EXHIBIT 10.1
NOTE PURCHASE AGREEMENT
-----------------------
This NOTE PURCHASE AGREEMENT, dated as of July 23, 2008 (this
"Agreement"), is entered into by and between BLUEFLY, INC., a Delaware
corporation (the "Company"), and the investors listed on Schedule 1 hereto
(each, an "Investor" and, collectively, the "Investors").
RECITALS
--------
WHEREAS, the Investors desire to purchase from the Company, and the
Company desires to issue and sell to the Investors, convertible promissory notes
in the aggregate principal amount of three million dollars ($3,000,000.00), in
the form attached hereto as Exhibit A (the "Notes"), on the terms, and subject
to the conditions, contained herein.
AGREEMENT
---------
NOW, THEREFORE, in consideration for the mutual covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
ARTICLE I
PURCHASE AND SALE OF NOTES; STOCKHOLDER APPROVAL
------------------------------------------------
SECTION 1.1 Notes. Subject to the terms and conditions hereof, the
Company hereby issues and sells to the Investors, and each Investor hereby
purchases from the Company, a Note in the aggregate principal amount set forth
opposite such Investor's name in Schedule 1.
SECTION 1.2 Purchase Price. The aggregate purchase price for the Notes
to be purchased by each Investor is the amount set forth opposite such
Investor's name in Schedule 1.
SECTION 1.3 Stockholder Approval. The Company represents and warrants
that it has obtained Stockholder Approval at the 2008 Annual Meeting of
Stockholders. "Stockholder Approval" means such approval of the stockholders of
the Company as may be necessary under the rules of the Nasdaq Capital Market or
any other national securities exchange or quotation system upon which the Common
Stock may be listed from time to time, in order to permit the exercise in full
of the conversion rights set forth in Section 5 of the Notes (without giving
effect to any limitation in such Section 5 relating to any such rules).
SECTION 1.4 Use of Proceeds. The Company shall use the proceeds from
the issuance of the Notes solely for working capital and general corporate
purposes.
SECTION 1.5 Registration Rights. The Investors shall be entitled to
registration rights in respect of the shares of Common Stock or Subsequent Round
Securities (as defined in the Notes) issuable upon conversion of Notes
consistent with the registration rights granted pursuant to the Stock Purchase
Agreement, dated as of June 5, 2006 (the "2006 Agreement"), by and among the
Company and the other parties thereto, applied mutatis mutandis; provided,
however, that the 120-day filing deadline with respect to the Company's
obligation to prepare and file a registration statement covering such shares
shall commence on the first day following the Company's receipt of written
notice from the Investors requesting the registration of such shares and the 180
day Required Effectiveness Deadline shall also commence on the first day
following the Company's receipt of such written notice; and provided, further,
however, that if, despite the Company having used all commercially reasonable
efforts, the Required Effectiveness Deadline (as defined in the 2006 Agreement)
is not satisfied by reason of the failure of the applicable Registration
Statement (as defined in the 2006 Agreement) to be declared effective prior to
such Required Effectiveness Deadline, the penalties set forth in Section 6.1(h)
of the 2006 Agreement shall be deemed not to be triggered by clause (ii) of such
Section 6.1(h) in respect of such shares.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
---------------------------------------------
The Company represents and warrants to the Investors as follows:
SECTION 2.1 Organization, etc. The Company has been duly formed, and is
validly existing as a corporation in good standing under the laws of the State
of Delaware, and is qualified to do business as a foreign corporation in each
jurisdiction in which the failure to be so qualified could reasonably be
expected to have a material adverse effect on the assets, liabilities, condition
(financial or other), business or results of operations of the Company (a
"Material Adverse Effect"). The Company has the requisite corporate power and
authority to own, lease and operate its properties and to conduct its business
as presently conducted. The Company has the requisite corporate power and
authority to enter into, execute, deliver and perform all of its duties and
obligations under this Agreement and to consummate the transactions contemplated
hereby.
SECTION 2.2 Authorization. The execution, delivery and performance of
this Agreement and the issuance of the Notes have been duly authorized by all
necessary corporate action on the part of the Company, including, without
limitation, the due authorization by the affirmative votes of a majority of the
disinterested directors of the Company's Board of Directors.
SECTION 2.3 Validity; Enforceability. This Agreement and the Notes have
each been duly executed and delivered by the Company, and constitute the legal,
valid and binding obligation of the Company, enforceable against the Company in
accordance with their respective terms, except as such enforceability may be
limited by, or subject to, any bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and subject to general principles of equity.
SECTION 2.4 Capitalization. As of the date hereof, the authorized
capital stock of the Company consists of 200,000,000 shares of common stock,
$0.01 par value per share (the
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"Common Stock"), and 25,000,000 shares of preferred stock, $0.01 par value per
share, of which 500,000 shares have been designated Series A Convertible
Preferred Stock, 9,000,000 shares have been designated Series B Convertible
Preferred Stock, 3,500 shares have been designated Series C Convertible
Preferred Stock, 7,150 shares have been designated Series D Convertible
Preferred Stock, 1,000 shares have been designated Series E Convertible
Preferred Stock and 7,000 shares have been designated as Series F Convertible
Preferred Stock. The issued and outstanding capital stock of the Company
consists of (i) 13,278,103 shares of Common Stock and (ii) 571 shares of Series
F Convertible Preferred Stock. All such shares of the Company have been duly
authorized and are fully paid and non-assessable. Except as set forth on
Schedule 2.4 hereto or as otherwise contemplated by this Agreement, there are no
outstanding options, deferred stock units, warrants or other equity securities
that are convertible into, or exercisable for, shares of the Company's capital
stock.
SECTION 2.5 Governmental Consents. The execution and delivery by the
Company of this Agreement, and the performance by the Company of the
transactions contemplated hereby, do not and will not require the Company to
effectuate or obtain any registration with, consent or approval of, or notice to
any federal, state or other governmental authority or regulatory body, other
than periodic and other filings under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and all required filings with the Nasdaq Capital
Market. The parties hereto agree and acknowledge that, in making the
representations and warranties in the foregoing sentence of this Section 2.5,
the Company is relying on the representations and warranties made by the
Investors in Section 3.4.
SECTION 2.6 No Violation. The execution and delivery of this Agreement
and the performance by the Company of the transactions contemplated hereby will
not (i) conflict with or result in a breach of any provision of the certificate
of incorporation or by-laws of the Company, (ii) result in a default or breach
of, or require any consent, approval, authorization or permit of, or filing or
notification to, any person, company or entity under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, loan, factoring
arrangement, license, agreement, lease or other instrument or obligation to
which the Company is a party or by which the Company or any of its assets may be
bound or (iii) violate any law, judgment, order, writ, injunction, decree,
statute, rule or regulation of any court, administrative agency, bureau, board,
commission, office, authority, department or other governmental entity
applicable to the Company, except, in the case of clause (ii) or (iii) above,
any such event that could not reasonably be expected to have a Material Adverse
Effect or materially impair the transactions contemplated hereby.
SECTION 2.7 Issuance of Notes. The Notes have been validly issued, and,
upon payment therefor, will be fully paid and non-assessable. The offering,
issuance, sale and delivery of the Notes as contemplated by this Agreement is
exempt from the registration and prospectus delivery requirements of the
Securities Act of 1933, as amended (the "Securities Act"), are being made in
compliance with all applicable federal and (except for any violation or
non-compliance that could not reasonably be expected to have a Material Adverse
Effect) state laws and regulations concerning the offer, issuance and sale of
securities, and are not being issued in violation of any preemptive or other
rights of any stockholder of the Company. The parties hereto agree and
acknowledge that, in making the representations and warranties in the foregoing
sentence of this
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Section 2.7, the Company is relying on the representations and warranties made
by the Investors in Section 3.4.
SECTION 2.8 Absence of Certain Developments. Since December 31, 2007,
except as disclosed in the Company's public filings, there has not been any: (i)
material adverse change in the condition, financial or otherwise, of the Company
or in the assets, liabilities, properties or business of the Company; (ii)
declaration, setting aside or payment of any dividend or other distribution with
respect to, or any direct or indirect redemption or acquisition of, any capital
stock of the Company; (iii) waiver of any valuable right of the Company or
cancellation of any material debt or claim held by the Company; (iv) material
loss, destruction or damage to any property of the Company, whether or not
insured; (v) acquisition or disposition of any material assets (or any contract
or arrangement therefor) or any other material transaction by the Company
otherwise than for fair value in the ordinary course of business consistent with
past practice; or (vi) other agreement or understanding, whether in writing or
otherwise, for the Company to take any action of the type, or any action that
would result in an event of the type, specified in clauses (i) through (v).
SECTION 2.9 Commission Filings. The Company has filed all required
forms, reports and other documents with the Securities and Exchange Commission
(the "Commission") for periods from and after January 1, 2007 (collectively, the
"Commission Filings"), each of which has complied in all material respects with
all applicable requirements of the Securities Act and/or the Exchange Act (as
applicable). As of their respective dates, the Commission Filings did not
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made, in light of the circumstances
under which they were made, not misleading. The audited financial statements
and unaudited interim financial statements of the Company included or
incorporated by reference in such Commission Filings have been prepared in
accordance with generally accepted accounting principles, consistently applied
("GAAP") (except as may be indicated in the notes thereto or, in the case of the
unaudited statements, as permitted by Form 10-Q), complied as of their
respective dates in all material respects with applicable accounting
requirements and the published rules and regulations of the Commission with
respect thereto, and fairly present, in all material respects, the financial
position of the Company as of the dates thereof and the results of operations
for the periods then ended (subject, in the case of any unaudited interim
financial statements, to the absence of footnotes required by GAAP and normal
year-end adjustments).
SECTION 2.10 Brokers. Neither the Company, nor any of its officers,
directors or employees, has employed any broker or finder, or incurred any
liability for any brokerage fees, commissions, finder's or other similar fees or
expenses in connection with the transactions contemplated hereby.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE INVESTORS
-----------------------------------------------
Each Investor represents and warrants to the Company, severally but not
jointly, as follows:
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SECTION 3.1 Organization, etc. Such Investor has been duly formed and
is validly existing and in good standing under the laws of its jurisdiction of
organization. Such Investor has the requisite organizational power and authority
to enter into, execute, deliver and perform all of its duties and obligations
under this Agreement and to consummate the transactions contemplated hereby.
SECTION 3.2 Authority. The execution, delivery and performance of this
Agreement have been duly authorized by all necessary organizational or other
action on the part of such Investor.
SECTION 3.3 Validity; Enforceability. This Agreement has been duly
executed and delivered by such Investor, and constitutes the legal, valid and
binding obligation of such Investor, enforceable against such Investor in
accordance with its terms, except as such enforceability may be limited by, or
subject to, any bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditors' rights generally and subject to
general principles of equity.
SECTION 3.4 Investment Representations. Such Investor acknowledges that
the offer and sale of the Notes to such Investor have not been registered under
the Securities Act, or the securities laws of any state or regulatory body, are
being offered and sold in reliance upon exemptions from the registration
requirements of the Securities Act and such laws and may not be transferred or
resold without registration under such laws unless an exemption is available.
(a) Such Investor is acquiring the Notes for investment, and not
with a view to the resale or distribution thereof, and is acquiring the Notes
for its own account.
(b) Such Investor is an "accredited investor" (as that term is
defined in Rule 501 of Regulation D promulgated under the Securities Act), is
sophisticated in financial matters and is familiar with the business of the
Company so that it is capable of evaluating the merits and risks of its
investment in the Company and has the capacity to protect its own interests.
Such Investor has had the opportunity to investigate on its own the Company's
business, management and financial affairs and has had the opportunity to review
the Company's operations and facilities and to ask questions and obtain whatever
other information concerning the Company as such Investor has deemed relevant in
making its investment decision.
(c) Neither such Investor, nor any of its principal owners,
partners, members, directors or officers is included on the Office of Foreign
Assets Control list of foreign nations, organizations and individuals subject to
economic and trade sanctions, based on U.S. foreign policy and national security
goals, or a person named on the list of known or suspected terrorists, terrorist
organizations or other sanctioned persons issued by the U.S. Treasury
Department's Office of Foreign Assets and Control.
(d) No representations or warranties have been made to such
Investor by the Company or any director, officer, employee, agent or affiliate
of the Company, other than the representations and warranties of the Company set
forth herein, and the decision of such Investor to purchase the Notes is based
on the information contained herein, the Commission Filings and such Investor's
own independent investigation of the Company.
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SECTION 3.5 Governmental Consents. The execution and delivery by such
Investor of this Agreement, and the performance by such Investor of the
transactions contemplated hereby, do not and will not require such Investor to
effectuate or obtain any registration with, consent or approval of, or notice to
any federal, state or other governmental authority or regulatory body, except
for compliance with the Exchange Act with respect to its acquisition of the
Notes.
SECTION 3.6 No Violation. The execution and delivery of this Agreement
and the performance by such Investor of the transactions contemplated hereby,
will not (i) conflict with or result in a breach of any provision of the
articles of incorporation, by-laws or similar organizational documents of such
Investor or (ii) violate any law, judgment, order, writ, injunction, decree,
statute, rule or regulation of any court, administrative agency, bureau, board,
commission, office, authority, department or other governmental entity
applicable to such Investor, except, in the case of clause (ii) above, any such
violation that could not reasonably be expected to materially impair the
transactions contemplated hereby.
SECTION 3.7 Brokers. Neither the Investors, nor any of their officers,
directors or employees, has employed any broker or finder, or incurred any
liability for any brokerage fees, commissions, finder's or other similar fees or
expenses in connection with the transactions contemplated hereby.
ARTICLE IV
SURVIVAL; INDEMNIFICATION
-------------------------
SECTION 4.1 Survival. The representations and warranties contained in
Articles II and III hereof shall survive until the first anniversary of the date
hereof.
SECTION 4.2 Indemnification. Each party (including its officers,
directors, employees, affiliates, agents, successors and assigns (each an
"Indemnified Party")) shall be indemnified and held harmless by the other
parties hereto (each an "Indemnifying Party") for any and all liabilities,
losses, damages, claims, costs and expenses, interest, awards, judgments and
penalties (including, without limitation, reasonable attorneys' fees and
expenses) actually suffered or incurred by them (collectively, "Losses"),
arising out of or resulting from the breach of any representation or warranty
made by an Indemnifying Party contained in this Agreement. Notwithstanding the
foregoing, the aggregate liability of any Investor under this Article IV shall
in no event exceed fifty percent (50%) of the purchase price paid by such
Investor for the Notes purchased by it and the aggregate liability of the
Company under this Article IV shall in no event exceed fifty percent (50%) of
the purchase price paid by the Investors for the Notes, except that the
Company's liability for a violation of any of the representations and warranties
contained in the first two sentences of Section 2.7 may exceed such limitation,
but shall in no event exceed one hundred percent (100%) of the purchase price
paid by the Investors for the Notes.
SECTION 4.3 Indemnification Procedure. The obligations and liabilities
of the Indemnifying Party under this Article IV with respect to Losses arising
from claims of any third party that are subject to the indemnification provided
for in this Article IV ("Third Party Claims") shall be governed by and
contingent upon the following additional terms and conditions: if an
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Indemnified Party shall receive notice of any Third Party Claim, the Indemnified
Party shall give the Indemnifying Party notice of such Third Party Claim
promptly after the receipt by the Indemnified Party of such notice (which notice
shall include the amount of the Loss, if known, and method of computation
thereof, and containing a reference to the provisions of this Agreement in
respect of which such right of indemnification is claimed or arises); provided,
however, that the failure to provide such notice shall not release the
Indemnifying Party from any of its obligations under this Article IV except to
the extent the Indemnifying Party is materially prejudiced by such failure and
shall not relieve the Indemnifying Party from any other obligation or liability
that it may have to any Indemnified Party otherwise than under this Article IV.
Upon written notice to the Indemnified Party within five (5) days of the receipt
of such notice, the Indemnifying Party shall be entitled to assume and control
the defense of such Third Party Claim at its or his expense and through counsel
of its or his choice (which counsel shall be reasonably satisfactory to the
Indemnified Party); provided, however, that, if there exists or is reasonably
likely to exist a conflict of interest that would make it inappropriate in the
reasonable judgment of counsel to the Indemnified Party for the same counsel to
represent both the Indemnified Party and the Indemnifying Party, then the
Indemnified Party shall be entitled to retain its or his own counsel in each
jurisdiction for which the Indemnified Party reasonably determines counsel is
required, at the expense of the Indemnifying Party. In the event the
Indemnifying Party exercises the right to undertake any such defense against any
such Third Party Claim as provided above, the Indemnified Party shall cooperate
with the Indemnifying Party in such defense and make available to such
Indemnifying Party, at the Indemnifying Party's expense, all witnesses,
pertinent records, materials and information in the Indemnified Party's
possession or under the Indemnified Party's control relating thereto as is
reasonably required by the Indemnifying Party. Similarly, in the event the
Indemnified Party is, directly or indirectly, conducting the defense against any
such Third Party Claim, the Indemnifying Party shall cooperate with the
Indemnified Party in such defense and make available to the Indemnified Party,
at the Indemnifying Party's expense, all such witnesses (including himself),
records, materials and information in the Indemnifying Party's possession or
under the Indemnifying Party's control relating thereto as is reasonably
required by the Indemnified Party. No such Third Party Claim may be settled by
the Indemnifying Party on behalf of the Indemnified Party without the prior
written consent of the Indemnified Party (which consent shall not be
unreasonably withheld); provided, however, in the event that the Indemnified
Party does not consent to any such settlement that would provide it with a full
release from indemnified Loss and would not require it to take, or refrain from
taking, any action, the Indemnifying Party's liability for indemnification shall
not exceed the amount of such proposed settlement. The Indemnified Party will
refrain from any act or omission that is inconsistent with the position taken by
the Indemnifying Party in the defense of a Third Party Claim unless the
Indemnified Party determines that such act or omission is reasonably necessary
to protect its own interest.
ARTICLE V
MISCELLANEOUS
-------------
SECTION 5.1 Publicity. Except as may be required by applicable law or
the rules of any securities exchange or market on which securities of the
Company are traded, no party hereto shall issue a press release or public
announcement or otherwise make any disclosure concerning this Agreement and the
transactions contemplated hereby, without prior approval of the others;
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provided, however, that nothing in this Agreement shall restrict the Company or
any Investor from disclosing such information (a) that is already publicly
available, (b) to the extent required or appropriate in response to any summons
or subpoena or to comply with applicable law, regulations or the rules of any
national securities exchange or quotation system (provided that the disclosing
party will use commercially reasonable efforts to notify the other parties in
advance of such disclosure under this clause (b) so as to permit the
non-disclosing parties, in the case of a summons or subpoena, seek a protective
order or otherwise contest such disclosure, and the disclosing party will use
commercially reasonable efforts to cooperate, at the expense of the
non-disclosing parties, in pursuing any such protective order) or (c) in
connection with any litigation involving disputes as to the parties' respective
rights and obligations hereunder.
SECTION 5.2 Entire Agreement. This Agreement and any other agreement or
instrument to be delivered expressly pursuant to the terms hereof constitute the
entire Agreement between the parties hereto with respect to the subject matter
hereof and supersede all previous negotiations, commitments and writings with
respect to such subject matter.
SECTION 5.3 Assignments; Parties in Interest. Neither this Agreement
nor any of the rights, interests or obligations hereunder may be assigned by any
of the parties hereto (whether by operation of law or otherwise) without the
prior written consent of the other parties. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto, and nothing herein,
express or implied, is intended to or shall confer upon any person not a party
hereto any right, benefit or remedy of any nature whatsoever under or by reason
hereof, except as otherwise provided herein.
SECTION 5.4 Amendments. This Agreement may not be amended or modified
except by an instrument in writing signed by, or on behalf of, the parties
against whom such amendment or modification is sought to be enforced.
SECTION 5.5 Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience of reference only and do not constitute a
part of and shall not be utilized in interpreting this Agreement.
SECTION 5.6 Notices and Addresses. Any notice, demand, request, waiver,
or other communication under this Agreement shall be in writing and shall be
deemed to have been duly given on the date of service, if personally served or
sent by facsimile; on the business day after notice is delivered to a courier or
mailed by express mail, if sent by courier delivery service or express mail for
next day delivery; and on the fifth business day after mailing, if mailed to the
party to whom notice is to be given, by first class mail, registered, return
receipt requested, postage prepaid and addressed as follows:
To Company: Bluefly, Inc.
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attn: General Counsel
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With a copy to:
Dechert LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Fax: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
To the Investors: To the address set forth on Schedule 1.
SECTION 5.7 Severability. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, void or unenforceable, the remainder of this Agreement will continue in
full force and effect and the application of such provision to other persons or
circumstances will be interpreted so as reasonably to effect the intent of the
parties hereto. The parties further agree to replace such void or unenforceable
provision of this Agreement with a valid and enforceable provision that will
achieve, to the extent possible, the economic, business and other purposes of
such void or unenforceable provision.
SECTION 5.8 Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York, without
regard to conflicts of law principles. The parties agree that the federal and
state courts located in New York, New York shall have exclusive jurisdiction
over any dispute involving this Agreement or the transactions contemplated
hereby, and each party hereby irrevocably submits to the jurisdiction of, and
waives any objection to the laying of venue in, such courts.
SECTION 5.9 Counterparts; Facsimile Signatures. This Agreement may be
executed in one or more counterparts, all of which shall be considered one and
the same agreement and shall become effective when one or more counterparts have
been signed by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart. This Agreement
may be executed by facsimile, and a facsimile signature shall have the same
force and effect as an original signature on this Agreement.
SECTION 5.10 Expenses. The Company shall reimburse the Investors for
their reasonable legal fees and expenses incurred in connection with the
negotiation of this Agreement and the transactions contemplated hereby. Except
as provided above, all costs and expenses, including, without limitation, fees
and disbursements of counsel, incurred in connection with the negotiation,
execution and delivery of this Agreement and its related documents shall be paid
by the party incurring such costs and expenses, whether or not the closing shall
have occurred.
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IN WITNESS WHEREOF, this Agreement has been duly executed on the date
first set forth above.
BLUEFLY, INC.
By: /s/ Xxxx X. Xxxxx
-------------------------------------------
Name: Xxxx X. Xxxxx
Title: Chief Financial Officer
QUANTUM INDUSTRIAL PARTNERS LDC
By: /s/ Xxx X. Xxxxxxxxxxxx
-------------------------------------------
Name: Xxx X. Xxxxxxxxxxxx
Title: Attorney-in-Fact
SFM DOMESTIC INVESTMENTS LLC
By: /s/ Xxx X. Xxxxxxxxxxxx
-------------------------------------------
Name: Xxx X. Xxxxxxxxxxxx
Title: Attorney-in-Fact
MAVERICK FUND USA, LTD.
By: Maverick Capital, Ltd.,
Its Investment Manager
By: /s/ Xxxx X. XxXxxxxxxx
-------------------------------------------
Name: Xxxx X. XxXxxxxxxx
Title: Limited Partner and General Counsel
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MAVERICK FUND, L.D.C.
By: Maverick Capital, Ltd.,
Its Investment Manager
By: /s/ Xxxx X. XxXxxxxxxx
-------------------------------------------
Name: Xxxx X. XxXxxxxxxx
Title: Limited Partner and General Counsel
MAVERICK FUND II, LTD.
By: Maverick Capital, Ltd.,
Its Investment Manager
By: /s/ Xxxx X. XxXxxxxxxx
-------------------------------------------
Name: Xxxx X. XxXxxxxxxx
Title: Limited Partner and General Counsel
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SCHEDULE 1
INVESTORS AND SHARE AND NOTE ALLOCATIONS
--------------------------------------------------------------------------------
Aggregate Principal Aggregate Purchase
Name and Address of Investor Amount of Note Price
---------------------------- ------------------- ------------------
Quantum Industrial Partners LDC $1,809,480.00 $1,809,480.00
Xxxx Xxxxxxxxx 0
Xxxxxxxxxx
Xxxxxxx
Xxxxxxxxxxx-Xxxxxxxx
with a copy to:
Xxxxx Fund Management LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attn: Xxx Xxxxxxxxxxxx, Esq.
--------------------------------------------------------------------------------
SFM Domestic Investments LLC $59,220.00 $59,220.00
c/x Xxxxx Fund Management LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attn: Xxx Xxxxxxxxxxxx, Esq.
--------------------------------------------------------------------------------
Maverick Fund USA, Ltd. $215,580.00 $215,580.00
c/o Maverick Capital, Ltd.
000 Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Facsimile: (000)000-0000
Attn: General Counsel:
--------------------------------------------------------------------------------
Maverick Fund, L.D.C. $489,000.00 $489,000.00
c/o Maverick Capital, Ltd.
000 Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Facsimile: (000)000-0000
Attn: General Counsel:
--------------------------------------------------------------------------------
Maverick Fund II, Ltd. $426,720.00 $426,720.00
c/o Maverick Capital, Ltd.
000 Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Facsimile: (000)000-0000
Attn: General Counsel:
--------------------------------------------------------------------------------
TOTAL $3,000,000.00 $3,000,000.00
--------------------------------------------------------------------------------
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SCHEDULE 2.4
CAPITALIZATION
--------------
As of the date hereof (except as otherwise provided below), but without
giving effect to the transactions contemplated by this Agreement, the following
equity securities are outstanding and convertible into, or exercisable for
shares of Common Stock:
o Warrants to purchase an aggregate of 113,574 shares of Common
Stock are issued and outstanding.
o Options issued to purchase 368,353 shares of Common Stock are
issued and outstanding under the Company's 1997 Stock Option
Plan, as amended, 2000 Stock Option Plan, as amended, and 2005
Stock Incentive Plan, as amended.
o 847,536 shares of Common Stock reserved for issuance upon the
settlement of deferred stock units.
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