EXHIBIT 10. 3. 2
INVESTORS' RIGHT AGREEMENT
August 22, 1999
TABLE OF CONTENTS
1. Registration Rights 1
1.1 Definitions 1
1.2 Request for Registration 2
1.3 Company Registration 4
1.4 Form S-3 Registration 4
1.5 Obligations of the Company 5
1.6 Furnish Information 7
1.7 Expenses of Registration 7
1.8 Underwriting Requirements 8
1.9 Delay of Registration 9
1.10 Indemnification 9
1.11 Reports Under Securities Exchange Act of 1934 11
1.12 Assignment of Registration Rights 12
1.13 Limitations on Subsequent Registration Rights 12
1.14 "Market Stand-Off" Agreement 12
1.15 Termination of Registration Rights 13
2. Covenants of the Company 13
2.1 Delivery of Financial Statements 13
2.2 Inspection 14
2.3 Right of First Offer 14
2.4 Employee Confidential Information and Invention
Assignment Agreements 15
2.5 Termination of Covenants 15
3. Standstill Agreement 15
3.1 No Increase of Ownership Interest 16
3.1 Notice of Voting Securities Purchases 16
3.3 Acts in Concert with Others 16
3.4 Termination of Standstill Agreement 16
3.5 Permitted Transaction 17
4. Sales by Xxxx Xxxxxxxxxxx and Xxxxxx Xxxxxxx 17
4.1 Right of First Refusal 17
4.2 Assignment of Right of First Refusal 18
4.3 Permitted Transactions 19
4.4 Prohibited Transfers 19
4.5 Legended Certificates 19
4.6 Termination of Right of First Refusal 19
5. Miscellaneous 20
5.1 Successors and Assigns 20
Investors' Rights Agreement
This Investors' Rights Agreement (the "Agreement") is made as of the 1st day of
May, 2000 by and among VOYAGER GROUP INC, a Delaware corporation (the "Company")
and the Investors listed on Exhibit A hereto (the "Investors").
RECITALS
A. The Company and certain of the Investors have entered into a Series "J"
Convertible Preferred Stock 1999 (the "Purchase Agreement") of even date
herewith pursuant to which the Company will sell to such Investors and such
Investors will purchase from the Company shares of the Company's Series "J"
Convertible Preferred Stock 1999. In connection with entering into the (Purchase
Agreement), the Company and the Investors wish to enter into this Agreement in
order to provide the Investors with (i) certain rights to register shares of the
Company's Common Stock issuable upon conversion of the Series "J" Convertible
Preferred Stock held by the Investors, (ii) certain rights to receive and
inspect information pertaining to the Company, (iii) a Right of First Offer"
with respect to certain issuances by the Company of its securities, and (iv)
certain other covenants by the Company. The Company desire to induce the
Investors to purchase shares of Series J Convertible preferred 1999 pursuant to
the (Purchase Agreement) by agreeing to the terms and conditions set forth
herein.
B. Pursuant to a Shareholders meeting Section 228,242,245 of Delaware Corporate
law of the company, the Company and the holders are executing this Agreement of
all the shares Securities then outstanding, here by agree to the entirety of
this Agreement.
AGREEMENT
The parties hereby agree as follows:
1. Registration Rights. The Company and the Investors covenant and agree
as follows:
1.1 Definitions. For purposes of this Section 1:
(a) The terms "register," "registered," and "registration" refer 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"), and the declaration or ordering of effectiveness of such
registration statement or document;
(b) The term "Registrable Securities" means (i) the shares of Common Stock
issuable or issued upon conversion of the Series "J" Convertible Preferred
Stock, 1999, (iv) shares of Series "J" Convertible Preferred Stock 1999 issued
or if and when issued upon conversion pursuant to the Purchase Agreement, and
(ii) any other shares of Common Stock of the Company issued as (or if and when
issued 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 exchange for or in
replacement of, the shares listed in (i), (ii); provided, however, that the
foregoing definition shall exclude in all cases any Register able Securities
sold by a person in a transaction in which his or her rights under this
Agreement are not assigned. Notwithstanding the foregoing, Common Stock or other
securities shall only be treated as Register able 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 number of shares of "Register able Securities then outstanding" shall be
determined by the number of shares of Common Stock outstanding which are, and
the number of shares of Common Stock issuable pursuant to then exercisable or
convertible securities which are, Register able Securities;
(d) The term "Holder" means any person owning or having the right to acquire
Register able Securities or any assignee thereof in accordance with Section 1.12
of this Agreement;
(e) The term "Form S-3" means such form under the Securities Act as in effect on
the date hereof or any successor form under the Securities Act;
(f) The term "SEC" means the Securities and Exchange Commission; and
(g) The term "Qualified IPO" means an underwritten public offering by the
Company of shares of its Common Stock pursuant to a registration statement under
the Securities Act, which results in gross proceeds in excess of $1,000,000 and
the public offering price of which is at least $1.00 per share (appropriately
adjusted for any stock split, dividend, combination or other re-capitalization
).
1.2 Request for Registration.
(a) If the Company shall receive at any time after the earlier of (i) January
01, 2003, or (ii) six (6) months after the effective date of the first
registration statement for a public offering of securities of the Company (other
than a registration statement on Form X-0, X-0 or any successor thereto), a
written request from the Holders of at least thirty-three percent (33%) of the
Register able Securities then outstanding that the Company file a registration
statement under the Securities Act covering the registration of Register able
Securities, then the Company shall, within fifteen (15) days of the receipt
thereof, give written notice of such request to all Holders and shall, subject
to the limitations of subsection 1.2(b), use its best efforts to effect as soon
as practicable, and in any event within 90 days of the receipt of such request,
the registration under the Securities Act of all Register able Securities which
the Holders request to be registered within ten (10) days of the mailing of such
notice by the Company in accordance with Section 5.3.
(b) If the Holders initiating the registration request hereunder ("Initiating
Holders") intend to distribute the Register able Securities covered by their
request by means of an underwriting, they shall so advise the Company as a part
of there request made pursuant to this Section 1.2 and the
Company shall include such information in the written notice referred to in
subsection 1.2(a). The underwriter will be selected by a majority in interest of
the Initiating Holders and shall be reasonably acceptable to the Company. In
such event, the right of any Holder to include his Register able Securities in
such registration shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Register able Securities in the
underwriting (unless otherwise mutually agreed by a majority in interest of the
Initiating Holders and such Holder) to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall
(together with the Company as provided in subsection 1.5(e)) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting. Notwithstanding any other provision of this
Section 1.2, if the underwriter advises the Initiating Holders in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Initiating Holders shall so advise all Holders of
Register able Securities, which would otherwise be underwritten pursuant hereto,
and the number of shares of Register able Securities that may be included in the
underwriting shall be allocated among all Holders thereof, including the
Initiating Holders, in proportion (as nearly as practicable) to the amount of
Register able Securities of the Company owned by each Holder; provided, however,
that the number of shares of Register able Securities to be included in such
underwriting shall not be reduced unless all other securities are first entirely
excluded from the underwriting.
(c) Notwithstanding the foregoing, if the Company shall furnish to Holders
requesting a registration statement pursuant to this Section 1.2, 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 registration statement to be filed and
it is therefore essential to defer the filing of such registration statement,
the Company shall have the right to defer such filing for a period of not more
than 120 days after receipt of the request of the Initiating Holders; provided,
however, that the Company may not utilize this right more than once in any
twelve-month period.
(d) In addition, the Company shall not be obligated to effect, or to take any
action to effect, any registration pursuant to this Section 1.2:
(i) After the Company has affected two (2) registrations pursuant to this
Section 1.2 and such registrations have been declared or ordered effective;
(ii) During the period starting with the date sixty (60) days prior to the
Company's good faith estimate of the date of filing of, and ending on a date one
hundred eighty (180) days after the effective date of, a registration subject to
Section 1.3 h registration statement to become effective;
(iii) If the anticipated aggregate offering price to the public would not be in
excess of $5,000,000; or (iv) If the Initiating Holders propose to dispose of
shares of Remit able Securities that may be immediately registered on Form S-3
pursuant to a request made pursuant to Section 1.4 below.
1.3 Company Registration. If (but without any obligation to do so) the Company
proposes to register (including for this purpose a registration effected by the
Company for stockholders other than the Holders) any of its stock under the
Securities Act in connection with the public offering of
such securities solely for cash (other than a registration on Form X-0, Xxxx X-0
or any successors thereto, a registration in which the only stock being
registered is Common Stock issuable upon conversion of debt securities which are
also being registered, or any registration on any form which does not include
substantially the same information as would be required to be included in a
registration statement covering the sale of the Register able Securities), the
Company shall, at such time, promptly give each Holder written notice of such
registration. Upon the written request of each Holder given within fifteen (15)
days after mailing of such notice by the Company in accordance with Section 5.3,
the Company shall, subject to the provisions of Section 1.8, cause to be
registered under the Securities Act all of the Register able Securities that
each such Holder has requested to be registered.
1.4 Form S-3 Registration. In case the Company shall receive a written request
or requests (i) from any Holder or Holders of at least twenty percent (20%) of
the Register able Securities then outstanding holds Register able Securities
with an aggregate offering price of at least $1,000,000 (five Million), that, in
each case, the Company effect a registration on Form S-3 and any related
qualification or compliance with respect to all or a part of the Register able
Securities owned by such Holder or Holders, the Company will:
(a) promptly give written notice of the proposed registration, and any related
qualification or compliance, to all other Holders; and
(b) as soon as practicable, effect such registration and all such qualifications
and compliance as may be so requested and as would permit or facilitate the sale
and distribution of all or such portion of such Holder's or Holders' Register
able Securities as are specified in such request, together with all or such
portion of the Register able Securities of any other Holder or Holders joining
in such request as are specified in a written request given within fifteen (15)
days after receipt of such written notice from the Company; provided, however,
that the Company shall not be obligated to effect any such registration,
qualification or compliance, pursuant to this Section 1.4: (i) if Form S-3 is
not available for such offering by the Holders; (ii) if the Holders propose to
sell Register able Securities at an aggregate price to the public of less than
$500,000; (iii) 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 period of not more than 120 days
after receipt of the request of the Holder or Holders under this Section 1.4;
provided, however, that the Company shall not utilize this right more than once
in any twelve month period; (iv) if the Company has, within the twelve (12)
month period preceding the date of such request, already effected two
registrations on Form S-3 for the Holders pursuant to this Section 1.4; (v) in
any particular jurisdiction in which the Company would be required to qualify to
do business or to execute a general consent to service of process in effecting
such registration, qualification or compliance; or (vi) during the period ending
one hundred eighty (180) days after the effective date of a registration
statement subject to Section 1.3.
(c) Subject to the foregoing, the Company shall file a registration statement
covering the Register able Securities and other securities so requested to be
registered as soon as practicable after receipt
of the request or requests of the Holders. Registrations effected pursuant to
this Section 1.4 shall not be counted as demands for registration or
registrations effected pursuant to Sections 1.2 or 1.3, respectively.
1.5 Obligations of the Company. Whenever required under this Section 1 to effect
the registration of any Register able Securities, the Company shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with respect to such
Register able Securities and use all reasonable efforts to cause such
registration statement to become effective, and, upon the request of the Holders
of a majority of the Register able Securities registered thereunder, keep such
registration statement effective for up to one hundred twenty (120) days. The
Company shall not be required to file, cause to become effective or maintain the
effectiveness of any registration statement (other than a registration statement
on Form S-3 pursuant to Section 1.4) that contemplates a distribution of
securities on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act.
(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 for up to one hundred twenty (120) days.
(c) Furnish to the Holders 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 Register able 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 Holders, provided that the
Company shall not be required in connection therewith or as a condition thereto
to qualify to do business or to file a general consent to service of process in
any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into and perform its
obligations under an underwriting agreement, in usual and customary form, with
the managing underwriter of such offering. Each Holder participating in such
underwriting shall also enter into and perform its obligations under such an
agreement.
(f) Notify each Holder of Register able 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 one hundred twenty (120) days.
(g) Cause all such Register able Securities registered pursuant hereunder to be
listed on each
securities exchange or market on which similar securities issued by the Company
are then listed.
(h) Provide a transfer agent and registrar for all Register able Securities
registered pursuant hereunder and a CUSIP number for all such Register able
Securities, in each case not later than the effective date of such registration.
(i) Use its best efforts to furnish, at the request of any Holder requesting
registration of Register able Securities pursuant to this Section 1, on the date
that such Register able Securities are delivered to the underwriters for sale in
connection with a registration pursuant to this Section 1, if such securities
are being sold through underwriters, or, if such securities are not being sold
through underwriters, on the date that the registration statement with respect
to such securities becomes effective, (i) an opinion, dated such date, of the
counsel representing the Company for the purposes of such registration, in form
and substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holders requesting
registration of Register able Securities and (ii) a letter dated such date, from
the independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to the Holders requesting registration of Register able Securities.
1.6 Furnish Information. It shall be a condition precedent to the obligations of
the Company to take any action pursuant to this Section 1 with respect to the
Register able Securities of any selling Holder that such Holder shall furnish to
the Company such information regarding itself, the Register able 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 Register able Securities.
The Company shall have no obligation with respect to any registration requested
pursuant to Section 1.2 or Section 1.4 of this Agreement if, as a result of the
application of the preceding sentence, the number of shares or the anticipated
aggregate offering price of the Register able Securities to be included in the
registration does not equal or exceed the number of shares or the anticipated
aggregate offering price required to originally trigger the Company's obligation
to initiate such registration as specified in subsection 1.2(a) or subsection
1.4(b)(2), whichever is applicable.
1.7 Expenses of Registration.
(a) Demand Registration. All expenses (other than underwriting discounts and
commissions, stock transfer taxes and fees of counsel to the selling Holders in
addition to that provided below) incurred in connection with registrations,
filings or qualifications pursuant to Section 1.2, including (without
limitation) all registration, filing and qualification fees, printers' and
accounting fees, fees and disbursements of counsel for the Company, and the
reasonable fees and disbursements of one counsel for the selling Holders
selected by them with the approval of the Company, which approval shall not be
unreasonably withheld, shall be borne by the Company; provided, however, that
the Company shall not be required to pay for any expenses of any registration
proceeding begun pursuant to Section 1.2 if the registration request is
subsequently withdrawn at the request of the Holders of a majority of the
Register able Securities to be registered (in which case all participating
Holders shall bear such expenses), unless the Holders of a majority of the
Register able Securities agree to forfeit their right to one demand registration
pursuant to Section 1.2; provided further, however, that
if at the time of such withdrawal, the Holders have learned of a material
adverse change in the condition, business, or prospects of the Company from that
known or reasonably foreseeable to the Holders at the time of their request and
have withdrawn the request with reasonable promptness following disclosure by
the Company of such material adverse change, then the Holders shall not be
required to pay any of such expenses and shall retain their rights pursuant to
Section 1.2.
(b) Company Registration. All expenses (other than underwriting discounts and
commissions, stock transfer taxes and fees of counsel to the selling Holders in
addition to that provided below) incurred in connection with registrations,
filings or qualifications of Register able Securities pursuant to Section 1.3
for each Holder, including (without limitation) all registration, filing, and
qualification fees, printers' and accounting fees, fees and disbursements of
counsel for the Company, and the reasonable fees and disbursements of one
counsel for the selling Holders selected by them with the approval of the
Company, which approval shall not be unreasonably withheld, shall be borne by
the Company.
(c) Registration on Form S-3. All expenses (other than underwriting discounts
and commissions, stock transfer taxes and fees of counsel to the selling Holders
in addition to that provided below) incurred in connection with a registration
requested pursuant to Section 1.4, including (without limitation) all
registration, filing, qualification, printers' and accounting fees and the
reasonable fees and disbursements of one counsel for the selling Holder or
Holders selected by them with the approval of the Company, which approval shall
not be unreasonably withheld, and counsel for the Company shall be borne by the
Company.
(d) Underwriting Discounts and Commissions. All underwriting discounts and
commissions incurred in connection with registrations in connection with each
registration statement under Section 1 shall be borne by the participating
sellers (and the Company, if the Company is a seller) in proportion to the
number of shares sold by each, or as they otherwise may agree.
1.8 Underwriting Requirements. In connection with any offering involving an
underwriting of shares of the Company's capital stock, the Company shall not be
required under Section 1.3 to include any of the Holders' securities in such
underwriting unless they accept the terms of the underwriting as agreed upon
between the Company and the underwriters selected by it (or by other persons
entitled to select the underwriters), and then only in such quantity as the
underwriters determine in their sole discretion will not jeopardize the success
of the offering by the Company. If the total amount of securities, including
Register able Securities, requested by Holders to be included in such offering
exceeds the amount of securities sold other than by the Company that the
underwriters determine in their sole discretion is compatible with the success
of the offering, then the Company shall be required to include in the offering
only that number of such securities, including Register able Securities, which
the underwriters determine in their sole discretion will not jeopardize the
success of the offering (the securities so included to be apportioned pro rata
among the selling stockholders according to the total amount of securities
entitled to be included therein owned by each selling stockholder or in such
other proportions as shall mutually be agreed to by such selling stockholders)
but in no event shall the amount of securities of the selling Holders included
in the offering be reduced below thirty percent (30%) of the total amount of
securities included in such offering, unless such offering is the initial public
offering of the Company's
securities, in which case, the selling stockholders may be excluded if the
underwriters make the determination described above and no other stockholder's
securities are included. For purposes of the preceding parenthetical concerning
apportionment, for any selling stockholder which is a holder of Register able
Securities and which is a partnership or corporation, the partners, retired
partners and stockholders of such holder, or the estates and family members of
any such partners and retired partners and any trusts for the benefit of any of
the foregoing persons shall be deemed to be a single "selling stockholder," and
any o-rata reduction with respect to such "selling stockholder" shall be based
upon the aggregate amount of shares carrying registration rights owned by all
entities and individuals included in such "selling stockholder," as defined in s
sentence.
1.9 Delay of Registration. No Holder shall have any right to obtain or seek an
injunction restraining or otherwise delaying any such registration as the result
of any controversy that might arise with respect to the interpretation or
implementation of this Section 1.
1.10 Indemnification. In the event any Register able Securities are 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
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") and the partners, officers and directors of any such Holder,
against any losses, claims, 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 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, that the indemnity agreement contained in this
subsection 1.10(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 1.10(b), in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this subsection 1.10(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
1.10(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 1.10 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 1.10, 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 (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 1.10, 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 1.10.
(d) If the indemnification provided for in this Section 1.10 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 under this Subsection 1.10(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 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 Holders under this Section 1.10 shall
survive the completion of any offering of Register able Securities in a
registration statement under this Section 1, and otherwise.
1.11 Reports Under Securities Exchange Act of 1934. With a view to making
available to the Holders 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 after ninety (90) days after the
effective date of the first registration statement filed by the Company for the
offering of its securities to the general public so long as the Company remains
subject to the periodic reporting requirements under Sections 13 or 15(d) of the
Exchange Act;
(b) take such action, including the voluntary registration of its Common Stock
under Section 12 of the Exchange Act, as is necessary to enable the Holders to
utilize Form S-3 for the sale of their Register able Securities, such action to
be taken as soon as practicable after the end of the fiscal year in which the
first registration statement filed by the Company for the offering of its
securities to the general public is declared effective;
(c) 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; (d)
furnish to any Holder, so long as the Holder owns any Register able Securities,
forthwith upon request (i) a written statement by the Company that it has
complied with the reporting requirements of SEC Rule 144 (at any time after
ninety (90) days after the effective date of the first registration statement
filed by the Company), the Securities Act and the Exchange Act (at any time
after it has become subject to such reporting requirements), or that it
qualifies as a registrant whose securities may be resold pursuant to Form S-3
(at any time after it so qualifies), (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 or pursuant to such form.
1.12 Assignment of Registration Rights. The rights to cause the Company to
register Register able Securities pursuant to this Section 1 may be assigned
(but only with all related obligations) by a Holder to a transferee or assignee
of at least 1,000,000 shares of such securities (appropriately adjusted for any
stock split,
stock dividend, or other recapitalization) or to a partner or affiliate (within
the meaning of Rule 12b-2 of the Exchange Act) of the Holder, provided that (i)
the Company is, promptly 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; (ii) the
transferee or assignee agrees to be bound by the terms and conditions of this
Agreement; and (iii) 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. Notwithstanding
the limitations set forth in the foregoing sentence regarding the minimum number
of shares that must be transferred, any Holder that is a corporation may
transfer such Holder's registration rights to its wholly owned subsidiaries
without restriction as to the number of shares transferred.
1.13 Limitations on Subsequent Registration Rights. Except as provided in
Section 1.1(b) and Section 5.9, from and after the date of this Agreement, the
Company shall not, without the prior written consent of the Holders of a
majority of the outstanding Register able Securities, enter into any agreement
with any holder or prospective holder of any securities of the Company, which
would allow such holder or prospective holder (a) to include such securities in
any registration filed under Section 1.2 hereof, unless under the terms of such
agreement, such holder or prospective holder may include such securities in any
such registration only to the extent that the inclusion of his securities will
not reduce the amount of the Register able Securities of the Holders which is
included or (b) to make a demand registration which could result in such
registration statement being declared effective prior to the earlier of either
of the dates set forth in subsection 1.2(a) or within one hundred twenty (120)
days of the effective date of any registration effected pursuant to Section 1.2.
1.14 "Market Stand-Off" Agreement. Each Holder hereby agrees that, during the
period of duration (up to, but not exceeding, 180 days) specified by the Company
and an underwriter of Common Stock or other securities of the Company, following
the effective date of a registration statement of the Company filed under the
Securities Act, it shall not, to the extent requested by the Company and such
underwriter, directly or indirectly sell, offer to sell, contract to sell
(including, without limitation, any short sale), grant any option to purchase or
otherwise transfer or dispose of (other than to donees who agree to be similarly
bound) any securities of the Company held by it at any time during such period
except Common Stock included in such registration provided, however, that: (a)
such agreement shall be applicable to the first such registration statement of
the Company, which covers Common Stock (or other securities) to be sold on its
behalf to the public in an underwritten offering; and (b) all officers and
directors of the Company, and all holders of one percent or more of the
Company's outstanding Common Stock (including shares issuable upon conversion of
Preferred Stock) enter into similar agreements. In order to enforce the
foregoing covenant, the Company may impose stop-transfer instructions with
respect to the Register able Securities of each Holder (and the shares or
securities of every other person subject to the foregoing restriction) until the
end of such period, and each Holder agrees that, if so requested, such Holder
will execute an agreement in the form provided by the underwriter containing
terms which are essentially consistent with the provisions of this Section 1.14.
Notwithstanding the foregoing, the obligations described in this Section 1.14
shall not apply to a registration relating solely to employee benefit plans on
Form S-1 or Form S-8 or similar forms, which may be promulgated in the future,
or a registration relating solely to a transaction on Form S-4
or similar forms, which may be promulgated in the future.
1.15 Termination of Registration Rights. No Holder shall be entitled to exercise
any right provided for in this Section 1 after the earlier of (i) one (1) years
following the consummation of a Qualified IPO, or (ii) such time as Rule 144 or
another similar exemption under the Securities Act is available for the sale of
all of such Holder's shares during a three-month period without registration.
2. Covenants of the Company.
2.1 Delivery of Financial Statements. The Company shall deliver to each Holder
of at least 1,000,000 shares of Register able Securities:
(a) as soon as practicable, but in any event within one hundred twenty (120)
days after the end of each fiscal year of the Company, an income statement for
such fiscal year, a balance sheet of the Company and statement of stockholder's
equity as of the end of such year, and a statement of cash flows for such year,
such year-end financial reports to be in reasonable detail, prepared in
accordance with generally accepted accounting principles ("GAAP"), and audited
and certified by an independent public accounting firm of nationally recognized
standing selected by the Company or otherwise reasonably acceptable to Holders
of a majority of the Register able Securities then outstanding;
(b) within forty-five (45) days of the end of each quarter, an unaudited income
statement and a statement of cash flows and balance sheet for and as of the end
of such quarter, in reasonable detail; and
(c) as soon as practicable, but in any event at least fifteen (15) days prior to
the end of each fiscal year, an operating budget and business plan for the next
fiscal year.
2.2 Inspection. The Company shall permit each Holder of at least 1,000,000
shares of Register able Securities, at such Holder's expense, to visit and
inspect the Company's properties, to examine its books of account and records
and to discuss the Company's affairs, finances and accounts with its officers,
all at such reasonable times as may be requested by the Investor; provided,
however, that the Company shall not be obligated pursuant to this Section 2.2 to
provide access to any information which the Board of Directors reasonably
determines in good faith to be a trade secret or similar confidential
information.
2.3 Right of First Offer. Subject to the terms and conditions specified in this
Section 2.3, the Company hereby grants to each Major Investor (as hereinafter
defined) a right of first offer with respect to future sales by the Company of
its Shares (as hereinafter defined). For purposes of this Section 2.3, a "Major
Investor" shall mean any person who holds at least 1,000,000 shares of the
Preferred Stock (or the Common Stock issued upon conversion thereof). For
purposes of this Section 2.3, Major Investor includes any general partners and
affiliates of a Major Investor. A Major Investor who chooses to exercise the
right of first offer may designate as purchasers under such right itself or its
partners or affiliates in such proportions as it deems appropriate. Each time
the Company
proposes to offer any shares of, or securities convertible into or exercisable
for any shares of, any class of its capital stock ("Shares"), the Company shall
first make an offering of such Shares to each Major Investor in accordance with
the following provisions:
(a) The Company shall deliver a notice by certified mail or overnight courier
("Notice") to the Major Investors stating (i) its bona fide intention to offer
such Shares, (ii) the number of such Shares to be offered, and (iii) the price
and terms, if any, upon which it proposes to offer such Shares.
(b) Within 15 calendar days after delivery of the Notice, each Major Investor
may elect to purchase or obtain, at the price and on the terms specified in the
Notice, up to that portion of such Shares which equals the proportion that the
number of shares of Common Stock issued and held, or issuable upon conversion
and exercise of all convertible or exercisable securities then held, by such
Major Investor bears to the total number of shares of Common Stock then
outstanding (assuming full conversion and exercise of all convertible or
exercisable securities).
(c) The Company may, during the 60-day period following the expiration of the
period provided in subsection 2.3(b) hereof, offer the remaining un-subscribed
portion of the Shares to any person or persons at a price not less than, and
upon terms no more favorable to the offeree than those specified in the Notice.
If the Company does not enter into an agreement for the sale of the Shares
within such period, or if such agreement is not consummated within 60 days of
the execution thereof, the right provided hereunder shall be deemed to be
revived and such Shares shall not be offered unless first reoffered to the Major
Investors in accordance herewith.
(d) The right of first offer in this paragraph 2.3 shall not be applicable (i)
to the issuance or sale of capital stock (or options therefore) to employees,
consultants, officers or directors of the Company pursuant to stock purchase or
stock option plans or agreements approved by the Board of Directors of the
Company (including options granted prior to the date hereof), (ii) to the
issuance of securities in connection with bona fide acquisitions, mergers or
similar transactions, (iii) to the issuance of securities to financial
institutions or lessors in connection with commercial credit arrangements,
equipment financings or similar transactions, (iv) to the issuance and sale of
the Series D Preferred Stock under the Purchase Agreement and the Common Stock
issued upon conversion of the Series A, Series B, Series C or Series D Preferred
Stock, (v) to the issuance of securities in a public offering of securities
pursuant to a registration statement filed under the Securities Act, (vi) to the
issuance of securities pursuant to the conversion or exercise of options,
warrants, notes, or other rights to acquire securities of the Company, or (vii)
to the issuance of securities pursuant to stock splits, stock dividends or like
transactions.
2.4 Employee Confidential Information and Invention Assignment Agreements. The
Company will require that all future employees, consultants and officers having
access to proprietary information execute Confidential Information and Invention
Assignment Agreements substantially in the form currently used by the Company
and that such form may not be altered in a manner adverse to the Company without
the approval of the Company's President.
2.5 Termination of Covenants.
(a) The covenants set forth in Sections 2.1 through Section 2.3 shall terminate
as to each Investor and be of no further force or effect (i) upon the
consummation of a Qualified IPO, or (ii) when the Company shall (A) sell,
convey, or otherwise dispose of all or substantially all of its property or
business or merge or consolidate with any other corporation (other than a
wholly-owned subsidiary corporation) where the stockholders of the Company own
less than fifty percent (50%) of the voting power of the surviving entity after
such merger or consolidation or (B) effect any other transaction or series of
related transactions in which more than fifty percent (50%) of the voting power
of the Company is disposed of, provided that this subsection (ii) shall not
apply to a merger effected exclusively for the purpose of changing the domicile
of the Company.
(b) The covenants set forth in Sections 2.1 and 2.2 shall terminate as to each
Holder and be of no further force or effect when the Company first becomes
subject to the periodic reporting requirements of Sections 13 or 15(d) of the
Exchange Act, if this occurs earlier than the events described in Section 2.5(a)
above.
3. Standstill Agreement.
3.1 No Increase of Ownership Interest. At any time following the date of this
Agreement, except with the prior written consent of a majority of the Company's
Board of Directors (excluding the vote of any director(s) appointed by the
respective Investor or otherwise affiliated with such Investor), no Major
Investor, together with any persons or entities affiliated with such Major
Investor (collectively, the "Standstill Investor"), shall acquire beneficial
ownership (as defined in Rule 13d-3 of the Exchange Act) of any securities of
the Company entitled to vote with respect to the election of any directors of
the Company ("Voting Securities"), any security convertible into, exchangeable
for, or exercisable for, or that may become any Voting Securities or any other
right to acquire Voting Securities (such Voting Securities and rights to acquire
Voting Securities are collectively referred to herein as "Securities"), if after
such acquisition, the Voting Securities then beneficially owned by the
Standstill Investor represent more than the Standstill Investor's Threshold
Percentage (defined below) of the Company's then outstanding Voting Securities
(assuming the conversion, exchange and/or exercise of all convertible,
exchangeable and exercisable securities, including all securities reserved for
issuance under the Company's stock plans); provided however, that if at any time
the Voting Securities beneficially owned by a Standstill Investor shall
represent less than or the same as the Standstill Investor's Threshold
Percentage, and, subsequently and solely as a result of the Company's
repurchases of Voting Securities or a recapitalization of all the Company's
capital stock, the Voting Securities beneficially owned by a Standstill Investor
shall then represent more than the Standstill Investor's Threshold Percentage,
then such Standstill Investor shall not be deemed in violation of this Section
3.1 for so long as such Standstill Investor does not purchase or acquire
additional Voting Securities. For purposes of this Agreement, the "Standstill
Investor's Threshold Percentage" shall be equal to 40.0% for each Standstill
Investor. Notwithstanding the foregoing, for purposes of this Section 3.1 and
for purposes of Sections 3.2, 3.3, 3.4 and 3.5 only, Xxxx Xxxxxxxxxxx and xxxxxx
Xxxxxxx shall not be considered a "Major Investor" and shall not be deemed a
"Standstill Investor".
3.2 Notice of Voting Securities Purchases. Each Standstill Investor shall notify
the Company as to any future acquisition of beneficial ownership of Voting
Securities, or rights thereto, within ten (10)
business days after such action in order for the Company to monitor compliance
with the terms of this Agreement.
3.3 Acts in Concert with Others. The Standstill Investor shall not join a
partnership, limited partnership, syndicate or other group, or otherwise act in
concert with any third person, for the purpose of acquiring any Securities that
would exceed such Standstill Investor's Threshold Percentage.
3.4 Termination of Standstill Agreement. The covenants set forth in this Section
3 shall terminate as to each Standstill Investor on the earlier of (i) August
10, 2000 or (ii) when the Company shall (A) sell, convey, or otherwise dispose
of all or substantially all of its property or business or merge or consolidate
with any other corporation (other than a wholly-owned subsidiary corporation)
where the stockholders of the Company own less than fifty percent (50%) of the
voting power of the surviving entity after such merger or consolidation or (B)
effect any other transaction or series of related transactions in which more
than fifty percent (50%) of the voting power of the Company is disposed of,
except in each case a merger effected exclusively for the purpose of changing
the domicile of the Company.
3.5 Permitted Transaction. Notwithstanding the provisions of this Section 3, on
and after the eleventh business day after the commencement of a proxy contest,
tender offer or exchange offer which could result in a "Change of Control
Transaction" (as defined below) for outstanding Securities or on or after the
public announcement that the Company has entered into an agreement with a third
party not affiliated with the Company that would result in a Change of Control
Transaction, the Standstill Investor shall be permitted to make a proposal to
the Company's Board of Directors or shareholders or to tender or exchange any
Securities beneficially owned by it pursuant to such transaction. As used
herein, "Change of Control Transaction" shall mean (A) any tender or exchange
offer, merger, consolidation, re-capitalization or other business combination or
transaction pursuant to which either (i) the holders of the outstanding voting
power immediately prior to the transaction would hold less than 50% of the
outstanding voting power outstanding immediately after the transaction or
(ii)50% of the assets of the Company would be transferred to or controlled by a
third party not affiliated with the Company, except in each case a merger
effected exclusively for the purpose of changing the domicile of the Company, or
(B) any action by the shareholders of the Company that results in the directors,
who as of the date of Closing constitute the Company's Board of Directors (the
"Incumbent Board"), ceasing to constitute at least a majority of the Company's
Board of Directors; provided, however, that any individual becoming a director
subsequent to the date of Closing whose nomination for election by the
shareholders of the Company was approved by the vote of the Incumbent Board
shall be considered as though such individual were a member of the Incumbent
Board.
4. Sales Xx. Xxxx Xxxxxxxxxxx or Xx. Xxxxxx Xxxxxxx
4.1 Right of First Refusal. Before any shares of the Company's capital stock
("Stock") held by Xxxx Xxxxxxxxxxx or Xxxxxx Xxxxxxx (including its affiliated
funds) each a "ROFR Investor") may be sold or otherwise transferred, the Company
or its permitted assignee under Section 4.2 shall have a right of first refusal
to purchase such Stock on the terms and conditions set forth in this Section 4
(the
"Right of First Refusal").
(a) Exercise of Right of First Refusal. At any time within fifteen (15) business
days after receipt of the Seller Notice, the Company or its assignee may, by
giving written notice to the Seller, elect to purchase all of the Stock proposed
to be transferred to any one or more of the Proposed Transferees, at the
purchase price determined in accordance with subsection (c)below.
(b) Purchase. The purchase price ("Purchase Price") for the Stock purchased by
the Company or its assignee under this Section 4 shall be the Offered Price. If
the Offered Price includes consideration other than cash, the cash equivalent
value of the non-cash consideration shall be determined by the Board of
Directors of the Company in good faith. Payment of the Purchase Price shall be
made, at the option of the Company or its assignee(s), in cash (by check), by
cancellation of all or a portion of any outstanding indebtedness of the Seller
to the Company (or, in the case of purchase by an assignee, to the assignee), or
by any combination thereof within 30 days after the Company or its assignee
provides the written notice to the Seller as provided in subsection (b)above.
(d) Seller's Right to Transfer. If the Stock proposed in the Seller Notice to be
transferred is not purchased by the Company or its assignee as provided in this
Section 4, then the Seller may sell or otherwise transfer such Stock to that
Proposed Transferee at the Offered Price or at a higher price, provided that
such sale or other transfer is consummated within 90 days after the date of the
Seller Notice and provided further that any such sale or other transfer is
effected in accordance with any applicable securities laws. If any Stock
described in the Seller Notice is not transferred to the Proposed Transferee
within such period, or if the Seller proposes to change the price or other terms
to make them more favorable to the Proposed Transferee, a new Seller Notice
shall be given to the Company and the other Investor, and the Company and/or its
assignee shall again be offered the Right of First Refusal before any Stock held
by the Seller may be sold or otherwise transferred.
(e) Reissuance of Repurchased Shares. Any Stock purchased by the Company under
this Section 4 from Investor may be retired by the Company or held by the
Company as treasury stock, but such Stock may not be reissued by the Company
without the prior written consent of the non-selling Investor (the "Non-Selling
Investor").
4.2 Assignment of Right of First Refusal. In the case of proposed sales or
transfers of Stock by a Investor, the Company agrees that in the event that the
Company declines to exercise the Right of First Refusal, the Company will
provide the Non-Selling Investor with notice of such determination at least five
(5) business days prior to the end of the period in which the Right of First
Refusal expires under Section 4.1(b). The Non-Selling Investor shall then have
the right, exercisable by notice prior to the end of such period, to exercise
such Right of First Refusal as the Company's assignee. Any Stock purchased by a
Investor under this Section 4.2 shall not be deemed Voting Securities under
Section 3.1 for purposes of calculating the Standstill Investor's Threshold
Percentage. The Right of First Refusal is not otherwise assignable by the
Company.
4.3 Permitted Transactions. The provisions of this Section 4 shall not pertain
or apply to:
(i) Stock sold pursuant to a registration statement filed under the Securities
Act;
(ii) Distributions of Stock by Xxxx Xxxxxxxxxxx or Xxxxxx Xxxxxxx to its
business partners and subsequent resales of such Stock;
4.5 Legended Certificates. Each certificate representing shares of Stock of the
Company now or hereafter owned by the Investors or issued to any Permitted
Transferee pursuant to Section 4.3(iii) shall be endorsed with the following
legend:
"THE SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE SECURITIES REPRESENTED BY
THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN RIGHT OF
FIRST REFUSAL BY AND BETWEEN THE STOCKHOLDER, THE CORPORATION AND CERTAIN
HOLDERS OF PREFERRED STOCK OF THE CORPORATION. COPIES OF SUCH AGREEMENT MAY BE
OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION."
The foregoing legend shall be removed upon termination of the Right of First
Refusal in accordance with the provisions of Section 4.6.
4.6 Termination of Right of First Refusal. The Right of First Refusal under this
Section 4 shall terminate at such time as the covenants set forth in Section 3
shall have terminated pursuant to Section 3.4 above.
5. Miscellaneous.
5.1 Successors and Assigns. Except as otherwise provided in this Agreement, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective permitted 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. A Holder that is a
corporation may assign or transfer such Holder's rights and obligations to its
Wholly owned subsidiaries without restriction as to the number of shares
acquired.
5.2 Amendments and Waivers. Any term of this Agreement may be amended or waived
only with the written consent of the Company and the holders of at least
two-thirds (2/3) of the Register able Securities then outstanding. Any amendment
or waiver effected in accordance with this paragraph shall be binding upon each
holder of any Register able Securities then outstanding, each future holder of
all such Register able Securities, and the Company.
5.3 Notices. Unless otherwise provided, any notice required or permitted by this
Agreement shall be in writing and shall be deemed sufficient upon delivery, when
delivered personally or by overnight courier or sent by telegram or fax, or
forty-eight (48) hours after being deposited in the U.S. mail, as certified or
registered mail, with postage prepaid, and addressed to the party to be notified
at such party's address or fax number as set forth below or on Exhibit A hereto
or as subsequently modified by written notice.
5.4 Severability. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, the parties agree to renegotiate such
provision in good faith. In the event that the parties cannot reach a mutually
agreeable and enforceable replacement for such provision, then (a) such
provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (c) the
balance of the Agreement shall be enforceable in accordance with its terms.
5.5 Governing Law. This Agreement and all acts and transactions pursuant hereto
shall be governed, construed and interpreted in accordance with the laws of the
State of Nevada, without giving effect to principles of conflicts of laws.
5.6 Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
5.7 Titles and Subtitles. The titles and subtitles used in this Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Agreement.
{Signature Page Follows}
The parties have executed this "Investors Rights Agreement" as of the date first
above written.
COMPANY: INVESTORS:
VOYAGER GROUP INC
By: Xxxxxxx Xxxxxxx By: Xxxx Xxxxxxxxxxx
/s/s/ Xxxxxxx Johnson_ /s/s/ Xxxx Southerland_
Director
By: Xxxxxx Xxxxxxx
/s/s/ Xxxxxx Johnson_
Investor
