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Exhibit 10.11
SERIES A PREFERRED
STOCK PURCHASE AGREEMENT
DATED AS OF
JUNE 8, 1999
AMONG
i-RECALL, INC.
AND
THE INVESTORS IDENTIFIED HEREIN
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i-RECALL, INC.
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
As of June 8, 1999
To each of the parties listed
on Schedule I hereto
i-Recall, Inc.
Series A Convertible Preferred Stock Purchase Agreement
Dear Ladies and Gentlemen:
The undersigned, i-RECALL, INC., a Delaware corporation (the
"Corporation") presently intends to issue shares of convertible preferred stock
$.01 par value, of the Corporation (the "Series A Preferred Stock") to each of
the parties identified on Schedule 1 hereto (each an "Investor" and,
collectively, the "Investors"), and hereby agrees with the Investors as
follows:
SECTION 1. FILING OF CERTIFICATE OF DESIGNATION; ISSUANCE AND SALE OF SERIES A
PREFERRED STOCK; CLOSING.
1.1 FILING OF CERTIFICATE OF DESIGNATION. Immediately prior to the
execution and delivery of this Agreement, the Corporation is filing with the
Secretary of State of the State of Delaware a Certificate of Designation,
Preference and Rights of the Series A Preferred Stock, substantially in the form
of Exhibit B attached hereto (the "Certificate of Designation").
1.2 ISSUANCE AND SALE OF SERIES A PREFERRED STOCK. Simultaneously with
the execution and delivery of this Agreement, the Corporation is selling to each
Investor, and each such Investor is purchasing from the Corporation, upon the
terms and subject to the conditions hereinafter set forth, that number of shares
of Series A Preferred Stock, of the Corporation (collectively, the "Initial
Shares") set forth opposite such Investor's name on Schedule I hereto
(representing an aggregate of 8,246 shares of Series A Preferred Stock being
issued and sold to and purchased by all Investors hereunder at the Closing (as
hereinafter defined)) for a cash purchase
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price of $16.67 per share of Series A Preferred Stock (representing an aggregate
purchase price of $137,460.82 (the "Aggregate Purchase Price") for all of the
shares of Series A Preferred Stock being issued and sold to and purchased by the
Investors at the Closing).
1.3 INITIAL CLOSING. The closing (the "Closing") of the sale and
purchase of the Initial Shares is taking place at the offices of Xxxxxx,
Xxxxxxxxxx & Xxxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
simultaneously with the execution and delivery of this Agreement (the "Closing
Date"). At the Closing, the Corporation is issuing and delivering to each
Investor a certificate representing the Initial Shares being purchased by such
Investor hereunder, registered in the name of such Investor, against delivery to
such Investor of a certified check payable to the Corporation, or a wire
transfer of immediately available funds to an account designated by the
Corporation, in an amount equal to the full amount of the purchase price for
such Initial Shares being purchased by such Investor hereunder at the Closing.
1.4 ADDITIONAL CLOSINGS.
(a) Subject to paragraph (b) below, the Corporation shall sell
additional shares for cash of Series A Preferred Stock (the "Additional Shares")
pursuant to the terms and conditions set forth herein to the Investors at two
closings hereunder after the Closing (each of said closings being sometimes
hereinafter referred to as an "Additional Closing") which shall take place at
the office of OHS at the address set forth in Section 1.2 on June 1 and July 1,
respectively, each said date being sometimes hereinafter referred to as an
"Additional Closing Date").
(b) The Investors agree to purchase that number of Additional
Shares set forth opposite such Investor's name on Schedule I hereto
(representing an aggregate number of 4,122 Additional Shares being issued and
sold to and purchased by all Investors hereunder at each Additional Closing) for
an aggregate purchase price of $68,713.74 on each Additional Closing Date if the
Corporation attains the following milestones with respect to each Additional
Closing Date:
(i) On or before June 15, the Corporation shall
deliver a software control that allows a user to display and edit digital ink
downloaded from the CrossPad.
(ii) On or before July 15, the Corporation shall
deliver an application built using the control mentioned above that allows a
user to access particular moments in a media recording.
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(c) Upon the satisfaction of each milestone, the respective
Additional Closing shall occur, and the Corporation shall (i) issue to each
Investor a certificate representing the number of Additional Shares being
purchased by such Investor at such Additional Closing, registered in the name of
such Investor and (ii) deliver to such Investor an officer's certificate
certifying that, except as disclosed in the certificate the representations and
warranties of the Corporation are true and correct in all material respects as
of such Additional Closing Date (as the same may be updated on such Additional
Closing Date) against delivery to such Investor of a certified check payable to
the Corporation, or a wire transfer of immediately avail able funds to an
account designated by the Corporation, in an amount equal to the full amount of
the purchase price for such Additional Shares being purchased by such Investor
at such Additional Closing.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE CORPORATION. The Corporation
hereby represents and warrants to the Investors as follows:
2.1 ORGANIZATION. The Corporation is a corporation duly organized,
validly existing and in good standing under the laws of the State of New York.
The Corporation has all requisite corporate power and authority to own and
operate its properties. The Corporation has duly qualified and is in good
standing in all jurisdictions in which the failure to be so qualified would
have a material adverse effect on the business of the Corporation. The
Corporation has no subsidiaries. The Corporation has delivered to the Purchaser
complete and correct copies of its Certificate of Incorporation and By-Laws in
effect as of the date hereof.
2.2 CAPITALIZATION. (a) The authorized capital stock of the Corporation
immediately prior to the Closing consisted of (i) 4,000,000 shares of common
stock, $0.1 par value, (the "Common Stock") of which 100,000 shares were
outstanding and (ii) 1,000,000 shares of Preferred Stock, $.01 par value, of
which there were no shares outstanding. Immediately prior to the date hereof,
there were no (i) outstanding warrants, options, agreements or other securities
pursuant to which the Corporation is or may become obligated to issue or sell
any shares of capital stock or other securities of the Corporation, or (ii)
preemptive or similar rights to purchase or otherwise acquire shares of capital
stock of the Corporation pursuant to any provision of law, the Certificate of
Incorporation or By-laws of the Corporation or any agreement to which the
Corporation is party. As of the date hereof, no third party has the right to
anti-dilution protection from the Corporation (other than in connection with
stock splits, stock dividends, stock combinations, recapitalizations and like
occurrences). The names of the record holders of shares of Common Stock of the
Corporation and the number of issued and outstanding shares of Common
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Stock of the Corporation held by each of them are set forth on Schedule 2.2. The
delivery of the certificates to the Investor representing Initial Shares and/or
Additional Shares pursuant to Sections 1.3 and 1.4(c) will result in the
Investor's immediate acquisition of record ownership of the Initial Shares and
Additional Shares purchased by such Investor hereunder, free and clear of all
liens, charges or other encumbrances of any nature created by the Corporation,
other than restrictions imposed under the Securities Act of 1933, as amended
(the "Securities Act"), any applicable state securities or "blue-sky" laws or
under the Co-Sale Agreement (as hereinafter defined).
(b) The Company has reserved, and at all times from and after
the date hereof will keep reserved, free from preemptive rights, out of its
authorized but unissued shares of Common Stock, solely for the purpose of
effecting the conversion into shares of Common Stock of all shares of Series A
Preferred Stock, sufficient shares of Common Stock to provide for the full
conversion into shares of Common Stock of all shares of Series A Preferred
Stock.
2.3 AUTHORIZATION. The execution, delivery and performance by the
Corporation of this Agreement and the Co-Sale Agreement dated the date hereof
(the "Co-Sale Agreement") among the Corporation and the Investors in the form
attached hereto as Exhibit C have been duly authorized by all requisite
corporate action on the part of the Corporation, and this Agreement has been
duly executed and delivered by the Corporation and constitutes the valid and
binding obligation of the Corporation, enforceable in accordance with its terms,
except (i) as limited by (A) applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or similar laws relating to or affecting the
rights and remedies of creditors and debtors and (B) equitable principles
generally, regardless of whether such principles are considered in a proceeding
at equity or at law. The execution, delivery and performance of this Agreement
and the Co-Sale Agreement and compliance with the provisions hereof by the
Corporation will not (a) violate in any material respect any law or statute or
order, judgment or decree of any court, administrative agency or other
governmental body applicable to the Corporation or its properties or assets, (b)
conflict in any material respect with or result in any material breach of any of
the terms or provisions or constitute (with due notice or lapse of time, or
both) a default under the Certificate of Incorporation or By-laws of the
Corporation or any note, indenture, mortgage, lease agreement or other material
agreement, contract or instrument to which the Corporation is a party or by
which it or any of its properties or assets may be bound or affected or (c)
result in the creation or imposition of any lien, charge, restriction, claim or
encumbrance of any nature whatsoever upon any of the Corporation's properties or
assets.
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2.4 CONSENTS. Subject to the truth and accuracy of the representations
and warranties of the Investors contained in Section 3 hereof, no authorization,
consent, approval or other order of, or declaration to or filing with, any
governmental agency or body or other person or entity is required for the valid
authorization, execution, delivery and performance by the Corporation of this
Agreement or the offer, sale or issuance of the Series A Preferred Stock or the
consummation of the transactions contemplated hereby or, if so required, the
same have been or will be obtained or made.
2.5 AUTHORIZATION OF SERIES A PREFERRED STOCK. The issuance, sale and
delivery of the Series A Preferred Stock, have been duly authorized by all
requisite corporate action of the Corporation, and when issued, sold and
delivered in accordance with the terms of this Agreement and the Certificate of
Designation, the Series A Preferred Stock will be validly issued and
outstanding, fully paid and nonassessable and will not be subject to preemptive
or other similar rights of the stockholders of the Corporation or others, except
as set forth in this Agreement or in the Co-Sale Agreement, and will be free and
clear of all liens, charges, restrictions, claims and encumbrances imposed by
the Corporation.
2.6 AGREEMENTS. Each written agreement, lease, contract or commitment
("contract") to which the Corporation is a party or by which the Corporation or
its properties or assets are bound or affected involving an aggregate
consideration in excess of $5,000 is listed on Schedule 2.6 hereto (copies of
which have been delivered to counsel for the Investor). The Corporation is not
in default in any material respect under any such contract. The Corporation has
not received any written notice of cancellation or termination in connection
therewith and each such contract is a valid and binding obligation of the
Corporation and in full force and effect. No consent (except for any consent(s)
which have been or will be obtained by the Closing) of the other party or
parties thereto is required to be obtained by the Corporation to consummate the
transactions contemplated hereby.
2.7 LITIGATION. There are no actions, suits, proceedings, or
investigations pending nor, to the knowledge of the Corporation, threatened
against the Corporation by or before any court or governmental agency which, if
adversely determined, would have an effect on the Corporation.
2.8 COMPLIANCE WITH LAWS; GOVERNMENTAL AUTHORIZATIONS. The Corporation
is in compliance with all laws, statutes or decrees that, if violated, would
have a material adverse effect on the Company.
2.9 PATENTS TRADEMARKS AND COPYRIGHTS, ETC. The Corporation
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believes it possesses adequate licenses or other rights to use all patents,
trademarks, service marks, trade names, copyrights, manufacturing processes,
formulae, trade secrets, customer lists and know-how (collectively,
"Intellectual Property") necessary to the conduct of its business as presently
conducted or can acquire the same on commercially reasonable terms. No claim is
pending and the Corporation has not received written notice from any third party
to the effect that the operations of the Corporation infringe upon or conflict
with the asserted rights of any person under any Intellectual Property. The
Corporation has not received any written notice or claim alleging that such
trade name, trademark, copyright, patent or other right infringes upon any trade
name, trademark, copyright, patent or other right of any third party. The
Corporation has no knowledge of any infringement by any third party upon any
such trade name, trademark, copyright, patent or other right of the Corporation,
and the Corporation has not taken or omitted to take any action which would have
the effect of waiving any of its rights with respect thereto. Each of Anselm
Xxxxxxx, Xxxxxxxxx Polish and Xxxxxx Xxxxxx have executed an Employee
Non-Disclosure, Non-Competition and Assignment of Inventions Agreement with the
Corporation, a form of which is attached hereto as EXHIBIT D.
2.10 TAXES. The Corporation has filed all tax returns when due, if any,
and paid all taxes shown thereon to be due, if any, that are required to have
been filed on or before the Closing with appropriate Federal, state, county and
local governmental agencies or instrumentalities, including any and all payroll
taxes, except where the failure to do so would not have a material adverse
effect upon the business of the Corporation taken as a whole. The Corporation
has not been advised in writing (a) that any of its returns, Federal, state or
other, have been or are being audited as of the date hereof, or (b) of any
deficiency in assessment or proposed adjustment to its Federal, state or other
taxes.
2.11 TITLE TO ASSETS. All assets (if any) owned by the Corporation are
owned outright free and clear of mortgages, pledges, security interests, liens,
charges and other encumbrances, except (a) for liens for current taxes not yet
due and (c) minor imperfections of title, if any, not material in amount and not
materially detracting from the value or impairing the use of the property
subject thereto or impairing the operations or proposed operations of the
Corporation.
2.12 REAL PROPERTY. The Corporation does not own any real property. The
Corporation presently subleases space from Daedalus Technology Group, Inc.
located at 00 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 pursuant to
an oral agreement for $200.00 per month.
2.13 LABOR CONTRACTS; EMPLOYMENT CONTRACTS, ETC. The Corporation is
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in compliance in all material respects with all applicable laws respecting
employment and employment practices, terms and conditions of employment and
wages and hours and has not been notified by any governmental entity or
instrumentality of, charged with, or found to be engaged in, any unfair labor
practice.
2.14 BENEFIT PLANS. The Corporation does not have, none of the
Corporation's employees are covered by, and the Corporation has no obligations
with respect to, any bonus, deferred compensation, pension, profit-sharing,
retirement, insurance, stock purchase, stock option, or other fringe benefit
plan, arrangement or practice, or any other employee benefit plan (as defined in
section 3(3) of the Employee Retire ment Income Security Act of 1974, as amended
("ERISA"), whether formal or informal (collectively, "Plans").
2.15 MILLENNIUM COMPLIANCE. To the knowledge of the Corporation, all
software systems, machinery, equipment and other technology (collectively,
"Technology") owned by the Corporation is Millennium Compliant. "Millennium
Compliant" means as to the Technology that it correctly performs all
date-related operations (i) without human intervention, other than original data
entry of any date, (ii) without regard to whether any date involved in the
operation occurs in the 20th or 21st Century and (iii) without regard to the
system date at the time the calculation is performed.
2.16 NO UNDISCLOSED LIABILITIES. As of the date hereof, to the
knowledge of the Corporation, except as disclosed on Schedule 2.16 hereto, the
Corporation does not have any material indebtedness or liabilities, fixed or
contingent, liquidated or unliquidated, secured or unsecured, accrued or
absolute, including, without limitation, liabilities on account of taxes, other
governmental charges or lawsuits brought, that would be required by generally
accepted accounting principles to be set forth on a balance sheet of the
Corporation as at such date in order for such balance sheet to fairly present
the financial condition of the Corporation as at such date.
2.17 DISCLOSURE. Neither this Agreement nor any Schedule hereto
contains or will contain any untrue statement of a material fact or omits or
will omit to state a material fact necessary to make the statements contained
herein or therein not misleading.
2.18 USE OF PROCEEDS. The Corporation intends to utilize the net
proceeds from the sale of the Series A Preferred Stock for working capital,
operating and general corporate purposes and payment of professional expenses
(including legal and accounting fees and expenses).
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2.19 BROKERS AND FINDERS. No person or entity acting on behalf or under
the authority of the Corporation is or will be entitled to any broker's,
finder's, or similar fee or commission in connection with the transactions
contemplated by this Agreement.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE INVESTORS. Each Investor, as to
itself, himself or herself, as the case may be, represents and warrants to the
Corporation as follows:
3.1 AUTHORITY. Such Investor has full power and authority to execute,
deliver and perform this Agreement and the Co-Sale Agreement and to consummate
the transactions contemplated hereby and thereby; and this Agreement and the Co-
Sale Agreement constitute the valid and binding obligations of such Investor,
enforceable in accordance with their respective terms, except as limited by (A)
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or similar laws relating to or affecting the rights and remedies of
creditors and debtors and (B) equitable principles generally, regardless of
whether such principles are considered in a proceeding at equity or at law.
3.2 ACCREDITED INVESTOR. If such Investor has checked the box located
on the signature page hereto, such Investor is an "accredited investor" (as such
term is defined in Rule 501 of Regulation D promulgated under the Securities Act
of 1933, as amended (the "Securities Act")).
3.3 INVESTOR INTENT. Such Investor is acquiring the Series A Preferred
for his, her or its own account, for investment and not with a view to, or for
resale in connection with, any distribution thereof, nor with any present
intention of distributing or reselling the same or any part thereof in any
transactions that would be in violation of the Securities Act of or any state
securities or "blue-sky" laws.
3.4 RESTRICTED SECURITIES. Such Investor understands (i) that the
Series A Preferred Stock being acquired by him, her or it hereunder and any
shares of Common Stock issuable upon conversion of the Series A Preferred
Stock, will not be registered under the Securities Act or any state securities
or "blue-sky" laws by reason of their issuance in a transaction exempt from the
registration requirements of the Securities Act or any state securities or
"blue-sky" laws, (ii) that the Series A Preferred Stock and any shares of Common
Stock issuable upon conversion thereof must be held indefinitely unless a
subsequent disposition thereof is registered under the Securities Act or any
state securities or "blue-sky" laws or is exempt from such registration, (iii)
that the Corporation is under no obligation to so register any shares of Series
A Preferred Stock and any shares of Common Stock issuable upon
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conversion thereof and (iv) that the certificate(s) evidencing the shares of the
Series A Preferred Stock and any shares of Common Stock issuable upon conversion
thereof will be imprinted with a legend that prohibits the transfer
substantially as set forth in Section 4.2(b) hereof unless they are registered
or such registration is not required.
3.5 RULE 144. Such Investor understands that the exemption from
registration afforded by Rule 144 (the provisions of which are known to such
person) promulgated under the Securities Act ("Rule 144") depends on the
satisfaction of various conditions and that, if applicable, Rule 144 may only
afford the basis for sales under certain circumstances only in limited amounts.
3.6 ACCESS TO INFORMATION; EXPERIENCE. Such Investor has been furnished
with or has had access during the course of this transaction and prior to the
sale of the Series A Preferred Stock to all information necessary to enable such
Investor to evaluate the merits and risks of a prospective investment in the
Corporation and such Investor has had an opportunity to discuss with
representatives of the Corporation the business and financial affairs of the
Corporation and the terms and conditions of the offering and to obtain such
additional information, to the extent that the Corporation possesses such
information or could acquire it without unreasonable effort or expense,
necessary to verify the accuracy of the information to which such Investor has
had access and all questions raised by such Investor have been answered to the
full satisfaction of such Investor. Such Investor has conducted his own
investigation and analysis of the business and his investment in the Series A
Preferred Stock and is not relying on the Corporation's business plan or
executive summary (if any) or any other written material or any information or
opinions that may be contained therein in making its or his decision to purchase
the Series A Preferred Stock. Such Investor has substantial experience in
evaluating and investing in private placement transactions of securities in
companies similar to the Corporation so that it or he is capable of evaluating
the merits and the risks of its investment in the Corporation and has the
capacity to protect its or his own interests in making his investment in the
Corporation. Such Investor can afford to suffer a complete loss of its or his
investment in the Series A Preferred Stock.
3.7 NO PUBLIC MARKET. Such Investor understands that no public market
now exists for the Series A Preferred Stock or any shares of Common Stock
issuable on conversion thereof, that it is unlikely that a public market will
ever exist therefor, and that even if a public market exists at the time such
Investor wishes to sell the Series A Preferred Stock or any shares of Common
Stock issuable on conversion thereof, the Corporation may not be satisfying the
current public information requirements of Rule 144, and that, in such event,
such Investor would be precluded
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from selling the securities under Rule 144 even if the applicable minimum
holding period provided thereunder had been satisfied.
3.8 SPECULATIVE INVESTMENT. Such Investor understands that the
Corporation has a limited financial and operating history, that the shares of
Series A Preferred Stock being purchased by him, her or it are a speculative
investment which involve a high degree of financial risk, and that there is no
assurance of any eco nomic, income or tax benefit from such investment.
3.9 REVIEW OF AGREEMENT. Such Investor has carefully read and re viewed
this Agreement and, to the extent he, she or it believed necessary, such
Investor has discussed with his legal, accounting and other professional
advisors the representations, warranties and agreements which such Investor is
making herein and the terms and conditions of the investment contemplated
hereby.
SECTION 4. AFFIRMATIVE COVENANTS.
4.1 CONFIDENTIALITY. Each Investor hereby agrees to and shall keep
strictly confidential and will not disclose or divulge any confidential,
proprietary or secret information which such Investor may obtain from the
Corporation, including, by way of example and not in limitation thereof,
financial statements, reports and other materials submitted by the Corporation
as required hereunder, unless required to be disclosed by law or pursuant to any
judgment, order, subpoena or decree of any court having competent jurisdiction,
or unless such information is or becomes publicly known (other than as a result
of this Section 4.1), or unless the Corporation gives its written consent to
such Investor's release of such information, except that no such written consent
shall be required (and such Investor shall be free to release such information)
if such information is to be provided to such Investor's lawyer or accountant
who are instructed to comply with this provision. Each Investor shall be
responsible for making sure its lawyer and accountant comply.
4.2 LETTER AGREEMENTS.
(a) Currently herewith, the Corporation, Xxxxx Xxxxxxxx and
Xxxxx Xxxxxxxxx (the "GS Investors") are entering into a letter agreement
governing the non-disclosure of the identities of the GS Investors in any public
announcement and/or press release of the transaction contemplated hereby.
(b) Currently herewith, the Corporation and Screaming
Xxxxx.Xxx, Inc. are entering into a letter agreement governing, among other
things, the public announcement and/or press release of the transaction
contemplated hereby.
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4.3 FINANCIAL INFORMATION. Until the consummation of the initial public
offering of Common Stock of the Corporation registered under the Securities Act
(the "IPO"), the Corporation shall provide each Investor with the following:
(a) QUARTERLY REPORTS. As soon as available, but not later than 30
days after the end of each quarterly accounting period commencing with the
quarterly period ending on June 30, 1999, an unaudited balance sheet and income
statement of the Corporation,
(b) ANNUAL REPORTS. As soon as available, but not later than 90
days after the end of each fiscal year of the Corporation, unaudited financial
statements of the Corporation, which shall include a balance sheet as at the
last day thereof and an income statement for the year then ended.
4.4 TRANSFER OF SECURITIES.
(a) RESTRICTIONS ON TRANSFER. Each Investor acknowledges that the
Series A Preferred Stock and the shares of Common Stock issuable upon conversion
thereof purchased hereunder have not been registered under the Securities
Act, that such shares are being or will be issued pursuant to an exemption from
registration under the Securities Act and that such shares constitute
"restricted securities" under Rule 144. Accordingly, the Series A Preferred
Stock and the shares of Common Stock issuable upon conversion thereof held by
such Investor shall not be sold, transferred, assigned, pledged, encumbered or
otherwise disposed of (each, a "Transfer") except upon the conditions specified
in this Section 4.4 or Section 4.6 (which provides for certain additional
restrictions on transfer), which conditions are intended to ensure compliance
with the provisions of the Securities Act and this Agreement.
(b) RESTRICTIVE LEGEND. Each certificate for Series A Preferred
Stock and all shares of Common Stock issuable upon conversion thereof held by
each Investor and each certificate for any such securities issued to subsequent
transferees of any such certificate shall (unless otherwise permitted by the
provisions of Sections 4.4(c) and 4.4(d)) be stamped or otherwise imprinted with
a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED OR ANY APPLICABLE
STATE
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SECURITIES OR "BLUE-SKY" LAWS. THESE SECURITIES MAY NOT BE
SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THERE FROM UNDER SAID ACT OR LAWS. ADDITIONALLY,
THE TRANSFER OF THESE SECURITIES IS SUBJECT TO THE CONDITIONS
SPECIFIED IN SECTIONS 4.4 AND 4.6 OF THE STOCK PURCHASE
AGREEMENT DATED AS OF JUNE ___, 1999, AMONG I-RECALL, INC.
AND THE INVESTORS IDENTIFIED THEREIN, AND NO TRANSFER OF
THESE SECURITIES SHALL BE VALID OR EFFECTIVE UNTIL SUCH
CONDITIONS HAVE BEEN FULFILLED. UPON THE FULFILLMENT OF ALL
APPLICABLE CONDITIONS, I-RECALL, INC. HAS AGREED TO DELIVER
TO THE HOLDER HEREOF A NEW CERTIFICATE, NOT BEARING THIS
LEGEND, FOR THE SECURITIES REPRESENTED HEREBY REGISTERED IN
THE NAME OF THE HOLDER HEREOF."
(c) NOTICE OF TRANSFER. Each Investor agrees, prior to any Transfer
of Series A Preferred Stock or shares of Common Stock issued upon conversion
thereof to give written notice to the Corporation of such Transfer and to comply
in all other respects with the provisions of this Section 4.4. Each such notice
shall describe the manner and circumstances of the proposed Transfer and shall
be accompanied by the written opinion, addressed to the Corporation, of counsel
for the holder of such shares, stating that in the opinion of such counsel
(which opinion and counsel shall be reasonably satisfactory to the Corporation),
such proposed Transfer does not involve any transaction requiring registration
or qualification of such shares under the Securities Act or the securities blue
sky laws of any relevant state of the United States. Each such Investor shall
thereupon be entitled to Transfer such shares in accordance with the terms of
the notice delivered by it to the Corporation. Each certificate or other
instrument evidencing the securities issued upon the Transfer of any such shares
(and each certificate or other instrument evidencing any untransferred balance
of such shares) shall bear the legend set forth in Section 4.4(b) unless (a) in
such opinion of counsel registration of any future Transfer is not required by
the applicable provisions of the Securities Act and applicable state securities
laws or (b) the Corporation shall have waived the requirement of such legends.
No Investor shall Transfer any shares of Series A Preferred Stock, or shares of
Common Stock issuable on conversion thereof until such opinion of counsel has
been given (unless waived by the Corporation or unless such opinion is not
required in accordance with the provisions of this Section 4.4).
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(d) REMOVAL OF LEGENDS, ETC. Notwithstanding the foregoing
provisions of this Section 4.2, the restrictions imposed by this Section 4.4
upon the transferability of any shares of the capital stock of the Corporation
held by an Investor shall cease and terminate when (a) any such shares are sold
or otherwise disposed of pursuant to an effective registration statement under
the Securities Act or as otherwise contemplated by Section 4.4(c) and, pursuant
to Section 4.4(c), the securities so transferred are not required to bear the
legend set forth in Section 4.4(b) the holder of such shares has received an
opinion of counsel stating that such holder has met the requirements for
Transfer of such shares pursuant to subparagraph (k) of Rule 144. Whenever the
restrictions imposed by this Section 4.4 shall terminate, as herein provided,
each Investor holding shares as to which such restrictions have terminated shall
be entitled to receive from the Corporation, without expense, a new certificate
not bearing the restrictive legend set forth in Section 4.4(b) and not
containing any other reference to the restrictions imposed by this Section 4.4.
4.5 INDEMNIFICATION. Each Investor acknowledges that he, she or it
understands the meaning and legal consequences of the representations,
warranties and acknowledgments he, she or it has made in Section 3 and elsewhere
in this Agreement and he, she or it understands that the Corporation is relying
upon the truth and accuracy thereof. Accordingly, each Investor hereby agrees to
indemnify and hold harmless the Corporation, its officers, agents and
representatives, from and against any and all loss, damage or liability due to
or arising out of a breach of any representation or warranty of any Investor
contained in this Agreement. The Corporation hereby agrees to indemnify and hold
harmless each Investor, its officers, agents and representatives, from and
against any and all loss, damage or liability due to or arising out of a breach
of any representation or warranty of the Corporation contained in this
Agreement.
4.6 RIGHT OF FIRST REFUSAL. Until the consummation of the IPO, no
Investor shall sell or in any other way directly or indirectly transfer, assign,
pledge, distribute, bequeath, devise, encumber or otherwise dispose of, either
voluntarily or involuntarily, with or without consideration (each, a "Sale") any
of the shares of Series A Preferred Stock or shares of Common Stock issued on
conversion thereof (the "Investor Shares") except in accordance with the
following procedures:
(a) In the event that such Investor (such Investor being referred
to in this Section 4.6 as a "Selling Stockholder") receives a bona fide written
offer from a third party (the "Prospective Purchaser") to purchase all or any
portion of the Investor Shares owned by the Selling Stockholder, the Selling
Stockholder shall deliver to the Corporation a written notice (the "Offer
Notice"), which shall be
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irrevocable, subject to Section 4.6(b), for a period of 30 days after delivery
thereof (the "Offer Period"), offering (the "Offer") all of the Investor Shares
proposed to be Sold by the Selling Stockholder to the Prospective Purchaser at
the purchase price and on the terms of the proposed Sale to the Prospective
Purchaser (such Offer Notice to include the foregoing information and all other
relevant terms of the proposed Sale, including the identification of the
Prospective Purchaser). The Corporation, and/or its assignee(s), shall have the
right and option, for a period of 30 days after delivery of the Offer Notice, to
accept all or any part of the Investor Shares so offered at the purchase price
and on terms comparable to those stated in the Offer Notice. Such acceptance
shall be made by delivering a written notice to the Selling Stockholder within
said 30-day period.
(b) Anything contained herein to the contrary notwithstanding, the
Selling Stockholder may withdraw from the proposed Sale to a Prospective
Purchaser and, accordingly, may rescind the Offer by delivering written notice
of such withdrawal to the Corporation and/or its assignee(s) within the Offer
Period, subject to the reinstatement of the provisions of this Section 4.4 in
the event an Investor subsequently intends to sell the Investor Shares.
(c) Sales of Investor Shares under the terms of Section 4.6(a)
shall be made at the offices of the Corporation on a mutually satisfactory
business day within 30 days after the expiration of the Offer Period. Delivery
of certificates or other instruments evidencing such Investor Shares duly
endorsed for transfer shall be made to the Corporation on such date against
payment of the purchase price therefor.
(d) If an effective acceptance shall not be received pursuant to
Section 4.6(a) with respect to all Investor Shares offered for Sale pursuant to
the Offer Notice, then at any time within 30 days after the expiration of the
Offer Period the Selling Stockholder may Sell all or any part of the remaining
Investor Shares that were not accepted for purchase by the Corporation and/or
its assignees as aforesaid to the Prospective Purchaser at a purchase price no
less than that, and on the terms no more favorable to the Prospective Purchaser
than those, stated in the Offer Notice; provided, however, that the Selling
Stockholder may not, under any circumstances, Sell any Investor Shares to the
Prospective Purchaser if the Board of Directors determines in good faith, within
the Offer Period, that the Prospective Purchaser is a competitor of the
Corporation. In the event that the Investor Shares are not Sold by the Selling
Stockholder to the Prospective Purchaser during such 45-day period, the right of
the Selling Stockholder to Sell such remaining Investor Shares to the
Prospective Purchaser shall expire and the obligations of this Section 4.6 shall
be reinstated. "Affiliate" shall mean any (a) corporation or other entity in
which the subject person owns, directly or indirectly, more than 50% of the
capital stock or
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other equity interests the holders of which are generally entitled to vote for
the election of the board of directors or other governing body of such
corporation or other entity and (b) any other person that directly or
indirectly, through one or more intermediaries, controls, is controlled by or is
under common control with, the subject person.
(e) Anything contained herein to the contrary notwithstanding, any
purchaser of Investor Shares pursuant to this Section 4.6 who is not an Investor
shall agree in writing in advance with the parties hereto to be bound by and
comply with all applicable provisions of this Agreement and shall be deemed to
be an Investor for all purposes of this Agreement.
(f) The provisions of this Section 4.6 shall not apply to the
transfer of Investor Shares by an Investor to the spouse or lineal descendants
of such Investor or an Affiliate thereof or any trust for the benefit of such
persons, provided such transferee has agreed in writing in advance to be bound
by and comply with all provisions of this Agreement to the same extent as the
transferring Investor.
(g) The provisions of this Section 4.7 shall not be applicable to
and shall terminate upon consummation of the IPO.
4.7 PREEMPTIVE RIGHTS.
(a) In the event that the Corporation shall propose to issue or
sell any shares of capital stock of the Corporation in connection with an equity
financing of the Corporation for cash consideration (a "Sale Event"), the
Corporation shall at any time during the period commencing 20 days prior to the
consummation of the transactions constituting a Sale Event and ending on the
20th day thereafter offer to sell (the "Offer") to each Investor who then owns
shares of Series A Preferred Stock or Common Stock issued upon conversion
thereof a percentage of the Offered Securities (as hereinafter defined) equal to
its Pro Rata Amount (as hereinafter defined) immediately prior to such Sale
Event, at the same price and on the same terms as shall be applicable to the
Sale-Event, which Offer by its terms shall remain open and irrevocable for a
period of 10 days from the date it is delivered by the Corporation to each such
Investor.
(b) Notice of the intention of any Investor to accept, in whole or
in part, an Offer shall be evidenced by a writing signed by such Investor (the
"Notice of Acceptance") and delivered to the Corporation within the foregoing
10-day period, setting forth such portion of its Proportionate Percentage of the
Offered Securities as such Investor elects to purchase (the "Accepted
Securities").
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(c) If the Sale Event does not occur for any reason, the right of
each Investor pursuant to this Section 4.5 shall terminate. If the Sale Event
does occur, the closing of the purchase of any Accepted Securities shall take
place within 15 days following the delivery of the Notice of Acceptance with
respect thereto at such time as the parties to such purchase shall mutually
agree upon. Such purchase is subject in all respects to the preparation,
execution and delivery of a purchase agreement relating to the Accepted
Securities, satisfactory in form and substance to the parties to such purchase.
(d) The rights of the Investors under this Section 4.5 shall not
apply to the following securities:
(i) Common Stock issued to officers, employees or directors of,
or consultants to, the Corporation, pursuant to any agreement, plan or
arrangement approved by the Board of Directors, or options to purchase or rights
to subscribe for such Common Stock, or securities by their terms convertible
into or exchangeable for such Common Stock, or options to purchase or rights to
subscribe for such convertible or exchangeable securities, in each case as
approved by the Board of Directors of the Corporation;
(ii) securities issued pursuant to commercial transactions
approved by the Board of Directors including but not limited to, equipment
leases or bank lines of credit; provided, that the specific issuance is approved
by the Board of Directors of the Corporation;
(iii) securities issued to parties entering into "corporate
partnering", "strategic investment" or other similar types of transactions or
relation ships with the Corporation, provided, that the specific issuance is
approved by the Board of Directors of the Corporation;
(iv) shares of Common Stock issued upon conversion of Series A
Preferred Stock;
(v) shares of any class of capital stock of the Company issued
on a pro rata basis to all holders of such class as a stock dividend or upon any
stock split, stock combination, recapitalization, spin-off or other subdivision
of shares of capital stock; and
(vi) shares of capital stock of the Company issued as
consideration in connection with the acquisition by the Company of all or
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substantially all assets or all capital stock of any person or entity.
(e) "Offered Securities" shall mean the number of securities of the
kind issued in a Sale Event required to be issued to all Investors who own any
shares of Series A Preferred Stock to assure that immediately following such
Sale Event and assuming the exercise by all Investors of their right pursuant to
this Section 4.5 to in connection therewith, each Investor owns the same Pro
Rata Amount of all shares of Common Stock issued and outstanding on a fully
diluted basis as it owned immediately prior to such Sale Event.
(f) "Pro Rata Amount" shall mean for any Investor the fraction, the
numerator of which is the number of shares of Common Stock into which the shares
of Series A Preferred Stock owned by such Investor are then convertible and the
denominator of which is the aggregate number of shares of Common Stock issued
and outstanding on a fully diluted basis, in each case as of the date of
determination. Any determination on a fully diluted basis shall assume
conversion, exercise or exchange in to shares of Common Stock all of the vested
options, warrants, rights or other securities convertible into or exchangeable
for, directly or indirectly, shares of Common Stock.
4.8 INSURANCE. The Corporation shall obtain insurance for its
properties of a character usually insured by persons engaged in similar
businesses against loss or damage resulting from fire or other risks insured
against by extended coverage and public liability insurance of a kind
customarily insured against by such persons.
SECTION 5. MISCELLANEOUS.
5.1 NOTICES. All notices, advices and communications to be given or
otherwise made to any party to this Agreement shall be deemed to be sufficient
if contained in a written instrument delivered in person or by telecopier or
duly sent by first class registered or certified mail, return receipt requested,
postage prepaid, or by overnight courier, addressed to such party at the address
set forth below or at such other address as may hereafter be designated in
writing by the addressee to the addressor listing all parties:
(i) if to the Corporation, to:
i-Recall, Inc.
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
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Telecopier: (000) 000-0000
with a copy to:
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
Telecopier: (000) 000-0000
(ii) if to an Investor, to the address as set
forth on Schedule
I hereto
with a copy to:
Xxxxxx, Xxxxxxx & Xxxxxxx
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxx, Esq.
Telecopier: (000) 000-0000
or to such other address as the party to whom notice is to be given may have
furnished to the other parties hereto in writing in accordance herewith. Any
such notice or communication shall be deemed to have been delivered and received
(i) in the case of personal delivery or delivery by telecopier, on the date of
such delivery, (ii) in the case of nationally-recognized overnight courier, on
the next business day after the date when sent and (iii) in the case of mailing,
on the third business day following that on which the piece of mail containing
such communication is posted. As used in this Section 5, "business day" shall
mean any day other than a day on which banking institutions in the State of New
York are legally closed for business.
5.2 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, this Agreement shall bind and inure to the benefit of the parties hereto
and the respective successors and assigns of the parties hereto; provided,
however, that the rights and obligations of the Investor shall not be assignable
without the prior written consent of the Corporation.
5.3 SURVIVAL. All representations and warranties of the Corporation
contained in this Agreement shall survive the Closing until the first
anniversary hereof. All representations and warranties of each Investor
contained in this Agreement shall survive indefinitely.
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5.4 AMENDMENTS. The terms and provisions of this Agreement may only be
amended with the written consent of the Corporation and the Investors holding
eighty percent (80%), by voting power, of the outstanding shares of Preferred
Stock and any shares of Common Stock issued on conversion thereof then held by
all Investors.
5.5 ENTIRE AGREEMENT. This Agreement and the other writings referred to
herein or delivered pursuant hereto which form a part hereof contain the entire
agreement among the parties with respect to the subject matter hereof and
supersede all prior and contemporaneous arrangements or understandings with
respect thereto.
5.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
5.7 HEADINGS. The headings of the various sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed to
be a part of this Agreement.
5.8 GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY
CHOICE OF LAW OR CONFLICTING PROVISION OR RULE (WHETHER OF THE STATE OF NEW
YORK, OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION
OTHER THAN THE STATE OF NEW YORK TO BE APPLIED. IN FURTHERANCE OF THE FOREGOING,
THE INTERNAL LAW OF THE STATE OF NEW YORK WILL CONTROL THE INTERPRETATION AND
CONSTRUCTION OF THIS AGREEMENT, EVEN IF UNDER SUCH JURISDICTION'S CHOICE OF LAW
OR CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION
WOULD ORDINARILY APPLY. THE ISSUANCE AND DELIVERY OF THE INITIAL SHARES AND
ADDITIONAL SHARES SHALL BE GOVERNED BY THE DELAWARE GENERAL CORPORATION LAW.
5.9 JURISDICTION AND VENUE. SUBJECT TO THE TERMS OF THIS AGREEMENT,
EACH INVESTOR HEREBY AGREES THAT ANY AND ALL ACTIONS ARISING UNDER OR IN RESPECT
OF THIS AGREEMENT MAY BE LITIGATED IN THE FEDERAL OR STATE COURTS IN NEW YORK.
BY EXECUTING AND DELIVERING OF THIS AGREEMENT, EACH INVESTOR IRREVOCABLY SUBMITS
TO THE PERSONAL JURISDICTION OF SUCH
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COURTS FOR ITSELF, HIMSELF, OR HERSELF AND IN RESPECT OF ITS, HIS OR HER
PROPERTY WITH RESPECT TO SUCH ACTION. EACH INVESTOR AGREES THAT VENUE WOULD BE
PROPER IN ANY OF SUCH COURTS, AND HEREBY WAIVES ANY OBJECTION THAT ANY SUCH
COURT IS AN IMPROPER OR INCONVENIENT FORUM FOR THE RESOLUTION OF ANY SUCH
ACTION. EACH INVESTOR FURTHER AGREES THAT THE MAILING BY CERTIFIED OR REGISTERED
MAIL, RETURN RECEIPT REQUESTED, OF ANY PROCESS REQUIRED BY ANY SUCH COURT SHALL
CONSTITUTE VALID AND LAWFUL SERVICE OF PROCESS AGAINST THEM, WITHOUT THE
NECESSITY FOR SERVICE BY ANY OTHER MEANS PROVIDED BY STATUTE OR RULE OF COURT.
* * * * *
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[COUNTERPART SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused this Stock Purchase
Agreement to be executed as of the date first written above.
i-RECALL, INC.
By:
--------------------------
Name: Xxxxxx Xxxxxxx
Title: President
INVESTORS:
[Name of Investor]
By:
--------------------------
Name:
Title:
Investor Social Security Number
Investor Address
Investor Home Phone
Investor Office Phone
Please check if correct:
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[ ] Investor is an "accredited
investor" (as defined under Rule 501
of Regulation D promulgated under
the Securities Act of 1933, as
amended). Please complete Investor
Suitability Questionnaire attached
hereto as Exhibit A.
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[COUNTERPART SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused this Stock Purchase
Agreement to be executed as of the date first written above.
i-RECALL, INC.
By: /s/ Xxxxxx Xxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxx
Title: President
INVESTORS:
Screaming Xxxxx.Xxx, Inc. Screaming Xxxxx.Xxx Inc.
------------------------------
[Name of Investor]
By: /s/ Xxxx X. Xxxxxx
By: --------------------------
Name: Xxxx X. Xxxxxx
Title: President
Investor Social Security Number
Investor Address
Investor Home Phone
Investor Office Phone
Please check if correct:
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[ ] Investor is an "accredited
investor" (as defined under Rule 501
of Regulation D promulgated under
the Securities Act of 1933, as
amended). Please complete Investor
Suitability Questionnaire attached
hereto as Exhibit A.
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EXHIBIT A
I-RECALL, INC.
INVESTOR SUITABILITY QUESTIONNAIRE
i-Recall, Inc. (the "Company"), desires to sell to the Purchaser shares
of Series A Preferred Stock, par value $.01 per share (the "Preferred Stock"),
of the Company on the terms and conditions to be set forth in a Stock Purchase
Agreement to be entered into between the Company and you (hereinafter referred
to as the "Purchaser").
The following is an investor questionnaire to be completed by the
Purchaser to qualify the Purchaser as a suitable investor in the Company under
the Federal and state securities and blue-sky law.
2. Accredited Investor Certification. The Purchaser represents and
warrants that he comes within one category marked below, and that for any
category marked, he has truthfully set forth, where applicable, the factual
basis or reason the Purchaser comes within that category. ALL INFORMATION IN
RESPONSE TO THIS SECTION WILL BE KEPT STRICTLY CONFIDENTIAL. The undersigned
agrees to furnish any additional information which the Company deems necessary
in order to verify the answers set forth below.
Category A _____ The undersigned is an individual (not a partnership,
corporation, etc.) whose individual net worth, or
joint net worth with his or her spouse, presently
exceeds $1,000,000.
Explanation: In calculating net worth you
may include equity in personal property and
real estate, including your principal
residence, cash, short-term investments,
stock and securities. Equity in personal
property and real estate should be based on
the fair market value of such property less
debt secured by such property.
Category B _____ The undersigned is an individual (not a partnership,
corporation, etc.) who had an income in excess of
$200,000 in each of the two most recent years, or
joint income with his or her spouse in excess of
$300,000 in each of those years (in each case
including foreign income, tax exempt income and full
amount of capital gains and losses but excluding any
income of other family members and any unrealized
capital appreciation) and has a reasonable
expectation of reaching the same income level in the
current year.
Category C _____ The undersigned is a director or executive officer of
the Company.
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Category D _____ The undersigned is a bank, a savings and loan
association, insurance company, registered investment
company, registered business development company,
licensed small business investment company ("SBIC"),
or employee benefit plan within the meaning of Title
1 of ERISA and (a) the investment decision is made by
a plan fiduciary which is either a bank, savings and
loan association, insurance company or registered
investment advisor, or (b) the plan has total assets
in excess of $5,000,000 or is a self directed plan
with investment decisions made solely by persons that
are accredited investors.
(describe entity)
Category E_____ The undersigned is a private business development
company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940.
(describe entity)
Category F_____ The undersigned is a corporation, partnership,
business trust, or non-profit organization within the
meaning of Section 501(c)(3) of the Internal Revenue
Code, in each case not formed for the specific
purpose of acquiring the Securities and with total
assets in excess of $5,000,000.
(describe entity)
Category G_____ The undersigned is a trust with total assets in
excess of $5,000,000, not formed for the specific
purpose of acquiring the Securities, where the
purchase is directed by a "sophisticated person" as
defined in Regulation 506 (b)(2)(ii).
Category H_____ The undersigned is an entity all the equity owners of
which are "accredited investors" (as such term is
defined in Rule 501(a) as promulgated under the
Securities Act of 1933, as amended (the "Securities
Act")) within one or more of the above categories. If
relying upon this Category alone, each
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equity owner must complete a separate copy of this
Agreement.
(describe entity)
Category I_____ The undersigned is not within any of the categories
above and is therefore not an "accredited investor".
3. MANNER IN WHICH TITLE TO BE HELD. (circle one)
(a) Individual Ownership
(b) Community Property
(c) Joint Tenant with Right of Survivorship (both parties must sign)
(d) Partnership
(e) Tenants in Common
(f) Company
(g) Trust
(h) Other
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----------------------------------------------------------------------------------------------------------------------
Signature Signature (if purchasing jointly)
----------------------------------------------------------------------------------------------------------------------
Name (Typed or Printed) Name (Typed or Printed)
----------------------------------------------------------------------------------------------------------------------
Residence (Typed or Printed) Residence (Typed or Printed)
----------------------------------------------------------------------------------------------------------------------
City, State and Zip Code City, State and Zip Code
----------------------------------------------------------------------------------------------------------------------
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----------------------------------------------------------------------------------------------------------------------
Tax Identification or Social Security Number Tax Identification or Social Security Number
----------------------------------------------------------------------------------------------------------------------
Telephone No.: Telephone No.:
Business Business
Home Home
----------------------------------------------------------------------------------------------------------------------
Name in which securities should be issued:
----------------------------------------------------------------------------------------------------------------------
Dated: , 1999 Dated: 1999
----------------------------- -----------------------------
----------------------------------------------------------------------------------------------------------------------
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Schedule I
Number of Shares being Purchased by each Investor at the Closing and each Additional Closing
----------------------------------------------------------------------------------------------------------------------
Investor Number of Shares Number of Shares Number of Shares
being purchased on being purchased at being purchased at
the date of this Additional Closing Additional Closing
Agreement and dated June 15, 1999 dated July 15, 1999
Purchase Price and Purchase Price and Purchase Price
therefor therefor therefor
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
Xxx Xxxxx
Screaming Xxxxx.Xxx, Inc. 5,998 Shares 2,999 Shares 2,999 Shares
00 Xxxxx Xxxxxx, 00xx floor ($99,986.66) ($49,993.33) ($49,993.33)
Xxx Xxxx, Xxx Xxxx 00000
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxxxx
Xxxxxxx Xxxxx & Co. 1499 Shares 749 Shares 749 Shares
00 Xxxxx Xxxxxx, 00xx floor ($24,988.33) ($12,485.83) ($12,485.83)
Xxx Xxxx, Xxx Xxxx 00000
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxxxxx
Xxxxxxx Xxxxx & Co. 749 Shares 374 Shares 374 Shares
00 Xxxxx Xxxxxx, 00xx floor ($12,485.83) ($6,234.58) ($6,234.58)
Xxx Xxxx, Xxx Xxxx 00000
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
TOTALS: 8246 Shares 4122 Shares 4122 Shares
($137,460.82) ($68,713.74) ($68,713.74)
----------------------------------------------------------------------------------------------------------------------
