||||
| By: Heights Capital Management, Inc. | ||||||
| its authorized agent | ||||||
| By: | /s/ Xxxxxx Xxxxxxxx
|
|||||
| Name: Xxxxxx Xxxxxxxx Title: Investment Manager |
||||||
| Magnetar Capital Master Fund, Ltd. | ||||||
| By: Magnetar Financial LLC | ||||||
| Its: Investment Manager | ||||||
| By: | /s/ Xxxx Xxxxx
|
|||||
| Name: Xxxx Xxxxx Title: General Counsel |
||||||
| Portside Growth & Opportunity Fund | ||||||
| By: | /s/ Xxxxxxx Xxxxx
|
|||||
| Name: Xxxxxxx Xxxxx Title: Authorized Signatory |
||||||
| Satellite Strategic Finance Associates, LLC | ||||||
| By: Satellite Asset Management, L.P., its Manager | ||||||
| By: | /s/ Xxxxx Xxxxxxx
|
|||||
| Name: Xxxxx Xxxxxxx Title: General Counsel |
||||||
| SDS Capital Group SPC, Ltd. | ||||||
| By: | /s/ Xxxxx Xxxxx
|
|||||
| Name: Xxxxx Xxxxx Title: General Counsel |
||||||
| Smithfield Fiduciary LLC | ||||||
| By: | /s/ Xxxx X. Chill
|
|||||
| Name: Xxxx X. Chill Title: Authorized Signatory |
||||||
| Vicis Capital Master Fund | ||||||
| By: Vicis Capital, LLC | ||||||
| By: | /s/ Xxxx X. Xxxxxxxx
|
|||||
| Name: Xxxx X. Xxxxxxxx Title: Member |
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Exhibit A
| Principal Amount of | ||||||||||||
| Series B-1 Note | Number of Shares of | Number of Warrant | ||||||||||
| Investor | Exchanged | Common Stock | Shares | |||||||||
Capital Ventures
International |
$ | 1,000,000 | 198,020 | 26,527 | ||||||||
Magnetar Capital Master
Fund, Ltd. |
$ | 12,500,000 | 2,475,248 | 331,593 | ||||||||
Portside Growth &
Opportunity Fund |
$ | 2,125,000 | 420,792 | 56,371 | ||||||||
Satellite Strategic
Finance Associates, LLC |
$ | 2,000,000 | 396,040 | 53,055 | ||||||||
SDS Capital Group SPC,
Ltd. |
$ | 2,000,000 | 396,040 | 53,055 | ||||||||
Smithfield Fiduciary LLC |
$ | 2,125,000 | 420,792 | 56,371 | ||||||||
Vicis Capital Master Fund |
$ | 4,110,000 | 813,861 | 109,028 | ||||||||
Total |
$ | 25,860,000 | 5,120,793 | 686,000 | ||||||||
