STOCK PURCHASE AGREEMENT
THIS AGREEMENT, dated as of June 12, 2000 between JELD-WEN, inc., an Oregon
corporation, (the "Seller"), Trendwest Resorts, Inc., an Oregon corporation (the
"Buyer") and Trendwest Investments, Inc., a Washington corporation (the
"Company").
WITNESSETH:
WHEREAS, the Seller is the owner of all the issued and outstanding shares
of capital stock of the Company (the "Stock"); and
WHEREAS, Buyer desires to buy from the Seller and the Seller desires to
sell to Buyer one hundred percent (100%) of the Stock upon the terms and
conditions and in reliance upon the representations and warranties set forth in
this Agreement;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
ARTICLE 1
DEFINITIONS
As used in this Agreement, the following terms shall have the respective
meanings set forth below (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
"Closing" has the meaning specified in Article 3 hereof.
"Closing Date" has the meaning specified in Article 3 hereof.
"Company" means Trendwest Investments, Inc., a Washington corporation.
"Confidential Information" has the meaning specified in Article 11 hereof.
"Effective Date" has the meaning specified in Article 3 hereof.
"Purchase Price" has the meaning specified in Article 4.1 hereof.
"Stock" has the meaning specified in the recitals of this Agreement.
ARTICLE 2
AGREEMENT TO SELL AND PURCHASE
Upon the terms and conditions set forth in this Agreement, at Closing
Seller shall sell, transfer and deliver to Buyer and Buyer shall purchase from
Seller the Stock, free and clear of all liens, claims, options, charges,
encumbrances, preferential rights and restrictions on transfer whatsoever (other
than restrictions, if any, under applicable federal and state securities laws
and existing or contemplated shareholders agreements).
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ARTICLE 3
CLOSING DATE AND EFFECTIVE TIME
The sale and purchase of the Stock as contemplated by this Agreement (the
"Closing") shall take place at the Seller's offices located at 0000 Xxxxxxxx
Xxxx., Xxxxxxx Xxxxx, Xxxxxx at 11:00 a.m. (local time) on June12, 2000 (or such
other place, date and time as shall be agreed upon by Buyer and the Sellers).
The date of the Closing is referred to in this Agreement as the "Closing Date".
When completed, the Closing shall be effective as of 12:01 a.m. (local time) on
June 20, 2000 (the "Effective Date").
ARTICLE 4
PURCHASE PRICE AND ADJUSTMENTS
4.1 Amount. The aggregate consideration to be paid by Buyer to the Seller
for the Stock shall be the sum of Forty Seven Million Five Hundred Ninety-Nine
Thousand Nine Hundred Five and 95/100ths Dollars ($47,599,905.95) less Four
Million Eight Hundred Sixty-Eight Thousand Nine Hundred Five and 95/100ths
Dollars ($4,868,905.95) of debt assumed by the Company for a net purchase price
of Forty Two Million Seven Hundred Thirty-One Thousand Dollars and no/100ths
($42,731,000.00) (the "Purchase Price"). The Purchase Price shall be payable in
Twenty Five Million and no/100ths Dollars ($25,000,000.00) in immediately
available funds at the Closing and Seventeen Million Seven Hundred Thirty-One
Thousand Dollars ($17,731,000.00) in a promissory note (the "Note"). The Note is
attached hereto as Schedule 4.1.
ARTICLE 5
CONDUCT AND TRANSACTIONS PRIOR TO CLOSING
The Seller covenants and agrees with the Buyer that, prior to the Closing,
unless the Buyer shall otherwise consent in writing and except as otherwise
contemplated by this Agreement, the Seller shall comply, and shall cause the
Company to comply, with each of the following:
5.1 Access to Records and Properties of the Company. Seller shall give
Buyer and its representatives full access during normal business hours to all
premises, books and records of the Company.
5.2 Conduct of the Company. The Seller and the Company agree that from June
1, 2000 to the Closing Date, the Company shall not:
(a) amend its Articles of Incorporation or Bylaws or take any other
action which might terminate or impair its corporate existence, rights or
franchises;
(b) issue or contract or agree to issue or purchase any shares of
capital stock of the Company or securities exchangeable for or convertible or
exercisable into capital stock of the Company, other than pursuant to existing
warranties and options or as otherwise contemplated in this Agreement;
(c) consolidate with or merge into any other corporation or permit any
other corporation to consolidate with or merge into it;
(d) split, combine, or reclassify any of its outstanding securities, or
declare, set aside, or pay any dividend or other distribution on, or make or
agree to commit to make any exchange for or redemption of any such securities,
whether payable in cash, stock or property, other than as contemplated in this
Agreement;
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(e) create, incur, assume, guarantee or otherwise become liable with
respect to any indebtedness for borrowed money other than in the ordinary course
of business;
(f) enter into any employment contract or any compensation, severance
or consulting agreement with any existing or prospective director, officer or
employee of the Company, other than in the ordinary course of business;
(g) lend any money in any material amount;
(h) increase the compensation payable or to become payable (including
any increase in the contractual term related thereto) to any director, officer,
or employee of the Company;
(i) adopt, enter into, or amend any bonus, profit sharing, stock
option, warrant, pension, retirement, deferred compensation, severance,
termination, or other employee benefit plan for the benefit or welfare of any
officer, director or employee of the Company, other than in the ordinary course
of business;
(j) purchase or otherwise acquire all or any substantial part of the
assets of any person, other than in the ordinary course of business;
(k) sell, lease, mortgage, encumber, or otherwise dispose of any
material portion of its assets or properties except for dispositions of obsolete
property or assets;
(l) make or commit to make any capital expenditures, capital additions
or capital improvements aggregating more than $100,000, other than in the
ordinary course of business; or
(m) enter into, or terminate, any contract, agreement, commitment or
understanding applicable to the Company with a value, cost, or commitment in
excess of $100,000 other than products or services for or sales to the Company's
customers made in the ordinary course of business.
5.3 Consents and Approvals. As soon as possible following the execution of
this Agreement, the Seller and Buyer shall each use reasonable efforts to obtain
the consent or approval of each person whose consent or approval shall be
required in order to permit the purchase and sale of the Stock as contemplated
herein, except for such consents the failure to obtain would not have a material
adverse effect on the properties, business or financial condition of the
Company. The Seller will use reasonable efforts, in good faith, to satisfy or
cause to be satisfied each of the conditions to Closing set forth in Article 8
hereof. Buyer will use reasonable efforts, in good faith, to satisfy or cause to
be satisfied each of the conditions to Closing set forth in Article 9 hereof.
5.5 No Inconsistent Actions. Buyer, the Company and the Seller will not
voluntarily undertake any course of action inconsistent with the provisions or
intent of this Agreement, and each such party will promptly do all acts and take
all such measures as may be appropriate to comply as soon as practicable with
the terms, conditions and provisions of this Agreement.
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ARTICLE 6
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER
Buyer hereby represents, warrants and covenants to the Seller as follows:
6.1 Organization, Standing and Authority. Buyer is a corporation, duly
organized and validly existing under the laws of the State of Oregon, and
possesses all requisite corporate power and authority to enter into and perform
this Agreement.
6.2 Litigation. There are no actions, suits, proceedings or governmental
investigations pending or, to the Knowledge of Buyer, threatened against Buyer
which materially adversely affects or might materially adversely affect any of
the properties, business or financial condition of Buyer, or which questions or
might question the validity of or Buyer's ability to consummate the transactions
described in this Agreement.
6.3 Compliance with Instruments. The execution, delivery and performance of
this Agreement by Buyer does not and will not conflict with or result in a
breach of or a default under, or give rise to any right of termination,
cancellation or acceleration with respect to, any of the terms, conditions or
provisions of any material indenture, contract, agreement, license, lease or
other instrument or obligation to which Buyer is a party or by which it is bound
or which affects materially the business or any property of Buyer or violates
any order, writ, injunction or decree applicable to Buyer or conflicts with or
results in a default under any provision of the Articles of Incorporation or
Bylaws of Buyer.
6.4 No Finders' Fees. Neither Buyer nor any person acting on Buyer's behalf
has employed any broker or finder or incurred any liability for any brokerage
fees or commissions or any finders' fees in connection with the negotiations
relative to this Agreement or the consummation of the transactions contemplated
hereby.
6.5 Authorization. The execution, delivery and performance of this
Agreement by Buyer have been duly and validly authorized by all necessary
corporate action on the part of Buyer and this Agreement is a valid, binding and
enforceable obligation of Buyer except as the enforcement thereof may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium and other laws
affecting or limiting the rights of creditors generally.
6.6 Financial Capacity. Buyer has the financial capacity to purchase the
Stock in the manner described herein from its own resources.
6.7 Notices and Consents. No notice or consent of any person or
governmental authority is required in connection with the execution, delivery
and performance of this Agreement by Buyer, other than notices which have been
given and consents which have been obtained prior to the execution of this
Agreement.
6.8 Investment. The Buyer (i) understands that the Stock has not been, and
will not be, registered under the Securities Act of 1933, as amended, or under
any state securities laws, and are being offered and sold in reliance upon
federal and state exemptions, (ii) is acquiring the Stock solely for its own
account for investment purposes, and not with a view to the distribution
thereof, (iii) is a sophisticated investor with knowledge and experience in
business and financial matters, (iv) has received certain information concerning
the Company and has had the opportunity to obtain additional information as
desired in order to evaluate the merits and the risks inherent in holding the
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Stock, (v) is able to bear the economic risk and lack of liquidity inherent in
holding the Stock, and (vi) is an "accredited investor" as that term is defined
under the Securities Act of 1933, as amended.
6.9 Disclosure and Reliance. The Buyer is not aware of any other matters or
liabilities, contingent or otherwise, which materially adversely affects or has
a substantial likelihood in the future of materially adversely affecting the
assets or business of the Buyer taken as a whole. No representation or warranty
by the Buyer in this Agreement, nor any statement or certificate furnished or to
be furnished to the Seller pursuant hereto, or in connection with the
transactions contemplated hereby, contains or will contain any untrue statement
of material fact, or omits or will omit to state a material fact known to the
Buyer necessary to make the statements contained herein or therein not
misleading. The representations and warranties made herein are made by Buyer
with the knowledge and expectation that the Company and the Seller is placing
reliance thereon.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLER
The Company, and the Sellers, to their knowledge, hereby warrant and
represent to Buyer as follows:
7.1 Organization, Standing and Authority of the Company. The Company is a
corporation duly organized and validly existing under the laws of the State of
Oregon. The Company possesses all requisite corporate power and authority to own
and hold under lease the properties it purports to own or hold under lease and
to transact the business it transacts.
7.2 Capitalization of the Company. Immediately prior to Closing, the
authorized capital stock of the Company will consist of 1,000 shares of common
stock, no par value per share, 1,000 shares of which shall be issued and
outstanding. All issued and outstanding shares of capital stock of the Company
are or shall be validly issued, fully paid and nonassessable at Closing. The
Company and the Seller consent to the transfer of the Stock in accordance with
this Agreement.
7.3 Title to the Stock. The Seller is and at Closing shall be the sole
beneficial owner and holder of record of the Stock being sold to Buyer
hereunder. The Stock being sold to Buyer is and at Closing shall be owned
(beneficially and of record) by the Seller free and clear of any mortgage, lien,
claim, charge, pledge, security interest, encumbrance or any restriction of any
kind or character whatsoever (other than restrictions, if any, under applicable
federal and state securities laws and existing or contemplated shareholders
agreements). All issuances and transfer of shares of the Stock are accurately
reflected in the Company's stock ledger. All shares of the Stock have been duly
and validly authorized and issued and, upon the transfer of such shares to Buyer
as contemplated by this Agreement, unencumbered title thereto will be vested in
Buyer. The Stock is not subject to any voting trust, voting agreement or other
agreement with respect to the voting thereof, nor is any proxy in existence with
respect to any shares thereof.
7.4 Company Assets. The Company has unencumbered title to all property and
assets of the Company, said assets attached as Schedule 7.4. Title to all real
property is covered by a policy of title insurance that will be transferred to
Buyer as of the Closing Date.
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7.5 Charter Documents of the Company. The Seller has delivered to Buyer
true and complete copies of the Articles of Incorporation and Bylaws of the
Company of the Company, as amended to the date hereof.
7.6 Compliance with Instruments. The Company is not in default under, or in
breach of any term or provision of, its Articles of Incorporation or Bylaws or
any material contract, lease, agreement or other instrument to which it is a
party or by which it or any of its properties or assets are bound, except where
such default or breach would not be or result in a material adverse effect.
7.7 Authorization by the Sellers and the Company. The Seller possesses all
requisite power and authority necessary to enter into and perform this
Agreement. The execution, delivery and performance of this Agreement by the
Seller and the Company have been duly and validly authorized by all necessary
action on the part of the Seller and the Company and this Agreement is a valid,
binding and enforceable obligation of the Seller and the Company except as the
enforcement thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting or limiting the rights of
creditors generally.
7.8 Officers and Directors of the Company. Schedule 7.8 hereto sets forth
the names of all officers and directors of the Company and the names of all
persons holding powers of attorney from the Company.
ARTICLE 8
CONDITIONS TO THE SELLERS' OBLIGATION TO CLOSE
The obligation of the Seller to transfer, assign and deliver the Stock to
Buyer pursuant hereto is subject to the satisfaction (unless waived in writing
by the Seller) of each of the following conditions at and as of the Closing:
8.1 Representations and Warranties Correct. The representations and
warranties of Buyer contained in Article 6 hereof shall be true and correct in
all material respects on and as of the date of this Agreement and at and as of
the Closing as though made at and as of the Closing, except as affected by the
transactions contemplated by this Agreement.
8.2 Performance of Obligations by Buyer. Buyer shall have performed and
complied with all agreements and conditions required to be performed or complied
with by it under this Agreement prior to or at the Closing.
8.3 Cash Payment. The Seller shall have received the sum of Twenty Five
Million Dollars ($25,000,000.00) represented by a deposit, in cash, by wire as
directed by Seller.
8.4 The Note. The Buyer shall have executed and the Seller received the
Note.
8.5 Consents and Notices. Buyer shall have obtained or effected all
consents, approvals, waivers, notices and filings required in connection with
the execution and delivery by Buyer of this Agreement or consummation by Buyer
of the transactions contemplated thereby, and any notice or waiting period
relating thereto shall have expired with all requirements lawfully imposed
having been satisfied in all material respects.
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8.6 Miscellaneous Documents. The Seller shall have received copies of all
documents required to evidence the existence of the Buyer, and the Buyer's
authority to execute, deliver and perform this Agreement.
ARTICLE 9
CONDITIONS TO BUYER'S OBLIGATIONS TO CLOSE
The obligation of Buyer to purchase the Stock from the Seller pursuant
hereto is subject to the satisfaction (unless waived in writing by Buyer) of
each of the following conditions at and as of the Closing:
9.1 Representations and Warranties Correct. The representations and
warranties of the Company and the Sellers contained in Article 7 hereof shall be
true and correct in all material respects on and as of the date of this
Agreement and at and as of the Closing as though made at and as of the Closing,
except as affected by the transactions contemplated by this Agreement.
9.2 Performance of Obligations by the Sellers. The Company and the Seller
shall have performed and complied with all agreements and conditions required to
be performed or complied with by them under this Agreement prior to or at the
Closing.
9.3 Miscellaneous Documents. Buyer shall have received copies of all
documents required to evidence the existence of the Company, and the Company's
and Seller's authority to execute, deliver and perform this Agreement.
9.4 Stock Certificates. The Seller shall have delivered to Buyer the
certificates evidencing the Stock to be sold to the Buyer duly endorsed for
transfer.
9.6 Consents and Notices. The Company and the Seller shall have obtained or
effected all material consents, approvals, waivers, notices and filings required
in connection with the execution and delivery by the Company and the Seller of
this Agreement or consummation by the Company and Seller of the transactions
contemplated hereby, and any notice or waiting period relating thereto shall
have expired with all requirements lawfully imposed having been satisfied in all
material respects.
ARTICLE 10
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
10.1 Survival. Subject in all respects to the other provisions of this
Article 10, the representations and warranties made in this Agreement shall
survive the Closing for a period of six (6) months.
10.2 Condition. Except as otherwise provided in this Agreement, the sale of
the Stock contemplated hereby is made "AS IS" and "WHERE IS" and without
representations or warranties of any kind or nature.
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ARTICLE 11
CONFIDENTIALITY COVENANT
Each party hereto will, and will cause its employees, agents, accountants,
legal counsel and other representatives to, hold in strict confidence in
perpetuity all Confidential Information (as hereinafter defined) and will not,
and will ensure that such other persons will not, disclose the same to any
person except only for any such disclosure as is reasonably necessary to carry
out this Agreement and the transactions contemplated hereby. The provisions of
this Article 11 shall be in addition to and shall not supersede any other
obligations that the parties may have entered into with respect to Confidential
Information or any other matters whatsoever. For purposes hereof, "Confidential
Information" shall mean all information of any kind concerning either the
Company or a party to this Agreement, or the properties or business of the
Company or any such party, obtained, directly or indirectly, from the Company or
any such party, or any of their respective employees, agents, accountants, legal
counsel or other representatives, except information which constitutes readily
ascertainable public information.
ARTICLE 12
INDEMNIFICATION
12.1 Buyer shall, and agrees to, indemnify, defend, and hold Seller and its
directors, officers and employees harmless against and in respect of all debts,
liabilities and obligations of the Company, the assets of the Company and Buyer
of any nature, whether accrued, absolute, contingent, or known or unknown,
arising on or resulting from events which occurred or failed to occur before and
after the Closing Date.
ARTICLE 13
MISCELLANEOUS PROVISIONS
13.1 Further Cooperation. After the Closing, each party, at the request of
the other and without additional consideration, shall execute and deliver or
cause to be executed and delivered from time to time such further instruments
and shall take such further action as the requesting party may reasonably
require in order to carry out more effectively the intent and purpose of this
Agreement.
13.2 Amendments and Waivers. Any term or provision of this Agreement may be
waived at any time by an instrument in writing signed by the party which is
entitled to the benefits thereof and this Agreement may be amended or
supplemented at any time by an instrument in writing signed by all parties
hereto. The failure in any one or more instances of a party to insist upon
performance of any of the terms, covenants or conditions of this Agreement, to
exercise any right or privilege conferred in this Agreement, or the waiver by
said party of any breach of any of the terms, covenants or conditions of this
Agreement, shall not be construed as a subsequent waiver of any such terms,
covenants, conditions, rights or privileges, but the same shall continue and
remain in full force and effect as if no such forbearance or waiver had
occurred.
13.3 Expenses. Buyer shall bear and pay all expenses incurred in connection
with this Agreement.
13.4 Assignment and Binding Effect. This Agreement shall be binding upon
and inure to the benefit of and be enforceable by each of the parties hereto and
their respective successors and assigns. Neither this Agreement nor any
obligation hereunder shall be assigned or assignable by the Seller or Buyer
without the prior written consent of the other parties.
13.5 Notices. All notices, consents, requests, instructions, approvals and
other communications provided for herein and all legal process in regard hereto
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shall be validly given, made or served if in writing and delivered personally or
sent by certified, overnight, or registered mail, postage prepaid, addressed as
follows:
To Seller: JELD-WEN, inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx, Xxxxxx 00000
Attn: Xxxx Xxxxxxxx
To the Company Trendwest Investments, Inc.
prior to Closing: 0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx, Xxxxxx 00000
ATTN: Xxxxx Xxxxxx
To Buyer and the Trendwest Resorts, Inc.
Company after 0000 Xxxxxxx Xxxx
Xxxxxxx: Xxxxxxx, Xxxxxxxxxx 00000
ATTN: Xxx X'Xxxx
or to such other address as any party hereto may, from time to time, designate
in writing delivered in a like manner. Notice given by mail shall be deemed to
be given on the date which is two business days following the date the same is
postmarked.
13.6 Entire Agreement. This Agreement, including the Schedules, constitute
the entire agreement between the parties hereto with respect to the transactions
contemplated hereby and supersedes and is in full substitution for any and all
prior agreements and understandings between any of said parties relating to such
transactions.
13.7 Descriptive Headings. The descriptive headings of the several Articles
of this Agreement are inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions hereof.
13.8 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Oregon, without reference to its choice
of law rules.
13.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
13.10 Attorney's Fees. In the event legal action or arbitration is taken to
enforce this Agreement or any provision thereof, or as a result of any breach of
warranty or representation or other default of either party, the prevailing
party in such action shall be entitled to receive its reasonable attorney's
fees, in addition to all other costs or charges allowed, which shall be fixed by
the court or arbitrator in which the suit or action, including any appeal
thereon, is tried, heard or decided.
13.11 Tax and Legal Counsel, Drafting. The parties acknowledge and agree:
(i) that each has been represented by counsel of their own choosing in the
negotiation and preparation of this Agreement; (ii) that they have read this
Agreement; (iii) that they have had the Agreement fully explained to them by
such counsel; and (iv) that they are fully aware of the contents and tax and
legal effect of this Agreement. All parties are deemed to be sophisticated
taxpayers and have consulted their own tax advisors with respect to this
Agreement. Further, both parties participated in the drafting of this Agreement
and neither shall be deemed its drafter or construed as causing any uncertainty
or ambiguity as to any of its provisions.
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13.12 Integration. This Agreement including the schedules hereto and all
documents and papers delivered pursuant hereto or referenced herein and any
written amendments hereof executed by the parties to this Agreement, constitutes
the entire agreement between the parties hereto with respect to the transactions
contemplated hereby and supersedes and is in full substitution for any and all
prior agreements and understandings between any of said parties relating to such
transactions.
13.13 Arbitration. The parties shall attempt to resolve any dispute under
this Agreement through good faith negotiation or mediation. In the event a
dispute involving a Claim is not resolved within twenty (20) days after it is
presented, any such dispute, controversy or claim, arising out of or related to
this Agreement or its breach shall be decided by binding arbitration in the City
of Portland, Oregon, in accordance with the rules of the American Arbitration
Association ("AAA") for expedited resolution of commercial disputes. There shall
be one arbitrator selected by the parties within 10 days of the arbitration
demand or if not, by the AAA (or other group having similar professional
credentials and mutually agreeable to the parties). Buyer and Sellers shall pay
on an equal basis the full cost of the arbitrator's fees and expenses. Judgment
upon any arbitration award may be entered and enforced in any court of competent
jurisdiction. The arbitrator shall not have the power to award punitive damages.
The parties agree that the decision of the arbitrator shall be the sole and
exclusive remedy between them regarding any dispute presented or pled before the
arbitrator.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SELLER: BUYER:
JELD-WEN, inc. Trendwest Resorts, Inc.
By: _____________________________ By: ____________________________
Xxxx Xxxxxxxx Xxxxxxx X. X'Xxxx
Its: Vice President Its: Chief Financial Officer
THE COMPANY:
Trendwest Investments, Inc.
By: _____________________________
Its: ____________________________
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Schedule 4.1
The Note
Page 11 of 13
Schedule 7.4
Company Assets
Page 12 of 13
Schedule 7.8
Officers and Directors of the Company
DIRECTORS
Xxxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxxxxx
Xxxxxx Xxxxxx
REGISTERED AGENT
Xxxxxx Pepper & Sheffelman PLLC, Seattle, Washington
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