EXHIBIT 4.12
BRIDGE FINANCING PURCHASE AGREEMENT
BRIDGE FINANCING PURCHASE AGREEMENT, made as of June 16, 1997, by and
between Xxxxxx & Co. AG, a Swiss corporation, acting as agent for certain
non-U.S. persons, with a principal place of business at Xxxxxxxxxx 00, Xxxxxx,
XX-0000 (the "INVESTOR") and DYNAGEN, INC., a Delaware corporation with a
principal place of business at 00 Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx (the
"COMPANY").
W I T N E S S E T H:
WHEREAS, the Investor desires to provide financing to the Company upon
the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the respective undertakings,
covenants and agreements of the parties set forth herein, the parties hereby
agree as follows:
1. ISSUANCE OF NOTE AND SHARES OF COMMON STOCK; PLEDGE OF STOCK . The
Company has authorized the issuance and sale to the Investor of the Company's
Subordinated Note, due September 30, 1997, in the original aggregate principal
amount of up to $1,0500,000. The Subordinated Note shall be substantially in the
form set forth in Exhibit A hereto and is herein referred to as a "NOTE," which
term shall also include any notes delivered in exchange or replacement therefor.
The Note shall be due September 30, 1997, with interest payable upon maturity of
7% per annum. The Company has also authorized the issuance and sale to the
Investor of 30150,000 shares of the Company's Common Stock (the "SHARES") in
connection with the making of the loan represented by this Agreement. The Note
and the Shares are sometimes referred to herein as the "SECURITIES."
The obligations under the Note are secured by a pledge of 600,000
shares of Common Stock of the Company by Xxxxxxxxx X. Xxxxxxx and 400,000 shares
of Common Stock of the Company by Xx. Xxxx Xxxx pursuant to a Pledge and
Security Agreement attached hereto as Exhibit B.
The Company agrees to use the full proceeds from the sale of the Note
and Shares solely for working capital and for the acquisition of the business
and operations of Superior Pharmaceutical Company.
2. THE CLOSING. The Company agrees to issue and sell to the Investor,
and, subject to and in reliance upon the representations, warranties, terms and
conditions of this Agreement, the Investor agrees to purchase, the Note and the
Shares for the aggregate purchase price of $1,0500,000. Such purchase and sale
shall take place at a closing (the "CLOSING") to be held at the office of Xxxxx,
Xxxxxxx & Xxxxxxxxx, LLP, 000 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, on June 10,
1997 at 2:00 P.M., or on such other date and at such time as may be mutually
agreed upon. At the Closing, the Company will issue and deliver to the Investor
(i) one Note, payable to the order of the Investor, in the principal amount of
up to $1,0500,000, and (ii) within, five (5) business days of the Closing, issue
one certificate for the Shares, registered in the name of such Investor, against
-2-
delivery at the Closing of a check or a receipt of a wire transfer in payment of
the purchase price for the Note to be purchased by the Investor.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the Investor as follows:
3.1 AUTHORIZATION; OWNERSHIP OF SECURITIES. This Agreement and
the Note and the Shares have been duly authorized by the Company. This Agreement
and the Note and the Shares, when executed and delivered by the Company, will be
valid and binding obligations of the Company, enforceable in accordance with
their terms. The Shares, when issued and delivered in accordance with this
Agreement, will be duly authorized, validly issued, fully paid and
nonassessable, and will not be subject to any liens or restrictions, rights of
first refusal or other preemptive rights imposed by law or contract, or through
the Company, except restrictions on transfer imposed by applicable securities
laws.
3.2 ORGANIZATION, GOOD STANDING AND AUTHORITY OF THE COMPANY.
The Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, and has the requisite power
and authority to own all of its properties and assets and to carry on its
business as it is now being conducted. The Company is duly qualified to do
business and is in good standing in each jurisdiction in which it owns or leases
property or engages in any activity which would require it to qualify to do
business as a foreign corporation and in which the failure to qualify could have
a material adverse effect upon the business or operations of the Company.
3.3 AUTHORIZATION. The Company has full corporate power and
authority to enter into this Agreement and to carry out its obligations
hereunder. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by the Board of
Directors of the Company and no other corporate proceedings or actions on the
part of the Company (including any consents or waivers required for the issuance
of the Securities) are necessary to authorize this Agreement and the
transactions contemplated hereby. This Agreement constitutes the valid and
binding obligation of the Company, enforceable in accordance with its terms,
except as enforcement hereof may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to or affecting the rights of
creditors generally and subject to the fact that equitable remedies are
discretionary and may not be granted by a court of competent jurisdiction.
3.4 NO DEFAULT. The execution, delivery and performance of
this Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby do not and will not constitute a default under
any of the terms, conditions or provisions of the Articles of Organization or
By-Laws of the Company, or any material contract, agreement or arrangement to
which the Company is a party or by which it is bound.
-3-
3.5 CAPITAL STOCK OF THE COMPANY. As of the date hereof, the
authorized capital stock of the Company consists of 75,000,000 shares of Common
Stock $.01 par value per share, of which 30,122,477 shares were issued and
outstanding and 10,000,000 shares of preferred stock, $.01 par value per share
of which no shares were issued and outstanding. All of such outstanding shares
have been validly issued and are fully paid and nonassessable. No shares of
Common Stock are subject to preemptive rights or any other similar rights or any
liens or encumbrances suffered or permitted by the Company. Except as disclosed
in the SEC Documents, (i) there are no outstanding options, warrants, scrip,
rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities or rights convertible into or exchangeable for, any
shares of capital stock of the Company or any of its subsidiaries, or
arrangements by which the Company or any of its subsidiaries is or may become
bound to issue additional shares of capital stock of the Company or any of its
subsidiaries, and (ii) there are no outstanding convertible debt securities of
the Company. As of the Closing Date and before giving effect to the acquisition
of Superior Pharmaceutical Company by the Company pursuant to an Agreement and
Plan of Merger dated March 7, 1997, as amended (i) the authorized capital stock
of the Company will be (x) 75,000,000 shares of Common Stock, $.01 par value per
share, of which 30,347,477 shares will be issued and outstanding and (y)
10,000,000 shares of Preferred Stock, $.01 par value per share, of which (A)
50,000 shares have been designated Series A Preferred Stock, of which 41,000 are
issued and outstanding, and (B) 7,500 have been designated as Series B Preferred
Stock, all of which are issued and outstanding and (ii) the Company has reserved
for issuance no more than 11,000,000 shares of Common Stock with respect to the
matters described below in clause (i) of this Section.
3.6 COMPLIANCE WITH LAWS. To its best knowledge, the Company
holds all material licenses, approvals, certificates, permits and authorizations
necessary for the lawful conduct of its business and is in material compliance
with all applicable federal, state and local laws, rules, regulations and
ordinances.
3.7 SEC DOCUMENTS. None of the filings of the Company with the
SEC since July 1, 1996 (the "SEC DOCUMENTS") contained, as of the time they were
filed, any untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading. The
Company has since July 1, 1996 timely filed all requisite forms, reports and
exhibits thereto with the SEC. As of their respective dates, the SEC Documents
complied in all material respects with the requirements of the Exchange Act and
the rules and regulations of the SEC promulgated thereunder applicable to the
SEC Documents. Prior to the date hereof, the Company has corrected all
statements in the SEC Documents which have required correction and has filed all
necessary amendments to the SEC Documents, in each case as required by
applicable law.
The Company has registered its Common Stock pursuant to the Securities
Exchange Act of 1934 (the "EXCHANGE ACT"), and the Common Stock is listed and
currently trades on the NASDAQ SmallCap Market. The Company is not in violation
of the applicable listing agreement between the Company and any securities
exchange or market on which the Company's securities are listed. The Company has
timely filed all materials required to be filed pursuant to all reporting
-4-
obligations under either Section 13(a) or 15(d) of the Exchange Act for at least
twelve (12) months immediately preceding the date hereof, and has received no
notice, either oral or written, with respect to the continued eligibility for
such listing. The Company has timely made all filings required under the
Exchange Act during the twelve month period preceding the date hereof and is
eligible to use Form S-3 to register the Shares. As of their respective dates,
the financial statements of the Company included in the SEC Documents complied
as to form in all material respects with applicable accounting requirements and
the published rules and regulations of the SEC with respect thereto. Such
financial statements have been prepared in accordance with generally accepted
accounting principles, consistently applied during the periods involved (except
(i) as may be otherwise indicated in such financial statements or the notes
thereto, or (ii) in the case of unaudited interim statements, to the extent they
may exclude footnotes or may be condensed or summary statements) and fairly
present in all material respects the financial position of the Company as of the
dates thereof and the results of its operations and cash flows for the periods
then ended (subject, in the case of unaudited statements, to normal year-end
audit adjustments). Prior to the date hereof, the Company has corrected all
statements in the SEC Documents which have required correction and has filed all
necessary amendments to the SEC Documents, in each case as required by
applicable law.
3.8 LITIGATION. Except as set forth in the SEC Documents, there is no
action, suit, proceeding at law or in equity, arbitration or administrative or
other proceeding by or before (or to the best knowledge, information and belief
of the Company any investigation by) any governmental or other instrumentality
or agency, pending, or, to the best knowledge, information and belief of the
Company, threatened against or affecting the Company, or any of its properties
or rights which could materially and adversely affect the right or ability of
the Company to carry on its business as now conducted, or which could materially
and adversely affect the condition, whether financial or otherwise, or
properties of the Company; and the Company does not know of any valid basis for
any such action, proceeding or investigation. Except as set forth in the SEC
Documents, the Company is not subject to any judgment, order or decree entered
in any lawsuit or proceeding which may have a material adverse effect on any of
its operations, or on its ability to acquire any property or conduct business in
any area.
3.9 INTELLECTUAL PROPERTY; PROPRIETARY RIGHTS. Except as set forth
within this Agreement or in the SEC Documents, the Company and its subsidiaries
own, have obtained or possess rights to use the trademarks, trade names, service
marks, service xxxx registrations, patents, copyrights, licenses, approvals,
governmental authorizations, trade secrets and other rights necessary to conduct
their respective businesses as now conducted, the Company does not have any
knowledge of any material infringement by the Company or its subsidiaries of any
trademark, trade name rights, patent rights, copyrights, licenses, service
marks, service xxxx registrations, trade secrets or other similar rights of
others, and there is no claim being made against the Company or its subsidiaries
regarding trademark, trade name, patent, copyright, license, service marks,
service xxxx registrations, trade secret or other infringement which could have
a material adverse effect on the Company. The Company and its subsidiaries have
taken reasonable security measures to protect the secrecy, confidentiality and
value of all of their intellectual properties.
-5-
4. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR. The Investor
represents and warrants to the Company as follows:
4.1 INVESTMENT. The Investor is acquiring the Securities for
its own account, for investment purposes only, and not with a view to the sale,
assignment, transfer or other distribution thereof. The Investor recognizes that
the Securities, have not been registered under the Securities Act of 1933, as
amended (the "SECURITIES ACT"), and the Investor agrees that it will not sell,
assign, transfer, or otherwise distribute the Securities in violation of the
Securities Act.
4.2 INVESTIGATION. The Investor is knowledgeable and
experienced in the making of investments, is aware that the Company is an
early-stage company and therefore speculative investment, is able to bear the
economic risk of loss of its investment in the Company, has been granted the
opportunity to make a thorough investigation of the affairs of the Company, and
has availed itself of such opportunity either directly or through its authorized
representatives. The foregoing representation shall not be construed in any way
so as to limit, define or in any way affect the Company's liability arising from
the warranties and representations of the Company in this or any other agreement
with the Investor or any affiliate of the Investor.
4.3 RELIANCE. The Investor has been advised that the
Securities have not been and are not being registered under the Securities Act
or under the "blue sky" laws of any jurisdiction and that the Company in issuing
the Securities is relying upon, among other things, the representations and
warranties of the Investor contained in this Section 4 in concluding that such
issuance is a "private offering" and does not require compliance with the
registration provisions of the Securities Act.
4.4 LEGENDS. The Investor understands and agrees that each
instrument representing the Securities delivered to the Investor hereunder shall
bear legends substantially as follows:
"The Securities represented hereby have not been registered
under the Securities Act of 1933, as amended, and may not be
sold or transferred unless the registration provisions of said
Act have been complied with or unless in the opinion of
counsel satisfactory to the Company both as to opinion and
counsel compliance with such provisions is not required."
5. REGISTRATION RIGHTS.
5.1 "PIGGY-BACK" REGISTRATIONS. If at any time the Company
shall determine to register for its own account under the Securities Act any of
its equity securities, it shall send to the Investor as a holder of Registrable
Securities (as defined below) and any holder who has the right to acquire
Registrable Securities, written notice of such determination and, if within
twenty (20) days after receipt of such notice, such holder shall so request in
writing, the Company shall include in such registration statement all or any
part of the Registrable Securities such holder requests to be registered.
"REGISTRABLE SECURITIES" shall consist of any and all of the Shares held by an
Investor.
-6-
If, in connection with any offering involving an underwriting
of Common Stock to be issued by the Company, the managing underwriter shall
impose a limitation on the number of Securities of such Common Stock which may
be included in the registration statement because, in its judgment, such
limitation is necessary to effect an orderly public distribution, then the
Company shall be obligated to include in such registration statement only such
limited portion of the Registrable Securities with respect to which such holder
has requested inclusion hereunder; provided, however, that the Company shall not
so exclude any Registrable Securities unless it has first excluded any
securities to be offered and sold by officers and employees of the Company and
by holders who do not have contractual rights as of the date hereof to include
such securities in any registration unless the holders obtained such contractual
rights pursuant to equity financings consummated by the Company immediately
following the date hereof relating to the acquisition of Superior Pharmaceutical
Company and the creation of working capital for the business of the Company.
No incidental right under this Section 5.1 shall be construed
to limit any registration required under Section 5.2.
This Section 5.1 shall not apply to a registration of
Securities of Common Stock on Form S-8 or Form S-4 or their then equivalents
relating to an offering of Common Stock to be issued solely in connection with
any acquisition of any entity or business or otherwise issuable in connection
with any stock option, stock purchase or similar employee benefit plan.
5.2. SHORT-FORM REGISTRATIONS ON FORM S-3. In addition to the
rights provided the holder of Registrable Securities in Sections 5.1 above, if
the registration of Registrable Securities under the Securities Act can be
effected on a Form S-3 registration form (or any similar form having similar
requirements promulgated by the Commission), then the Company shall, upon the
written request of the Investor and as expeditiously as possible (but in no
event later than ninety (90) days from the date of the Investor's request),
effect qualification and registration under the Securities Act on Form S-3 of
all or such portion of the Registrable Securities as each Investor shall
specify.
The Company shall not be required to effect more than two (2)
registrations in the aggregate pursuant to this Section 5.2 and not more than
one during any twelve-month period. The Company's obligations under this Section
5.2 shall expire five (5) years after the issuance of the Shares by the Company.
Any offering of Registrable Securities pursuant to this Section shall have a
minimum market value to the public (valued at the public offering price of the
Company's Securities as of the effective date of the registration statement for
such offering) of at least $200,000 of the securities so registered.
5.3. EXPENSES. In the case of each registration effected under
Section 5.1 or 5.2, the Company shall bear all reasonable costs and expenses of
each such registration on behalf of the selling holders of Registrable
Securities (except as otherwise prohibited by state securities law or
regulation), including, but not limited to, the Company's printing, legal and
accounting fees and expenses, SEC and NASD filing fees and "Blue Sky" fees and
expenses and the reasonable fees and disbursements of one counsel competent in
securities matters for the selling holders of Registrable Securities in
connection with the registration of their Registrable Securities; provided,
-7-
however, that the Company shall have no obligation to pay or otherwise bear any
portion of the underwriters' commissions or discounts attributable to the
Registrable Securities being offered and sold by the holders of Registrable
Securities, or the fees and expenses of counsel for the selling holders of
Registrable Securities in connection with the registration of the Registrable
Securities. The Company shall pay all expenses (including reasonable attorneys'
fees subject to the limitations set forth immediately above) of the holders of
the Registrable Securities in connection with any registration initiated
pursuant to this Section 5 which is withdrawn, delayed or abandoned.
6. SUBORDINATION. The Company, for itself, its successors and assigns,
covenants and agrees, and the Investor and each successor holder of the Note by
his or its acceptance thereof, likewise covenants and agrees, that
notwithstanding any other provision of this Agreement or the Note, the payment
of the principal of and interest on the Note shall be subordinated in right of
payment, to the extent and in the manner hereinafter set forth, to the prior
payment in full of all Senior Debt (as hereinafter defined) at any time
outstanding. The provisions of this Section shall constitute a continuing
representation to all persons who, in reliance upon such provisions, become the
holders of or continue to hold Senior Debt, and such provisions are made for the
benefit of the holders of Senior Debt, and such holders are hereby made obligees
hereunder the same as if their names were written herein as such, and they or
any of them may proceed to enforce such provisions against the Company or
against the holder of the Note without the necessity of joining the Company as a
party.
(A) PAYMENT OF SENIOR DEBT. In the event of any insolvency or
bankruptcy proceedings, or any receivership, liquidation, reorganization or
other similar proceedings in connection therewith, relative to the Company or to
its property, or, in the event of any proceedings for voluntary liquidation,
dissolution or other winding up of the Company or distribution or marshaling of
its assets or any composition with creditors of the Company, whether or not
involving insolvency or bankruptcy, then and in any such event all Senior Debt
shall be paid in full before any payment or distribution of any character,
whether in cash, securities or other property, shall be made on account of the
Note; and any such payment or distribution, except securities which are
subordinated and junior in right of payment to the payment of all Senior Debt
then outstanding in terms of substantially the same tenor as this Section, which
would, but for the provisions hereof, be payable or deliverable in respect of
the Note shall be paid or delivered directly to the holders of Senior Debt (or
their duly authorized representatives), in the proportions in which they hold
the same, until all Senior Debt shall have been paid in full, and the holder of
the Note by becoming a holder thereof shall have designated and appointed the
holder or holders of Senior Debt (and their duly authorized representatives) as
his or its agents and attorney-in-fact to demand, xxx for, collect and receive
such Senior Debt holder's ratable share of all such payments and distributions
and to file any necessary proof of claim therefor and to take all such other
action in the name of the holder of the Note or otherwise, as such Senior Debt
holders (or their authorized representatives) may determine to be necessary or
appropriate for the enforcement of this Section. The Investor and each successor
holder of the Note by its acceptance thereof agrees to execute, at the request
of the Company, a separate agreement with any holder of Senior Debt on the terms
set forth in this Section, and to take all such other action
-8-
as such holder or such holder's representative may request in order to enable
such holder to enforce all claims upon or in respect of such holder's ratable
share of the Note.
(B) NO PAYMENT ON THE NOTE UNDER CERTAIN CONDITIONS. In the
event that any default occurs in the payment of the principal of or interest on
any Senior Debt (whether as a result of the acceleration thereof by the holders
of such Senior Debt or otherwise) and during the continuance of such default for
a period up to ninety (90) days and thereafter if judicial proceedings shall
have been instituted with respect to such defaulted payment, or (if a shorter
period) until such payment has been made or such default has been cured or
waived in writing by such holder of Senior Debt then and during the continuance
of such event no payment of principal or interest on the Note shall be made by
the Company or accepted by any holder of the Note who has received notice from
the Company or from a holder of Senior Debt of such events.
(C) SCOPE OF SECTION. The provisions of this Section are
intended solely for the purpose of defining the relative rights of the holder of
the Note, on the one hand, and the holders of the Senior Debt, on the other
hand. Nothing contained in this Section or elsewhere in this Agreement or the
Note is intended to or shall impair, as between the Company, its creditors other
than the holders of Senior Debt, and the holder of the Note, the obligation of
the Company, which is unconditional and absolute, to pay to the holder of the
Note the principal of and interest on the Note as and when the same shall become
due and payable in accordance with the terms thereof, or to affect the relative
rights of the holder of the Note and creditors of the Company other than the
holders of the Senior Debt, nor shall anything herein or therein prevent the
holder of the Note from accepting any payment with respect to such Note or
exercising all remedies otherwise permitted by applicable law upon default under
such Note, subject to the rights, if any, under this Section of the holders of
Senior Debt in respect of cash, property or securities of the Company received
by the holder of the Note.
(D) SURVIVAL OF RIGHTS. The right of any present or future
holder of Senior Debt to enforce subordination of the Note pursuant to the
provisions of this Section shall not at any time be prejudiced or impaired by
any act or failure to act on the part of the Company or any such holder of
Senior Debt, including, without limitation, any forbearance, waiver, consent,
compromise, amendment, extension, renewal, or taking or release of security of
or in respect of any Senior Debt or by noncompliance by the Company with the
terms of such subordination regardless of any knowledge thereof such holder may
have or otherwise be charged with.
(E) SENIOR DEBT DEFINED. The term "Senior Debt" shall mean all
Indebtedness of the Company for money borrowed from banks or other institutional
lenders, including any extension or renewals thereof, whether outstanding on the
date hereof or thereafter created or incurred, which is not by its terms
subordinate and junior to or on a parity with the Note and which is permitted
hereby at the time it is created or incurred, including Sirrom Capital and
Odyssey Investment Partners L.P.
7. EVENTS OF DEFAULT. If any of the following events ("EVENTS OF
DEFAULT") shall occur and be continuing, then there shall be a default under the
Note:
-9-
(a) The Company shall fail to pay any installment of principal
of or interest or premium on the Note upon maturity; or
(b) Any representation or warranty made by the Company in this
Agreement shall prove to have been incorrect when made in any material respect;
or
(c) The Company shall be involved in financial difficulties as
evidenced (i) by its admitting in writing its inability to pay its debts
generally as they become due; (ii) by its commencement of a voluntary case under
Title 11 of the United States Code as from time to time in effect, or by its
authorizing, by appropriate proceedings of its Board of Directors or other
governing body, the commencement of such a voluntary case; (iii) by its filing
an answer or other pleading admitting or failing to deny the material
allegations of a petition filed against it commencing an involuntary case under
said Title 11, or seeking, consenting to or acquiescing in the relief therein
provided, or by its failing to controvert timely the material allegations of any
such petition; (iv) by the entry of an order for relief in any involuntary case
commenced under said Title 11; (v) by its seeking relief as a debtor under any
applicable law, other than said Title 11, of any jurisdiction relating to the
liquidation or reorganization of debtors or to the modification or alteration of
the rights of creditors, or by its consenting to or acquiescing in such relief;
(vi) by the entry of an order by a court of competent jurisdiction (a) finding
it to be bankrupt or insolvent, (b) ordering or approving its liquidation,
reorganization or any modification or alteration of the rights of its creditors,
or (c) assuming custody of, or appointing a receiver or other custodian for, all
or a substantial part of its property; or (vii) by its making an assignment for
the benefit of, or entering into a composition with, its creditors, or
appointing or consenting to the appointment of a receiver or other custodian for
all or a substantial part of its property; or
(d) The Company shall fail to effect a registration on Form
S-3 under Section 5.2 within 120 days of the Investor's request for registration
under the Securities Act.
Upon the occurrence of an Event of Default which is not
remedied, the Investor's sole and limited recourse is to proceed against the
Collateral described in the Pledge and Security Agreement. The Investor shall
have no recourse against the Company upon an Event of Default.
8. AMENDMENT. This Agreement may not be modified or amended except by a
written instrument duly executed and delivered by or on behalf of the Investor
and the Company.
9. BINDING EFFECT. This Agreement shall be binding on and inure to the
benefit of the parties hereto and their respective successors and assigns.
10. COUNTERPARTS. This Agreement may be executed simultaneously in two
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11. GOVERNING LAW. This Agreement and the respective rights and
obligations of the parties hereto shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts, without giving
effect to principles of conflicts of laws.
-9-
IN WITNESS WHEREOF, the Company and the Investor have executed
this Bridge Financing Purchase Agreement as an instrument under seal as of the
date first set forth above.
DYNAGEN, INC.
By: /s/ Xxxx X. Xxxx
-----------------------------
President
XXXXXX & CO. AG
ACTING AS AGENT FOR CERTAIN NON-U.S. PERSONS
/s/ [Illegible]
------------------------------------
By:
Title: Senior Vice President
/s/ [Illegible]
------------------------------------
By:
Title: Senior Vice President
