Lighting Science Group Corporation 505 Park Avenue, 21st Floor New York, New York 10022
Exhibit 10.1
Execution Copy
March 10, 2008
Xxxxxx X. Xxxx
0000 Xxxxxx Xxxxx Xxxxxxxxx
Xxxxxx, Xxxxx 00000
0000 Xxxxxx Xxxxx Xxxxxxxxx
Xxxxxx, Xxxxx 00000
Dear Xxx:
This letter agreement (the “Agreement”) sets forth the terms and conditions of our agreement
regarding the termination of your employment with Lighting Science Group Corporation (the
“Company”), effective as of March 10, 2008 (the “Termination Date”).
1. Termination of Employment. Effective as of the Termination Date, your employment
with the Company and each of its subsidiaries and affiliates, including, without limitation, any
entity which directly or indirectly controls, is controlled by, or is under common control with,
the Company (each, an “Affiliate”) is terminated. In addition, to the extent you were a member of
the board of directors (or any committee or subcommittee thereof) of the Company or any Affiliate,
effective as of the Termination Date, you hereby resign as a member of the board of directors (or
any committees or subcommittees thereof) of the Company and such Affiliates. The Company and you
agree to waive any and all notice periods that apply to the resignations specified in this
paragraph 1. You do not claim nor shall you claim any further right to employment by the Company
or any Affiliate.
2. Severance Payments; Medical Coverage. As consideration for entering into this
Agreement, if you do not revoke this Agreement in accordance with paragraph 15(k) hereof:
(a) Severance Payments. The Company shall pay to you (i) a lump sum amount of
$300,000 within seven (7) business days after execution and delivery of this Agreement; and
(ii) $300,000 in equal installments over a period of twelve (12) months following the
Termination Date, which will be payable in accordance with the Company’s payroll practices.
(b) Medical Coverage. If you elect continuation of medical coverage pursuant to the
Consolidated Omnibus Budget Reconciliation Act of 1986, as amended (“COBRA”), the Company shall
pay, for a period of twelve (12) months following the Termination Date, the cost of your COBRA
coverage to the same extent that the Company paid for your medical coverage during your employment;
provided, that the Company’s payments with respect to your COBRA coverage shall cease as of the
date you obtain medical coverage from another employer prior to the expiration of such twelve (12)
month period. You agree to promptly notify the Company upon obtaining medical coverage from
another employer prior to the expiration of such twelve (12) month period.
3. Base Salary; Accrued Vacation. On the Termination Date, the Company will pay you
(i) any unpaid base salary for the period prior to and including the Termination Date, and
(ii) the value of your accrued but unused vacation pay as of the Termination Date.
4. Expenses. The Company will reimburse you for any reasonable business expenses
incurred by you prior to the Termination Date in accordance with Company policy and the submission
by you to the Company of appropriate documentation. You are not authorized to incur any business
expenses after the Termination Date.
5. Stock Option and Warrants. The Company will extend until the date which is six (6)
months after the Termination Date the period during which you may exercise the stock option granted
to you on February 21, 2006 (the “Stock Option”) to purchase 10,000 shares of the Company’s common
stock (determined on a post reverse split basis). You acknowledge and agree that, as a result of
such extension of the period during which you may exercise the Stock Option, the Stock Option will
not constitute an incentive stock option pursuant to section 422 of the Internal Revenue Code of
1986, as amended. You may exercise your rights in respect of warrants issued to you by the Company
and outstanding as of the date hereof, as set forth on Exhibit A hereto, pursuant to the
terms of such warrants.
6. Sales Agreement. You and the Company shall enter into an agreement (the “Sales
Agreement”), on mutually acceptable terms, concerning (i) your right to purchase supplies
of the
Company’s product line (including future developments of such product line) of light-emitting
diode fixtures (“LED Fixtures”) for use in commercial indoor parking garages and parking lots, for
the purpose of your selling such LED Fixtures to parking lot management companies, and (ii)
the Company’s referral to you of inquiries from parking lot management companies concerning such
LED Fixtures.
7. Termination of Employment Agreement. Effective as of the Termination Date, the
Company and you agree that your Employment Agreement, dated October 4, 2007, with the Company,
pursuant to which the Company employed you as Vice Chairman of its Board of Directors (the
“Employment Agreement”) is terminated in all respects, and that you and the Company are fully,
completely, irrevocably and forever discharged from any and all obligations set forth therein,
pursuant thereto or arising therefrom. Notwithstanding the foregoing, at all times hereafter, the
provisions of the Employment Agreement concerning “Developments” (as defined in the Employment
Agreement) are incorporated by reference herein and made a part hereof, and as so incorporated,
shall remain in full force and effect in accordance with their respective terms.
8. General Release.
(a) Xxxx Release and Waiver. In consideration of the severance payments and medical
coverage provided in paragraphs 2(a) and 2(b) hereof, respectively, and the other consideration
herein described, which you expressly agree, after consultation with your counsel, is adequate
consideration to bind your release, you, on behalf of yourself and your family, agents,
representatives, heirs, executors, trustees, administrators, successors and assigns (collectively,
the “Xxxx Releasors”), do fully and forever release and discharge the Company and
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each Affiliate
and each of their successors and assigns, and each of their respective predecessors, stockholders,
partners, members, directors, managers, officers, employees, agents and other representatives, and
employee benefit plans of the Company (including current and former trustees and administrators of
these plans) (collectively, the “Company Releasees”), from all actions, claims, demands, losses,
expenses, obligations and liabilities related to any conduct or activity occurring at any time
before the execution date of this Agreement, including, but not limited to: (i) any claims
relating to or arising out of your employment or the Employment Agreement; (ii) any alleged
employment discrimination under any federal, state or municipal statute, regulation, order, rule or
legal authority, including, without limitation, Title VII of the Civil Rights Act of 1964, as
amended by the Civil Rights Act of 1991, the Age Discrimination in Employment Act of 1967, as
amended, and the Texas Commission on Human Rights Act; (iii) any and any and all violations
of the Employee Retirement Income Security Act of 1974, as amended; (iv) any and all
contract, tort or personal injury claims; (v) any and all claims for punitive, exemplary or
statutory damages; and (vi) any and all claims for attorneys’ fees or expenses associated
with your retention of counsel. You represent and warrant that you have not assigned any such
claims or authorized any other person, group or entity to assert such claims on your behalf.
Nothing contained herein shall be deemed to prevent you from enforcing the provisions of this
Agreement, provided, that nothing in this Agreement is intended to release or waive rights
(A) pursuant to COBRA, (B) any accrued pension benefits, stock options, restricted
shares (in each case involving only those benefits which have vested prior to the Termination Date)
or any other vested benefit under any employee plan in which you were a participant prior to the
Termination Date, (C) any rights to defense and/or indemnity under any corporate bylaw,
resolution, policy or practice, or (D) any rights to coverage under any liability
insurance policy, such as director’s and officer’s liability insurance.
(b) Xxxx Waiver of Unknown Claims. As a further consideration and inducement for this
Agreement, to the extent permitted by law, you and the Xxxx Releasors hereby waive and release any
and all claims which you and the Xxxx Releasors do not know or suspect to exist in your favor at
the time of execution of this Agreement. You expressly agree that this Agreement shall extend and
apply to all unknown, unsuspected and unanticipated injuries and damages as well as those that are
now disclosed, up to the date of this Agreement. IN THIS CONNECTION, YOU UNDERSTAND AND AGREE AS
PART OF THE INDUCEMENT FOR THE CONSIDERATION GIVEN FOR THIS RELEASE THAT YOU ARE SPECIFICALLY
WAIVING AND RELINQUISHING ALL RIGHTS AND BENEFITS AFFORDED BY THE PROVISIONS OF SECTION 1542 OF
THE CALIFORNIA CIVIL CODE, WHICH READS AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN
BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
YOU ACKNOWLEDGE THAT YOU UNDERSTAND THE SIGNIFICANCE OF THIS RELEASE OF UNKNOWN CLAIMS HEREUNDER
AND THIS WAIVER OF STATUTORY PROTECTION AGAINST THE RELEASE OF SUCH UNKNOWN CLAIMS.
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(c) Company Release of Claims. The Company, on its own behalf and on behalf of each
Affiliate, each of their successors and assigns, and each of their respective predecessors,
stockholders, partners, members, directors, managers, officers, employees, agents and other
representatives, and employee benefit plans of the Company (including current and former trustees
and administrators of these plans) (collectively, the “Company Releasors” and, together with the
Xxxx Releasors, the “Releasors”) hereby irrevocably and unconditionally release, settle, cancel,
acquit, discharge and acknowledge to be fully satisfied, you or any members of your family, any
trusts established for the benefit of any members of your family or any of your agents,
representatives, heirs, executors, trustees (including trustees of any trusts established for the
benefit of members of your family), administrators, successors and assigns (collectively, the “Xxxx
Releasees” and, together with the Company Releasees, the “Releasees”) from any and all claims,
contractual or otherwise, demands, costs, rights, causes of action, charges, debts, liens,
promises, obligations, complaints, losses, damages and all liability of whatever kind and nature,
and hereby waive any and all rights that he, she or it may have from the beginning of time up to
and including the time of signing this Agreement, or that otherwise may exist or may arise in
respect of your employment or separation from employment with the Company, or is in any way
connected with or related to the Employment Agreement, or any applicable compensatory or benefit
plan, program, policy or arrangement, and any and all federal, state or local laws, regulations,
ordinances or public policies and any common law or equity claims, or claims under any policy,
agreement, understanding or promise, written or oral, formal or informal, between the Company or
any Affiliate and yourself, now or hereafter recognized, including claims for negligence,
malfeasance, breach of fiduciary duty, slander and defamation, as well as all claims for counsel
fees and costs.
(d) Covenant Not to Xxx; Certain Proceedings. The Releasors agree not to bring any
action, suit or proceeding whatsoever (including the initiation of governmental proceedings or
investigations of any type) against any of the Releasees hereto for any matter or circumstance
concerning which the Releasors have released the Releasees under this Agreement. Further, the
Releasors agree not to encourage any other person or suggest to any other person that he, she or it
institute any legal action against the Releasees. Notwithstanding the foregoing, this release is
not intended to interfere with your right to file a charge with the Equal Employment Opportunity
Commission in connection with any claim you believe you may have against the Company. The
Releasors hereby agree to waive the right to any relief (monetary or otherwise) in any action, suit
or proceeding you may bring in violation of this Agreement, including any proceeding before the
Equal Employment Opportunity Commission or any other similar body or in any proceeding brought by
the Equal Employment Opportunity Commission or any other similar body on your behalf.
9. Restrictive Covenants.
(a) Non-Competition. Except in respect of the activities contemplated by the Sales
Agreement, during the two (2) year period beginning on the Termination Date (the “Restriction
Period”), you shall not, directly or indirectly, own any interest in, operate, join, control or
participate as a partner, shareholder, member, director, manager, officer, or agent of, enter into
the employment of, act as a consultant to, or perform any services for any entity that is in
competition with the business of the Company or any Affiliate in any jurisdiction in which the
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Company or any Affiliate is then engaged, or in which any of the foregoing has documented
plans to become engaged. Notwithstanding the foregoing, you may make passive investments in
any entity which is similar or competitive with the Company or any Affiliate which ownership does
not exceed five percent (5%) or more of such entity’s outstanding stock or ownership interest.
(b) Non-Solicitation of Employees. During the Restriction Period, you shall not,
directly or indirectly, for your own account or for the account of any other natural person,
partnership, limited liability company, association, corporation, company, trust, business trust,
governmental authority or other entity (each, a “Person”) solicit or encourage any employee of the
Company or any Affiliate to leave the employment of the Company or any Affiliate. This paragraph
9(b) shall not prohibit you from soliciting or hiring a former employee of the Company or any
Affiliate.
(c) Non-Solicitation of Business Relationships. Except in respect of the activities
contemplated by the Sales Agreement, during the Restriction Period, you shall not, directly or
indirectly, for your own account or for the account of any other Person, in any jurisdiction in
which the Company or any Affiliate has commenced or made plans to commence operations, solicit,
interfere with, or otherwise attempt to establish any business relationship of a nature that is
competitive with the business or relationship of the Company or any Affiliate with any Person
throughout the world which is or was a customer, client, distributor, supplier or vendor of the
Company or any Affiliate at any time during the one (1) year period prior to or after the
Termination Date.
(d) Confidentiality. You agree and acknowledge that, as of the Termination Date, you
will not (i) retain or use for the benefit, purposes or account of you or any other person,
organization or entity; or (ii) disclose, divulge, reveal, communicate, share, transfer or
provide access to any person, organization or entity other than the Company, any non-public,
proprietary or confidential information — including, without limitation, trade secrets, know-how,
research and development, software, databases, inventions, processes, formulae, technology, designs
and other intellectual property, information concerning finances, investments, profits, pricing,
costs, products, services, vendors, customers, clients, partners, investors, personnel,
compensation, recruiting, training, advertising, sales, marketing, promotions, government and
regulatory activities and approvals — concerning the past, current or future business, activities
and operations of the Company, any Affiliate and/or any third party that has disclosed or provided
any of same to the Company on a confidential basis (“Confidential Information”) without the prior
written authorization of the Company. Confidential Information shall not include any information
that is (A) generally known to the industry or the public other than as a result of your
breach of this covenant or any breach of other confidentiality obligations by third parties;
(B) made legitimately available to you by a third party without breach of any
confidentiality obligation; or (C) required by law to be disclosed; provided that you shall
give prompt written notice to the Company of such requirement, disclose no more information than is
so required, and cooperate with any attempts by the Company to obtain a protective order or similar
treatment.
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(e) Use of Confidential Information, Intellectual Property. You agree and acknowledge
that, as of the Termination Date, you shall (i) cease and not thereafter commence use of
any Confidential Information or intellectual property (including without limitation, any patent,
invention, copyright, trade secret, trademark, trade name, logo, domain name or other source
indicator) owned or used by the Company or any Affiliate; (ii) immediately destroy,
delete, or return to the Company, at the Company’s option, all originals and copies in any
form or medium (including memoranda, books, papers, plans, computer files, letters and other data)
in your possession or control (including any of the foregoing stored or located in your office,
home, laptop or other computer, whether or not Company property) that contain Confidential
Information or otherwise relate to the business of the Company or its Affiliates, except that you
may retain only those portions of any personal notes, notebooks and diaries that do not contain any
Confidential Information; and (iii) notify and fully cooperate with the Company regarding
the delivery or destruction of any other Confidential Information of which you are or become aware.
(f) Non-Disparagement. As of the Termination Date and at all times thereafter
(i) you agree that you have not and shall not, either directly or indirectly, engage in any
conduct or make any statement disparaging or criticizing in any way the Company or any Affiliate,
or any of their personnel, products or services nor, directly or indirectly, engage in any other
conduct or make any other statement that could be reasonably expected to impair the goodwill of the
Company or any Affiliate or the reputation of the Company or any Affiliate, and (ii) the
Company shall neither, directly or indirectly, engage in any conduct or make any statement
disparaging or criticizing you in any way; in each case, except to the extent required by law, and
then only after consultation by and between you and the Company to the extent possible, or to
enforce the terms of this Agreement. This paragraph 9(f) shall not prohibit you from responding to
an inquiry concerning the Company, or the Company from responding to an inquiry concerning you,
from the U.S. Securities and Exchange Commission or any other government agency or law enforcement
authority
10. Press Release. The Company shall, prior to issuing its press release concerning
the termination of your employment, provide you a reasonable opportunity to review and comment on
such press release and shall make a good faith effort to ensure that such press release is
satisfactory to you; provided that, the Company shall issue such press release and file it within
the time period required by applicable law.
11. Penalties. If you fail to abide by any of the terms of this Agreement, which
failure you do not cure, if curable, within twenty (20) days after receipt of the Company’s written
notice of such failure, the Company may reclaim any amounts paid hereunder, without waiving the
release granted herein, and terminate any remaining payments or benefits that are due hereunder and
any other arrangements or agreements, including the Sales Agreement, in addition to any other
remedies, including the payment of the Company’s attorneys’ fees and costs in an action to
prosecute such breach.
12. Consideration. The consideration provided hereunder is not required under the
Company’s standard policies, and you know of no other circumstances other than your execution of
this Agreement that would require the Company to provide such consideration.
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13. Legal Advice, Reliance. You represent and acknowledge that (i) you have
been given adequate time (at least twenty-one (21) days) to consider this Agreement (which, by
signing this Agreement prior to the expiration of such period, you have expressly agreed to waive)
and have been advised to discuss all aspects of this Agreement with your private attorney,
(ii) you have carefully read and fully understand all the provisions of this Agreement,
(iii) you have voluntarily entered into this Agreement, without duress or coercion, and
(iv) you have not heretofore assigned or transferred or purported to assign or transfer, to
any person or entity, any of the claims described in paragraphs 8(a) or 8(b) hereof, any portion
thereof, or any interest
therein. You understand that if you request additional time to review the terms of this
Agreement, a reasonable extension of time will be granted.
14. Non-Disclosure of Agreement. Except to the extent required by law, the parties to
this Agreement agree not to disclose its terms to any person, other than their attorneys,
accountants, financial advisors or, in your case, members of your immediate family; provided that
such family members are informed of this paragraph 14 and agree to be bound by it; provided,
further that this paragraph 14 shall not be construed to prohibit any disclosure required by law or
in any proceeding to enforce the terms and conditions of this Agreement.
15. Miscellaneous.
(a) No Violation of Law. You agree and acknowledge that this Agreement is not and
shall not be construed to be an admission by the Company of any violation of any federal, state or
local statue, ordinance or regulation or of any duty owed by the Company to you, and any such
liability is hereby expressly denied.
(b) Return of Company Property. Any credit cards issued to you by the Company will be
discontinued as of the Termination Date and you agree to reimburse the Company for all expenses
charged by you on any such credit cards after the Termination Date. Any property of the Company or
any Affiliate that is in your possession or control, including, but not limited to, such credit
cards issued to you by the Company, keys, identification cards, cellular telephone, pager, fax,
computers or computer equipment, etc., must be returned to the Company no later than March 12,
2008. Following your return of the Company’s laptop computer and desktop computer in your
possession, and after the Company has removed all Confidential Information from such laptop
computer and desktop computer, the Company shall offer to exchange with you such laptop computer
and such desktop computer in consideration for the furniture in the Company’s Satellite Beach,
Florida office which is owned by you.
(c) Removal of Personal Property. Within twenty (20) business days after the date
hereof, the Company will provide you a reasonable opportunity to remove your personal property from
the Company’s offices.
(d) Legal Expenses. The Company shall pay or reimburse you, upon presentation of
appropriate documentation, for up to $6,000 of legal fees you incur in connection with negotiating
this Agreement and other agreements with the Company relating to the termination of your
employment.
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(e) Cooperation. You agree to personally provide reasonable assistance and
cooperation in any action or proceeding (or appeal from any action or proceeding) to which the
Company is a party which relates to events occurring during your employment with the Company. The
Company will reimburse you for reasonable expenses incurred by you in connection with such
assistance and cooperation. In respect of such assistance and cooperation after the date on which
all severance payments pursuant to paragraph 2(a) have terminated, the Company will pay you, at a
reasonable per diem rate, for any expenditure of time by you associated with such cooperation.
(f) Third Party Beneficiaries. All Releasees under this Agreement who are not
signatories to this Agreement shall be deemed to be third party beneficiaries of this Agreement to
the same extent as if they were signatories hereto.
(g) Withholding. The Company may withhold from any payments made under this Agreement
all federal, state, local or other applicable taxes as shall be required by law.
(h) Entire Agreement. This Agreement constitutes the sole and complete understanding
of you and the Company with respect to the subject matter hereof. Except to the extent expressly
provided in this Agreement and in the Sales Agreement, upon execution and delivery of this
Agreement, all prior agreements, plans, programs, understandings and arrangements are hereby
terminated, and you, and the Company and the Affiliates, are fully, completely, irrevocably and
forever discharged from any and all obligations set forth therein, pursuant thereto or arising
therefrom. You and the Company represent to each other that in executing this Agreement, you and
the Company do not rely and have not relied upon any representation or statement not set forth
herein made by any other person, with regard to the subject matter, basis or effect of this
Agreement.
(i) Amendment; Waiver; Successors. No amendment, modification or alteration of the
terms and provisions of this Agreement shall be binding unless the same shall be in writing and
duly executed by you and the Company. No waiver of any of the provisions of this Agreement shall
be deemed to or shall constitute a waiver of any other provision hereof. No delay on the part of
any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver
thereof. This Agreement shall be binding upon the parties hereto and their respective successors,
transferees and assigns.
(j) Governing Law; Severability; Blue Pencil. This Agreement will be governed by the
laws of the State of New York, without regard to its conflict of laws rules. In the event that any
one or more of the provisions of this Agreement is held to be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions will not in any way be
affected or impaired thereby. The parties hereto agree that the covenants set forth in paragraph 9
hereof are reasonable covenants under the circumstances, and further agree that if, in the opinion
of any court of competent jurisdiction such covenants are not reasonable in any respect, such court
shall have the right, power and authority to remove or modify such provision or provisions of these
covenants as to the court shall appear not reasonable and to enforce the remainder of these
covenants as so amended.
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(k) Revocation. You may revoke this Agreement within seven (7) days after the date on
which you sign this Agreement. You understand that this Agreement is not binding or enforceable
until such seven (7) day period has expired. Any such revocation must be made in a signed letter
executed by you and received by the Company at the following address no later than 5:00 p.m., New
York time, on the seventh day after you have executed this Agreement: Lighting Science Group
Corporation, 000 Xxxx Xxxxxx, 00xx xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxx Xxx. You understand that if you revoke this Agreement, you will not be entitled to any
payments or benefits hereunder.
(l) Counterparts. This Agreement may be executed in counterparts, each of which shall
for all purposes be deemed to be an original and all of which shall constitute the same instrument.
[Signature Page follows]
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If this Agreement correctly sets forth your understanding of our agreement with respect to the
foregoing matters, please so indicate by signing below. On behalf of the Company, I would like to
thank you for all of your hard work and dedication.
| Very truly yours, Lighting Science Group Corporation |
||||
| By: | /s/ Xxxx Xxx | |||
| Name: | Xxxx Xxx | |||
| Title: | Chief Executive Officer | |||
ACCEPTED AND AGREED
as of the date first written above:
as of the date first written above:
/s/
Xxxxxx X. Xxxx
Xxxxxx X. Xxxx
|
/s/
Xxxxxx Xxxxxxx
Witness
|
[Signature Page]
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Exhibit A
Lighting Science Group Corporation
Warrants Issued to Xxxxxx X. Xxxx
Outstanding as of February 28, 2008
Warrants Issued to Xxxxxx X. Xxxx
Outstanding as of February 28, 2008
| Pre-Reverse Split | Pre-Reverse Split | Post Reverse Split | Post Reverse Split | |||||||||||||||||||
| Warrants | Issue Date | Warrants Shares | Exercise Price | Purpose | Warrant Shares | Exercise Price | ||||||||||||||||
| 4 | 4/20/2005 | 30,000 | 1.500 | Issued in conjunction with
Director Loans
|
1,500 | 30.00 | ||||||||||||||||
| 12 | 4/29/2005 | 15,000 | 1.500 | Issued in conjunction with
Director Loans
|
750 | 30.00 | ||||||||||||||||
| 13 | 5/2/2005 | 5,000 | 1.500 | Issued in conjunction with
Director Loans
|
250 | 30.00 | ||||||||||||||||
| 42 | 9/5/2006 | 125,000 | 0.300 | Issued as compensation
for debt guarantees
|
6,250 | 6.00 | ||||||||||||||||
| 51 | 3/31/2007 | 275,000 | 0.300 | Issued as compensation for
debt guarantees
|
13,750 | 6.00 | ||||||||||||||||
