EXHIBIT 1
STOCKHOLDERS AGREEMENT among BOSS
INVESTMENT LLC, a Delaware limited liability
company (the "Investor"), and the individuals
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identified on Schedule I attached hereto (each, a
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"Stockholder" and collectively, the
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"Stockholders").
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WHEREAS, the Investor and Building One Services Corporation, a
Delaware corporation (the "Company"), are entering into an Agreement and Plan of
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Merger to be dated as of the date hereof (as the same may be amended or
supplemented, the "Merger Agreement"), providing for the merger with and into
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the Company of a corporation to be formed and wholly owned by the Investor (the
"Merger"), upon the terms and subject to the conditions set forth in the Merger
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Agreement, a copy of which is attached hereto as Exhibit A. Capitalized terms
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used herein and not otherwise defined shall have the meanings ascribed thereto
in the Merger Agreement.
WHEREAS, each Stockholder owns (i) the number of SHARES set forth
opposite his or its name in column 1 on Schedule I, (ii) COMPANY STOCK OPTIONS
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exercisable into the number of Shares set forth opposite his or its name in
column 2 on Schedule I and (iii) WARRANTS exercisable into the number of Shares
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set forth opposite his or its name in column 3 on Schedule I (such Shares,
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Company Stock Options and Warrants, and the Shares underlying such Company Stock
Options and Warrants, are collectively referred to as the "Subject Shares").
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WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, the Investor has requested that each Stockholder enter into this
Agreement.
NOW, THEREFORE, to induce the Investor to enter into, and in
consideration of its entering into, the Merger Agreement, and in consideration
of the premises and the representations, warranties and agreements contained
herein, the parties agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER.
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Each Stockholder hereby represents and warrants, severally and not
jointly, to the Investor as follows:
(a) AUTHORITY. Such Stockholder has all requisite power and authority
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to enter into this Agreement and to consummate the transactions contemplated
hereby. The execution, delivery and performance of this Agreement by such
Stockholder, and the consummation of the transactions contemplated hereby, have
been duly authorized by all necessary action on the part of such Stockholder.
This Agreement has been duly executed and delivered by such Stockholder and
constitutes a valid and binding obligation of such Stockholder enforceable
against such Stockholder in accordance with its terms. Except for the expiration
or termination of the waiting periods under the HSR ACT, informational filings
with the SEC, and compliance with any applicable state securities laws, the
execution and delivery of this Agreement do not, and the consummation of the
transactions contemplated hereby and compliance with the terms hereof will not,
(i) conflict with, or result in any violation of, or default (with or without
notice or lapse of time or both) under any provision of, any certificate or
articles of incorporation, bylaws,
certificate or articles of limited partnership, limited partnership agreement,
trust agreement, loan or credit agreement, note, bond, mortgage, indenture,
lease or other agreement, instrument, permit, concession, franchise, license,
judgment, order, notice, decree, statute, law, ordinance, rule or regulation
applicable to such Stockholder or to such Stockholder's property or assets,
including the Subject Shares, (ii) require any filing with, or permit,
authorization, consent or approval of, or notice to, any federal, state or local
government or any court, tribunal, administrative agency or commission or other
governmental or regulatory authority or agency, domestic, foreign or
supranational, or (iii) violate any order, writ, injunction, decree, statute,
rule or regulation applicable to such Stockholder or any of such Stockholder's
properties or assets, including the Subject Shares. If the Stockholder is a
natural person and is married, and such Stockholder's Subject Shares constitute
community property or otherwise need spousal or other approval for this
Agreement to be legal, valid and binding, this Agreement has been duly
authorized, executed and delivered by, and constitutes a valid and binding
agreement of, the Stockholder's spouse, enforceable against such spouse in
accordance with its terms. No trust of which such Stockholder is a trustee
requires the consent of any beneficiary to the execution and delivery of this
Agreement or to the consummation of the transactions contemplated hereby.
(b) THE SUBJECT SHARES. Such Stockholder is the record and beneficial
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owner of, and has good and marketable title to, the Subject Shares set forth
opposite his or its name on Schedule I attached hereto, free and clear of any
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LIENS (except for any Subject Shares that are held of record by the DEPOSITORY
TRUST COMPANY, or its nominee, for the benefit of any Stockholder, which shall
be transferred into record ownership of such Stockholder as soon as practicable
after the date hereof). The Stockholder does not own, of record or beneficially,
any shares of capital stock of the Company or any SUBSIDIARY or any option,
warrants, rights or other securities convertible into or exercisable for shares
of capital stock of the Company other than the Subject Shares set forth opposite
his or its name on Schedule I attached hereto. The Stockholder has the sole
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right to vote the Subject Shares owned by him or it, and, none of such Subject
Shares is subject to any voting trust or other agreement, arrangement or
restriction with respect to the voting of such Subject Shares, except as
contemplated by this Agreement.
(c) BROKERS. No broker, finder, investment banker or other person
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retained by such Stockholder is entitled to any brokerage, finder's or other fee
or commission in connection with the execution of this Agreement by such
Stockholder or the performance by such Stockholder of its obligations hereunder
(it being understood that certain advisors may be entitled to certain fees and
expenses in connection with the transactions contemplated by the Merger
Agreement, which fees and expenses shall be paid by the Company as set forth in
the Merger Agreement).
2. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR.
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The Investor hereby represents and warrants to the Stockholders as
follows:
(a) AUTHORITY. The Investor has all requisite power and authority to
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enter into this Agreement and to consummate the transactions contemplated
hereby. The execution, delivery and performance of this Agreement by the
Investor, and the consummation of the transactions contemplated hereby, have
been duly authorized by all necessary action on the part of the Investor. This
Agreement has been duly executed and delivered by the Investor and constitutes a
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valid and binding obligation of the Investor, enforceable against the Investor
in accordance with its terms. Except for the expiration or termination of the
waiting periods under the HSR Act, informational filings with the SEC and
compliance with any applicable state securities laws, the execution and delivery
of this Agreement do not, and the consummation of the transactions contemplated
hereby and compliance with the terms hereof will not, (i) conflict with, or
result in any violation of, or default (with or without notice or lapse of time
or both) under any provision of, any certificate or articles of incorporation,
bylaws, certificate or articles of limited partnership, limited partnership
agreement, trust agreement, loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit, concession, franchise,
license, judgment, order, notice, decree, statute, law, ordinance, rule or
regulation applicable to the Investor or to the Investor's property or assets,
(ii) require any filing with, or permit, authorization, consent or approval of,
or notice to, any federal, state or local government or any court, tribunal,
administrative agency or commission or other governmental or regulatory
authority or agency, domestic, foreign or supranational, or (iii) violate any
order, writ, injunction, decree, statute, rule or regulation applicable to the
Investor or any of the Investor's properties or assets.
(b) BROKERS. No broker, finder, investment banker or other person is
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entitled to any brokerage, finder's or other fee or commission for which any
Stockholder will be liable in connection with the execution of this Agreement by
the Investor or the performance by the Investor of its obligations hereunder.
3. COVENANTS OF EACH STOCKHOLDER.
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Each Stockholder, severally and not jointly, agrees, subject to the terms
and conditions of this Agreement, as follows:
(a) At any meeting of stockholders of the Company called to vote upon
the Merger and the Merger Agreement or at any adjournment thereof or in any
other circumstances upon which a vote, consent or other approval (including by
written consent) with respect to the Merger and the Merger Agreement is sought,
such Stockholder shall vote (or cause to be voted) his or its Subject Shares in
favor of the Merger and the adoption by the Company of the Merger Agreement.
(b) At any meeting of stockholders of the Company or at any adjournment
thereof or in any other circumstances upon which the Stockholder's vote, consent
or other approval is sought, such Stockholder shall vote (or cause to be voted)
his or its Subject Shares against (i) any ALTERNATIVE TRANSACTION, (ii) any
amendment of the Company's certificate of incorporation or by-laws or other
proposal or transaction involving the Company, which amendment or other proposal
or transaction would be reasonably likely to impede, frustrate, prevent or
nullify the Merger, the Merger Agreement or any of the other transactions
contemplated by the Merger Agreement or change in any manner the voting rights
of the Common Stock, or (iii) any action that would cause the Company to breach
any representation, warranty or covenant contained in the Merger Agreement.
Subject to Section 10, the Stockholder further agrees not to enter into any
agreement or take any action inconsistent with the foregoing.
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(c) Such Stockholder shall not, prior to the earliest of (i) the
EFFECTIVE TIME and (ii) the termination of this Agreement in accordance with its
terms, (A) sell, transfer, give, pledge, assign or otherwise dispose of
(including by gift) (collectively, "Transfer"), or consent to any Transfer of,
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any or all of his or its Subject Shares or any interest therein or enter into
any contract, option or other arrangement (including any profit sharing
arrangement) with respect to the Transfer of, his or its Subject Shares to any
person (unless such person agrees in writing to be bound by all of the terms of
this Agreement and written notice of such Transfer is given promptly to
Investor) other than pursuant to the terms of the Merger or (B) enter into any
voting arrangement, directly or indirectly, whether by proxy, voting agreement
or otherwise, in respect of his or its Subject Shares, and such Stockholder
agrees not to commit or agree to take any of the foregoing actions.
(d) Subject to the terms of Section 10, during the term of this
Agreement, such Stockholder shall not, nor shall it permit any investment
banker, financial advisor, attorney, accountant or other representative retained
by it, to, directly or indirectly, (i) solicit, initiate or encourage (including
by way of furnishing information), or take any other action to facilitate, any
inquiries or the making of any proposal that may lead to an Alternative
Transaction or (ii) participate in any discussions or negotiations regarding any
proposed Alternative Transaction.
(e) Such Stockholder, and any beneficiary of a revocable trust for
which such Stockholder serves as trustee, shall not take any action to revoke or
terminate such trust or take any other action which would restrict, limit or
frustrate in any way the transactions contemplated by this Agreement.
(f) Such Stockholder agrees that he or it shall complete and deliver
the Election Form to the Paying Agent prior to the expiration of the Election
Date and, pursuant to such Election Form, the Stockholder, after consultation
with the Investor, shall elect to retain such number of Shares that, after
giving effect to the proration set forth in Section 2.3 of the Merger Agreement,
will cause such Stockholder to retain (i) 50% of such Stockholder's Shares plus
(ii) any Warrants plus (iii) the number of all Shares issued upon the exercise
of any Warrants, in lieu of such Shares being converted into the right to
receive the Cash Merger Price for each Share.
4. GRANT OF IRREVOCABLE PROXY; APPOINTMENT OF PROXY.
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Each Stockholder hereby irrevocably grants to, and appoints, the Investor
and Xxxxxx Xxxxxx, in his capacity as an officer of the Investor, and any
individual who shall hereafter succeed to any such office of the Investor, such
Stockholder's proxy and attorney-in-fact (with full power of substitution), for
and in the name, place and stead of such Stockholder, (i) to vote such
Stockholder's Subject Shares or grant a consent or approval with respect to the
Merger and the adoption by the Company of the Merger Agreement and (ii) to vote
such Stockholder's Subject Shares against (a) any Alternative Transaction, (b)
any amendment of the Company's certificate of incorporation or by-laws or other
proposal or transaction involving the Company, which amendment or other proposal
or transaction would be reasonably likely to impede, frustrate, prevent or
nullify the Merger, the Merger Agreement or any of the other transactions
contemplated by the Merger Agreement or change in any manner the voting rights
of the Common Stock, or (c) any action that would cause the Company to breach
any representation, warranty or covenant contained in the Merger Agreement. The
proxy granted
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pursuant to this Section shall not affect the Stockholder's ability to make an
election, pursuant to the terms and conditions of the Merger Agreement, to
receive cash or stock as consideration in the Merger and shall terminate upon
the termination of this Agreement pursuant to Section 8.
(a) Each Stockholder represents that there are no proxies heretofore
given in respect of such Stockholder's Subject Shares.
(b) Each Stockholder hereby affirms that each irrevocable proxy granted
pursuant to this Section 4 is given in connection with the execution of the
Merger Agreement, and that each such irrevocable proxy is given to secure the
performance of the duties of the Stockholder under this Agreement. Such
Stockholder hereby further affirms that each such irrevocable proxy is coupled
with an interest and may under no circumstances be revoked. Each Stockholder
hereby ratifies and confirms all that the holder of each irrevocable proxy may
lawfully do or cause to be done by virtue hereof. Each such irrevocable proxy is
executed and intended to be irrevocable in accordance with the provisions of
Section 212(e) of the Delaware General Corporation Law (the "DGCL"); provided,
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that each such irrevocable proxy shall terminate upon termination of this
Agreement pursuant to Section 8.
5. FURTHER ASSURANCES.
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Each Stockholder will, at the Investor's expense, from time to time,
execute and deliver, or cause to be executed and delivered, such additional or
further consents, documents and other instruments as the Investor may reasonably
request for the purpose of effectively carrying out the transactions
contemplated by this Agreement.
6. CERTAIN EVENTS.
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Each Stockholder agrees that this Agreement and the obligations hereunder
shall attach to such Stockholder's Subject Shares and shall be binding upon any
person or entity to which legal or beneficial ownership of such Subject Shares
shall pass, whether by operation of law or otherwise, including without
limitation such Stockholder's heirs, guardians, administrators or successors.
In the event of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of the Company
affecting the Common Stock, or the acquisition of additional shares of the
Common Stock, the number of Subject Shares listed in Schedule I attached hereto
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beside the name of such Stockholder shall be adjusted appropriately and this
Agreement and the obligations hereunder shall attach to any additional shares of
Common Stock or other voting securities of the Company issued to or acquired by
such Stockholder.
7. ASSIGNMENT.
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Neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any of the parties without the prior written
consent of the other parties, except that (a) the Investor may assign any or all
of its rights, interests and obligations hereunder to the extent it assigns its
rights, interests or obligations under the Merger Agreement and (b) the Investor
may assign, in its sole discretion, any and all of its rights, interests and
obligations hereunder to any direct or indirect wholly owned subsidiary of the
Investor. Subject to the
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preceding sentence, this Agreement will be binding upon, inure to the benefit of
and be enforceable by the parties and their respective successors and permitted
assigns.
8. TERM; TERMINATION.
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This Agreement, and all rights and obligations of the parties hereunder,
shall terminate upon the date upon which the Merger Agreement is terminated in
accordance with its terms.
9. GENERAL PROVISIONS.
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(a) AMENDMENTS. This Agreement may not be amended except by an
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instrument in writing signed by each of the parties hereto.
(b) NOTICE. All notices and other communications hereunder shall be
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in writing and shall be deemed given when delivered by facsimile (with
confirmation of delivery) or personally or sent by overnight courier (providing
proof of delivery) to the Investor in accordance with the terms of the Merger
Agreement and to the Stockholders at their respective addresses and facsimile
numbers set forth on Schedule I attached hereto (or at such other address and
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facsimile number for a party as shall be specified by like notice).
(c) INTERPRETATION. When a reference is made in this Agreement to an
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Article or a Section, such reference shall be deemed made to an Article or a
Section of this Agreement, unless otherwise indicated. The headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement. Unless the context otherwise
requires, words importing the singular shall include the plural, and vice versa.
Wherever the words "include," "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation." Capitalized terms used and not otherwise defined in this Agreement
shall have the respective meanings assigned to them in the Merger Agreement.
(d) COUNTERPARTS. This Agreement may be executed in one or more
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counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more of the counterparts have been signed by
each of the parties and delivered to the other party, it being understood that
each party need not sign the same counterpart.
(e) ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This Agreement
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(including the documents and instruments referred to herein) (i) constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof
and (ii) is not intended to confer upon any person other than the parties hereto
any rights or remedies hereunder.
(f) GOVERNING LAW. This Agreement shall be governed by, and construed
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in accordance with, the laws of the State of Delaware regardless of the laws
that might otherwise govern under applicable principles of conflicts of law
thereof.
(g) VOIDABILITY. If prior to the execution hereof, the Board of
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Directors of the Company shall not have duly and validly authorized and approved
by all necessary corporate
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action, this Agreement, the Merger Agreement and the transactions contemplated
hereby and thereby, so that by the execution and delivery hereof the Investor
would become, or could reasonably be expected to become an "interested
stockholder" with whom the Company would be prevented for any period pursuant to
Section 203 of the DGCL from engaging in any "business combination" (as such
terms are defined in Section 203 of the DGCL), then this Agreement shall be void
and unenforceable until such time as such authorization and approval shall have
been duly and validly obtained.
(h) EXPENSES. Except as otherwise provided herein, all costs and
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expenses incurred in connection with the transactions contemplated by this
Agreement shall be paid by the party incurring such expenses.
10. STOCKHOLDER CAPACITY.
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No person executing this Agreement who is or becomes during the term
hereof a director or officer of the Company makes any agreement or understanding
herein in his capacity as such director or officer. Each Stockholder signs
solely in his capacity as the record holder and beneficial owner of, or the
trustee of a trust whose beneficiaries are the beneficial owners of, such
Stockholder's Subject Shares and nothing herein (including, without limitation,
the provisions of Section 3(e)) shall limit or affect any actions taken by a
Stockholder in his capacity as an officer or director of the Company.
11. ENFORCEMENT.
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The parties agree that irreparable damage would occur in the event that
any of the provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached. It is accordingly agreed that
the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement in any court of the United States located in the State of
Delaware or in a Delaware state court, this being in addition to any other
remedy to which they are entitled at law or in equity. In addition, each of the
parties hereto (a) consents to submit such party to the personal jurisdiction of
any Federal court located in the State of Delaware or any Delaware state court
in the event any dispute arises out of this Agreement or any of the transactions
contemplated hereby, (b) agrees that such party will not attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from any
such court, (c) agrees that such party will not bring any action relating to
this Agreement or the transactions contemplated hereby in any court other than a
Federal court sitting in the State of Delaware or a Delaware state court and (d)
waives any right to trial by jury with respect to any claim or proceeding
related to or arising out of this Agreement or any of the transactions
contemplated hereby.
12. PUBLIC ANNOUNCEMENTS.
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Neither the Investor nor any Stockholder shall issue any press release or
make any public statement without the prior written consent of the other parties
hereto, except as may be required by applicable law, court process or by
obligations pursuant to any listing agreement with any national securities
exchange.
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IN WITNESS WHEREOF, the Investor and the Stockholders have caused this
Agreement to be duly executed and delivered effective as of the date of the
Merger Agreement.
BOSS INVESTMENT LLC
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Manager
STOCKHOLDERS:
/s/ Xxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxx
SCHEDULE I
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COLUMN 1 COLUMN 2 COLUMN 3
NAME AND ADDRESS OF NUMBER OF SHARES NUMBER OF NUMBER OF SHARES
STOCKHOLDER OF COMMON STOCK SHARES SUBJECT SUBJECT TO WARRANTS
TO COMPANY
STOCK OPTIONS
Xxxxxxxx X. Xxxxxxx 2,550,000 -0- 1,950,000
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EXHIBIT A
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Merger Agreement
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