EXHIBIT 10.10
EXECUTION COPY
APPLIED DISCOVERY, INC.
SERIES A PREFERRED STOCK PURCHASE AGREEMENT
January 28, 2000
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APPLIED DISCOVERY, INC.
SERIES A PREFERRED STOCK PURCHASE AGREEMENT
This Series A Preferred Stock Purchase Agreement (the "Agreement") is made
as of the 28th day of January, 2000 by and between APPLIED DISCOVERY, INC., a
Washington corporation (the "Company"), and the investors listed on Exhibit A
attached hereto (each a "Purchaser" and collectively, the "Purchasers").
The parties hereby agrees as follows:
1. Purchase and Sale of Preferred Stock.
1.1 Sale and Issuance of Series A Preferred Stock.
(a) The Company shall adopt and file with the Secretary of
State of the State of Washington on or before the Initial Closing (as defined
below) the Certificate of Designation in the form attached hereto as Exhibit B
(the "Certificate of Designation").
(b) Subject to the terms and conditions of this Agreement,
each Purchaser agrees to purchase at the Initial Closing and the Additional
Closing (as defined below) and the Company agrees to sell and issue to each
Purchaser at the Initial Closing and the Additional Closing that number of
shares of Series A Preferred Stock set forth opposite each such Purchaser's name
on Exhibit A attached hereto, at a purchase price of $1.00 per share. The shares
of Series A Preferred Stock issued to the Purchasers at the Initial Closing
pursuant to this Agreement shall be hereinafter referred to as the "Initial
Stock". The shares of Series A Preferred Stock issued to the Purchasers at the
Additional Closing pursuant to this Agreement shall be hereinafter referred to
as the "Additional Stock ' " and together with the Initial Stock, the "Stock."
The Stock and the Common Stock (as defined below) issuable upon conversion of
the Stock shall be hereinafter referred to as the "Securities."
1.2 Closings; Delivery.
(a) The purchase and sale of the Initial Stock shall take
place at the offices of Xxxxxxxx Chance Xxxxxx & Xxxxx LLP, 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, at 9:00 a.m., on January 28, 2000, or at such other time
and place as the Company and the Purchasers mutually agree upon, orally or in
writing (which time and place are designated as the "Initial Closing").
(b) At the Initial Closing, the Company shall deliver to each
Purchaser a certificate representing the Initial Stock being purchased thereby
against payment of the purchase price therefor by check payable to the Company
or by wire transfer to the Company's bank account.
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(c) The purchase and sale of the Additional Stock shall take
place at the offices of Xxxxxxxx Chance Xxxxxx & Xxxxx LLP, 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 at 9:00 a.m., not later than the later of (i) April 30,
2000 or (ii) the completion of the performance conditions set forth on Exhibit L
(the "Performance Conditions"), which shall be no later in any event than July
31, 2000, unless the parties mutually agree in writing upon such other time and
place (which time and place are designated as the "Additional Closing").
(d) At the Additional Closing, the Company shall deliver to
each Purchaser a certificate representing the Additional Stock being purchased
thereby against payment of the purchase price therefor by check payable to the
Company or by wire transfer to the Company's bank account.
2. Representations and Warranties of the Company. The Company hereby
represents and warrants to each Purchaser that, except as set forth on a
Schedule of Exceptions attached hereto as Exhibit C, which exceptions shall be
deemed to be representations and warranties as if made hereunder:
2.1 Organization, Good Standing and Qualification. The Company is a
corporation duly organized and validly existing under the laws of the State of
Washington and has all requisite corporate power and authority to: (i) carry on
its business as now conducted and proposed to be conducted; (ii) execute and
deliver this Agreement, the Investors' Rights Agreement in the form attached
hereto as Exhibit D (the "Investors' Rights Agreement") and the Shareholders'
Agreement in the form attached hereto as Exhibit E (the "Shareholders'
Agreement" and together with the Investors' Rights Agreement, the "Related
Agreements") and (iii) issue and sell the Securities and to carry out the
provisions of this Agreement and the Related Agreements. The Company is duly
qualified to transact business and is in good standing in each jurisdiction in
which the failure so to qualify would have a material adverse effect on its
business or properties.
2.2 Capitalization. The authorized capital of the Company consists
or will consist, immediately prior to the Closing, of:
(a) 10,000,000 shares of preferred stock of the Company, of
which 5,585,000 shares have been designated Series A Preferred Stock, none of
which are issued and outstanding immediately prior to the Closing.
(b) The Company has reserved 510,000 shares of Series A
Preferred Stock for issuance to the Note Holders (as defined below) and the
Warrant Holders (as defined below) upon conversion of the notes (the "Notes")
and exercise of the Series A Preferred Stock warrants (the "Series A Warrants"),
each listed on Exhibit F attached hereto.
(c) The Company has reserved 500,000 shares of Common Stock
for issuance to the Common Stock Warrant Holder listed on Exhibit F attached
hereto (the "Common Stock Warrant" and, together with the Series A Warrants, the
"Warrants").
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(d) 40,000,000 shares of common stock of the Company, par
value $,01 per share (the "Common Stock"), 10,000,000'shares of which are issued
and outstanding immediately prior to the Closing. All of the outstanding shares
of Common Stock have been duly and validly authorized, fully paid and are
nonassessable and issued in compliance with all applicable federal and state
securities laws.
(e) The Company has reserved 2,425,000 shares of Common Stock
for issuance to officers, directors, employees and consultants of the Company
pursuant to the Company's 2000 Stock Option Plan adopted by the Board of
Directors and attached hereto as Exhibit G (the "Stock Plan").
(f) Except for (i) conversion privileges of the Series A
Preferred Stock; (ii) outstanding options issued pursuant to the Stock Plan;
(iii) conversion privileges of the notes held by the individuals listed on
Exhibit F attached hereto (the "Note Holders"); (iv) exercise privileges
pursuant to the warrants issued to the individuals listed on Exhibit F attached
hereto (the "Warrant Holders"); (v) rights of first refusal set forth in the
Shareholders' Agreement and (vi) preemptive rights set forth in the
Shareholders' Agreement, there are no outstanding options, warrants, rights
(including conversion or preemptive rights and rights of first refusal or
similar rights) or agreements, orally or in writing, for the purchase or
acquisition from the Company of any shares of its capital stock. The Company is
not a party or subject to any agreement or understanding, and there is no
agreement or understanding between any person and/or entities, which affects or
relates to the voting or giving of written consents with respect to any security
or by a director of the Company.
2.3 Subsidiaries. The Company does not currently own or control,
directly or indirectly, any interest in any other corporation, association, or
other business entity.
2.4 Authorization. All corporate action on the part of the Company,
its officers, directors and shareholders necessary for the authorization,
execution and delivery of this Agreement and the Related Agreements, the
performance of all obligations of the Company under this Agreement and the
Related Agreements and the authorization, issuance, sale and delivery of the
Securities has been taken or will be taken prior to the Initial Closing, and
this Agreement and the Related Agreements, when executed and delivered by the
Company, shall constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms except (i) as
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance, and other laws of general application affecting
enforcement of creditors' rights generally, and as limited by laws relating to
the availability of specific performance, injunctive relief, or other equitable
remedies, or (ii) to the extent the indemnification provisions contained in the
Investors' Rights Agreement may be limited by applicable federal or state
securities laws.
2.5 Valid Issuance of Securities. The Stock that is being issued to
the Purchasers hereunder, when issued, sold and delivered in accordance with the
terms hereof for the consideration expressed herein, will be duly and validly
issued, fully paid and nonassessable
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and free of restrictions on transfer other than restrictions on transfer under
this Agreement, the Related Agreements and applicable state and federal
securities laws. Based in part upon the representations of the Purchasers in
this Agreement, the Stock will be issued in compliance with all applicable
federal and state securities laws. The Common Stock issuable upon conversion of
the Stock and exercise of the Warrants has been duly and validly reserved for
issuance, and upon issuance in accordance with the terms of the Certificate of
Designation, shall be duly and validly issued, fully paid and nonassessable and
free of restrictions on transfer other than restrictions on transfer under this
Agreement and the Related Agreements and will be issued in compliance with all
applicable federal and state securities laws.
2.6 Governmental Consents. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state or local governmental authority on the part of
the Company is required in connection with the consummation of the transactions
contemplated by this Agreement, except for filings pursuant to applicable state
securities laws and Regulation D of the Securities Act of 1933, as amended (the
"Securities Act").
2.7 Litigation. There is no action, suit, proceeding or
investigation pending or, to the Company's knowledge, currently threatened
against the Company that questions the validity of this Agreement or the Related
Agreements or that may result in a material adverse change to the Company, or to
consummate the transactions contemplated hereby or thereby, or that might
result, either individually or in the aggregate, in any material adverse changes
in the assets, condition or affairs of the Company, financially or otherwise, or
any change in the current equity ownership of the Company, nor is the Company
aware that there is any basis for the foregoing. The foregoing includes, without
limitation, actions pending or to the Company's knowledge threatened (or any
basis therefor known to the Company) involving the prior employment of any of
the Company's employees, their use in connection with the Company's business of
any information or techniques allegedly proprietary to any of their former
employers. The Company is not a party or subject to the provisions of any order,
writ, injunction, judgment or decree of any court or government agency or
instrumentality. There is no action, suit, proceeding or investigation by the
Company currently pending or which the Company intends to initiate.
2.8 Intellectual Property. The Company owns or possesses sufficient
legal rights to all patents, trademarks, service marks, trade names, copyrights,
trade secrets, licenses, information and proprietary fights and processes
("Intellectual Property") necessary for its business without any conflict with,
or infringement of, the rights of others. There are no outstanding options,
licenses or agreements of any kind relating to the foregoing, nor is the Company
bound by or a party to any options, licenses or agreements of any kind with
respect to the Intellectual Property of any other person or entity other than
such licenses or agreements arising from the purchase of "off the shelf" or
standard commercial products. The Company has not received any communications
alleging that the Company has violated or, by conducting its business, would
violate any of the Intellectual Property of any other person or entity. The
Company is not aware that any of its employees is obligated under any contract
(including
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licenses, covenants or commitments of any nature) or other agreement, or subject
to any judgment, decree or order of any court or administrative agency, that
would interfere with the use of such employee's best efforts to promote the
interest of the Company or that would conflict with the Company's business. To
the Company's knowledge, neither the execution or delivery of this Agreement,
nor the carrying on of the Company's business by the employees of the Company,
nor the conduct of the Company's business as proposed, will conflict with or
result in a breach of the terms, conditions, or provisions of, or constitute a
default under, any contract, covenant or instrument under which any such
employee is now obligated. The Company does not believe it is or that it will be
necessary to use any inventions of any of its employees (or persons it currently
intends to hire) made prior to their employment by the Company.
2.9 Compliance with Other Instruments.
(a) The Company is not in violation or default of any
provisions of its Articles of Incorporation, Certificate of Designation, Bylaws
or of any instrument, judgment, order, writ, decree or contract to which it is a
party or by which it is bound or, to its knowledge, of any provision of federal
or state statute, rule or regulation applicable to the Company. The execution,
delivery and performance of this Agreement and the Related Agreements and the
consummation of the transactions contemplated hereby or thereby will not (i)
result in any such violation or be in conflict with or constitute, with or
without the passage of time and giving of notice, either a default under any
such provision, instrument, judgment, order, writ, decree or contract or an
event which results in the creation of any lien, charge or encumbrance upon any
assets of the Company or (ii) require the Company to obtain any consent,
approval or action of, make any filing with, or give any notice to any person as
a result or under the terms of, or relieve any third party of any obligation to
the Company under any such provision, instrument, judgment, order, writ, decree
or contract.
(b) The Company has avoided every condition, and has not
performed any act, the occurrence of which would result in the Company's loss of
any right granted under any license, distribution agreement or other agreement.
2.10 Agreements; Action.
(a) The are no agreements, understandings or proposed
transactions between the Company and any of its officers, directors, affiliates,
or any affiliate thereof.
(b) Except for agreements explicitly contemplated by this
Agreement and the Related Agreements, there are no agreements, understandings,
instruments, contracts or proposed transactions to which the Company is a party
or by which it is bound that involve (i) obligations (contingent or otherwise)
of, or payments to, the Company or any of its subsidiaries in excess of, $5,000;
(ii) the license of any patent, copyright, trade secret or other proprietary
fight to or from the Company; (iii) the grant of rights to manufacture, produce,
assemble, license, market, or sell its products to any other person or affect
the Company's exclusive right to develop, manufacture, assemble, distribute,
market or sell its products; or (iv) indemnification by
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the Company with respect to infringement of proprietary rights (other than
indemnification obligations arising from purchase or sale agreements entered
into in the ordinary course of business).
(c) Schedule 2.10 attached hereto lists each agreement
(whether written or oral and including all amendments thereto) to which the
Company is a party or a beneficiary or by which the Company or any of its assets
is bound that is material to the Company (collectively, the "Material
Agreements"), including, without limitation, the following: (i) real estate
leases; (ii) agreements evidencing, securing or otherwise relating to any
indebtedness for borrowed money; (iii) capital or operating leases or
conditional sales agreements relating to vehicles, equipment or other assets
(other than Short Term Agreements); (iv) agreements pursuant to which the
Company is entitled or obligated to acquire any assets from a third party (other
than Purchase Orders and Short Term Agreements); (v) insurance policies; (vi)
employment, consulting, noncompetition, separation, collective bargaining,
independent contractor, staff writer, affiliate, information provider, online
content, union or labor agreements; (vii) agreements with or for the benefit of
any present or former stockholder, member, officer, director or employee of the
Company or any Affiliate or immediate family member thereof; (viii) agreements
under which the Company is obligated to indemnify, or entitled to
indemnification from, any third party, excluding any agreement that requires
indemnification solely for a breach of such agreement; and (ix) any other
agreement (other than a Purchase Order) pursuant to which the Company is
required to make or entitled to receive aggregate payments or other value in
excess of $5,000. For purposes of this Agreement, (A) "Purchase Order" means a
purchase order issued and accepted in the ordinary course of business that sets
forth terms applicable to a specified purchase or sale of goods or services and
does not impose obligations on either party that relate to any transaction other
than such purchase or sale; (B) "Short Term Agreement" means an agreement
entered into in the ordinary course of business that is terminable by the
Company on thirty (30) days or less notice and involves aggregate consideration
of less than $5,000; and (C) "Affiliate" means any person or entity that,
directly or indirectly, through one or more intermediaries, controls, or is
controlled by, or is under common control with, such person or entity.
(d) The Company has delivered to each Purchaser (except that
delivery to a Purchaser shall be deemed to be delivery to a Purchaser that is an
Affiliate) a copy of each written Material Agreement and a written summary of
each oral Material Agreement. Except as described in Schedule 2.10, (i) each
Material Agreement is in full force and effect and is valid, binding and
enforceable in accordance with its terms as to the Company and, to the knowledge
of the Company, as to each other party thereto; (ii) there exists no material
breach or material default (or event that with notice or lapse of time would
constitute a material breach or material default) on the part of the Company or,
to the knowledge of the Company, on the part of any other party under any
Material Agreement; (iii) the Company has not received a written notice of
termination or default under any Material Agreement; and (iv) as of the date of
this Agreement, no party to an agreement under which the Company acquired a
substantial portion of its assets has asserted any claim for indemnification
under such agreement.
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(e) The Company has not (i) declared or paid any dividends, or
authorized or made any distribution upon or with respect to any class or series
of its capital stock, (ii) other than the Notes, incurred any indebtedness for
money borrowed or incurred any other liabilities individually in excess of
$5,000 or in excess of $25,000 in the aggregate, (iii) made any loans or
advances to any person, other than ordinary advances for travel expenses, or
(iv) sold, exchanged or otherwise disposed of any of its assets or rights, other
than the sale of its inventory in the ordinary course of business.
(f) The Company has not engaged in the past three (3) months
in any discussion (i) with any representative of any corporation or corporations
regarding the merger of the Company with or into any such corporation or
corporations, (ii) with any representative of any corporation, partnership,
association or other business entity or any individual regarding the sale,
conveyance or disposition of all or substantially all of the assets of the
Company or a transaction or series of related transactions in which more than
fifty percent (50%) of the voting power of the Company would be disposed of, or
(iii) regarding any other form of liquidation, dissolution or winding up of the
Company.
2.11 Disclosure. The Company has fully provided the Purchasers with
all the information that the Purchasers have requested for deciding whether to
acquire the Stock and all information that the Company believes is reasonably
necessary to enable the Purchasers to make such a decision, including certain of
the Company's projections describing its proposed business. No representation or
warranty of the Company contained in this Agreement and the exhibits attached
hereto, any certificate furnished or to be furnished to Purchasers at the
Initial Closing contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained herein
or therein not misleading in light of the circumstances under which they were
made. The written information provided to the Purchasers was prepared in good
faith based on the reasonable best estimates of the Company (with the exception
of information prepared by third party sources and identified as such in the
written information and to which the Company makes no representation except that
it has no basis to believe such sections are inaccurate). The projections
provided by the Company have been prepared in good faith and on the basis of the
assumptions set forth therein, which assumptions, to the knowledge of the
Company, were reasonable at the time such projections were delivered; provided,
however, the Company does not warrant that it will achieve such projections.
2.12 No Conflict of Interest. The Company is not indebted, directly
or indirectly, to any of its officers or directors or to their respective
spouses or children, in any amount whatsoever other than in connection with
expenses or advances of expenses incurred in the ordinary course of business or
relocation expenses of employees which amount does not in the aggregate exceed
$10,000. None of the Company's officers or directors, or any members of their
immediate families, are, directly or indirectly, indebted to the Company (other
than in connection with purchases of the Company's capital stock) or, to the
Company's knowledge, have any direct or indirect ownership interest in any firm
or corporation with which the Company is affiliated or with which the Company
has a business relationship, or any firm or corporation which competes with the
Company except that officers, directors and/or shareholders of the
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Company may own stock in (but not exceeding two percent (2%) of the outstanding
capital stock of) any publicly traded company that may compete with the Company,
None of the Company's officers or directors or any members of their immediate
families are, directly or indirectly, interested in any material contract with
the Company. The Company is not a guarantor or indemnitor of any indebtedness of
any other person, firm or corporation.
2.13 Rights of Registration and Voting Rights. Except as
contemplated in the Investors' Rights Agreement and the Common Stock Warrant,
the Company has not granted or agreed to grant any registration rights,
including piggyback rights, to any person or entity. Except as contemplated in
the Shareholders' Agreement, to the Company's knowledge, no shareholder of the
Company has entered into any agreements with respect to the voting of capital
stock of the Company.
2.14 Solvency. The Company is solvent, has assets having a fair
value in excess of the amount required to pay its probable liabilities on its
existing debts as they become absolute and matured, and has access to adequate
capital for the conduct of its business and the ability to pay its debts from
time to time incurred in connection therewith as such debts mature.
2.15 Title to Property and Assets.
(a) The Company owns its property and assets free and clear of
all mortgages, liens, loans and encumbrances, except such encumbrances and liens
which arise in the ordinary course of business and do not materially impair the
Company's ownership or use of such property or assets. With respect to the
property and assets it leases, the Company is in compliance with such leases
and, to its knowledge, holds a valid leasehold interest free of any liens,
claims or encumbrances. The Company is in compliance with all material terms of
each material lease to which it is a party or otherwise bound.
(b) The tangible property and assets owned and/or leased by
the Company (i) constitute all property and assets used by it in and necessary
for the conduct of its business and (ii) are in good condition and repair,
ordinary wear and tear excepted.
2.16 Financial Statements. The Company has made available to each
Purchaser its unaudited financial statements (including balance sheet) as of
December 31, 1999 (collectively, the "Financial Statements"). The Financial
Statements have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods indicated,
except that the unaudited Financial Statements may not contain all footnotes
required by generally accepted accounting principles, The Financial Statements
fairly present the financial condition and operating results of the Company as
of the date, and for the period indicated therein, subject to normal year-end
audit adjustments. Except as set forth in the Financial Statements, the Company
has no liabilities, contingent or otherwise, other than (i) liabilities incurred
in the ordinary course of business subsequent to December 31, 1999 and (ii)
obligations under contracts and commitments incurred in the ordinary course of
business and not required under generally accepted accounting principles to be
reflected in the Financial
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Statements, which, in both cases, individually or in the aggregate are not
material to the financial condition or operating results of the Company.
2.17 Changes. Since December 31, 1999 there has not been:
(a) any change in the assets, liabilities, financial condition
or operating results of the Company from that reflected in the Financial
Statements, except changes in the ordinary course of business that have not
been, in the aggregate, materially adverse;
(b) any damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting the business, properties,
prospects, or financial condition of the Company;
(c) any waiver or compromise by the Company of a valuable
right or of a material debt owed to it;
(d) any satisfaction or discharge of any lien, claim, or
encumbrance or payment of any obligation by the Company, except in the ordinary
course of business and that is not material to the business, properties,
prospects or financial condition of the Company;
(e) any material change to a material contract or agreement by
which the Company or any of its assets is bound or subject;
(f) any material change in any compensation arrangement or
agreement with any employee, officer, director or shareholder;
(g) any sale, assignment or transfer of any Intellectual
Property or other intangible assets of the Company;
(h) any resignation or termination of employment of any
officer or key employee of the Company; and the Company is not aware of any
impending resignation or termination of employment of any such officer or key
employee;
(i) any mortgage, pledge, transfer of a security interest in,
or lien, created by the Company, with respect to any of its material properties
or assets, except liens for taxes not yet due or payable;
(j) any loans or guarantees made by the Company to or for the
benefit of its employees, officers or directors, or any members of their
immediate families, other than travel advances and other advances made in the
ordinary course of its business;
(k) any declaration, setting aside or payment or other
distribution in respect to any of the Company's capital stock, or any direct or
indirect redemption, purchase, or other acquisition of any of such stock by the
Company;
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(l) any declaration or payment of any dividend or other
distribution of the assets of the Company;
(m) to the Company's knowledge, any other event or condition
of any character that might materially and adversely affect the business,
properties, prospects or financial condition of the Company; or
(n) any arrangement or commitment by the Company to do any of
the things described in this Section 2.17.
2.18 Employee Matters. Set forth on Schedule 2.18 is a complete list
of all current employees of the Company as of the date of this Agreement,
including date of employment, current title and compensation, and date and
amount of last increase in compensation and indicating any employees on
disability or other permitted leaves of absence. The Company has no obligation
to continue the employment of any of the individuals listed on Schedule 2.18,
except to the extent provided in a written employment letter governing the terms
of such individual's employment with the Company as set forth on Schedule 2.18.
The Company does not and has never had any collective bargaining, union or labor
agreements, contracts or other arrangements with any group of employees, labor
union or employee representative. To the knowledge of the Company, there is no
organization effort currently being made or threatened by or on behalf of any
labor union with respect to employees of the Company. The Company has not
experienced and, to the knowledge of the Company, there is no basis for, any
strike or material work stoppage or slow down.
2.19 Employee Benefit Plans.
(a) Set forth in Schedule 2.19 is a complete list of all
"employee benefit plans," as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), all plans or policies
providing for fringe benefits (including, without limitation, vacation, paid
holidays, personal leave, employee discounts, educational benefits or similar
programs), and all other bonus, incentive, compensation, profit-sharing, equity,
severance, retirement, health, life, disability, group insurance, employment,
fringe benefit and other similar plans, agreements, policies or understandings
(whether or not subject to ERISA, whether written or oral, qualified or
nonqualified, currently effective or terminated), and any trust, escrow or other
agreement related thereto, which (i) are maintained or contributed to by the
Company or any ERISA Affiliate, or with respect to which the Company or any
ERISA Affiliate has or may have any liability, or (ii) provide benefits, or
describe policies or procedures applicable, to any current or former officer,
employee or independent contractor or dependents thereof, regardless of whether
funded (the "Employee Plans"). The Company has made available to each Purchaser
accurate and complete copies of the documents, records and other materials
related thereto reasonably requested by each Purchaser in writing. Each Employee
Plan may be amended and terminated in accordance with its terms, and, each such
plan provides for the unrestricted right of the Company to amend or terminate
such plan. No Employee Plan provides, and no written or oral representations
have been made to any current or former employee, officer
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or independent contractor of the Company promising or guaranteeing any employer
payment or funding for the continuation of medical, dental, life or disability
coverage for any period of time beyond the employee's date of termination
(except to the extent of coverage required under Code Section 4980B). The
consummation of the transactions contemplated by this Agreement will not
accelerate the time of payment or vesting, or increase the amount of
compensation due to any employee, director, officer, former employee, former
director, or former officer of the Company and neither the Company nor any ERISA
Affiliate is a party to any plan, program or agreement which could result in a
payment that is an "excess parachute" under Section 280G of the Code. For
purposes of this Agreement, "ERISA Affiliate" means the Company and each person
or entity that is or has been treated as a single employer or controlled group
member with the Company pursuant to Section 414 of the Code or Section 4001 of
ERISA.
(b) With respect to each Employee Plan that is maintained or
contributed to, currently or in the past, by the Company or any ERISA Affiliate:
(i) there is no Employee Plan that is or has ever been a
"defined benefit plan" (as defined in Section 3(35) of ERISA) or is subject to
Section 412 of the Code or Title IV of ERISA;
(ii) each Employee Plan has been operated in compliance
with ERISA, applicable tax qualification requirements and all other applicable
laws;
(iii) each Employee Plan which is intended to be
tax-qualified under Section 401(a) of the Code has been determined by the
Internal Revenue Service ("IRS") to be so qualified and no events have occurred
that would adversely affect the tax-qualified status of any such Employee Plan;
and
(iv) each Employee Plan which provides medical, dental,
health or long-term disability benefits is fully insured and claims with respect
to any participant or covered dependent under such -Employee Plan could not
result in any uninsured liability to the Company, any Purchaser or any Affiliate
thereof.
(c) No Employee Plan contributed to by the Company or any
ERISA Affiliate is a "multiemployer plan" or a "multiple employer plan" (as such
terms are defined in Sections 3(37)(A) and 3(40)(A) of ERISA (multiemployer
plans and multiple employer plans are hereinafter referred to as "Multiemployer
Plans")), nor has the Company or any ERISA Affiliate ever contributed or been
required to contribute to any Multiemployer Plan.
(d) Neither the Company nor any ERISA Affiliate or any plan
fiduciary of any Employee Plan has engaged in any transaction in violation of
Section 406(a) or (b) of ERISA or any "prohibited transaction" (as defined in
Code Section 4975(c)(1)) that would subject the Company, any Purchaser, or any
Affiliate thereof to any taxes, penalties or other Liabilities resulting from
such transaction. To the knowledge of the Company, none of the Employee Plans is
being audited or investigated by any Governmental Body. Without limiting
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any other provision of this Section 2.19, no event has occurred and no condition
exists, with respect to any Employee Plan or any other employee benefit plan
that has subjected or could subject the Company or any Employee Plan or any
successor thereto, to any tax, fine, penalty or other Liability (other than, in
the case of the Company and the Employee Plans, a liability arising in the
normal course to make contributions or payments, as applicable, when ordinarily
due under an Employee Plan with respect to employees of the Company).
2.20 Tax Returns and Payments. The Company has filed all tax returns
and reports as required by law. These returns and reports are true and correct
in all material respects. The Company has paid all taxes and other assessments
due.
2.21 Insurance. The Company has in full force and effect fire and
casualty insurance policies, with extended coverage, sufficient in amount
(subject to reasonable deductibles) to allow it to replace any of its properties
that might be damaged or destroyed.
2.22 Labor Agreements and Actions. The Company is not bound by or
subject to (and none of its assets or properties is bound by or subject to) any
written or oral, express or implied, contract, commitment or arrangement with
any labor union, and no labor union has requested or, to the knowledge of the
Company, has sought to represent any of the employees, representatives or agents
of the Company. There is no strike or other labor dispute involving the Company
pending, or to the knowledge of the Company threatened, which could have a
material adverse effect on the assets, properties, financial condition,
operating results, or business of the Company, nor is the Company aware of any
labor organization activity involving its employees. The employment of each
officer and employee of the Company is terminable at the will of the Company. To
its knowledge, the Company has complied in all material respects with all
applicable state and federal equal employment opportunity laws and with other
laws related to employment.
2.23 Confidential Information and Invention Assignment Agreements.
Each former and current employee, consultant and officer of the Company has
executed an agreement with the Company regarding confidentiality and proprietary
information substantially in the form or forms delivered to the counsel for the
Purchasers. The Company is not aware that any of its employees or consultants is
in violation thereof, and the Company will use its best efforts to prevent any
such violation.
2.24 Permits. The Company has all franchises, permits, licenses and
any similar authority necessary for the conduct of its business, the lack of
which could materially and adversely affect the business, properties, prospect,
or financial condition of the Company. The Company is not in default in any
material respect under any of such franchises, permits, licenses or other
similar authority.
2.25 Compliance with Laws. The Company is currently complying in all
material respects with and has at all times complied in all material respects
with, and has not received any claim or notice that it is not in compliance in
any material respect with, each statute,
13
law, ordinance, decree, order, rule or regulation of any governmental body or
regulatory authority applicable to it, including, without limitation, all
federal, state and local laws relating to occupational health and safety and
employment and labor matters.
2.26 Corporate Documents. The Articles of Incorporation, Certificate
of Designation and Bylaws of the Company are in the form provided to counsel for
the Purchasers. The copy of the minute books of the Company provided to the
Purchasers' counsel contains minutes of all meetings of directors and
shareholders and all actions by written consent without a meeting by the
directors and shareholders since the date of incorporation and reflects all
actions by the directors (and any committee of directors) and shareholders with
respect to all transactions referred to in such minutes accurately in all
material respects. The stock transfer ledgers and other similar records of the
Company as made available to the Purchasers prior to the execution of this
Agreement accurately reflect all record transfers prior to the execution of this
Agreement in the capital stock of the Company.
2.27 Environmental and Safety Laws. The Company is not in violation
of any applicable statute, law or regulation relating to the environment or
occupational health and safety, and to its knowledge, no material expenditures
are or will be required in order to comply with any such existing statute, law
or regulation.
2.28 Governmental Regulations. The Company is not a "holding
company," or a subsidiary company" of a "holding company" or an "affiliate" of a
"holding company," as such terms are defined in the Public Utility Holding
Company Act of 1935, or a "registered investment company" or an "affiliated
person" or a "principal underwriter" of a "registered investment company," as
such terms are defined in the Investment Company Act of 1940, as amended.
2.29 Offering. Subject in part to the truth and accuracy of each
Purchaser's representations and warranties set forth in Section 3 of this
Agreement, the offer, sale and issuance of the Securities as contemplated by
this Agreement are exempt from the registration requirements of the Securities
Act and any applicable state securities laws, and neither the Company nor any
authorized agent acting on its behalf will take any action hereafter that would
cause the loss of such exemption.
3. Representations and Warranties of the Purchasers. Each of the
Purchasers hereby represents and warrants, severally and not jointly, to the
Company that:
3.1 Authorization. Such Purchaser has full power and authority to
enter into this Agreement and the Related Agreements. This Agreement and the
Related Agreements, when executed and delivered by the Purchaser, will
constitute valid and legally binding obligations of the Purchaser, enforceable
in accordance with their terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, and any other
laws of general application affecting enforcement of creditors' rights
generally, and as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies,
14
or (ii) to the extent the indemnification provisions contained in the Investors'
Rights Agreement may be limited by applicable federal or state securities laws.
3.2 Purchase Entirely for Own Account. This Agreement is made with
the Purchaser in reliance upon the Purchaser's representation to the Company,
which by the Purchaser's execution of this Agreement, the Purchaser hereby
confirms, that the Securities to be acquired by the Purchaser will be acquired
for investment for the Purchaser's own account, not as a nominee or agent, and
not With a view to the resale or distribution of any part thereof, and that the
Purchaser has no present intention of selling, granting any participation in, or
otherwise distributing the same. By executing this Agreement, the Purchaser
further represents that the Purchaser does not presently have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
participation to such person or to any third person, with respect to any of the
Securities. The Purchaser has not been formed for the specific purpose of
acquiring the Securities.
3.3 Disclosure of Information. The Purchaser has had an opportunity
to discuss the Company's business, management, financial affairs and the terms
and conditions of the offering of the Stock with the Company's management. The
Purchaser understands that such discussions, as well as any other written
information delivered by the Company to the Purchaser, were intended to describe
the aspects of the Company's business which it believes to be material.
3.4 Restricted Securities. The Purchaser understands that the
Securities have not been, and will not be, registered under the Securities Act,
by reason of a specific exemption from the registration provisions of the
Securities Act which depends upon, among other things, the bona fide nature of
the investment intent and the accuracy of the Purchaser's representations as
expressed herein. The Purchaser understands that the Securities are "restricted
securities" under applicable U.S. federal and state securities laws and that,
pursuant to these laws, the Purchaser must hold the Securities indefinitely
unless they are registered with the Securities and Exchange Commission and
qualified by state authorities, or an exemption from such registration and
qualification requirements is available. The Purchaser acknowledges that the
Company has no obligation to register or qualify the Securities for resale
except as set forth in the Investors' Rights Agreement. The Purchaser further
acknowledges that if an exemption from registration or qualification is
available, it may be conditioned on various requirements including, but not
limited to, the time and manner of sale, the holding period for the Securities,
and on requirements relating to the Company which are outside of the Purchaser's
control, and which the Company is under no obligation and may not be able to
satisfy.
3.5 No Public Market. The Purchaser understands that no public
market now exists for any of the Securities issued by the Company, and that the
Company has made no assurances that a public market will ever exist for the
Securities.
3.6 Legends. The Purchaser understands that the Securities, and any
securities issued in respect of or exchange for the Securities, may bear one or
all of the following legends.
15
(a) "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A
FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER
THE SECURITIES ACT OF 1933."
(b) Any legend set forth in the Related Agreements.
(c) Any legend required by the "blue sky" laws of any state to
the extent such laws are applicable to the shares represented by the certificate
so legended.
3.7 Accredited Investor. The Purchaser is an accredited investor as
defined in Rule 501 (a) of Regulation D promulgated under the Securities Act as
presently in effect.
4. Conditions of the Purchasers' Obligations at the Initial Closing. The
obligations of each Purchaser to the Company under this Agreement are subject to
the fulfillment, on or before the Initial Closing, of each of the following
conditions, unless otherwise waived:
4.1 Representations and Warranties. The representations and
warranties of the Company contained in Section 2 shall be true and correct in
all material respects on and as of the Initial Closing with the same effect as
though such representations and warranties had been made on and as of the date
of the Initial Closing.
4.2 Performance. The Company shall have performed and complied with
all covenants, agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or before
the Initial Closing.
4.3 Compliance Certificate. The President of the Company shall
deliver to the Purchasers at the Initial Closing a Compliance Certificate
certifying that the conditions specified in Section 4.1 have been fulfilled.
4.4 Consents; Qualifications. The Company shall have obtained any
and all consents, permits and waivers necessary or appropriate for consummation
of the transactions contemplated by this Agreement and the Related Agreements
(except for such as may be properly obtained subsequent to the Initial Closing).
All authorizations, approvals or permits, if any, of any governmental authority
or regulatory body of the United States or of any state that are required in
connection with the lawful issuance and sale of the Initial Stock pursuant to
this Agreement shall be obtained and effective as of the Initial Closing.
16
4.5 Opinion of Company Counsel. The Purchasers shall have received
from Summit Law Group, counsel for the Company, an opinion, dated as of the
Initial Closing, in substantially the form of Exhibit H.
4.6 Reservation of Common Stock Issuable Upon Conversion of the
Stock. The Common Stock issuable upon conversion of the Stock (including all
Stock issuable upon exercise of the Warrants) shall have been duly authorized
and reserved for issuance upon such conversion.
4.7 Investors' Rights Agreement. The Company and each Purchaser
shall have executed and delivered the Investors' Rights Agreement.
4.8 Shareholders' Agreement. The Company and each Purchaser shall
have executed and delivered the Shareholders' Agreement.
4.9 Conversion of Notes and Delivery of Notice and Certificate. All
of the Notes shall have been converted into Series A Preferred Stock and all
indebtedness related thereto shall have been cancelled. The Company shall have
prepared and delivered the Notice and Certificate to the Note Holders listed on
Exhibit F attached hereto relating to the conversion of all outstanding Notes.
The Company shall have incurred no additional indebtedness as of the Initial
Closing.
4.10 Certificate of Dissemination The Company shall have filed the
Certificate of Designation with the Secretary of State of Washington on or prior
to the Initial Closing, which shall continue to be in full force and effect as
of the Initial Closing.
4.11 Employment Letter. The Company and each of its employees shall
have entered into an Employment Letter in substantially the form attached hereto
as Exhibit I.
4.12 Confidentiality, Non-Competition and Invention Agreement. The
Company and each of its employees shall have entered into a Confidentiality,
Non-Competition and Invention Agreement, in substantially the form attached
hereto as Exhibit J.
4.13 Due Diligence. The Purchasers shall, in their sole discretion
have completed their legal, intellectual property and financial due diligence
and the results of such due diligence shall, in the sole discretion of the
Purchasers, be acceptable to the Purchasers and their legal counsel. The
Schedule of Exceptions delivered to the Purchasers by the Company shall contain
no exception deemed unacceptable by the Purchasers in their sole discretion.
4.14 Stock Option Plan. The Company shall have adopted the Stock
Plan in form and substance reasonably satisfactory to the Purchasers and
attached hereto as Exhibit G.
4.15 Resignation and Election of Members of the Board of Directors.
Two members of the Company's Board of Directors shall have resigned from the
Board of Directors and shall have executed and delivered letters of resignation.
The Purchasers shall have elected
17
one member to the Company's Board of Directors in accordance with the
Shareholders' Agreement and such director and the Company shall have executed
the Indemnification Agreement, in substantially the form of Exhibit K attached
hereto.
5. Conditions of the Company's Obligations at the Initial Closing and
Additional Closing. The obligations of the Company to each Purchaser under this
Agreement are subject to the fulfillment, on or before the Initial Closing and
Additional Closing, of each of the following conditions, unless otherwise
waived:
5.1 Representations and Warranties. The representations and
warranties of each Purchaser contained in Section 3 shall be true and correct in
all material respects on and as of the Initial Closing and Additional Closing
with the same effect as though such representations and warranties had been made
on and as of the Initial Closing and Additional Closing, respectively.
5.2 Performance. All covenants, agreements and conditions contained
in this Agreement to be performed by the Purchasers on or prior to the Initial
Closing and Additional Closing shall have been performed or complied with in all
material respects.
5.3 Qualifications. All authorizations, approvals or permits, if
any, of any governmental authority or regulatory body of the United States or of
any state that are required in connection with the lawful issuance and sale of
the Stock pursuant to this Agreement shall be obtained and effective as of the
Initial Closing and Additional Closing.
6. Conditions of the Purchasers' Obligations at the Additional Closing.
The obligations of each Purchaser to the Company under this Agreement are
subject to the fulfillment, on or before the Additional Closing, of each of the
following conditions, unless otherwise waived:
6.1 Representations and Warranties. The representations and
warranties of the Company contained in Section 2 shall be true and correct in
all material respects on and as of the Additional Closing; provided that, the
Company may update the Schedule of Exceptions thereto relating only to Sections
2.8 and 2.24 and Schedule 2.10 with the same effect as though such
representations and warranties had been made on and as of the date of the
Additional Closing. The Schedule of Exceptions shall be the same as that
delivered at the Initial Closing, except that there shall be no material adverse
change to the Schedule of Exceptions not deemed acceptable to the Purchasers in
their sole discretion.
6.2 Consents; Qualifications. The Company shall have obtained any
and all consents, permits and waivers necessary or appropriate for consummation
of the transactions contemplated by this Agreement and the Related Agreements
(except for such as may be properly obtained subsequent to the Additional
Closing). All authorizations, approvals or permits, if any, of any governmental
authority or regulatory body of the United States or of any
18
state that are required in connection with the lawful issuance and sale of the
Additional Stock pursuant to this Agreement shall be obtained and effective as
of the Additional Closing.
6.3 Performance Condition. The Company shall have performed and
complied with all obligations and conditions set forth on Exhibit L attached
hereto that are required to be performed by it on or before the Additional
Closing.
7. Covenants.
7.1 Use of Proceeds. The Company will use the proceeds from the sale
of the Stock to the Purchasers for working capital and general. corporate
purposes.
8. Miscellaneous.
8.1 Survival of Warranties. Unless otherwise set forth in this
Agreement, the representations and warranties of the Company and the Purchasers
contained in or made pursuant to this Agreement shall survive the execution and
delivery of this Agreement and the Initial Closing and the Additional Closing
for a period of three (3) years following the Additional Closing.
8.2 Transfer, Successors and Assigns. The terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
8.3 Governing Law. This Agreement and all acts and transactions
pursuant hereto and the rights and obligations of the parties hereto shall be
governed, construed and interpreted in accordance with the laws of the State of
Washington, without giving effect to principles of conflicts of law.
8.4 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
8.5 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
8.6 Notices. Any notice required or permitted by this Agreement
shall be in writing and shall be deemed sufficient upon delivery, when delivered
personally or by overnight courier or sent by telegram or fax, or forty-eight
(48) hours after being deposited in the U.S. mail, as certified or registered
mail, with postage prepaid, addressed to the party to be notified at
19
such party's address as set forth on the signature page or Exhibit A hereto, or
as subsequently modified by written notice.
8.7 Finder's Fee. Each party represents that it neither is nor will
be obligated for any finder's fee or commission in connection with this
transaction except for an advisory fee of $75,000 payable by the Company to
Compass Capital Advisors LLC at the Initial Closing. No additional fee will be
paid to Compass Capital Advisors LLC at the Additional Closing. Each Purchaser
agrees to indemnify and to hold harmless the Company from any liability for any
commission or compensation in the nature of a finder's fee (and the costs and
expenses of defending against such liability or asserted liability) for which
each Purchaser or any of its officers, employees, or representatives is
responsible. The Company agrees to indemnify and hold harmless each Purchaser
from any liability for any commission or compensation in the nature of a
finder's fee (and the costs and expenses of defending against such liability or
asserted liability) for which the Company, its Affiliates or any of their
respective officers, employees or representatives is responsible.
8.8 Fees and Expenses. The Company shall be responsible for actual
fees and expenses of counsel for the Purchasers up to $30,000 with respect to
this Agreement, the documents referred to herein and the transactions
contemplated hereby and thereby.
8.9 Amendments and Waivers. Any term of this Agreement may be
amended or waived only with the written consent of the Company and the holders
of at least a majority of Stock issued or Common Stock issuable upon conversion
of the Stock. Any amendment or waiver effected in accordance with this Section
8.9 shall be binding upon the Purchasers and each transferee of the Stock (or
the Common Stock issuable upon conversion thereof), each future holder of all
such securities and the Company.
8.10 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (a) such
provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (c) the
balance of the Agreement shall be enforceable in accordance with its terms.
8.11 Delays or Omissions. No delay or omission to exercise any
right, power or remedy accruing to any party under this Agreement, upon any
breach or default of any other party under this Agreement, shall impair any such
right, power or remedy of such non-breaching or non-defaulting party nor shall
it be construed to be a waiver of any such breach or default, or an acquiescence
therein, or in any similar breach or default thereafter occurring; nor shall any
waiver of any single breach or default be deemed a waiver of any other breach or
default theretofore or thereafter occurring. Any waiver, permit, consent or
approval of any kind or character on the part of any party of any breach or
default under this Agreement, or any waiver on the part of any party of any
provisions or conditions of this Agreement, must be in writing and shall be
effective only to the extent specifically set forth in such writing. All
remedies, either
20
under this Agreement or by law or otherwise afforded to any party, shall be
cumulative and not alternative.
8.12 Entire Agreement. This Agreement, the Related Agreements and
the documents referred to herein constitute the entire agreement between the
parties hereto pertaining to the subject matter hereof, and any and all other
written or oral agreements relating to the subject matter hereof existing
between the parties hereto are expressly canceled.
8.13 Confidentiality. Each party hereto agrees that, except with the
prior written permission of the other parties hereto, it shall at all times keep
confidential and not divulge, furnish or make accessible to anyone any
confidential information, knowledge or data concerning or relating to the
business or financial affairs of the other parties to which such party has been
or shall become privy by reason of this Agreement, discussions or negotiations
relating to this Agreement, the performance of its obligations hereunder of the
ownership of Stock purchased hereunder. The provisions of this Section 8.13
shall be in addition to, and not in substitution for, the provisions of any
separate nondisclosure agreement executed by the parties hereto with respect to
the transactions contemplated hereby.
8.14 Exculpation Among Purchasers. Each Purchaser acknowledges that
it is not relying upon any person, firm or corporation, other than the Company
and its officers and directors, in making its investment or decision to invest
in the Company. Each Purchaser agrees that no Purchaser nor the respective
controlling persons, officers, directors, partners, agents, or employees of any
Purchaser shall be liable to any other Purchaser for any action heretofore or
hereafter taken or omitted to be taken by any of them in connection with the
purchase of the Securities.
The parties have executed this Series A Preferred Stock Purchase Agreement
as of the date first above written.
COMPANY:
APPLIED DISCOVERY, INC.
By:
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
Address: 0000-000xx Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
PURCHASERS:
ZILKHA VENTURE PARTNERS, L.P.
By: Zilkha Ventures, LLC
its general partner
21
By: AIMC LLC
its managing member
By:
-----------------------------------------
Name: Xxxx X. Xxxxx
Title: Managing Member
Address: 000 Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
APPLIED DISCOVERY PARTNERS, L.P.
By: Applied Discovery Management LLC
its general partner
By:
-----------------------------------------
Name: Xxxx X. Xxxxx
Title: Managing Member
Address: 000 Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
XXXXXX X. XXXXXX
--------------------------------------------
Name: Xxxxxx X. Xxxxxx
Address: 0000 Xxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Xxxxxx XxxXxxx and Xxxxxxx X. Xxxxx, as trustees,
or their successors, of the Xxxxxx XxxXxxx and
Xxxxxxx Xxxxx Trust Agreement UAD 12/1/90
--------------------------------------------------
Name: Xxxxxx XxxXxxx, as trustee
Address:
XXXXXXX X XXXXXXXX AND XXXXXX X.
XXXXXXXX, AS TRUSTEES OF THE
MERESMAN FAMILY TRUST U/D/T DATED
9/13/1989, AS AMENDED
22
--------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Trustee
Address: 0000 Xxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
XXXXX XXXXXX
--------------------------------------------------
Name: Xxxxx Xxxxxx
Address: 0000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
XXXXXX X. XXXXX
and XXXXXX X. XXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Address:
23
