eRoomSystem Services, Inc. Identica Corp.
ASSET PURCHASE AGREEMENT
This Agreement entered into this the 7th day of September 2005 by eRoom System
Services, Inc., a Nevada corporation (hereinafter "Seller") and eRoomSystem
Technologies, Inc., a Nevada corporation and sole shareholder of Seller
("eRoomSystem Technologies"), on the one hand, and Identica Corp., an Ontario,
Canada corporation (hereinafter "Buyer"), on the other hand.
WHEREAS, Seller operates a business from Salt Lake City, Utah, engaged primarily
in the provision of professional services relating to maintenance of automated
refreshment centers, electronic safes and energy management products at hotels;
and
WHEREAS, Seller owns equipment, miscellaneous assets and intellectual property
used in connection with the provision of such professional services; and
WHEREAS, Buyer is a distributor and integrator of next-generation biometric
security solutions, including the TechSphere hand vascular pattern biometric
technology; and
WHEREAS, Buyer desires to acquire substantially all of the assets used or
useful, or intended to be used in the provision of the aforementioned
professional services and utilize them for its existing business operations; and
WHEREAS, Seller desires to sell such assets to Buyer; and
WHEREAS, all monies referenced and described herein are expressed as United
States Dollars.
NOW, THEREFORE, in consideration of mutual covenants contained herein and other
good and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
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SECTION 1. ASSETS PURCHASED; LIABILITIES ASSUMED
1.1 ASSETS PURCHASED. Seller agrees to sell to Buyer and Buyer agrees to
purchase from Seller, on the terms and conditions set forth in this Agreement,
the assets described in Schedule "A" ("Assets") attached hereto and made a part
hereof. However, Buyer agrees to provide Seller a perpetual license on the
software listed in Schedule "A".
1.2 ASSUMPTION OF LIABILITIES. Buyer shall be responsible for the assumption of
the liabilities described in Schedule "B" ("Assumed Liabilities") attached
hereto and made a part hereof.
SECTION 2. PURCHASE PRICE FOR ASSETS
The purchase price for the assets shall be Sixty Thousand Dollars ($60,000) (the
"Purchase Price").
SECTION 3. PAYMENT OF PURCHASE PRICE
The Purchase Price shall be paid in the form of a promissory note (the "Note"),
issued by Buyer in favor of Seller on even date herewith, as set forth in
Schedule "C" hereto. The Note shall have a term of twelve (12) months, and
interest shall accrue on the Note at the rate of eight percent (8%) per annum
from the date of the Note, compounded monthly. The Note shall be repaid as
follows: (i) on the six-month anniversary of the Note, the sum of $9,098.84;
(ii) on the seven-month anniversary of the Note, the sum of $9,098.84 (iii) on
the eight-month anniversary of the Note, the sum of $9,098.84; (iv) on the
nine-month anniversary of the Note, the sum of $9,098.84; (v) on the ten-month
anniversary of the Note, the sum of $9,098.84; (vi) on the eleven-month
anniversary of the Note, the sum of $9,098.84; and (vii) on the twelve-month
anniversary of the Note, the sum of $9,098.84.
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eRoomSystem Services, Inc. Identica Corp.
SECTION 4. OTHER AGREEMENTS
4.1 The Professional Services and Support Agreement (the "Services and Support
Agreement"), attached hereto as Schedule "D" and incorporated herein by this
reference in its entirety, between Buyer and eRoomSystem Technologies shall
include:
4.1.1 From the date of the Services and Support Agreement through the six-month
anniversary thereof, Seller shall pay all expenses relating to the operation of
its Salt Lake City, Utah office, less Seven Thousand Dollars ($7,000) per month
which amount shall be paid by Buyer to Seller. Commencing on the six-month
anniversary of the Services and Support Agreement, Buyer shall be solely
responsible for all overhead costs and expenses of the Salt Lake City, Utah
operation. Notwithstanding the foregoing, Buyer shall, at all times from the
date of the Support and Services Agreement, pay all expenses directly relating
to its distribution and integration of next-generation biometric security
solutions, including travel, long distance telephone, etc.
4.1.2 Buyer agrees that the overhead expenses and costs incurred by the Salt
Lake City, Utah during the initial six month period of the Support and Services
Agreement shall not exceed $115,000. To the extent that such amount is exceeded,
Buyer shall pay all such costs and expenses.
4.1.3 Seller shall transfer the lease obligation of its premises located in Salt
Lake City, Utah to Buyer. To the extent the landlord of such premises does not
provide Seller with a novation, then Buyer hereby agrees to assume all rent
obligations remaining under the terms of the lease and to indemnify Seller for
any obligation thereunder. Buyer shall provide Seller with the right to utilize
one office at the Salt Lake City, Utah premises. In addition, Buyer shall, at
all times, allow Seller to have full right of access to aforementioned premises.
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eRoomSystem Services, Inc. Identica Corp.
4.1.4 Seller and eRoomSystem Technologies shall, at all times, have priority for
the provision of support services to its hotel clients by Buyer prior to the
provision of support services to clients of Buyer or any other third party.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF SELLER AND EROOMSYSTEM TECHNOLOGIES
5.1 CORPORATE EXISTENCE. Seller is now, and on the date of closing will be, a
corporation duly organized and validly existing and in good standing under the
laws of the State of Nevada. Seller has all requisite corporate power and
authority to own, operate and/or lease the assets, as the case may be, and to
carry on its business as now being conducted.
5.2 AUTHORIZATION. The execution, delivery and performance of this Agreement
have been duly authorized and approved by the Board of Directors of Seller and
eRoomSystem Technologies, and this Agreement constitutes a valid and binding
agreement of Seller in accordance with its terms.
5.3 TITLE TO ASSETS. Except as described in this Agreement, Seller holds good
and marketable title to the assets, free and clear of restrictions on or
conditions to transfer or assign, and free and clear of liens, pledges, charges
or encumbrances.
5.4 BROKERS AND FINDERS. Neither Seller nor eRoomSystem Technologies has
employed any broker or finder in connection with the transaction contemplated by
this Agreement or taken action that would give rise to valid claims against any
party for a brokerage commission, finder's fee or other like payment.
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5.5 TRANSFER NOT SUBJECT TO ENCUMBRANCES OR THIRD PARTY APPROVAL. The execution
and delivery of this Agreement by Seller and eRoomSystem Technologies, and the
consummation of the contemplated transactions, will not result in the creation
or imposition of any valid lien, charge or encumbrance on any of the assets,
excluding the Note described in Section 3 hereto, and will not require the
authorization, consent, or approval of any third party, including any
governmental division or regulatory agency.
5.6 LABOR AGREEMENTS AND DISPUTES. Seller is neither a party to, nor otherwise
subject to any collective bargaining or other agreement governing the wages,
hours, in terms of employment of Seller's employees. Neither Seller nor
eRoomSystem Technologies are aware of any labor dispute(s) or labor trouble(s)
involving employees of Seller.
5.7 NONCANCELABLE CONTRACTS. At the time of closing, there will be no material
leases, employment contracts, contracts for services or maintenance (excluding
outstanding Hotel Revenue Sharing Lease Agreements and Installation,
Co-Maintenance and Software License and Upgrade Agreements to which Seller is a
party; it is expressly understood by the Parties, that Seller and eRoomSystem
Technologies shall, at all times, maintain sole ownership of its internally
developed software utilized expressly for the installation and maintenance of
its automated refreshment centers, electronic safes and energy management
systems), or other similar contracts, existing or related to or connected with
the operation of Seller's business not cancelable within thirty (30) days, other
than the agreement with Commerce CRG with regard to the lease of the premises
located in Salt Lake City, Utah.
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5.8 LITIGATION. Seller and eRoomSystem Technologies have no knowledge of any
claim, litigation, proceeding, or investigation pending or threatened against
Seller that might result in any material adverse change in the business or
condition of the assets being conveyed under this Agreement.
5.9 ACCURACY OF REPRESENTATIONS AND WARRANTIES. None of the representations or
warranties of Seller or eRoomSystem Technologies contains or will contain any
untrue statements of a material fact or omit or will omit or misstate a material
fact necessary in order to make statements in this Agreement not misleading.
Seller and eRoomSystem Technologies know of no fact that has resulted, or that
in the reasonable judgment of eRoomSystem Technologies will result in material
change in the business, operations, or assets of Seller that has not been set
forth in this Agreement or otherwise disclosed to Buyer.
SECTION 6. REPRESENTATIONS OF BUYER
Buyer represents and warrants as follows:
6.1 CORPORATE EXISTENCE. Buyer is a corporation duly organized, validly
existing, and in good standing under the laws of the Province of Ontario,
Canada. Buyer has all requisite corporate power and authority to enter into this
Agreement and perform its obligations hereunder.
6.2 AUTHORIZATION. The execution, delivery and performance of this Agreement
have been duly authorized and approved by the Board of Directors of Buyer, and
this Agreement constitutes a valid and binding agreement of Buyer in accordance
with its terms.
6.3 BROKERS AND FINDERS. Buyer has not employed any broker or finder in
connection with the transactions contemplated by this Agreement and has taken no
action that would give rise to a valid claim against any party for a brokerage
commission, finder(s)' fee or other like payment.
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eRoomSystem Services, Inc. Identica Corp.
6.4 ACCURACY OF REPRESENTATIONS AND WARRANTIES. None of the representations or
warranties of Buyer contains or will contain any untrue statements(s) of a
material fact or omit or will omit or misstate a material fact necessary in
order to make the statements contained herein not misleading.
SECTION 7. COVENANTS OF SELLER AND EROOMSYSTEM TECHNOLOGIES
7.1 SELLER'S OPERATION OF BUSINESS PRIOR TO CLOSING. Seller and eRoomSystem
Technologies agree that between the date of this Agreement and the date of
closing, Seller will:
7.1.1 Use its best efforts to preserve its business organization and preserve
the continued operation of its business with its customers, suppliers, and
others having business relations with Seller; and
7.1.2 Not assign, sell, lease or otherwise transfer or dispose of any of the
assets listed in Schedule "A", except to Buyer; and
7.1.3 Maintain all of its assets in their present conditions, reasonable wear
and tear and ordinary usage accepted and maintain the inventories at levels
normally maintained.
7.2 ACCESS TO INFORMATION. At reasonable times prior to the closing date, Seller
will provide Buyer and its representatives with reasonable access during
business hours to the assets, titles, contracts and records of Seller and
furnish such additional information concerning Seller's business Buyer may from
time to time reasonably request.
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eRoomSystem Services, Inc. Identica Corp.
7.3 EMPLOYEE MATTERS.
Prior to the closing date, Seller will not, without Buyer's prior written
consent, enter into any material agreements with its employees or contractors,
increase the rate of compensation or bonus payable to or to become payable to
any employee or effect any change in the management, personnel policies, or
employee benefits, except in accordance with existing employment practices.
7.4 CONDITIONS AND BEST EFFORTS. Seller and eRoomSystem Technologies will use
their best efforts to effectuate the transactions contemplated by this Agreement
and to fulfill all the conditions of the obligations of Seller and eRoomSystem
Technologies under this Agreement, and will do all acts and things as may be
required to carry out their respective obligations under this Agreement and to
consummate and complete this Agreement.
SECTION 8. COVENANTS OF BUYER
8.1 CONDITIONS AND BEST EFFORTS. Buyer will use its best efforts to effectuate
the transaction contemplated by this Agreement and to fulfill all the conditions
of Buyer's obligations under this Agreement, and shall do all acts and things as
may be required to carry out Buyer's obligations and to consummate this
Agreement.
8.2 CONFIDENTIAL INFORMATION. If for any reason the sale of Assets is not
closed, Buyer will not disclose to third parties any confidential information
received from Seller or eRoomSystem Technologies in the course of investigating,
negotiating, and performing the transactions contemplated by this Agreement.
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eRoomSystem Services, Inc. Identica Corp.
SECTION 9. CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS
The obligation of Buyer to purchase the Assets is subject to the fulfillment,
prior to or at the closing date, of each of the following conditions, any one or
portion of which may be waived in writing by Buyer:
9.1 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND EROOMSYSTEM
TECHNOLOGIES.
All representations and warranties made in this Agreement by Seller and
eRoomSystem Technologies shall be true as of the closing date as fully as if
such representations and warranties had been made as of the closing date.
Neither Seller nor eRoomSystem Technologies shall have violated or shall have
failed to perform in accordance with any covenant contained in this Agreement.
9.3 CONDITIONS OF THE BUSINESS. There shall have been no material adverse change
in the manner in operation of Seller's business prior to the closing date.
9.4 NO SUITS OR ACTIONS. At the closing date, no suit, action or other
proceeding shall have been threatened or instituted to restrain, enjoin or
otherwise prevent the consummation of this Agreement or the contemplated
transactions.
SECTION 10. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER AND EROOMSYSTEM
TECHNOLOGIES
The obligations of Seller and eRoomSystem Technologies to consummate the
transactions contemplated by this Agreement are subject to the fulfillment,
prior to or on the closing date, of the following condition, which may be waived
in writing by Seller: (i) the legal assignment of the lease agreement for the
Salt Lake City, Utah facility shall be approved by the landlord, Commerce CRG.
Such assignment shall eliminate any further legal obligation on the part of
Seller with respect to the aforementioned lease.
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eRoomSystem Services, Inc. Identica Corp.
All representations and warranties made in this Agreement by Buyer shall be true
as of the closing date as fully as if such representations and warranties have
been made on and as of the closing date, and Buyer shall not have violated or
shall not have failed to perform in accordance with any covenant contained in
this Agreement.
SECTION 11. BUYER'S ACCEPTANCE
Buyer represents and acknowledges that it has entered into this Agreement on the
basis of its own examination, personal knowledge, and opinion the value of the
business. Buyer has not relied on any representations made by Seller other than
those specified in this Agreement. Buyer further acknowledges that Seller has
made no agreement or promise to repair or improve any equipment or other
personal property being sold to Buyer under this Agreement, and that Buyer takes
all such property in the condition existing on the date of this Agreement,
except as otherwise provided in this Agreement.
SECTION 12. INDEMNIFICATION AND SURVIVAL
12.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made in this Agreement shall survive the closing of this Agreement,
except that any party to whom a representation of warranty has been made in this
Agreement shall be deemed to have waived any misrepresentation or breach of
representation or warranty which such party had knowledge prior to closing. Any
party learning of a misrepresentation or breach of representation or warranty
under this Agreement shall immediately give notice thereof to all other parties
to this Agreement. The representations and warranties in this Agreement shall
terminate one (1) year from the closing date, and such representations or
warranties shall thereafter be without force or effect, except any claim with
respect to which notice has been given to the party to be charged prior to such
expiration date.
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eRoomSystem Services, Inc. Identica Corp.
12.2 INDEMNIFICATION BY SELLER AND EROOMSYSTEM TECHNOLOGIES
12.2.1 Seller and eRoomSystem Technologies each hereby agree to indemnify and
hold Buyer, its successors and assigns, harmless from and against:
(1) Any and all claims, liabilities and obligations of every kind and
description, contingent or otherwise, arising out of or related to the operation
of Seller's business prior to the close of business on the day before the
closing date, except for claims, liabilities and obligations of Seller expressly
assumed by Buyer under this Agreement or paid by insurance maintained by Seller,
eRoomSystem Technologies or Buyer.
(2) Any and all damage or deficiency resulting from any material
misrepresentation or breach of warranty or covenant, or nonfulfillment of any
agreement on the part of Seller or the eRoomSystem Technologies under this
Agreement.
12.2.2 The indemnity obligations of Seller and eRoomSystem Technologies under
12.2.1 shall be subject to the following:
(1) If any claim is asserted against Buyer that would give rise to a claim by
Buyer against Seller and eRoomSystem Technologies for indemnification under the
provisions of this paragraph, the Buyer shall promptly give written notice to
eRoomSystem Technologies concerning such claim as eRoomSystem Technologies
shall, at no expense to Buyer, defend the claim.
(2) eRoomSystem Technologies shall not be required to indemnify buyer for any
amount that exceeds the Purchase Price.
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eRoomSystem Services, Inc. Identica Corp.
12.3 BUYER'S INDEMNIFICATION. Buyer agrees to defend, indemnify and hold
harmless Seller and eRoomSystem Technologies from and against:
12.3.1 Any all claims, liabilities and obligations of every kind and description
arising out of or related to the operation of the business of maintaining and
servicing the automated refreshment centers, electronic safes and energy
management systems of eRoomSystem Technologies following the closing date. Buyer
shall, at all times, use its best good faith efforts to provide the services to
eRoomSystem Technologies referred to in the immediately preceding sentence.
12.3.2 Any all damage or deficiency resulting from any material
misrepresentation, breach of warranty or covenant, or nonfulfillment of any
agreement on the part of Buyer under this Agreement.
SECTION 13. CLOSING
13.1 TIME AND PLACE. This Agreement shall be closed at the offices of Identica
Corp. 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx Xxxxxx X0X 0X0 on or
before the 7th day of September 2005, or such other time as the parties may
agree in writing. If the closing has not occurred on or before September 30th,
2005, then either party may elect to terminate this Agreement. If, however, the
closing has not occurred because of a breech of contract by one or more of the
parties, the breaching party or parties shall remain liable for breech of
contract.
13.2 OBLIGATIONS OF SELLER AND EROOMSYSTEM TECHNOLOGIES AT CLOSING. At the
closing, Seller and eRoomSystem Technologies shall deliver to buyer the
following:
13.2.1 Bills of Sale, Assignments, properly endorsed Certificates of Title, and
other instruments of transfer, and form and substance reasonably satisfactory to
counsel for Buyer, necessary to transfer and convey all of the assets to Buyer
listed in Schedule "A" hereto.
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13.2.3 Such other certificates and documents as may be called for by the
provisions of this Agreement.
13.3 OBLIGATIONS OF BUYER AT CLOSING. At the closing, Buyer shall deliver to
Seller the following:
13.3.1 The Professional Services and Support Agreement between Buyer and
Seller's Shareholder described in Section 4 hereof and attached herewith as
Schedule "D".
13.3.2 An executed Promissory Note, in the form attached hereto as Schedule "C",
including the payment schedule for the Purchase Price.
13.3.3 Such other certificates and documents as may be called for by the
provisions of this Agreement.
SECTION 14. RIGHTS AND OBLIGATIONS SUBSEQUENT TO CLOSING
14.1 BOOKS AND RECORDS. This Agreement does not include the books of account and
records of Seller's business. However, a copy of such books and records,
excluding Seller's general ledger, will be provided to Buyer for a period of six
(6) months upon written request. Upon the conclusion of the six (6) month
period, Buyer shall return the copy of such books and records to Seller. Buyer
will exercise reasonable care in the safekeeping of such records. Seller shall
retain its general ledger but shall make it available for inspection by Buyer
from time to time upon reasonable request.
14.2 SELLER'S RIGHT TO PAY. In the event Buyer fails to make any payment of
taxes, assessments, insurance premiums, or other charges that Buyer is required
to pay to third parties under this Agreement, Seller shall have the right, but
not the obligation, to pay the same. Buyer will reimburse Seller for any such
payment immediately upon Seller's demand, together with interest at the same
rate provided in the Note from the date of Seller's payment until Buyer
reimburses Seller. Any such payment by Seller shall not constitute a waiver by
Seller of any remedy available by reason of Buyer's default for failure to make
the payments.
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eRoomSystem Services, Inc. Identica Corp.
SECTION 15. BULK SALES ACT.
Buyer waives compliance by Seller with the Bulk Sales Act, if any (the "Act").
In the event any creditor of Seller claims the benefit of the Bulk Sales Act
against Buyer or any of the assets being conveyed to Buyer under this Agreement,
Seller and eRoomSystem Technologies shall immediately pay or otherwise satisfy
such claim or undertake its defense. Seller and eRoomSystem Technologies shall
indemnify and hold Buyer harmless from and against any and all loss, expense, or
damage resulting from the failure to comply with the Bulk Transfer law. If
Seller fails to comply with the provision of this Section 15 and Buyer is
required to pay any creditor of Seller in order to protect the property
purchased under this Agreement from claims or liens of Seller's creditors,
except those assumed by Buyer, the Buyer may offset the amount it pays against
the balance due Seller by furnishing to the Seller proof of such payment in the
form of a receipt from the creditor involved.
SECTION 16. TERMINATION OF AGREEMENT
16.1 BY MUTUAL CONSENT. This Agreement may be terminated only by the mutual
written consent of Buyer and Seller.
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16.2 BREACH OF REPRESENTATIONS AND WARRANTIES; FAILURE OF CONDITIONS. Buyer may
elect by notice to Seller, and Seller may elect by notice to Buyer, to terminate
this Agreement if;
16.2.1 The terminating party shall have discovered a material error,
misstatement, or omission in the representations and warranties made in this
Agreement by the other party which shall not have been cured by such other party
within fifteen (15) days after written notice to such other party specifying in
detail such asserted error, misstatement, or omission, or by the closing date,
whichever first occurs.
16.2.2 All of the conditions precedent of the terminating party's obligations
under this Agreement as set forth in Sections 9 and 10 hereof, as the case may
be, have not occurred and have not been waived by the terminating party on or
prior to the closing date.
16.3 CLOSING NOTWITHSTANDING THE RIGHT TO TERMINATE. The party with a right to
terminate this Agreement pursuant to Section 16.2.1 or 16.2.2 shall not be bound
to exercise such right, and its failure to exercise such right shall not
constitute a waiver of any other right it may have under this Agreement,
including but not limited to remedies for breach of a representation, warranty,
or covenant.
SECTION 17. MISCELLANEOUS
17.1 The provisions of this Agreement shall be binding upon and inure to the
benefit of the heirs, personal representatives, successors, and assigns of the
parties.
17.2 Any notice or other communication required or permitted to be given under
this Agreement shall be in writing and shall be mailed by certified mail, return
receipt requested, postage prepaid, addressed to the parties as follows:
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eRoomSystem Services, Inc. Identica Corp.
SELLER: BUYER:
------ -----
eRoomSystem Services, Inc. Identica Corp.
0000 Xxxxxxx Xxx. 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000 Xxxxxxx, Xxxxxxx X0X 0X0 Xxxxxx
All notices and other communications shall be deemed to be given at the
expiration of three (3) days after the date of mailing. The addresses to which
notices or other communications shall be mailed may be changed from time to time
by giving written notice to the other parties as provided above.
17.3 In the event of a default under this Agreement, the defaulting party shall
reimburse the non-defaulting party or parties for all costs and expenses
reasonably incurred by the non-defaulting party or parties in connection with
the default, including without limitation attorney fees. Additionally, in the
event a suit or action is filed to enforce this Agreement or with respect to
this Agreement, the prevailing party or parties shall be reimbursed by the other
party for all costs and expenses incurred in connection with the suit or action,
including without limitation reasonable attorney fees at the trial level and on
appeal.
17.4 No waiver of any provision of this Agreement shall be deemed, or shall
constitute, a waiver of any other provision, whether or not similar, nor shall
any waiver constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver.
17.5 This Agreement shall be governed by and shall be construed in accordance
with the laws of the Province of Ontario.
17.6 This Agreement constitutes the entire agreement between the parties
pertaining to its subject matter and it supersedes all prior contemporaneous
agreements, representations, and understandings of the parties. No supplement,
modification, or amendment of this Agreement shall be binding unless executed in
writing by all parties.
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eRoomSystem Services, Inc. Identica Corp.
Witness the signatures of the parties this 7th day of September, 2005.
eRoomSystem Services, Inc.: Identica Corp.:
BY: BY:
Xxxxx X. Xxxxxxxxx Xxxxx Xxxxxxx
---------------------------------------- -------------------------------
Name Name
/s/ Xxxxx X. Xxxxxxxxx /s/ Xxxxx Xxxxxxx
---------------------------------------- -------------------------------
Signature Signature
Chief Executive Officer and President President
---------------------------------------- -------------------------------
Title Title
eRoomSystem Technologies, Inc.:
Xxxxx X. Xxxxxxxxx
----------------------------------------
Name
/s/ Xxxxx X. Xxxxxxxxx
----------------------------------------
Signature
Chief Executive Officer and President
----------------------------------------
Title
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eRoomSystem Services, Inc. Identica Corp.
SCHEDULE A
ASSETS
Four Executive Desks
Five Oak Bookcases
Three 4 - Drawer Filing Cabinets
One Angled Return Desks
Angled Return Desks
Conference Table
(12) Guest Chairs
Telephone System
Three 4 - Drawer Filing Cabinets
Filing Cabinet - Legal
File Cabinet (Fire Proof)
Fire Safe
Protel Software for R & D
Solder Station
Oscilliscope TDS3052
Oscilliscope TDS210 (New)
Function Generator
2 72x36x30 Work Benchs
18 volt power supply
60 volt power supply
Dan's Computer
Nate's computer
John's Computer
Miscellaneous older computers
eRoomSystem Web Technologies Package
(see attached detailed description)
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eRoomSystem Web Technologies Package
What it is -
The eRoomSystem Web Technologies Package consists of three frameworks, an
internal company intranet, an external corporate internet, a hybrid extranet
used by customers and support personnel. Each of these frameworks was custom
written by Xxx Xxxx for eRoomSystem Technologies. The integration for these
frameworks is based upon the SQL(structured query language) Language, and
currently runs on Microsoft SQL Server.
What it was written in -
The primary web language used in the frameworks is PHP (pre hypertext processor)
server side scripting language. Each framework contains standard HTML (hypertext
markup language) and JavaScript for feature enhancement.
How it works -
The Intranet is a series of web pages that dynamically retrieve and store data
in the MS SQL database within a Dell Poweredge server. The intranet is only
accessible from the LAN and via an extranet portal. The intranet consists of a
CRM contact manager, a trouble ticket system for support calls, RMA return
materials authorization system, sales and maintenance databases, as well as
myriad other support tools and documentation including such items as a step by
xxxx xxxxx to restoring a crashed system.
The Internet site consists of a standard external representation of the company
and its policies. The key feature is the extranet crossover which allows
customers the ability to retrieve service manuals, cheat sheets, as well as
Spanish translated documentation for training, all in .PDF format.
The extranet provides external employees LAN access to company data, the
intranet, and customer data via secure socket layer.
Why it is such a value -
The eRoomSystem Web Technologies Package is a great value, as all the frameworks
were written in a form that can be adapted to fit any company and any situation
in a timely manner. This provides for a quick solution for companies looking for
a total web solution.
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SCHEDULE B
ASSUMED LIABILITIES
None.
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SCHEDULE C
PROMISSORY NOTE
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THIS PROMISSORY NOTE (THE "NOTE") HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY OTHER APPLICABLE FEDERAL
OR STATE SECURITIES LAWS, IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION
REQUIREMENTS OF SUCH LAWS, INCLUDING, WITHOUT LIMITATION, THE EXEMPTION
CONTAINED IN SECTION 4(2) OF THE SECURITIES ACT. THIS NOTE MAY NOT BE SOLD OR
TRANSFERRED UNLESS (1) A REGISTRATION STATEMENT HAS BECOME AND IS THEN EFFECTIVE
WITH RESPECT TO SUCH SECURITIES, (2) THIS NOTE IS TRANSFERRED PURSUANT TO RULE
144 PROMULGATED UNDER THE SECURITIES ACT (OR ANY SUCCESSOR RULE) OR (3) IDENTICA
CORP. HAS RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT, TO THE
EFFECT THAT THE PROPOSED SALE OR TRANSFER OF SUCH SECURITIES IS EXEMPT FROM
REGISTRATION UNDER THE SECURITIES ACT AND ALL OTHER APPLICABLE FEDERAL OR STATE
SECURITIES LAWS.
Promissory Note
of
Identica corp.
$60,000 Toronto, Canada
September 7, 0000
XXXXXXXX CORP., an Ontario, Canada corporation (the "Company"), for value
received, hereby promises unconditionally to pay to the order of eRoomSystem
Services, Inc., a Nevada corporation, or its assigns (collectively, the
"Holder"), at the address set forth in Section 8 hereof, in lawful money of the
United States of America ("Dollars" or "$") and in immediately available funds,
the principal amount of SIXTY THOUSAND DOLLARS ($60,000) (the "Principal"), plus
any accrued and unpaid interest on the terms set forth hereinbelow.
1. Term. This promissory note (the "Note") shall mature on the one (1)
year anniversary date of issuance (the "Maturity Date").
2. Principal; Interest; and Prepayment.
(a) Principal. Principal (together will all accrued and unpaid interest (as
defined below)) shall be paid in the in the amounts, and on the dates, set forth
in Schedule "A" hereto. Concurrent with payment in full of this Note, including
all accrued and unpaid interest and any other amounts owing hereunder, the
Holder shall surrender this Note to the Company for cancellation.
(b) Interest. Interest on this Note ("Interest") shall accrue from the date of
issuance at a rate equal to 8% per annum ("Interest Rate") and compounded
monthly.
(c) Prepayment. The Principal may be prepaid by the Company at any time,
upon thirty (30) days' prior written notice to the Holder, without penalty.
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eRoomSystem Services, Inc. Identica Corp.
3. Events of Default. If one or more of the following events ("Events of
Default") shall have occurred and be continuing:
(a) the Company shall fail to pay when due any Principal of,
or Interest on, this Note, or any fees or any other amount payable hereunder;
(b) any representation, warranty, certification or statement
made by the Company in the Asset Purchase Agreement shall prove to have been
incorrect or misleading in any material respect when made (or deemed made);
(c) judgments or orders for the payment of money shall be rendered
against the Company and such judgments or orders shall be in excess of $500,000
in the aggregate and shall not have been discharged (and provision shall not
have been made for such discharge) for a period of thirty days;
(d) the Company shall commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to itself or
its debts under any bankruptcy, insolvency or other similar law now or hereafter
in effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of its
property, or shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding
commenced against it, or shall make a general assignment for the benefit of
creditors, or shall fail generally to pay its debts as they become due, or shall
take any corporate action to authorize any of the foregoing; or
(e) an involuntary case or other proceeding shall be commenced
against the Company seeking liquidation, reorganization or other relief with
respect to it or its debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall remain
undismissed for a period of 60 days;
then, and in every such event, the Holder may, by written notice to the Company,
declare the Principal (together with accrued Interest thereon and all other
amounts owing hereunder) shall thereupon become, immediately due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Company. In addition, the Holder shall have the right
to take back the assets sold and employees released.
4. Payments; Extension of Maturity. All payments of Principal and Interest (and
all other amounts owing hereunder) to be made by the Company in respect of this
Note shall be made in the form of cash via wire transfer to an account
designated by the Holder by written notice to the Company. All amounts payable
under this Note shall be paid free and clear of, and without reduction by reason
of, any deduction, setoff, or counterclaim. If the Principal and accrued and
unpaid Interest become due and payable on any day other than a business day, the
Maturity Date shall be extended to the next succeeding business day, and to such
payable amounts shall be added the Interest which shall have accrued during such
extension period at the rate per annum herein specified.
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eRoomSystem Services, Inc. Identica Corp.
5. Replacement of Note. Upon receipt by the Company of evidence satisfactory to
it of the loss, theft, destruction or mutilation of this Note, and (in case of
loss, theft or destruction) of indemnity reasonably satisfactory to it, and upon
reimbursement to the Company of all reasonable expenses incidental thereto, and
(if mutilated) upon surrender and cancellation of this Note, the Company shall
make and deliver to the Holder a new note of like tenor in lieu of this Note.
Any replacement note made and delivered in accordance with this Section 5 shall
be dated as of the date hereof.
6. No Waivers by Delay or Partial Exercise. No delay by the Holder in exercising
any powers or rights hereunder shall operate as a waiver of such power or right,
nor shall any single or partial exercise of any power or right preclude other or
further exercise thereof, or the exercise of any other power or right hereunder
or otherwise.
7. Further Assurances. Each party agrees to execute such other documents,
instruments, agreements and consents, and take such other actions as may be
reasonably requested by the other parties hereto to effectuate the purposes of
this Note.
8. Notices. All notices required or permitted hereunder shall be in writing and
shall be deemed effectively given: (a) upon personal delivery to the party to be
notified, (b) when sent by confirmed telex or facsimile if sent during normal
business hours of the recipient, if not, then on the next Business Day, (c) five
(5) days after having been sent by registered or certified mail, return receipt
requested, postage prepaid, or (d) one (1) day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with written
verification of receipt. All communications shall be sent as follows:
If to the Company: Identica Corp.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx Xxxxxx
X0X 0X0
FAX: 000-000-0000
Attention: Corporate Secretary
If to the Holder: eRoomSystem Technologies, Inc.
0000 Xxxxxxx Xxx.
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx
Telecopy: 000-000-0000
or to such other address or telecopy number as the party to whom notice is to be
given may have furnished to the other party in writing in accordance herewith.
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eRoomSystem Services, Inc. Identica Corp.
9. Amendments and Waivers. No modification, amendment or waiver of any provision
of, or consent required by, this Note, nor any consent to any departure
herefrom, shall be effective unless it is in writing and signed by each of the
Company and the Holder. Such modification, amendment, waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
10. Exclusivity and Waiver of Rights. No failure to exercise and no delay in
exercising on the part of any party, any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, power or privilege preclude any other right, power or privilege. The
rights and remedies herein provided are cumulative and are not exclusive of any
other rights or remedies provided by law.
11. Invalidity. Any term or provision of this Note shall be ineffective to the
extent it is declared invalid or unenforceable, without rendering invalid or
enforceable the remaining terms and provisions of this Note.
12. Headings. Headings used in this Note are inserted for convenience only and
shall not affect the meaning of any term or provision of this Note.
13. Assignment. This Note and the rights and obligations hereunder shall not be
assignable or transferable by the Company without the prior written consent of
the Holder. The Holder may assign this Note and the rights and obligations
hereunder without the prior written consent of the Company. Any instrument
purporting to make an assignment in violation of this Section 13 shall be void.
14. Survival. Unless otherwise expressly provided herein, all representations
warranties, agreements and covenants contained in this Note shall survive the
execution hereof and shall remain in full force and effect until the payment in
full of all Principal and accrued and unpaid Interest and all other amounts
owing under this Note.
15. Miscellaneous. This Note shall inure to the benefit of the Company and the
Holder, and all their respective successors and permitted assigns. Nothing in
this Note is intended or shall be construed to give to any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this Note or any provision herein contained.
16. Governing Law. This Note shall be governed by, and construed in accordance
with, the laws of the Province of Ontario.
17. Miscellaneous. The Company hereby expressly waives presentment, demand,
protest, or notice of any kind. The Company agrees to pay all fees, costs and
expenses, including reasonable attorneys' fees and legal expenses, incurred by
Holder in endeavoring to collect any amounts payable hereunder which are not
paid when due, whether at maturity, upon acceleration or otherwise.
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eRoomSystem Services, Inc. Identica Corp.
IN WITNESS WHEREOF, the undersigned has executed this Note as of the date first
above written.
IDENTICA CORP.
By: /s/ Xxxxx Xxxxxxx
-------------------
Name: Xxxxx Xxxxxxx
-----------------
Its: President
-----------------
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eRoomSystem Services, Inc. Identica Corp.
SCHEDULE "A"
NOTE REPAYMENT SCHEDULE
The note repayment schedule is as follows:
1. On the six-month anniversary of the Note, the sum of $9,098.84.
2. On the seven-month anniversary of the Note, the sum of $9,098.84.
3. On the eight-month anniversary of the Note, the sum of $9,098.84.
4. On the nine-month anniversary of the Note, the sum of $9,098.84.
5. On the ten-month anniversary of the Note, the sum of $9,098.84.
6. On the eleven-month anniversary of the Note, the sum of $9,098.84.
7. On the twelve-month anniversary of the Note, the sum of $9,098.84.
Page 27 of 33
eRoomSystem Services, Inc. Identica Corp.
SCHEDULE D
PROFESSIONAL SERVICES AND SUPPORT AGREEMENT
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eRoomSystem Services, Inc. Identica Corp.
IDENTICA CORP. PROFESIONAL SERVICES AGREEMENT
THIS AGREEMENT DATED THE 7TH DAY OF SEPTEMBER, 2005
BETWEEN: IDENTICA CORP., a corporation formed under the laws of Ontario, Canada;
and
EROOMSYSTEM TECHNOLOGIES, INC., a corporation formed under the laws of the state
of Nevada, United States of America.
WHEREAS, eRoomsystems Technologies, Inc. ("eRoom") has a professional services
subsidiary known as eRoomSystem Services, Inc., which is located in Salt Lake
City, Utah ("eRoomSystem Services") and is currently underutilized; and
WHEREAS, Identica Corp. ("Identica") requires the services of such an
organization and desires to acquire the assets and assume certain liabilities of
eRoomSystem Services; and
WHEREAS, eRoom has entered into a number of Hotel Revenue Sharing Lease
Agreements ("Hotel Agreements") with the Hotels listed in Schedule "A" (the
"Hotels") to this Agreement which, among other things, provide financing of
certain equipment to store valuables and for the refrigeration and dispensing of
beverage and snack food items within the guest rooms of Hotels ("Equipment") and
which Equipment automatically records the sales and usage of merchandise in the
Hotels; and
WHEREAS, eRoom has ongoing obligations to its customers in accordance with the
existing Hotel Agreements.
NOW, THEREFORE, Identica and eRoom ("the Parties") hereby enter into this
Professional Services Agreement to provide the services to Hotels described in
the existing Hotels Agreements.
1. Service
Identica will provide twenty-four (24) hour telephone service and maintenance to
help maintain and keep the Equipment in normal working order during the term of
the Hotel Agreements. Identica shall provide all necessary parts to service the
Equipment for the term of the respective Hotel Agreements; provided, however,
that eRoom shall reimburse Identica for the cost of such parts. Such services
shall, at all times, have first priority over any other activities taking place
at the Salt Lake City facility.
2. Maintenance Visits
Pursuant to the Hotel Agreements, Hotels shall continue to provide room and
board for the training and service to be provided by the professional services
team at no expense to Identica as required under the terms of the Hotel
Agreements.
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eRoomSystem Services, Inc. Identica Corp.
3. Monitoring Visits
Identica will monitor the operations of the Equipment, and shall make
semi-annual visits to the Hotels to provide Hotel staff with additional
training, merchandising and operational recommendations and software support.
Pursuant to the Hotel Agreements, the Hotels shall continue to provide room and
board for the professional services team for monitoring visits at no expense to
Identica, and on an as needed basis.
4. Software Ownership
The Parties acknowledge that eRoom owns all intellectual property rights in and
to the software utilized in the provision of professional services to Hotels,
including all enhancements, modification and upgrades thereto. Subject to, and
on the terms and conditions hereof and during the term of this Professional
Services Agreement as hereinafter described (the "Term"), eRoomSystem Services
grants to Identica a non-transferable and non-exclusive license (the "License")
to utilize the software in operating the Equipment for the purpose of supplying
professional services to Hotels. The software must be used solely by Identica
for this purpose and subject to the limitations provided herein and Identica
shall not be entitled to:
a) Give, deliver, provide access to, or authorize the use of, the software by
any person other than authorized employees or consultants of Identica; or
b) Give, sell, assign or grant any rights with respect to the software to any
person, corporation, partnership, third party entity without the express written
consent of eRoom. Identica may not assign the License without the prior written
consent of eRoom, which consent may be withheld.
c) Identica may only assign the License to a person, firm, company, partnership
or corporation that acquires Identica by means of a merger, consolidation or
acquisition of all or substantially all of the property and assets of Identica,
or a wholly owned subsidiary of Identica.
d) eRoom retains exclusive title to, any and all ownership in, the software, and
all copies thereof, regardless of the form or medium in which the original or
any copies thereof may exist. All rights with respect to the software not
expressly granted to Identica hereunder are reserved to eRoom. The License does
not grant Identica any right, claim, title to or ownership interest in the
software, any trade secret, patent, copyright, trade name, trademark or other
proprietary right owned, applied for or subsequently acquired by eRoom.
e) Identica agrees that the software will be used by Identica solely at its
address(es) or at Hotels, subject to the terms of the Hotel Agreements, and
solely for the operation of the Equipment. Any modification, enhancement, change
in or addition to the software made by Identica, Hotels or otherwise, shall be
and remain the sole and exclusive property of eRoom.
f) Identica agrees that the software and related materials contain proprietary
information and trade secrets of eRoom (the "Confidential Information").
Identica agrees that it will authorize and permit the use of the software and
Confidential Information by its employees and consultants solely for the purpose
and in accordance with the provisions hereof, and will not disclose, authorize
or permit disclosure by its employees and consultants of the Confidential
Information to any person or entity other than Identica's authorized employees
or consultants.
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eRoomSystem Services, Inc. Identica Corp.
g) The Term of this License shall be for the period of time in which Identica
continuously uses the Equipment to provide professional services to Hotels in
accordance with the terms and conditions of this Professional Services
Agreement, and shall be co-terminus with the Professional Services Agreement.
Upon the end of the Term, Identica shall return the software, including all
enhancements, source codes, documentation and copies, to eRoom.
h) All copyright, patent, trade secret, trademark, Confidential Information and
other intellectual proprietary rights in the software are, and shall remain, the
exclusive property of eRoom. Identica agrees not to disclose any of the software
to any third party; reproduce, transfer, or distribute the software or related
documents to any third party without the expressed written consent of eRoom. In
addition, all data and information collected by or residing in the Equipment, at
all times during the Term and thereafter, are the property of eRoom. Identica
shall be solely responsible for the actions of its employees, and consultants
with respect to the software.
5. Service Fees and Costs.
a) eRoom shall pay to Identica a fee for the professional services to be
rendered by it, as well as parts for Equipment provided by Identica pursuant to
this Professional Services Agreement, in the amount of $0.50 per month (the
"Service Payment") per guest room at Hotel's where the Equipment is located and
is subject to an existing and outstanding Hotel Agreement (the "Guest Rooms").
The Service Payment may be increased by a cost of living adjustment ("COLA")
annually on the anniversary of the Professional Services Agreement by written
notice provided to eRoom. The Service Payment shall be made monthly in advance.
The total monthly Service Payment will be calculated by multiplying the number
of Guest Rooms times $0.50. The Service Payments will commence on the 1st day of
the 6th month of this Agreement. Prior to that date, eRoom shall pay to Identica
the exact cost of the facility, consulting fees and travel expenses of the Salt
Lake City location, including wages and fees paid to existing consultants
currently utilized at that facility, less $7,000 per month. Any travel expenses
and other expenses not related to the provision of professional services to
Hotels shall be the responsibility of Identica. Identica shall invoice an
estimated amount for the first month payment due hereunder, based upon the last
three month's average expense for the facility, and shall adjust the second
month payment due hereunder based upon actual expenditures directly incurred
during the first month payment period.
b) eRoom shall reimburse Identica, at cost, for any parts purchased to maintain
the operability of the Equipment. Identica shall invoice eRoom for such costs on
a monthly basis, and eRoom shall pay such invoices within fifteen (15) days of
receipt.
6. Term of Maintenance Agreement.
This Professional Services Agreement shall become effective on the date of
execution and shall remain in force and effect until all existing Hotel
Agreements have expired or been terminated by eRoom. eRoom shall have the right
to terminate the Professional Services Agreement upon providing 45 days advance
notice.
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eRoomSystem Services, Inc. Identica Corp.
7. Notice.
All notice or other communications required or permitted to be given hereunder
shall be in writing and shall be (i) delivered personally, (ii) mailed, postage
prepaid, or (iii) faxed and a copy mailed to the parties, as follows:
TO: Identica Corp.
00 Xxxxxxxxxx Xxxxxx, Xxxxx 000
xxxxxx, Xxxxxxx Xxxxxx
6A 1Z4
EL: 000-000-0000 X000
AX: 000-000-0000
ttention: Corporate Secretary
TO: eRoomsystem Technologies, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX
00000
TEL: 000-000-0000
FAX: 000-000-0000
Attention: Chief Executive Officer
8. Miscellaneous Provisions.
The following miscellaneous provisions are an integral part of this Maintenance
Agreement:
a) Binding Obligation. This Professional Services Agreement shall inure to the
benefit of and constitute a binding obligation upon the contracting parties,
their respective heirs, legal representatives and permitted assigns.
b) Modifications. This Professional Agreement may not be modified except by an
instrument in writing signed by the parties hereto.
c) Headings. The headings used in this Professional Services Agreement are for
reference purposes only and shall not be deemed to limit or affect in any way,
the meaning or interpretation of any of the terms or provisions of this
Professional Services Agreement.
d) Severability. The provisions of this Professional Services Agreement are
severable, and should any provision hereof be void, voidable, unenforceable, or
invalid, such a void, voidable, unenforceable or invalid provision shall not
affect any other provision of this Professional Services Agreement.
e) Waiver. Any waiver by any party hereto of any breach of this Professional
Services Agreement of any kind or character whatsoever by the other party,
whether such waiver is direct or implied, shall not be construed as a continuing
waiver or consent to any subsequent breach of this Professional Services
Agreement on the part of the other party.
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eRoomSystem Services, Inc. Identica Corp.
f) Applicable Law, Jurisdiction and Venue. This Professional Services Agreement
shall be governed by, and construed in accordance with, the laws of the state of
Nevada, without regard to principles of conflicts of law. Identica and eRoom
hereby consent to jurisdiction and venue in any state or federal court in the
state of Nevada and hereby waive any objections that jurisdiction or venue in
any such court is not proper.
g) Attorneys' Fees. In the event any action or proceeding is brought by any
party under this Professional Services Agreement, the prevailing party shall be
entitled to recover reasonable attorneys' fees and costs of court from the
non-prevailing party.
h) Counterparts. This Professional Services Agreement may be executed
simultaneously in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
i) Confidentiality. The terms of this Professional Services Agreement shall be
confidential, excluding mandatory filings required with the United States
Securities and Exchange Commission, and neither party shall reveal to any
person, hotel, or other entity the terms hereof, except as necessary to enforce
its terms, without the prior written consent of the other party.
j) Jurisdiction and Venue. This Professional Services Agreement will be governed
by and interpreted pursuant to the laws of the State of Nevada. The parties
agree any action to enforce any provision of this Professional Services
Agreement shall be brought in Las Vegas, Nevada.
IN WITNESS WHEREOF, the parties hereto have executed this Professional Services
Agreement the day and the year first named above.
eRoomSystem Services, Inc.: Identica Corp.:
BY: BY:
Xxxxx X. Xxxxxxxxx Xxxxx Xxxxxxx
--------------------------------------- --------------------------------
Name Name
/s/ Xxxxx X. Xxxxxxxxx /s/ Xxxxx Xxxxxxx
--------------------------------------- --------------------------------
Signature Signature
Chief Executive Officer and President President
--------------------------------------- --------------------------------
Title Title
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