SUBSCRIPTION AGREEMENT
Exhibit
10.65
THIS
SUBSCRIPTION AGREEMENT (“Agreement”)
is
made as of March 10, 2008 by and among Modtech Holdings, Inc., a Delaware
corporation (the “Company”),
and
the parties set forth on the signature pages affixed hereto (each a “Buyer”
and
collectively the “Buyers”).
1. Subject
to the satisfaction (or waiver) of the conditions set forth in Section 2 below,
at the "Closing"
the
Company shall issue and sell to each Buyer and each Buyer, severally and not
jointly, agrees to purchase from the Company at $100.00 per share the respective
number of shares of Series B Preferred Stock or Series C Preferred Stock
(collectively the "Securities")
at the
price (the “Purchase
Price”)
set
forth opposite such Buyer's name on the attached Schedule
of Buyers (the
“Closing”).
The
Series B Preferred Stock shall have an accruing dividend of 8% per year payable
in additional shares of Series B Preferred Stock and shall be convertible into
common stock of the Company at an initial conversion price of $0.40 per share.
The Series C Preferred Stock shall not have an accruing dividend and shall
be
convertible into common stock of the Company at an initial conversion price
which will be the higher of the Company's book value per share on February
29,
2008 or the closing consolidated bid price for the Company's common stock on
The
Nasdaq Global Market on the last trading day immediately preceding the execution
of this Agreement. The closing consolidated bid price for the Company's common
stock on March 7, 2008 was $0.43 and the Company's book value on February 29,
2008 was $0.49 per share. The complete terms of the Series B Preferred Stock
and
Series C Preferred Stock are set forth in Exhibit
A hereto.
2. Subject
to notification of satisfaction (or waiver) of the conditions to the Closing
set
forth below, the date and time of the Closing (the “Closing
Date”)
shall,
be as is mutually agreed to by the Company and the Buyers. The Closing shall
occur on the Closing Date at the offices of Xxxxxx & Xxxxxx LLP, 000 Xxxxxxx
Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000. Unless other
arrangements have been made, on the Closing Date, (i) each Buyer shall pay
an
amount equal to the Purchase Price for the Securities to be issued and sold
to
such Buyer at the Closing, by wire transfer of immediately available funds
to
the trust account of Xxxxxx & Zepfel LLP in accordance with such law firm's
wire instructions and such funds shall be held and disbursed by such law firm
in
accordance with the escrow instructions attached hereto as Exhibit
B,
which
each Buyer who executes this Subscription Agreement shall be considered a party
to, and (ii) the Company shall deliver to each Buyer, stock certificates (in
the
denominations as such Buyer shall request representing such number of the
Securities which such Buyer is then purchasing (as indicated opposite such
Buyer’s name on the attached Schedule
of Buyers),
duly
executed on behalf of the Company and registered in the name of such Buyer
or
its designee.
The
obligations of the Company to issue the Securities are subject to (i) the
representations and warranties made by the Buyers being true and correct in
all
respects when made, and being true and correct in all respects on the Closing
Date with the same force and effect as if they had been made on and as of said
date, and (ii) each of the Buyers having delivered the Purchase Price with
respect to the Securities being purchased by them. The obligations of the Buyers
to purchase the Securities are subject to (i) each of the Buyers having
delivered the Purchase Price with respect to the Securities being purchased
by
them, and (ii) the Company having executed the Registration Rights Agreement
attached as
Exhibit
C hereto
(the "Registration
Rights Agreement").
The
Registration Rights Agreement provides that, in the event the number of shares
to be covered by a registration statement are required to be cutback due to
Rule
415 under the Securities Act of 1933, the first shares to be excluded will
be
those purchased by officers, directors and employees of the Company pursuant
to
this Subscription Agreement and the next shares to be excluded will be those
purchased by the other Buyers pursuant to this Subscription
Agreement.
3. Each
of
the Buyers hereby severally, and not jointly, represents and warrants to the
Company that:
3.1 Organization
and Existence.
Unless
such Buyer is an individual, it is a validly existing corporation, limited
partnership or limited liability company and has all requisite corporate,
partnership or limited liability company power and authority to invest in the
Securities pursuant to this Agreement. Such Buyer was not organized specifically
for the purpose of investing in the Securities.
3.2 Authorization.
The
execution, delivery and performance by such Buyer of this Agreement, the
Registration Rights Agreement and all ancillary agreements to which such Buyer
is a party have been duly authorized and each will constitute the valid and
legally binding obligation of such Buyer, enforceable against such Buyer in
accordance with their respective terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability, relating to or affecting creditors’ rights
generally.
3.3 Purchase
Entirely for Own Account.
The
Securities to be received by such Buyer hereunder will be acquired for such
Buyer’s own account, not as nominee or agent, and not with a view to the resale
or distribution of any part thereof in violation of the Securities Act of 1933
(the "1933
Act"),
and
such Buyer has no present intention of selling, granting any participation
in,
or otherwise distributing the same in violation of the 1933 Act without
prejudice, however, to such Buyer’s right at all times to sell or otherwise
dispose of all or any part of such Securities in compliance with applicable
federal and state securities laws.
Nothing
contained herein shall be deemed a representation or warranty by such Buyer
to
hold the Securities for any period of time. Such Buyer is not a broker-dealer
registered with the SEC under the Securities Exchange Act of 1934 (the
"1934
Act")
or an
entity engaged in a business that would require it to be so registered. Such
Buyer is acquiring the Securities hereunder in the ordinary course of its
business. If such Buyer is acting in a representative capacity on behalf or
one
or more funds, partnerships or managed accounts, such Buyer has the authority
to
make, and has made, the foregoing representations and warranties on behalf
of
each such fund, partnership or account, each of which shall be deemed an Buyer
hereunder for the purposes of such representations and warranties, unless not
otherwise treated as a purchaser under Regulation D of the 1933
Act.
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3.4 Investment
Experience.
Such
Buyer acknowledges that it can bear the economic risk and complete loss of
its
investment in the Securities and has such knowledge and experience in financial
or business matters that it is capable of evaluating the merits and risks of
the
investment contemplated hereby.
3.5 Disclosure
of Information.
Such
Buyer has had an opportunity to receive all information related to the Company
requested by it and to ask questions of and receive answers from the Company
regarding the Company, its business and the terms and conditions of the offering
of the Securities. Such Buyer acknowledges receipt of copies of the Company's
filings with the Securities and Exchange Commission for the last 12 months.
Such
Buyer understands that its investment in the Securities involves a high degree
of risk. Such Buyer has sought such accounting, legal and tax advice as it
has
considered necessary to make an informed investment decision with respect to
its
acquisition of the Securities.
3.6 Restricted
Securities.
Such
Buyer understands that the Securities are characterized as “restricted
securities” under the U.S. federal securities laws inasmuch as they are being
acquired from the Company in a transaction not involving a public offering
and
that under such laws and applicable regulations such securities may be resold
without registration under federal and state securities laws only in certain
limited circumstances.
3.7 Legends.
It is
understood that, except as provided below, certificates evidencing the
Securities may bear the following or any similar legend:
(a) “The
securities represented by this certificate have not been registered under the
Securities Act of 1933, as amended, or applicable state securities laws. The
securities represented hereby have been acquired for investment and may not
be
transferred unless (i) such securities have been registered for sale pursuant
to
the Securities Act of 1933, as amended and applicable state securities laws,
(ii) such securities may be sold pursuant to Rule 144(k)(or a successor rule),
or (iii) the Company has received an opinion of counsel reasonably satisfactory
to it that such transfer may lawfully be made without registration under the
Securities Act of 1933 or qualification under applicable state securities
laws.”
(b) If
required by the authorities of any state in connection with the issuance of
sale
of the Securities, the legend required by such state authority.
3.8 Accredited
Buyer.
Such
Buyer is an accredited Buyer as defined in Rule 501(a) of Regulation D, as
amended, under the 1933 Act.
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3.9 No
General Solicitation.
Such
Buyer did not learn of the investment in the Securities as a result of any
general solicitation or general advertising.
3.10 Brokers
and Finders.
No
person or entity will have, as a result of the transactions contemplated by
this
Agreement, any valid right, interest or claim against or upon the Company,
any
"Subsidiary" of the Company (as hereinafter defined), or any Buyer for any
commission, fee or other compensation pursuant to any agreement, arrangement
or
understanding entered into by or on behalf of such Buyer.
3.11.
Ownership.
Such
Buyer will not become the beneficial owner (as such term is defined in Rule
13d-3 under the 0000 Xxx) of more than 19.9% of the outstanding common stock
or
voting power of the Company as a result of the transaction contemplated
hereby.
3.12 Reliance
on Exemptions; No Governmental Review.
Such
Buyer understands that the Securities are being offered and sold to it in
reliance on specific exemptions from the registration requirements of United
States federal and state securities laws and that the Company is relying in
part
on the truth and accuracy of, and such Buyer’s compliance with, the
representations, warranties, agreements, acknowledgments and understandings
of
such Buyer set forth herein in order to determine the availability of such
exemptions and the eligibility of such Buyer to acquire the Securities. Such
Buyer understands that no United States federal or state agency or any other
government or governmental agency has passed on or made any recommendation
or
endorsement of the Securities or the fairness or suitability of the investment
in the Securities nor have such authorities passed upon or endorsed the merits
of the offering of the Securities.
4. Representations
and Warranties of the Company.
The
Company hereby represents and warrants to the Buyers that, except as set forth
in the schedules delivered herewith (collectively, the “Disclosure
Schedules”):
4.
1 Organization,
Good Standing and Qualification.
Each of
the Company and the entities in which it owns more than 50% of the outstanding
voting ("Subsidiaries")
is a
corporation duly organized, validly existing and in good standing under the
laws
of the jurisdiction of its incorporation and has all requisite corporate power
and authority to carry on its business as now conducted and to own its
properties. Each of the Company and its Subsidiaries is duly qualified to do
business as a foreign corporation and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property
makes such qualification or leasing necessary unless the failure to so qualify
has not had and could not reasonably be expected to have a material adverse
effect on the financial condition of the Company and its Subsidiaries taken
as a
whole ("Material
Adverse Effect").
The
Company’s Subsidiaries are listed on Schedule
4.1
hereto.
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4.2 Authorization.
The
Company has full power and authority and has taken all requisite action on
the
part of the Company, its officers, directors and stockholders necessary for
(i)
the authorization, execution and delivery of this Subscription Agreement and
the
Registration Rights Agreement (collectively, the "Transaction
Documents"),
(ii)
the authorization of the performance of all obligations of the Company hereunder
or thereunder, and (iii) the authorization, issuance (or reservation for
issuance) and delivery of the Securities. The Transaction Documents constitute
the legal, valid and binding obligations of the Company, enforceable against
the
Company in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability, relating to or affecting creditors’ rights
generally.
4.3 Capitalization.
Schedule
4.3
sets
forth as of the date hereof (a) the authorized capital stock of the Company,
excluding the Securities to be authorize upon the filing of the Certificate
of
Determination set forth as Exhibit
A hereto;
(b) the
number of shares of capital stock issued and outstanding; (c) the number of
shares of capital stock issuable pursuant to the Company’s stock plans; and (d)
the number of shares of capital stock issuable and reserved for issuance
pursuant to securities (other than the Securities) exercisable for, or
convertible into or exchangeable for any shares of capital stock of the Company.
All of the issued and outstanding shares of the Company’s capital stock have
been duly authorized and validly issued and are fully paid, nonassessable and
free of pre-emptive rights and were issued in full compliance with applicable
state and federal securities law and any rights of third parties. Except as
described on Schedule
4.3,
all of
the issued and outstanding shares of capital stock of each Subsidiary have
been
duly authorized and validly issued and are fully paid, nonassessable and free
of
pre-emptive rights, were issued in full compliance with applicable state and
federal securities law and any rights of third parties and are owned by the
Company, beneficially and of record, subject to no lien, encumbrance or other
adverse claim. Except as described on Schedule
4.3,
no
individual or entity (collectively, "Person")
is
entitled to pre-emptive or similar statutory or contractual rights with respect
to any securities of the Company. Except as described on Schedule
4.3,
there
are no outstanding warrants, options, convertible securities or other rights,
agreements or arrangements of any character under which the Company or any
of
its Subsidiaries is or may be obligated to issue any equity securities of any
kind and except as contemplated by this Agreement, neither the Company nor
any
of its Subsidiaries is currently in negotiations for the issuance of any equity
securities of any kind. Except as described on Schedule
4.3
and
except for the Registration Rights Agreement, there are no voting agreements,
buy-sell agreements, option or right of first purchase agreements or other
agreements of any kind among the Company and any of the securityholders of
the
Company relating to the securities of the Company held by them. Except as
described on Schedule
4.3
and
except as provided in the Registration Rights Agreement, no Person has the
right
to require the Company to register any securities of the Company under the
1933
Act, whether on a demand basis or in connection with the registration of
securities of the Company for its own account or for the account of any other
Person.
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Except
as
described on Schedule
4.3,
the
issuance and sale of the Securities hereunder will not obligate the Company
to
issue shares of Common Stock or other securities to any other Person (other
than
the Buyers) and will not result in the adjustment of the exercise, conversion,
exchange or reset price of any outstanding security.
Except
as
described on Schedule
4.3,
the
Company does not have outstanding stockholder purchase rights or “poison pill”
or any similar arrangement in effect giving any Person the right to purchase
any
equity interest in the Company upon the occurrence of certain
events.
4.4 Valid
Issuance.
The
Securities have been duly and validly authorized and, when issued and paid
for
pursuant to this Agreement, will be validly issued, fully paid and
nonassessable, and shall be free and clear of all encumbrances and restrictions
(other than those created by the Buyers), except for restrictions on transfer
set forth in the Transaction Documents or imposed by applicable securities
laws.
4.5 Consents.
The
execution, delivery and performance by the Company of the Transaction Documents
and the offer, issuance and sale of the Securities require no consent of, action
by or in respect of, or filing with, any Person, governmental body, agency,
or
official other than filings that have been made pursuant to applicable state
securities laws and post-sale filings pursuant to applicable state and federal
securities laws which the Company undertakes to file within the applicable
time
periods. Subject to the accuracy of the representations and warranties of each
Buyer set forth in Section 5 hereof, the Company has taken all action necessary
to exempt (i) the issuance and sale of the Securities and (ii) the other
transactions contemplated by the Transaction Documents from the provisions
of
any stockholder rights plan or other “poison pill” arrangement, any
anti-takeover, business combination or control share law or statute binding
on
the Company or to which the Company or any of its assets and properties may
be
subject and any provision of the Company’s Certificate of Incorporation or
Bylaws that is or could reasonably be expected to become applicable to the
Buyers as a result of the transactions contemplated hereby, including without
limitation, the issuance of the Securities and the ownership, disposition or
voting of the Securities by the Buyers or the exercise of any right granted
to
the Buyers pursuant to this Agreement or the other Transaction
Documents.
4.6 Delivery
of SEC Filings; Business.
The
Company has made available to the Buyers through the XXXXX system, true and
complete copies of the Company’s most recent Annual Report on Form 10-K for the
fiscal year ended December 31, 2006 (the “10-K”),
and
all other reports filed by the Company pursuant to the 1934 Act since the filing
of the 10-K and prior to the date hereof (collectively, the “SEC
Filings”).
The
SEC Filings are the only filings required of the Company pursuant to the 1934
Act for such period. The Company and its Subsidiaries are engaged in all
material respects only in the business described in the SEC Filings and the
SEC
Filings contain a complete and accurate description in all material respects
of
the business of the Company and its Subsidiaries, taken as a whole.
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4.7 Use
of
Proceeds.
The net
proceeds of the sale of the Securities shall be used by the Company for working
capital and general corporate purposes.
4.8 No
Material Adverse Change.
Since
December 31, 2006, except as identified and described in the SEC Filings or
as
described on Schedule
4.8,
there
has not been:
(i) any
change in the consolidated assets, liabilities, financial condition or operating
results of the Company from that reflected in the financial statements included
in the Company’s Quarterly Report on Form 10-Q for the quarter ended September
30, 2007, except for changes in the ordinary course of business which have
not
had and could not reasonably be expected to have a Material Adverse Effect,
individually or in the aggregate;
(ii) any
declaration or payment of any dividend, or any authorization or payment of
any
distribution, on any of the capital stock of the Company, or any redemption
or
repurchase of any securities of the Company;
(iii) any
material damage, destruction or loss, whether or not covered by insurance to
any
assets or properties of the Company or its Subsidiaries;
(iv) any
waiver, not in the ordinary course of business, by the Company or any Subsidiary
of a material right or of a material debt owed to it;
(v) any
satisfaction or discharge of any lien, claim or encumbrance or payment of any
obligation by the Company or a Subsidiary, except in the ordinary course of
business and which is not material to the assets, properties, financial
condition, operating results or business of the Company and its Subsidiaries
taken as a whole (as such business is presently conducted and as it is proposed
to be conducted);
(vi) other
than the filing of the Certificate of Determination set forth as Exhibit A
hereto, any change or amendment to the Company's Certificate of Incorporation
or
Bylaws, or material change to any material contract or arrangement by which
the
Company or any Subsidiary is bound or to which any of their respective assets
or
properties is subject;
(vii) any
material labor difficulties or labor union organizing activities with respect
to
employees of the Company or any Subsidiary;
(viii) any
material transaction entered into by the Company or a Subsidiary other than
in
the ordinary course of business;
(ix) the
loss
of the services of any key employee, or material change in the composition
or
duties of the senior management of the Company or any Subsidiary;
7
(x) the
loss
or threatened loss of any customer which has had or could reasonably be expected
to have a Material Adverse Effect; or
(xi) any
other
event or condition of any character that has had or could reasonably be expected
to have a Material Adverse Effect.
4.9 SEC
Filings; S-3 Eligibility.
(a) At
the
time of filing thereof, the SEC Filings complied as to form in all material
respects with the requirements of the 1934 Act and did not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements made therein, in the light of the circumstances
under which they were made, not misleading.
(b) Each
registration statement and any amendment thereto filed by the Company since
January 1, 2005 pursuant to the 1933 Act and the rules and regulations
thereunder, as of the date such statement or amendment became effective,
complied as to form in all material respects with the 1933 Act and did not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
made therein not misleading; and each prospectus filed pursuant to Rule 424(b)
under the 1933 Act, as of its issue date and as of the closing of any sale
of
securities pursuant thereto did not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading.
(c) The
Company is eligible to use Form S-3 to register the Registrable Securities
(as
such term is defined in the Registration Rights Agreement) for sale by the
Buyers as contemplated by the Registration Rights Agreement.
4.10 No
Conflict, Breach, Violation or Default.
The
execution, delivery and performance of the Transaction Documents by the Company
and the issuance and sale of the Securities will not conflict with or result
in
a breach or violation of any of the terms and provisions of, or constitute
a
default under (i) the Company’s Certificate of Incorporation or the Company’s
Bylaws, both as in effect on the date hereof (true and complete copies of which
have been made available to the Buyers through the XXXXX system), or (ii)(a)
any
statute, rule, regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over the Company, any Subsidiary
or any of their respective assets or properties, or (b) any agreement or
instrument to which the Company or any Subsidiary is a party or by which the
Company or a Subsidiary is bound or to which any of their respective assets
or
properties is subject.
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4.11 Tax
Matters.
The
Company and each Subsidiary has timely prepared and filed all tax returns
required to have been filed by the Company or such Subsidiary with all
appropriate governmental agencies and timely paid all taxes shown thereon or
otherwise owed by it. The charges, accruals and reserves on the books of the
Company in respect of taxes for all fiscal periods are adequate in all material
respects, and there are no material unpaid assessments against the Company
or
any Subsidiary nor, to the actual knowledge of the Company’s executive officers
(the "Company's
Knowledge"),
any
basis for the assessment of any additional taxes, penalties or interest for
any
fiscal period or audits by any federal, state or local taxing authority except
for any assessment which is not material to the Company and its Subsidiaries,
taken as a whole. All taxes and other assessments and levies that the Company
or
any Subsidiary is required to withhold or to collect for payment have been
duly
withheld and collected and paid to the proper governmental entity or third
party
when due. There are no tax liens or claims pending or, to the Company’s
Knowledge, threatened against the Company or any Subsidiary or any of their
respective assets or property. Except as described on Schedule
4.11,
there
are no outstanding tax sharing agreements or other such arrangements between
the
Company and any Subsidiary or other corporation or entity.
4.12 Title
to Properties.
Except
as disclosed in the SEC Filings and Schedule
4.12,
the
Company and each Subsidiary has good and marketable title to all real properties
and all other properties and assets owned by it, in each case free from liens,
encumbrances and defects that would materially affect the value thereof or
materially interfere with the use made or currently planned to be made thereof
by them; and except as disclosed in the SEC Filings, the Company and each
Subsidiary holds any leased real or personal property under valid and
enforceable leases with no exceptions that would materially interfere with
the
use made or currently planned to be made thereof by them.
4.13 Certificates,
Authorities and Permits.
The
Company and each Subsidiary possess adequate certificates, authorities or
permits issued by appropriate governmental agencies or bodies necessary to
conduct the business now operated by it, and neither the Company nor any
Subsidiary has received any notice of proceedings relating to the revocation
or
modification of any such certificate, authority or permit that, if determined
adversely to the Company or such Subsidiary, could reasonably be expected to
have a Material Adverse Effect, individually or in the aggregate.
4.14 Labor
Matters.
(a) Except
as
set forth on Schedule
4.14,
the
Company is not a party to or bound by any collective bargaining agreements
or
other agreements with labor organizations. The Company has not violated in
any
material respect any laws, regulations, orders or contract terms, affecting
the
collective bargaining rights of employees, labor organizations or any laws,
regulations or orders affecting employment discrimination, equal opportunity
employment, or employees’ health, safety, welfare, wages and hours.
9
(b) Except
as
set forth on Schedule
4.14,
(i)
there are no labor disputes existing, or to the Company's Knowledge, threatened,
involving strikes, slow-downs, work stoppages, job actions, disputes, lockouts
or any other disruptions of or by the Company's employees, (ii) there are no
unfair labor practices or petitions for election pending or, to the Company's
Knowledge, threatened before the National Labor Relations Board or any other
federal, state or local labor commission relating to the Company's employees,
(iii) no demand for recognition or certification heretofore made by any labor
organization or group of employees is pending with respect to the Company and
(iv) to the Company's Knowledge, the Company enjoys good labor and employee
relations with its employees and labor organizations.
(c) The
Company is, and at all times has been, in compliance in all material respects
with all applicable laws respecting employment (including laws relating to
classification of employees and independent contractors) and employment
practices, terms and conditions of employment, wages and hours, and immigration
and naturalization. Except as set forth in Schedule
4.14,
There
are no claims pending against the Company before the Equal Employment
Opportunity Commission or any other administrative body or in any court
asserting any violation of Title VII of the Civil Rights Act of 1964, the Age
Discrimination Act of 1967, 42 U.S.C. §§ 1981 or 1983 or any other federal,
state or local law, statute or ordinance barring discrimination in
employment.
(d) Except
as
disclosed in the SEC Filings or as described on Schedule
4.14,
the
Company is not a party to, or bound by, any employment or other contract or
agreement that contains any severance, termination pay or change of control
liability or obligation, including, without limitation, any “excess parachute
payment,” as defined in Section 280G(b) of the Internal Revenue
Code.
(e) Except
as
specified in Schedule
4.14,
to the
Company’s Knowledge each of the Company's employees is a Person who is either a
United States citizen or a permanent resident entitled to work in the United
States. To the Company's Knowledge, the Company has no liability for the
improper classification by the Company of such employees as independent
contractors or leased employees prior to the Closing.
4.15 Intellectual
Property.
(a) All
of
the Company's and its Subsidiaries (i) patents, patent applications, patent
disclosures and inventions; (ii) trademarks, service marks, trade dress, trade
names, corporate names, logos, slogans and Internet domain names, together
with
all goodwill associated with each of the foregoing; (iii) copyrights and
copyrightable works; (iv) registrations, applications and renewals for any
of
the foregoing; and (v) proprietary computer software (including but not limited
to data, data bases and documentation) (collectively "Intellectual
Property")
is
currently in compliance with all legal requirements (including timely filings,
proofs and payments of fees) and is valid and enforceable. No Intellectual
Property of the Company or its Subsidiaries which is necessary for the conduct
of Company’s and each of its Subsidiaries’ respective businesses as currently
conducted or as currently proposed to be conducted has been or is now involved
in any cancellation, dispute or litigation, and, to the Company’s Knowledge, no
such action is threatened. No patent of the Company or its Subsidiaries has
been
or is now involved in any interference, reissue, re-examination or opposition
proceeding.
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(b) All
of
the licenses and sublicenses and consent, royalty or other agreements concerning
Intellectual Property which are necessary for the conduct of the Company’s and
each of its Subsidiaries’ respective businesses as currently conducted or as
currently proposed to be conducted to which the Company or any Subsidiary is
a
party or by which any of their assets are bound (other than generally
commercially available, non-custom, off-the-shelf software application programs
having a retail acquisition price of less than $10,000 per license)
(collectively, “License
Agreements”)
are
valid and binding obligations of the Company or its Subsidiaries that are
parties thereto and, to the Company’s Knowledge, the other parties thereto,
enforceable in accordance with their terms, except to the extent that
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws affecting the
enforcement of creditors’ rights generally, and there exists no event or
condition which will result in a material violation or breach of or constitute
(with or without due notice or lapse of time or both) a default by the Company
or any of its Subsidiaries under any such License Agreement.
(c) The
Company and its Subsidiaries own or have the valid right to use all of the
Intellectual Property that is necessary for the conduct of the Company’s and
each of its Subsidiaries’ respective businesses as currently conducted or as
currently proposed to be conducted and for the ownership, maintenance and
operation of the Company’s and its Subsidiaries’ properties and assets, free and
clear of all liens, encumbrances, adverse claims or obligations to license
all
such owned Intellectual Property and trade secrets, confidential information
and
confidential know-how (collectively "Confidential
Information"),
other
than licenses entered into in the ordinary course of the Company’s and its
Subsidiaries’ businesses. The Company and its Subsidiaries have a valid and
enforceable right to use all third party Intellectual Property and Confidential
Information used or held for use in the respective businesses of the Company
and
its Subsidiaries.
(d) The
conduct of the Company’s and its Subsidiaries’ businesses as currently conducted
does not infringe or otherwise impair or conflict with (collectively,
“Infringe”)
any
Intellectual Property rights of any third party or any confidentiality
obligation owed to a third party, and, except as described in Schedule
4.15,
to the
Company’s Knowledge, the Intellectual Property and Confidential Information of
the Company and its Subsidiaries which are necessary for the conduct of
Company’s and each of its Subsidiaries’ respective businesses as currently
conducted or as currently proposed to be conducted are not being Infringed
by
any third party. There is no litigation or order pending or outstanding or,
to
the Company’s Knowledge, threatened or imminent, that seeks to limit or
challenge or that concerns the ownership, use, validity or enforceability of
any
Intellectual Property or Confidential Information of the Company and its
Subsidiaries and the Company’s and its Subsidiaries’ use of any Intellectual
Property or Confidential Information owned by a third party, and, to the
Company’s Knowledge, there is no valid basis for the same.
11
(e) The
consummation of the transactions contemplated hereby and by the other
Transaction Documents will not result in the alteration, loss, impairment of
or
restriction on the Company’s or any of its Subsidiaries’ ownership or right to
use any of the Intellectual Property or Confidential Information which is
necessary for the conduct of Company’s and each of its Subsidiaries’ respective
businesses as currently conducted or as currently proposed to be
conducted.
(f) The
Company and its Subsidiaries have taken reasonable steps to protect the
Company’s and its Subsidiaries’ rights in their Intellectual Property and
Confidential Information. Each employee, consultant and contractor who has
had
access to Confidential Information which is necessary for the conduct of
Company’s and each of its Subsidiaries’ respective businesses as currently
conducted or as currently proposed to be conducted has executed an agreement
to
maintain the confidentiality of such Confidential Information and has executed
appropriate agreements that are substantially consistent with the Company’s
standard forms thereof. Except under confidentiality obligations, there has
been
no material disclosure of any of the Company’s or its Subsidiaries’ Confidential
Information to any third party.
4.16 Environmental
Matters.
Except
as described on Schedule
4.16,
neither
the Company nor any Subsidiary is in material violation of any statute, rule,
regulation, decision or order of any governmental agency or body or any court,
domestic or foreign, relating to the use, disposal or release of hazardous
or
toxic substances or relating to the protection or restoration of the environment
or human exposure to hazardous or toxic substances (collectively, “Environmental
Laws”),
owns
or operates any real property contaminated with any substance that is subject
to
any Environmental Laws, is liable for any off-site disposal or contamination
pursuant to any Environmental Laws, or is subject to any claim relating to
any
Environmental Laws, which violation, contamination, liability or claim has
had
or could reasonably be expected to have a Material Adverse Effect, individually
or in the aggregate; and there is no pending or, to the Company’s Knowledge,
threatened investigation that might lead to such a claim.
4.17 Litigation.
Except
as described on Schedule
4.17,
there
are no pending actions, suits or proceedings against or affecting the Company,
its Subsidiaries or any of its or their properties; and to the Company’s
Knowledge, no such actions, suits or proceedings are threatened or contemplated.
Neither the Company nor any Subsidiary, nor any director or officer thereof,
is
or since January 1, 2003 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 Company’s Knowledge,
there is not pending or contemplated, any investigation by the Securities and
Exchange Commission ("SEC")
involving the Company or any current or former director or officer of the
Company. The SEC has not issued any stop order or other order suspending the
effectiveness of any registration statement filed by the Company or any
Subsidiary under the 1933 Act or the 1934 Act.
12
4.18 Financial
Statements.
The
financial statements included in each SEC Filing present fairly, in all material
respects, the consolidated financial position of the Company as of the dates
shown and its consolidated results of operations and cash flows for the periods
shown, and such financial statements have been prepared in conformity with
United States generally accepted accounting principles applied on a consistent
basis (“GAAP”)
(except as may be disclosed therein or in the notes thereto, and, in the case
of
quarterly financial statements, as permitted by Form 10-Q under the 1934 Act).
Except as set forth in the financial statements of the Company included in
the
SEC Filings filed prior to the date hereof or as described on Schedule
4.18,
neither
the Company nor any of its Subsidiaries has incurred any liabilities, contingent
or otherwise, except those incurred in the ordinary course of business,
consistent (as to amount and nature) with past practices since the date of
such
financial statements, none of which, individually or in the aggregate, have
had
or could reasonably be expected to have a Material Adverse Effect.
4.19 Insurance
Coverage.
The
Company and each Subsidiary maintains in full force and effect insurance
coverage that is customary for comparably situated companies for the business
being conducted and properties owned or leased by the Company and each
Subsidiary, and the Company reasonably believes such insurance coverage to
be
adequate against all liabilities, claims and risks against which it is customary
for comparably situated companies to insure.
4.20 Compliance
with Nasdaq Continued Listing Requirements.
Except
as described in the SEC Filings or on Schedule
4.20,
(i) the
Company is in compliance with applicable continued listing requirements of
The
Nasdaq Global Market or The Nasdaq Capital Market ("Nasdaq"),
(ii)
there are no proceedings pending or, to the Company’s Knowledge, threatened
against the Company relating to the continued listing of the Common Stock on
Nasdaq and (iii) the Company has not received any notice of, nor to the
Company’s Knowledge is there any basis for, the delisting of the Common Stock
from Nasdaq.
4.21 Brokers
and Finders.
No
Person will have, as a result of the transactions contemplated by the
Transaction Documents, any valid right, interest or claim against or upon the
Company, any Subsidiary or a Buyer for any commission, fee or other compensation
pursuant to any agreement, arrangement or understanding entered into by or
on
behalf of the Company, other than as described in Schedule
4.21.
4.22 No
Directed Selling Efforts or General Solicitation.
Neither
the Company nor any Person acting on its behalf has conducted any general
solicitation or general advertising (as those terms are used in Regulation
D) in
connection with the offer or sale of any of the Securities.
4.23 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 Company
security or solicited any offers to buy any security, under circumstances that
would adversely affect reliance by the Company on Section 4(2) of the 1933
Act
for the exemption from registration for the transactions contemplated hereby
or
would require registration of the Securities under the 1933 Act.
13
4.24 Private
Placement.
Subject
to the accuracy of the representations and warranties of the Buyers set forth
in
Section 3, the offer and sale of the Securities to the Buyers as contemplated
hereby is exempt from the registration requirements of the 1933
Act.
4.25 Questionable
Payments.
Neither
the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any of
their respective current or former stockholders, directors, officers, employees,
agents or other Persons acting on behalf of the Company or any Subsidiary,
has
on behalf of the Company or any Subsidiary or in connection with their
respective businesses: (a) used any corporate funds for unlawful contributions,
gifts, entertainment or other unlawful expenses relating to political activity;
(b) made any direct or indirect unlawful payments to any governmental officials
or employees from corporate funds; (c) established or maintained any unlawful
or
unrecorded fund of corporate monies or other assets; (d) made any false or
fictitious entries on the books and records of the Company or any Subsidiary;
or
(e) made any unlawful bribe, rebate, payoff, influence payment, kickback or
other unlawful payment of any nature.
4.26 Transactions
with Affiliates.
Except
as disclosed in the SEC Filings or as disclosed on Schedule
4.26,
none of
the officers or directors of the Company and, to the Company’s Knowledge, none
of the employees of the Company is presently a party to any transaction with
the
Company or any Subsidiary (other than as holders of stock options and/or
warrants, and 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 Company’s Knowledge, any entity in which any officer,
director, or any such employee has a substantial interest or is an officer,
director, trustee or partner.
4.27 Internal
Controls.
The
Company is in material compliance with the provisions of the Xxxxxxxx-Xxxxx
Act
of 2002 currently applicable to the Company. Except for the material weaknesses
disclosed in the SEC Filings, the Company and the Subsidiaries maintain 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 1934
Act Rules 13a-15(e) and 15d-15(e)) for the Company and designed such disclosure
controls and procedures to ensure that material information relating to the
Company, including the Subsidiaries, is made known to the certifying officers
by
others within those entities, particularly during the period in which the
Company’s most recently filed periodic report under the 1934 Act, as the case
may be, is being prepared. The Company's certifying officers have evaluated
the
effectiveness of the Company's controls and procedures as of the end of the
period covered by the most recently filed periodic report under the 1934 Act
(such date, the "Evaluation
Date").
The
Company presented in its most recently filed periodic report under the 1934
Act
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
308
of Regulation S-K) or, to the Company's Knowledge, in other factors that could
significantly affect the Company's internal controls. 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
1934
Act.
14
4.28 Disclosures.
The
written materials delivered to the Buyers in connection with the transactions
contemplated by the Transaction Documents do not contain any untrue statement
of
a material fact or omit to state a material fact necessary in order to make
the
statements contained therein, in light of the circumstances under which they
were made, not misleading.
5. The
representations and warranties set forth in Sections 3 and 4 above shall survive
the sale of the Securities to the Buyers pursuant to this Subscription
Agreement. The Buyers and the Company agree to indemnify and hold harmless
each
other, and their respective officers, directors, shareholders, employees and
agents, as the case may be, from and against any and all damages suffered and
liabilities incurred by any of them (including costs of investigation and
defense and attorneys' fees) arising out of any inaccuracy in their
representations and warranties made above.
6. Each
Buyer hereby irrevocably constitutes and appoints Xxxxxxx Xxxxxx and Xxxxxx
Xxxxxxx, and each of them acting alone, with full power of substitution, as
his
true and lawful attorney-in-fact with full power and authority in the Buyer's
name, place and stead and for the Buyer's use and benefit to execute and deliver
the Escrow Agreement attached hereto as Exhibit
B and
the
Registration Rights Agreement attached hereto as Exhibit
A. This
power of attorney is coupled with an interest and declared to be irrevocable.
6.
This
Agreement constitutes the entire agreement among the parties hereto with respect
to the subject matter hereof and may be amended only by a writing executed
by
all parties. This Agreement shall be enforced, governed and construed in all
respects in accordance with the laws of the State of California.
15
WITNESS
WHEREOF,
the
Buyers and the Company have caused this Subscription Agreement to be duly
executed as of the date first written above.
|
COMPANY:
|
|
|
Modtech
Holdings, Inc.
|
|
|
By:
|
/s/
Xxxxxx Xxxxxxx
|
|
Name: Xxxxxx
Xxxxxxx
|
|
16
IN
WITNESS WHEREOF,
the
Buyers and the Company have cause this Subscription
Agreement to be duly executed as of the date first written above.
|
BUYERS:
|
|
/s/ Xxxxxxx
XxXxxxxxxx
|
|
Xxxxxxx
XxXxxxxxxx
|
17
IN
WITNESS WHEREOF,
the
Buyers and the Company have cause this Subscription Agreement to be duly
executed as of the date first written above.
|
BUYERS:
|
|
/s/ Xxxxxx
Xxxxxxxx
|
|
Xxxxxx
Xxxxxxxx
|
18
IN
WITNESS WHEREOF,
the
Buyers and the Company have cause this Subscription Agreement to be duly
executed as of the date first written above.
|
BUYERS:
|
|
/s/
Xxxxxxx Xxxxxx
|
|
Xxxxxxx
Xxxxxx
|
19
IN
WITNESS WHEREOF,
the
Buyers and the Company have cause this Subscription Agreement to be duly
executed as of the date first written above.
|
BUYERS:
|
|
/s/ Xxxxxx
Xxxxxxx
|
|
Xxxxxx
Xxxxxxx
|
20
IN
WITNESS WHEREOF,
the
Buyers and the Company have cause this Subscription Agreement to be duly
executed as of the date first written above.
|
BUYERS:
|
|
/s/
Xxxxxx Xxxxxxx
|
|
Xxxxxx
Xxxxxxx
|
|
/s/
Xxxxxxx Xxxxxx
|
|
Xxxxxxx
Xxxxxx
|
|
/s/
Xxxxxx Xxxxxx
|
|
Xxxxxx
Xxxxxx
|
|
/s/
Xxxxxxx Xxxxxxxxxx
|
|
Xxxxxxx
Xxxxxxxxxx
|
|
/s/
Xxxxxx Xxxxx
|
|
Xxxxxx
Xxxxx
|
|
/s/
Xxxxx Xxxxxxxxx
|
|
Xxxxx
Xxxxxxxxx
|
|
/s/
Xxxxxxx Von Hor
|
|
Xxxxxxx
Von Hor
|
|
/s/
Xxxxx Xxxxx
|
|
Xxxxx
Xxxxx
|
21
WITNESS
WHEREOF,
the
Buyers and the Company have cause this Subscription Agreement to be duly
executed as of the date first written above.
|
BUYERS:
|
|
/s/
Xxxxxx XxXxxxxx
|
|
Xxxxxx
XxXxxxxx
|
22
IN
WITNESS WHEREOF,
the
Buyers and the Company have cause this Subscription Agreement to be duly
executed as of the date first written above.
|
BUYERS:
|
|
/s/ Xxxxxxx
Xxxxx
|
|
Xxxxxxx
Xxxxx
|
00
IN
WITNESS WHEREOF,
the
Buyers and the Company have cause this Subscription Agreement to be duly
executed as of the date first written above.
|
BUYERS:
|
|
R
& R Opportunity Fund
|
|
By:
/s/ Xxxx X. Xxxxx, III
|
|
Xxxx
X. Xxxxx, III
|
|
Authorized
Signatory
|
24
IN
WITNESS WHEREOF,
the
Buyers and the Company have cause this Subscription Agreement to be duly
executed as of the date first written above.
|
BUYERS:
|
|
Dolphin
Offshore Partners, L.P.
|
|
By:
/s/ Xxxxx X. Xxxxx
|
|
Xxxxx
X. Xxxxx
|
|
General
Partner
|
25
IN
WITNESS WHEREOF,
the
Buyers and the Company have cause this Subscription Agreement to be duly
executed as of the date first written above.
|
BUYERS:
|
|
/s/ Xxxxxx
Xxxxxxx
|
|
Xxxxxx
Xxxxxxx
|
26
IN
WITNESS WHEREOF,
the
Buyers and the Company have cause this Subscription Agreement to be duly
executed as of the date first written above.
|
BUYERS:
|
|
/s/ Xxxxxxx
X. Xxxxx
|
|
Xxxxxxx
X. Xxxxx
|
27
IN
WITNESS WHEREOF,
the
Buyers and the Company have cause this Subscription Agreement to be duly
executed as of the date first written above.
|
BUYERS:
|
|
/s/ Xxxxxxx
Xxxxxxxxx
|
|
Xxxxxxx
Xxxxxxxxx
|
28
IN
WITNESS WHEREOF,
the
Buyers and the Company have cause this Subscription Agreement to be duly
executed as of the date first written above.
|
BUYERS:
|
|
GCA
Strategic Investment Fund Limited
|
|
By:
/s/ Xxxxx X. Xxxxxx
|
|
Xxxxx
X. Xxxxxx
|
|
Authorized
Signatory
|
29
IN
WITNESS WHEREOF,
the
Buyers and the Company have cause this Subscription Agreement to be duly
executed as of the date first written above.
|
BUYERS:
|
|
Maythorpe
Holdings Limited
|
|
By:
/s/ Xxxx Xxxxxx
|
|
Xxxx
Xxxxxx
|
|
Authorized
Signatory
|
30
IN
WITNESS WHEREOF,
the
Buyers and the Company have cause this Subscription Agreement to be duly
executed as of the date first written above.
|
BUYERS:
|
|
/s/ Xxxxx
Xxxx, III
|
|
Xxxxx
Xxxx, III
|
31
SCHEDULE
OF BUYERS
|
Buyer’s
Name
|
Buyer’s
Address
and
Facsimile Number
|
Number
of
Securities
|
Purchase
Price
|
|||||
|
Xxxxxxx
XxXxxxxxxx
|
XxXxxxxxxx,
Wick & Co.
00
Xxxxxx Xxxxx, Xxxxxxxxx
Xxx
Xxxxxxxxx, XX 00000
Facsimile
# (000) 000-0000
|
588
shares of
Series
C
Preferred
Stock
|
$
|
58,800
|
||||
|
Xxxxx
Xxxx
|
XxXxxxxxxx,
Wick & Co.
00
Xxxxxx Xxxxx, Xxxxxxxxx
Xxx
Xxxxxxxxx, XX 00000
Facsimile
# (000) 000-0000
|
500
shares of
Series
C
Preferred
Stock
|
$
|
50,000
|
||||
|
Xxxxxx
Xxxxxxxx
|
X.
Xxxxx & Co
0000
XxxXxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx
Xxxxx, XX 00000
Facsimile
# (000) 000-0000
|
50
shares of
Series
C
Preferred
Stock
|
$
|
5,000
|
||||
|
Xxxxxxx
Xxxxxx
|
0000
Xxxxx Xxxxx Xxxx.
Xxxx
Xxxxx, XX 00000
Facsimile
# (000) 000-0000
|
500
shares of
Series
C
Preferred
Stock
|
$
|
50,000
|
||||
|
Xxxxxx
Xxxxxxx
|
Red
Rock Resorts
0000
Xxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx,
XX 00000
Facsimile
# (000) 000-0000
|
100
shares of
Series
C
Preferred
Stock
|
$
|
10,000
|
||||
|
Xxxxxx
Xxxxxxx
|
Modtech
Holdings, Inc.
0000
Xxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Facsimile
# (000) 000-0000
|
200
shares of
Series
C
Preferred
Stock
|
$
|
20,000
|
||||
|
Xxxxxxx
Xxxxxx
|
Modtech
Holdings, Inc.
0000
Xxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Facsimile
# (000) 000-0000
|
10
shares of
Series
C
Preferred
Stock
|
$
|
1,000
|
||||
|
Xxxxxx
Xxxxxx
|
Modtech
Holdings, Inc.
0000
Xxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Facsimile
# (000) 000-0000
|
10
shares of
Series
C
Preferred
Stock
|
$
|
1,000
|
||||
|
Xxxxxxx
Xxxxxxxxxx
|
Modtech
Holdings, Inc.
0000
Xxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Facsimile
# (000) 000-0000
|
100
shares of
Series
C
Preferred
Stock
|
$
|
10,000
|
||||
|
Xxxxx
Xxxxx
|
Modtech
Holdings, Inc.
0000
Xxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Facsimile
# (000) 000-0000
|
50
shares of
Series
C
Preferred
Stock
|
$
|
5,000
|
||||
|
Xxxxx
Xxxxxxxxx
|
Modtech
Holdings, Inc.
0000
Xxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Facsimile
# (000) 000-0000
|
50
shares of
Series
C
Preferred
Stock
|
$
|
5,000
|
||||
|
Buyer’s
Name
|
Buyer’s
Address
and
Facsimile Number
|
Number
of
Securities
|
Purchase
Xxxxx
|
|||||
|
Xxxxxxx
Von Hor
|
Modtech
Holdings, Inc.
0000
Xxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Facsimile
# (000) 000-0000
|
18
shares of
Series
C
Preferred
Stock
|
$
|
1,800
|
||||
|
Xxxxxx
XxXxxxxx
|
Modtech
Holdings, Inc.
0000
Xxxxxxxxxx Xxxx Xx.
Xxxxx
Xxxx, XX 00000
Facsimile
# 000-000-0000
|
50
shares of
Series
C
Preferred
Stock
|
$
|
5,000
|
||||
|
Xxxxxxx
Xxxxx
|
Modtech
Holdings, Inc.
0000
X. Xxxxxxx
Xxxxxxx,
XX 00000
Facsimile
# 000-000-0000
|
10
shares of
Series
C
Preferred
Stock
|
$
|
1,000
|
||||
|
Xxxxx
Xxxxx
|
Modtech
Holdings, Inc.
0000
Xxxxxxx Xxxxxx
Xxxxxx,
XX 00000
Facsimile
#000-000-0000
|
20
shares of
Series
C
Preferred
Stock
|
$
|
2,000
|
||||
|
R&R
Opportunity Fund
|
R&R
Opp. Fund -
care
of Noari Holdings LLC
0
Xxxxxx Xxxxxx, Xxxxx #000
Xxxxxxxxx,
X.X. 00000
|
2000
shares of
Series
B
Preferred
Stock
|
$
|
200,000
|
||||
|
Dolphin
Offshore Partners, L.P.
|
000
Xxxx 00XX Xxxxxx
Xxx
Xxxx, XX 00000
Facsimile
# (000) 000-0000
|
7,500
shares of
Series
B
Preferred
Stock
|
$
|
750,000
|
||||
|
Xxxxxx
Xxxxxxx
|
0000
Xxxxxxx Xxxxxx
Xxxxxxx,
Xxxx 00000
|
960
shares of
Series
B
Preferred
Stock
|
$
|
96,000
|
||||
|
Xxxxxxx
X. Xxxxx
|
The
Xxxxx Company
0000
Xxxx X. Xxxxxxx Xxxx
Xxxxxxx,
Xxxx 00000
Facsimile
# (000) 000-0000
|
480
shares of
Series
B
Preferred
Stock
|
$
|
48,000
|
||||
|
Xxxxxxx
Xxxxxxxxx
|
KRG
Capital Partners, LLC
0000
Xxxxxxxx Xxxxxx
Tower
One - Suite 1500
Xxxxxx,
XX 00000
Facsimile
# (000) 000-0000
|
1250
shares of
Series
B
Preferred
Stock
|
$
|
125,000
|
||||
|
GCA
Strategic Investment Fund Limited
|
Xxxxxxxxx
Xxxxxxxx, 00 Xxxxxx Xxxxxx
Xxxxxxxx,
Xxxxxxx XX00
|
0000
shares of
Series
B
Preferred
Stock
|
$
|
100,000
|
||||
|
Maythorpe
Holdings Limited
|
0xx
Xxxxx, Xxxxxx Xxxxx
333
Waterfront Drive
Road
Town, Tortola, British Virgin Islands
Facsimile
#. (000) 000-0000
|
1000
shares of
Series
B
Preferred
Stock
|
$
|
100,000
|
