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EXHIBIT 10.14
ICX XXXXXXXXXXX.XXX
SERIES C PREFERRED STOCK PURCHASE AGREEMENT
This Series C Preferred Stock Purchase Agreement ("Agreement") is made
as of January 18, 2001 by and between ICX Xxxxxxxxxxx.xxx, a California
corporation (the "Company"), and Xxx Xxxx ("Investor"). The parties hereby agree
as follows
1. PURCHASE AND SALE OF STOCK
1.1 SALE OF STOCK.
Subject to the terms and conditions of this Agreement,
the Company will issue and sell to Investor, and Investor shall purchase, ten
thousand (10,000) shares of the Company's Series C Preferred Stock, $0.01 par
value (the "Shares"), at a price of $5.00 per share and ten thousand (10,000)
warrants to purchase ten thousand (10,000) shares of the Company's common stock
(the "Warrants") at a price of eight dollars ($8.00) per share. The rights,
preferences and privileges of the Series C Preferred Stock are as set forth in
the Company's Amended and Restated Articles of Incorporation (the "Articles of
Incorporation").
1.2 CLOSING.
(a) The issuance of the Shares shall take place at the
offices of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx
0000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000, at 10:00 A.M., on January 22, 2001, or at
such other time and place as the Company and Investor mutually agree upon orally
or in writing (which time and place are designated as the "Closing").
(b) Subject to the terms of this Agreement, at the
Closing the Company shall deliver to Investor certificates representing the
Shares and the Warrants, against payment of the purchase price therefor by check
or wire transfer.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to each Investor as follows:
2.1 ORGANIZATION AND STANDING. The Company is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
California, and has full power and authority to own and operate its properties
and assets and to carry on its business as presently conducted. The Company is
duly qualified and authorized to do business, and is in good standing as a
foreign corporation, in each jurisdiction where the nature of its activities and
of its properties (both owned and leased) makes such qualification necessary,
except where the failure to so qualify would not have a material adverse effect
upon the business and operations of the Company. The Company has furnished
Investor with copies of its Articles of Incorporation. Said copy is true,
correct, and complete and contain all amendments through the date of the
Closing.
2.2 CAPITALIZATION. As of the Closing, the authorized capital
stock of the Company will consist of 20,000,000 shares of Common Stock, no par
value and 10,000,000 shares of Preferred Stock, no par value, 2,000,000 of which
are designated as Series A Preferred Stock, 1,000,000 of which are designated as
Series B Preferred Stock, and 100,000 of which are designated as Series C
Preferred Stock. Immediately following the Closing, all issued and outstanding
shares of the Company's capital stock have been or will be duly authorized and
validly issued, and have been or will be fully paid and nonassessable.
Immediately prior to the Closing, there will be issued and
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outstanding 1,280,000 shares of Common Stock, 25,000 shares of Series A
Preferred Stock, 280,750 shares of Series B Preferred Stock and 5,000 shares of
Series C Preferred Stock.
2.3 AUTHORIZATION. All corporate action on the part of the
Company, its officers, and directors necessary for the authorization, execution
and delivery of this Agreement, the performance of all the Company's obligations
hereunder and thereunder, and for the authorization, issuance (or reservation
for issuance), and delivery of the Shares and the Common Stock issuable upon
conversion thereof has been taken or will be taken prior to the Closing. This
Agreement when executed and delivered, shall constitute valid and legally
binding obligations of the Company enforceable in accordance with their
respective terms, subject to laws of general application relating to bankruptcy,
insolvency and the relief of debtors and subject to the availability of
equitable remedies.
2.4 VALIDITY OF THE SHARES. The issuance of the Shares and
Warrants is not subject to any preemptive rights or rights of first refusal and,
when issued and delivered in compliance with the provisions of this Agreement
and the Articles of Incorporation, the Shares, and the Common Stock issuable
upon conversion thereof, will be duly and validly issued, fully paid and
nonassessable, and will be free of any liens, encumbrances or restrictions on
transfer; provided, however, that the Shares and Warrants, and the Common Stock
issuable upon conversion and exercise thereof, may be subject to restrictions on
transfer (i) pursuant to the terms of this Agreement and (ii) under state and
federal securities laws as set forth herein or as otherwise required by such
laws at the time a transfer is proposed.
2.5 OFFERING. Subject to the accuracy of the representations and
warranties of Investor contained in Section 3 hereof, the offer, sale and
issuance of the Shares and Warrants, and the issuance of the shares of Common
Stock upon conversion of the Shares and exercise of the Warrants, in each case
in conformity with the terms of this Agreement, will comply with all applicable
federal and state securities laws, including without limitation, the Securities
Act of 1933, as amended (the "Securities Act").
3. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
Investor hereby represents and warrants to the Company as follows:
3.1 LEGAL POWER. Investor has the requisite legal power to enter
into this Agreement, to acquire the Shares and Warrants hereunder and to carry
out and perform its obligations under the terms of this Agreement.
3.2 DUE EXECUTION. This Agreement has been duly authorized,
executed and delivered by Investor, and, upon due execution and delivery by the
Company and Investor, this Agreement will be the valid and binding agreement of
Investor.
3.3 INFORMATION. Investor believes that Investor has received
all information Investor considers necessary for evaluating the risks and merits
of acquiring the Shares and the Warrants and has had the opportunity to make
further inquiries of the Company and its representatives for additional
information. The foregoing, however, does not limit or modify the
representations and warranties of the Company in Section 2 of this Agreement or
the right of Investor to rely thereon.
3.4 ADEQUATE REPRESENTATION. Investor has been advised by the
Company to seek legal and other professional counsel, and has done so to the
extent Investor deems necessary, including for any and all legal, tax, business
and other professional advice.
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3.5 INVESTMENT REPRESENTATIONS.
(a) Investor is acquiring the Shares and Warrants for
Investor's own account, not as nominee or agent, for investment and not with a
view to, or for resale in connection with, any distribution or public offering
thereof within the meaning of the Securities Act.
(b) Investor understands that (i) neither the Shares nor
the Warrants have not been registered under the Securities Act by reason of a
specific exemption therefrom, that they must be held by it indefinitely, and
that Investor must, therefore, bear the economic risk of such investment
indefinitely, unless a subsequent disposition thereof is registered under the
Securities Act or is exempt from such registration; (ii) each certificate
representing the Shares and the Warrants will be endorsed with a legend in
substantially the following form:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
(THE "1933 ACT") AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR
HYPOTHECATED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE 1933 ACT COVERING SUCH SECURITIES OR IF THE
COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THESE
SECURITIES REASONABLY SATISFACTORY TO THE COMPANY, STATING THAT
SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM
THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE
1933 ACT."
and (iii) the Company will instruct any transfer agent not to register the
transfer of any of the Shares or Warrants unless the conditions specified in the
foregoing legend are satisfied; provided, however, that no such opinion of
counsel shall be necessary if the sale, transfer or assignment is made pursuant
to Securities and Exchange Commission ("SEC") Rule 144 and Investor provides the
Company with evidence reasonably satisfactory to the Company and its counsel
that the proposed transaction satisfies the requirements of Rule 144. The
Company agrees to remove the foregoing legend from any securities if the
requirements of SEC Rule 144(k) (or any successor rule or regulation) apply with
respect to such securities and the Company and its counsel are provided with
reasonably satisfactory evidence that the requirements of Rule 144(k) apply.
(c) Investor is an investor in securities of companies
in the development stage and acknowledges that it can bear the economic risk of
Investor's investment and has such knowledge and experience in financial or
business matters that it is capable of evaluating the merits and risks of the
investment in the Shares and the Warrants.
(d) Investor has been furnished with and has had access
to such information as Investor has considered necessary to make a determination
as to the acquisition of Shares and the Warrants, together with such additional
information as is necessary to verify the accuracy of the information supplied.
(e) Investor has had all questions which have been asked
by Investor satisfactorily answered by the Company.
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(f) Investor has not been offered either the Shares or
the Warrants by any form of advertisement, article, notice or other
communication published in any newspaper, magazine or similar media or broadcast
over television or radio, or any seminar or meeting whose attendees have been
invited by such media.
(g) Investor is an "accredited investor" within the
meaning of SEC Rule 501 of Regulation D, as presently in effect, because
Investor is either (i) a natural person whose net worth, either individually or
jointly with Investor's spouse, at the time of purchase, exceeds $1,000,000 or
(ii) a natural person who had an individual income in excess of $200,000 in each
of the two (2) most recent years or joint income with Investor's spouse in
excess of $300,000, in each of those years, and reasonably expects to reach the
same income level in the current year.
(h) Investor understands that the Shares and Warrants
Investor is acquiring are characterized as "restricted securities" under the
federal securities laws inasmuch as they are being acquired from the Company in
a transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the Securities Act, only in certain limited circumstances, and it represents
that Investor is familiar with SEC Rule 144, as presently in effect, and
understands the resale limitations imposed thereby and by the Securities Act.
4. RIGHT OF FIRST REFUSAL.
4.1 RESTRICTIONS ON TRANSFER. In the event Investor desires, at
any time, to any transfer, whether by sale, assignment, encumbrance,
hypothecation, pledge or conveyance or otherwise (a "Transfer") any of Shares,
or any shares of Common Stock issued pursuant to conversion of the Shares or
exercise of the Warrants or pursuant to any dividends paid on the Shares (the
"Offered Shares"), and Investor receives a bona fide offer (the "Purchase
Offer") from a third party to purchase such Offered Shares, Investor shall
deliver a notice (the "Notice") to the Company at least thirty (30) days prior
to the closing of such Transfer, which Notice shall describe in reasonable
detail the proposed Transfer including, without limitation, the number of
Offered Shares to be transferred, the nature of the Transfer, the consideration
to be paid, and the name and address of each prospective transferee. In the
event that the Transfer is being made pursuant to the provisions of Section 4.7
hereof, the Notice shall state the circumstances of the Transfer pursuant which
Section 4.7 applies.
4.2 RIGHT OF FIRST REFUSAL. The Company (or the Company's
assignees) may purchase the Offered Shares to which the Notice refers, at the
price per share and the other terms and provisions of sale contained in the
Purchase Offer. The Company shall deliver to Investor within twenty (20) days
following receipt by the Company of the Notice, a written notice electing to
purchase the Offered Shares. The Company must elect to purchase all but not less
than all of the Offered Shares in order to exercise the right of first refusal
in this Section 4.
4.3 CLOSING. The closing shall then be held on the later of (i)
thirty (30) days following the Company's written notice to purchase all but not
less than all of the Offered Shares or (ii) ten (10) days after such cash
valuation shall have been made pursuant to Section 4.4 below (if any part of
such consideration is other than cash or evidence of indebtedness). Full payment
for the Offered Shares which the Company elects to purchase shall be made by
cash or check to Investor upon Transfer of such shares unless the Purchase Offer
provided for different terms.
4.4 VALUATION OF CONSIDERATION. In the event that the purchase
price specified in the Purchase Offer is payable in property other than cash or
evidences of indebtedness, the Company
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shall have the right to pay the purchase price in the form of cash equal in
amount to the fair market value of such property. If Investor and the Company
cannot agree on such cash value within ten (10) days after the Company's receipt
of the Notice, the valuation shall be made by an appraiser of recognized
standing selected by the Company and Investor, if they cannot agree on an
appraiser within twenty (20) days after the Company's receipt of the Notice, the
Company shall select one (1) appraiser of recognized standing and Investor shall
select one (1) appraiser of recognized standing and the two appraisers shall
designate a third appraiser of recognized standing, whose appraisal shall be
determinative of such value. The costs and expenses of such appraiser(s) shall
be paid fifty percent (50%) by the Company and fifty percent (50%) by Investor.
4.5 EFFECT OF FAILURE TO EXERCISE RIGHT OF FIRST REFUSAL. If all
of the Offered Shares to which the Notice refers are not elected to be purchased
by the Company, Investor may sell such Offered Shares to the maker of the
Purchase Offer at the price and on the terms specified in the Purchase Offer or
at a higher price, provided that such sale or transfer is consummated within
ninety (90) days after the expiration of the option of the Company to acquire
such shares pursuant to Section 4.2, and provided further that (i) any such sale
is in accordance with all the terms and conditions hereof, and (ii) such
transferee executes and becomes a party to this Agreement and thereby agrees to
receive and hold all of the Offered Shares subject to all of the provisions and
restrictions contained herein (including the imposition of a restrictive legend
on the certificates representing such shares).
4.6 JUDICIAL TRANSFERS. All proposed judicial transfers and
sales of the Shares, or any shares of Common Stock issued pursuant to conversion
of the Shares or exercise of the Warrants or pursuant to any dividends paid on
the Shares, by order of any court or by any referee in bankruptcy, including
without limitation in connection with any dissolution of marriage, ("Order")
shall be subject to the terms and provisions of this Section 4. In the event a
sale or transfer is proposed pursuant to an Order, all of the terms of this
Section 4 shall apply, with the following modification: instead of a notice of
intent to transfer being delivered to the Company, a copy of the Order shall be
delivered to the Company by the proposed transferee, which shall state the name
and address of the proposed transferee and shall specify the number of the
Shares and/or Warrants (or any shares of Common Stock issued pursuant to
conversion of the Shares, exercise of the Warrants or pursuant to any dividends
paid on the Shares) to be sold and the consideration per Share and per Warrant.
For other purposes of this Section 4, the receipt of the Order shall be treated
as the receipt of the notice of intended disposition as set forth in Section 4.1
above. All proposed transfers pursuant to an Order which do not set forth a
purchase price capable of valuation which would allow the Company to exercise
its right of first refusal are expressly prohibited. Any purported transfer in
contravention of this Section 4.6 shall be null and void and shall pass no title
to the proposed transferee.
4.7 EXEMPT TRANSFERS. Notwithstanding the foregoing, the
provisions of Section 4 shall not apply to any transfer or gift to the
ancestors, descendants or spouse of Investor or to trusts for the benefit of
such persons or Investor ("Permitted Transferees"). Each Permitted Transferee
shall agree in writing that such transferred shares shall remain subject to the
restrictions and terms hereunder, and such Permitted Transferee shall be treated
as an Investor for purposes of this Agreement.
4.8 TERMINATION. The right of first refusal under this Section 4
shall terminate upon the earlier of (i) the closing of a firm commitment
underwritten public offering pursuant to an effective registration statement
under the Securities Act or (ii) a Change of Control. As used herein, a "Change
of Control" means the closing date of a sale, lease, or other disposition of all
or substantially all of the Company's assets or the merger or consolidation of
the company or entity in which the holders of the Company's outstanding voting
stock immediately prior to such transaction
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own, immediately after such transaction, securities representing (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) less than fifty percent (50%) of the total voting power of the
Company, such surviving entity or the entity that controls such surviving entity
outstanding immediately after such transaction.
5. MISCELLANEOUS.
5.1 GOVERNING LAW. This Agreement shall be governed by and
construed under the laws of the State of California as applied to agreements
among residents, made and to be performed entirely within the State of
California.
5.2 SURVIVAL. The representations, warranties, covenants, and
agreements made herein shall survive any investigation made by Investor and the
applicable closing of the transactions contemplated hereby and shall in no way
be affected by any investigation of the subject matter thereof made by or on
behalf of Investor or the Company.
5.3 SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors, and administrators of
the parties hereto.
5.4 ENTIRE AGREEMENT. This Agreement and any other documents
delivered pursuant hereto constitute the full and entire understanding and
agreement among the parties with regard to the subjects hereof and no party
shall be liable or bound to any other party in any manner by any
representations, warranties, covenants, or agreements except as specifically set
forth herein or therein. Nothing in this Agreement, express or implied, is
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.
5.5 SEVERABILITY. Any invalidity, illegality, or limitation of
the enforceability of any one or more of the provisions of this Agreement, or
any part thereof, shall in no way affect or impair the validity, legality, or
enforceability of this Agreement with respect to any other term or provision. In
case any provision of this Agreement shall be invalid, illegal, or
unenforceable, it shall, to the extent practicable, be modified so as to make it
valid, legal and enforceable and to retain as nearly as practicable the intent
of the parties, and the validity, legality, and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
5.6 AMENDMENT AND WAIVER. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance, either retroactively or prospectively,
and either for a specified period of time or indefinitely), with the written
consent of the Company and Investor.
5.7 DELAYS OR OMISSIONS. No delay or omission to exercise any
right, power, or remedy accruing to Investor or any subsequent holder of any
Shares upon any breach, default or noncompliance of the Company under this
Agreement or under the Articles of Incorporation, shall impair any such right,
power, or remedy, nor shall it be construed to be a waiver of any such breach,
default or noncompliance, or any acquiescence therein, or of any similar breach,
default or noncompliance thereafter occurring. It is further agreed that any
waiver, permit, consent, or approval of any kind or character on Investor's part
of any breach, default or noncompliance under this Agreement or under the
Articles of Incorporation or any waiver on Investor's part of any provisions or
conditions of this Agreement must be in writing and shall be effective only to
the extent
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specifically set forth in such writing, and that all remedies, either under this
Agreement, the Certificate of Incorporation, Bylaws of the Company, or otherwise
afforded to Investor, shall be cumulative and not alternative.
5.8 NOTICES. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively given
upon receipt: (a) if to Investor, at the address set forth on the signature page
hereof, or at such other address as Investor shall have furnished to the Company
in writing, or (b) if to the Company, at 000 Xxxxxx xx Xxxxxxxx, Xxx Xxxxxxxx,
Xxxxxxxxxx 00000, Attention: Chief Executive Officer, or at such other address
as the Company shall have furnished to Investor in writing, with a copy to
Xxxxxxx Xxxxx, Esq., Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, 000 Xxxxxxx Xxxxxx Xxxxx,
Xxxxx 0000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000.
5.9 FINDERS' FEES.
(a) The Company (i) represents and warrants that it has
retained no finder or broker in connection with the transactions contemplated by
this Agreement and (ii) hereby agrees to indemnify and to hold Investor harmless
of and from any liability for any commission or compensation in the nature of a
finder's fee to any broker or other person or firm (and the costs and expenses,
including reasonable attorneys' fees, of defending against such liability or
asserted liability) for which the Company or any of its employees or
representatives are responsible.
(b) Investor (i) represents and warrants that Investor
has retained no finder or broker in connection with the transactions
contemplated by this Agreement, and (ii) hereby agrees to indemnify and to hold
the Company harmless of and from any liability for any commission or
compensation in the nature of a finder's fee to any broker or other person or
firm (and the costs and expenses, including reasonable attorneys' fees, of
defending against such liability or asserted liability) for which Investor or
any of its employees or representatives is responsible.
5.10 FEES AND EXPENSES. If legal action is brought by, or on
behalf of, Investor or by the Company to enforce or interpret this Agreement,
the prevailing party shall be entitled to recover its attorneys' fees and legal
costs in connection therewith.
5.11 INFORMATION CONFIDENTIAL. Investor acknowledges that the
information received by it pursuant hereto is confidential and for its use only,
and it will refrain from using such information or reproducing, disclosing, or
disseminating such information to any other person (other than its employees,
affiliates, agents, or partners having a need to know the contents of such
information and its attorneys), except in connection with the exercise of rights
under this Agreement, unless the Company has made such information available to
the public generally or it is required by a governmental body to disclose such
information.
5.12 INDEMNIFICATION. Investor hereby agrees to protect, defend,
indemnify, and hold harmless the Company against and in respect of any and all
loss, liability, deficiency, damage, cost, or expense, or actions in respect
thereof (including legal fees and expenses), as and when incurred, occasioned by
any breach, falsity or failure of any of the representations, warranties, or
covenants of Investor herein contained, or any certificate or other instrument
delivered by or on behalf of Investor pursuant hereto or in connection with the
transactions contemplated hereby. The provisions of this Section 5.12 shall not
limit or impair any right or remedy arising from any breach of this Agreement.
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Promptly after receipt by Investor of notice of the
commencement of any action, proceeding, or investigation in respect of which
indemnity or reimbursement may be sought as provided above, Investor shall
notify the Company, but the failure of the Company to notify Investor with
respect to a particular action, proceeding, or investigation shall not relieve
Investor from any obligation or liability (i) which it may have pursuant to this
Agreement if Investor is not substantially prejudiced by the failure to notify
or (ii) which it may have otherwise than pursuant to this Agreement. Investor
shall promptly assume the defense of the Company with counsel reasonably
satisfactory to the Company, and the fees and expenses of such counsel shall be
at the sole cost and expense of Investor. The Company will cooperate with
Investor in the defense of any action, proceeding, or investigation for which
Investor assumes the defense. Notwithstanding the foregoing, the Company shall
have the right to employ separate counsel in any such action, proceeding, or
investigation and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of the Company unless (i)
Investor has agreed to pay such fees and expenses, (ii) Investor shall have
failed promptly to assume the defense of such action, proceeding, or
investigation and employ counsel reasonably satisfactory to the Company, or
(iii) in the reasonable judgment of the Company there may be one or more
defenses available to the Company which are not available to Investor with
respect to such action, claim, or proceeding, in which case Investor shall not
have the right to assume the defense of such action, proceeding, or
investigation on behalf of the Company. Investor shall not be liable for the
settlement by the Company of any action, proceeding, or investigation effected
without its consent, which consent shall not be unreasonably withheld. Investor
shall not enter into any settlement in any action, suit, or proceeding to which
the Company is a party, unless such settlement includes a general release of the
Company with no payment by the Company of consideration.
5.13 MARKET STANDOFF AGREEMENT. Investor agrees in connection
with any registration of the Company's securities that, upon the request of the
Company or the underwriters managing any public offering of the Company's
securities, Investor will not sell or otherwise dispose of any Shares or
Warrants, or shares of Common Stock issued pursuant to conversion of the Shares
or exercise of the Warrants or dividends on the Shares, without the prior
written consent of the Company or such underwriters, as the case may be, for a
period of time (not to exceed 180 days) from the effective date of such
registration as the Company or the underwriters may specify.
5.14 TITLES AND SUBTITLES. The titles of the paragraphs and
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
5.15 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument.
5.16 CONSENT OF SPOUSE. Investor's spouse shall execute and
deliver to the Company a Consent of Spouse in a form provided by the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Series C
Preferred Stock Purchase Agreement to be executed by their respective officers
thereunto duly authorized, as of the date first above written.
ICX XXXXXXXXXXX.XXX,
a California corporation
By: /s/ XXXX X. XXXXXX
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Xxxx X. Xxxxxx
President/CEO
INVESTOR
By: /s/ XXX XXXX
--------------------------------
Xxx Xxxx
Address: 0000 XX Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
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CONSENT AND RATIFICATION OF SPOUSE
The undersigned, the spouse of Xxx Xxxx a party to that certain Series C
Preferred Stock Purchase Agreement (the "Agreement"), dated as of January 18,
2001, with ICX Xxxxxxxxxxx.xxx, a California corporation, hereby consents to the
execution of said Agreement by such party; and ratifies, approves, confirms and
adopts said Agreement, and agrees to be bound by each and every term and
condition thereof as if the undersigned had been a signatory to said Agreement,
with respect to the Shares (as defined in the Agreement) made the subject of
said Agreement in which the undersigned has an interest, including any community
property interest therein.
I also acknowledge that I have been advised to obtain independent
counsel to represent my interests with respect to this Agreement but that I have
declined to do so and I hereby expressly waive my right to such independent
counsel.
Date:
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(Signature)
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(Print Name)
