EXHIBIT 10.49
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (the "Agreement") is entered into as of
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May 10, 2001 by and between XxxxxxXxxxxxx.xxx, a Delaware corporation (the
"Company"), and the persons and entities listed on Exhibit A hereto, as may be
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amended hereby to add additional Warrant Share Holders as provided in the
Purchase Agreement (the "Warrant Share Holders"). For purposes of this
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Agreement, the term "Warrant Share Holders" includes all subsequent holders of
Warrant (as defined below). Any capitalized terms used herein but not defined
herein shall have the meanings ascribed to them in that certain Note and Warrant
Purchase Agreement, dated May 10, 2001 by and among the Company and the Warrant
Share Holders (the "Purchase Agreement").
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RECITALS
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1. The Company and the Warrant Share Holders have concurrently herewith
entered into a Purchase Agreement pursuant to which the Warrant Share Holders
will purchase Notes and Warrants (each, as defined thereunder).
2. A condition to the Warrant Share Holders obligations' under the
Purchase Agreement is that the Company grant certain Form S-3 and piggyback
registration rights to the Warrant Share Holders with respect to the shares of
Common Stock issuable upon exercise of the Warrants (the "Warrant Shares").
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3. The Company wishes to execute this Agreement and grant the Warrant
Share Holders the rights contained herein.
AGREEMENT
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The parties hereby agree as follows:
1. Registration Rights. The Company and the Warrant Share Holders
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covenant and agree as follows:
1.1 Definitions. For purposes of this Section 1:
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(a) The terms "register," "registered," and "registration" refer
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to a registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act of 1933, as amended (the
"Securities Act") on Form S-3, and the declaration or ordering of effectiveness
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of such registration statement or document;
(b) The term "Registrable Securities" means:
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(i) the Warrant Shares; and
(ii) any other shares of Common Stock of the Company issued
as (or issuable upon the conversion or exercise of any warrant, right or other
security which is issued as) a dividend or other distribution with respect to,
or in connection with a stock split, or in exchange for or in replacement of,
the Warrant Shares, excluding in all cases, however, any Registrable Securities
sold by a person in a transaction in which his or her rights under this
Agreement are not assigned; provided, however, that the Warrant Shares shall
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only be treated as Registrable Securities if and so long as they have not been
(A) sold to or through a broker or dealer or underwriter in a public
distribution or a public securities transaction, or (B) sold in a transaction
exempt from the registration and prospectus delivery requirements of the
Securities Act under Section 4(1) thereof so that all transfer restrictions, and
restrictive legends with respect thereto, if any, are removed upon the
consummation of such sale;
(c) The term "Holder" means any holder of outstanding
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Registrable Securities who, subject to the limitations set forth in Section 1.10
below, acquired such Registrable Securities in a transaction or series of
transactions not involving any registered public offering;
(d) The term "Form S-3" means such form under the Securities Act
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as in effect on the date hereof or any successor form under the Securities Act;
and
(e) The term "SEC" means the Securities and Exchange Commission.
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1.2 Form S-3 Registration. Subject to the terms and conditions of
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this Agreement, on or before the date that is sixty (60) days following the
Closing (the "S-3 Date"), the Company will either: (i) amend the Form S-3
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registration statement that is currently effective to include the Registrable
Securities therein, or (ii) file with the SEC a registration statement on Form
S-3, in which case it will use its best efforts to effect such registration and
any related qualification or compliance with respect to all Registrable
Securities owned by the Holders as soon as practicable thereafter, provided
however that the Company may defer filing a registration statement on Form S-3
pursuant to subsection 1.2(b)(i) or subsection 1.2(b)(ii) below. Accordingly,
the Company will:
(a) promptly give written notice of the registration, and any
related qualification or compliance, to all Holders;
(b) as soon as practicable, effect such registration and all
such qualifications and compliances as may be necessary and as would permit or
facilitate the sale and distribution of all of the Holders' Registrable
Securities; provided, however, that the Company shall not be obligated to effect
any such registration, qualification or compliance, pursuant to this Section 1.2
if (i) the Company shall furnish to the Holders a certificate signed by the
President of the Company stating that in the good faith judgment of the Board of
Directors of the Company, it would be seriously detrimental to the Company and
its stockholders for such Form S-3 Registration to be effected at such time, in
which event the Company shall have the right to defer the filing of the Form S-3
registration statement for a reasonable period of time, which shall not exceed
thirty (30) days after the S-3 Date, under this Section 1.2 or (ii) Form S-3 is
not available
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for such offering by the Holder(s), provided, however, that if Form S-3 is not
available, Company shall file the Form S-3 registration statement once it is
available; and
(c) any and all expenses incurred in connection with a
registration requested pursuant to this Section 1.2 shall be borne by the
Company, including all registration, filing, qualification, printers' and
accounting fees but excluding any underwriters' discounts or commissions and any
fees and disbursements of any counsel for the selling Holders (such fees or
discounts, if any, to be borne pro rata by the Holders participating in the
registration);
provided, however, that the Company shall not be obligated to effect
any such registration, qualification or compliance, pursuant to this Section 1.2
(i) if the Company shall furnish to the Holders a certificate signed by the
President of the Company stating that in the good faith judgment of the Board of
Directors of the Company, it would be seriously detrimental to the Company and
its stockholders for such Form S-3 Registration to be effected at such time, in
which event the Company shall have the right to defer the filing of the Form S-3
registration statement for a reasonable period of time, which shall not exceed
thirty (30) days after the S-3 Date, under this Section 1.2 or (ii) if Form S-3
is not available for such offering by the Holder(s), provided, however, that if
Form S-3 is not available, Company shall file the Form S-3 registration
statement once it is available.
1.3 Obligations of the Company. Whenever required under this Section
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1 to effect the registration of any Registrable Securities, the Company shall,
as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and keep such registration statement
effective until the earlier of: (i) the date on which all the Registrable
Securities are sold thereunder, or (ii) 120 days.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement pursuant to the terms and
subject to the conditions of this Agreement.
(c) Furnish to the Holder(s) such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holder(s),
provided that the Company shall not be required in connection therewith or as a
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condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
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(e) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, such obligation to continue for so long as the Company agrees to keep
the registration statement effective pursuant to the terms of Section 1.3(a),
whereupon each Holder shall cease utilizing such prospectus until such time as
the Company files a supplement or file a post-effective amendment to the
registration statement or the prospectus or any document incorporated therein by
reference or files any other report or document so that, as thereafter delivered
to the purchasers of the Registrable Securities, the prospectus will not contain
an untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading (a "Prospectus Update").
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As soon as the Prospectus Update has been effectuated, the Company will notify
each Holder that the prospectus is available for use, whereupon each such Holder
may thereupon commence utilizing such prospectus.
(f) Cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange or other market on which
similar securities issued by the Company are then listed.
(g) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
1.4 Furnish Information. It shall be a condition precedent to the
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obligations of the Company to take any action pursuant to this Section 1 with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's Registrable
Securities.
1.5 Expenses of Registration. All expenses incurred in connection
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with registrations, filings or qualifications of Registrable Securities pursuant
to Section 1.2 for each Holder (which right may be assigned as provided in
Section 1.9), including (without limitation) all registration, filing, and
qualification fees, printers' and accounting fees, and fees and disbursements of
counsel for the Company, shall be borne by the Company. The Company shall not be
required to pay any underwriters' or brokers' fees, discounts or commissions
relating to the Registrable Securities, or the fees or expenses of separate
counsel to the selling Holder(s) (such fees or discounts, if any, to be borne
pro rata by the Holders participating in the registration).
1.6 Delay of Registration. No Holder shall have any right to obtain
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or seek an injunction restraining or otherwise delaying any such registration as
the result of any
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controversy that might arise with respect to the interpretation or
implementation of this Section 1.
1.7 Indemnification. In the event any Registrable Securities are
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included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, any underwriter (as defined in the Securities
Act) for such Holder and each person, if any, who controls such Holder or
underwriter within the meaning of the Securities Act or the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), against any losses, claims,
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damages, or liabilities (joint or several) to which they may become subject
under the Securities Act, the Exchange Act or other federal or state law,
insofar as such losses, claims, damages, or liabilities (or actions in respect
thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively a "Violation"): (i) any untrue statement
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or alleged untrue statement of a material fact contained in such registration
statement, including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto, (ii) the omission or alleged
omission to state therein a material fact required to be stated therein, or
necessary to make the statements therein not misleading, or (iii) any violation
or alleged violation by the Company of the Securities Act, the Exchange Act, any
state securities law or any rule or regulation promulgated under the Securities
Act, the Exchange Act or any state securities law; and the Company will pay to
each such Holder, underwriter or controlling person, as incurred, any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided, however,
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that the indemnity agreement contained in this subsection 1.7(a) shall not apply
to amounts paid in settlement of any such loss, claim, damage, liability, or
action if such settlement is effected without the consent of the Company (which
consent shall not be unreasonably withheld), nor shall the Company be liable to
any Holder, underwriter or controlling person for any such loss, claim, damage,
liability, or action to the extent that it arises out of or is based upon a
Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Securities Act, any underwriter,
any other Holder selling securities in such registration statement and any
controlling person of any such underwriter or other Holder, against any losses,
claims, damages, or liabilities (joint or several) to which any of the foregoing
persons may become subject, under the Securities Act, the Exchange Act or other
federal or state law, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by such
Holder expressly for use in connection with such registration; and each such
Holder will pay, as incurred, any legal or other expenses reasonably incurred by
any person intended to be indemnified pursuant to this subsection 1.7(b), in
connection with investigating or defending any such loss, claim, damage,
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liability, or action; provided, however, that the indemnity agreement contained
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in this subsection 1.7(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld; provided, that in no event shall any indemnity under this subsection
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1.7(b) exceed the net proceeds from the offering received by such Holder, except
in the case of willful fraud by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 1.7 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.7, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
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(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the reasonable fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1.7, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 1.7.
(d) If the indemnification provided for in this Section 1.7 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations; provided, that in no event shall any contribution by a Holder
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under this Subsection 1.7(d) exceed the net proceeds from the offering received
by such Holder, except in the case of willful fraud by such Holder. The relative
fault of the indemnifying party and of the indemnified party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party and
the parties' relative intent, knowledge, access to information, and opportunity
to correct or prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in
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connection with the underwritten public offering are in conflict with the
foregoing provisions, the provisions in the underwriting agreement shall
control.
(f) The obligations of the Company and Holder(s) under this
Section 1.7 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
1.8 Reports Under Securities Exchange Act of 1934. With a view to
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making available to the Holder(s) the benefits of Rule 144 promulgated under the
Securities Act and any other rule or regulation of the SEC that may at any time
permit a Holder to sell securities of the Company to the public without
registration or pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in SEC Rule 144, at all times so long as the Company
remains subject to the periodic reporting requirements under Sections 13 or
15(d) of the Exchange Act;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
(c) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC Rule 144,
the Securities Act and the Exchange Act, (ii) a copy of the most recent annual
or quarterly report of the Company and such other reports and documents so filed
by the Company, and (iii) such other information as may be reasonably requested
in availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration.
1.9 Assignment of Registration Rights. The rights to cause the
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Company to register Registrable Securities pursuant to this Section 1 may be
assigned by any Holder to a transferee or assignee of all of such Holder's
Registrable Securities, provided the Company is, within a reasonable time after
such transfer, furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned; and provided, further, that such
assignment shall be effective only if immediately following such transfer the
further disposition of such securities by the transferee or assignee is
restricted under the Securities Act.
1.10 Certain Additional Agreements of the Holder(s).
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(a) Prior to and so long as the registration statement shall
remain effective, each Holder shall:
(i) Not engage in any stabilization activity in connection
with the Company's Common Stock;
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(ii) Not bid for or purchase any of the Company's Common
Stock or any rights to acquire the Company's Common Stock, or attempt to induce
any person to purchase any of the Company's Common Stock other than as permitted
under the Exchange Act; or
(iii) Effect all sales of Registrable Securities in broker's
transactions through broker-dealers acting as agents, in transactions directly
with market makers or in privately negotiated transaction where no broker or
other third party (other than the purchaser) is involved.
(b) Without limiting any other provision of this Agreement, no
Holder shall engage in any short-sales of the Company's Common Stock prior to
the effectiveness of the registration statement pursuant to which the Holder(s)
is offered the opportunity to sell its Registrable Securities hereunder, except
to the extent that any such short-sale is fully covered by freely tradable
shares of the Company's Common Stock.
1.11 Termination of Registration Rights. The rights granted under this
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Section 1, including the rights to utilize any previously filed registration
statements, shall terminate upon the earlier of (a) eighteen months following
the date of this Agreement, or (b) at such time as the Holder(s) may sell all of
its Registrable Securities in any single three month period pursuant to Rule 144
(or such successor rule as may be adopted).
2. Miscellaneous.
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2.1 Amendments and Waivers. Any term of this Agreement may be
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amended or waived with the written consent of the Company and the holders of
seventy five percent (75%) of the Warrant Shares then held by all Holders. Any
amendment or waiver effected in accordance with this Section 2.1 shall be
binding upon the parties and their respective successors and assigns.
2.2 Successors and Assigns. Subject to the provisions of Section
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1.9, 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.
2.3 Governing Law. The corporate laws of the State of Delaware shall
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govern all issues concerning the relative rights of Company and the Holder as a
stockholder. All other questions concerning the construction, validity,
enforcement and interpretation of this Agreement and all acts and transactions
pursuant hereto shall be governed by and construed in accordance with the laws
of the State of California, without regard to principles of conflicts of law.
2.4 Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
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2.5 Titles and Subtitles. The titles and subtitles used in this
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Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
2.6 Notices. Any notice required or permitted by this Agreement shall
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be in writing and shall be deemed sufficient upon receipt, when delivered
personally or by courier, overnight delivery service or confirmed facsimile, or
48 hours after being deposited in the regular mail as certified or registered
mail (airmail if sent internationally) with postage prepaid, if such notice is
addressed to the party to be notified at such party's address or facsimile
number as set forth below (or as subsequently modified by written notice):
To the Company: XxxxxxXxxxxxx.xxx
0000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Chief Executive Officer
Phone: 000-000-0000
Fax: 000-000-0000
With a copy to:
Venture Law Group
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
To the Holders, at the respective addresses on the signature pages and
Exhibit A hereto.
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2.7 Severability. If one or more provisions of this Agreement are
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held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith, in order to maintain the economic position enjoyed
by each party as close as possible to that under the provision rendered
unenforceable. In the event that the parties cannot reach a mutually agreeable
and enforceable replacement for such provision, then (i) such provision shall be
excluded from this Agreement, (ii) the balance of the Agreement shall be
interpreted as if such provision were so excluded and (iii) the balance of the
Agreement shall be enforceable in accordance with its terms.
2.8 Entire Agreement. This Agreement is the product of all of the
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parties hereto, and constitutes the entire agreement between such parties
pertaining to the subject matter hereof, and merges all prior negotiations and
drafts of the parties with regard to the transactions
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contemplated herein. Any and all other written or oral agreements existing
between the parties hereto regarding such transactions are expressly canceled.
2.9 Advice of Legal Counsel. Each party acknowledges and represents
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that, in executing this Agreement, it has had the opportunity to seek advice as
to its legal rights from legal counsel and that the person signing on its behalf
has read and understood all of the terms and provisions of this Agreement. This
Agreement shall not be construed against any party by reason of the drafting or
preparation thereof.
2.10 Delays or Omissions. No delay or omission to exercise any right,
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power or remedy accruing to any party to this Agreement, upon any breach or
default of the other party, shall impair any such right, power or remedy of such
non-breaching party nor shall it be construed to be a waiver of any such breach
or default, or an acquiescence therein, or of 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 made in writing and shall be effective
only to the extent specifically set forth in such writing. All remedies, either
under this Agreement, or by law or otherwise afforded to any Holder, shall be
cumulative and not alternative.
2.11 Third Parties. Nothing in this Agreement, express or implied, is
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intended to confer upon any party, other than the parties hereto, and their
respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
herein.
2.12 Priority of Rights. The registration rights granted to the
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Holder(s) under this Agreement are intended by the parties to rank pari passu
basis to the piggyback registration rights held by other Company stockholders.
The parties agree to interpret the terms of this Agreement in a manner
consistent with the foregoing intention.
[Signature Page Follows]
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The parties have executed this Agreement as of the date first above written.
COMPANY:
XXXXXXXXXXXXX.XXX
By: /s/ C. Xxxx Xxxxx
---------------------------------
Name: C. Xxxx Xxxxx
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Title: President & CEO
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WARRANT SHARE HOLDERS:
PORRIDGE, LLC
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
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Title: Managing Partner
--------------------------
Address: c/o Pequot Capital
000 Xxxxx Xxxx Xx.
Xxxxxxxx, XX 00000
Attn: Xxx Xxxxxxxx & Xxxxxx X. Xxxxxxx
PAW OFFSHORE FUND, LTD.
By: /s/ Xxxx Xxxxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxxxx
---------------------------------
Title: Chief Op. Officer of Inv. Advisor
---------------------------------
Address: 00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Xxxx Xxxxxxxxx & Xxxxx Xxxxxx
PAW PARTNERS, LP.
By: /s/ Xxxx Xxxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxxx
--------------------------
Title: Chief Op. Officer of G.P.
--------------------------
Address: 00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Xxxx Xxxxxxxxx & Xxxxx Xxxxxx
HELZEL XXXXXXXX, X.X.
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxxx X. Xxxxxx
----------------------------
Title: General Partner
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Address: 0000 Xxxxxxx Xxxx, Xxxxx 0
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx, X.X.
XXXXXXXX LIVING TRUST
By: /s/ Xxxxx Xxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxx
----------------------------
Title: Trustee
---------------------------
Address: 0000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: X. Xxxxxxxx, Trustee
C. XXXX XXXXX
By: /s/ C. Xxxx Xxxxx
----------------------------------
Name: C. Xxxx Xxxxx
----------------------------
Title: ---------------------------
Address: 0000 Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: C. Xxxx Xxxxx
BANK ONE TRUST COMPANY, N.A.
AS TRUSTEE OF XXXXXX X. CHEZ XXX
By: /s/ Xxxx X. Xxxxxxxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxxxxxxx
----------------------------
Title: Vice President
---------------------------
Address: 000 Xxxx Xxxxxxx, Xxxxx 0, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxxx Chez
XXX X. AND XXXXXXXX XXXXXX LIVING TRUST
By: /s/ Xxx X. Xxxxxx
----------------------------------
Name: Xxx X. Helzlel
----------------------------
Title: Trustee
---------------------------
Address: 0000 Xxxxxxx Xxxx, Xxxxx 0
Xxxxxxx, XX 00000
Attn: Xxx Xxxxxx
XXXXX X. XXXXXXXXX
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
----------------------------
Title:____________________________
Address: 00 Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
THE XXXXXXX AND XXXX XXXXXXXXX
REVOCABLE TRUST DATED 1/6/00
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
----------------------------
Title: Trustee
---------------------------
Address: 000 Xxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
XXXXX XXXX
By: /s/ Xxxxx Xxxx
----------------------------------
Name: Xxxxx Xxxx
----------------------------
Title:
---------------------------
Address: 00 Xxxxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
UBS PAINEWEBBER INC.,
NOT IN ITS CORPORATE CAPACITY
BUT SOLELY AS CUSTODIAN FOR THE
INDIVIDUAL RETIREMENT ACCOUNT OF
XXXXXXX XXXXXXXXX XXXXX XX.
By: /s/ Xxxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxxx
----------------------------
Title: President
---------------------------
Address: 0 Xxxxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
THE XXXXX R.E. XXXXXXX SEPARATE
PROPERTY REVOCABLE TRUST,
DATED FEBRUARY 16, 2001
By: /s/ Xxxxx R.E. Xxxxxxx
----------------------------------
Name: Xxxxx R.E. Xxxxxxx
----------------------------
Title: Trustee
---------------------------
Address: c/o Merrill Xxxxx
000 Xxxxxxxxxx Xxxxxx, 0/xx/ Xx.
Xxx Xxxxxxxxx, XX 00000
EXHIBIT A
---------
SCHEDULE OF WARRANT HOLDERS
First Closing: May 10, 2001
Number of Shares Underlying
---------------------------
Name/Address Warrant
------------ -------
Porridge, LLC 5,000,000
c/o Pequot Capital
000 Xxxxx Xxxx Xx.
Xxxxxxxx, XX 00000
Attn: Xxx Xxxxxxxx & Xxxxxx X.
Xxxxxxx
PAW Offshore Fund, Ltd. 2,750,000
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Xxxx Xxxxxxxxx & Xxxxx
Xxxxxx
PAW Partners, LP 2,250,000
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Xxxx Xxxxxxxxx & Xxxxx
Xxxxxx
Xxxxxx Xxxxxxxx, X.X. 500,000
0000 Xxxxxxx Xxxx, Xxxxx 0
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx, X.X.
Xxxxxxxx Living Trust 1,500,000
0000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: X. Xxxxxxxx Trustee
C. Xxxx Xxxxx 500,000
0000 Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: C. Xxxx Xxxxx
Subtotal of First Closing
12,500,000
EXHIBIT A (con't)
-----------------
SCHEDULE OF WARRANT HOLDERS
Other Closings:
---------------
Number of Shares Underlying
Name/Address ---------------------------
------------ Warrant
-------
May 11, 2001
------------
1,000,000
Xxx X. and Xxxxxxxx Xxxxxx Living
Trust
0000 Xxxxxxx Xxxx, Xxxxx 0
Xxxxxxx, XX 00000
Attn: Xxx Xxxxxx
May 15, 2001
------------
1,000,000
Xxxxxx X. Chez XXX
000 Xxxx Xxxxxxx
Xxxxx #0 - Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxxx Chez
May 21, 2001
------------
500,000
Xxxxx X. Xxxxxxxxx
00 Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
May 25, 2001
------------
1,000,000
The Xxxxxxx and Xxxx Xxxxxxxxx
Revocable Trust Dated 1/6/00
000 Xxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
May 29, 2001
------------
500,000
Xxxxx Xxxx
00 Xxxxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Other Closings:
---------------
Number of Shares Underlying
Name/Address ---------------------------
------------ Warrant
-------
June 1, 2001
------------
500,000
UBS Painewebber
as XXX custodian for Xxxxxxx
Xxxxxxxxx Xxxxx Xx.
c/o Pacific Growth Equities
0 Xxxxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
500,000
The Xxxxx R.E. Xxxxxxx Separate
Property Revocable Trust, dated
February 16, 2001
c/o Xxxxxx Xxxxx
000 Xxxxxxxxxx Xxxxxx, 0/xx/ Xxxxx
Xxx Xxxxxxxxx, XX 00000
Subtotal of Other Closings 5,000,000
Subtotal of First Closing 12,500,000
Total of all Closings 17,500,000
