Tender and Support Agreement
Exhibit 99.1
This
Tender and Support Agreement (this “Agreement”) is entered into as of
October 2, 2017 by and among the undersigned stockholder
(“Stockholder”)
of Versar, Inc., a Delaware corporation (the “Company”), Kingswood Genesis Fund
I, LLC, a Delaware limited liability company (“Parent”), and KW Genesis Merger
Sub, Inc., a Delaware corporation and a wholly owned subsidiary of
Parent (“Merger
Sub”). Capitalized terms used and not otherwise
defined herein shall have the respective meanings ascribed to them
in the Merger Agreement (as defined below).
WHEREAS,
concurrently herewith, the Company, Parent and Merger Sub are
entering into an Agreement and Plan of Merger (as the same may be
amended, modified, or supplemented from time to time in accordance
with its terms, the “Merger
Agreement”), providing, among other things, for the
commencement by Merger Sub of an all cash tender offer of $0.15 per
share (the “Offer”) for all of the outstanding
shares of common stock, par value $0.01 per share of the Company
(the “Common
Stock”), to be followed by the merger of Merger Sub
with and into the Company with the Company as the surviving
corporation (the “Merger”); and
WHEREAS, as a
condition and inducement to its willingness to enter into the
Merger Agreement and consummate the Merger, Parent has required
that stockholders owning at least 33% of the issued and outstanding
shares of Common Stock enter into this Agreement, and, in support
of the forgoing, Stockholder desires to enter into this Agreement
with respect to the shares of Common Stock beneficially owned
(within the meaning of Rule 13d-3 under the Exchange Act) by
Stockholder and set forth below Stockholder’s signature on
the signature page hereto (the “Original Shares” and, together
with any additional shares of Common Stock acquired by Stockholder
pursuant to Section
5(b) hereof, the “Shares”) to induce Parent to enter
into the Merger Agreement and to consummate the
Merger.
NOW,
THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt, sufficiency and adequacy of
which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Agreement to
Tender.
(a) Tender
of Shares. Stockholder agrees (i) to promptly (and, in any
event, not later than five Business Days after the commencement of
the Offer) validly tender or cause to be validly tendered into the
Offer, pursuant to and in accordance with the terms of the Offer,
all of the Original Shares (free and clear of any Liens), and (ii)
if Stockholder acquires beneficial ownership of additional shares
of Common Stock pursuant to Section 5(b) hereof from the
date of this Agreement through the Termination Date (as set forth
in Section 6(b)
below) (the “Support
Period”), to promptly (and, in any event, not later
than the earlier of (A) five Business Days after Stockholder
acquires beneficial ownership of such additional shares of Common
Stock and (B) the expiration of the Offer) validly tender or cause
to be validly tendered in the Offer, pursuant to and in accordance
with the terms of the Offer, all of such additional shares of
Common Stock (free and clear of any Liens).
(b) No
Withdrawal. Stockholder agrees not to withdraw, and not to
cause or permit to be withdrawn, any Shares from the Offer unless
and until (i) the Offer expires without Merger Sub having accepted
for payment shares of Common Stock tendered into the Offer or (ii)
this Agreement is terminated in accordance with Section 6(b).
(c) Conditional
Obligation. Stockholder acknowledges and agrees that Merger
Sub’s obligation to accept for payment the Common Stock
tendered into the Offer, including the Shares tendered by
Stockholder, is subject to the terms and conditions of the Merger
Agreement and the Offer.
Section 2. Voting
of Shares.
(a) Agreement
to Vote. Subject to the terms of this Agreement, Stockholder
irrevocably and unconditionally agrees that, during the Support
Period, at a meeting of the stockholders of the Company, however
called, or any adjournment or postponement of any such meeting, and
in connection with any action proposed to be taken by written
consent of the stockholders of the Company, such Stockholder shall
(i) be present (in person or by proxy) or otherwise cause the
Shares to be counted as present thereat for purposes of calculating
a quorum, and (ii) vote (or cause to be voted), or, if applicable,
deliver (or cause to be delivered) a written consent covering, all
of the Shares, in favor of the adoption of the Merger Agreement and
the approval of the Merger and the other transactions contemplated
by the Merger Agreement, and (iii) vote against the approval of any
(A) Takeover Proposal or any other extraordinary transaction
involving the Company, other than the Merger, (B) corporate action
the consummation of which would impede, interfere with, prevent or
delay the consummation of any of the Transactions or (C) other
matter relating to, or in connection with, any of the foregoing
matters; provided, however, that notwithstanding the foregoing
Stockholder shall vote in favor of an adjournment of the meeting of
the stockholders of the Company that is recommended by the Company
Board in accordance with the terms of the Merger Agreement.
Stockholder shall ensure that, during the Support Period, any other
Person having voting power with respect to any of the Shares will
not vote any such Shares in favor of or consent to, and will vote
against, the approval of the matters described in clauses (A)
through (C) of the preceding sentence.
(b) Irrevocable
Proxy. Stockholder hereby irrevocably grants to, and
appoints, Parent and any designee thereof, the Stockholder’s
proxy and attorney-in-fact (with full power of substitution), for
and in the name, place and stead of the Stockholder, to vote the
Shares in accordance with Section 2(a), in connection
with any meeting of the stockholders of the Company or any action
by written consent in lieu of a meeting of stockholders of the
Company. Stockholder represents that any proxies heretofore given
in respect of the Shares, if any, are revocable, and hereby revokes
any such proxies. Stockholder hereby affirms that the irrevocable
proxy set forth in this Section 2(b) is given in
connection with the execution of the Merger Agreement, and that
such irrevocable proxy is given to secure the performance of the
duties of the Stockholder under this Agreement. EXCEPT AS EXPRESSLY
SET FORTH IN THIS AGREEMENT, THIS LIMITED PROXY AND POWER OF
ATTORNEY ARE IRREVOCABLE AND COUPLED WITH AN INTEREST SUFFICIENT IN
LAW TO SUPPORT AN IRREVOCABLE PROXY. Each of the irrevocable proxy,
Parent’s interest and Parent’s appointment as
Stockholder’s attorney-in-fact shall automatically terminate
upon the termination of this Agreement pursuant to Section 6(b).
Section 3. Representations and Warranties of
Stockholder. Stockholder hereby represents and warrants to
Parent as follows:
(a) Authorization. The execution,
delivery and performance by Stockholder of this Agreement and the
consummation by Stockholder of the transactions contemplated hereby
are within the powers (corporate and otherwise) of Stockholder and,
if applicable, have been duly authorized by all necessary
corporate, company, partnership or other action. This Agreement
constitutes a valid and binding agreement of Stockholder,
enforceable against Stockholder in accordance with its terms,
subject to the effect of any applicable bankruptcy, insolvency,
moratorium or similar law affecting creditors’ rights
generally and to rules of law governing specific performance,
injunctive relief and other equitable remedies. If Stockholder is
married and (i) the Original Shares constitute community property
under applicable Law or (ii) any additional shares of Common Stock
acquired pursuant to Section 5(b) hereof during the
Support Period could constitute community property under applicable
Law, then this Agreement has been duly authorized, executed and
delivered by, and constitutes the valid and binding agreement of,
Stockholder’s spouse, enforceable against Stockholder’s
spouse in accordance with its terms, subject to the effect of any
applicable bankruptcy, insolvency, moratorium or similar law
affecting creditors’ rights generally and to rules of law
governing specific performance, injunctive relief and other
equitable remedies. If this Agreement is being executed in
representative or fiduciary capacity, the Person signing this
Agreement has full power and authority to enter into and perform
this Agreement.
(b) Non-Contravention. The
execution, delivery and performance by Stockholder of this
Agreement and the consummation of the transactions contemplated
hereby do not and will not (i) violate the certificate of
incorporation or bylaws, operating agreement, partnership agreement
or other comparable charter or organizational documents, of
Stockholder, if any, (ii) violate any applicable Law, (iii)
conflict with or violate or require any consent, approval, notice
or other action by any Person under, constitute a default (with or
without notice of lapse of time or both) under, or give rise to any
right of termination, cancellation or acceleration or to a loss of
any benefit to which Stockholder is entitled under any provision of
any Contract binding on Stockholder or any of Stockholder’s
properties or assets, including the Shares or (iv) result in the
imposition of a Lien on any asset of Stockholder, except, in the
case of clauses (ii) and (iii), for such occurrences which would
not adversely affect in any material respect the ability of
Stockholder to perform his or its obligations
hereunder.
(c) Ownership of Original Shares; Total
Shares. As of the date of this Agreement, Stockholder is the
holder of record or “beneficial owner” (as defined in
Rule 13d-3 under the Exchange Act) of, and has good and valid title
to, the Original Shares, free and clear of all Liens (including any
restriction on the right to vote or to transfer such Original
Shares), except as provided hereunder or pursuant to any applicable
restrictions on transfer under the Exchange Act. As of the date
hereof, Stockholder does not hold, directly or indirectly, any
shares of Common Stock other than the Original Shares. Other than
the Original Shares, Stockholder does not, directly or indirectly,
beneficially own or have any option, warrant or other right to
acquire any securities of the Company that are or may by their
terms become entitled to vote or any securities that are
convertible or exchangeable into or exercisable for any securities
of the Company that are or may by their terms become entitled to
vote, nor is Shareholder subject to any contract, commitment,
arrangement, understanding or relationship (whether or not legally
enforceable), other than this Agreement, that allows or obligates
Stockholder to vote or acquire any securities of the Company. None
of the Original Shares is subject to any proxy, voting trust or
other agreement, arrangement or restriction (whether written or
oral) with respect to the voting of the Original Shares, except as
contemplated by this Agreement.
(d) Reliance. Stockholder
acknowledges that Stockholder is a sophisticated investor with
respect to the Shares and has adequate information concerning the
business and financial condition of the Company to make an informed
decision regarding the transactions contemplated by this Agreement
and the Merger Agreement and has, independently and without
reliance upon any of Parent, Merger Sub, the Company or any
Affiliate of the foregoing, and based on such information as
Stockholder has deemed appropriate, made his or its own analysis
and decision to enter into this Agreement. Stockholder acknowledges
that none of Parent, Merger Sub, the Company or any Affiliate of
any of the foregoing has made or is making any representation or
warranty, whether express or implied, of any kind or character
except as expressly set forth in this Agreement and the Merger
Agreement. Stockholder acknowledges that he or it has had the
opportunity to seek independent legal advice from legal counsel of
Stockholder’s choosing prior to executing this Agreement.
Stockholder understands and acknowledges that Parent, Merger Sub
and the Company are entering into the Merger Agreement in part in
reliance upon Stockholder’s execution, delivery and
performance of this Agreement and upon the representations,
warranties, covenants and other agreements of Stockholder contained
in this Agreement.
(e) Absence of Litigation. There is
no Claim pending against or, to the knowledge of Stockholder,
threatened against or affecting (i) such Stockholder or any of his
or its properties or assets (including the Shares) or (ii) to
Stockholder’s knowledge after reasonable inquiry, any of his
or its controlled Affiliates or any of their respective properties
or assets, in each case before (or, in the case of threatened
Claims, that would be before) or by any Governmental Authority or
arbitrator that would reasonably be expected to prevent or
materially delay or impair the consummation by Stockholder of the
transactions contemplated by this Agreement or otherwise adversely
impact Stockholder’s ability to perform his or its
obligations hereunder in any material respect or on a timely basis;
provided that Stockholder makes no representations or warranties
regarding any Claims involving the Company or relating to the
Merger Agreement (other than Actions involving
Stockholder).
(f) No Finder’s Fees. Except
as contemplated by the Merger Agreement, no broker, investment
banker, financial advisor or other Person is entitled to any
broker’s, finder’s, financial advisor’s or other
similar fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements made by or
on behalf of Stockholder.
Section 4. Representations and Warranties of
Parent and Merger Sub. Parent and Merger Sub hereby
represent and warrant to Stockholder as follows:
(a) Corporate Authorization. The
execution, delivery and performance by Parent and Merger Sub of
this Agreement and the consummation by Parent and Merger Sub of the
transactions contemplated hereby are within the limited liability
company powers of Parent and the corporate powers of Merger Sub and
have been duly authorized by all necessary limited liability
company or corporate action. This Agreement constitutes a valid and
binding agreement of Parent and Merger Sub, enforceable against
Parent and Merger Sub in accordance with the terms, subject to the
effect of any applicable bankruptcy, insolvency, moratorium or
similar law affecting creditors’ rights generally and to
rules of law governing specific performance, injunctive relief and
other equitable remedies.
Section 5. Additional Covenants of
Stockholder. Stockholder covenants and agrees as
follows:
(a) Restriction on Transfer of
Shares. Except as contemplated by this Agreement, during the
Support Period, Stockholder will not, without the prior written
consent of Parent, directly or indirectly (except, if Stockholder
is an individual, as a result of the death of Stockholder), (i)
tender into any tender or exchange offer (other than the Offer) or
otherwise cause or permit any Transfer of any of the Shares to be
effected, (ii) encumber the Shares with any Lien except as provided
hereunder or pursuant to any applicable restrictions on transfer
under the Exchange Act, (iii) commit any act that could restrict or
otherwise affect such Stockholder’s legal power, authority or
right to vote or cause to be voted all of the Shares then owned by
such Stockholder in the manner required by Section 2 hereof, (iv) deposit
any Shares into a voting trust and/or (v) except for this
Agreement, enter into any voting agreement or similar agreement
with respect to any of the Shares. Notwithstanding the foregoing,
Stockholder may transfer Shares held by Stockholder to a trust for
the benefit of Stockholder or any member of Stockholder’s
immediate family if Stockholder is an individual, or to an
Affiliate of Stockholder if Stockholder is an entity; provided,
that a transfer referred to in this sentence shall be permitted
only if, as a precondition of such transfer, the transferee agrees
in a writing, reasonably satisfactory in form and substance to
Parent, to be bound by all the terms and conditions of this
Agreement. For purposes of this Agreement, “Transfer” means any direct or
indirect transfer, sale, assignment, pledge, hypothecation, grant
of a security interest in or other disposal of all or any portion
of the Shares.
(b) Additional Shares. Stockholder
agrees that all shares of Common Stock that Stockholder purchases,
acquires the right to vote or otherwise acquires beneficial
ownership (as defined in Rule 13d-3 under the Exchange Act) of
after the execution of this Agreement shall be subject to the terms
of this Agreement and shall constitute Shares for all purposes of
this Agreement. Stockholder agrees to promptly (and, in any event,
not later than three Business Days after the purchase or
acquisition thereof) notify Parent of any such purchase or
acquisition.
(c) No Solicitation. Subject to
Section 6(a)
hereof, Stockholder agrees that he or it shall not, directly or
indirectly, (i) solicit, initiate or knowingly facilitate or
encourage the making, submission or public announcement of a
Takeover Proposal or (ii) enter into, participate in, maintain or
continue any communications or negotiations regarding a potential
Takeover Proposal with any Person other than Parent, Merger Sub or
the Company (other than informing Persons of the provisions set
forth in the Merger Agreement). Stockholder shall immediately cease
any discussions or negotiations with any Person conducted
heretofore with respect to a Takeover Proposal. Notwithstanding
anything to the contrary provided in this Agreement, Stockholder or
any of its Affiliates or representatives shall not be prohibited
from participating in any discussions or negotiations with respect
to a possible tender and support, voting or similar agreement in
connection with a Takeover Proposal in the event that the Company
is permitted to take the actions set forth in Section 5.3 of the
Merger Agreement with respect to such Takeover
Proposal.
(d) Communications. Stockholder
hereby (i) consents to and authorizes the publication and
disclosure by Parent, Merger Sub and the Company (including in the
Offer Documents, the Schedule 14D-9 or any other publicly filed
document relating to the Merger, the Offer or any other transaction
contemplated by the Merger Agreement) of (A) Stockholder’s
identity, (B) Stockholder’s beneficial ownership of the
Shares and (C) the nature of Stockholder’s commitments,
arrangements and understandings under this Agreement, and any other
information that Parent, Merger Sub or the Company determine to be
necessary in any publicly filed document in connection with the
Offer, the Merger or any of the other Transactions and (ii) agrees
as promptly as practicable to notify Parent, Merger Sub and the
Company of any required corrections with respect to any written
information supplied by Stockholder specifically for use in any
such disclosure document.
(e) Waiver of Appraisal and
Dissenters’ Rights and Actions. Stockholder hereby (i)
waives and agrees not to exercise any rights (including under
Section 262 of the DGCL) to demand appraisal of any of the Shares
or rights to dissent from the Merger which may arise with respect
to the Merger and (ii) agrees not to commence or participate in,
and to take all actions necessary to opt out of any class in any
class action with respect to any Claim, including any derivative
action, against Parent, Merger Sub, the Company or any of their
respective successors relating to the negotiation, execution or
delivery of this Agreement or the Merger Agreement or the making or
consummation of the Offer or consummation of the Merger, including
any Claim (A) challenging the validity of, or seeking to enjoin the
operation of, any provision of this Agreement or (B) alleging a
breach of any fiduciary duty of the Company Board in connection
with the Merger Agreement or the Transactions.
Section 6. Miscellaneous.
(a) Capacity of Stockholder.
Stockholder, if a director or officer of the Company, has executed
this Agreement solely in his capacity as a stockholder of the
Company and not in his capacity as an officer, director, or
employee of the Company. Without limiting the foregoing, nothing in
this Agreement (i) shall limit or affect any actions or omissions
taken by Stockholder in such person’s capacity as an officer,
director or employee of the Company in connection with the exercise
of the Company’s rights under the Merger Agreement, and no
such actions or omissions shall be deemed a breach of this
Agreement or (ii) will be construed to prohibit, limit or restrict
Stockholder from exercising Stockholder’s fiduciary duties as
an officer or director to the Company or its stockholders. [NTD:
This change avoids needing to file more than one form of this
Agreement.]
(b) Termination. This Agreement
shall terminate upon the earliest to occur of (i) the date on which
the parties hereto mutually agree in writing to terminate this
Agreement, (ii) the termination of the Merger Agreement in
accordance with its terms, (iii) the date of any modification,
waiver or amendment of the Merger Agreement in a manner that
reduces the amount or changes the form of consideration payable
thereunder to Stockholder, (iv) the acceptance for payment by
Merger Sub (or other Affiliate of Parent) of the shares of Common
Stock validly tendered pursuant to the Offer and not properly
withdrawn and (v) the Effective Time (such earliest date being
referred to herein as the “Termination Date”).
(c) Notices. All notices, requests
and other communications to any party hereunder shall be in writing
and shall be deemed given if delivered personally or sent by
overnight courier (providing proof of delivery) to the parties at
the following addresses:
If to
Parent:
c/o of
Kingswood Capital Management LLC
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Attention:
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Copy to
(which shall not constitute notice):
Dentons
US LLP
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Attention:
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If to
Stockholder, to the address, facsimile number or e-mail address set
forth for Stockholder on the signature page hereof.
Copy to
(which shall not constitute notice):
[●]
[●]
Attention:
[●]
or such
other address as such party may hereafter specify by like notice to
the other party hereto. All such notices, requests and other
communications shall be deemed received on the date of receipt by
the recipient thereof if received prior to 5:00 p.m. in the place
of receipt and such day is a Business Day in the place of receipt.
Otherwise, any such notice, request or communication shall be
deemed not to have been received until the next succeeding Business
Day in the place of receipt.
(d) Amendment. This Agreement may
not be amended except by an instrument in writing signed by all of
the parties hereto.
(e) Severability. Any term or
provision of this Agreement that is invalid or unenforceable in any
situation in any jurisdiction shall not affect the validity or
enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction. If the final
judgment of a court of competent jurisdiction declares that any
term or provision hereof is invalid or unenforceable, the parties
hereto agree that the court making such determination shall have
the power to limit the term or provision, to delete specific words
or phrases, or to replace any invalid or unenforceable term or
provision with a term or provision that is valid and enforceable
and that most accurately expresses the intention of the invalid or
unenforceable term or provision and, in such case, this Agreement
shall be enforceable as so modified. In the event such court does
not exercise the power granted to it in the prior sentence, the
parties hereto agree to replace such invalid or unenforceable term
or provision with a valid and enforceable term or provision that
most accurately expresses the intention of the invalid or
unenforceable term.
(f) Entire Agreement; No Third Party
Beneficiaries. This Agreement, including all exhibits and
schedules attached hereto, constitutes the entire agreement of the
parties hereto and supersedes any and all other agreements and
undertakings, both written and oral, between the parties hereto
with respect to the subject matter hereof. This Agreement does not,
and is not intended to, confer upon any other person or entity
other than the parties hereto any right, benefit or remedy
hereunder.
(g) Binding Effect; Assignment.
This Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective legal representatives and
successors. Notwithstanding the foregoing, this Agreement shall not
be assigned by any party hereto by operation of law or otherwise
without the prior written consent of the other parties hereto and
any such purported assignment shall be void.
(h) Specific Performance.
Stockholder agrees that irreparable damage would occur and that
Parent would not have any adequate remedy at Law in the event that
any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It
is accordingly agreed that Parent shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and
to enforce specifically the terms and provisions of this Agreement,
without posting bond or other security, and without the necessity
of proving actual damages, in any federal court located in the
State of Delaware or in Delaware state court, this being in
addition to any other remedy to which Parent is entitled at Law or
in equity. These injunctive remedies are cumulative and in addition
to any other rights and remedies Parent may have under applicable
Law.
(i) Governing Law; Venue. This
Agreement shall be governed by, and construed in accordance with,
the laws of the State of Delaware, without giving effect to any
choice or conflict of laws provision or rule (whether of the State
of Delaware of any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of
Delaware. EACH OF THE PARTIES (A) IRREVOCABLY SUBMITS HIMSELF OR
ITSELF TO THE PERSONAL JURISDICTION OF EACH STATE OR FEDERAL COURT
SITTING IN THE STATE OF DELAWARE, AS WELL AS TO THE JURISDICTION OF
ALL COURTS TO WHICH AN APPEAL MAY BE TAKEN FROM SUCH COURTS, IN ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, (B) AGREES THAT EVERY SUCH SUIT, ACTION OR PROCEEDING
SHALL BE BROUGHT, HEARD AND DETERMINED EXCLUSIVELY IN THE COURT OF
CHANCERY OF THE STATE OF DELAWARE (PROVIDED THAT, IN THE EVENT
SUBJECT MATTER JURISDICTION IS UNAVAILABLE IN OR DECLINED BY THE
COURT OF CHANCERY, THEN ALL SUCH CLAIMS SHALL BE BROUGHT, HEARD AND
DETERMINED EXCLUSIVELY IN ANY OTHER STATE OR FEDERAL COURT SITTING
IN THE STATE OF DELAWARE), (C) AGREES THAT HE OR IT SHALL NOT
ATTEMPT TO DENY OR DEFEAT SUCH PERSONAL JURISDICTION BY MOTION OR
OTHER REQUEST FOR LEAVE FROM SUCH COURT, (D) AGREES NOT TO BRING
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN IN ANY
OTHER COURT, AND (E) WAIVES ANY DEFENSE OF INCONVENIENT FORUM TO
THE MAINTENANCE OF ANY SUIT, ACTION OR PROCEEDING SO BROUGHT. EACH
PARTY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUTSIDE THE
TERRITORIAL JURISDICTION OF THE COURTS REFERRED TO IN THIS
SECTION 6(i) IN ANY
SUCH ACTION OR PROCEEDING BY MAILING COPIES THEREOF BY REGISTERED
OR CERTIFIED UNITED STATES MAIL, POSTAGE PREPAID, RETURN RECEIPT
REQUESTED, TO HIS OR ITS ADDRESS AS SPECIFIED IN OR PURSUANT TO
SECTION 6(c).
HOWEVER, THE FOREGOING SHALL NOT LIMIT THE RIGHT OF A PARTY TO
EFFECT SERVICE OF PROCESS ON THE OTHER PARTY BY ANY OTHER LEGALLY
AVAILABLE METHOD. EACH PARTY UNCONDITIONALLY WAIVES ANY RIGHT SUCH
PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
(j) Counterparts. This Agreement
may be executed in separate counterparts, including via facsimile
or other electronic transmission, each of which when so executed
and delivered shall be an original, but all such counterparts shall
together constitute one and the same instrument.
IN
WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first written above.
KINGSWOOD GENESIS
FUND I, LLC
By:
Name:
Title:
KW
GENESIS MERGER SUB, INC.
By:
Name:
Title:
[STOCKHOLDER]
By:
Name:
Title:
SPOUSE
OF STOCKHOLDER (if applicable):
Number
of Shares of Common Stock Beneficially Owned as of the Date of this
Agreement:
Street
Address:
City/State/Zip
Code:
Fax:
E-mail: