BRIGHT PATTERN INC. Schedule of Exceptions
Exhibit 2.5
BRIGHT PATTERN INC.
Schedule of Exceptions
This Schedule of Exceptions is made and given pursuant to Section 2 and Section 3 of the Series A Preferred Stock Purchase Agreement, dated as of October __, 2013 (the “Agreement”), between Bright Pattern Inc. (the “Company”) and the Investors listed on Schedule A thereto. All capitalized terms used but not defined herein shall have the meanings as defined in the Agreement, unless otherwise provided. The section numbers below correspond to the section numbers of the representations and warranties in the Agreement, and the disclosures in any section or subsection of this Schedule of Exceptions shall qualify other sections and subsections to the extent such disclosure is readily apparent on its face from a reading of the disclosure that such disclosure is applicable to such other sections and subsections.
Nothing in this Schedule of Exceptions is intended to broaden the scope of any representation or warranty contained in the Agreement or to create any covenant. Inclusion of any item in this Schedule of Exceptions (1) does not represent a determination that such item is material or establish a standard of materiality, (2) does not represent a determination that such item did not arise in the ordinary course of business, (3) does not represent a determination that the transactions contemplated by the Agreement require the consent of third parties, and (4) shall not constitute, or be deemed to be, an admission to any third party concerning such item. This Schedule of Exceptions includes brief descriptions or summaries of certain agreements and instruments, copies of all which have been made available to the Investors. Such descriptions do not purport to be comprehensive, and are qualified in their entirety by reference to the text of the documents described, true and complete copies of which have been made available to the Investors or their respective counsel.
2.2 Capitalization and Voting Rights.
(d)
Equity Agreements
The Company has outstanding options to purchase 2,449,000 shares of the Company’s Common Stock.
The Company has made commitment to grant options to purchase 525,000 shares of the Company’s Common Stock in connections with offer letters presented to various employees.
The Company has entered into that certain Note Purchase Agreement with Cervin Ventures Fund II, L.P. (“Cervin”), dated August 27, 2013 and that certain Promissory Note in favor of Cervin, dated August 27, 2013 (collectively, the “Bridge Loan”).
The October 2013 Series Seed Subscription Agreement.
(f)
Stock Purchase Agreement, dated June 29, 2012, by and between the Company and Xxxxxxxxxx Xxxxxxxxx, pursuant to which Mr. Kishinsky acquired 4,600,000 shares of the Company’s Common Stock (the “Kishinsky SPA”).
Stock Purchase Agreement, dated June 29, 2012, by and between the Company and Xxxxx Xxxxxx, pursuant to which Xx. Xxxxxx acquired 1,000,000 shares of the Company’s Common Stock (the “Cakmak SPA”).
2.3 Subsidiaries.
The Company has an office location in Moscow, Russia and is registered as a foreign corporation doing business in Russia, with a representative office registration and bylaws.
2.9 Proprietary Information Agreements.
Xxxxx Xxxxx, a former QA manager employed by the Company from December 2010 through February 2011, has not executed the Company’s standard form of Proprietary Information Agreement. Xx. Xxxxx did not contribute in any way to the development of intellectual property that is necessary to the business of the Company as currently conducted or as proposed to be conducted.
2.10 Intellectual Property.
List of third party software licenses and components used by the Company is in Exhibit A.
2.12 Agreements; Action.
(a)
Promissory Note, dated June 29, 2012, by and between the Company and Xxxxx Xxxxxx (the “Cakmak Note”).
Pledge Agreement, dated June 29, 2012, by and between the Company and Xxxxx Xxxxxx (the “Cakmak Pledge”).
Stock Purchase Agreement, dated June 29, 2012, by and between the Company and Xxxxxx Xxxxxxxxx, pursuant to which Xx. Xxxxxxxxx acquired 200,000 shares of the Company’s Common Stock (the “Menshikov SPA”).
Stock Purchase Agreement, dated August 12, 2009, by and between the Company and Xxxxxxxxxx Xxxxxxxxx, pursuant to which Mr. Kishinsky acquired 1,000 shares of the Company’s Common Stock.
Stock Purchase Agreement, dated January 27, 2011, by and between the Company and Xxxxxxxx Xxxxxxx, pursuant to which Xx. Xxxxxxx acquired 500 shares of the Company’s Common Stock (the “Rozhkov SPA”).
The Company is indebted to the following parties for the amounts set forth opposite their names, all of which indebtedness shall be repaid in accordance with Section 8.15 of the Agreement (collectively, the “Schedule of Loans Summary 10-01-13”):
# | Loans Summary | Amount | Comments |
1 | S. Timoshevsky | $133,300 | |
2 | K. Kishinsky | $415,000 | Bridge loan |
3 | X. Xxxxxxx | $120,000 | Bridge loan |
4 | X. Xxxxxxxxx | $20,000 | Bridge loan |
5 | X.Xxxxxxxxx | $20,000 | Bridge loan |
6 | Cervin | $150,000 | Bridge loan |
7 | X. Xxxxxxxx | $16,667 | Bridge loan |
Total | $874,967 | ||
The Company has entered into indemnification agreements with each of its directors, substantially in the form approved by its Board of Directors and stockholders and substantially similar to the form made available to the Investors.
Management Rights Letter, of even date herewith, by and between the Company and Cervin Ventures II, L.P. (the “MRL”).
The Bridge Loan.
Disclosures to Section 2.2(f) are hereby incorporated by reference.
(b)
Standard Office Sublease Agreement, dated January 10, 2013, by and between the Company and Xxxxx-Xxxxxxx, Xxxxx & Co., Inc.
The Company has incurred legal fees to Xxxxxxxx & Xxxxx LLP pursuant to Section 6.8 of the Agreement (the “Xxxxxxxx Fees”).
Disclosures to Section 2.12(a), with the exception of the MRL, are hereby incorporated by reference.
The Kishinsky SPA.
The Rozhkov SPA.
The Bridge Loan.
Licenses
Disclosures to Section 2.10 are hereby incorporated by reference.
(c)
The Schedule of Loans Summary 10-01-13 is hereby incorporated by reference.
For the first six (6) months of 2012, the Company was an S-corporation and Xxxxxxxxxx Xxxxxxxxx and Xxxxxxxx Xxxxxxx, the only two stockholders of the Company prior to the date of the Company’s conversion to a C-corporation, reported distributions of loss on their prior year tax returns.
2.13 Related-Party Transactions.
Disclosures to Section 2.12(a) are hereby incorporated by reference.
2.19 Financial Statements.
The Financial Statements may not be in full compliance with U.S. generally accepted accounting principles and may need to be restated because of, among other things, (i) the Company’s usage of QuickBooks related reconciliation with generally accepted accounting principles and (ii) delays in receiving updated information sent by the Company’s Moscow office regarding assets, liabilities, cash flow and other similar items related to the operation of such office.
Reference is made to the Bright Pattern Tax Report 2012.
Reference is made to the BP Balance Sheet July 31 2013.
Reference is made to the BP P&L Jan - Jul 2013.
Reference is made to the BP YTD Cash Flow 2013.
Reference is made to the Xxxxxxxx Fees.
Reference is made to the Schedule of loans summary 10-01-13.
2.20 Changes.
(a)
The Bridge Loan.
(f)
Xxxxxx Xxxxxx was granted a raise on September 1, 2013, in the amount of $9,600.
2.21 Employee Benefit Plans.
The Company provides health and vision insurance through Blue Shield of California.
The Company provides dental insurance through Delta Dental.
The Company provides workers compensation insurance through Hartford.
2.25 Labor Agreements and Actions; Employee Compensation.
Under Russian labor laws, the Company’s employees in the Moscow office are due severance pay in a termination event.
3.2 Capitalization
Disclosures to Section 2.2 are hereby incorporated by reference.
3.4 Affiliate Transactions
Disclosures to Sections 2.2, 2.12, 2,13, 2.20 and 2.21 are hereby incorporated by reference.
Exhibit A
SP 3.5 Third Party Components, Libraries
Component | Version | License | Used in |
Microsoft Visual Studio | 2010 SP1 | MSDN Subscription | C++ components on Windows |
MySQL | 5.5.20 Community Edition, 64 bit | GNU GPL 2 (xxxx://xxx.xxx.xxx/xxxxxxxx/xxx-xxxxxxxx/xxx-0.0.xxxx), not bundled with product | Configuration DB, Reporting DB |
Resiprocate | 1.6 | Vovida (xxxx://xxx.xxxxxxxxxxx.xxx/Xxxxxxx) | SIP Stack in SIP Processor, Softphone |
PortAudio | 19 | MIT License (xxxx://xxx.xxxxxxxxx.xxx/xxxxxxx.xxxx) | Softphone |
speex | 1.2 beta1 | revised BSD license (xxxx://xxx.xxxx.xxx/xxxxxxxx/xxx/xxxxx/) | RTP Processor - codec, softphone - codec, AGC algorithm |
libsndfile | 1.0 | LGPL (xxxx://xxx.xxxx-xxxx.xxx/xxxxxxxxxx/#Xxxxxxxxx) | RTP Processor |
gsmlib | 6.10 | Technical University of Berlin GsSM License | RTP Processor, Softphone- codec |
Java | v6 Standard Edition | Reporting Aggregator, Configuration Portal, Agent Desktop, Configuration Server | |
FireBreath | BSD 2.0 (it is dual licensed, we elect to use BSD 2.0) | Agent Desktop - softphone plugin packaging | |
JSON Parser | 2008/10/14 | Its own license | C++ Servers |
icu4c | 51 | IBM nonrestrictive license | Scenario Engine, Dialer, StatServer (Time Zone support) |
Mongo DB | 2.2.5 | Server - AGPL, Client - Apache | AgentDesktop web server (Chat, Forum demos) |
yajsw | 11.03 | LGPL | Service wrapper to launch java servers as windows services |
jetty | 7.6.7 | EPL 1.0, Apache 2.0 | Application server |
Jetty-j2sehttpspi | 7.6.7.v20120910 | Apache 2.0 | jetty ws |
slf4j | 1.7.5 | MIT | Portal, AD, Config server, Aggregator, Scheduler |
logback | 1.0.11 | EPL 1.0 or LGPL | Portal, AD, Config server, Aggregator, Scheduler |
netty | 3.2.3, 3.5.1 | Apache 2.0 | Yajsw, Portal, AD |
com.sun.el | 1.0.0 | EPL 1.0, CDDL | jetty jsp support |
javax.el | 2.1.0 | Apache 2.0, CDDL | jetty jsp support |
javax.servlet.jsp | 2.1.0 | Apache 2.0, CDDL | jetty jsp support |
javax.servlet.jsp.jstl | 1.2.0 | Apache 2.0, CDDL | jetty jsp support |
org.apache.jasper.glassfish | 2.1.0 | Apache 2.0, CDDL | jetty jsp support |
org.apache.taglibs.standard.glassfish | 1.2.0 | Apache 2.0, CDDL | jetty jsp support |
org.eclipse.jdt.core | 3.7.1 | EPL 1.0 | jetty jsp support |
servlet-api | 2.5 | Apache 2.0 | part of jetty distribution |
aopalliance | 1.0 | Public domain | Portal, AD |
asm | 3.3.1 | BSD | Portal, AD |
beanlib-5.0.2beta | 5.0.2beta | Apache 2.0 | Portal, AD |
commons-beanutils | 1.8.3 | Apache 2.0 | Portal, AD |
commons-cli | 2-SNAPSHOT, 1.2 | Apache 2.0 | yajsw, Portal, AD |
commons-codec | 1.4 | Apache 2.0 | Portal, AD |
commons-collections | 3.2, 3.2.1 | Apache 2.0 | Yajsw, Portal, AD |
commons-configuration | 1.8, 1.6 | Apache 2.0 | yajsw, Portal, AD |
commons-digester | 2.1 | Apache 2.0 | Portal, AD |
commons-email | 1.2 | Apache 2.0 | Portal, AD |
commons-exec | 1.1 | Apache 2.0 | Portal, AD |
commons-fileupload | 1.2.2 | Apache 2.0 | Portal, AD |
commons-io | 2.1, 1.3.1 | Apache 2.0 | yajsw, Portal, AD |
commons-lang | 2.4, 2.6 | Apache 2.0 | yajsw, Portal, AD |
commons-logging | 1.1 | Apache 2.0 | yajsw, portal, AD |
commons-net | 3.2 | Apache 2.0 | Portal, AD |
commons-pool | 1.5.6 | Apache 2.0 | Portal, AD |
commons-vfs2 | 1.1 | Apache 2.0 | yajsw |
de.huxhorn.sulky.3rdparty.jlayer | 1.0 | LGPL | Portal |
dom4j | 1.6.1 | BSD | Portal, AD |
eclipselink.jar | 2.4.0 | EPL 1.0 | Portal, AD, Scheduler |
geronimo-stax-api_1.0_spec | 1.0.1 | Apache 2.0 | Portal |
groovy-all | 1.8.5, 1.8.6 | Apache 2.0 | yajsw, Portal,Scheduler |
gson | 2.2.2, 2.1 | Apache 2.0 | Portal, AD, Scheduler, Aggregator |
guava | 13.0.1 | Apache 2.0 | Portal, AD, Scheduler, Aggregator |
xxxxx | 3.0 | Apache 2.0 | Portal, AD, Scheduler |
GWT | 2.4.0 | Apache 2.0 | Portal, AD |
GXT | 2.1.1 | GPL 3.0 and commercial | Configuration Portal |
gwt-dnd | 3.12.2 | Apache 2.0 | Agent Desktop, Portal (compile time) |
gwtquery | 1.1.0 | Apache 2.0 | Agent Desktop (compile time) |
gflot | 2.4.3 | MIT | Agent Desktop (compile time) |
mvp4g | 1.3.1 | Apache 2.0 | Portal, AD (compile time) |
gin | 1.5.0 | Apache 2.0 | Portal, AD (compile time) |
icu4j | 4.8.1 | IBM nonrestrictive license | Portal, AD, Aggregator |
itext | 2.1.7 | MPL 1.0, LGPL 2.0 | Portal, Scheduler |
xxxxxxx | 1.9.2 | Apache 2.0 LGPL | Portal, AD |
Jasper Reports | 4.1.1 Community edition | LGPL | Configuration Portal, Scheduler (Historical Reports) |
javax.inject | 1 | Apache 2.0 | Portal, AD, Scheduler |
javax.persistence | 2.0.0 | EPL 1.0 | Portal, AD, Scheduler |
jaxb | 2.2.4 | CDDL 1.1 | Portal, AD |
jersey | 1.13 | CDDL 1.1 or LGPL 2.0 with classpath exception | Portal, AD |
jettison | 1.1 | Apache 2.0 | Portal |
jna | 3.4.1 | LGPL | yajsw |
joda-time | 2.2 | Apache 2.0 | Portal, AD, Scheduler |
jrexx | 1.1.1 | LGPL | yajsw |
js-mongodb-datasource | 0.5.0 | AGPL 3.0 | Portal |
jsch | 0.1.50 | BSD | Portal |
jsr305 | 2.0.0 | Apache 2.0 | Portal, AD |
liquibase | 2.0.3 | Apache 2.0 | Portal |
liquibase-slf4j | 0.0.1 | MIT | Portal |
mail | 1.4 | CDDL 1.0 | Portal, AD |
mongo-java-driver | 2.11.1 | Apache 2.0 | Portal, AD |
opencsv | 2.3 | Apache 2.0 | Portal |
poi | 3.7 | Apache 2.0 | Portal, AD |
proxytoys | 1.0 | BSD | Portal, AD |
validation-api | 1.0.0 | Apache 2.0 | Portal, AD |
xmlbeans-2.5.0.jar | 2.5.0 | Apache 2.0 | Portal, AD |
jquery | 1.6.1, 1.7.2 (bundled in gflot) | MIT | AD |
flot | 0.7 (bundled in gflot) | MIT | Agent Desktop |
jquery.datepick | 4.0.3 | MIT | AD |
jquery.* | MIT, jQuery Tools Do What You Like License | AD | |
html5 starter pack by sickdesigner | Copyright (c) Xxxxxxxxxxxx.xxx - permissive, but requires copyright to be displayed | AD | |
swfobject | 2.2 | MIT | AD |
sqljdbc4.jar | 4.0 | MS Redistribution License | Config server |
boost (C++) | 1.42 | Boost Software License | Dialer (via Mongo Driver) |
Mongo C++ driver | 2.2 | Apache License 2.0 | Dialer |
OpenSSL | Apache License 1.0 and SSLeay License is a 4-clause BSD License. | Agent Server, Scenario Engine | |
UniMRCP | 1.1.0 | Apache License 2.0 | RTP Processor |
Apache Portable Runtime Library | 1.4.6 | Apache License 2.0 | RTP Processor |
Apache Portable Runtime Utility Library | 1.5.1 | Apache License 2.0 | RTP Processor |
Sofia-SIP - RFC3261 compliant SIP User-Agent library | 1.12.11-204-g6ff5f3f | LGPL 2.1 | RTP Processor |
zlib | 1.2.3.4 | xxxx://xxx.xxxx.xxx/xxxx_xxxxxxx.xxxx | RTP Processor |
libexpat XML parsing C library | 2.0.1 | MIT License | RTP Processor |
Xxxxx DB Driver for MySQL | 1.1.3 | LGPL | Configuration Portal, Configuration Server, Aggregator, Scheduler, Agent Web Server |
Log4j | Apache License 2.0 | Configuration portal | |
Errai::CDI::Demo | Apache License 2.0 | Configuration portal | |
xxxxx.extensions.assistedinject | Apache License 2.0 | Configuration portal | |
xxxxx.extensions.servlet | Apache License 2.0 | Configuration portal | |
ASM tree | Apache License 2.0 | ||
base64 by Xxxx Xxxxxx | BSD 2.0 | Configuration Portal | |
jung | BSD 2.0 | Configuration Portal | |
javamail | Sun Javamail 1.4 license | Configuration Portal, scheduler | |
com.oreilly.servlet | com.oreilly.servlet license | ||
UnicodeBOMInputStream | Creative Commons Attribution Share Alike 3.0 | ||
BISON generated code | GNU GPL Exception | Scenario Engine | |
gwt-user | GWT License | Configuration Portal, Agent Web Server | |
jshash | BSD 2.0 | Demo screens in AD | |
fugue-icons | Creative Commons Attributions 3.0 | Demo | |
fstoke-jquery-window | MIT License | Demo | |
math.uuid | MIT License | Agent Desktop | |
jquery plugins | MIT license | Demo | |
Constellation admin skin, generic icons | Theme Forest Commercial License | External chat, Demo | |
Logging Framework for C++ | Apache License 2.0 | Firebreath | |
Walking Callstack | BSD 2.0 | All servers | |
NetBSD - DnsResolver | BSD 2.0 | All servers | |
Code Project Style Toolkit | BSD 2.0 | Softphone | |
Crypto++ / Cryptopp | Crypto++ License | RTP Processor | |
fftsg | FFT Package License | RTP Processor | |
UTF8 CPP | License for UTF8 CPP | Softphone | |
http-parser | MIT | Agent Server | |
net-snmp | 5.7.1 | BSD-Like, BSD | All Servers |
PCRE | 8 | BSD | Scenario Engine |
