Exhibit 10.21
METASYN, INC.
SERIES D CONVERTIBLE PREFERRED STOCK
PURCHASE AGREEMENT
Dated as of May 29, 1996
Table of Contents
1. Authorization and Sale of Shares................................... 1
1.1 Authorization................................................. 1
1.2 Sale of Shares................................................ 1
1.3 Use of Proceeds............................................... 1
2. The Closing....................................................... 1
3. Representations of the Company.................................... 2
3.1 Organization and Standing................................... 2
3.2 Capitalization.............................................. 2
3.3 Issuance of Shares.......................................... 3
3.4 Reservation of Common Stock................................. 3
3.5 Subsidiaries................................................ 3
3.6 Stockholder List and Agreements............................. 3
3.7 Tax Returns and Payments.................................... 4
3.8 ERISA....................................................... 4
3.9 Title to Assets............................................. 4
3.10 No Material Adverse Change.................................. 4
3.11 Real Property Leases........................................ 5
3.12 Insurance................................................... 5
3.13 Transactions with Affiliates................................ 5
3.14 Assumptions or Guaranties of Indebtedness of Other Persons.. 5
3.15 Investments in Other Persons................................ 5
3.16 Authority for Agreements.................................... 5
3.17 Conflicting Agreements and Violations of Charter Provisions. 6
3.18 Consents and Approvals...................................... 6
3.19 Compliance with Laws........................................ 6
3.20 Litigation.................................................. 6
3.21 Financial Statements........................................ 6
3.22 Absence of Liabilities...................................... 7
3.23 Patents and Trademarks...................................... 7
3.24 Material Contracts and Obligations.......................... 7
3.25 Employees and Consultants................................... 7
3.26 Books and Records........................................... 7
3.27 Disclosures................................................. 8
4. Representations of the Purchasers................................. 8
4.1 Investment.................................................. 8
4.2 Authority................................................... 8
4.3 Experience.................................................. 8
4.4 Accredited Investor......................................... 8
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5. Conditions to the Obligations of the Purchasers...................... 9
5.1 Accuracy of Representations and Warranties.................. 9
5.2 Performance................................................. 9
5.3 Financing Agreements........................................ 9
5.4 Certificates and Documents.................................. 9
5.5 Compliance Certificate...................................... 9
5.6 Other Matters............................................... 9
5.7 Opinion of Counsel......................................... 10
5.8 Issuance of Warrants....................................... 10
5.9 Series C Preferred Stock Certificates...................... 10
6. Conditions to the Obligations of the Company........................ 10
6.1 Accuracy of Representations and Warranties................. 10
6.2 Performance................................................ 10
6.3 Surrender of Bridge Notes.................................. 10
7. Covenants of the Company........................................ 11
7.1 Material Changes and Litigation........................... 11
7.2 Non-Compete and Non-Solicitation Agreement................ 11
7.3 Payment of Taxes and Trade Debt........................... 11
7.4 Maintenance of Insurance.................................. 11
7.5 Key Man Life Insurance.................................... 11
7.6 Preservation of Corporate Existence....................... 11
7.7 Maintenance of Properties, etc............................ 12
7.8 Compliance with ERISA..................................... 12
7.9 Negative Covenants........................................ 12
7.10 Common Stock Purchase Agreement........................... 13
7.11 Financial Statements and Other Information................ 13
7.12 Inspection Rights......................................... 13
7.13 Observation Rights; Information Rights.................... 14
7.14 Termination of Covenants.................................. 14
8. Waiver by Purchasers of Certain Rights.......................... 14
8.1 Waiver of Certain Rights of First Refusal................. 14
8.2 Waiver of Certain Rights of Co-Sale....................... 15
9. Successors and Assigns.......................................... 15
10. Transfers of Certain Rights..................................... 15
10.1 Transfers Permitted....................................... 15
10.2 Transferees............................................... 15
10.3 Subsequent Transferees.................................... 15
10.4 Partners, Stockholders, Affiliates and
Wholly-Owned S Corporations.............................. 15
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11. Confidentiality................................................ 16
12. Survival of Representations and Warranties..................... 16
13. Notices........................................................ 16
14. Brokers........................................................ 16
15. Legal Expenses................................................. 16
16. Entire Agreement............................................... 17
17. Amendments and Waivers......................................... 17
18. Counterparts................................................... 17
19. Headings....................................................... 17
20. Severability................................................... 17
21. Governing Law.................................................. 17
Exhibits
A - List of Purchasers
B - Restated Certificate of Incorporation
C - Exceptions to Representations and Warranties
D - Third Amended and Restated Stockholders' Rights Agreement
E - List of Stockholders
F - Financial Information
G - Employee Nondisclosure and Assignment of Inventions Agreement
H- Consultant Nondisclosure and Assignment of Inventions Agreement
I - Form of Opinion of Xxxxxx & Dodge LLP
J - Non-compete and Non-solicitation Agreement
K - Common Stock Purchase Agreement
L - Stock Purchase and Right of First Refusal Agreement
Schedules
1 - Real Property Leases
2 - Agreements with Affiliates
3 - Investment in Other Persons
4 - Non-accredited Investors
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SERIES D CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
This Agreement dated as of May 29, 1996 is entered into by and among
Metasyn, Inc., a Delaware corporation (the "Company"), and the purchasers listed
on Exhibit A hereto (the "Purchasers").
In consideration of the mutual promises and covenants contained in this
Agreement, the parties hereto agree as follows:
1. Authorization and Sale of Shares.
1.1 Authorization. The Company has, or before the Closing (as defined in
Section 2) will have, duly authorized the sale and issuance of up to 1,740,002
shares of its Series D Convertible Preferred Stock, $.01 par value per share
(the "Series D Preferred Stock"), having the rights, restrictions, privileges
and preferences set forth in the Restated Certificate of Incorporation attached
hereto as Exhibit B (the "Restated Certificate"). The Company has, or on or
before the Closing will have, adopted and filed the Restated Certificate with
the Secretary of State of the State of Delaware.
1.2 Sale of Shares. Subject to the terms and conditions of this Agreement,
at the Closing the Company will sell and issue to each of the Purchasers, and
each of the Purchasers will purchase, the number of shares of Series D Preferred
Stock set forth opposite such Purchaser's name on Exhibit A hereto, for the
purchase price of $3.00 per share (the "Purchase Price"). The aggregate amount
of 1,700,002 shares of Series D Preferred Stock being sold under this Agreement
shall collectively constitute and are hereinafter referred to as the "Shares."
1.3 Use of Proceeds. The Company will use the proceeds from the sale of the
Shares for product development and other working capital purposes.
2. The Closing. The closing ("Closing") of the sale and purchase of the
Shares under this Agreement shall take place at the offices of Xxxxxx & Dodge
LLP, Xxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx at 11:00 a.m. on May 29, 1996. At
or promptly following the Closing, the Company will deliver to each of the
Purchasers a certificate for the number of Shares being purchased by such
Purchaser, registered in the name of such Purchaser, against payment to the
Company of the purchase price therefor, by wire transfer, check, or other method
acceptable to the Company. At the Closing, (i) Accel Investors '93 L.P., Accel
IV L.P., Accel Keiretsu L.P., Bessemer Venture Partners III L.P., Prosper
Partners and Xxxxxxx X. Xxxxxxxxx Partners shall each surrender to the Company
for cancellation certain promissory notes executed by the Company, each dated as
of February 2, 1996, for the aggregate principal amount of $600,000
(collectively, the "Bridge Notes"), (ii) the principal amount of each such
Bridge Note shall be credited by the Company against the purchase
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price of the Shares being purchased by such Purchasers and (iii) the Company
shall pay such purchasers the accrued and unpaid interest on the Bridge Notes.
The date of the Closing is hereinafter referred to as the "Closing Date." On the
Closing Date, the principal amount of Company's Amended and Restated Convertible
Promissory Notes dated as of May 26, 1995 and Convertible Promissory Notes dated
as of January 19, 1996 (together, the "Convertible Notes") plus accrued and
unpaid interest thereon shall automatically convert into shares of the Company's
Series C Convertible Preferred Stock, $.01 par value per share ("Series C
Preferred Stock"). If at the Closing any of the conditions specified in Section
5 shall not have been fulfilled, each of the Purchasers shall, at its election,
be relieved of all of its obligations under this Agreement without thereby
waiving any other rights it may have by reason of such failure or such
non-fulfillment.
3. Representations of the Company. Subject to and except as disclosed by
the Company in Exhibit C hereto, the Company hereby represents and warrants to
each of the Purchasers as follows:
3.1 Organization and Standing. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has full corporate power and authority to own and hold its properties and
conduct its business as presently conducted and as proposed to be conducted by
it and to enter into and perform this Agreement, the Third Amended and Restated
Stockholders' Rights Agreement between the Company and certain investors listed
therein (the "Rights Agreement") attached hereto as Exhibit D, and the
agreements, documents and instruments contemplated hereby and thereby
(collectively, the "Financing Agreements"), and to carry out the transactions
contemplated by the Financing Agreements. The Company is duly qualified to do
business as a foreign corporation and is in good standing in the Commonwealth of
Massachusetts, such jurisdiction being the only jurisdiction in which the
failure to so qualify would have a material adverse effect on the operations or
financial condition of the Company. The Company has furnished to the Purchasers
true and complete copies of its Restated Certificate and By-Laws, each as
amended to date and presently in effect.
3.2 Capitalization. The authorized capital stock of the Company (after the
filing of the Restated Certificate and immediately prior to the Closing) will
consist of: 11,500,000 shares of common stock, $.01 par value per share (the
"Common Stock"), of which 2,404,721 shares are issued and outstanding; and
6,813,393 shares of Preferred Stock, $.01 par value per share, of which (i)
104,388 have been designated Series A Convertible Preferred Stock, 93,691 of
which are issued and outstanding, (ii) 2,655,138 of which have been designated
Series B Convertible Preferred Stock, 2,643,736 of which are issued and
outstanding, (iii) 1,445,536 of which have been designated Series C Convertible
Preferred Stock, none of which are issued and outstanding, (iv) 1,740,002 shares
of Series D Convertible Preferred Stock, none of which are issued and
outstanding and (v) 868,329 shares of Series E Convertible Preferred Stock, none
of which are issued and outstanding. All of the issued and outstanding shares of
the Company's capital stock have been duly authorized and validly issued and are
fully paid and non-assessable, and have been issued in
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transactions which have been exempt from the registration requirements of
applicable federal and state securities laws. Except as set forth in Exhibit C
hereto or contemplated by this Agreement, (i) no subscription, warrant, option,
convertible security or other right (contingent or otherwise) to purchase or
acquire any shares of capital stock of the Company is authorized or outstanding,
(ii) there is not any commitment or offer of the Company to issue any
subscription, warrant, option, convertible security or other such right or to
issue or distribute to holders of any shares of its capital stock any evidences
of indebtedness or assets of the Company, and (iii) the Company has no
obligation (contingent or otherwise) to purchase, redeem or otherwise acquire
any shares of its capital stock or any interest therein or to pay any dividend
or make any other distribution in respect thereof. Except as set forth in
Exhibit C hereto or contemplated by this Agreement, no person or entity is
entitled to (i) any preemptive or similar right with respect to the issuance of
any capital stock of the Company, or (ii) any rights with respect to the
registration of any capital stock of the Company under the Securities Act of
1933, as amended. Except as set forth in Exhibit C hereto or contemplated by
this Agreement, the designations, powers, preferences, rights, qualifications,
limitations and restrictions in respect of each class and series of authorized
capital stock of the Company are as set forth in the Restated Certificate and
By-Laws, each as amended, and all such designations, powers, preferences,
rights, qualifications, limitations and restrictions are valid, binding and
enforceable and in accordance with all applicable laws.
3.3 Issuance of Shares. The issuance and delivery of the Shares and the
issuance and delivery of the shares of Common Stock issuable upon conversion of
the Shares (the "Conversion Stock"), have been, or will be on or prior to the
Closing, duly authorized and reserved for issuance by all necessary corporate
action on the part of the Company, and the Shares and the shares of Conversion
Stock, when issued upon such conversion, will be duly and validly issued, fully
paid and non-assessable. Based on the representations made by the Purchasers set
forth in Section 4 hereof, the offer, issuance and sale of the Shares pursuant
to the Agreement are exempt from registration under the Securities Act of 1933,
as amended, and applicable state securities laws. The Company has complied and
will comply with all applicable federal and state securities laws in connection
with the offer, issuance and sale of the Shares and the shares of Conversion
Stock.
3.4 Reservation of Common Stock. The Company has authorized and reserved,
and will continue to reserve, free of preemptive and other preferential rights,
a sufficient number of its authorized but unissued shares of Common Stock to
satisfy the rights of conversion of any holders of Series D Preferred Stock.
3.5 Subsidiaries. The Company has no subsidiaries and does not own or
control, directly or indirectly, any other corporation, association or business
entity.
3.6 Stockholder List and Agreements. Attached hereto as Exhibit E is a true
and complete list of the stockholders of the Company, showing the number of
shares of Common Stock or other securities of the Company held by each
stockholder immediately prior to the Closing. Except as contemplated by this
Agreement or in Exhibit E, there are
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no agreements, written or oral, between the Company and any holder of its
capital stock, or, to the best knowledge of the Company, among any holders of
its capital stock, relating to the acquisition, disposition or voting of the
capital stock of the Company.
3.7 Tax Returns and Payments. The Company has timely filed all required tax
returns and reports (other than those not required to be filed by applicable law
or regulation) and has paid, or adequately provided for the payment of, all
taxes, assessments and other governmental charges imposed upon it or upon any of
its assets, income or franchises, other than any such charges which are
currently payable without penalty or interest and taxes, assessments and charges
which are being contested in good faith by the Company. The charges, accruals
and reserves on the books of the Company with respect to taxes for all fiscal
periods are adequate in the opinion of the Company. Except to the extent
adequate reserves have been set up, the Company does not know of any actual or
proposed tax assessment for any fiscal period. The federal income tax returns of
the Company have never been audited by the Internal Revenue Service. The Company
has not received notice of any tax lien imposed by any taxing authority which is
outstanding against the assets, properties or business of the Company.
3.8 ERISA. Each employee benefit plan sponsored by the Company is in
material compliance with all applicable provisions of the Employee Retirement
Income Security Act of 1974 ("ERISA") and the Internal Revenue Code of 1986, as
amended (the "Code"). The Company has not incurred any material liability to the
Pension Benefit Guaranty Corporation ("PBGC") or any employee benefit plan on
account of any failure to meet the contribution requirements of any such plan,
minimum funding requirements or prohibited transactions under ERISA or the Code,
termination of a single employer plan, partial or complete withdrawal from a
multi-employer plan, or the insolvency, reorganization or termination of any
multi-employer plan, and no event has occurred or conditions exist which present
a material risk that the Company will incur any material liability on account of
any of the foregoing circumstances. The consummation of the transactions
contemplated by this Agreement will not result in any prohibited transaction
under ERISA or the Code for which an exemption is not available.
3.9 Title to Assets. The Company has good and merchantable title to all of
its owned assets free of any mortgages, pledges, charges, liens, security
interests or other encumbrances except (i) those reflected on its audited
financial statements or the notes thereto, or (ii) tax and mechanics liens not
material to the Company or any property to which such liens relate. The Company
enjoys peaceful and undisturbed possession under all leases (both capital and
operating leases) under which it is operating, and all said leases are valid and
subsisting and in full force and effect on and against the Company and, to the
knowledge of the Company, the other parties thereto.
3.10 No Material Adverse Change. Since December 31, 1995, except as
indicated in the Financial Statements (as defined below) or in any Exhibit or
Schedule hereto, or for changes in general economic conditions, (i) there has
been no material adverse change
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in the business, properties, operations or condition, financial or otherwise, of
the Company, whether or not covered by insurance and whether or not arising from
transactions in the ordinary course of business; (ii) the business, assets,
financial condition, or operations of the Company or any of its properties or
assets, including without limitation its patents, patent rights, copyrights,
trademarks, trade secrets and other intellectual property rights, have not been
adversely affected as the result of any legislative or regulatory change or any
revocation or change in any material franchise, permit, license or right to do
business, whether or not insured against; and (iii) the Company has not entered
into any material transaction other than in the ordinary course of business,
made any distribution on its capital stock, or redeemed or repurchased any of
its capital stock.
3.11 Real Property Leases. The Company's real property identified on
Schedule 1 is leased as described in such Schedule, having been leased on what
the Company believes to be customary terms and conditions in view of the nature
and location of the properties.
3.12 Insurance. The Company carries insurance with financially sound and
reputable insurance companies or associations and in such amounts and covering
such risks as are adequate and customary for the type and scope of its
properties and business.
3.13 Transactions with Affiliates. Except as set forth in Schedule 2, the
Company is not a party to or bound by any agreement with any officer, director,
or holder of more than 5% of the Company's outstanding capital stock on a fully
diluted basis ("Affiliate"). All of the agreements identified on Schedule 2
hereto were entered into by the Company in good faith and are on terms no less
favorable to the Company than those which the Company could have obtained from
non-Affiliates.
3.14 Assumptions or Guaranties of Indebtedness of Other Persons. The
Company has not assumed, guaranteed, endorsed or otherwise become directly or
contingently liable on (including, without limitation, liability by way of
agreement, contingent or otherwise, to purchase, to provide funds for payments,
to supply funds to or otherwise invest in the debtor or otherwise to assure the
creditor against loss) any indebtedness of any other person.
3.15 Investments in Other Persons. Except as set forth in Schedule 3, the
Company has not made any loan or advance to any person which is outstanding on
the date of this Agreement, nor is the Company obligated or committed to make
any such loan or advance, nor does the Company own any capital stock or assets
comprising the business of, obligations of, or any interest in, any person. The
Company has no subsidiaries.
3.16 Authority for Agreements. The execution, delivery and performance by
the Company of the Financing Agreements have been duly authorized by all
necessary corporate action, and the Financing Agreements have been duly executed
and delivered by the Company. The Financing Agreements constitute the valid and
binding obligations of the
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Company enforceable against the Company in accordance with their respective
terms, subject to applicable bankruptcy, insolvency, moratorium and similar laws
affecting the rights and remedies of creditors generally and also by general
principles of equity.
3.17 Conflicting Agreements and Violations of Charter Provisions. The
Company is not in violation of its Restated Certificate, By-laws or of any
agreement or instrument by which it is bound, except for violations which,
individually or in the aggregate, would not materially and adversely affect the
business, properties, operations or condition, financial or otherwise, of the
Company. Neither the authorization, execution and delivery of the Financing
Agreements, the consummation of the transactions therein contemplated, nor the
fulfillment of or compliance with the terms thereof, will conflict with or
result in a material breach of any of the terms of the Restated Certificate or
By-laws, or of any statute, law, rule or regulation, or of any judgment, decree,
writ, injunction, order or award of any arbitrator, court or governmental
authority specifically naming the Company, or of any agreement or instrument
which is applicable to the Company or by which the Company is bound, or
constitute a default thereunder.
3.18 Consents and Approvals. The Company has obtained or made all necessary
(i) governmental consents, approvals and authorizations, and registrations and
filings with governmental authorities, and (ii) consents, approvals, waivers and
notifications of stockholders, creditors, lessors and other non-governmental
persons, in each case, which are required to be obtained or made by the Company
in connection with the execution and delivery of the Financing Agreements, and
the consummation of the transactions herein and therein contemplated.
3.19 Compliance with Laws. The Company is not in violation of any statute,
law, rule or regulation, or in default with respect to any judgment, writ,
injunction, decree, rule or regulation of any court or governmental agency or
instrumentality specifically naming the Company, including, without limitation,
laws relating to environmental protection, except for such violations or
defaults which do not, individually or in the aggregate, materially and
adversely affect the business, assets, operations or condition, financial or
otherwise, of the Company.
3.20 Litigation. There is no action, suit, proceeding or investigation
pending, or, to the best of the Company's knowledge, any basis therefor or
threat thereof, against the Company, which questions the validity of the
Financing Agreements or the right of the Company to enter into them, or which
might result, either individually or in the aggregate, in any material adverse
change in the assets, condition (financial or otherwise), business or prospects
of the Company.
3.21 Financial Statements. Set forth on Exhibit F is a complete and correct
copy of the audited balance sheet of the Company as of December 31, 1995 and the
related statements of operations and changes in financial position for the
nine-month period then ended, each together with the notes thereto
(collectively, the "Financial Statements"). The
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Financial Statements have been prepared in accordance with generally accepted
accounting principles consistently applied (except as noted) and fairly present
the financial condition of the Company at the date thereof and for the periods
covered thereby.
3.22 Absence of Liabilities. Except for liabilities incurred from
operations conducted in the ordinary course of business since December 31, 1995,
the Company does not have any liabilities or obligations of any type, whether
absolute or contingent, other than as disclosed herein or in the Schedules or
Exhibits hereto.
3.23 Patents and Trademarks. Set forth on Exhibit C is a true and complete
list of all patents, patent applications, trademarks, service marks, trademark
and service xxxx applications, trade names, registered copyrights and licenses
presently owned or licensed by the Company. The licenses set forth on Exhibit C
are the valid, binding and enforceable obligations of the Company and, to the
best of the Company's knowledge, of the other parties thereto, subject to
applicable bankruptcy, insolvency, moratorium and similar laws affecting the
rights and remedies of creditors generally and also by general principles of
equity. The Company is not aware of and has not received any notice of
infringement of any patents, trademarks, service marks, trade names, copyrights,
licenses, trade secrets or other proprietary rights of any other person or
entity. The Company is not aware that any employee is obligated under any
contract (including any license, covenant or commitment of any nature), or under
common law, or subject to any judgment, decree or order of any court or
administrative agency, that would interfere with the use of such employee's best
efforts to promote the interests of the Company or would conflict with the
Company's business as proposed to be conducted. To the best of the Company's
knowledge, no prior employer of any employee of the Company has any right to or
interest in any inventions, improvements, discoveries or other information
assigned to the Company by such employee pursuant to a nondisclosure and
assignment of invention agreement (in the form attached hereto as Exhibit G)
executed by such employee, or otherwise so assigned.
3.24 Material Contracts and Obligations. Exhibit C sets forth a list of all
material agreements of any nature to which the Company is a party or by which it
is bound.
3.25 Employees and Consultants. All employees and consultants of the
Company whose employment responsibility requires access to confidential or
proprietary information of the Company have executed and delivered nondisclosure
and assignment of invention agreements in the forms of Exhibits G and H,
respectively, and all of such agreements are in full force and effect. None of
the employees of the Company is represented by any labor union.
3.26 Books and Records. The minute books of the Company contain complete
and accurate records of all meetings and other corporate actions of its
stockholders and its Board of Directors and committees thereof. The stock ledger
of the Company is complete and reflects all issuances, transfers, repurchases
and cancellations of shares of capital stock of the Company.
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3.27 Disclosures. Neither this Agreement nor any Exhibit or Schedule hereto
contains or will contain any material misstatement of fact or omits or will omit
to state a material fact necessary to make the statements contained herein or
therein, in light of the circumstances in which they were made, not misleading.
The Company knows of no information or fact which has or would have a material
adverse effect on the financial condition, business or prospects of the Company
which has not been disclosed to the Purchasers.
4. Representations of the Purchasers. Each of the Purchasers severally
represents and warrants to the Company as follows:
4.1 Investment. Such Purchaser is acquiring the Shares and the shares
of Common Stock into which the Shares may be converted 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; and, except as contemplated by this Agreement and the Exhibits hereto,
such Purchaser has no present or contemplated agreement, undertaking,
arrangement, obligation, indebtedness or commitment providing for the
disposition thereof.
4.2 Authority. Such Purchaser has full power and authority to enter
into and to perform the Financing Agreements in accordance with their respective
terms. Any Purchaser which is a corporation, partnership or trust represents
that it has not been organized, reorganized or recapitalized specifically for
the purpose of investing in the Company.
4.3 Experience. Such Purchaser has carefully reviewed the
representations concerning the Company contained in this Agreement, and has had
the opportunity to make detailed inquiry concerning the Company, its business
and its personnel; the officers of the Company have made available to such
Purchaser any and all written information which he or it has requested and have
answered to such Purchaser's satisfaction all inquiries made by such Purchaser;
and such Purchaser has adequate net worth and means of providing for its current
needs and personal contingencies to sustain a complete loss of its investment in
the Company; such Purchaser's overall commitment to investments which are not
readily marketable is not disproportionate to its net worth and such Purchaser's
investment in the Shares will not cause such overall commitment to become
excessive; and such Purchaser has sufficient knowledge and experience to
evaluate the risk of its investment in the Company.
4.4 Accredited Investor. Except as set forth on Schedule 4 hereto,
each Purchaser is an "accredited investor" within the meaning of Rule 501(a) of
Regulation D under the Securities Act of 1933, as amended.
5. Conditions to the Obligations of the Purchasers. The obligation of each
of the Purchasers to purchase Shares at the Closing is subject to the
fulfillment, or the waiver by such Purchaser, of the following conditions on or
before the Closing Date:
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5.1 Accuracy of Representations and Warranties. Each representation
and warranty contained in Section 3 shall be true on and as of the Closing Date
with the same effect as though such representation and warranty had been made on
and as of that date.
5.2 Performance. The Company shall have performed and complied with
all agreements and conditions contained in this Agreement required to be
performed or complied with by the Company prior to or at the Closing.
5.3 Financing Agreements. The Financing Agreements contemplated hereby
shall have been executed and delivered by the Company, by each of the Purchasers
and by each of the other parties thereto.
5.4 Certificates and Documents. The Company shall have delivered to
the Purchasers:
(i) The Restated Restated Certificate of the Company, as amended and
in effect prior to the Closing Date, certified by the Secretary of State of
the State of Delaware;
(ii) Certificates, as of the most recent practicable dates, as to the
corporate good standing of the Company issued by the Secretary of State of
the State of Delaware and the Secretary of the Commonwealth of
Massachusetts, confirming such good standing on or immediately prior to the
Closing Date;
(iii) By-laws of the Company, certified by its Secretary or Assistant
Secretary as of the Closing Date; and
(iv) Resolutions of the Board of Directors and the stockholders of the
Company, authorizing and approving all matters in connection with this
Agreement and the transactions contemplated hereby, certified by the
Secretary or Assistant Secretary of the Company as of the Closing Date.
5.5 Compliance Certificate. The Company shall have delivered to the
Purchasers a certificate, executed by the President of the Company, dated the
Closing Date, certifying to the fulfillment of the conditions specified in
Sections 5.1 through 5.4 of this Agreement.
5.6 Other Matters. All corporate and other proceedings in connection
with the transactions contemplated by this Agreement and all documents and
instruments incident to such transactions shall be reasonably satisfactory in
substance and form to the Purchasers, and the Purchasers shall have received all
such counterpart originals or certified or other copies of such documents as
they may reasonably request.
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5.7 Opinion of Counsel. Each Purchaser shall have received an opinion
from Xxxxxx & Dodge LLP, counsel for the Company, dated the Closing Date,
addressed to the Purchasers, substantially in the form attached hereto as
Exhibit I.
5.8 Issuance of Warrants. The Company shall issue at the Closing the
warrants to the following Purchasers exercisable for the number of shares of
Series D Preferred Stock set forth opposite their respective names:
Purchaser No. of shares
Accel IV L.P. 18,320
Accel Investors '93 L.P. 740
Accel Keiretsu L.P. 380
Xxxxxxx X. Xxxxxxxxx Partners 440
Prosper Partners 120
Bessemer Venture Partners III L.P. 20,000
5.9 Series C Preferred Stock Certificates. At the Closing, the Company
shall deliver to counsel to the Purchasers stock certificates representing
shares of Series C Preferred Stock into which the Convertible Notes
automatically convert as of the Closing Date.
6. Conditions to the Obligations of the Company. The obligations of the
Company under Section 1.2 of this Agreement are subject to fulfillment, on or
before the Closing Date, of each of the following conditions:
6.1 Accuracy of Representations and Warranties. The representations
and warranties of the Purchasers contained in Section 4 shall be true on and as
of the Closing Date with the same effect as though such representations and
warranties had been made on and as of that date.
6.2 Performance. The Purchasers shall have performed and complied with
all agreements and conditions contained in this Agreement required to be
performed or complied with by them prior to or at the Closing.
6.3 Surrender of Bridge Notes. At the Closing, the holders of the
Bridge Notes shall have surrendered all of such notes to the Company.
6.4 Surrender of Convertible Notes. At the Closing, the holders of the
Convertible Notes shall have surrendered all of such notes to the Company.
10
7. Covenants of the Company.
7.1 Material Changes and Litigation. The Company will promptly notify
the Purchasers of any material adverse change in the business, properties,
assets or condition, financial or otherwise, of the Company and of any
litigation or governmental proceeding or investigation pending or, to the best
knowledge of the Company, threatened against the Company, or against any
officer, director, key employee, consultant, or principal stockholder of the
Company materially affecting or which, if adversely determined, would materially
adversely affect its present or proposed business, properties, assets or
condition taken as a whole.
7.2 Non-Compete and Non-Solicitation Agreement. The Company and its
key employees and consultants will enter into non-compete and non-solicitation
agreements substantially in the form attached hereto as Exhibit J.
7.3 Payment of Taxes and Trade Debt. The Company will pay and
discharge all taxes, assessments and governmental charges or levies imposed upon
it or upon its income or profits or business, or upon any properties belonging
to it, prior to the date on which penalties attach thereto, and all lawful
claims which, if unpaid, might become a lien or charge upon any properties of
the Company, provided that the Company shall not be required to pay any such
tax, assessment, charge, levy or claim which is being contested in good faith
and by appropriate proceedings if the Company shall have set aside on its books
adequate reserves with respect thereto, or where the failure to so pay would not
have a material adverse effect on the business, assets, operations or financial
condition of the Company. The Company will pay, when due, or in conformity with
customary trade terms but not later than 90 days from the due date, all lease
obligations, all trade debt, and all other indebtedness incident to the
operations of the Company, except such as are being contested in good faith and
by proper proceedings if the Company shall have set aside on its books
sufficient reserves with respect thereto, or where the failure to so pay would
have a material adverse effect on the business, assets, operations or financial
condition of the Company.
7.4 Maintenance of Insurance. The Company will maintain insurance with
financially sound and reputable insurance companies or associations in such
amounts and covering such risks as is usually carried by companies engaged in
similar businesses and owning similar properties in the same general areas in
which the Company operates.
7.5 Key Man Life Insurance. The Company shall obtain and/or maintain
insurance policies in the amount of $2,000,000 on the life of Xx. Xxxxxxx X.
Xxxxxxx and in the amount of $2,000,000 on the life of Xxxxxxx X. Xxxx, the
proceeds of which are payable to the Company.
7.6 Preservation of Corporate Existence. The Company will preserve and
maintain its corporate existence, rights, franchises and privileges in the
jurisdiction of its incorporation, and qualify and remain qualified, as a
foreign corporation in each jurisdiction
11
in which such qualification is necessary or desirable in view of its business
and operations or the ownership of its properties. The Company shall preserve
and maintain all licenses and other rights to use patents, processes, licenses,
trademarks, trade names, inventions, intellectual property rights or copyrights
owned or possessed by it and necessary to the conduct of its business, except
where the failure to preserve and maintain such intellectual property rights
would not have a material adverse effect on the business operations, assets or
financial condition of the Company.
7.7 Maintenance of Properties, etc. The Company will maintain and
preserve all of its properties, necessary or useful in the proper conduct of its
business, in good repair, working order and condition, ordinary wear and tear
excepted, except where the failure to so preserve and maintain would not have a
material adverse effect on the business, assets, operations or financial
condition of the Company.
7.8 Compliance with ERISA. The Company will comply with all minimum
funding requirements applicable to any pension or other employee benefit or
employee contribution plans which are subject to ERISA or to the Code, and
comply in all other material respects with the provisions of ERISA and the Code,
and the rules and regulations thereunder, which are applicable to any such plan.
The Company shall not permit any event or condition to exist which could permit
any such plan to be terminated under circumstances which would cause the lien
provided for in Section 4068 of ERISA to attach to the assets of the Company.
7.9 Negative Covenants. The Company hereby further covenants and
agrees that it shall not, without the prior written consent of the holders of at
least a majority of the outstanding Shares:
(a) adopt any amendment to the Restated Certificate to create any
other class or series of capital stock on parity with or having preference over
the Series D Preferred Stock;
(b) redeem or repurchase any capital stock of the Company
(excluding for this purpose (i) up to 100,000 shares of the Common Stock to be
reacquired by the Company from Xxxxxxx X. Xxxxxxx and (ii) shares reacquired by
the Company pursuant to restricted stock arrangements from key employees,
consultants and others who have terminated their relationship with the Company)
unless all of the then outstanding shares of Series D Preferred Stock are first
redeemed or repurchased;
(c) enter into any transaction of merger, consolidation,
reorganization or sale of all or substantially all of the assets of the Company
if the value of the consideration to be received by the Company in such
transaction is less than $4.50 per share of the Company's then outstanding
capital stock on a fully diluted basis (subject to appropriate adjustment in the
event of any stock dividend, stock split, combination or other similar
recapitalization); and
12
(d) amend the Restated Certificate of the Company in such a way
as to alter, change or amend the rights, preferences or privileges of the Series
D Preferred Stock.
7.10 Common Stock Purchase Agreement. The Company will cause all
employees who acquire Common Stock from the Company to execute a Common Stock
Purchase Agreement substantially in the form of Exhibit K hereto (for issuances
of restricted stock), or a Stock Purchase and Right of First Refusal Agreement
substantially in the form of Exhibit L hereto (for issuances of stock upon
exercise of stock options).
7.11 Financial Statements and Other Information. The Company will:
(i) furnish to each Purchaser, within 90 days after the end of
each fiscal year of the Company, an audited balance sheet of the Company as at
the end of such year and audited statements of income and of changes of cash
flows of the Company for such year, certified by certified public accountants of
established national reputation selected by the Company, and prepared in
accordance with generally accepted accounting principles;
(ii) furnish to each Purchaser, within 20 days after the end of
each month, an unaudited balance sheet of the Company as at the end of such
month and unaudited statements of income for such month and of changes of cash
flows of the Company for such month and for the current fiscal year to the end
of such month, setting forth in comparative form the Company's projected
financial statements for the corresponding periods for the current fiscal year,
and summaries of bookings and backlogs for such month; and
(iii) furnish to each Purchaser, as soon as available, but in any
event within 45 days after commencement of each new fiscal year, a projected
annual budget and business plan for such fiscal year prepared on a monthly
basis, and, as soon as available, any revisions to such forecast with reasonable
promptness, and such other notices, information and data with respect to the
Company as may be prepared from time to time, including without limitation,
reports of adverse developments, communications with stockholders or directors,
press releases and all registration statements, and amendments thereto.
The foregoing financial statements shall be prepared on a consolidated
basis if the Company then has any subsidiaries. The financial statements
delivered pursuant to clause (ii) above shall be accompanied by a certificate of
the Chief Financial Officer or Treasurer of the Company stating that such
statements have been prepared in accordance with generally accepted accounting
principles consistently applied (except as noted) and fairly present the
financial condition of the Company at the date thereof and for the periods
covered thereby.
7.12 Inspection Rights. The Company will permit each Purchaser, or its
authorized representative, access to the Company's facilities during normal
business hours, upon reasonable request and prior notice, for the purpose of
inspecting the property, affairs and finances of the Company and for discussing
the same with any of the Company's
13
officers, directors and employees; provided, however, that each Purchaser will
maintain the confidentiality of any information obtained by it during the course
of any such inspection.
7.13 Observation Rights; Information Rights. The Company will permit
Advent International Corporation ("Advent") to designate a representative (the
"Advent Representative") who shall be allowed to attend meetings of the Board of
Directors of the Company as a non-voting observer; provided, however, that the
Company may exclude the Advent Representative from meetings, or portions
thereof, of the Board of Directors when such exclusion is deemed necessary by
the Board of Directors or the presiding officer. The Company will provide the
Advent Representative with reasonable prior written notice of all scheduled
meetings of the Board of Directors. Xxxx X. Xxxxxxx shall serve as the initial
Advent Representative and Advent shall notify the Company in writing prior to
any change in the Advent Representative. In addition, the Company agrees to
furnish Advent and Fidelity Ventures ("Fidelity") with copies of (i) materials
prepared by or on behalf of the Company and circulated to the Board of
Directors, and (ii) any correspondence between the Company and members of the
Board of Directors. The Advent Representative, prior to attending any meeting or
receiving any of the aforementioned materials, shall be required to execute and
deliver a nondisclosure and confidentiality agreement to the Company in
substantially the form used by the Company for its employees. Advent and
Fidelity each agree to maintain the confidentiality of any information obtained
pursuant to this Section 7.13.
7.14 Termination of Covenants. The covenants of the Company contained
in this Section 7 shall terminate, and be of no further force or effect, upon
the effective date of a Registration Statement (as defined in the Rights
Agreement) covering the Company's first public offering of Common Stock in which
the price per share to the public exceeds $6.00 (subject to appropriate
adjustment in the event of any stock dividend, stock split, combination or other
similar recapitalization) and the gross proceeds to the Company equal at least
$15,000,000.
8. Waiver by Purchasers of Certain Rights.
8.1 Waiver of Certain Rights of First Refusal. Each Purchaser
hereby irrevocably and unconditionally waives all of its rights of first refusal
under Section 3 of the Rights Agreement with respect to the issuance by the
Company of up to 900,000 shares of the Series E Convertible Preferred Stock of
the Company, $.01 par value per share ("Series E Preferred"), to Daiichi
Radioisotope Laboratories Ltd. ("DRL"), as well as issuance by the Company of
Common Stock issuable upon conversion of such shares, at the price and
substantially upon the general terms and conditions set forth in the proposed
Series E Convertible Preferred Stock Purchase Agreement between the Company and
DRL, substantially in the form submitted to the Board of Directors of the
Company for approval with such changes as may be approved by the Chief Executive
Officer of the Company, and hereby also waives any notice period connected with
such rights required by the Rights Agreement.
14
8.2 Waiver of Certain Rights of Co-Sale. Each Purchaser hereby
irrevocably and unconditionally waives all of its rights of co-sale under
Section 4.2 of the Rights Agreement with respect to the sale by Xxxxxxx X.
Xxxxxxx (the "Founder") to the Company of up to 100,000 shares of Common Stock
owned by the Founder, at the price and substantially upon the general terms and
conditions approved by the Board of Directors of the Company with such changes
as may be approved by the Chief Executive Officer of the Company, and hereby
also waives any notice period connected with such rights required by the Rights
Agreement.
9. Successors and Assigns. Except as provided in Section 10, the provisions
of this Agreement shall be binding upon, and inure to the benefit of, the
respective successors, assigns, heirs, executors and administrators of the
parties hereto.
10. Transfers of Certain Rights.
10.1 Transfers Permitted. The rights granted to a Purchaser under this
Agreement may be transferred by such Purchaser only to another Purchaser, to any
Affiliate of the Company or to any person or entity that is acquiring securities
converted or convertible into at least Two Hundred Thousand (200,000) Shares or
Registrable Shares (as such term is defined in the Rights Agreement); provided,
however, that the Company is given written notice by the transferee at the time
of such transfer stating the name and address of the transferee and identifying
the securities with respect to which such rights are being assigned.
10.2 Transferees. Any transferee (other than a Purchaser) to whom
rights under this Agreement are transferred shall, as a condition to such
transfer, deliver to the Company a written instrument by which such transferee
agrees to be bound by the obligations imposed upon Purchasers under Section 11
of this Agreement to the same extent as if such transferee were a Purchaser
hereunder.
10.3 Subsequent Transferees. A transferee to whom rights are
transferred pursuant to this Section 10 may not again transfer such rights to
any other person or entity, other than as provided in Sections 10.1 and 10.2
above.
10.4 Partners, Stockholders, Affiliates and Wholly-Owned S
Corporations. Notwithstanding anything to the contrary contained in this
Agreement, any Purchaser (i) which is a partnership or corporation may transfer
rights granted to such Purchaser under this Agreement to any partner,
stockholder or Affiliate thereof or (ii) who is the sole owner of a Subchapter S
corporation may transfer rights granted to such Purchaser under this Agreement
to such Subchapter S corporation, in either case to whom Shares are transferred
and who delivers to the Company a written instrument in accordance with Section
10.2 above and containing the representation that the transfer is exempt from
registration under the Securities Act of 1933, as amended. In the event of such
transfer, such partner, stockholder, Affiliate or corporation shall be deemed a
Purchaser for purposes of this Section 10 and may
15
again transfer such rights to any other person or entity which acquires Shares
from such partner, stockholder, Affiliate or corporation, in accordance with,
and subject to, the provisions of Sections 10.1, 10.2 and 10.3 above and this
Section 10.4.
11. Confidentiality. Each Purchaser agrees that it will keep confidential
and will not disclose or divulge any confidential, proprietary or secret
information which such Purchaser may obtain from the Company pursuant to
financial statements, reports and other materials submitted by the Company to
such Purchaser pursuant to this Agreement or pursuant to visitation or
inspection rights granted hereunder, unless such information is known, or until
such information becomes known, to the public.
12. Survival of Representations and Warranties. All agreements,
representations and warranties contained herein shall survive the execution and
delivery of this Agreement and the closing of the transactions contemplated
hereby.
13. Notices. All notices, requests, consents, and other communications
under this Agreement shall be in writing and shall be delivered by hand or
mailed by first class certified or registered mail, return receipt requested,
postage prepaid:
If to the Company, at Metasyn, Inc., c/o Xxxxxxx X. Xxxx, President, 00
Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000, or at such other address or
addresses as may have been furnished in writing by the Company to the
Purchasers, with a copy to Xxxxxxx X. Xxxxxx, Esq., Xxxxxx & Dodge LLP, Xxx
Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000;
If to a Purchaser, at its address set forth on Exhibit A, or at such other
address or addresses as may have been furnished to the Company in writing by
such Purchaser, with a copy to Xxxxxx X. Xxxxxx, Esq., Mintz, Levin, Cohn,
Ferris, Glovsky and Popeo, P.C., Xxx Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000.
Notices provided in accordance with this Section 13 shall be deemed
delivered upon personal delivery or 48 hours after deposit in the mail.
14. Brokers. The Company and each Purchaser (i) represents and warrants to
the other parties hereto that it has retained no finder or broker in connection
with the transactions contemplated by this Agreement, and (ii) will indemnify
and save the other parties harmless from and against any and all claims,
liabilities or obligations with respect to brokerage or finders' fees or
commissions, or consulting fees in connection with the transactions contemplated
by this Agreement asserted by any person on the basis of any statement or
representation alleged to have been made by such indemnifying party.
15. Legal Expenses. The Company will pay for the reasonable fees, expenses
and disbursements of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., legal
counsel to the Purchasers in connection with the transactions contemplated
hereby.
16
16. Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to such
subject matter.
17. Amendments and Waivers. Except as otherwise expressly set forth in this
Agreement, any term of this Agreement may be amended and the observance of any
term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), with the written consent of
the Company and the holders of not less than 66 2/3% of the Registrable Shares.
Any amendment or waiver effected in accordance with this Section 17 shall be
binding upon each holder of any Shares (including shares of Common Stock into
which such Shares have been converted) and each future holder of all such
securities and the Company. No waivers of or exceptions to any term, condition
or provision of this Agreement, in any one or more instances, shall be deemed to
be, or construed as, a further or continuing waiver of any such term, condition
or provision.
18. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
19. Headings. The headings of the sections, subsections, and paragraphs of
this Agreement have been added for convenience only and shall not be deemed to
be a part of this Agreement.
20. Severability. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision.
21. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
17
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of the
day and year first above written.
METASYN, INC.
By: /s/ Xxxxxxx X. Xxxx
-----------------------
Name: Xxxxxxx X. Xxxx
Title: President
18
SIGNATURE PAGE TO SERIES D
CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
PURCHASERS:
ROVENT II LIMITED PARTNERSHIP
By: Advent International Limited Partnership,
General Partner
By: Advent International Corporation, General
Partner
By: /s/ Xxxx Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx
Title: Investment Manager
ADVENT PERFORMANCE MATERIALS
LIMITED PARTNERSHIP
By: Advent International Limited Partnership,
General Partner
By: Advent International Corporation, General
Partner
By: /s/ Xxxx Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx
Title: Investment Manager
ADWEST LIMITED PARTNERSHIP
By: Advent International Limited Partnership,
General Partner
By: Advent International Corporation, General
Partner
By: /s/ Xxxx Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx
Title: Investment Manager
19
SIGNATURE PAGE TO SERIES D
CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
ADVENT PARTNERS LIMITED PARTNERSHIP
By: Advent International Corporation, General
Partner
By: /s/ Xxxx Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx
Title: Investment Manager
FIDELITY VENTURES, LTD. by: Fidelity
Capital Associates, Inc.(its General Partner)
By: /s/ Xxxx Xxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
20
SIGNATURE PAGE TO SERIES D
CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
ACCEL IV L.P.
By: Accel IV Associates L.P.,
its General Partner)
By: /s/ Xxxx Xxxxx
--------------------------------
Name:
Title: General Partner
ACCEL INVESTORS '93 L.P.
By: /s/ X. Xxxxxx Sednaoui
--------------------------------
Name:
Title: General Partner
ACCEL KEIRETSU L.P.
By: Accel Partners & Co., Inc.,
its General Partner
By: /s/ X. Xxxxxx Sednaoui
--------------------------------
Name:
Title: General Partner
XXXXXXX X. XXXXXXXXX PARTNERS
By: /s/ Xxxxxx X. Xxxxxxxxx
Name:
Title: General Partner
PROSPER PARTNERS
By: /s/ X. Xxxxxx Sednaoui
--------------------------------
Name:
Title: Attorney-in-Fact
21
SIGNATURE PAGE TO SERIES D
CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
BESSEMER VENTURE PARTNERS III L.P.
By: Deer III & Co.,
General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: General Partner
BVP III SPECIAL SITUATIONS L.P.
By: Deer III & Co.,
General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
--------------------------------
Title: General Partner
BRIMSTONE ISLAND CO. L.P.
By: *
--------------------------------
Name:
Title:
*
--------------------------------
Xxxxx X. Xxxxx
*
--------------------------------
Xxxxxx X. Xxxxx
*
--------------------------------
Xxxxxxx X. Xxxxx
22
SIGNATURE PAGE TO SERIES D
CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
*
--------------------------------
Xxxx X. Xxxxxxx
*
--------------------------------
Belisarius Corporation
*
--------------------------------
Xxxxxxx Corporation
*
--------------------------------
G. Xxxxx Xxxxxxxx
*
--------------------------------
Xxxxxxxxxxx Xxxxxxxx
*
--------------------------------
Gabrieli Family Foundation
*
--------------------------------
Xxxxx X. XxXxxxxxx
*
--------------------------------
Xxxxxx X. Xxxxxxx
*
--------------------------------
Xxxx X. Xxxx
*
--------------------------------
Xxxxxx X. X. Xxxxxxxx
23
SIGNATURE PAGE TO SERIES D
CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
*
--------------------------------
Xxxxxxx X. Xxxxxxxxxx
*
--------------------------------
Xxxxxxx X. Xxxxxx
*
--------------------------------
Neill X. Xxxxxxxxxx
*
--------------------------------
Xxxxxxx X. Xxxxxx
*
--------------------------------
Xxxx Xxxxxx
*
--------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxxx
* By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Attorney-in-Fact
24
