1
EXHIBIT 10.3
BRIDGE LOAN AND SECURITY AGREEMENT
This BRIDGE LOAN AND SECURITY AGREEMENT ("AGREEMENT") is executed
effective as of October 31, 1998, by and among DIGITAL ASSET MANAGEMENT, INC., a
Delaware corporation whose principal place of business and chief executive
office is located at 67 Stonehedge, Xxxxxxxxx, XX 00000, Attn: Xxxx Xxxxx
("DEBTOR"), ACXIOM CORPORATION, a Delaware corporation whose mailing address is
000 Xxxxxxxxxx Xxxxxxxxx, P. O. Xxx 0000, Xxxxxx, XX 00000-0000, Attn: Xxxx
Xxxxxxxx ("ACXIOM"), PC411, INC., a Delaware corporation whose mailing address
is 000 XX Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxx, XX 00000, Attn: X. Xxxxxx Xxxxxxxx
III ("PC411"), and XXXX XXXXX, an individual citizen and resident of Connecticut
whose mailing address is 00 Xxxxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000 ("XXXXX").
(Acxiom, PC411, and Xxxxx shall each hereinafter be referred to individually as
a "SECURED PARTY" and collectively as the "SECURED PARTIES").
W I T N E S S E T H:
WHEREAS, Debtor has requested that Secured Parties provide Debtor with
a line of credit in the aggregate amount of Eight Hundred Thousand Dollars
($800,000.00), bearing interest at the short-term Applicable Federal Rate per
annum, as published by the Internal Revenue Service on the date funds are
advanced pursuant hereto, from the date monies are advanced until the earlier of
when paid or Maturity, to be funded 50% ($400,000.00) by Acxiom, 25%
($200,000.00) by PC411, and 25% ($200,000.00) by Xxxxx (the "LOAN"), all in
accordance with the terms hereof and of the Promissory Notes (hereinafter
defined);
WHEREAS, Debtor has made certain representations and warranties to each
Secured Party in the Stock Purchase Agreement executed by and among Debtor,
PC411 and Acxiom of even date herewith; and
WHEREAS, to secure payment of the Loan and all other contractual
obligations of Debtor to each Secured Party hereunder, and all renewals,
amendments, modifications, extensions and refinancings thereof, and all future
advances of the Loan, Debtor has agreed to grant to Secured Parties a security
interest in the Collateral (as hereinafter defined).
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, and in exchange for the mutual
promises and covenants contained herein, the parties hereto, intending to be
legally bound, agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the capitalized terms
used herein shall have the following meanings, unless the context otherwise
specifically requires:
(a) "AGENT" shall mean Acxiom, its successors in interest and
assigns, as collateral agent for itself, PC411, and Xxxxx.
(b) "COLLATERAL" shall mean and refer to all of the Debtor's
property, real and
1
2
personal, tangible and intangible, wherever located including, but not limited
to the following:
(i) all equipment, machinery, furniture, furnishings,
supplies, fixtures, motor vehicles and any and all other tangible personal
property, and all additions, accessions, replacements and substitutions with
respect thereto, presently owned or hereafter acquired by Debtor (hereinafter
collectively referred to as the "EQUIPMENT"), including without limitation the
property described on EXHIBIT A attached hereto and incorporated herein by
reference;
(ii) cash, cash equivalents and marketable
securities;
(iii) all accounts, accounts receivable, contracts
and contract rights, chattel paper, documents, documents of title, instruments,
customer lists, and other forms of obligation and rights to the payment of money
or other property, presently owned or hereafter acquired by Debtor, together
with all books and records pertaining thereto whether recorded on paper,
diskettes or in magnetic or other computer format (hereinafter collectively
referred to as the "ACCOUNTS");
(iv) all of Debtor's inventory, including all goods,
merchandise, materials, components, supplies, work in process, finished goods,
packaging materials, promotional materials and other tangible personal property
presently owned or hereafter acquired by Debtor and held for sale, lease,
consumption or other use in Debtor's business, and all additions, accessions,
replacements and substitutions with respect thereto (hereinafter collectively
referred to as the "INVENTORY");
(v) all copyrights, trademarks, service marks,
tradenames, logos, marketing plans and models, databases, licenses and all other
intellectual property and proprietary rights of Debtor relating to Debtor's
business, and all registrations thereof, and the goodwill associated therewith,
and all additions, enhancements, replacements and substitutions thereto,
presently existing or hereafter acquired or developed, including, without
limitation, the items listed on EXHIBIT B attached hereto and incorporated
herein by reference (hereinafter collectively referred to as "INTELLECTUAL
PROPERTY");
(vi) general intangibles presently owned or hereafter
acquired by Debtor; and
(vii) all the proceeds (including proceeds from
insurance) and products from any of the foregoing items of collateral along with
any warranty, indemnity, guaranty or other rights related thereto.
(c) "DEBTOR" shall mean and refer to DIGITAL ASSET MANAGEMENT,
INC., a Delaware corporation, and its successors in interest.
(d) "EMPLOYMENT AGREEMENT" shall mean that certain Employment
Agreement, dated as of the date hereof, by and between Debtor and Xxxxx.
2
3
(e) "KEY EMPLOYEES" shall xxxx Xxxx Xxxxx, Xx Xxxxxx, Xxxxxx
Blumethal, Xxxxx Xxxxxxx and Xxxxx Xxxxxx, each of whom is an individual with an
employment agreement with Debtor and a common stockholder of Debtor.
(f) "PERSON" shall mean and refer to any individual,
corporation, partnership, association, limited liability company, trust, estate
or other entity.
(g) "PROMISSORY NOTES" shall mean and refer to the respective
promissory notes executed by Debtor as maker of even date herewith in the
original aggregate principal amount of $800,000.00, each payable to one of the
Secured Parties as payee, and each payable with interest at the short-term
Applicable Federal Rate per annum, as published by the Internal Revenue Service
on the date funds are advanced, from the date of each principal advance to the
earlier of the date of full payment or maturity, and thereafter if not paid at
the rate of ten percent (10%) per annum, and any amendments, modifications,
extensions, renewals or refinancings thereof.
(h) "SECURED DEBT" shall mean and refer to (i) all amounts
payable to Secured Parties pursuant to the respective Promissory Notes
(including principal and interest), and pursuant to any amendments,
modifications, renewals, extensions or refinancings thereof; (ii) all future
advances from each Secured Party to Debtor; (iii) any liabilities or obligations
of Debtor arising under this Agreement; and (iv) all costs and expenses of
collecting the foregoing, or in preserving, protecting or realizing upon the
Collateral, including attorneys' fees, court costs and other legal expenses.
(i) "SECURED PARTY" shall mean and refer to each of Acxiom,
PC411 and Xxxxx, and their respective successors in interest, heirs and assigns.
(j) "STOCK PURCHASE AGREEMENT" shall mean that certain Stock
Purchase Agreement dated as of October 31, 1998 by and among Acxiom, PC411 and
Debtor.
(k) "SHAREHOLDERS AGREEMENT" shall mean that certain
Shareholders Agreement executed of even date herewith by and among all of the
common stockholders and preferred stockholders of Debtor, including but not
limited to each of the Secured Parties.
(l) "UCC" shall mean and refer to the Uniform Commercial Code,
as amended, in effect under the laws of the State of Connecticut.
(m) "VOTING AGREEMENT" shall mean that certain Voting
Agreement executed on October 31, 1998 by and among Debtor, Secured Parties and
Key Employees.
3
4
2. CONDITIONS PRECEDENT TO ADVANCES. Each Secured Party agrees and
commits to advance its proportionate share of the Loan to Debtor as set forth
herein and in the Promissory Notes when and for so long as Debtor is in
compliance with each of the following conditions precedent to advances
("CONDITIONS TO ADVANCES"):
(a) Debtor continues to conform to and meet the goals and
objectives of the approved business plan, a copy of which is attached hereto as
Exhibit A (hereinafter the "Business Plan");
(b) No Key Employee of Debtor is in breach under his
respective employment agreement with Debtor;
(c) Unless otherwise agreed to in writing by Secured Party,
all Key Employees of Debtor are still employed by Debtor;
(d) There then exists no material adverse change in the
business or financial condition of Debtor;
(e) There then exists no breach of or default by Debtor under
this Agreement, the Voting Agreement, the Shareholders Agreement, the Stock
Purchase Agreement or any other agreements by and between the parties relating
to this transaction;
(f) Debtor has, with each request for an advance, advised
Acxiom, as agent for the Secured Parties, of the purpose(s) for which the Loan
proceeds are to be used, Acxiom has, in its sole discretion, approved of such
use of Loan proceeds, and the prior proceeds of the Loan have to date been used
for no other purpose than those previously approved by Acxiom;
(g) Debtor has good title to the Collateral free and clear of
all liens and other security interests, and has possession of the Equipment and
other tangible Collateral and holds all Accounts, including books and records
pertaining thereto, Inventory and other Collateral, or evidence of Intellectual
Property and other intangible Collateral at the addresses set forth on Exhibit C
or at such other addresses that Debtor has notified Secured Party in writing;
(h) Debtor's representations and warranties in this Agreement
are true and correct on the date of each request for an advance; and
(i) Debtor has executed and delivered such agreements,
documents and instruments as may be reasonably requested by Secured Parties.
3. ORDER OF LOAN ADVANCEMENT. Each Secured Party shall advance funds as
provided in the Promissory Notes, in the following order of advancement ("ORDER
OF ADVANCEMENT"):
4
5
(a) The initial four hundred thousand dollars ($400,000) shall
be funded equally and simultaneously by Acxiom and PC411, with each party
agreeing to advance fifty percent (50%) of each request for an advance until
such time as both parties have each advanced two hundred thousand dollars
($200,000.00).
(b) After the first $400,000 has been funded as provided in
Section 3(a), the remaining four hundred thousand dollars ($400,000) shall be
funded equally and simultaneously by Acxiom and Xxxxx, with each party agreeing
to advance fifty percent (50%) of each request for an advance until such time as
both parties have each advanced two hundred thousand dollars ($200,000.00).
Each Secured Party hereby agrees to advance such funds to Debtor
subject to the Conditions to Advances set forth in Section 2 hereof.
4. APPLICATION OF PAYMENTS. All payments on the Loan shall be made and
applied according to and consistently with the Order of Advancement of such
funds, with all payments on the Loan being applied first, 50/50, to funds
advanced by Acxiom and PC411 pursuant to Section 3(a) hereof, and after said
funds have been repaid in full, all payments on the Loan shall be applied,
50/50, to funds advanced by Acxiom and Xxxxx pursuant to Section 3(b) hereof.
5. GRANT OF SECURITY INTEREST. As security for the full and timely
payment of all of the Loan and the Secured Debt, Debtor hereby assigns and
grants to Acxiom, its successors in interest and assigns, as agent for all
Secured Parties including itself ("AGENT"), a continuing first priority lien and
security interest in and to all of Debtor's right, title and interest in and to
the Collateral; TO HAVE AND TO HOLD unto Agent, forever, or until the full
payment, discharge and satisfaction of all of the Promissory Notes and other
outstanding Secured Debt and termination of this Agreement of record by Agent.
In addition to the rights and remedies set forth herein, Agent shall have all of
the rights and remedies of a secured party under the UCC.
6. REPRESENTATIONS AND WARRANTIES OF DEBTOR. Debtor hereby represents
and warrants to each Secured Party as follows:
(a) ORGANIZATION AND GOOD STANDING. Debtor is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Delaware with full power and authority to execute, deliver and perform
its agreements and obligations under this Agreement and to own and operate its
properties and to carry on its business as presently conducted and anticipated.
On the date of any advance of funds pursuant to this Agreement, Debtor shall be
duly qualified as a foreign corporation to transact business, and shall be in
good standing in every state or other jurisdiction where the character of its
properties owned and leased, or the nature of its activities makes such
qualification necessary under applicable law.
(b) AUTHORITY. Debtor has the requisite power and authority to
enter into this Agreement and to execute and deliver the Promissory Notes, and
to perform its obligations hereunder and thereunder. The execution, delivery and
performance of this Agreement and the
5
6
respective Promissory Notes by Debtor have been duly authorized by all necessary
action on the part of Debtor and its shareholders, and no other proceedings on
the part of Debtor are necessary to authorize the execution, delivery and
performance of this Agreement or the Promissory Notes or the other agreements or
contracts related hereto.
(c) VALIDITY. This Agreement and the Promissory Notes have
been duly executed and delivered by Debtor and constitute the legal, valid, and
binding obligations of Debtor, enforceable against Debtor in accordance with
their respective terms.
(d) NO VIOLATIONS. Neither the execution, delivery or
performance of this Agreement or the Promissory Notes, nor the compliance by
Debtor with any of the provisions hereof or thereof, (i) violate, conflict with,
or constitute a breach or default under (or an event which, with notice, lapse
of time or both, would constitute a breach or default), or give rise to any
right of termination or acceleration, or result in the creation of any lien,
security interest, charge or encumbrance upon any property of Debtor (other than
in favor of each Secured Party), under Debtor's Certificate of Incorporation,
Bylaws, or other agreement, document, note, mortgage, indenture, deed of trust,
license, agreement or other instrument or obligation to which Debtor is a party
or by which it or any of its property may be bound or subject, or (ii) violate
any judgment, ruling, order, writ, injunction, decree, statute, rule or
regulation applicable to Debtor or any of its property.
(e) NO CONSENT. No notice to, filing with, or authorization,
consent or approval of any governmental agency or other third party is necessary
or required in connection with the execution, delivery or performance of this
Agreement or the respective Promissory Notes by Debtor, other than the filing of
customary UCC financing statements in such states where Debtor's property is
located, and any other filings necessary to perfect the security interest in
Collateral which is not covered by the UCC:
(f) TITLE. Except for the security interest granted to Agent
hereunder, Debtor is the sole owner of the Collateral and has good, valid and
marketable title thereto, free and clear of any and all liens, security
interests, claims, encumbrances and adverse rights or interests whatsoever.
Debtor has not executed any financing statement that remains in effect with
respect to all or any portion of the Collateral save and except the financing
statements executed in favor of Agent in connection with this Agreement.
(g) FIRST PRIORITY SECURITY INTEREST. The security interest
granted to Agent hereunder constitutes a valid and continuing first priority
lien and security interest in the Collateral in favor of Agent.
(h) DEBTOR'S NAME AND ADDRESS. Debtor's current exact name,
and the address of its principal place of business and chief executive office,
are as set forth in the introductory paragraph of this Agreement. Debtor does
not transact business under any other name other than "PC411" or at any other
address. Debtor agrees to give each Secured Party prior written notice of any
change in Debtor's name and/or address or any additional names
6
7
under which Debtor intends to transact business.
(i) POSSESSION AND LOCATION OF THE COLLATERAL. The Collateral
is and shall remain in the exclusive possession and control of Debtor at its
business addresses referenced on Exhibit C, and except for the relocation of the
portion of the Collateral located in California to Connecticut and except in the
ordinary course of business, Debtor shall not transfer possession of or relocate
all or any portion of the Collateral without each Secured Party's prior written
consent, which shall not be unreasonably withheld or delayed.
(j) LITIGATION. There is no litigation, action, suit,
proceeding, claim or investigation pending, or to the knowledge of Debtor
threatened, against Debtor or with respect to all or any portion of the
Collateral.
(k) NO DEFAULTS. Debtor is not in breach or default (and no
event has occurred which with notice, lapse of time or both would constitute a
breach or default) under any note, mortgage, indenture, deed of trust, license,
agreement or other instrument to which Debtor is a party or is otherwise bound
or with respect to any judgment, ruling, order, writ, injunction or decree of
any court or governmental authority applicable to Debtor or its property.
(l) TAX RETURNS. Debtor has timely and properly filed all tax
returns and reports required by applicable law to be filed with the appropriate
governmental agencies and has paid all taxes required to be shown as due and
payable on such returns and reports and has timely paid all tax assessments made
against it by any governmental authority with respect to its assets, properties,
income or business.
(m) BOOKS AND RECORDS. All books, records and documents
relating to the Collateral are and shall continue to be true, correct, complete
and genuine in all material respects, and are and shall be kept and maintained
at the address set forth in the introductory paragraph of this Agreement. Debtor
agrees to give each Secured Party prior written notice of any change in the
address at which Debtor intends to keep and maintain its books and records.
7. DEBTOR'S COVENANTS.
(a) AFFIRMATIVE COVENANTS. Debtor covenants and agrees with
each Secured Party that so long as this Agreement is in effect, Debtor will
perform and observe each of the following covenants:
(i) Debtor will timely pay all amounts due and
payable under the respective Promissory Notes pursuant to the terms thereof.
(ii) Debtor will preserve and maintain the tangible
Collateral in good working order, condition and repair, ordinary wear and tear
excepted, and will replace any worn out or obsolete tangible Collateral with
suitable replacement tangible Collateral of at least equal value and function to
the extent Secured Party deems such Collateral necessary for Debtor to continue
its business.
7
8
(iii) Debtor will provide to each Secured Party from
time to time, upon request, a listing of the Collateral specifying the physical
location and the current condition of each item thereof and permit each Secured
Party to inspect the Collateral upon reasonable notice during normal business
hours.
(iv) Debtor will diligently defend the Collateral
against any and all claims and demands whatsoever which are adverse to the
interest of Debtor or any Secured Party.
(v) Debtor will furnish to each Secured Party from
time to time, upon request, all books and records and other information
concerning the Collateral and will allow each Secured Party or its agents to
inspect and copy, or will furnish each Secured Party with copies of, all such
books and records and other information pertaining to the Collateral.
(vi) Debtor will execute and deliver to Agent,
promptly upon request, appropriate UCC financing statements in customary
recordable form necessary to properly perfect the security interest granted
hereby.
(vii) Upon request of each Secured Party, Debtor will
promptly execute and deliver to Agent, with a copy to each Secured Party, any
and all such further instruments and documents and shall take such further
action requested by each Secured Party as may be necessary or desirable in the
reasonable judgment of each Secured Party to retain, maintain and perfect the
first priority perfected security interest granted herein.
(viii) Debtor will use the Collateral only in
connection with its business, and for no other purpose, without the prior
written consent of each Secured Party.
(ix) Debtor will promptly notify each Secured Party
of any material change in any fact or circumstance warranted or represented by
Debtor in this Agreement or if any Event of Default (as hereinafter defined)
occurs.
(x) Unless otherwise permitted by the Debtor's Board
of Directors in writing, Debtor will insure the tangible Collateral at its
expense, and will maintain with sound and reputable insurance companies
reasonably satisfactory to each Secured Party, insurance policies with respect
to all of such insurable Collateral against risk of fire, storm, theft,
vandalism and other customary insurable casualties in an amount equal to the
full insurable fair market value thereof. Such insurance shall be payable to
Agent and Debtor as their interests may appear, and all policies of insurance
shall provide for prior notice to each Secured Party of any cancellation. Upon
execution of this Agreement, and prior to the expiration date of any such policy
of insurance, Debtor shall furnish to each Secured Party a certificate or other
evidence satisfactory to each Secured Party verifying that the foregoing
insurance is in full force and effect. In case of loss, Agent shall be entitled
to receive the insurance proceeds and apply them according to the Application of
Payments terms set forth in Section 4 above; provided, however,
8
9
if an Event of Default (as hereinafter defined) has not occurred, the insurance
proceeds may be applied by Debtor to the replacement and repair of the
Collateral in a manner reasonably acceptable to each Secured Party. Debtor
hereby authorizes Agent, after an Event of Default has occurred, to act as
Debtor's attorney-in-fact and agent for purposes of settling any claims in
connection with said insurance and to endorse any check or draft in connection
therewith for and on behalf of Debtor for the purpose of protecting the Secured
Parties' security interest in the Collateral and the full and timely payment of
all of the Secured Debt.
(xi) Debtor will promptly pay when due all taxes
assessed on or with respect to the Collateral and will timely and properly file
all tax returns and reports required by applicable law to be filed by Debtor
with the appropriate governmental agency and will pay all taxes required to be
paid by Debtor as and when due, along with all assessments made against Debtor
or the Collateral by any governmental authority.
(xii) Debtor will maintain its existence, in good
standing, in the jurisdiction of its organization, and in each other
jurisdiction in which Debtor is required by applicable law to be qualified as a
foreign corporation.
(xiii) Unless otherwise agreed by each of the Secured
Parties in writing, Debtor will furnish to each Secured Party within thirty (30)
days after the close of each calendar month, copies of Debtor's unaudited profit
and loss statement for the month then ended along with its balance sheet as of
the close of such calendar month, all prepared in accordance with generally
accepted accounting principles, consistently applied. Within sixty (60) days
after the close of each fiscal year, Debtor will furnish each Secured Party with
copies of its audited financial statements, all prepared in accordance with
generally accepted accounting principles consistently applied.
(xvi) Debtor will maintain good and reliable records,
in accordance with prudent business practices, with respect to its Accounts, and
will furnish to each Secured Party, upon request, a reconciliation of all
Accounts, including an aging of the Accounts, and such other information as each
Secured Party may reasonably request. Debtor agrees to stamp, in a form and
manner reasonably satisfactory to each Secured Party, Debtor's Accounts ledger
and other books and records pertaining to the Accounts, with an appropriate
reference to the fact that the Accounts and the proceeds thereof have been
assigned as collateral to Agent.
(b) NEGATIVE COVENANTS. Debtor further covenants and agrees
with each Secured Party that so long as this Agreement is in effect, Debtor will
not, without the prior written consent of each Secured Party:
(i) sell, pledge, lease, license, encumber, transfer,
hypothecate or otherwise dispose of all or any portion of the Collateral, except
for fair value in the ordinary course of business or Collateral which has been
disposed of because it is obsolete or damaged;
(ii) sign or file, or authorize the signing or filing
of, any document or
9
10
instrument creating or perfecting any other security interest or lien in all or
any portion of the Collateral except in favor of Agent as required hereby and
except for the Loan and Security Agreement, dated of the date hereof between
Debtor and Acxiom, and any documents and instruments executed in connection
therewith;
(iii) use or permit the Collateral to be used in any
manner which could create waste or constitute a violation of any applicable
statute, rule, regulation, ordinance or order applicable to Debtor or the
Collateral;
(iv) consummate or enter into any agreement to
consummate any merger or consolidation or acquisition of all or any substantial
part of the assets of any Person;
(v) sell, license, lease or otherwise transfer or
dispose of all or substantially all of its assets;
(vi) except for the endorsement of checks for
collection in the ordinary course of business, incur, assume, guarantee,
endorse, purchase, or otherwise become or remain liable with respect to any
indebtedness, obligation or other liability of any other Person, including
without limitation, any officer or owner of Debtor or any affiliate thereof;
(vii) declare any dividends on, or make any payment
or distribution with respect to any ownership interest in Debtor, or in
connection with the purchase, redemption or other acquisition of any capital or
other ownership interest of Debtor or make any other distribution in respect
thereof, directly or indirectly, in cash or property, except as permitted by the
Bylaws and in a manner which would not individually or in the aggregate likely
impair the ability of Debtor to satisfy in full all of the Secured Debt;
(viii) release or terminate any rights of material
value; or
(ix) otherwise take or omit to take any action which
would cause Debtor to be unable to pay in full the Secured Debt in accordance
with the terms of the Promissory Notes.
8. EVENTS OF DEFAULT. The occurrence of any one or more of the
following shall constitute an "EVENT OF DEFAULT" hereunder:
(a) nonpayment of any portion of the principal or interest
under any of the Promissory Notes within ten (10) days after the due date
thereof;
(b) the occurrence of any other event which would permit a
holder of any Promissory Note to accelerate payment thereof;
(c) the breach by Debtor of any representation, warranty,
covenant or other agreement contained herein or in any certificate, report or
other document delivered by Debtor to
10
11
any Secured Party pursuant to this Agreement and failure to cure same to the
reasonable satisfaction of each Secured Party within ten (10) days after written
notice thereof;
(d) any other material debt or obligation of Debtor becoming
or being declared due and payable prior to the express maturity thereof or not
having have been paid as and when due, unless Debtor is contesting such
liability in good faith by appropriate proceedings;
(e) Debtor (i) suspending or discontinuing its business, (ii)
making an assignment for the benefit of creditors, (iii) generally not paying
its debts as such they become due, (iv) admitting in writing an inability to pay
its debts as they become due, (v) filing a voluntary petition in bankruptcy,
(vi) becoming insolvent, (vii) filing any petition or answer seeking for itself
any reorganization, arrangement, composition, readjustment of its debts or for
liquidation, dissolution or other similar relief, (viii) petitioning or applying
to any court for any receiver, custodian, or trustee for all or substantially
all of its assets or be the subject of any such proceeding filed against it,
(ix) filing an answer admitting or not contesting the material allegations of
any such petition filed against it or any order, judgment, or decree approving
such petition in any such proceeding, (x) seeking, approving, consenting to, or
acquiescing in any such proceeding for the appointment of any such trustee,
receiver, custodian, liquidator or agent for it or any substantial part of its
property or if an order is entered appointing any such trustee, receiver,
custodian, liquidator or agent, or (xi) taking any formal action for the purpose
of effectuating any of the foregoing;
(f) an order for relief being entered under the United States
Bankruptcy laws or if any other decree or order is entered by a court having
jurisdiction (i) adjudging Debtor a bankrupt or insolvent, (ii) approving as
properly filed a petition seeking reorganization, liquidation, arrangement,
adjustment or composition of Debtor or its property under the United States
bankruptcy laws or any other applicable federal or state law, (iii) appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator (or other
similar official) for the Debtor or for any substantial part of Debtor's
property, or (iv) ordering the winding up or liquidation of the affairs of
Debtor;
(g) any judgment or decree against Debtor remaining unpaid,
unstayed on appeal, undischarged, unbonded or undismissed for a period of ten
(10) days or more; or
(h) any other event or circumstance which causes any Secured
Party to reasonably believe that the prospect for payment of all of the Secured
Debt is impaired and because of which any Secured Party reasonably declares
itself insecure.
11
12
9. RIGHTS OF SECURED PARTIES AND AGENT UPON THE OCCURRENCE OF AN EVENT
OF DEFAULT.
(a) Upon the occurrence of an Event of Default, and at any
time thereafter, any Secured Party may, at its option, declare the Promissory
Note payable to it and any other then outstanding Secured Debt owed to it
immediately due and payable notwithstanding any of the terms thereof (in which
event all the Promissory Notes shall simultaneously therewith become due and
payable), whereupon Agent may exercise any rights and remedies available to it
or any Secured Party under this Agreement, under the UCC, or otherwise available
at law or in equity, including, without limitation, the right to enter upon any
of the premises of Debtor, with or without process of law, and take immediate
possession of and remove the Collateral or any part thereof and collect and
receive all income, revenues, payments and proceeds therefrom, and to exercise
all of Debtor's rights with respect thereto. Upon the occurrence of an Event of
Default, and at any time thereafter, Debtor shall, upon Agent's request,
assemble the Collateral (and all books, records and documents relating thereto)
and make such items available to Agent at a place designated by Agent which is
reasonably convenient to both parties. Without removal, Agent may render any
Equipment or other tangible Collateral unusable and may dispose of such
Equipment or other tangible Collateral at Debtor's business premises as provided
under the UCC.
(b) Upon the occurrence of an Event of Default, and at any
time thereafter, Agent may, at its option, sell, lease, license or otherwise
dispose of all or any portion of the Collateral (and/or exercise any of Debtor's
rights with respect thereto) in any commercially reasonable manner. Disposition
of the Collateral may be made by any one or more public or private proceedings
upon any one or more contracts. Any such sale or disposition may be made in
whole, in part, in units, or in parcels, and at any time and place reasonably
designated by Agent. Any such sale or disposition may be for cash, upon credit,
or upon such other terms and conditions as Agent may reasonably determine.
(c) Unless the Collateral is perishable or threatens to
decline speedily in value or is of a type customarily sold on a recognized
market, reasonable notification of the time and place of any public sale or
reasonable notification of the time after which any private sale or other
intended disposition is to be made shall be sent by Agent to Debtor unless
Debtor after the occurrence of an Event of Default shall have signed a statement
renouncing or modifying its right to notification of sale. The requirements of a
reasonable notice hereunder shall be met if such notice is mailed by ordinary
mail, postage prepaid, addressed to Debtor at its business address described
herein, at least ten (10) days before the time of such sale or disposition.
(d) The Secured Parties, individually or through their Agent,
shall have the right to buy all or any portion of the Collateral at any public
sale and if the Collateral is of the type customarily sold in a recognized
market or is of a type which is the subject of widely distributed price
quotations, the Secured Parties may purchase all or any part of the Collateral
at any private sale.
12
13
(e) Debtor acknowledges that when all or any portion of the
Collateral is disposed of by Agent after the occurrence of an Event of Default,
such disposition shall transfer to any purchaser for value all of Debtor's
rights and interests therein and any such purchaser shall take free of all
rights and interests of Debtor in such property.
(f) Upon the occurrence of an Event of Default, and at any
time thereafter, Agent shall have the right to notify persons obligated to
Debtor on any accounts to make payment thereof directly to Agent and Agent may
take control of all the proceeds of the accounts. After the occurrence of an
Event of Default, Debtor will not, without the prior written consent of the
Secured Parties, grant any extension of the time for payment of any of the
accounts receivable, compromise or settle any accounts receivable for less than
the full amount thereof, or release wholly or partly any person liable for the
payment thereof or allow any credit or discount whatsoever thereon.
10. APPLICATION OF PROCEEDS AND DEFICIENCY. The proceeds of any
disposition of all or any portion of the Collateral shall be applied in the
following order:
(a) First, to the payment of all reasonable expenses of
retaking, holding, preparing the Collateral for sale, lease or license, and
selling, leasing, licensing or otherwise disposing of the Collateral, including
without limitation reasonable attorney's fees and other reasonable costs
incurred by Agent in connection therewith;
(b) Second, to the full and complete satisfaction and payment
of the Promissory Notes and all other then outstanding Secured Debt, according
to the Order of Advancement made by the respective Secured Parties;
(c) Third, to the satisfaction of any indebtedness secured by
any subordinate security interest in the Collateral if written notification of
demand therefor is received by Agent before distribution of the proceeds is
completed; and
(d) Fourth, any surplus shall be remitted by Agent to Debtor
within thirty (30) days after payment of all of the foregoing. In the event
there is a surplus and any other person makes a claim to the surplus amount,
Agent may hold said sum (without liability for interest or otherwise) or
institute an interpleader action and deposit said sum with an appropriate court
of competent jurisdiction until such time as the rights in such surplus are
fully and finally determined by a final nonappealable decision of a court of
competent jurisdiction or by agreement of all interested parties.
To the extent the proceeds from the disposition of the Collateral are
insufficient to satisfy items 10(a) and (b) above, Debtor shall remain liable to
each Secured Party for the payment of such deficiency, with interest equal to
the greater of (i) the interest rate on the Promissory Note in question and (ii)
ten percent (10%) per annum.
11. POWER OF ATTORNEY. Debtor hereby makes, constitutes and appoints
Agent as its
13
14
true and lawful agent and attorney in fact, with full power of substitution, and
in Debtor's name, place and stead after the occurrence of an Event of Default
(i) to collect, pursue collection of, and receive payment for any and all
income, proceeds or payments with respect to any Collateral and to exercise any
and all of Debtor's rights relating thereto; (ii) to endorse the name of Debtor
upon any notes, checks, acceptances, drafts, money orders, instruments or other
documents relating to the Collateral, or the income, proceeds or payments with
respect thereto, (iii) to exercise, waive, xxx for, settle, adjust, or
compromise any claims or rights with respect to the Collateral; and (iv) to take
any action in the name and on behalf of Debtor to fulfill any representation,
warranty, covenant or agreement of Debtor contained herein or as may be
necessary or appropriate to carry out the purposes and intent of this Agreement
and to perfect and protect Agent's security interest in the Collateral and its
rights therein. Debtor agrees that neither Agent, any other Secured Party, nor
any of their agents, designees, officers or employees will be liable for any
acts of commission or omission, or for any error of judgment or mistake of facts
or law with respect to the exercise of said power of attorney save and except
fraud, gross misconduct, or a knowing violation of law. The power of attorney
granted herein is coupled with an interest and shall be irrevocable during the
term of this Agreement.
12. DURATION. This Agreement shall continue in full force and effect,
and the security interest granted hereby and the representations, warranties,
covenants and obligations of Debtor hereunder and all the terms, conditions and
provisions hereof shall continue to be fully operative until the latest of (i)
the time when Debtor shall have fully paid and discharged all sums due and
payable pursuant to the Promissory Notes and any other outstanding Secured Debt,
(ii) the receipt of at least $1,250,000 of additional capital through the sale
of the Debtor's Preferred Stock to one or more investors at a price of at least
$1,000 per share, or (iii) Agent shall release the security interests of record
by recording a UCC termination statement in all offices where UCC financing
statements were filed to perfect same. Debtor agrees that to the extent a
payment or payments to Agent or any Secured Party is subsequently invalidated,
set aside or otherwise required to be repaid, the obligation or part thereof
intended to be satisfied, this Agreement and the security interest in the
Collateral granted to Agent hereby, shall be revived and continued in full force
and effect as if said payment had not been made and as if there had been no
termination of this Agreement.
13. MISCELLANEOUS.
(a) ASSIGNMENT. This Agreement and the rights, obligations and
duties of Debtor hereunder shall not be assignable or otherwise transferable by
Debtor.
(b) FEES OF LEGAL COUNSEL. In the event any of the Secured
Parties shall employ legal counsel to protect its rights hereunder or to enforce
any term or provision hereof or to protect its interest in the Collateral, such
attorney's fees and other legal expenses shall become part of the Secured Debt
and shall be payable by Debtor to each Secured Party upon demand, with interest
from the date of demand until paid at the rate of ten percent (10%) per annum.
(c) FURTHER ASSURANCES. Debtor agrees that from time to time
hereafter, upon
14
15
request, it will execute, acknowledge and deliver such other instruments and
documents and take such further action as may be reasonably necessary to carry
out the intent of this Agreement.
(d) MODIFICATION. No term or provision contained herein may be
modified, amended or waived except by written agreement or consent signed by the
party to be bound thereby.
(e) BINDING EFFECT AND BENEFIT. This Agreement shall inure to
the benefit of, and shall be binding upon, the parties hereto, their successors
in interest and permitted assigns.
(f) HEADINGS AND CAPTIONS. Subject headings and captions are
included for convenience purposes only and shall not affect the interpretation
of this Agreement.
(g) NOTICE. All notices, requests, demands and other
communications permitted or required hereunder shall be in writing, and either
(i) delivered in person, (ii) sent by express mail or other overnight delivery
service providing receipt of delivery, (iii) mailed by certified or registered
mail, postage prepaid, return receipt requested or (iv) sent by facsimile
transmission as follows:
If to Debtor, addressed or delivered in person to:
Digital Asset Management, Inc.
00 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxx, President
Fax: 000-000-0000
With a copy to:
Kronish, Lieb, Weiner & Xxxxxxx, LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxx X. Xxxxxx, Esq.
Fax: 000-000-0000
If to Agent or any Secured Party, addressed or delivered in
person to:
Acxiom Corporation
000 Xxxxxxxxxx Xxxxxxxxx
X.X. Xxx 0000
Xxxxxx, XX 00000-0000
Attn: Xxxx Xxxxxxxx, Group Leader
Fax: 000-000-0000
15
16
With a copy to:
Friday, Xxxxxxxx & Xxxxx
2000 First Commercial Building
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Fax: 000-000-0000
and
PC411, Inc.
000 XX Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx, XX 00000
Attn: X. Xxxxxx Xxxxxxxx III
Vice President and Chief Financial Officer
Fax: 000-000-0000
With a copy to:
Morse, Zelnick, Rose & Lander
000 Xxxx Xxx.
Xxx Xxxx, XX 00000-0000
Attn: Xxxx X. Xxxxxxxxxxx, Esq.
Fax: 000-000-0000
and
Xxxx Xxxxx
00 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Fax: 000-000-0000
With a copy to:
Kronish, Lieb, Weiner & Xxxxxxx, LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxx X. Xxxxxx, Esq.
Fax: 000-000-0000
or to such other address as any party may designate by like
notice.
16
17
Any such notice or communication, if given or made by prepaid,
registered or certified mail or by recorded express delivery, shall be deemed to
have been made when actually received, but not later than three (3) business
days after the same was properly posted or given to such express delivery
service, and if made properly by facsimile transmission such notice or
communication shall be deemed to have been made at the time of dispatch.
(h) SEVERABILITY. If any portion of this Agreement is held
invalid, illegal or unenforceable, such determination shall not impair the
enforceability of the remaining terms and provisions herein, which shall remain
effective, and to this end this Agreement is declared to be severable.
(i) TIME FOR PERFORMANCE. Time is of the essence in this
Agreement.
(j) WAIVER. No waiver of a default, breach or other violation
of any provision of this Agreement shall operate or be construed as a waiver of
any subsequent default, breach or other violation or limit or restrict any right
or remedy otherwise available. No delay or omission on the part of Agent or any
Secured Party to exercise any right or power arising by reason of a default
shall impair any such right or power or prevent its exercise at any time during
the continuance of such default.
(k) RIGHTS AND REMEDIES CUMULATIVE. The rights and remedies of
each Secured Party expressed herein are cumulative and not exclusive of any
rights and remedies otherwise available.
(l) GENDER AND PRONOUNS. Throughout this Agreement, the
masculine shall include the feminine and neuter and the singular shall include
the plural and vice versa as the context requires.
(m) ENTIRE AGREEMENT. This Agreement, the Promissory Notes,
and the other agreements and documents herein referenced constitute the entire
agreement of the parties and supersede any and all other prior agreements, oral
or written, with respect to the subject matter contained herein.
(n) GOVERNING LAW. This Agreement shall be subject to and
governed by the laws of the State of Connecticut.
(o) INCORPORATION BY REFERENCE. All exhibits and documents
referred to in this Agreement shall be deemed incorporated herein by any
reference thereto as if fully set out.
(p) COUNTERPARTS. This Agreement may be executed in one or
more counterparts (all counterparts together reflecting the signature of all
parties) each of which shall be deemed an original, and all of which together
shall constitute one and the same instrument.
(q) AUTHORITY. Each individual signing this Agreement in a
representative capacity acknowledges and represents that he/she is duly
authorized to execute this Agreement in
17
18
such capacity in the name of, and on behalf of, the designated corporation,
partnership, limited liability company, or other entity.
(r) DEBTOR'S FAILURE TO PAY COSTS OR EXPENSES. If Debtor fails
to pay any cost or expense required hereunder to be paid by Debtor, (including,
without limitation, insurance and taxes) any Secured Party may, at its option,
pay such cost or expense on behalf of Debtor, and in such event the amount so
paid by that Secured Party shall become part of that Secured Party's Secured
Debt hereunder and shall be payable by Debtor to that Secured Party upon demand,
with interest at the rate of ten percent (10%) per annum until paid.
14. OPINION OF COUNSEL. As a condition to each Secured Party's
obligation to fund the Loan contemplated hereby, Debtor shall deliver to each
Secured Party opinions from legal counsel in a form substantially similar to
that attached hereto as Exhibits A and B, respectively.
15.1 APPOINTMENT, POWERS AND IMMUNITIES. Each Secured Party
hereby irrevocably appoints and authorizes Agent to act as its agent with
respect to the Collateral, with such powers as are specifically delegated to the
Agent by the terms of this Agreement together with such other powers as are
reasonably incidental thereto. The Agent shall have no duties or
responsibilities or authority except those expressly set forth in this Agreement
and shall not be a trustee for the Secured Parties or otherwise owe a fiduciary
duty to the other Secured Parties. The Agent shall not be responsible to Secured
Parties for any recitals, statements, representations or warranties contained in
this Agreement, the Notes, or any certificate or other document referred to or
provided for in, or received by any of them under, this Agreement or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other document referred to or provided for herein or for
the collectibility of the Loans or for the validity or effectiveness of any
assignment, mortgage, pledge, security agreement, financing statement, document
or instrument, or for the filing, recording, re-filing, continuing or
re-recording of any document or for any failure by Debtor to perform any of its
agreements, covenants or obligations hereunder. Agent may, employ agents and
attorneys-in-fact and shall not be answerable, except as to money or securities
received by it or its authorized agents in exchange for Collateral, for the
negligence or misconduct of any such agents or attorneys-in-fact selected by it
with reasonable care. Neither Agent nor any of its directors, officers,
employees or agents shall be responsible to Secured Parties for any action taken
or omitted to be taken by it or them hereunder in connection herewith or
therewith, except for its or their own gross negligence or willful misconduct.
18
19
15.2 RELIANCE BY AGENT. Except to the extent that such
reliance constitutes gross negligence or willful misconduct, Agent shall be
entitled to rely upon any certification, notice or other communication
(including any thereof by telephone, telecopier, telex, telegram or cable)
believed by it to be genuine and correct and to have been signed or sent by or
on behalf of the proper person or persons, and upon advice and statements of
legal counsel, independent accountants and other experts selected by Agent. As
to any matters not expressly provided by this Agreement or the other instruments
and agreements executed in connection with the Loan, Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder in accordance
with written instructions signed by the Secured Parties.
15.3 EVENTS OF DEFAULT. Agent shall not be deemed to have
knowledge of the occurrence of a Default or an Event of Default unless Agent has
itself issued a notice, or has received notice from Debtor or a Secured Party
specifying such Default or Event of Default and stating that such notice is a
"Notice of Default". In the event that Agent receives such a notice, Agent shall
provide the Secured Parties with prior written notice of any actions or
omissions proposed to be taken by Agent with respect thereto, unless the giving
of such notice is impracticable for reasons of safety or preservation of
Collateral. The foregoing notwithstanding, Agent and each of the Secured Parties
hereby agrees to share with one another any and all material information
regarding Debtor which may come into the possession of Agent or any Secured
Party from time to time, provided that neither Agent nor the Secured Parties
shall be under any duty or obligation to provide any analysis of any such
information so provided, or to determine therefrom whether a Default or an Event
of Default has occurred.
15.4 WAIVERS; AMENDMENTS; EVENT OF DEFAULT.
(a) Upon the giving or receipt of any Notice of Default
required under Section 15.3 above, Agent, for itself and on behalf of each
Secured Party, shall (subject to the provisions of this Section 15) take such
action or actions, assert such rights, exercise such remedies, or refrain from
taking such actions with respect thereto, as Agent shall deem advisable,
including, without limitation, (i) the institution of suit, and/or the
commencement of foreclosure proceedings in respect of the Collateral or (ii) the
waiving of any Default(s) or Event(s) of Default.
(b) Each of the Secured Parties shall, at all times, act in
good faith to mutually agree upon actions to be taken in respect of the
Collateral. In the event and to the extent that Agent receives conflicting
instructions as to any action to be taken, Agent shall use its good faith
judgment to determine and implement those specific actions requested by Secured
Parties.
(c) Except as otherwise specified in this Section 15, Agent
shall, and shall be permitted in its discretion to, enforce the provisions,
rights and remedies pursuant to this Agreement in a manner consistent herewith
and therewith and in Agent's good faith judgment.
19
20
(d) Nothing contained in this Section 15 shall be deemed to
grant to Debtor any indulgence or grace period in respect of any of its
covenants or obligations under this Agreement (or any right to expect or receive
any such indulgence or grace period), except as otherwise specifically provided
in other Sections of this Agreement. Nothing contained in this Section 15 shall
be deemed to prohibit or impair Agent, regardless of the lack of any requisite
consents of Secured Parties, from taking action in respect of any of the
Collateral if same are perishable or threaten to decline speedily in value.
15.5 AGENT'S RIGHTS AS A SECURED PARTY. With respect to the
Loan made by it, Agent in its capacity as a Secured Party hereunder shall have
the same rights and powers hereunder as any other Secured Party, and may
exercise the same as though it were not acting as Agent, and the term "Secured
Party" or "Secured Parties" shall, unless the context otherwise indicates,
include the Agent in its individual capacity.
15.6 SUCCESSOR AGENT. Agent (a) may resign at any time by
giving thirty (30) days' written notice thereof to Secured Parties and Debtor,
and (b) shall be deemed to have resigned upon any bankruptcy, insolvency or
receivership of Agent; provided, that any such resignation shall be effective at
the time specified below. Upon any such resignation, PC411 is hereby appointed
successor agent. If PC411 does not wish to serve as successor agent, then Agent
may, on behalf of the Secured Parties, appoint a successor agent, which shall be
a commercial bank organized or licensed under the laws of the United States of
America or of any State thereof and having a combined capital and surplus of at
least $50,000,000. Upon the acceptance of its appointment as a successor agent,
such successor agent shall thereupon succeed to and become vested with all the
rights and duties of Agent, and Agent shall be discharged from its duties and
obligations hereunder. After Agent's resignation hereunder as Agent, the
provisions of this Section 15 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Agent. The provisions of this Section
15.6 shall apply with respect to the successor agents and its successors.
15.7 SEVERAL LIABILITY OF SECURED PARTIES; FAILURE TO LEND.
(a) No Secured Party shall incur or assume any liability or
obligation to Debtor by reason of any other Secured Party failing or refusing to
make Advances or otherwise lend the amounts required by this Agreement; it being
understood and agreed that all obligations of each Secured Party to make the
Loan are several, and not joint and several.
(b) In the event and to the extent that any Secured Party
shall, for any reason or no reason, fail or refuse to make its pro rata portion
of the Advances otherwise required to be made hereunder, then the other Secured
Parties may (but shall not be obligated to) make such Advances on behalf of the
defaulting Secured Party; in which event such non-defaulting Secured Party may
be reimbursed for any such Advances so made on behalf of the defaulting Secured
Party out of the defaulting Secured Party's otherwise applicable share of the
initial proceeds of all payments and collections received from Debtor or out of
the initial net proceeds received from the sale or liquidation of any Collateral
hereunder in the event of a foreclosure thereof.
20
21
15.8 SHARING AND REMITTANCE OF PAYMENTS AND COLLATERAL.
(a) All collections received by Agent or any Secured Party in
respect of Debtor shall be applied in accordance with this Agreement, and all
collections applied to Advances and/or interest thereon or fees in respect
thereof shall be allocated ratably among the Secured Parties in proportion to
their relative interests in the Loan, but only in the Order of Advancement set
forth in Section 3 hereof and in accordance with the terms of the Notes, by wire
transfer of same-day Federal Reserve Funds for all fees, interest payments and
other amounts payable to the Secured Parties under this Agreement, including
amounts payable in respect of the principal amounts of, and accrued interest on,
the Loan. If requested by Agent, each Secured Party shall, promptly following
receipt of each payment under this Section 15.8(a), confirm its receipt by a
written acknowledgment telecopied to the Agent.
(b) If and to the extent that any payment received by any
Secured Party in respect of the Loan (whether principal, interest or otherwise)
shall be rescinded or must otherwise be returned for any lawful reason, then
each of the Secured Parties who received payment shall, upon notice thereof,
remit its proportionate share of the amount(s) so rescinded or returned.
(c) Except for any prepayments made by Debtor while no other
obligations shall be then due and payable (which prepayments shall be applied to
the Loan in the manner directed by Debtor), and any other payments received at
any time when no other obligations shall be then due and payable (which payments
shall be applied in reduction of the outstanding Advances), all payments
received by Agent or any Secured Party from Debtor shall be applied and
disbursed by Agent to the Secured Party, ratably in proportion to their relative
interests therein, in accordance with the terms of this Agreement the Notes.
The foregoing notwithstanding, Agent shall be entitled, prior to any
application of payments hereunder, to receive reimbursement out of such payments
for any previously unreimbursed reasonable costs and expenses incurred by Agent
pursuant to this Agreement.
(d) To the extent of any payments made by Debtor to Agent,
Debtor shall be entitled to presume that such payments have effectively been
made to Secured Parties under this Agreement, and Debtor shall have no liability
to any Secured Party with respect to any payments misapplied, misappropriated,
or otherwise improperly disbursed or not disbursed by Agent.
21
22
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the day and year aforesaid.
DEBTOR:
DIGITAL ASSET MANAGEMENT, INC.
By: /s/ Xxxx Xxxxx
------------------------------
Xxxx Xxxxx, President
SECURED PARTIES:
ACXIOM CORPORATION
By: /s/ Xxxx Xxxxxxxx
------------------------------
Xxxx Xxxxxxxx, Group Leader
Title:
----------------------------
PC411, INC.
By: /s/ X. Xxxxxx Xxxxxxxx III
------------------------------
X. Xxxxxx Xxxxxxxx III, Vice President and
Chief Financial Officer
/s/ Xxxx Xxxxx
------------------------------
Xxxx Xxxxx, Individually
22
