Exhibit 10.4
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COMMON STOCK PURCHASE AGREEMENT
By and Among
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇, ▇▇.
▇▇▇▇ ▇▇▇▇▇▇▇ WELLINGTON
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
(the "Purchasers")
and
WOLFPACK CORPORATION
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Dated as of March 31, 2000
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TABLE OF CONTENTS
Page
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Article I Certain Definitions.............................. 1
Article II Purchase of Common Stock......................... 3
Article III Representations and Warranties................... 3
Article IV Other Agreements of the Parties.................. 8
Article V Defaults and Remedies............................ 10
Article VI Conditions Precedent to Closing.................. 11
Article VII Conditions Subsequent to Closing................. 12
Article VIII Termination...................................... 12
Article IX Legal Fees....................................... 13
Article X Miscellaneous ................................... 13
Schedule 3.1(a) Subsidiaries
Schedule 3.1(c) Capitalization
Schedule 3.1(f) Required Consents and Approvals
Schedule 3.1(g) Litigation
i
PURCHASE AGREEMENT, dated as of March 31, 2000 (this
"Agreement"), by and among Wolfpack Corporation, a Delaware corporation, with
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its principal office at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Company") and the Purchasers listed on Schedule A (the "Purchasers").
WHEREAS, the Company desires to issue and sell to the
Purchasers and the Purchasers desire to purchase and acquire up to Ten Million
One Thousand Eight Hundred Fifty (10,001,850) shares (the "Shares") of the
authorized but unissued common stock, $.001 par value per share (the "Common
Stock") of the Company.
IN CONSIDERATION of the mutual covenants, promises and
agreements set forth herein and for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
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Section 1.1. Certain Definitions. As used in this Agreement, and unless
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the context requires a different meaning, the following terms have the meanings
indicated:
"Affiliate" means, with respect to any Person, any Person
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that, directly or indirectly, controls, is controlled by or is under common
control with such Person. For the purposes of this definition, "control"
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(including, with correlative meanings, the terms "controlled by" and "under
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common control with") shall mean the possession, directly or indirectly, of the
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power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities by contract or
otherwise.
"Business Day" means any day except Saturday, Sunday and any
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day which is a legal holiday or a day on which banking institutions in the state
of New York are authorized or required by law or other government actions to
close, between the hours of 9:30 a.m. and 6:00 p.m. New York Time.
"Closing" shall have the meaning set forth in Section 2.1(b).
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"Closing Date" shall mean the date of Closing, as set forth in
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Section 2.1(b).
"Code" means the Internal Revenue Code of 1986, as amended,
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and the rules and regulations thereunder as in effect on the date hereof.
"Commission" means the Securities and Exchange Commission.
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"Common Stock" means shares now or hereafter authorized of the
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class of Common Stock, $.001 par value, of the Company and stock of any other
class into which such shares may thereafter have been classified or changed.
"Exchange Act" means the Securities Exchange Act of 1934, as
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amended.
"Lien" means, with respect to any asset, any mortgage, lien,
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pledge, encumbrance, charge or security interest of any kind in or on such asset
or the revenues or income thereon or therefrom.
"Material" shall mean having a financial consequence in excess
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of $100,000.
"Material Adverse Effect" shall have the meaning set forth in
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Section 3.1(a).
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"NASD" means the National Association of Securities Dealers,
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Inc.
"Per Share Consideration" shall have the meaning set forth in
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Section 2.1(a).
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"Person" means an individual or a corporation, partnership,
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trust, incorporated or unincorporated association, joint venture, limited
liability company, joint stock company, government (or an agency or political
subdivision thereof) or other entity of any kind.
"Purchase Price" shall have the meaning set forth in
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Section 2.1(a).
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"Required Approvals" shall have the meaning set forth in
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Section 3.1(f).
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"Securities Act" means the Securities Act of 1933, as amended.
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"Subsidiaries" shall have the meaning set forth in
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Section 3.1(a).
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ARTICLE II
PURCHASE OF COMMON STOCK
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Section 2.1. Purchase of Common Stock; Closing
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(a) Subject to the terms and conditions herein set forth, the
Company shall issue and sell to the Purchaser, and the Purchaser shall purchase
from the Company on the Closing Date, up to Ten Million One Thousand Eight
Hundred Fifty (10,001,850) Shares of Common Stock, at a price per Share of One
(1) share of the common stock, $.001 par value of JetCo Communications
Corporation ("JetCo") (the "Per Share Consideration"). The Per Share
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Consideration multiplied by the number of Shares to be purchased by the
Purchasers hereunder is hereinafter referred to as the"Purchase Price." The
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total Purchase Price is Ten Million One Thousand Eight Hundred Fifty
(10,001,850) JetCo Shares.
(b) The closing (the "Closing) of the purchase and sale of the
Shares shall take place at the offices of the Escrow Agent within seven (7)
Business Days after the conditions for the sale are met, as set forth in Section
4.8 are met. The date of the Closing is hereinafter referred to as the "Closing
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Date".
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(c) At the Closing, (i) the Purchasers shall deliver to the
Company (A) certificates representing their respective shares of the JetCo
Shares, on a pro rate basis, aggregating Ten Million One Thousand Eight Hundred
Fifty (10,001, 850) JetCo Shares, with duly executed and Medallion Guaranteed
stock powers to the Escrow Agent prior to the Closing and (B) all documents,
instruments and writings required to have been delivered at or prior to Closing
by the Purchaser pursuant to this Agreement, and (ii) the Company shall deliver
to the Escrow Agent (A) certificates for an aggregate of Ten Million One
Thousand Eight Hundred Fifty (10,001,850) Shares of the Common Stock of the
Company, registered in the names of the Purchasers for the percentages listed on
Schedule A and (B) all documents, instruments and writings required to have been
delivered at or prior to the Closing by the Company pursuant to this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
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3.1. Representations and Warranties of the Company. The Company hereby
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represents and warrants to the Purchasers as follows:
(a) Organization and Qualification. The Company is a
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corporation, duly incorporated, validly existing and in good standing under the
laws of the jurisdiction of its incorporation, with the requisite corporate
power and authority to own and use its properties and
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assets and to carry on its business as currently conducted. The Company has no
subsidiaries other than as set forth in Schedule 3.1(a) (collectively, the
"Subsidiaries"). Each of the Subsidiaries is a corporation, duly incorporated,
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validly existing and in good standing under the laws of the jurisdiction of its
incorporation, with the full corporate power and authority to own and use its
properties and assets and to carry on its business as currently conducted. Each
of the Company and the Subsidiaries is duly qualified to do business and is in
good standing as a foreign corporation in each jurisdiction in which the nature
of the business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good standing, as
the case may be, could not reasonably be expected to have, individually or in
the aggregate, a material adverse effect on (a) the results of operations,
assets, prospects, or financial condition of the Company and the Subsidiaries,
or (b) the Purchaser's rights under this Agreement (a "Material Adverse
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Effect").
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(b) Authorization; Enforcement. The Company has the requisite
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corporate power and authority to enter into and to consummate the transactions
contemplated hereby and otherwise to carry out its obligations hereunder and
thereunder. The execution and delivery of this Agreement by the Company and the
consummation by it of the transactions contemplated hereby and thereby have been
duly authorized by all necessary action on the part of the Company. This
Agreement has been duly executed and delivered by the Company and constitutes
the valid and binding obligation of the Company enforceable against the Company
in accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or
similar laws relating to, or affecting generally the enforcement of, creditors'
rights and remedies or by other equitable principles of general application.
(c) Capitalization. The authorized, issued and outstanding
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capital stock of the Company and each of the Subsidiaries is set forth in
Schedule 3.1(c). No shares of Common Stock are entitled to preemptive or similar
rights. Except as specifically disclosed in Schedule 3.1(c), there are no
outstanding options, warrants, script rights to subscribe to, calls or
commitments of any character whatsoever relating to, or, securities, rights or
obligations convertible into or exchangeable for, or giving any person any right
to subscribe for or acquire any shares of Common Stock, or contracts,
commitments, understandings, or arrangements by which the Company or any
Subsidiary is or may become bound to issue additional shares of Common Stock, or
securities or rights convertible or exchangeable into shares of Common Stock.
Neither the Company nor any Subsidiary is in violation of any of the provisions
of its respective certificate of incorporation, bylaws or other charter
documents.
(d) Issuance of the Common Stock. The Shares of Common Stock
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have been duly and validly authorized for issuance, offer and sale pursuant to
this Agreement and, when issued and delivered as provided hereunder against
payment in accordance with the terms hereof, shall be valid and binding
obligations of the Company enforceable in accordance with their terms. When
issued in accordance with the terms hereof, the Shares of Common Stock will be
duly authorized, validly issued, fully paid and nonassessable.
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(e) No Conflicts. The execution, delivery and performance of
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this Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby and thereby do not and will not (i) conflict
with or violate any provision of its certificate of incorporation or bylaws or
(ii) subject to obtaining the consents referred to in Section 3.1(f), conflict
with, or constitute a default (or an event which with notice or lapse of time or
both would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or
instrument to which the Company is a party, or (iii) to the knowledge of the
Company result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Company is subject (including Federal and state securities laws and
regulations), or by which any property or asset of the Company is bound or
affected, except in the case of each of clauses (ii) and (iii), such conflicts,
defaults, terminations, amendments, accelerations, cancellations and violations
as would not, individually or in the aggregate, have a Material Adverse Effect.
The business of the Company is not being conducted in violation of any law,
ordinance or regulation of any governmental authority, except for violations
which, individually or in the aggregate, do not have a Material Adverse Effect.
(f) Consents and Approvals. Except as specifically set forth
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in Schedule 3.1(f), neither the Company nor any Subsidiary is required to obtain
any consent, waiver, authorization or order of, or make any filing or
registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Company of this Agreement, other than the making
of the applicable blue-sky filings under state securities laws, and other than,
in all cases, where the failure to obtain such consent, waiver, authorization or
order, or to give or make such notice or filing, would not materially impair or
delay the ability of the Company to effect the Closing and deliver to the
Purchaser the Shares of Common Stock free and clear of all Liens (collectively,
the "Required Approvals").
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(g) Litigation; Proceedings. Except as specifically disclosed
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in Schedule 3.1(g), there is no action, suit, notice of violation, proceeding or
investigation pending or, to the best knowledge of the Company, threatened
against or affecting the Company or any of its Subsidiaries or any of their
respective properties before or by any court, governmental or administrative
agency or regulatory authority (Federal, State, county, local or foreign) which
(i) relates to or challenges the legality, validity or enforceability of this
Agreement or the Shares of Common Stock (ii) could, individually or in the
aggregate, have a Material Adverse Effect or (iii) could, individually or in the
aggregate, materially impair the ability of the Company to perform fully on a
timely basis its obligations under this Agreement.
(h) No Default or Violation. Neither the Company nor any
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Subsidiary (i) is in default under or in violation of any indenture, loan or
credit agreement or any other agreement or instrument to which it is a party or
by which it or any of its properties is bound, except such conflicts or defaults
as do not have a Material Adverse Effect, (ii) is in violation of any order of
any court, arbitrator or governmental body, except for such violations as do not
have a Material Adverse Effect, or (iii) is in violation of any statute, rule or
regulation of any governmental authority which could (individually or in the
aggregate) (x) adversely affect the legality, validity or enforceability of this
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Agreement, (y) have a Material Adverse Effect or (z) adversely impair the
Company's ability or obligation to perform fully on a timely basis its
obligations under this Agreement.
(i) Certain Fees. No fees or commission will be payable
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by the Company to any investment banker or bank with respect to the
consummation of the transactions contemplated hereby.
(j) Non-Registered Offering. Neither the Company nor any
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Person acting on its behalf has taken or will take any action (including,
without limitation, any offering of any securities of the Company under
circumstances which would require the integration of such offering with the
offering of the Shares of Common Stock under the Securities Act) which might
subject the offering, issuance or sale of the Shares of Common Stock to the
registration requirements of Section 5 of the Securities Act.
(k) Reporting Company; Eligibility to use Exemption under
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Rule 506 of Regulation D. The Company is subject to the reporting requirements
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of Section 13 or Section 15(d) of the Exchange Act and is current in its
reporting requirements. The Company is eligible to issue securities exempt from
the registration requirements of Section 5 of the Securities Act pursuant to
Rule 506 of Regulation D promulgated under the Securities Act.
The Purchasers acknowledge and agree that the Company makes no
representation or warranty with respect to the transactions contemplated hereby
other than those specifically set forth in Article III herein.
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Section 3.2. Representations and Warranties of the Purchasers. The
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Purchasers hereby represents and warrants to the Company as follows:
(a) Authority. Each of the Purchasers has the requisite power
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and authority to enter into and to consummate the transactions contemplated
hereby and otherwise to carry out its obligations hereunder and thereunder. The
purchase of the shares of Common Stock by the Purchasers hereunder has been duly
authorized by all necessary action on the part of the Purchaser. This Agreement
has been duly executed and delivered by the Purchasers or on their behalf and
constitutes the valid and legally binding obligation of the Purchasers,
enforceable against each of the Purchasers in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
generally and to general principles of equity.
(b) Investment Intent. Each of the Purchasers is acquiring the
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Shares of Common Stock for his own account for investment purposes only and not
with a view to or for distributing or reselling such Shares or any part thereof
or interest therein, without prejudice, however, to the Purchasers' right,
subject to the provisions of this Agreement, at all times to sell or otherwise
dispose of all or any part of such Shares in compliance with applicable federal
and State securities laws.
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(c) Purchasers' Status. At the time each of the Purchaser was
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offered the Shares, they were, and at the date hereof, and at the Closing Date,
will be "accredited investor" as defined in Rule 501(a) under the Securities Act
or with or without their respective purchaser representative, has such knowledge
and experience in financial and business matters that each is capable of
evaluating the merits and risks of the prospective investment in the Shares.
Each of the Purchasers has completed and delivered to the Company an Investor's
Questionnaire. Each of the Purchasers is purchasing the Shares for his own
account.
(d) Experience of Purchaser. Each of the Purchasers, either
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alone or together with its representatives, has such knowledge, sophistication
and experience in business and financial matters so as to be capable of
evaluating the merits and risks of the prospective investment in the Shares, and
has so evaluated the merits and risks of such investment.
(e) Ability of Purchasers to Bear Risk of Investment. Each of
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the Purchasers is able to bear the economic risk of an investment in the Shares
and, at the present time, is able to afford a complete loss of such investment.
(f) Prohibited Transactions. The Shares to be purchased by the
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Purchasers are not being acquired, directly or indirectly, with the assets of
any "employee benefit plan", within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended.
(g) Access to Information. Each of the Purchasers acknowledges
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that it has been afforded (i) the opportunity to ask such questions as it has
deemed necessary of, and to receive answers from, representatives of the Company
concerning the terms and conditions of the offering of the Shares and the merits
and risks of investing in the Shares; (ii) access to information about the
Company and the Company's financial condition, results of operations, business,
properties, management and prospects sufficient to enable it to evaluate its
investment in the Common Stock; and (iii) the opportunity to obtain such
additional information which the Company possesses or can acquire without
unreasonable effort or expense that is necessary to make an informed investment
decision with respect to the Shares.
(h) Reliance. Each of the Purchasers understands and
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acknowledges that (i) the Shares are being offered and sold, to them without
registration under the Securities Act in a transaction that is exempt from the
registration provisions of the Securities Act, (ii) the availability of such
exemption, depends in part on, and that the Company will rely upon the accuracy
and truth fulness of, the foregoing representations and each of the Purchasers
hereby consents to such reliance, and (iii) that the certificates representing
the shares will bear the appropriate legend stating the restrictions on the
resale and transfer of the shares.
The Company acknowledges and agrees that each of the
Purchasers makes no representation or warranty with respect to the transactions
contemplated hereby other than those specifically set forth in Article III
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herein.
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Section 3.3. Representations and Warranties of ▇▇▇ ▇. ▇▇▇▇, ▇▇.. ▇▇▇
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▇. ▇▇▇▇, ▇▇. hereby represents and warrants to the Purchasers and the Company as
follows:
(a) Affiliate of the Company. ▇▇▇ ▇. ▇▇▇▇, ▇▇. is an
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affiliate of the Company and JetCo in that he is a director of both the Company
and JetCo.
(b) Conflicts of Interests. ▇▇. ▇▇▇▇ is not aware of any
conflicts of interests between the Company and JetCo. In the event a conflict of
interest arises between the Company and JetCo, ▇▇. ▇▇▇▇ will recuse himself from
voting on such matter for both the Company and JetCo.
The Company and the other Purchasers acknowledge and agree
that ▇▇▇ ▇. ▇▇▇▇, ▇▇. makes no representation or warranty with respect to the
transactions contemplated hereby other than those specifically set forth in
Article III herein.
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ARTICLE IV
OTHER AGREEMENTS OF THE PARTIES
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Section 4.1. Manner of Offering. The Shares of Common Stock are being
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issued pursuant to Rule 506 of Regulation D promulgated under Section 4(2) of
the Securities Act. The Shares of Common Stock will not be exempt from
restrictions on transfer, and certificates for the shares of Common Stock will
carry a restrictive legend with respect to the restrictions on the resale and
transfer of the Shares.
Section 4.2. Furnishing of Information. As long as the Purchasers owns
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the Shares, the Company will promptly furnish to it all annual and quarterly
reports filed by the Company with the Commission as required by Section 13(a) or
15(d) of the Exchange Act.
Section 4.3. Notice of Certain Events. The Company shall (i) advise the
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Purchasers promptly after obtaining knowledge thereof, and, if requested by the
Purchasers, confirm such advice in writing, of (A) the issuance by any state
securities commission of any stop order suspending the qualification or
exemption from qualification of the Common Stock for offering or sale in any
jurisdiction, or the initiation of any proceeding for such purpose by any state
securities commission or other regulatory authority, or (B) any event that makes
any statement of a material fact made by the Company in Section III untrue or
that requires the making of any additions to or changes in the Company's
representations or warranties in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading, (ii) use
its best efforts to prevent the issuance of any stop order or order suspending
the qualification or exemption from qualification of the Common Stock under any
state securities or Blue Sky laws, and (iii) if at any time any state securities
commission or other regulatory authority shall issue an order suspending the
qualification or exemption from qualification of the Common Stock under any such
laws, use its best efforts to obtain the withdrawal or lifting of such order at
the earliest possible time.
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Section 4.4. Blue Sky Laws. The Company shall cooperate with the
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Purchasers in connection with the exemption from registration of the Shares
under the securities or Blue Sky laws of such jurisdictions as the Purchasers
may request and to continue such exemption at all times through the second
anniversary of the Closing Date; provided, however, that neither the Company nor
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its Subsidiaries shall be required in connection therewith to qualify as a
foreign corporation where they are not now so qualified. The Company agrees that
it will execute all necessary documents and pay all necessary state filing or
notice fees to enable the Company to sell the Shares under Section 4.8 to the
Purchasers.
Section 4.5 Integration. The Company shall not and shall use its
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best efforts to ensure that no Affiliate shall sell, offer for sale or solicit
offers to buy or otherwise negotiate in respect of any security (as defined in
Section 2 of the Securities Act) that would be integrated with the offer or sale
of the Shares in a manner that would require the registration under the
Securities Act of the sale of the Shares to the Purchasers.
Section 4.6 Solicitation Materials. The Company shall not (i)
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distribute any offering materials in connection with the offering and sale of
the Shares other than the information previously supplied to the Purchasers or
(ii) solicit any offer to buy or sell the Shares by means of any form of general
solicitation or advertising.
Section 4.7. Prohibition on Certain Actions. From the date hereof
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through the Closing Date, the Company shall not and shall cause the Subsidiaries
not to, without the consent of the Purchaser, (i) amend its Certificate of
Incorporation, bylaws or other charter documents so as to adversely affect any
rights of the Purchaser; (ii) split, combine or reclassify its outstanding
capital stock; (iii) declare, authorize, set aside or pay any dividend or other
distribution with respect to the Common Stock; (iv) redeem, repurchase or offer
to repurchase or otherwise acquire shares of its Common Stock; or (v) enter into
any agreement with respect to any of the foregoing.
Section 4.8. Performance by JetCo. The sale of the Shares of Common
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Stock to the Purchasers is conditioned upon JetCo meeting certain performance
standards. At the time JetCo acquires businesses with revenues of run rate of at
least One Million Dollars ($1,000,000) per year, the Purchasers may purchase the
Shares of the Common Stock. JetCo agrees to notify the Company and the
Purchasers in writing within seven (7) Business Days after the closing of the
acquisition of a business , whose revenues combined with the revenues from the
other businesses JetCo has acquired, are at least One Million Dollars
($1,000,000).
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ARTICLE V
ESCROW AGENT AND TERMS OF ESCROW
Section 5.0. Escrow Agent.
Escrow Agent shall be ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
Section 5.1 Limitation of Liability.
(a) Escrow Agent shall not be liable to anyone for any
mistake of fact or error in judgment, or for any acts or provisions of any kind
taken in good faith and believed by it to be authorized or within the rights or
powers conferred by this Agreement, except in the case of Escrow Agent's willful
misconduct or gross negligence. Escrow Agent shall not be liable for default by
any party hereto because of such party's failure to perform any duties or
obligations said party has agreed to perform, and shall have no responsibility
to seek performance by any party; nor shall it be liable for the lapse or
barring of any rights under any statutes of limitation in respect of any
documents or items deposited with it hereunder. Escrow Agent shall not be liable
in any respect on account of the identity, authority, or rights of persons
executing or delivering, or purporting to execute or deliver, any document or
item hereunder, and may rely and be protected in acting upon any item, document,
or other writing believed by it in good faith to be authentic in performing its
duties hereunder. Escrow Agent may, as a condition to the disbursement of money
or property, require from the payee or recipient a receipt therefor.
(b) Buyer and Seller, jointly and severally, agree to
indemnify and hold Escrow Agent, and its directors, employees, officers, agents,
successors and assigns, harmless from and against any and all costs, expenses
(including reasonable attorneys' fees) and losses incurred by Escrow Agent in
connection with the performance of its duties hereunder, except in the case of
Escrow Agent's willful misconduct or gross negligence. Such indemnity shall
include, without limitation, all losses, damages, liabilities and expenses
incurred in connection with any litigation arising from this Agreement or
involving the subject matter hereof. The indemnification provisions contained in
this Agreement are in addition to any rights any indemnified party hereunder may
have by operation of law or otherwise and shall survive the termination of this
Agreement or the resignation or removal of the Escrow Agent. Escrow Agent, at
its option, may institute any interpleader action, suit or proceeding it deems
appropriate to determine judicially any dispute between Buyer or Seller which
may arise hereunder and, by reason thereof, shall not be or become liable to the
Buyer or Seller for the failure of the Escrow Agent to comply with the
conflicting or adverse demands of the Buyer or Seller, or of any other persons
or entities claiming an interest in the escrowed items.
(c) All deliveries made by Escrow Agent hereunder shall be
made via commercial
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overnight courier (i.e. Fedex), or electronic transfer, if applicable and Escrow
Agent shall be entitled to rely on the confirmation of delivery provided by such
carrier or its tracking software to confirm the receipt of any item delivered
under this Agreement.
ARTICLE VI
CONDITIONS PRECEDENT TO CLOSING
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Section 6.1. Conditions Precedent to Obligations of the Purchaser. The
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obligation of the Purchasers to purchase the shares of Common Stock is subject
to the satisfaction or waiver by the Purchasers, at or prior to Closing, of each
of the following conditions:
(a) Legal Opinion. The Purchasers shall have received the
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legal opinion, addressed to it and dated the Closing Date from the legal counsel
for the Company. Such legal opinion shall address the Company's authority to
enter into this Agreement, the availability of Rule 506 of Regulation D for the
offer and sale of the Shares and that upon issuance, the shares of Common Stock
shall be fully paid, validly issued and non-assessable;
(b) Accuracy of the Company's Representations and Warranties.
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The representations and warranties of the Company contained herein shall be true
and correct in all material respects as of the date when made and as of the
Closing Date as though made at that time (except that representations and
warranties that are made as of a specific date need be true in all material
respects only as of such date);
(c) Performance by the Company. The Company shall have
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performed, satisfied and complied in all material respects with all covenants,
agreements and conditions required by this Agreement to be performed, satisfied
or complied with by the Company at or prior to the Closing;
(d) No Material Adverse Effect. There has been no event which
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had a Material Adverse Effect on the Company which has not been disclosed to the
Purchasers;
(e) No Prohibitions. The purchase of and payment for the
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shares of Common Stock hereunder (i) shall not be prohibited or enjoined
(temporarily or permanently) by any applicable law or governmental regulation
and (ii) shall not subject the Purchasers to any penalty, or in its reasonable
judgment, other onerous condition under or pursuant to any applicable law or
governmental regulation that would materially reduce the benefits to the
Purchasers of the purchase of the shares (provided, however, that such
regulation, law or onerous condition was not in effect in such form at the date
of this Agreement);
(f) Company Certificates. The Purchasers shall have received a
--------------------
certificate, dated on the Closing Date, signed by the Secretary or an Assistant
Secretary of the Company and certifying (i) that attached thereto is a true,
correct and complete copy of (A) the Company's Certificate of
Page 11 of 18
Incorporation, as amended to the date thereof, (B) the Company's By-Laws, as
amended to the date thereof, and (C) resolutions duly adopted by the Board of
Directors of the Company authorizing the execution and delivery of this
Agreement, the issuance and sale of the Shares and (ii) the incumbency of
officers executing this Agreement;
Section 6.2. Conditions Precedent to Obligations of the Company. The
--------------------------------------------------
obligation of the Company to issue and sell the Shares of Common Stock hereunder
is subject to the satisfaction or waiver by the Company, at or to the Closing,
of each of the following conditions:
(a) Accuracy of the Purchasers' Representations and
-----------------------------------------------
Warranties. The representations and warranties of the Purchasers shall be true
----------
and correct in all material respects as of the date when made and as of the
Closing Date as though made at that time (except that representations and
warranties that are made as of a specific date need be true in all material
respects only as of such date);
(b) Performance by the Purchasers. The Purchasers shall have
-----------------------------
performed, satisfied and complied in all material respects with all covenants,
agreements and conditions required by this Agreement to be performed, satisfied
or complied with by it at or prior to the Closing; and
(c) No Prohibitions. The sale of the Shares of Common Stock
---------------
hereunder (i) shall not be prohibited or enjoined (temporarily or permanently)
by any applicable law or governmental regulation and (ii) shall not subject the
Company to any penalty, or in its reasonable judgment, any other onerous
condition under or pursuant to any applicable law or governmental regulation
that would materially reduce the benefits to the Company of the sale of Shares
to the Purchasers (provided, however, that such regulation, law or onerous
condition was not in effect in such form at the date of this Agreement).
ARTICLE VII
TERMINATION
-----------
Section 7.1. Termination by Mutual Consent. This Agreement may be
-----------------------------
terminated at any time prior to the Closing by the mutual consent of the Company
and the Purchasers.
Section 7.2. Termination by the Company or the Purchasers. This
--------------------------------------------
Agreement may be terminated prior to the Closing by either the Company or the
Purchasers, by giving written notice of such termination to the other party, if:
(a) the Closing shall not have occurred by November 30,
2001; provided that the terminating party is not then in material breach of its
-------- ----
obligations under this Agreement in any manner that shall have caused the
failure referred to in this paragraph (a); or
Page 12 of 18
(b) there shall be in effect any statute, rule, law or
regulation that prohibits the consummation of the Closing or if the consummation
of the Closing would violate any non- appealable final judgment, order, decree,
ruling or injunction of any court of or governmental authority having competent
jurisdiction; or
Section 7.3. Termination by the Company. This Agreement may be
--------------------------
terminated prior to the Closing by the Company, by giving written notice of such
termination to the Purchasers, if any of the Purchasers has materially breached
any representation, warranty, covenant or agreement contained in this Agreement
and such breach is not cured within five (5) Business Days following receipt by
the Purchaser of notice of such breach.
Section 7.4. Termination by the Purchasers. This Agreement may be
-----------------------------
terminated prior to Closing by the Purchasers, by giving written notice of such
termination to the Company, if:
(a) the Company has breached any representation, warranty,
covenant or agreement contained in this Agreement and such breach is not cured
within five (5) Business Days following receipt by the Company of notice of such
breach; or
(b) there has occurred an event which could reasonably be
expected to have a Material Adverse Effect and which is not disclosed in this
Agreement; or
ARTICLE VIII
LEGAL FEES
----------
In the event any Party commences a legal action to enforce its rights
under this Agreement, the non-prevailing party shall pay all reasonable costs
and expenses (including reasonable attorney's fees, accountant's fees,
appraiser's fees, and investigative fees) incurred in enforcing such rights.
ARTICLE IX
MISCELLANEOUS
-------------
Section 9.1. Fees and Expenses. Except as set forth above, each party
-----------------
shall pay the fees and expenses of its advisers, counsel, accountants and other
experts, if any, and all other expenses incurred by such party incident to the
negotiation, preparation, execution, delivery and performance of this Agreement.
The Company shall pay all stamp and other taxes and duties levied in connection
with the issuance of the Shares pursuant hereto. The Purchasers shall be
responsible for their own tax liability that may arise as a result of the
investment hereunder or the transactions contemplated by this Agreement. Whether
or not the transactions contemplated by this Agreement are consummated or this
Agreement is terminated, the Company shall pay all costs, expenses, fees and
Page 13 of 18
all taxes incident to and in connection with: (A) all preliminary and final Blue
Sky memoranda and all other agreements, memoranda, correspondence and other
documents prepared and delivered in connection herewith (B) the issuance and
delivery of the Shares, (C) the availability of an exemption for the offer and
sale of the Shares under the securities or Blue Sky laws of the several states
(including, without limitation, the fees and disbursements of the Purchaser's
counsel relating to such exemptions), and (D) the preparation of certificates
for the Shares (including, without limitation, printing and engraving thereof).
Section 9.2. Entire Agreement; Amendments. This Agreement, together
----------------------------
with the Exhibits, Annexes and Schedules hereto, contain the entire
understanding of the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings, oral or written, with respect
to such matters. This agreement shall be deemed to have been drafted and
negotiated by both parties hereto and no prescriptions as to interpretation,
construction or enforceability shall be made by or against either party in such
regard.
Section 9.3. Notices. Any notice or other communication required or
-------
permitted to be given hereunder shall be in writing and shall be deemed to have
been made upon facsimile (with transmission confirmation report) at the number
designated below (if delivered on a Business Day during normal business hours
where such notice is to be received), or the first Business Day following such
delivery (if delivered other than on a Business Day during normal business hours
where such notice is to be received) whichever shall first occur. The addresses
for such communications shall be:
If to the JetCo: ▇▇▇▇▇▇▇ ▇▇▇▇▇, President and Chairman
JetCo Communications Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to: __________________________
__________________________
__________________________
Tel:
Fax:
If to the Company: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., President
Wolfpack Corporation
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Page 14 of 18
With copies to: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ Gottbetter & ▇▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
If to the Purchasers: At the address and facsimile numbers
set forth on Schedule A
or such other address as may be designated in writing hereafter, in the same
manner, by such person.
Section 9.4 Amendments; Waivers. No provision of this Agreement may
-------------------
be waived or amended except in a written instrument signed, in the case of an
amendment, by both the Company and all of the Purchasers, or, in the case of a
waiver, by the party against whom enforcement of any such waiver is sought. No
waiver of any default with respect to any provision, condition or require ment
of this Agreement shall be deemed to be a continuing waiver in the future or a
waiver of any other provision, condition or requirement hereof, nor shall any
delay or omission of either party to exercise any right hereunder in any manner
impair the exercise of any such right accruing to it thereafter.
Section 9.5. Headings. The headings herein are for convenience only,
--------
do not constitute a part of this Agreement and shall not be deemed to limit or
affect any of the provisions hereof.
Section 9.6. Successors and Assigns. This Agreement may not be
----------------------
assigned by ant party without the prior written consent of all the parties
hereto. This Agreement shall be binding upon and inure to the benefit of the
parties and their successors and permitted assigns. The assignment by a party of
this Agreement or any rights hereunder shall not affect the obligations of such
party under this Agreement.
Section 9.7. No Third Party Beneficiaries. This Agreement is intended
----------------------------
for the benefit of the parties hereto and their respective permitted successors
and assigns and is not for the benefit of, nor may any provision hereof be
enforced by, any other person.
Section 9.8. Governing Law: Service of Process. This Agreement shall
---------------------------------
be governed by and construed and enforced in accordance with the internal laws
of the State of New York without regard to the principles of conflicts of law
thereof. Any action to enforce the terms of this Agreement or any of its
exhibits shall be exclusively brought in the state and/or federal courts in the
State and County of New York. Service of process in any action by Purchasers to
enforce the terms of this Agreement may be made by serving a copy of the summons
and complaint, in addition to any other relevant documents, by commercial
overnight courier to the Company at its principal address set forth in this
Agreement.
Page 15 of 18
Section 9.9. Survival. The representations and warranties of the
--------
Company and the Purchaser contained in Article III and the agreements and
-----------
covenants of the parties contained in Article IV, the default and remedies
----------
contained in Article V and this Article IX shall survive the Closing (or any
--------- ----------
earlier termination of this Agreement).
Section 9.10. Counterpart Signatures. This Agreement may be executed
----------------------
in two or more counterparts, all of which when taken together shall be
considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other party, it
being understood that both parties need not sign the same counterpart. In the
event that any signature is delivered by facsimile transmission, such signature
shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) the same with the same force and effect as if
such facsimile signature page were an original thereof.
Section 9.11. Publicity. The Company and the Purchasers shall consult
---------
with each other in issuing any press releases or otherwise making public
statements with respect to the transactions contemplated hereby and neither
party shall issue any such press release or otherwise make any such public
statement without the prior written consent of the other, which consent shall
not be unreasonably withheld or delayed.
Section 9.12. Severability. In case any one or more of the provisions
------------
of this Agreement shall be invalid or unenforceable in any respect, the validity
and enforceability of the remaining terms and provisions of this Agreement shall
not in any way be affecting or impaired thereby and the parties will attempt to
agree upon a valid and enforceable provision which shall be a reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Agreement.
Section 9.13. Remedies. In addition to being entitled to exercise all
--------
rights provided herein or granted by law, including recovery of damages, the
Purchasers will be entitled to specific performance of the obligations of the
Company under this Agreement and the Company will be entitled to specific
performance of the obligations of the Purchasers hereunder with respect to the
subsequent transfer of Shares. Each of the Company and the Purchasers agrees
that monetary damages would not be adequate compensation for any loss incurred
by reason of any breach of its obligations described in the foregoing sentence
and hereby agrees to waive in any action for specific performance of any such
obligation the defense that a remedy at law would be adequate.
Signature Page Follows
Page 16 of 18
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first indicated above.
Escrow Agent: Company:
/s/ ▇▇▇▇▇▇ GOTTBETTER & WOLFPACK CORPORATION
▇▇▇▇▇▇▇▇, LLP
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
Purchasers
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇ ▇. ▇▇▇▇, ▇▇.
------------------------------
▇▇▇ ▇. ▇▇▇▇, ▇▇.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ WELLINGTON
------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ Wellington
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
[Schedules, except Schedule A, omitted]
Page 17 of 18
SCHEDULE A
Name, Address and Number of
and Fax Number Number of Percentage of Wolfpack
of Purchaser JetCo Shares JetCo Shares Shares
------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 8,751,850 87.5023% 8,991,170
▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ Wellington 700,000 6.9987% 700,000
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇ ▇. ▇▇▇▇, ▇▇. 500,000 4.9990% 500,000
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 50,000 0.4999% 50,000
▇▇▇ ▇. ▇▇/▇▇/ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Page 18 of 18