STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT dated as of this 14th day of April, 1999
(this "Agreement"), by and among VENTURI TECHNOLOGIES, INC., a corporation
formed under the laws of the State of Nevada (the "Company"); and XXXXXXXX
GROUP, LLC, a Georgia limited liability company ("Purchaser").
ARTICLE 1.
PURCHASE AND SALE OF SHARES
1.1. THE SHARES. The Company has authorized the issuance and sale of
2,303,738 shares of Series D Convertible Preferred Stock (the "Shares") to the
Purchaser at a purchase price of $1.3022 per Share, with each share convertible
into two shares of the Company's Common Stock $.001 per share.
1.2. PURCHASE AND SALE OF THE SHARES. The Company agrees to issue and
sell to the Purchaser, and, subject to and in reliance upon the representations,
warranties, terms and conditions of this Agreement, the Purchaser agrees to
purchase the Shares for an aggregate purchase price of $3,000,000.00 (the
"Purchase Price"). Such purchase and sale shall take place at a closing (the
"Closing") to be held at the offices of Xxxxxxxxxx, Xxxxxx & Xxxxxxx LLP,
Atlanta, Georgia on April 14, 1999 at 10:00 am, or on such other date and at
such other time as may be mutually agreed upon by the parties to this Agreement.
At the Closing, the Company will issue and deliver to the Purchaser a
certificate evidencing the Shares against delivery by wire transfer to the
Company of the Purchase Price.
1.3. REPRESENTATIONS BY THE PURCHASER. Purchaser represents that:
(a) Purchaser has duly authorized, executed and delivered this
Agreement and this Agreement constitutes the valid and enforceable
obligation of Purchaser, except as such enforceability may be limited
by general equity principles or by applicable bankruptcy, insolvency or
other laws affecting creditors' rights generally.
(b) Purchaser (i) has sufficient net worth to sustain a loss
of all of its interest in the Company and can bear the economic risk of
its investment in the Company, (ii) understands that an investment in
the Company is speculative and involves a high degree of risk, and
(iii) has been afforded an adequate opportunity to ask questions of and
receive satisfactory answers from the Company concerning the terms and
conditions of the investment contemplated under this Agreement.
(c) Purchaser is acquiring the Shares for investment for its
own account and not with a view to, or for resale in connection with,
any distribution thereof. By execution of this Agreement, Purchaser
represents that it has no agreement, contract or understanding with any
person or entity to sell, transfer, or grant rights in any of the
Shares.
(d) Purchaser understands that the Shares have not been and,
except as may be provided by this Agreement, will not be, registered
under applicable state or federal securities laws by reason of certain
exemptions from the registration provisions thereof which depend upon,
among other things, the bona fide nature of the Purchaser's
representations and investment intent as expressed herein. Purchaser
acknowledges that the Shares must be held indefinitely unless
subsequently registered under the Securities Act or unless an exemption
from such registration is available. Purchaser understands that no
public market now exists, or may ever exist, for the Shares.
1.4. RESTRICTIVE LEGEND. Each certificate representing the Shares shall
bear a legend substantially in the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER ANY STATE SECURITIES LAWS OR UNDER THE
SECURITIES ACT OF 1933, AS AMENDED ("FEDERAL ACT"), IN
RELIANCE UPON VARIOUS EXEMPTIONS THEREFROM. THESE SHARES HAVE
BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE,
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF, NOR WILL ANY
ASSIGNEE OR TRANSFEREE THEREOF BE RECOGNIZED BY THE
CORPORATION AS HAVING ANY INTEREST IN SUCH SHARES, IN THE
ABSENCE OF (i) AN EFFECTIVE REGISTRATION STATEMENT WITH
RESPECT TO THE SHARES UNDER THE FEDERAL ACT OR ANY APPLICABLE
STATE SECURITIES LAW OR (ii) AN OPINION OF PURCHASER'S
COUNSEL, WHICH OPINION OF PURCHASER'S COUNSEL SHALL BE
REASONABLY SATISFACTORY TO THE CORPORATION, TO THE EFFECT THAT
THE TRANSACTION BY WHICH SUCH SHARES WILL BE OFFERED FOR SALE,
SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF IS EXEMPT FROM OR
OTHERWISE IN COMPLIANCE WITH THE REGISTRATION REQUIREMENTS OF
SUCH ACTS.
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ARTICLE 2.
CONDITIONS TO CLOSING
2.1. CONDITIONS TO PURCHASER'S OBLIGATIONS. The obligation of Purchaser
to purchase and pay for the Shares at the Closing is subject to the following
conditions:
(a) REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Each of the
representations and warranties of the Company set forth in Article 3
hereof shall be true on the date of the Closing.
(b) COMPANY DOCUMENTATION AT CLOSING. The Purchaser shall have
received, prior to or at the Closing, all of the following, each in
form and substance satisfactory to the Purchaser and its counsel, and
all of the following events shall have occurred prior to or
simultaneously with the Closing hereunder:
(i) A copy of all charter documents of the Company,
certified by the Secretary of State of Nevada; a certified
copy of the resolutions of the Board of Directors of the
Company and, if required, the stockholders of the Company,
evidencing approval of this Agreement, the authorization for
issuance of the Shares, and other matters contemplated hereby;
a certified copy of the Bylaws of the Company, as amended in
connection with the transactions contemplated by this
Agreement (including amendments deemed by Purchaser to be
necessary to require unanimous Board approval of certain
matters described herein); and certified copies of all
documents evidencing other necessary corporate or other action
and governmental approvals, if any, with respect to this
Agreement and the Shares.
(ii) A favorable opinion of Mackey Price & Xxxxxxxx, P.C.,
counsel for the Company, in the form set forth in EXHIBIT A.
(iii) A certificate of the Secretary or an Assistant
Secretary of the Company stating the names of the officers of
the Company authorized to sign this Agreement, the
certificates evidencing the Shares and other documents or
certificates to be delivered pursuant to this Agreement by the
Company or any of its officers, together with the true
signatures of such officers.
(iv) A certificate from a duly authorized officer of the
Company stating that the representations and warranties of the
Company contained in Article 3 hereof and otherwise made by
the Company in writing in connection with the transactions
contemplated hereby are true and correct in all material
respects and that all conditions required to be performed by
the Company prior to or at the Closing have been performed.
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(v) Certificates representing the Shares being issued and
sold by the Company to the Purchaser pursuant to Section 1.2
hereof, duly recorded on the books of the Company in the name
of Purchaser and authenticated by the transfer agent for the
Company, together with such other supporting documents as may
be, in the opinion of counsel for the Purchaser, reasonably
necessary to permit the Purchaser to acquire free and clear
title to the Shares.
(vi) Receipt for the payment delivered to the Company by
the Purchaser pursuant to Section 2.2(b)(i) hereof.
(vii) A certificate of the Secretary of State of the State
of Nevada as to the good standing of the Company dated no
earlier than 21 days prior to the Closing.
(viii) Certificates of existence in good standing and
qualification to transact business as a foreign corporation
(or similar documents) of the Company from the Secretaries of
State of the states of Utah, Texas and California and any
states where the failure so to qualify could have a material
adverse effect upon the Company.
(ix) A Marketing Agreement, in the form set forth in
EXHIBIT B, executed and delivered by the Company and the
parties named therein.
(x) A Registration Rights Agreement, in the form set forth
in EXHIBIT C, executed and delivered by the Company.
(xi) A Lock-up Agreement, in the form set forth in EXHIBIT
D, executed and delivered by each of Xxxxxxx Xxxxxx and Xxxx
Xxxxxxx.
(c) CONSENTS, WAIVERS, ETC. Prior to the Closing, the Company
shall have obtained all consents or waivers, if any, necessary or
appropriate to execute and deliver this Agreement, issue the Shares and
carry out the transactions contemplated hereby and thereby, and all
such consents and waivers shall be in full force and effect. All
corporate and other action and governmental filings necessary to
effectuate the terms of this Agreement and other agreements and
instruments executed and delivered by the Company in connection
herewith, shall have been made or taken. In addition to the documents
set forth above, the Company shall have provided the Purchaser any
other information or copies of documents that it may reasonably
request.
2.2. CONDITIONS TO THE COMPANY'S OBLIGATIONS.
(a) REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. Each of the
representations and warranties of the Purchaser set forth in Section
1.3 hereof shall be true on the date of the Closing.
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(b) PURCHASER DOCUMENTATION AT CLOSING. The Company shall have
received, prior to or at the Closing, all of the following, each in
form and substance satisfactory to the Company and its counsel, and all
of the following events shall have occurred prior to or simultaneously
with the Closing hereunder:
(i) Payment to the Company of the Purchase Price for the
Shares in the manner specified in Section 1.2 hereof.
(ii) A certificate from a duly authorized officer of Purchaser
stating that the representations and warranties of Purchaser
contained in Section 1.3 hereof and otherwise made by Purchaser in
writing in connection with the transactions contemplated hereby
are true and correct in all material respects and that all
conditions required to be performed by Purchaser prior to or at
the Closing have been performed.
(iii) A Marketing Agreement, in the form set forth in EXHIBIT
B, executed and delivered by the Purchaser.
(iv) A Registration Rights Agreement, in the form set forth in
EXHIBIT C, executed and delivered by the Purchaser.
ARTICLE 3.
REPRESENTATION AND WARRANTIES
The Company hereby represents and warrants as follows:
3.1. ORGANIZATION AND STANDING OF THE COMPANY. The Company is duly
organized, validly existing and in good standing under the laws of the State of
Nevada and has all requisite corporate power and authority for the ownership and
operation of its properties and for the carrying on of its business as now
conducted and as now proposed to be conducted. The Company is duly licensed or
qualified to do business and is in good standing as a foreign corporation in the
States of Utah, Texas and California, which are the only jurisdictions in which
the character of the property owned or leased, or the nature of the activities
conducted, by the Company makes such licensing or qualification necessary.
Except as set forth on SCHEDULE 3.1 hereto, the Company does not own any equity
interest, directly or indirectly, in any person or business enterprise and has
never operated as a subsidiary or a division of any other person.
3.2. CORPORATE ACTION. The Company has all necessary corporate power
and has taken all corporate action required to make all the provisions of this
Agreement and any other agreements and instruments executed in connection
herewith and therewith the legal, valid, binding and enforceable obligations of
the Company, except as such enforceability may be limited by general equity
principles or by applicable bankruptcy, insolvency or other laws affecting
creditors' rights generally. At the time of Closing, the issuance of the Shares
will not be
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subject to preemptive or other preferential rights, or similar statutory or
contractual rights, either arising pursuant to any agreement or instrument to
which the Company is a party or which is otherwise binding upon the Company.
3.3. GOVERNMENTAL APPROVALS. No authorization, consent, approval,
license, exemption of or filing or registration with any Person, any court or
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, is or will be necessary for, or in connection with, the
offer, issuance, sale, execution or delivery by the Company, or for the
performance by the Company of its obligations under, this Agreement.
3.4. LITIGATION. Except as set forth on SCHEDULE 3.4, there is no
litigation or governmental proceeding or investigation pending or, to the
knowledge of the Company, threatened against or in any way affecting the
Company, its operations, any of its properties or assets, or any of its
officers, employees or principal stockholders that might, individually or in the
aggregate have a material adverse effect upon the business, operations, affairs
or condition of the Company, or any of its properties or assets, or call into
question the validity of this Agreement, any of the Shares, or any action taken
or to be taken pursuant hereto or thereto. To the knowledge of the Company,
there has not occurred any event nor does there exist any condition which might
give rise to any such litigation, proceeding or investigation. Neither the
Company, nor, to the Company's knowledge, any officer, employee or principal
stockholder of the Company, is in default with respect to any order, writ,
injunction, decree, ruling or agency that might result, either individually or
in the aggregate, in any material adverse change in the business, operations,
affairs or condition of the Company or its properties or assets.
3.5. COMPLIANCE WITH OTHER INSTRUMENTS. The Company is in compliance
with the terms and provisions of this Agreement and of its Articles of
Incorporation and Bylaws and with the terms and provisions of each mortgage,
indenture, lease, or other agreement or instrument to which the Company is a
party, by which the Company is bound, or to which its properties or assets are
subject, and of all judgments, decrees, governmental orders, and, to the
Company's knowledge, statutes, rules or regulations by which the Company is
bound or to which its properties or assets are subject. Except as set forth in
SCHEDULE 3.5 hereto, the Company is not a party to any material contract or
commitment (or group of related contracts or commitments). Neither the execution
and delivery of this Agreement nor the issuance of the Shares, nor the
consummation of any transaction contemplated hereby or thereby, has constituted
or resulted in or will constitute or result in a default or violation of any
term or provision in any of the foregoing documents or instruments.
3.6. TITLE TO ASSETS AND PROPERTIES.
(a) Except as set forth in SCHEDULE 3.6(a), the Company has good,
clear and marketable title to its properties and assets, and all such
properties and assets are free and clear of mortgages, pledges,
security interests, liens, charges, claims, restrictions and other
encumbrances (including without limitation, easements and licenses),
except for liens or for current taxes not yet due and payable and minor
imperfections of title, if any, not material in nature or amount, not
materially detracting from the value or impairing the
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use of property subject thereto or impairing the operations or proposed
operations of the Company.
(b) Each lease or agreement to which the Company is a party under
which it is a lessee of any property, real or personal, is a valid and
subsisting agreement, duly authorized and entered into, without any
default of the Company thereunder and, to the best of the Company's
knowledge, without any default thereunder or any other party thereto.
No event has occurred and is continuing which, with due notice or lapse
of time or both, would constitute a default or event of default by the
Company under any such lease or agreement or, to the best of the
Company's knowledge, by any other party thereto.
(c) Except as set forth in SCHEDULE 3.6(c) hereto, the Company
owns or will have valid right to use all patents, patent rights,
licenses, permits, trade secrets, trademarks, trademark rights, trade
names or trade name rights, franchises, copyrights, inventions and
intellectual property rights used or proposed to be used in its
business; and, to the knowledge of the Company, the conduct of the
Company's business does not and will not conflict, in any respect, with
valid patents, patent rights, licenses, permits, trade secrets,
trademarks, trademark rights, trade names or trade name rights,
franchises, copyrights, inventions or intellectual property rights of
others.
3.7. INSURANCE. SCHEDULE 3.7 discloses all insurance policies with
respect to which the Company is the owner, insured or beneficiary or under which
any assets of the business are insured. Such policies are reasonable, both in
scope and amount, in light of the risks attendant to the business and are
comparable in coverage to policies customarily maintained by others of similar
size, located in similar communities engaged in similar lines of business. There
is no claim pending under any of such policies as to which coverage has been
questioned, denied or disputed. All premiums required to be paid in connection
with the insurance policies of the Company have been paid in full.
3.8. TAXES. The Company has filed or caused to be filed on a timely
basis, or will file or cause to be filed on a timely basis, all tax returns that
are required to be filed by the Company with respect to its business prior to or
on the Closing Date, pursuant to the law of each governmental authority with
taxing power over it. All such tax returns were or will be, as the case may be,
correct and complete. The Company has paid or will pay all taxes that have or
will become due, except such taxes, if any, as are (i) being contested in good
faith, and fully reserved against on the Company's audited balance sheet for
fiscal year 1998 (the "1998 Balance Sheet") or any interim period. No claim has
been made by a taxing authority of a jurisdiction where the Company does not
file tax returns that it is or may be subject to taxation in that jurisdiction.
The Company has withheld and paid all taxes required to have been withheld in
connection with amounts paid or owing to any employee, independent contractor,
creditor, stockholder or other third party.
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3.9. TRANSACTIONS WITH AFFILIATES. Except as set forth in SCHEDULE 3.9
hereto, there are no loans, leases, royalty agreements or other continuing
transactions between the Company and (i) any of the Company's customers or
suppliers other than those entered into in the ordinary course of business, (ii)
any officer or director of the Company, (iii) any Person owning one percent (l%)
or more of any class of capital stock of the Company or any member of such
stockholder's family or (iv) any corporation or other entity controlled by such
officer, director, stockholder or a member of such stockholder's family or in
which such stockholder or a member of such stockholder's family owns or has a
material interest.
3.10. ASSUMPTIONS OR GUARANTIES OF INDEBTEDNESS OF OTHER PERSONS. The
Company has not assumed, guaranteed, endorsed or otherwise become directly or
contingently liable with respect to (including, without limitation, liability by
way of agreement, contingent or otherwise, to purchase, to provide funds for
payment, to supply funds to or otherwise invest in the debtor or otherwise to
assure the creditor against loss) any Indebtedness of any other Person.
3.11. INVESTMENTS IN OTHER PERSONS. Except as set forth on SCHEDULE
3.11, the Company has not made any loan or advance to any Person that is
outstanding on the date of this Agreement, nor is the Company obligated or
committed to make any such loan or advance, nor does the Company own any capital
stock, assets comprising the business of, obligations of, or any interest in,
any Person.
3.12. COMPLIANCE WITH GOVERNMENTAL REGULATIONS. The Company is in
compliance with all laws and governmental rules and regulations applicable to
its business, properties and assets, and to the services, products and equipment
designed, manufactured or sold by it, including, without limitation, all such
laws, rules and regulations relating to fair employment practices, public or
employee safety and environmental protection, and similar matters. The Company
now holds all governmental permits or licenses required to own its assets and
operate its business. No notice or warning from any authority with respect to
the suspension, revocation or termination of any such permit or license has been
received by the Company.
3.13. REGISTRATION RIGHTS. Except as set forth in SCHEDULE 3.13 hereto,
no Person has demand or other rights to cause the Company to file any
registration statement under the Securities Act relating to any securities of
the Company or any right to participate in any such registration statement.
3.14. SECURITIES ACT OF 1933. Assuming the accuracy of the
representations and warranties of the Purchaser in Section 1.3 of this
Agreement, the Company has complied and will comply with all applicable federal
or state securities laws in connection with the issuance and sale of the Shares.
Neither the Company nor any Person acting on its behalf has offered or will
offer to sell the Shares or any other similar securities to, or solicit offers
with respect thereto from, or thereto with, any Person, so as to bring the
issuance and sale of the Shares under the registration provisions of the
Securities Act.
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3.15. DISCLOSURE. Neither this Agreement, nor any other agreement,
document, certificate or written or oral statement furnished to the Purchaser or
its counsel, in connection with the transactions contemplated by this Agreement
by or on behalf of the Company (when considered in the aggregate), 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, in light of the
circumstances under which they were made, not misleading.
3.16. NO BROKERS OR FINDERS. Except as set forth in SCHEDULE 3.16, no
Person has or will have, as a result of the transactions contemplated by this
Agreement, any right, interest or valid claim against or upon the Company for
any commission, fee or other compensation as a finder or broker because of any
act or omission by the Company or any agent of the Company. The Company agrees
to indemnify and hold the Purchaser harmless against any such commissions, fees
or other compensation payable by the Company in connection with the transactions
contemplated under this Agreement.
3.17. CERTAIN REPRESENTATIONS REGARDING EMPLOYEES.
(a) Except as set forth in SCHEDULE 3.17 hereto, no employee of
the Company is a party to or bound by any agreement, contract or
commitment, or subject to any restrictions, particularly but without
limitation in connection with any previous employment of any such
person, which materially adversely affects, or in the future may
reasonably be expected to materially adversely affect, the business or
operations of the Company or the right of any such person to
participate in the affairs of the Company;
(b) To the best of the Company's knowledge, no officer of the
Company has any present intention of terminating his employment with
the Company, and the Company does not have any present intention of
terminating any such employment;
(c) The Company is not a party to any collective bargaining
agreement and, to the best of the Company's knowledge, no
organizational efforts are currently being made by any union with
respect to any of the Company's employees; and
(d) Except as set forth in SCHEDULE 3.17 hereto, the Company has
no contracts, directly or indirectly, with any employee, director,
officer or shareholder of the Company.
3.18. CAPITALIZATION; STATUS OF CAPITAL STOCK.
(a) As of the date hereof, the Company has a total authorized
capitalization consisting of 20,000,000 shares of Common Stock, $.00l
par value per share, of which 8,679,976 shares are issued and
outstanding, and 5,000,000 shares of Preferred Stock, $.00l par value
per share, of which 64,410 shares of 10% Cumulative Convertible Series
A Preferred Stock, 260,000 shares of 6% Cumulative Convertible Series B
Preferred Stock, and 552,845 shares of 6% Cumulative Convertible Series
C Preferred Stock are issued and outstanding. Except as set forth in
SCHEDULE 3.18(a) hereto, there are no options, warrants or rights to
acquire shares of the capital stock or other securities of the
9
Company authorized, issued or outstanding, nor is the Company obligated
in any other manner to issue shares of its capital stock or other
securities. Except as set forth in SCHEDULE 3.18(a) hereto, there are
no restrictions on the transfer of shares of capital stock of the
Company other than those imposed by relevant state and federal
securities laws. Except as set forth in SCHEDULE 3.18(a), no holder of
any security of the Company is entitled to preemptive or similar
statutory or contractual rights, either arising pursuant to any
agreement or instrument to which the Company is a party or that is
otherwise binding upon the Company. Except as provided in SCHEDULE
3.18(a) hereto, the Company is not a party to, and to its knowledge, no
stockholder of the Company is a party to, any voting agreements, voting
trusts, proxies or any other agreements, instruments or understandings
with respect to the voting of any shares of the capital stock of the
Company, or any agreement with respect to the transferability, purchase
or redemption of any shares of capital stock of the Company.
(b) The Company has not created any right to acquire an equity
interest, or any interest measured by income, profits or any results of
operations or by the value of any stock, or any similar or related
right of interest.
(c) The pro-forma capitalization of the Company after giving
effect to the transactions contemplated by this Agreement is attached
hereto as EXHIBIT 3.18(c) and is true and correct.
3.19. BOOKS AND RECORDS. The books of account, ledgers, order books,
records and documents of the Company accurately and completely reflect all
information relating to the business of the Company, the nature, acquisition,
maintenance, location and collection of the assets of the Company, and the
nature of all transactions giving rise to the obligations or accounts receivable
of the Company.
3.20. PAYMENTS. Neither the Company nor any officer, director or
employee of the Company has, directly or indirectly, paid or delivered any fee,
commission or other sum of money or item of property, however characterized, to
any person, government official or other party, in any manner related to the
business or operations of the Company, which may have been illegal under any
federal, state or local law and which may have a material adverse effect on the
business, properties or assets of the Company.
3.21. FINANCIAL STATEMENTS. The Company has delivered to Purchaser (i)
the consolidated audited balance sheet of the Company for its fiscal years ended
December 31, 1997 and December 31, 1996, and the consolidated audited statements
of operation, stockholders' equity and changes in financial position for the
fiscal years then ended, each accompanied by a report of the Company's
independent certified public accountants, (ii) the consolidated unaudited
balance sheet of the Company as of December 31, 1998 and the consolidated
unaudited statements of operations, stockholders' equity and changes in
financial position for the fiscal year then ended, and (iii) the consolidated
unaudited balance sheet of the Company as of February 28, 1999, and the
consolidated unaudited statements of operations, stockholders' equity and
changes in financial position for the two month period then ended (all of the
financial statements referred
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to the preceding clauses (i), (ii), and (iii) are herein collectively referred
to as the "Financial Statements"). All of the Financial Statements, including
the notes thereto, (i) have been prepared in accordance with the books and
records of the Company, (ii) present fairly in all material respects the
financial position of the Company as of their respective dates and the results
of operations and changes in financial position for the respective periods
indicated, and (iii) have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis (except as otherwise noted
in the notes thereto), subject in the case of unaudited statements normal year
end adjustments. SCHEDULE 3.21 sets forth all changes in accounting methods (for
financial accounting purposes) made, agreed to or requested or required with
respect to the Company during the past five years. Except as set forth in the
Financial Statements, the Company has no liabilities, contingent or absolute,
matured or unmatured, except for liabilities incurred in the ordinary course of
business which, in the aggregate, do not have a material adverse effect upon the
Company.
Section 3.22 ENVIRONMENTAL MATTERS.
(a) The Company is in material compliance with all Environmental Laws
(as defined below). The Company does not have any material liability under any
Environmental Law, nor is the Company responsible for any liability of any other
person under any Environmental Law. There are no pending or, to the knowledge of
the Company, threatened actions, suits, claims, legal proceedings or other
proceedings based on, and the Company has not directly or indirectly received
any notice of any complaint, order, directive, citation, notice of
responsibility, notice of potential responsibility, or information request from
any government entity or any other person arising out of or attributable to: (i)
the current or past presence at any location of Hazardous Materials (as defined
below) or any substances that pose a hazard to human health or an impediment to
working conditions; (ii) the current or past release or threatened release into
the environment of any Hazardous Materials or any substances that pose a hazard
to human health or an impediment to working conditions; (iii) the off-site
disposal of Hazardous Materials; or (iv) any violation of Environmental Laws or
otherwise arising from the Company's activities whether or not involving
Hazardous Materials.
(b) As used herein, these terms shall have the following meanings:
(i) "ENVIRONMENTAL LAWS" means all applicable federal, state and
local laws, rules, requirements and regulations relating to pollution, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or protection of human health as
it relates to the environment including, without limitation, laws and
regulations relating to releases of Hazardous Materials, or otherwise relating
to the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials or relating to management of
asbestos in buildings.
(ii) "HAZARDOUS MATERIALS" means wastes, substances, or materials
(whether solids, liquids or gases) that are deemed hazardous, toxic, pollutants,
or contaminants, including without limitation, substances defined as "hazardous
substances", "toxic substances",
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"radioactive materials", or other similar designations in, or otherwise subject
to regulation under, any Environmental Laws.
ARTICLE 4.
COVENANTS OF THE COMPANY
4.1. COVENANTS OF THE COMPANY OTHER THAN REPORTING REQUIREMENTS.
Without limiting any other covenants and provisions hereof, the Company
covenants and agrees that following the Closing until Purchaser no longer owns
the Shares or any shares of Common Stock into which the Shares are convertible,
it will perform and observe the following covenants and provisions and will
cause each Subsidiary to perform and observe such of the following covenants and
provisions as are applicable to such Subsidiary:
(a) PAYMENT OF TAXES AND TRADE DEBT. The Company shall pay and
discharge, and cause each Subsidiary to pay and discharge, all taxes,
assessments and governmental charges or levies imposed upon it or upon
its income or profits or business, or upon any properties belonging to
it, prior to the date on which penalties attach thereto, and all lawful
claims, which, if unpaid, might become a material lien or charge upon
any properties of the Company or any Subsidiary, provided that neither
the Company nor any Subsidiary shall be required to pay any such tax,
assessment, charge, levy or claim that is being contested in good faith
if the Company or Subsidiary concerned shall have set aside on its
books adequate reserves with respect thereto as shall be determined by
its Board of Directors. The Company shall pay and cause each Subsidiary
to pay, when due, or in conformity with customary trade terms, all
lease obligations, all trade debt and all other Indebtedness incident
to the operations of the Company or its Subsidiaries, except such as
are being contested in good faith if the Company or Subsidiary
concerned shall have set aside on its books adequate reserves with
respect thereto as shall be determined by its Board of Directors.
(b) MAINTENANCE OF INSURANCE. The Company shall maintain, and
cause each Subsidiary to maintain, with responsible and reputable
insurance companies or associations insurance in such amounts and
covering such risks as the Board of Directors deems adequate and
advisable given the nature of the businesses conducted by the Company
and each such Subsidiary (including directors and officers liability
insurance).
(c) PRESERVATION OF CORPORATE EXISTENCE. The Company shall use its
best efforts to preserve and maintain, and cause each Subsidiary to use
its best efforts to preserve and maintain, its corporate existence,
rights, franchises and privileges in the jurisdiction of its
incorporation, and qualify and remain qualified, and cause each
Subsidiary to qualify and remain qualified, as a foreign corporation in
each jurisdiction in which such qualification is necessary or desirable
in view of its business and operations or ownership of its properties.
The Company shall use its best efforts to preserve and
12
maintain, and cause each Subsidiary to preserve and maintain, to the
extent of their respective rights therein, all licenses and other
rights to use patents, permits, trade secrets, processes, licenses,
trademarks, trade names, inventions, intellectual property rights,
copyrights or franchises owned or possessed by it and necessary to the
conduct of its business.
(d) COMPLIANCE WITH LAWS. The Company shall comply, and cause each
Subsidiary to comply, in all material respects with all applicable
laws, rules, regulations and orders of any governmental authority,
noncompliance with which could materially adversely affect its business
or condition, financial or otherwise, except non-compliance being
contested in good faith through appropriate proceedings so long as the
Company shall have set up sufficient reserves, if any, required under
generally accepted accounting principles with respect to such items.
(e) KEEPING OF RECORDS AND BOOKS OF ACCOUNT. The Company shall
keep, and cause each Subsidiary to keep, adequate records and books of
account in accordance with generally accepted accounting principles
consistently applied.
(f) MAINTENANCE OF PROPERTIES. The Company shall maintain and
preserve, and cause each Subsidiary to maintain and preserve, all of
its properties, necessary or useful in the proper conduct of its
business, in good repair, working order and condition, ordinary wear
and tear excepted.
(g) INSPECTION. The Company shall, upon receipt of reasonable
notice and subject to reasonable security measures, permit Purchaser
and any of its respective representatives to visit and inspect any of
the properties of the Company or any Subsidiary during normal business
hours, including, without limitation, their books and records (and to
make extracts therefrom and copies thereto) and to discuss the
Company's affairs, finances and accounts with its officers, employees
and independent public accountants.
(h) LIQUIDATION, RECAPITALIZATION, ETC. The Company shall not, and
shall not permit any of its Subsidiaries to, liquidate, dissolve or
effect a recapitalization or reorganization in any form of transaction
without the prior written consent of the Purchaser; provided, however,
that such prohibition shall not prevent the Company from transferring
assets to wholly-owned subsidiaries of the Company or of other
wholly-owned subsidiaries of the Company in the ordinary course of
business.
(i) BUDGETS AND BOARD APPROVAL. Prior to the commencement of each
fiscal year, the Company shall prepare and submit to, and obtain the
approval of a majority of, the Board of Directors of a budget for the
upcoming fiscal year, including projections of capital and operating
expenses, cash flow, and profits and losses, all itemized in reasonable
detail for the Company and its Subsidiaries on a consolidated basis.
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(j) INDEMNIFICATION PROVISIONS; DIRECTOR INSURANCE. The Articles
of Incorporation or Bylaws of the Company shall at all times provide
for the indemnification of members of the Board of Directors to the
full extent provided by law of the State of Nevada. The Company shall
purchase and maintain insurance on behalf of each individual who is or
was a director of the Company against liability asserted against or
incurred by him in that capacity or arising from his status as a
director, whether or not the Company would have power to indemnify him
against the same liability under applicable law.
(k) DEALINGS WITH AFFILIATES AND OTHERS. The Company shall not,
and shall not permit any Subsidiary to (i) enter into any transaction,
including any loans or extensions of credit or royalty agreements, with
any officer, director or stockholder of the Company or any member of
their respective immediate families or any corporation or other entity
directly or indirectly controlled by one or more of such officer,
directors, stockholders or members of their immediate families (which
shall be deemed to include Primicide, L.C.) unless such transaction is
approved in advance by a majority of disinterested members of the Board
of Directors and is on terms that are at arms-length, or (ii) use any
proceeds from the sale of the Shares contemplated hereby to repay any
indebtedness of the Company, including any indebtedness to current
executive officers or principal stockholders of the Company.
(l) CONSIDERATION FOR ISSUANCE OF SHARES. The Company shall not
issue, sell or exchange, agree to issue, sell or exchange, or reserve
or set aside for issuance, sale or exchange, for consideration, the
amount of which is less than fair market value, as determined in good
faith by the Board of Directors, (i) any share of Common Stock, (ii)
any other equity security of the Company, including, without
limitation, shares of preferred stock, (iii) any debt security of the
Company that by its terms is convertible into or exchangeable for any
equity security of the Company, (iv) any security of the Company that
is a combination of debt and equity, or (v) any option, warrant or
other right to subscribe for, purchase or otherwise acquire any equity
security or any such debt security, except for shares of Common Stock
issued upon any subdivision or combination of shares of Common Stock.
(m) NEGATIVE PLEDGE. Without the prior written consent of
Purchaser, neither the Company nor any Subsidiary will create, assume
or suffer to exist any Lien on any asset now owned or hereafter
acquired by it, without the prior written consent of Purchaser, except
for purchase money security interests incurred in the ordinary course
of business to acquire equipment used in the Company's operations which
shall not, in the aggregate, exceed $10,000,000.
(n) LIMITATION ON INDEBTEDNESS. Without the prior written consent
of Purchaser, neither the Company nor any Subsidiary shall incur,
guarantee or otherwise become liable with respect to any Indebtedness
except: (i) trade liabilities arising out of the ordinary course of
business; and (ii) Indebtedness to redeem the Series D Preferred Stock.
14
(o) ADDITIONAL LIMITATIONS. Without the prior written consent of
Purchaser, the Company shall be prohibited from creating any security
or contract right that would limit the Company's ability to redeem the
Series D Preferred Stock or pay dividends on the Series D Preferred
Stock.
(p) LIMITATION ON ISSUANCE OF EQUITY SECURITIES. Without the prior
written consent of Purchaser, neither the Company nor any Subsidiary
shall issue any shares of any class or series of its equity securities
except for the Shares and the shares of Common Stock into which the
Series A, B, C and D Preferred Stock are convertible in accordance with
the terms thereof.
(q) LIMITATION ON DISTRIBUTIONS. Without the prior written consent
of Purchaser, the Company shall not pay any dividend on, make any other
distributions with respect to or purchase or redeem any shares of its
capital stock except for the payment of dividends on the Preferred
Stock in accordance with its terms.
(r) LIMITATION ON REDEMPTION OF DEBT. Without the prior written
consent of Purchaser, the Company shall not, and shall not permit any
Subsidiary to, redeem or purchase any Indebtedness issued by it prior
to the stated maturity date thereof, except as may be approved by a
majority of the Board of Directors.
(s) LIMITATIONS ON AMENDMENTS. Without the prior written consent
of Purchaser, the Company shall not amend any provision of its Articles
of Incorporation, as amended through the date of this Agreement, or its
Bylaws, as amended through the date of this Agreement, except for any
such amendment necessary in connection with the transactions
contemplated hereby.
(t) LIMITATIONS ON COMPANY ACTIONS. Without the prior written
Consent of the Purchaser, the Company shall not, and shall not permit
any Subsidiary to, (i) sell all or substantially all of its assets or
merge with or into or consolidate with any other corporation, entity or
Person, except that wholly-owned subsidiaries of the Company may merge
into the Company or into other wholly-owned subsidiaries of the
Company, (ii) make any loan or advance to, any Person, including,
without limitation any employee, director or stockholder of the Company
or any Subsidiary, except advances made in the ordinary course of
business to a wholly-owned Subsidiary of the Company, (iii) take any
action to effect the dissolution, winding up, or liquidation of the
Company, or to initiate any proceedings in the nature of bankruptcy,
receivership, or insolvency proceedings of any kind, (iv) make any
material changes in the compensation of the employees, officers, and
directors of the Company, or (v) engage in any activity outside the
ordinary course of the Company's business or that may have a
detrimental effect on the Company.
(u) PHANTOM STOCK. The Company shall not create any right to
acquire an equity interest, or any interest measured by income, profits
or any results of operations or by the value of any stock, or any
similar or related right of interest.
15
(v) ASSET SALES. The Company shall not, and shall not permit any
Subsidiary to sell, lease or otherwise dispose of any of its or their
respective properties or assets except sales, leases or other
dispositions (i) made in the ordinary course of the Company's business,
(ii) the proceeds of which are used to redeem the Series D Preferred
Stock, or (iii) approved by the Purchaser.
(w) SUBSIDIARIES. As long as the Series D Preferred Stock remains
outstanding, the Company shall not, and shall not permit any subsidiary
to, create any subsidiary. The Company shall not cause or permit any
subsidiary to cease to be a wholly-owned subsidiary without the consent
of the holders of the Series D Preferred Stock.
(x) TAX TREATMENT. The Company shall treat the Series D Preferred
Stock as stock for federal, state and local tax purposes and financial
reporting purposes.
4.2. REPORTING REQUIREMENTS. The Company will furnish the following to
Purchaser, for so long as such Purchaser owns the Shares or shares of Common
Stock into which the Shares have been converted:
(a) the Company shall provide copies of its annual reports on Form
10-K, its quarterly reports on Form 10-Q, its proxy statement and any
reports on Form 8-K, including all exhibits thereto and copies of all
documents incorporated by reference therein, all within seven days of
filing such reports with the Securities and Exchange Commission;
(b) promptly after an overt threat or the commencement thereof,
notice of all actions, suits and proceedings before any court or
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, that might result in a material
adverse effect on the Company and its Subsidiaries taken as a whole;
(c) at least 30 days prior to commencement of each fiscal year of
the Company, a copy of the operating plan and budget;
(d) within five business days after the Company learns of any
circumstance or event which reasonably can be expected to have a
material adverse effect on the assets, properties, liabilities,
financial condition, results of operations, business, or prospects of
the Company, written notice of the nature and extent of such
circumstance or event; and
(e) within ten business days after Purchaser makes a request
therefore, such other data relating to the business, affairs and
financial condition of the Company or its Subsidiaries.
4.3. BOARD REPRESENTATION. For as long as the Series D Preferred Stock
remains outstanding, the holders of the Series D Preferred Stock shall be
entitled to elect not less than 20% of the directors to serve on the Company's
Board of Directors.
16
4.4. LOCK-UP AGREEMENTS. The Company shall take all such steps as
necessary to enforce the provisions of the Lock-up Agreements dated the date
hereof with each of Xxxxxxx Xxxxxx and Xxxx Xxxxxxx and to restrict the sale or
transfer of the shares subject to such Lock-up Agreements, including, but not
limited to, notifying the Company's transfer agent of the existence of such
Lock-up Agreements.
ARTICLE 5.
DEFINITIONS AND ACCOUNTING TERMS
5.1. CERTAIN DEFINED TERMS. As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"Agreement" means this Stock Purchase Agreement as from time to
time amended and in effect between the parties.
"Board of Directors" shall mean the then present members of the
Board of Directors of the Company.
"Certificate of Designation" means the Certificate of Designation
establishing the Series D Preferred Stock.
"Company" means and shall include Venturi Technologies, Inc., a
corporation organized and existing under the laws of the State of Nevada, and
its successors and assigns.
"ERISA" means the federal Employee Retirement Income Security Act
of 1974, as amended.
"'Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of the
Securities and Exchange Commission (or of any other federal agency then
administering the Exchange Act) thereunder, all as the same shall be in effect
at the time.
"GAAP" means generally accepted accounting principles as applied
in the United States of America at the time of determination thereof.
"Indebtedness" means any and all indebtedness of the Company: (i)
in respect of borrowed money (whether or not the recourse of the lender is to
the whole of the assets of the Company or only to a portion thereof); (ii)
evidenced by bonds, notes, debentures or similar instruments, or representing
the balance deferred and unpaid of the purchase price of any property that
constitutes debt in accordance with GAAP; (iii) reflecting any obligation of the
Company to pay future rentals or other payments with respect to any property or
otherwise which obligation would be required to be capitalized in accordance
with GAAP; (iv) any right in
17
respect of the Company which is convertible into any such obligation; (v) all
such obligations of third parties which the Company has directly or indirectly
incurred, assumed, guaranteed or otherwise become liable for, and (vi) including
the deferred purchase price of assets or services payable to the sellers thereof
or any of such sellers' assignees which in accordance with GAAP would be shown
on the liabilities side of the balance sheet of such person (but excluding
deferred rent as determined in accordance with GAAP and deferred, federal or
state income taxes) and the face amount of all letters of credit issued for the
account of such person and, without duplication, all drafts drawn thereunder.
"Indemnitees" shall have the meaning assigned to that term in
Section 6.1.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any agreement to give any of the
foregoing), any conditional sale or other title retention agreement, any
financing or similar statement or notice filed under the UCC or any similar
recording or notice statute and any lease having substantially the same effect
as the foregoing.
"Loss" and "Losses" shall have the meanings assigned to such terms
in Section 6.1 hereof
"Person" means an individual, corporation, partnership, joint
venture, trust, or unincorporated organization, or a government or any agency or
political subdivision thereof
"Purchaser" means Xxxxxxxx Group, LLC.
"Securities Act" means the Securities Act of 1933, as amended, or
any similar federal statute, and the rules and regulations of the Securities and
Exchange Commission (or of other federal agency then administering the
Securities Act) thereunder, all as the same shall be in effect at the time.
"Shares" shall have the meaning assigned to that term in Section
1.1 hereof.
"Subsidiary" or "Subsidiaries" means any corporation, 50% or more
of the outstanding voting stock of which shall at the time of determination be
owned by the Company or by one or more Subsidiaries, or any other entity or
enterprise, 50% or more of the equity of which shall at the time of
determination be owned by the Company or by one or more Subsidiaries; PROVIDED
that with respect to the Company, as long as the Series D Preferred Stock
remains outstanding the Company must own 100% of the equity of such entity.
5.2. ACCOUNTING TERMS. All accounting terms not specifically defined
herein shall be construed in accordance with GAAP.
ARTICLE 6.
18
INDEMNIFICATION BY THE COMPANY
6.1. INDEMNIFICATION. Notwithstanding anything in this Agreement to the
contrary, each party hereto (an "Indemnifying Party") shall indemnify, defend
and hold the other party and its officers, members and affiliates (individually,
an "Indemnitee" and collectively, the "Indemnitees"), harmless from and against
any and all demands, claims, actions, lawsuits, obligations, losses,
liabilities, damages, costs and expenses whatsoever (including, without
limitation, any fines, penalties and attorneys' fees and other expenses incurred
in investigating and defending any of the foregoing or enforcing this Agreement)
(all such demands, claims, actions, lawsuits, obligations, losses, liabilities,
damages, costs and expenses are herein collectively referred to as "Losses" and
individually referred to as a "Loss") asserted against, imposed upon or incurred
by an Indemnitee by reason of or in connection with (a) any inaccuracy in, or
breach of, any of the representations or warranties of the Indemnifying Party
set forth in this Agreement or the Exhibits or Schedules hereto, and (b) any
breach by the Indemnifying Party of any of its covenants, obligations or
agreements contained in this Agreement or in any other instrument or document
delivered in connection with the transactions contemplated by this Agreement.
ARTICLE 7.
MISCELLANEOUS
7.1. NO WAIVER; CUMULATIVE REMEDIES. No failure or delay on the part of
Purchaser, or any other holder of the Shares in exercising any right, power or
remedy hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right, power or remedy preclude any other or
further exercise thereof or the exercise of any other right, power or remedy
hereunder. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
7.2. NOTICE. All notices, requests, demands, consents, approvals,
agreements, or other communications to or by a party to this Agreement shall (i)
be in writing addressed to the authorized address of the recipient set out in
this Section 7.2 or to such other address as it may have notified the sender,
(ii) be signed by an authorized officer of the sender, and (iii) be delivered in
person or sent by registered or certified mail, postage prepaid, return receipt
requested or by facsimile transmission. Any such communication shall duly given
or made (A) in the case of delivery in person, when actually received by the
recipient, (B) in the case of mailing, three days after delivery to the U.S.
Postal Service or (C) in the case of facsimile transmission, when received in
legible form by the recipient at the fax number set forth below and when the
recipient has been requested to acknowledge receipt of the entire facsimile
transmission, upon the sending and receiving of the acknowledgment of receipt
(which acknowledgment the recipient will promptly give); but if such delivery or
dispatch is later than 5:00 pm local time on a day on which business is
generally carried on in the place to which such communication is sent or occurs
on a day on which business is not generally carried on in the place to which
such
19
communication is sent, it will be deemed to have been duly given or made at the
commencement of business on the next day on which business is generally carried
on in that place.
If to the Company: Venturi Technologies, Inc.
0000 Xxxxx Xxxxx
Xxxx, Xxxx 00000
Attention:
with a copy to: Xxxxx X. Xxxxxxx, Esq.
Xxxxxx, Price & Xxxxxxxx
000 X. Xxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000-0000
If to the Purchaser: Xxxxxxxx Group, LLC
0000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
Attention: Chief Operating Officer
with a copy to: Xxxxxxx X. Xxxx, Esq.
Xxxxxxxxxx, Xxxxxx & Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
7.3. COSTS, EXPENSES AND TAXES. The Company shall pay any and all stamp
and other taxes payable or determined to be payable in connection with the
execution and delivery of this Agreement, the Shares and other instruments and
documents to be delivered hereunder or thereunder and agrees to hold the
Purchaser harmless from and against any and all liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes and filing
fees.
7.4. BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding upon
and inure to the benefit of the Company and the Purchaser and its respective
successors and assigns, except that the Company shall not have the right to
assign its rights hereunder or any interest herein without the prior written
consent of the Purchaser.
7.5. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made in this Agreement, the Shares, or any other instrument or
document delivered in connection herewith or therewith, shall survive the
execution and delivery hereof or thereof.
7.6. PRIOR AGREEMENTS. This Agreement constitutes the entire agreement
between the parties and supersedes any prior understandings or agreements
concerning the subject matter hereof.
7.7. SEVERABILITY. The invalidity or unenforceability of any provision
hereof shall in no way affect the validity or enforceability or any other
provision.
20
7.8. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the substantive laws of the State of Georgia without giving
effect to the conflict of law provisions thereof.
7.9. HEADINGS. Article, Section and subsection headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purposes.
7.10. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
7.11. FURTHER ASSURANCES. From and after the date of this Agreement,
upon the request of the Purchaser, the Company and each Subsidiary shall execute
and deliver such instruments, documents and other writings as may be necessary
or desirable to confirm and carry out and to effectuate fully the intent and
purposes of this Agreement.
IN WITNESS WHEREOF, the undersigned have caused their duly authorized
representatives to execute this Agreement as of the date first above written.
VENTURI TECHNOLOGIES, INC.
By: /s/ XXXXXXX XXXXXX
------------------------------
Title: CEO
------------------------------
XXXXXXXX GROUP, LLC
By: /s/ XXXX X. XXXXXXXXX
------------------------------
Title: CEO
------------------------------
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LIST OF EXHIBITS AND SCHEDULES
Exhibit A - Opinion of Mackey Price & Xxxxxxxx, P.C.
Exhibit B - Marketing Agreement (included as Exhibit C to this Schedule 13D)
Exhibit C - Registration rights Agreement (included as Exhibit D to this Schedule
13D)
Exhibit D - Lock-up Agreements (included as Exhibits E and F to this Schedule 13D)
Schedule 3.1 - Organization and Standing of the Company
Schedule 3.4 - Litigation
Schedule 3.5 - Compliance with Other Instruments
Schedule 3.6(a) Title to Assets and Properties - Liens and Encumbrances
Schedule 3.6(c) Title to Assets and Properties - Intellectual Property
Schedule 3.7 - Insurance
Schedule 3.9 - Transactions with Affiliates
Schedule 3.11 - Investments in Other Persons
Schedule 3.13 - Registration Rights
Schedule 3.16 - Brokers and Finders
Schedule 3.17 - Employees
Schedule 3.18(a) Capitalization
Schedule 3.18(c) ProForma Capitalization
Schedule 3.21 - Changes in Accounting Methods
In accordance with the rules and regulations of the Securities and Exchange
Commission, and except as otherwise noted above, these schedules and exhibits
have been omitted. The filer of
22
this exhibit hereby agrees to furnish supplementally to the Commission a copy of
any omitted schedule upon request.
23
