EXHIBIT 2.4
ESCROW AND INDEMNITY AGREEMENT
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THIS ESCROW AND INDEMNITY AGREEMENT (this "Agreement") is made and
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entered into as of January 18, 2000, by and among Xxxxxxx.xxx, Inc., a Delaware
corporation ("Petopia"), the stockholders listed on Exhibit A hereto
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(collectively the "Stockholders"), the warrant holders listed on Exhibit B (the
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"Warrant Holders"), and Chase Manhattan Bank and Trust Company, N.A., as escrow
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agent (the "Escrow Agent"). For purposes of this Agreement, the Stockholders
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and the Warrant Holders are collectively referred to herein as the "Holders".
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RECITALS
A. WHEREAS, pursuant to the provisions of that certain Agreement and Plan
of Merger dated as of December 29, 1999 (the "Merger Agreement"), by and among
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Petopia, ICOD Acquisition Corp., a Delaware corporation and wholly owned
subsidiary of Petopia ("Petopia Sub"), and C/R Catalog Corp. (d/b/a In the
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Company of Dogs), a Delaware corporation (the "Company"), the parties thereto
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intend to effect the merger of the Company with and into the Petopia Sub (the
"Merger"). Capitalized terms used herein and not otherwise defined herein
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shall have the meanings ascribed to them in the Merger Agreement.
B. WHEREAS, under the terms of the Merger Agreement, a portion of the
shares (the "Escrow Shares") of the Series E Preferred Stock of Petopia, par
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value $0.0001 per share (the "Petopia Series E Preferred"), to be issued in the
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Merger in exchange for shares of the Company's capital stock and a portion of
the shares (the "Warrant Shares") of Petopia Series E Preferred to be issued
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upon the exercise of the Common Stock Purchase Warrants Series A and the Common
Stock Purchase Warrants Series B (the "Common Stock Purchase Warrants") are to
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be subject to an escrow account with the Escrow Agent. Such shares of Petopia
Series E Preferred will remain subject to any indemnification claims Petopia may
have under this Agreement and Article VII of the Merger Agreement, until
released by the Escrow Agent pursuant to the terms hereof.
C. WHEREAS, the Merger Agreement provides that the Escrow Agent shall
hold and administer the Escrow Shares so deposited and will administer the
Warrant Shares in accordance with the terms of this Agreement.
D. WHEREAS, the execution and delivery of this Agreement in the form
hereof is a condition precedent to the obligations of the parties under the
Merger Agreement; and
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties and covenants herein contained, and other good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereto intending to be forever bound by the terms set
forth herein, do hereby agree as follows:
Article I
ESCROW FUND AND INDEMNITY
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1.1 Delivery of Shares. Escrow Agent hereby acknowledges the receipt of
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201,457 shares of Petopia Series E Preferred from or on behalf of the
Stockholders, which shares shall constitute the Escrow Shares. 6,970 shares
represented by the Common Stock Purchase Warrants shall also be subject to the
terms of this Agreement, and shall constitute the Warrant Shares. The Escrow
Shares shall be considered to have been deposited herein by the Stockholders and
such shares of Petopia Series E Preferred and all other securities or other
property issued on conversion thereof or in exchange therefor, including all
dividends and distributions made thereon and all interest earned thereon,
together with the Warrant Shares are hereinafter called the "Escrow Fund". For
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purposes of this Agreement, the Escrow Shares and the Warrant Shares are
collectively referred to herein as the "Indemnity Shares."
1.2 Consent of Holders.
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(a) By virtue of the approval by the Holders of the Merger Agreement and
the Merger, each of the Holders have, without any further act of any Holder,
consented to: (a) the establishment of the Escrow Fund to secure the
indemnification obligations of the Holders under Article VII of the Merger
Agreement in the manner set forth therein, (b) the decision of a Majority in
Interest (as defined in Section 4.1 hereof) being binding on each Holder with
respect to the subject matter hereof, and for the purpose of taking of any and
all actions and the making of any decisions required or permitted to be taken or
made by them under this Agreement, and (c) all of the other terms, conditions
and limitations set forth in this Agreement.
1.3 Heldback Shares. During the term of this Agreement, each
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Warrantholder agrees not to exercise his or her Common Stock Purchase Warrants
with respect to the number of shares of Petopia Series E Preferred Stock as set
forth opposite his or her name on Exhibit B attached hereto (the "Heldback
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Shares"). Each time the Escrow Agent releases Escrow Shares to the Stockholders
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pursuant to Section 2.3 hereof, the number of Heldback Shares will be reduced by
the following fraction, the numerator of which is equal to the number of Escrow
Shares so released to the Stockholders and the denominator of which is equal to
the total number of Escrow Shares originally deposited in Escrow (subject to
adjustment for stock splits, recapitalization and like actions). Upon each
release, if any, of Indemnity Shares to Petopia in satisfaction of Claims
pursuant to Section 2.1 hereof, the number of shares for which each Common Stock
Purchase Warrant is exercisable shall be permanently reduced by the following:
the number of Heldback Shares of each Common Stock Purchase Warrant multiplied
by a fraction, the numerator of which is equal to the number of Escrow Shares
released to Petopia and the denominator of which is equal to the total number of
Escrow Shares originally deposited into Escrow (subject to adjustment for stock
splits, recapitalization and like actions). Each Warrantholder acknowledges
that such Warrantholder simultaneously with the execution of this Agreement has
delivered certificates for his or her Common Stock Purchase Warrants to Petopia
for purposes of being legended reflecting the above.
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1.4 Holder Indemnity. For a period of eighteen months from the date
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hereof, each of the Holders hereby agrees to severally (and not jointly)
indemnify, save and keep each Petopia Indemnitee harmless against and from all
Damages sustained or incurred by any Petopia Indemnitee, as a result of or
arising out of any inaccuracy in or breach of any representation or warranty
made by the Company or any Holder to Petopia in Section 4.2 of the Merger
Agreement or Sections 1(d) and 1(f) of the Rep. Letter (as defined in the Merger
Agreement). During the first six months after the Effective Time, Petopia shall
first make any Claim for breach of Section 4.2 of the Merger Agreement or
Sections 1(d) and 1(f) of the Rep. Letter against the Escrow Fund pursuant to
the procedures set forth in this Agreement until the Escrow Fund has been fully
depleted, at which time, Petopia shall be entitled to proceed directly against
the Holders for any unsatisfied portion of any Claim for a breach of Section 4.2
of the Merger Agreement or Sections 1(d) and 1(f) of the Rep. Letter. The
terms, conditions and limitations of such indemnification otherwise shall be as
set forth in Article VII of the Merger Agreement except that the Survival Period
shall end eighteen months from the Effective Time. In all events, the Holders
liability in the aggregate pursuant to this Section 1.4 shall not exceed
$1,166,080 whether paid from the Indemnity Shares or directly from the Holders
and each Holder's liability shall not exceed each Holder's Proportionate
Interest of such aggregate amount.
Article II
COLLATERAL SECURITY, DISBURSEMENT OF COLLATERAL;
RELEASE OF ESCROW
2.1 Collateral Security. The Holders have agreed in Article VII of the
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Merger Agreement to indemnify and hold harmless the Petopia Indemnitees from and
against specified losses. The Escrow Fund shall be security for this indemnity
obligation of the Holders, subject to the limitations, and in the manner
provided, in this Agreement and the Merger Agreement.
2.2 Petopia's Claims.
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(a) At any time (or from time to time), Petopia may give written notice (a
"Claim Notice") to the Holders and the Escrow Agent that Petopia claims all or
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any part of the Indemnity Shares (each a "Claim") in satisfaction of any Damages
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suffered by Petopia prior to July 18, 2000 for which the Holders are obligated
to indemnify Petopia pursuant to Article VII of the Merger Agreement. The Claim
Notice shall set forth in reasonable detail (i) a statement that Petopia has
paid or incurred or reasonably anticipates that it will incur Damages relating
to Claims that arose prior to the expiration of the Survival Period that on a
cumulative basis with all prior Damages exceed $200,000; (ii) if applicable, the
item or items of Damages giving rise to the Claim and the date each such Damage
was paid or incurred, or the basis for such anticipated liability prior to the
expiration of the Survival Period; (iii) if applicable, the nature of the
misrepresentation, breach of warranty or covenant in the Merger Agreement or
other document to which such item or items are related; and (iv) the amount of
the Claim (hereinafter referred to as the "Claim Amount").
(b) Upon receipt of a Claim Notice, a Majority in Interest of the Holders
shall have thirty (30) days to dispute the Claim by delivering written notice to
Petopia and the Escrow
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Agent specifying in reasonable detail the basis for the dispute, the names of
the Holders disputing the Claim and the number of shares of Petopia Series E
Preferred beneficially owned by such Holders (a "Dispute Notice").
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(c) If (i) a Majority in Interest of the Holders approve all or a part of
the Claim Amount, or (ii) upon the expiration of the thirty (30) day period
referred to in Section 2.2(b), a Dispute Notice has not been delivered to the
Escrow Agent, the Escrow Agent shall release to Petopia that number of Indemnity
Shares equal to the quotient of (x) the Claim Amount (or such part thereof which
is approved by a Majority in Interest of the Holders and not disputed) and (y)
$5.6061 (the "Series E Price"). The relative number of Escrow Shares and
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Warrant Shares to be released to Petopia shall be based on the proportions of
Escrow Shares and Warrant Shares set forth as Exhibit C attached hereto. The
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Escrow Agent shall give written notice to Petopia and the Holders of the number
of Escrow Shares and Warrant Shares released. The Escrow Agent shall deliver to
Petopia the Escrow Shares so released.
(d) If, within the thirty (30) day period referred to in Section 2.2(b), a
Majority in Interest of the Holders shall, in good faith, deliver a Dispute
Notice to Petopia and the Escrow Agent, Petopia and a Majority in Interest of
the Holders shall undertake to obtain as promptly as possible a final resolution
of such Claim. If Petopia and a Majority in Interest of the Holders are unable
to resolve a dispute within thirty (30) days after the delivery to Petopia and
the Escrow Agent of a Dispute Notice, then Petopia and a Majority in Interest of
the Holders shall jointly submit their dispute to an independent and impartial
arbitrator (the "Arbitrator") for resolution. The Arbitrator shall be selected
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as follows: Petopia shall select an appointing arbitrator and a Majority in
Interest of the Holders shall select an appointing arbitrator, and the two
appointing arbitrators so selected shall mutually appoint the Arbitrator who
shall be a nationally recognized accounting firm not acting for Petopia or any
of the Holders; provided, however, that if either party fails to select an
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appointing arbitrator within thirty (30) days after the expiration of the thirty
(30) day period referred to in this Section 2.2(d), the appointing arbitrator
selected by the other party shall serve as the Arbitrator if such arbitrator is
a nationally recognized accounting firm; otherwise, such arbitrator shall select
the Arbitrator. The Arbitrator's determination as to a dispute shall be final
and binding on the parties hereto. Petopia shall pay the fees and expenses of
the Arbitrator.
(e) Upon the delivery of any of the following to the Escrow Agent, the
Escrow Agent shall promptly release to Petopia from the Escrow that number of
Indemnity Shares equal to the following (the number of Escrow Shares and Warrant
Shares to be so released shall be allocated in accordance with Section 1.3
hereof and which number shall be set forth in the following notice):
(i) a joint direction executed by a Majority in Interest of the
Holders and Petopia directing the Escrow Agent to pay a specified amount to
Petopia divided by the Series E Price; or
(ii) a direction letter executed by the Arbitrator directing the
Escrow Agent to pay a specified amount to Petopia divided by the Series E Price.
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2.3 Release and Transfer of Escrow Fund.
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(a) On July 18, 2000, the Escrow Agent is hereby authorized and directed to
release to the Holders according to their Proportionate Interest (as defined
herein) all Indemnity Shares subject to the Escrow after the satisfaction of
Petopia's Claims pursuant to Section 2.1 hereof less the aggregate of: (i) that
portion of the Indemnity Shares as shall be required to satisfy the sum of all
Claims made in good faith then pending, whether or not payment of such Claims is
being disputed by a Majority in Interest of the Holders; and (ii) that portion
of any unpaid reimbursement expenses payable to Petopia pursuant to Section 5.1
hereof. For purposes of this Agreement, the "Proportionate Interest" of each
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Holder shall be as set forth on Exhibit A hereto.
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(b) The Escrow Agent shall release to the Holders according to their
Proportionate Interests that portion of the Escrow Fund which was withheld by
the Escrow Agent pursuant to Section 2.3(a) promptly upon the delivery to the
Escrow Agent of a joint written direction to that effect from Petopia and a
Majority in Interest of the Holders.
(c) Promptly upon final resolution and payment of all Claims outstanding as
provided in Section 2.2 hereof, the balance of the Escrow Fund then remaining,
if any, shall be released to the Holders according to their Proportionate
Interests.
Article III
ESCROW AGENT
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3.1 Compensation. All fees of the Escrow Agent, as provided on Exhibit D
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attached hereto, and all reasonable expenses, disbursements and advances
incurred or paid by the Escrow Agent (including, without limitation, reasonable
attorneys' fees) shall be paid by Petopia.
3.2 Legal Counsel. If the Escrow Agent is joined into any litigation
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involving the Escrow Fund or this Agreement, the Escrow Agent shall have the
right to retain counsel and shall have a lien on the property deposited
hereunder for any and all reasonable costs, attorneys' and solicitors' fees,
charges, disbursements, and expenses incurred in connection with such
litigation; and shall be entitled to reimburse itself therefor out of the
property deposited hereunder, and if it shall be unable to reimburse itself from
the property deposited hereunder, Petopia agrees to pay to the Escrow Agent on
demand, its reasonable charges, counsel and attorneys' fees, disbursements, and
expenses in connection with such litigation.
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3.3 Resignation. The Escrow Agent reserves the right to resign at any
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time by giving written notice of resignation to Petopia and a Majority in
Interest of the Holders, specifying the effective date of such resignation.
Within thirty (30) days after receiving such notice, Petopia and a Majority in
Interest of the Holders agree to appoint a successor escrow agent to which the
Escrow Agent will distribute the property then held hereunder, less the Escrow
Agent's fees, costs and expenses. If a successor escrow agent has not been
appointed and has not accepted such appointment by the end of the thirty (30)
day period, the Escrow Agent may apply to a court of competent jurisdiction for
the appointment of a successor Escrow Agent, and the costs, expenses and
reasonable attorneys' fees which are incurred in connection with such a
proceeding shall be paid by Petopia. The Escrow Agent shall continue to serve
as escrow agent hereunder until its successor accepts the escrow and receives
the Escrow Fund.
3.4 Liability. The Escrow Agent undertakes to perform only such duties as
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are specifically set forth herein. The Escrow Agent, if acting or refraining
from acting in good faith, shall not be liable for any mistake of fact or error
in judgment by it or for any acts or omissions by it of any kind unless caused
by its willful misconduct or gross negligence, and shall be entitled to rely
conclusively upon (i) any written notice, instrument or signature believed by it
to be genuine and to have been signed or presented by the proper party or
parties duly authorized to do so, and (ii) the advice of counsel retained by it.
Petopia shall indemnify the Escrow Agent for any damages it incurs for its
acting or refraining from acting in good faith hereunder, which damages were not
caused by its willful misconduct or gross negligence. The Escrow Agent is not
responsible for any of the terms and/or conditions of the Merger Agreement and
may rely exclusively on the directions of the parties as set forth in this
Agreement to satisfy its role as Escrow Agent. Neither Petopia nor the Escrow
Agent shall be liable to the Stockholders for any portion of the Escrow Fund
properly distributed to the Stockholders pursuant to the terms of this Agreement
or any portion of the Heldback Shares properly cancelled in accordance with
section 1.1 hereof. In no event shall the Escrow Agent be liable for special,
indirect or consequential loss or damage of any kind whatsoever (including but
not limited to lost profits), even if the Escrow Agent has been advised of the
likelihood of such loss or damage, and regardless of the form of action.
3.5 Controversies. If any controversy arises between Petopia and a
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Majority in Interest of the Holders or with any third person with respect to the
subject matter of this Agreement, the Escrow Agent shall not be required to
determine the same or take any action with respect thereto, but may await the
final resolution of any such controversy, anything in the instructions delivered
by the parties hereto to the contrary notwithstanding, and in such event it
shall not be liable for interest or damage.
3.6 Discharge of the Escrow Agent. The Escrow Agent agrees that Petopia
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and a Majority in Interest of the Holders may, by mutual agreement at any time,
remove the Escrow Agent as escrow agent hereunder, and substitute a bank or
trust company therefor, in which event, upon receipt of written notice thereof,
payment by Petopia of any accrued but unpaid fees due the Escrow Agent and
reimbursement of the Escrow Agent's other fees and expenses from the Escrow Fund
in accordance with Section 3.4 hereof, the Escrow Agent shall account for and
deliver to such substituted escrow agent the Escrow Fund held by it, and the
Escrow Agent shall thereafter be discharged from all liability hereunder.
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3.7 Court Orders. If the Escrow Fund shall be attached, garnished, or
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levied upon pursuant to any court order, or the delivery of the Escrow Fund
shall be stayed or enjoined by any court order, or any court order shall be made
or entered into affecting the Escrow Fund, or any part thereof, the Escrow Agent
is hereby expressly authorized, in its sole direction, to obey and comply with
any court order so entered or issued, which it is advised by legal counsel of
its own choosing is binding upon it, whether with or without jurisdiction, and
in case the Escrow Agent obeys or complies with any court order, it shall not be
liable to any of the parties hereto or to any other person, firm or corporation,
by reason of such compliance notwithstanding such court order be subsequently
reversed, modified, annulled, set aside or vacated.
3.8 Merger. Any company into which the Escrow Agent may be merged or
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converted, or into which it may be consolidated, or any company resulting from
such merger, conversion or consolidation to which it shall be a party, or any
company to which the Escrow Agent may sell or transfer all or substantially all
of its escrow/custody business, provided such company shall be eligible to serve
as escrow agent hereunder, shall be the successor hereunder to the Escrow Agent
without the execution or filing of any paper or any further act.
3.9 Incumbency Certificates. Upon execution of this Agreement, the
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parties hereto shall each deliver an authorized certificate with specimen
signatures to the Escrow Agent, substantially in the form attached hereto as
Exhibit D.
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Article IV
STOCKHOLDER ACTIONS
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4.1 Majority in Interest.
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(a) The Holders of a majority of the Indemnity Shares (a "Majority in
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Interest"), for and on behalf of Holders, shall have the power to take any and
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all actions required to be taken by the Holders pursuant to this Agreement,
including, without limitation, the power to give and receive notices and
communications, to perform this Agreement, to make claims for indemnification
against Petopia, to authorize delivery to Petopia of Indemnity Shares or other
property from the Escrow Fund and the cancellation of the Heldback Shares in
satisfaction of claims by Petopia, to object to such deliveries, to agree to
negotiate, enter into settlements and compromises of, and demand arbitration and
comply with orders of courts and awards of arbitrators with respect to such
claims, and to take all actions necessary appropriate or in the judgment of a
Majority in Interest for the accomplishment of the foregoing. The Holders
individually shall have no power or authority to take any actions against
Petopia or otherwise pursuant to this Agreement or the Merger Agreement, and all
actions of the Holders, whether pursuant to this Agreement or the Merger
Agreement, must be taken solely by a Majority in Interest.
(b) Petopia shall have no liability of any kind to any Holders as a result
of or arising out of any action taken or not taken by a Majority in Interest,
and each Holder hereby releases Petopia from any such liability. Petopia may
conclusively rely, without any obligation of
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investigation or inquiry of any kind, on any action taken by a Majority in
Interest as having been fully authorized and approved by all necessary action by
each Holder.
Article V
MISCELLANEOUS
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5.1 Reimbursement of Petopia. Notwithstanding anything to the contrary
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contained herein to the effect that (i) Petopia will pay the fees and expenses
of the Arbitrator pursuant to Section 2.2(d) hereof, (ii) Petopia will pay
expenses, disbursements and advances incurred or paid by the Escrow Agent
(including, without limitation, reasonable attorneys' fees), and (iii) Petopia
shall pay any claims for indemnification to the Escrow Agent pursuant to Section
3.4 hereof, to the extent the Escrow Fund (together with the Heldback Shares)
then contains sufficient assets, Petopia shall be entitled to be reimbursed from
the Escrow Fund and the Heldback Shares for one-half of such fees, expenses,
payments or reimbursements if Holders have not otherwise paid Petopia such
amounts; provided, however, that Petopia shall not be entitled to be reimbursed
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for payment of any fee necessary in order to establish and maintain the Escrow
Fund and allow the Escrow Agent to enter into this Agreement.
5.2 Notices. All notices required or permitted to be given hereunder
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shall be in writing and shall be deemed given when delivered in person, by
facsimile (with electronic confirmation of receipt) or by a nationally
recognized private carrier, or on the third business day after being deposited
in the United States mail, postage prepaid, registered or certified mail,
addressed as follows:
TO XXXXXXX.XXX, INC.:
Xxxxxxx.xxx, Inc.
0000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx
with a copy to:
Xxxxxxx Coie LLP
000 Xxxxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxx X. Xxxxxx, Esq.
TO THE HOLDERS:
To the addresses set forth on Exhibit A and Exhibit B hereto.
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with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxxxx, Esq.
TO THE ESCROW AGENT:
Chase Manhattan Bank and Trust Company, N.A.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxx Xxxxxxx
and/or at such other addresses and/or addressees as may be designated by notice
given in accordance with the provisions of this Section 5.2.
5.3 Termination of Agreement. This Agreement shall continue in force
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until the final distribution of all portions of the Escrow Fund held by the
Escrow Agent hereunder or until terminated by written notice signed by Petopia
and a Majority in Interest of the Holders; provided, that the obligations of the
Holders contained in Section 1.3 shall survive the termination of this Agreement
for the period set forth therein.
5.4 Expenses. Except as otherwise provided herein, both Petopia and the
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Holders shall be responsible for their own costs and expenses with respect to
matters involving this Agreement.
5.5 Headings. The section headings contained in this Agreement are for
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reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. All pronouns shall be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the persons,
firm or corporation may require in the context thereof.
5.6 Severability. If any provision of this Agreement, or any covenant,
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obligation or agreement contained herein is determined by a court to be invalid
or unenforceable, such determination shall not affect any other provision,
covenant, obligation or agreement, each of which shall be construed and enforced
as if such invalid or unenforceable portion were not contained herein. Such
invalidity or unenforceability shall not affect any valid and enforceable
application thereof, and each such provision, covenant, obligation or agreement,
shall be deemed to be effective, operative, made, entered into or taken in the
manner and to the full extent permitted by law.
5.7 Construction. This Agreement shall be construed, and the rights and
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duties of the parties hereto determined, in accordance with the laws of the
State of California.
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5.8 Limitation of Remedy. Nothing contained in this Agreement shall limit
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or impair, or be construed to limit or impair, any right or remedy to which any
party hereto may become entitled by virtue of any breach by any party under the
terms and provisions of the Merger Agreement; provided, however, that such
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rights and remedies shall be limited as set forth in the Merger Agreement.
5.9 Multiple Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original but all of which
together shall constitute but one and the same instrument.
5.10 Amendments and Waivers. This Agreement shall be binding upon and
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inure to the benefit of the parties hereto and there respective successors and
assigns. No amendment, supplement, modification or waiver of this Agreement
shall be binding unless executed in writing by all the parties hereto. No
waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provision hereof (whether or not similar), nor
shall such waiver constitute a continuing waiver unless otherwise expressly
provided.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have signed this Escrow and
Indemnity Agreement as of the date first above written.
PETOPIA:
XXXXXXX.XXX, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, President & CEO
ESCROW AGENT:
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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Title: Assistant Vice President
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THE STOCKHOLDERS:
Clifcor Capital, LLC
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
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Title: President
By: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx , as attorney in fact on behalf of
Xxx Xxxxxx
Xxxxxxx Xxxxxxxxx
Xxxx X. Xxxxxxx
X.X. XxXxxxxxxx
Xxxxx X'Xxxxxx
Xxxxx Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxxx-Xxxxxx
Xxxxxx X. Xxxx, as Trustee under the Xxxxxx X. Xxxx
Living Trust UTD 10/31/94
Xxxxxxxx X. Xxxx, as Trustee under the Xxxxxxxx X. Xxxx
Living Trust UTD 10/31/94
Xxxx Xxxxxxx
Xxxx Xxxxxxxx
Xxx Xxxxxxx
Xxxxx Xxxxx
Xxxxxxx Xxxx
Xxxxx Xxxxxxxx
Xxxxxxxx Xxxx
Xxxxxx Xxxxxxxx
Xxxxxxxx Xxxxxxx
Xxx Xxxxx
Xxxxx Xxxxxxxx
Xxxxx Xxxxx
Xxxxx Xxxxxxx
THE WARRANTHOLDERS:
By: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx , as attorney in fact on behalf of
Xxxx Xxxxxxx
Xxxx Xxxxxxxx
Xxx Xxxxxxx
Xxxxx Xxxxx
Xxxxxxx Xxxx
Xxxxx Xxxxxxxx
Xxxxxxxx Xxxx
Xxxxxx Xxxxxxxx
Xxxxxxxx Xxxxxxx
Xxx Xxxxx
Xxxxx Xxxxxxxx
Xxxxx Xxxxx
Xxxxx Xxxxxxx
