EXHIBIT 10.1
STOCK AND WARRANT PURCHASE AGREEMENT
This Stock and Warrant Purchase Agreement (this "Agreement") is entered
into as of June 16, 2004 by and between Evergreen Solar, Inc., a Delaware
corporation (the "Company"), and each purchaser identified on the Schedule of
Purchasers (collectively, the "Purchasers") attached hereto as Exhibit A (the
"Schedule of Purchasers").
WITNESSETH:
WHEREAS, the Company desires to sell to the Purchasers, and the
Purchasers, severally and not jointly, desire to purchase from the Company,
7,662,835 shares of common stock, par value $0.01 per share, of the Company (the
"Common Stock") and warrants to purchase 2,298,851 shares of the Common Stock;
and
WHEREAS, the parties hereto desire to enter into this Agreement for the
purpose of setting forth certain representations, warranties and covenants made
by each to the other as an inducement to the execution and delivery of this
Agreement and the conditions precedent to the consummation of the transactions
set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
provisions, agreements and covenants contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions. As used in this Agreement, the following
capitalized defined terms shall have the following meanings.
"Action" has the meaning set forth in Section 6(n).
"Agreement" has the meaning set forth in the Preamble.
"Affiliate" of a Person shall mean (i) with respect to a Person, any
member of such Person's family (including any child, step child, parent, step
parent, spouse, sibling, mother in law, father in law, son in law, daughter in
law, brother in law or sister in law); (ii) with respect to an entity, any
officer, director, stockholder, partner or investor in such entity or of or in
any affiliate of such entity; and (iii) with respect to a Person or entity, any
Person or entity which directly or indirectly controls, is controlled by, or is
under common control with such Person or entity.
"Business Day" means a day other than a Saturday, Sunday or other day on
which banking institutions in New York, New York or the New York Stock Exchange
are permitted or required by any applicable law to close.
"Closing" has the meaning set forth in Section 3.
"Closing Date" has the meaning set forth in Section 3.
"Commission" means the Securities and Exchange Commission.
"Common Stock" has the meaning set forth in the Recitals.
"Company" has the meaning set forth in the Recitals.
"Company Copyrights" has the meaning set forth in Section 6(j).
"Company Intellectual Property" has the meaning set forth in Section 6(j)
"Company Marks" has the meaning set forth in Section 6(j).
"Company Patents" has the meaning set forth in Section 6(j).
"Company Stock Option Plans" means, collectively, the Company's 1994 Stock
Option Plan, 2000 Stock Option and Incentive Plan, 2000 Employee Stock Purchase
Plan, and any other future equity incentive plans of the Company with similar
objectives which shall be duly authorized and adopted by the board of directors
and shareholders of the Company.
"Control" (including the terms "controlled by" and "under common control
with") means the possession, directly or indirectly, or as trustee or executor,
of the power to direct or cause the direction of the management policies of a
Person, whether through the ownership of stock, as trustee or executor, by
contract or credit arrangement or otherwise.
"Copyrights" has the meaning set forth in Section 6(j).
"Disclosure Documents" has the meaning set forth in Section 6(g).
"Environmental Laws" has the meaning set forth in Section 6(q).
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission thereunder.
"Evaluation Date" has the meaning set forth in Section 6(y).
"GAAP" means generally accepted accounting principles.
"Governmental Authority" has the meaning set forth in Section 6(o).
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"Losses" has the meaning set forth in Section 11(b)(i).
"Marks" has the meaning set forth in Section 6(j).
"NASD" means the National Association of Securities Dealers, Inc.
"Patents" has the meaning set forth in Section 6(j).
"Permits" has the meaning set forth in Section 6(o).
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"Person" means an individual, corporation, partnership, association,
trust, any unincorporated organization or any other entity.
"Placement Agent" has the meaning set forth in Section 6(z).
"Purchasers" has the meaning set forth in the Preamble.
"Purchaser Indemnified Parties" has the meaning set forth in Section
11(b)(i).
"Registration Rights Agreement" has the meaning set forth in Section 6(b).
"Schedule of Purchasers" has the meaning set for the in the Preamble.
"Securities" has the meaning set forth in Section 2.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder.
"Series A Agreement" has the meaning set forth in Section 6(cc).
"Series A Certificate of Designations" has the meaning set forth in
Section 8(b)(vii).
"Series A Registration Rights Agreement" has the meaning set forth in
Section 6(bb).
"Series A Stock" has the meaning set forth in Section 8(b)(ix).
"Series D Consent" shall mean the Waiver and Amendment between the Company
and the Series D Holders in the form attached hereto as Exhibit B.
"Series D Purchase Agreement" has the meaning set forth in Section 6(bb).
"Shares" has the meaning set forth in Section 2.
"Stockholder Approval" has the meaning set forth in Section 9(i).
"Subsidiary" of a Person means any corporation more than fifty percent
(50%) of whose outstanding voting securities, or any partnership, limited
liability company, joint venture or other entity more than fifty percent (50%)
of whose total equity interest, is directly or indirectly owned by such Person.
"Third Party Rights" has the meaning set forth in Section 6(j)(iii).
"Trade Secrets" has the meaning set forth in Section 6(j)(viii).
"Transaction Documents" has the meaning set forth in Section 6(b).
"Warrants" has the meaning set forth in Section 2.
"Warrant Agreement" has the meaning set forth in Section 2.
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"Warrant Shares" has the meaning set forth in Section 2.
SECTION 2. Agreement to Purchase and Sell. Subject to the terms and
conditions of this Agreement, each Purchaser severally and not jointly agrees to
purchase at the Closing (as such term is defined in Section 3), and the Company
agrees to issue and sell to such Purchaser at the Closing, for the purchase
price set forth opposite such Purchaser's name on the Schedule of Purchasers (i)
that number of shares (collectively, the "Shares") of the Common Stock set forth
opposite such Purchaser's name on the Schedule of Purchasers, and (ii) a warrant
(collectively, the "Warrants" and, together with the Shares, the "Securities")
to purchase that number of shares of Common Stock set forth opposite such
Purchaser's name on the Schedule of Purchasers at an exercise price of $3.335
per share (the shares of Common Stock issued upon the exercise of the Warrants
being referred to herein as the "Warrant Shares"), pursuant to a Warrant
Agreement in the form attached as Exhibit C hereto (the "Warrant Agreement");
provided, however, that this Agreement shall not be legally binding with respect
to any Purchaser in the event that the aggregate investment in the Securities by
the Purchasers is less than $20 million.
SECTION 3. Closing. The purchase and sale of the Securities pursuant to
Section 2 (the "Closing") will take place on the date which is three (3)
Business Days immediately after the date hereof at the offices of Xxxxxxx
Procter LLP, Xxxxxxxx Xxxxx, Xxxxxx, XX 00000, or at such other place and time
as may be mutually agreed upon by the Company and each Purchaser (the "Closing
Date"). Upon receipt by the Company on the Closing Date of the purchase price
set forth opposite a Purchaser's name on the Schedule of Purchasers by wire
transfer of immediately available funds to an account designated by the Company
in writing, the Company shall issue and deliver to such Purchaser (i) a stock
certificate or certificates representing that number of Shares specified on the
Schedule of Purchasers, in such denominations and registered in such names as
such Purchaser may request, and (ii) Warrants to purchase that number of shares
of Common Stock specified on the Schedule of Purchasers registered in such names
as such Purchaser may request.
SECTION 4. Transfer Taxes. All transfer taxes, fees and duties under
applicable law incurred in connection with the sale and transfer of the
Securities under this Agreement will be borne and paid by the Company and it
shall promptly reimburse each Purchaser for any such tax, fee or duty which it
may be required to pay under applicable law.
SECTION 5. Separate Agreements. The Company's agreement with each of the
Purchasers is a separate agreement, and the sale of the Shares to each of the
Purchasers is a separate sale, and no Purchaser shall be responsible in any way
for the performance of the obligations of any other Purchaser under this
Agreement.
SECTION 6. Representations, Warranties and Covenants of the Company. In
order to induce the Purchasers to enter into this Agreement and consummate the
transactions contemplated hereby, the Company represents and warrants to each
Purchaser as of the date hereof and as of the Closing Date, as if such
representations and warranties had been made on and as of such dates, as
follows:
(a) Organization; Good Standing; Qualification. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of
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Delaware and has full corporate power and authority to conduct its business as
presently conducted and as proposed to be conducted by it and to enter into and
perform this Agreement and to carry out the transactions contemplated under this
Agreement, the Warrant Agreement, the Series A Agreement, and the Registration
Rights Agreement (as defined below). The Company is duly qualified and in good
standing to do business as a foreign corporation in each jurisdiction in which
the failure to so qualify would have a material adverse effect on its business,
result of operations, prospects, properties or condition (financial or
otherwise) and no proceeding has been instituted in any such jurisdiction,
revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such
power and authority or qualification. The Company has no Subsidiaries (as
defined in Rule 405 under the Securities Act of 1933, as amended) other than
Evergreen Solar Securities Corp.
(b) Authorization and Noncontravention; Binding Effect. This
Agreement, the Registration Rights Agreement dated as of the date hereof by and
among the Company and the parties thereto attached hereto as Exhibit D (the
"Registration Rights Agreement"), the Warrant Agreement, the Series A Agreement,
and all agreements, documents and instruments executed and delivered by the
Company pursuant hereto and thereto (collectively, the "Transaction Documents")
have been, or will be on or before the Closing, duly executed and delivered by
the Company, and are valid and binding obligations of the Company, enforceable
in accordance with their respective terms, except as enforcement may be limited
by bankruptcy, insolvency, moratorium or other similar laws relating to
creditors' rights generally, and except that the availability of equitable
remedies, including specific performance, is subject to the discretion of the
court before which any proceeding therefor may be brought. The execution,
delivery and performance of the Transaction Documents, the issuance and delivery
of the Securities, and, upon conversion of the Warrants, the issuance and
delivery of the Warrant Shares, have been duly authorized by all necessary
corporate or other action of the Company. The Board of Directors of the Company
has determined, at a duly convened meeting or pursuant to a unanimous written
consent, that the issuance and sale of the Securities, and the consummation of
the transactions contemplated by this Agreement and the other Transaction
Documents (including without limitation the issuance of the Shares and the
Warrant Shares), are in the best interests of the Company.
(c) Valid Issuance of Common Stock. When issued to and paid for by
the Purchasers in accordance with the terms of this Agreement and the Warrant
Agreement, the Shares, the Warrants and the Warrant Shares will be duly
authorized, validly issued, fully paid and nonassessable, free and clear of all
liens, and the issuance of the Securities and the Warrant Shares will not be
subject to any preemptive or similar rights that have not been waived. The
Company has reserved from its duly authorized capital stock the maximum number
of shares of Common Stock issuable pursuant to this Agreement and the Warrant
Agreement.
(d) Capitalization. As of the date of this Agreement, the authorized
and outstanding capitalization of the Company consists of (i) a total of
27,227,668 authorized shares of preferred stock, $0.01 par value per share, of
which 26,227,668 shares have been designated Series A Convertible Preferred
Stock, 19,325,556 of which are issued or outstanding, and (ii) a total of
70,000,000 authorized shares of Common Stock, of which 18,627,132 shares were
issued and outstanding as of the close of business on June 15, 2004. All of such
outstanding shares are
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validly issued, fully paid and nonassessable, have been issued in compliance
with all federal and state securities laws, and none of such outstanding shares
was issued in violation of any preemptive rights or similar rights to subscribe
for or purchase securities. In addition to the foregoing, as of June 15, 2004,
warrants to purchase a total of 2,400,000 shares of Common Stock were
outstanding and such shares of Common Stock were reserved for issuance, options
to purchase a total of 5,427,937 shares of Common Stock were outstanding and
such shares of Common Stock are reserved for issuance, and the Company is
authorized to grant up to 10,325,000 additional shares of Common Stock pursuant
to the Company Stock Option Plans. Warrants to purchase a total of 125,000
shares of Common Stock issued to the Placement Agent will be outstanding as of
the Closing Date and such shares of Common Stock will be reserved for issuance.
Except as set forth in this Section 6(d), there are no other outstanding
options, warrants or similar agreements or rights for the purchase from the
Company of any shares of its capital stock or any securities convertible into or
ultimately exchangeable or exercisable for any shares of the Company's capital
stock. Without limiting the foregoing, except pursuant to the Series A
Registration Rights Agreement and the preemptive rights held by the holders of
Series A Stock, no preemptive right, co-sale right, right of first refusal,
registration right, or other similar right exists with respect to the Shares or
the issuance and sale thereof. Assuming the conversion of all outstanding shares
of Series A Stock pursuant to the terms and conditions of the Series A Agreement
and the Series A Certificate of Designations, no further approval or
authorization of any stockholder, the Board of Directors of the Company or other
persons is required for the issuance and sale of the Shares. There are no
stockholders agreements, voting agreements or other similar agreements with
respect to the Common Stock to which the Company is a party or, to the knowledge
of the Company, between or among any of the Company's stockholders, except the
Series A Agreement.
(e) Defaults. Neither the issuance and sale of the Securities
pursuant to the terms and conditions hereunder nor the execution and delivery of
the Transaction Documents and the performance of the Company's obligations
thereunder will (i) violate or conflict with, result in a breach of or
constitute a default (or constitute an event that, with notice or lapse of time,
would constitute a violation or breach of or a default) under (A) the
certificate of incorporation or bylaws of the Company; (B) any decree, judgment,
order or determination of any court, governmental agency or body, or any
arbitrator having jurisdiction over the Company or any of the Company's assets;
(C) any law, rule or regulation applicable to the Company; or (D) the terms of
any material agreement by which the Company is bound or to which any property of
the Company is subject, or (ii) result in the creation or imposition of any
lien, encumbrance, claim, security interest or restriction whatsoever upon any
of the material properties or assets of the Company or an acceleration of
indebtedness pursuant to any obligation, agreement or condition contained in any
material bond, debenture, note or any other evidence of indebtedness or any
material indenture, mortgage, deed of trust or any other agreement or instrument
to which the Company is a party or by which it is bound or to which any of the
material property or assets of the Company is subject. Neither the sale of the
Securities hereunder nor the performance of the Company's other obligations
under this Agreement will result in the suspension, revocation, impairment,
forfeiture or nonrenewal of any material permit, license, authorization, right
or approval applicable to the Company, its businesses or operations or any of
its assets or properties. No consent, approval, authorization or other order of,
or registration, qualification or filing with, any regulatory body,
administrative agency, or other governmental body in the United States or any
other person is required for the
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execution and delivery of the Transaction Documents and the valid issuance and
sale of the Securities hereunder, other than such as have been made or obtained,
and except for any post-closing securities filings or notifications required to
be made under federal or state securities laws and the Nasdaq National Market
Additional Listing Application. Based in part on the representations of each of
the Purchasers set forth in Section 7 below, the offer and sale of the
Securities to each of the Purchasers will be in compliance with all applicable
federal and state securities laws and the Company has made or will make all
requisite filings and has taken or will take all action necessary to comply,
with such federal and state securities laws.
(f) General Solicitation. Neither the Company nor any person acting
on behalf of the Company has offered or sold any of the Securities by any form
of general solicitation or general advertising. The Company has offered the
Securities for sale only to the Purchasers and certain other "accredited
investors" within the meaning of Rule 501 under the Securities Act of 1933, as
amended (the "Securities Act").
(g) SEC Filings. The Company's Annual Report on Form 10-K for the
year ended December 31, 2003, the Company's Quarterly Report on Form 10-Q for
the quarterly period ended March 31, 2004, all Current Reports on Form 8-K filed
by the Company and all other documents, if any, filed by the Company with the
Commission since December 31, 2003 (collectively, the "Disclosure Documents"),
as of the respective dates thereof, do not contain any untrue statements of
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein in light of the circumstances under
which they were made not misleading. The Disclosure Documents have been prepared
in compliance with the requirements of the Securities Act or the Exchange Act
and the rules thereunder. The Company has timely made all filings required under
the Exchange Act during the twelve (12) months preceding the date of this
Agreement.
(h) Financial Statements. The financial statements of the Company
included in each of the Disclosure Documents, including the schedules and notes
thereto, comply in all material respects with the requirements of the Securities
Act or the Exchange Act, as applicable, fairly present, in accordance with GAAP,
the financial condition and results of operations and cash flows of the Company
at the respective dates and for the respective periods indicated, and have been
prepared in accordance with GAAP consistently applied throughout such periods.
The Company maintains and will continue to maintain a standard system of
accounting established and administered in accordance with GAAP and the
applicable requirements of the Exchange Act. The other financial information
contained in the Disclosure Documents has been prepared on a basis consistent
with the financial statements of the Company. Except as set forth in the
Disclosure Documents, the Company has no liabilities, contingent or otherwise,
other than liabilities incurred in the ordinary course of business which, under
GAAP, are not required to be reflected in the financial statements included in
the Disclosure Documents and which, individually or in the aggregate, are not
material to the consolidated business or financial condition of the Company.
(i) No Material Adverse Change. Since the date of the Company's most
recent audited financial statements contained in the Disclosure Documents, there
has not been (i) any material adverse change in the properties, business,
results of operations, prospects or condition (financial or otherwise) of the
Company and its subsidiaries, taken as a whole (ii) any material adverse event
affecting the Company, (iii) any obligation or liability, direct or contingent,
that is
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material to the Company, incurred by the Company, except obligations incurred in
the ordinary course of business, (iv) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company, except with respect
to the Series A Stock in accordance with the terms and conditions of the Series
A Agreement and the Series A Certificate of Designations, (v) any loss or damage
(whether or not insured) to the physical property of the Company which has been
sustained which could reasonably be expected to have a material adverse effect
on the properties, business, results of operations, prospects or condition
(financial or otherwise) of the Company or (vi) any change in the Company's
method of accounting.
(j) Intellectual Property. Schedule 6(j) contains a complete and
accurate list of all material (i) patents, patent applications, patent rights,
and inventions and discoveries and invention disclosures (whether or not
patented) (collectively, "Patents") owned by the Company or otherwise used in
its business ("Company Patents"); (ii) trade names, trade dress, logos,
packaging design, slogans, Internet domain names, registered and unregistered
trademarks and service marks and related registrations and applications for
registration (collectively, "Marks") owned by the Company or otherwise used in
its business ("Company Marks"); and (iii) copyrights in both published and
unpublished works, including without limitation all compilations, databases and
computer programs, manuals and other documentation and all copyright
registrations and applications, and all derivatives, translations, adaptations
and combinations of the above (collectively, "Copyrights") owned by the Company
or otherwise used in and, in either case, material to its business ("Company
Copyrights"). Except as set forth on Schedule 6(j):
(i) the Company exclusively owns or possesses adequate and
enforceable rights to use, without any material payment obligation to a
third party, all Patents, Marks, Copyrights, trade names, information,
Trade Secrets (as defined below), proprietary rights and processes
necessary for the operation of the its business (collectively, "Company
Intellectual Property"), free and clear of all mortgages, pledges,
charges, liens, equities, security interests, claims or other encumbrances
or similar dispositions;
(ii) all Company Patents, Company Marks and Company Copyrights which
are issued by or registered with, as applicable, the U.S. Patent and
Trademark Office, the U.S. Copyright Office or in any similar office or
agency anywhere in the world are currently in compliance with formal legal
requirements (including without limitation, as applicable, payment of
filing, examination and maintenance fees, proofs of working or use, timely
post-registration filing of affidavits of use and incontestability and
renewal applications) and are valid and enforceable;
(iii) there are no pending, or, to the Company's knowledge,
threatened claims against the Company or any of its employees alleging
that any of the Company Intellectual Property infringes or conflicts with
the rights of others ("Third Party Rights");
(iv) to the knowledge of the Company, no Company Intellectual
Property infringes or conflicts with any Third Party Right;
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(v) the Company has not received any communications alleging that
the Company has violated or, by conducting its business in the manner
currently contemplated, would violate any Third Party Rights or that any
of the Company Intellectual Property is invalid or unenforceable;
(vi) no current or former employee or consultant of the Company owns
any rights in or to any of the Company Intellectual Property;
(vii) the Company is not aware of any violation or infringement by a
third party of any of the Company Intellectual Property;
(viii) the Company has taken reasonable security measures to protect
the secrecy, confidentiality and value of all know-how, trade secrets,
confidential or proprietary information, research in progress, algorithms,
data, designs, processes, formulae, drawings, schematics, blueprints, flow
charts, models, strategies, prototypes, and techniques (collectively,
"Trade Secrets") used in its business, including, without limitation,
requiring all Company employees and consultants and all other persons with
access to Trade Secrets of the Company to execute a binding
confidentiality agreement, copies or forms of which have been made
available to each Purchaser or its counsel and, to the Company's
knowledge, there has not been any breach by any party to such
confidentiality agreements;
(ix) the Company (A) has not granted any other person any option,
license or other right with respect to the Company Intellectual Property,
which option, license or other right is currently outstanding, and (B) is
not bound by or a party to any material options, licenses or agreements of
any kind (other than standard end-user agreements) with respect to the
Patents, Marks, Copyrights, trade names, information, Trade Secrets,
proprietary rights and processes of any other person or entity.
(k) Contracts. Except as set forth in Schedule 6(k), the Company is
not in violation or default (i) of any provision of its certificate of
incorporation or bylaws, as amended, or (ii) of any instrument, judgment, order,
writ, decree or contract or in the performance of any bond, debenture, note or
other evidence of indebtedness to which it is a party or by which it is bound,
except where such violations or defaults would not, individually or in the
aggregate, have a material adverse affect on the Company's business, results of
operations, properties or condition (financial or otherwise), nor is the
Company, to the Company's knowledge, in violation of any provision of any
federal or state statute, rule or regulation or any law, ordinance or order of
any court or governmental agency or authority applicable to the Company, which
violations would, individually or in the aggregate, have a material adverse
affect on the Company's business, results of operations, properties, prospects
or condition (financial or otherwise).
(l) Nasdaq Compliance. The Common Stock is registered pursuant to
Section 12(g) of the Exchange Act, and is listed on the Nasdaq National Market,
and the Company has taken no action designed to, or which to its knowledge is
likely to have the effect of, terminating the registration of the Common Stock
under the Exchange Act or delisting the Common Stock from the Nasdaq National
Market nor has the Company received in the past twelve (12) months
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any notification that the Commission or the NASD is contemplating terminating
such registration or listing. The Company currently meets the continuing
eligibility requirements for listing on the Nasdaq National Market.
(m) Taxes. Except for matters that are not reasonably expected to
have a material adverse effect on the business results of operations, properties
or condition (financial or otherwise) of the Company, the Company has filed all
necessary federal, state and foreign income and franchise tax returns and has
paid or accrued all taxes shown as due thereon, and the Company has no knowledge
of a tax deficiency which has been asserted or threatened against the Company.
(n) Legal Proceedings. Except as disclosed on Schedule 6(n), there
is no action, suit, inquiry, notice of violation, proceeding, inquiry or
investigation pending or, to the knowledge of the Company, threatened against or
affecting the Company or any of its respective properties before or by any
court, arbitrator, governmental or administrative agency or regulatory authority
(federal, state, county, local or foreign) (collectively, an "Action") which (i)
adversely affects or challenges the legality, validity or enforceability of any
of the Transaction Documents or the issuance of the Securities or (ii) would, if
there were an unfavorable decision, have or reasonably be expected to result in
a material adverse effect on the properties, business, results of operations,
prospects or condition (financial or otherwise) of the Company. Neither the
Company, nor, to the knowledge of the Company, any director or officer thereof,
is or has been the subject of any Action involving a claim of violation of or
liability under federal or state securities laws or a claim of breach of
fiduciary duty. There has not been, and to the knowledge of the Company, there
is not pending or contemplated, any investigation by the Commission involving
the Company or any current or former director or officer of the Company. The
Commission has not issued any stop order or other order suspending the
effectiveness of any registration statement filed by the Company under the
Exchange Act or the Securities Act.
(o) Governmental Permits, Etc. The Company has all necessary
franchises, licenses, certificates and other authorizations (collectively,
"Permits") from any foreign, federal, state or local government or governmental
agency, department, or body (a "Governmental Authority") that are currently
necessary for the operation of the business of the Company as currently
conducted except where the failure to currently possess could not reasonably be
expected to have a material adverse effect of the properties, business, results
of operations, prospects or condition (financial or otherwise) of the Company.
The Company has not received any notice of proceedings relating to the
revocation or modification of any Permit. No Permit is subject to termination as
a result of the execution of this Agreement or consummation of the transactions
contemplated hereby. The Company is now and has heretofore been in compliance
with all applicable statutes, ordinances, orders, rules and regulations
promulgated by any U.S. federal, state, municipal, non-U.S. or other
governmental authority, which apply to the conduct of its business. The Company
has never entered into or been subject to any judgment, consent decree,
compliance order or administrative order with respect to any aspect of the
business, affairs, properties or assets of the Company or received any request
for information, notice, demand letter, administrative inquiry or formal or
informal complaint or claim from any regulatory agency with respect to any
aspect of the business, affairs, properties or assets of the Company.
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(p) Disclosure. The representations and warranties made or contained
in the Transaction Documents and all other information provided in writing by
the Company to the Purchasers in connection with the transactions contemplated
hereby (including without limitation the Disclosure Documents), when taken
together, do not and shall not contain any untrue statement of a material fact
and do not and shall not omit to state a material fact required to be stated
herein or therein or necessary in order to make such representations, warranties
or other material not misleading in the light of the circumstances in which they
were made or delivered. To the knowledge of the Company, there is no material
fact directly relating to the assets, liabilities, business, operations, or
condition (financial or other) of the Company that materially adversely affects
the same. Except as disclosed in the Disclosure Documents, no officer or
director of the Company has been: (i) subject to voluntary or involuntary
petition under the federal bankruptcy laws or any state insolvency law or the
appointment of a receiver, fiscal agent or similar officer by a court for his or
her business or property or that of any partnership of which he or she was a
general partner or any corporation or business association of which he or she
was an executive officer; (ii) convicted in a criminal proceeding or named as a
subject of a pending criminal proceeding (excluding traffic violations and other
minor offenses) or been otherwise accused of any act of moral turpitude; (iii)
the subject of any order, judgment, or decree (not subsequently reversed,
suspended or vacated) of any court of competent jurisdiction permanently or
temporarily enjoining him or her from, or otherwise imposing limits or
conditions on his or her ability to engage in any securities, investment
advisory, banking, insurance or other type of business or acting as an officer
or director of a public company; (iv) found by a court of competent jurisdiction
in a civil action or by the Commission or the Commodity Futures Trading
Commission to have violated any federal or state commodities, securities or
unfair trade practices law, which judgment or finding has not been subsequently
reversed, suspended, or vacated; or (v) has engaged in other conduct that would
be required to be disclosed in a prospectus under Item 401(f) of SEC Regulation
S-K.
(q) Environmental Matters. The Company is, and at all times has
been, in compliance in all material respects with all applicable environmental,
health and safety laws, rules, ordinances, by-laws and regulations, and with all
permits, registrations and approvals required under such laws, rules,
ordinances, by-laws and regulations (collectively, "Environmental Laws"). The
Company is not aware of any fact or circumstance which could involve the Company
in any litigation, or impose upon the Company any material liability, arising
under any Environmental Laws.
(r) Solvency. The Company has not: (i) made a general assignment for
the benefit of creditors; (ii) filed any voluntary petition in bankruptcy or
suffered the filing of any involuntary petition by its creditors; (iii) suffered
the appointment of a receiver to take possession of all, or substantially all,
of its assets; (iv) suffered the attachment or other judicial seizure of all, or
substantially all, of its assets; (v) admitted in writing its inability to pay
its debts as they come due; or (vi) made an offer of settlement, extension or
composition to its creditors generally.
(s) No Manipulation of Stock. The Company has not taken and will
not, in violation of applicable law, take, any action designed to or that might
reasonably be expected to cause or result in stabilization or manipulation of
the price of the Common Stock to facilitate the sale or resale of the Shares.
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(t) Company not an "Investment Company". The Company has been
advised of the rules and requirements under the Investment Company Act. The
Company is not, and immediately after receipt of payment for the Shares will not
be, an "investment company" or an entity "controlled" by an "investment company"
within the meaning of the Investment Company Act and shall conduct its business
in a manner so that it will not become subject to the Investment Company Act at
any time.
(u) Foreign Corrupt Practices. Neither the Company, nor to the
knowledge of the Company, any agent or other person acting on behalf of the
Company, has (i) directly or indirectly, used any corrupt funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to
foreign or domestic political activity, (ii) made any unlawful payment to
foreign or domestic government officials or employees or to any foreign or
domestic political parties or campaigns from corporate funds, (iii) failed to
disclose fully any contribution made by the Company (or made by any person
acting on its behalf of which the Company is aware) which is in violation of
law, or (iv) violated in any material respect any provision of the Foreign
Corrupt Practices Act of 1977, as amended.
(v) Accountants. To the Company's knowledge, PricewaterhouseCoopers
LLP, who the Company expects will express their opinion with respect to the
financial statements to be included in the Company's Annual Report on Form 10-K
for the year ended December 31, 2004, are independent accountants as required by
the Securities Act and the rules and regulations promulgated thereunder.
(w) Insurance. The Company has in full force and effect general
commercial, general liability, product liability, professional liability,
specified director's and officer's liability, workers compensation and
employee's liability, fire and casualty and such other appropriate insurance
policies with insurers of recognized financial responsibility with coverages
customary for similarly situated companies in the same or similar industries and
as required by applicable law. The Company does not have any reason to believe
that it will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business without a significant increase in cost,
except for such increases in cost or decreases in coverage as are likely to be
experienced by similarly situated companies.
(x) Transactions With Affiliates And Employees. Except as set forth
in the Disclosure Documents, none of the officers or directors of the Company
and, to the knowledge of the Company, none of the employees of the Company is
presently a party to any transaction with the Company (other than for services
as employees, officers and directors), including any contract, agreement or
other arrangement providing for the furnishing of services to or by, providing
for rental of real or personal property to or from, or otherwise requiring
payments to or from any officer, director or such employee or, to the knowledge
of the Company, any entity in which any officer, director, or any such employee
has a substantial interest or is an officer, director, trustee or partner, in
each case in excess of $50,000 other than (i) for payment of salary or
consulting fees for services rendered, (ii) reimbursement for expenses incurred
on behalf of the Company and (iii) for other employee benefits, including stock
option agreements under any stock option plan of the Company.
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(y) Internal Accounting Controls. The Company maintains a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain
asset accountability, (iii) access to assets is permitted only in accordance
with management's general or specific authorization, and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. The
Company has established disclosure controls and procedures (as defined in
Exchange Act Rules 13a-14 and 15d-14) for the Company and designed such
disclosure controls and procedures to ensure that material information relating
to the Company is made known to the certifying officers by others within those
entities, particularly during the period in which the Company's Form 10-K or
10-Q, as the case may be, is being prepared. The Company's certifying officers
evaluated the effectiveness of the Company's controls and procedures as of a
date prior to the filing date of the Form 10-Q for the quarter ended March 31,
2004 (such date, the "Evaluation Date"). The Company presented in its Form 10-Q
for the quarter ended March 31, 2004 the conclusions of the certifying officers
about the effectiveness of the disclosure controls and procedures based on their
evaluations as of the Evaluation Date. Since the Evaluation Date, there have
been no significant changes in the Company's internal controls (as such term is
defined in Item 307(b) of Regulation S-K under the Exchange Act) or, to the
Company's knowledge, in other factors that could significantly affect the
Company's internal controls.
(z) Certain Fees. No brokerage or finder's fees or commissions are
or will be payable by the Company to any broker, financial advisor or
consultant, finder, placement agent, investment banker, bank or other Person
with respect to the transactions contemplated by this Agreement other than the
fees due to CRT Capital Group LLC (the "Placement Agent"). The Purchasers shall
have no obligation with respect to any fees payable to the Placement Agent, or
with respect to any claims made by or on behalf of other persons for fees of a
type contemplated in this Section 6(z) based on any agreement or arrangement
with the Company that may be due in connection with the transactions
contemplated by this Agreement.
(aa) No Integrated Offering. Neither the Company, nor any of its
affiliates, nor any person acting on its or their behalf has, directly or
indirectly, made any offers or sales of any security or solicited any offers to
buy any security, under circumstances that would cause this offering of the
Securities to be integrated with prior offerings by the Company for purposes of
the Securities Act or any applicable shareholder approval provisions, including,
without limitation, under the rules and regulations of any exchange or automated
quotation system on which any of the securities of the Company are listed or
designated. The Company shall not sell, offer for sale or solicit offers to buy
or otherwise negotiate in respect of any security (as defined in Section 2 of
the Securities Act) that would be integrated with the offer or sale of the
Securities in a manner that would require the registration under the Securities
Act of the sale of the Securities to the Purchasers or that would be integrated
with the offer or sale of the Securities for purposes of the rules and
regulations of the Nasdaq National Market.
(bb) Registration Rights. Except pursuant to (i) the Registration
Rights Agreement, (ii) that certain Series D Preferred Stock Purchase Agreement
dated as of December 28, 1999, by and among the Company and the parties thereto
(the "Series D Purchase
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Agreement"), and (iii) that certain Registration Rights Agreement dated as of
May 15, 2003, by and among the Company and the parties thereto (the "Series A
Registration Rights Agreement"), no person has any right to cause the Company to
effect the registration under the Securities Act of any securities of the
Company. The Company is eligible to register the Shares and the Warrant Shares
for resale by the Purchasers using Form S-3 promulgated under the Securities
Act. Such registration statement(s) covering the resale of all of the Shares and
the Warrant Shares shall not violate or conflict with any registration rights
granted by the Company, and no stockholders of the Company shall have any
incidental or "piggy-back" rights with respect to such registration
statement(s).
(cc) Conversion, Consent, Voting and Lock-Up Agreement. The Company
has entered into that certain Conversion, Consent, Voting and Lock-Up Agreement
dated as of the date hereof by and among the Company and the other parties
thereto attached as Exhibit E hereto (the "Series A Agreement") with respect to
the conversion of the Series A Stock, the Stockholder Approval, if necessary,
and certain other matters.
(dd) Series D Waiver and Amendment. The Company has entered the
Series D Consent with respect to the termination of certain registration rights
under the Series D Purchase Agreement.
SECTION 7. Representations and Warranties of the Purchasers. Each
Purchaser (severally and not jointly) represents and warrants to the Company, as
of the date hereof and as of the Closing Date, as if such representations and
warranties had been made on and as of such dates, as follows:
(a) Authorization. Such Purchaser has the capacity to enter into
this Agreement and to purchase the Securities from the Company pursuant to the
terms and conditions of this Agreement. This Agreement is a legal, valid and
binding agreement of the Purchaser enforceable against the Purchaser in
accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency, moratorium or other similar laws relating to creditors' rights
generally and except that the availability of equitable remedies, including
specific performance, is subject to the discretion of the court before which any
proceeding therefor may be brought. If such Purchaser is a corporation, limited
liability company, partnership or other entity, such Purchaser has taken, or
prior to the Closing, will have taken, all corporate, limited liability company,
partnership or other action (as applicable) required to authorize the execution
and delivery of this Agreement and the performance of its obligations hereunder.
(b) Reliance Upon Purchaser's Representations. Such Purchaser
understands that the issuance of the Securities hereunder has not been
registered under the Securities Act, based on the exemption from registration
provided by Section 4(2) of the Securities Act and Regulation D thereunder, and
that the Company's reliance on such exemption with respect to the issuance of
the Securities depends in part on such Purchaser's representations and
warranties hereunder.
(c) Purchase Entirely for Own Account. Such Purchaser is acquiring
the Securities for its own account (or for an account over which it exercises
investment discretion) for investment purposes and not with a view to the
distribution thereof within the meaning of the
14
Securities Act, except pursuant to sales that are registered under the
Securities Act or are exempt from the registration requirements of the
Securities Act; provided, however, that, in making such representation, such
Purchaser does not agree to hold the Securities for any minimum or specific term
and reserves the right to sell, transfer or otherwise dispose of the Securities
at any time in accordance with the provisions of this Agreement and with Federal
and state securities laws applicable to such sale, transfer or disposition.
(d) Restricted Securities. Such Purchaser understands that the
Shares and the Warrant Shares constitute "restricted securities" within the
meaning of Rule 144 under the Securities Act and may not be sold, pledged or
otherwise disposed of unless they are subsequently registered under the
Securities Act and applicable state securities laws or unless an exemption from
registration thereunder is available.
(e) Accredited Investor. Such Purchaser is an "accredited investor"
within the meaning of Rule 501(a) under the Securities Act, who by reason of
such Purchaser's business and financial experience has such knowledge and
experience in financial and business matters that such Purchaser is capable of
evaluating the merits and risks of an investment in the Securities.
(f) No Governmental Approval of Issuance of Shares. Such Purchaser
understands that no federal or state or other governmental agency has passed
upon or made any recommendation or endorsement with respect to the Securities.
(g) SEC Filings. Such Purchaser acknowledges that the Company may be
required to file this Agreement with the Commission under the Securities Act and
the rules thereunder and/or the Exchange Act and the rules thereunder, and to
describe the transactions contemplated by this Agreement in such filing, and
subsequent filings, and such Purchaser hereby consents to such filing; provided,
that the Company shall provide each Purchaser with a reasonable opportunity to
review and comment on any such filing.
(h) Short Sales. To such Purchaser's knowledge, neither such
Purchaser, nor any of its affiliates, is presently the record or beneficial
owner of a short position in the Common Stock.
(i) Receipt of Information. Such Purchaser has had an opportunity to
ask questions and receive answers from the Company regarding the terms and
conditions of the issuance and sale of the Securities and the business,
properties, prospects and financial condition of the Company and to obtain any
additional information requested and has received and considered all information
it deems relevant to make an informed decision to purchase the Shares.
(j) Legends. Such Purchaser understands that any certificates
evidencing the Shares will bear substantially the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE APPLICABLE
SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND MAY NOT BE SOLD,
15
ASSIGNED, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT IN
COMPLIANCE WITH THE REQUIREMENTS OF SUCH ACT AND THE APPLICABLE SECURITIES
LAWS OF ANY STATE OR OTHER JURISDICTION."
Certificates evidencing the Shares or the Warrant Shares shall not contain
any legend (i) following any sale of such Shares or Warrant Shares, as
applicable, pursuant to Rule 144 or pursuant to an effective registration
statement, as certified by a selling Purchaser to the Company, (ii) if
such Shares or Warrant Shares, as applicable, are eligible for sale under
Rule 144(k), or (iii) if such legend is not required under applicable
requirements of the Securities Act (including judicial interpretations and
pronouncements issued by the staff of the Commission). The Company agrees
that at such time as such legend is no longer required under this Section
7(l), the Company shall cause its counsel to promptly issue a legal
opinion addressed to the Company's transfer agent if required by the
Company's transfer agent to effect the removal of the legend hereunder as
and when any Purchaser so requests. The Company agrees that at such time
as such legend is no longer required under this Section 7(l), it will,
promptly following the delivery by a Purchaser to the Company or the
Company's transfer agent of a certificate representing Shares or Warrant
Shares issued with a restrictive legend, deliver or cause to be delivered
to such Purchaser a certificate representing such Shares or Warrant Shares
that is free from all restrictive and other legends.
SECTION 8. Conditions to Closing.
(a) Conditions to the Obligations of the Company. The obligations
hereunder of the Company to consummate the transactions contemplated by this
Agreement with respect to each Purchaser are subject to the fulfillment, prior
to or at the Closing, of the following conditions precedent:
(i) the accuracy in all material respects of the representations and
warranties of such Purchaser hereunder as of the date hereof and as of the
Closing Date, as the case may be, as if such representations and
warranties had been made on and as of such dates;
(ii) the performance by such Purchaser of its obligations hereunder
that are required to be performed at or prior to the Closing;
(iii) the execution and delivery of the Registration Rights
Agreement by such Purchaser, which Registration Rights Agreement shall,
upon execution thereof by the Company, be in full force and effect;
(iv) the execution and delivery of the Warrant Agreement by such
Purchaser, which Warrant Agreement shall, upon execution thereof by the
Company, be in full force and effect;
(v) the execution and delivery of this Agreement by such Purchaser,
which Agreement shall, upon execution thereof by the Company, be in full
force and effect; and
16
(vi) no action or proceeding by or before any court, administrative
body or governmental agency shall have been instituted or threatened by a
third party which seeks to enjoin, restrain or prohibit, or might result
in damages in respect of, this Agreement or consummation of the
transactions contemplated by this Agreement.
(b) Conditions to the Obligations of the Purchasers. The obligations
hereunder of each Purchaser to consummate the transactions contemplated by this
Agreement with respect to such Purchaser are subject to the fulfillment, prior
to or at the Closing, of the following conditions precedent:
(i) the accuracy in all material respects of the representations and
warranties of the Company hereunder as of the date hereof and as of the
Closing Date, as the case may be, as if such representations and
warranties had been made on and as of such dates;
(ii) the performance by the Company of its obligations hereunder
that are required to be performed at or prior to the Closing;
(iii) the execution and delivery of the Registration Rights
Agreement by the Company, which Registration Rights Agreement shall
thereupon be in full force and effect;
(iv) the execution and delivery of the Warrant Agreement by the
Company, which Warrant Agreement shall thereupon be in full force and
effect;
(v) the receipt by each Purchaser of a standard legal opinion of
counsel to the Company dated as of the Closing Date as to the matters set
forth in Sections 6(a), (b), (c) and (n) and as to exemption from the
registration requirements of the Securities Act of the sale of the Shares
and the Warrant Shares;
(vi) no action or proceeding by or before any court, administrative
body or governmental agency shall have been instituted or threatened by a
third party which seeks to enjoin, restrain or prohibit, or might result
in damages in respect of, this Agreement or consummation of the
transactions contemplated by this Agreement;
(vii) all shares of Series A convertible preferred stock of the
Company, par value $0.01 per share (the "Series A Stock"), shall have been
converted into shares of Common Stock at or prior to the Closing pursuant
to the terms and conditions set forth in that certain Certificate of the
Powers, Designations, Preferences and Rights of the Series A Stock (the
"Series A Certificate of Designations"), no shares of Series A Stock shall
be issued and outstanding immediately following the Closing, and the
Company shall have provided reasonable evidence thereof to each Purchaser
at the Closing;
(viii) all holders of Series A Stock shall have executed and
delivered the Series A Agreement;
(ix) the Series D Consent shall have been executed and delivered by
a sufficient number of Series D Holders so that it shall have become
effective;
17
(x) each Purchaser shall have received a certificate executed by an
authorized officer of the Company confirming that the conditions set forth
in Sections 8(b)(i), (ii) and (vi) have been duly satisfied; and
(xi) the aggregate purchase price to be tendered at the Closing by
all of the Purchasers for the Securities shall be at least $20 million.
SECTION 9. Affirmative Covenants of the Company. The Company hereby
covenants and agrees with the Purchasers as follows:
(a) Conduct of the Company. Between the date hereof and the Closing
Date, the Company will:
(i) preserve and maintain in full force and effect its existence and
good standing under the laws of its jurisdiction of formation or
organization;
(ii) preserve and maintain in full force and effect all material
rights, privileges, qualifications, applications, licenses and franchises
necessary in the normal conduct of its business;
(iii) use its best efforts to preserve its business organization;
(iv) conduct its business in the ordinary course in accordance with
sound business practices and keep its properties in good working order and
condition (normal wear and tear excepted);
(v) take all reasonable actions to protect and maintain the Company
Intellectual Property, including, without limitation, prosecuting all
pending applications for Patents or registration of Trademarks and
Copyrights and maintaining, to the extent permitted by law, each Patent or
registration owned by the Company;
(vi) comply in all material respects with all applicable laws, rules
and regulations and with the directions of any Governmental Authority
having jurisdiction over the Company or its business or property, and
shall not take any action designed to or that might reasonably be expected
to cause or result in unlawful manipulation of the price of the Common
Stock to facilitate the sale or resale of the Shares, the Warrants or the
Warrant Shares;
(vii) file or cause to be filed in a timely manner all reports,
applications, estimates and licenses that shall be required by a
Governmental Authority;
(viii) conduct its business in a manner such that the
representations and warranties of the Company contained in Section 6 shall
continue to be true and correct in all material respects on and as of the
Closing Date as if made on and as of the Closing Date;
(ix) use its best efforts to cause the closing conditions contained
in Section 8(a) to be satisfied on or before the Closing Date; and
18
(x) not issue, deliver, sell or authorize, or propose the issuance,
delivery, sale or purchase of, any additional shares of capital stock,
stock equivalents or any other security of the Company, other than (i) the
issuance of Common Stock pursuant to the exercise of any warrants or
options outstanding as of the date and (ii) the issuance of options to
purchase shares of Common Stock issued under the Company Stock Option
Plans in an amount not to exceed 500,000 in the aggregate.
(b) Nasdaq Listing. The Company shall comply with all listing and
maintenance requirements of the NASD with respect to the issuance of the Shares
and the Warrant Shares and the listing thereof on the Nasdaq National Market.
The Company shall use its reasonable best efforts to maintain the listing of the
Common Stock on the Nasdaq Stock Market, including, without limitation, (i)
taking all actions reasonably related to maintaining Nasdaq Stock Market listing
standards, and (ii) refraining from taking actions reasonably expected to cause
the Company to fail to meet Nasdaq Stock Market listing standards. Between the
date hereof and the Closing Date, the Company shall provide the Purchasers
copies of all correspondence between the Company and the Nasdaq Stock Market
promptly upon receipt thereof.
(c) Reservation of Common Stock. The Company shall at all times
reserve and keep available out of its authorized shares of Common Stock, solely
for the purpose of the issuance and delivery of the Shares and the issuance and
delivery of the Warrant Shares upon the exercise of the Warrants, the maximum
number of shares of Common Stock that may be issuable or deliverable thereupon.
(d) Restrictions on Public Sale of Securities. Except as
contemplated in the Registration Rights Agreement, the Company agrees (i) not to
effect a public offering or distribution of any equity securities of the Company
or securities convertible into or exchangeable or exercisable for equity
securities of the Company, and (ii) not to register any shares of equity
securities of the Company or securities convertible into or exchangeable or
exercisable for equity securities of the Company (except pursuant to
registration on Form S-8 or any successor thereto) during the period beginning
on the date hereof and ending on the earlier to occur of the termination of this
Agreement or the date on which a registration statement covering the Shares and
the Warrant Shares pursuant to the terms and conditions of the Registration
Rights Agreement has been declared effective by the Commission; provided, that
the foregoing restrictions shall have no effect on the Company's registration
statement on Form S-3 filed on June 13, 2003, as amended on July 16, 2003.
(e) Securities Law Filings. For so long as the Purchasers and their
respective Affiliates in the aggregate hold at least 2% of the outstanding
shares of Common Stock (assuming, for purposes of making such determination,
that all of the Warrants have been exercised in full), the Company agrees to
file with the Commission in a timely manner all reports and other filings
required of the Company under the Securities Act and the Exchange Act.
(f) Form S-3 Eligibility. The Company hereby covenants and agrees to
use its best efforts to maintain its eligibility to make filings with the
Commission on Form S-3 until one or more registration statements covering the
resale of all of the Shares and the Warrant
19
Shares shall have been filed with, and declared effective by, the Commission
pursuant to the terms and conditions of the Registration Rights Agreement.
(g) Public Statements. The Company shall issue a press release not
later than 9:00 a.m. Eastern Time on the first Business Day following the date
of this Agreement disclosing the material terms of this Agreement and the other
Transaction Documents and the transactions contemplated hereby and thereby,
which press release shall be followed by the filing of a Form 8-K, including as
exhibits thereto this Agreement and the other Transaction Documents, with the
Commission not later than the close of business on the second Business Day
following the Closing and to make such other filings and notices in the manner
and time required by the Commission. Following the issuance of the press release
and the filing of a Form 8-K in accordance with this Section 9(g), no Purchaser
will possess any material non-public information concerning the Company provided
by the Company or its agents or counsel. The Company acknowledges that each
Purchaser is relying on the representations, acknowledgements and agreements
made by the Company in this Section 9(g) and elsewhere in this Agreement in
making trading and other decisions concerning the Company's securities. The
Company agrees that it will not at any time following the date hereof disclose
material non-public information to any Purchaser without first receiving such
Purchaser's written consent to such disclosure. The Company and the Placement
Agent shall consult with each other in issuing any press releases with respect
to the transactions contemplated hereby, including but not limited to the press
release referenced in the preceding sentence, and neither the Company nor the
Placement Agent shall issue any such press release or otherwise make any public
statement regarding this Agreement or the transactions contemplated hereby
without the prior consent of the other party, provided that each Purchaser shall
have a reasonable opportunity to review and comment on any such press release or
Form 8-K prior to the issuance or filing thereof. Notwithstanding the foregoing,
the Company shall not publicly disclose the name of any Purchaser, or include
the name of any Purchaser in any filing with the Commission, without the prior
written consent of such Purchaser, except (i) as required by the Securities Act
in connection with the registration statement(s) contemplated by the
Registration Rights Agreement and (ii) to the extent that such disclosure is
required by applicable laws, rules or regulations, in which case the Company
shall provide such Purchaser with prior written notice of such disclosure.
(h) Use of Proceeds. The Company shall use the net proceeds from the
sale of the Securities in the ordinary course of its business and consistent
with past practice; provided, however, that the Company shall not use such
proceeds (i) to repurchase or redeem any equity securities issued by the
Company, (ii) to pay any dividend or make any distribution on any such
securities, or (iii) to repay any loan made to or incurred by any employee or
Affiliate of the Company.
(i) Stockholder Approval. If necessary, the Company shall use its
best efforts to obtain stockholder approval pursuant to Rule 4350(i) of the
Marketplace Rules of the NASD (the "Stockholder Approval") for the issuance of
the Warrant Shares (which approval shall be effected in a manner that complies
with the rules and regulations of the Nasdaq National Market) at the next
meeting of the Company's stockholders duly called and held, or any continuance
thereof, whether by adjournment, postponement or otherwise, and shall cause such
meeting to be duly called and held as soon as reasonably practicable after the
date hereof. At such stockholders meeting and in the proxy statement prepared in
connection with such stockholders meeting, the Board of Directors
20
of the Company shall recommend approval by the stockholder of the issuance of
the Securities and all other matters related thereto which are submitted for
stockholder approval. The Company shall provide Xxxxxxx Procter LLP with an
adequate and appropriate opportunity to review and comment on such proxy
statement and each amendment thereto prior to filing with the Commission. If
such stockholder approval if not obtained at the next stockholders meeting, the
Company shall cause additional stockholder meetings to be duly called and held
every six (6) months thereafter until such approval is effective.
SECTION 10. Termination.
(a) Termination. This Agreement may be terminated prior to the
Closing as follows:
(i) at any time on or prior to the Closing Date, by mutual written
consent of the Company and each Purchaser;
(ii) at the election of the Company or the Purchasers by written
notice to the other parties hereto after 5:00 p.m., New York time, on June
25, 2004, if the Closing shall not have occurred on or prior to such date,
unless such date is extended by the mutual written consent of the Company
and each Purchaser; provided, however, that the right to terminate this
Agreement under this Section 10(a)(ii) shall not be available to any party
whose breach of any representation, warranty, covenant or agreement under
this Agreement has been the cause of, or resulted in, the failure of the
Closing to occur on or before such date;
(iii) at the election of the Company with respect to a Purchaser, if
there has been a material breach of any representation, warranty, covenant
or agreement on the part of such Purchaser contained in this Agreement,
which breach has not been cured within fifteen (15) Business Days of
notice to such Purchaser of such breach; or
(iv) at the election of any Purchaser, if there has been a material
breach of any representation, warranty, covenant or agreement on the part
of the Company contained in this Agreement, which breach has not been
cured within fifteen (15) Business Days of notice to the Company of such
breach.
If this Agreement so terminates, it shall become null and void and have no
further force or effect, except as provided in Section 11(b) below.
(b) Survival. If this Agreement is terminated and the transactions
contemplated hereby are not consummated as described above, this Agreement shall
become void and of no further force and effect, except for the provisions of
Section 11(b); provided, however, that (i) none of the parties hereto shall have
any liability in respect of a termination of this Agreement pursuant to Section
10(a)(i) or (ii), and (ii) nothing shall relieve any of the parties from
liability for actual damages resulting from a termination of this Agreement
pursuant to Section 10(a)(iii) or (iv); and provided, further, that none of the
parties hereto shall have any liability for speculative, indirect, unforeseeable
or consequential damages or lost profits resulting from any legal action
relating to any termination of this Agreement.
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SECTION 11. Survival of Representations, Warranties and Covenants;
Indemnification.
(a) Survival of Representations, Warranties and Covenants. All of
the representations and warranties made herein shall survive the execution and
delivery of this Agreement until twenty-four (24) months following the Closing
Date, except for (a) Sections 6(a), 6(b), 6(d), 6(z) and 6(aa), which
representations and warranties shall survive until the third anniversary of the
Closing Date, and (b) Section 6(m), which shall survive until the later to occur
of (i) the lapse of the statute of limitations with respect to the assessment of
any tax to which such representation and warranty relates (including any
extensions or waivers thereof) and (ii) sixty (60) days after the final
administrative or judicial determination of the taxes to which such
representation and warranty relates, and no claim with respect to Section 6(m)
may be asserted thereafter with the exception of claims arising out of any fact,
circumstance, action or proceeding to which the party asserting such claim shall
have given notice to the other parties to this Agreement prior to the
termination of such period of reasonable belief that a tax liability will
subsequently arise therefrom. Except as otherwise provided in this Agreement,
all such representations, warranties, covenants and agreements shall inure to
the benefit of the parties (subject to Section 11(b) below) and their respective
successors and assigns and to their transferees of the Securities.
(b) Indemnification.
(i) The Company agrees to defend, indemnify and hold harmless each
Purchaser, its respective subsidiaries, their respective Affiliates and
direct and indirect partners (including partners of partners and
stockholders and members of partners), members, stockholders, directors,
officers, employees and agents and each person who controls any of them
within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act (collectively, the "Purchaser Indemnified Parties" and
each a "Purchaser Indemnified Party"), harmless from and against any and
all liabilities, obligations, losses, damages, amounts paid in settlement,
penalties, actions, judgments, fines, suits, claims, costs, attorneys'
fees, expenses and disbursements, as the same are incurred, of any kind or
nature (whether or not arising out of third-party claims and including all
amounts paid in investigation, defense or settlement of the foregoing and
consequential damages) ("Losses") which may be sustained or suffered by
any such Purchaser Indemnified Party in any manner based upon, relating to
or arising out of (a) any untrue representation, misstatement, material
omission, breach of warranty or failure to perform any covenants or
agreement by such Company contained herein or in any Transaction Document
or (b) any action instituted against Purchaser Indemnified Party by any
stockholder of the Company who is not an Affiliate of such Purchaser
Indemnified Party, with respect to any of the transactions contemplated by
the Transaction Documents (unless such action is based upon a breach of
such Purchaser Indemnified Party's representation, warranties or covenants
under the Transaction Documents or any agreements or understandings such
Purchaser Indemnified Party may have with any such stockholder or any
violations by such Purchaser Indemnified Party of state or federal
securities laws or any conduct by such Investor which constitutes fraud,
gross negligence, willful misconduct or malfeasance). The Company will
also advance expenses as incurred to the fullest extent permitted under
applicable law; provided, however, that the Purchaser Indemnified Party
provides an undertaking to repay such
22
advances to Company if it is ultimately determined that such Indemnified
Party is not entitled to indemnification. The Purchaser Indemnified Party
and the Company will cooperate in the defense of any such matter.
(ii) A Purchaser Indemnified Party shall give written notice of a
claim for indemnification under this Section 11 to the Company promptly
after receipt of any written claim by any third party and in any event not
later than twenty (20) Business Days after receipt of any such written
claim (or not later than ten (10) Business Days after the receipt of any
such written claim in the event such written claim is in the form of a
formal complaint filed with a court of competent jurisdiction and served
on such Purchaser Indemnified Party), specifying in reasonable detail the
amount, nature and source of the claim, and including therewith copies of
any notices or other documents received from third parties with respect to
such claim; provided, however, that failure to give such notice shall not
limit the right of a Purchaser Indemnified Party to recover indemnity or
reimbursement except to the extent that the Company suffers any material
prejudice or material harm with respect to such claim as a result of such
failure. The Purchaser Indemnified Party shall also provide the Company
with such further information concerning any such claims as the Company
may reasonably request by written notice.
(iii) Within five (5) Business Days after receiving notice of a
claim for indemnification or reimbursement, the Company shall, by written
notice to the Purchaser Indemnified Party, either (A) concede or deny
liability for the claim in whole or in part, or (B) in the case of a claim
asserted by a third party, advise that the matters set forth in the notice
are, or will be, subject to contest or legal proceedings not yet finally
resolved. If the Company concedes liability in whole or in part, it shall,
within twenty (20) Business Days of such concession, pay the amount of the
claim to the Purchaser Indemnified Party to the extent of the liability
conceded. Any such payment shall be made in immediately available funds
equal to the amount of such claim so payable. If the Company denies
liability in whole or in part or advises that the matters set forth in the
notice are, or will be, subject to contest or legal proceedings not yet
finally resolved, then the Company shall make no payment (except for the
amount of any conceded liability payable as set forth above) until the
matter is resolved by a final judgment (not subject to any appeal) of a
court or other tribunal of competent jurisdiction.
(iv) In the case of any third party claim, if within five (5)
Business Days after receiving the notice described in the preceding
Section 11(a), the Company (A) gives written notice to the Purchaser
Indemnified Party stating that the Company disputes and intends to defend
against such claim, liability or expense at the Company's own cost and
expense and (B) provides assurance reasonably acceptable to such Purchaser
Indemnified Party that such indemnification will be paid fully and
promptly if required and such Purchaser Indemnified Party will not incur
cost or expense during the proceeding, then counsel for the defense shall
be selected by the Company (subject to the consent of such Purchaser
Indemnified Party which consent shall not be unreasonably withheld) and
the Company shall not be required to make any payment to the Purchaser
Indemnified Party with respect to such claim, liability or expense as long
as the Company is conducting a good faith and diligent defense at its own
expense; provided, however,
23
that the assumption of defense of any such matters by the Company shall
relate solely to the claim, liability or expense that is subject or
potentially subject to indemnification. If the Company assumes such
defense in accordance with the preceding sentence, it shall have the
right, with the consent of such Purchaser Indemnified Party, which consent
shall not be unreasonably withheld, to settle all indemnifiable matters
related to claims by third parties which are susceptible to being settled
provided the Company's obligation to indemnify such Purchaser Indemnified
Party therefor will be fully satisfied only by payment of money by the
Company pursuant to a settlement which includes a complete release of such
Purchaser Indemnified Party. The Company shall keep such Purchaser
Indemnified Party apprised of the status of the claim, liability or
expense and any resulting suit, proceeding or enforcement action, shall
furnish such Purchaser Indemnified Party with all documents and
information that such Purchaser Indemnified Party shall reasonably request
and shall consult with such Purchaser Indemnified Party prior to acting on
major matters, including settlement discussions. Notwithstanding anything
herein stated, such Purchaser Indemnified Party shall at all times have
the right to fully participate in such defense at its own expense directly
or through counsel; provided, however, if the named parties to the action
or proceeding include both the Company and one or more Purchaser
Indemnified Parties and representation of such parties by the same counsel
would be inappropriate under applicable standards of professional conduct,
the reasonable expense of separate counsel for all Purchaser Indemnified
Parties shall be paid by the Company, provided that the Company shall be
obligated to pay for only one counsel for all Purchaser Indemnified
Parties in any jurisdiction. If no such notice of intent to dispute and
defend is given by the Company, or if such diligent good faith defense is
not being or ceases to be conducted, such Purchaser Indemnified Party may
undertake the defense of (with counsel selected by such Purchaser
Indemnified Party), and shall have the right to compromise or settle, such
claim, liability or expense (exercising reasonable business judgment) with
the consent of the Company, which consent shall not be unreasonably
withheld. If such claim, liability or expense is one that by its nature
cannot be defended solely by the Company, then such Purchaser Indemnified
Party shall make available all information and assistance that the Company
may reasonably request and shall cooperate with the Company in such
defense.
SECTION 12. Miscellaneous.
(a) Entire Agreement; Amendments; Waivers. The terms and conditions
of this Agreement and the other Transaction Documents in effect between the
Company and each Purchaser represent the entire agreement between the parties
with respect to the subject matter hereof and thereof, and supersede any prior
agreements or understandings, whether written or oral, between the parties
respecting such subject matter. No provision of this Agreement may be waived or
amended except in a written instrument signed, in the case of an amendment, by
the Company and each Purchaser or, in the case of a waiver, by the party against
whom enforcement of any such waiver is sought. No course of dealing between or
among any of the parties hereto and no delay on the part of any party hereto in
exercising any rights hereunder or thereunder shall operate as a waiver of the
rights hereof and thereof. No waiver of any default with respect to any
provision, condition or requirement of this Agreement shall be deemed to be a
continuing waiver in the future or a waiver of any subsequent default or a
waiver of any other provision,
24
condition or requirement hereof, nor shall any delay or omission of either party
to exercise any right hereunder in any manner impair the exercise of any such
right.
(b) Successors and Assigns. This Agreement inures to the benefit of
and is binding upon the parties hereto and their respective successors, and no
other person has any right or obligation hereunder. No Purchaser may assign this
Agreement or any rights or obligations hereunder, other than to Affiliates of
such Purchaser, without the prior written consent of the Company, such consent
not to be unreasonably withheld, provided that any permitted transferee shall
agree in writing to be bound, with respect to the transferred Securities, by the
provisions hereof that apply to the "Purchasers". The Company may not assign
this Agreement or any rights or obligations hereunder without the prior written
consent of each Purchaser, except pursuant to a merger, recapitalization or
other business combination transaction in which the surviving entity agrees in
writing to assume all of the covenants, liabilities and obligations of the
Company hereunder. Any assignment contrary to the terms hereof is null and void
and of no force or effect. Notwithstanding the foregoing, nothing in this
Agreement is intended to give any person not named herein the benefit of any
legal or equitable right, remedy or claim under this Agreement, except as
expressly provided herein.
(c) Governing Law. This Agreement shall be deemed to be a contract
made under, and shall be construed in accordance with, the laws of the State of
Delaware, without giving effect to conflict of laws principles thereof. Each
party hereby irrevocably submits to the non-exclusive jurisdiction of the
federal courts sitting in the City of New York in the borough of Manhattan for
the adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby, and hereby irrevocably waives, and agrees not
to assert in any suit, action or proceeding involving an Investor or permitted
assignee of such Investor, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is brought
in an inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address in effect for notices to it
under this Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any manner permitted
by law.
(d) Remedies. It is specifically understood and agreed that any
breach of the provisions of the Transaction Documents by any party subject
hereto will result in irreparable injury to the other parties hereto, that the
remedy at law alone will be an inadequate remedy for such breach, and that, in
addition to any other remedies which they may have, such other parties may
enforce their respective rights by actions for specific performance (to the
extent permitted by law) without the necessity of showing economic loss or the
posting of any bond.
(e) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be deemed
prohibited or invalid under such applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, and such
prohibition or invalidity shall not invalidate the remainder of such provision
or the other provisions of this Agreement.
25
(f) Counterparts. This Agreement may be executed simultaneously in
any number of counterparts, each of which when so executed and delivered shall
be taken to be an original; but such counterparts shall together constitute but
one and the same document. This Agreement and the other Transaction Documents
may be executed and delivered by facsimile transmission.
(g) Notices. All notices and other communications required or
permitted hereunder must be in writing and, except as otherwise noted herein,
must be addressed as follows:
(i) if to the Company, to:
Evergreen Solar, Inc.
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Chief Financial
Officer, Vice President, Treasurer and
Secretary
Fax: (000) 000-0000
(ii) if to any Purchaser, at the address shown for such
Purchaser on the Schedule of Purchasers, marked for
attention as there indicated.
or to such other address as the party to whom notice is to be given may have
furnished to the other in writing in accordance with the provisions of this
Section 12(g). Any such notice or communication will be deemed to have been
received: (A) in the case of telecopy or personal delivery, on the date of such
delivery; (B) in the case of nationally-recognized overnight courier, on the
next Business Day after such notice is timely delivered to such courier; and (C)
if by registered or certified mail, on the Business Day actually received by the
intended recipient.
(h) Expenses. Each party will bear its own expenses related to this
Agreement and the transactions contemplated hereby, except that the Company will
reimburse the Purchasers and the Placement Agent for reasonable legal fees and
expenses incurred by them in connection with the offer and sale of the
Securities up to, but not exceeding, $100,000 in the aggregate.
(i) Section Headings. The descriptive headings and subheadings
herein have been inserted for convenience only and are not to be deemed to limit
or otherwise affect the construction of any provisions hereof.
(j) No Reliance. Each party acknowledges that (i) it has such
knowledge in business and financial matters as to be fully capable of evaluating
this Agreement, the other Transaction Documents, and the transactions
contemplated hereby and thereby, (ii) it is not relying on any advice or
representation of any other party in connection with entering into this
Agreement, the other Transaction Documents, or such transactions (other than the
representations made in this Agreement or the other Transaction Documents),
(iii) it has not received from such party any assurance or guarantee as to the
merits (whether legal, regulatory, tax, financial or otherwise) of entering into
this Agreement or the other Transaction Documents or the performance of its
obligations hereunder and thereunder, and (iv) it has consulted with its
26
own legal, regulatory, tax, business, investment, financial and accounting
advisors to the extent that it has deemed necessary, and has entered into this
Agreement and the other Transaction Documents based on its own independent
judgment and on the advice of its advisors as it has deemed necessary, and not
on any view (whether written or oral) expressed by such other party.
(k) Independent Nature of Purchasers' Obligations and Rights. The
obligations of each Purchaser hereunder are several and not joint with the
obligations of the other Purchasers hereunder, and no Purchaser shall be
responsible in any way for the performance of the obligations of any other
investor hereunder. Nothing contained herein or in any other agreement or
document delivered at the Closing, and no action taken by any Purchaser pursuant
hereto or thereto, shall be deemed to constitute any Purchasers as a
partnership, an association, a joint venture or any other kind of entity, or a
"group" as described in Section 13(d) of the Exchange Act, or create a
presumption that any Purchasers are in any way acting in concert with respect to
such obligations or the transactions contemplated by this Agreement. Each
Purchaser shall be entitled to protect and enforce its rights, including without
limitation the rights arising out of this Agreement or out of the other
Transaction Documents, and it shall not be necessary for any other Purchaser to
be joined as an additional party in any proceeding for such purpose.
[SIGNATURE PAGES FOLLOW]
27
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
date first set forth above.
THE COMPANY:
EVERGREEN SOLAR, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer and
President
PURCHASERS:
LOEB PARTNERS CORPORATION,
on behalf of its affiliated entities
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice-President
LB I GROUP INC.
By: /s/ Xxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice-President
ALEXANDRA GLOBAL MASTER FUND LTD.
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Chairman
OMICRON MASTER TRUST
By: Omicron Capital L.P., as advisor
By: Omicron Capital Inc., its general
partner
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
SF CAPITAL PARTNERS LTD.
By: /s/ Xxxxxxx X. Xxxx
----------------------------------
Name: Xxxxxxx X. Xxxx
Title: Authorized Signatory
XXXXX XXXXXXXX, LTD
By: /s/ Xxxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: General Partner
CRT CAPITAL GROUP LLC
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Member
TRUK OPPORTUNITY FUND, LLC
By: Atoll Asset Management, LLC
By: /s/ Xxxxxxx X. Xxxx
----------------------------------
Name: Xxxxxxx X. Xxxx
Title: Principal
TRUK INTERNATIONAL FUND, LP
By: Atoll Asset Management, LLC
By: /s/ Xxxxxxx X. Xxxx
----------------------------------
Name: Xxxxxxx X. Xxxx
Title: Principal
PORTSIDE GROWTH AND
OPPORTUNITY FUND
By: /s/ Xxxx Xxxxx
----------------------------------
Name: Xxxx Xxxxx
Title: Authorized Signatory
XXXXXX XXXXXXX AND CO.
INTERNATIONAL LIMITED
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxx
Title: Authorized Signatory
DOUBLE BLACK DIAMOND
OFFSHORE LDC
By: Xxxxxxx Capital, L.P., its
investment advisor
By: Asgard Investment Corp., its
general partner
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
XXXXXXXXX PARTNERS LP
By: Amjac Capital Management, its
general partner
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Managing Member
XXXXXXXXX XXXXXXX PARTNERS LP
By: Amjac Capital Management, its
general partner
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Member
XXXXXXXXX OFFSHORE FUND, LTD.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Portfolio
Manager/Investment Advisor
EXHIBIT A
Schedule of Purchasers
Number Number of Purchase
Purchaser of Shares Warrant Shares Price
--------- --------- -------------- -----
Loeb Partners Corporation 957,854 287,356 $ 2,500,000
LB I Group Inc. 1,915,709 574,713 $ 5,000,000
Alexandra Global Master Fund Ltd. 383,142 114,943 $ 1,000,000
Omicron Master Trust 191,571 57,471 $ 500,000
SF Capital Partners Ltd. 574,713 172,414 $ 1,500,000
Xxxxx Xxxxxxxx LTD 1,149,425 344,828 $ 3,000,000
CRT Capital Group LLC 1,374,137 412,240 $ 3,586,500
Truk Opportunity Fund, LLC 139,500 41,850 $ 364,095
Truk International Fund, LP 10,500 3,150 $ 27,405
Portside Opportunity and Growth Fund 383,142 114,943 $ 1,000,000
Xxxxxx Xxxxxxx and Co. International 383,142 114,943 $ 1,000,000
Limited
Double Black Diamond Offshore LDC 44,000 13,200 $ 114,840
Xxxxxxxxx Partners LP 23,000 6,900 $ 60,030
Xxxxxxxxx Xxxxxxx Partners, LP 64,000 19,200 $ 167,040
Xxxxxxxxx Offshore Fund, Ltd. 69,000 20,700 $ 180,090
Total 7,662,835 2,298,851 $20,000,000
D-1
