STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT ("Agreement"), dated as of December 5, 2003, by
and among YDI Wireless, Inc., an Delaware Corporation (the "Company"), and each
person or entity who executes a counterpart signature page to this Agreement and
is listed as an investor on Schedule I attached to this Agreement (each
individually an "Investor" and collectively the "Investors").
W I T N E S S E T H:
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WHEREAS, the Company desires to sell and issue to the Investors listed on
Schedule I, and the Investors listed on Schedule I desire to purchase from the
Company, up to an aggregate of 1,000,000 shares of Common Stock, $.01 par value
per share (the "Common Stock"), of the Company on the terms and conditions set
forth herein;
WHEREAS, the Company has granted the Investors registration rights with
respect to the shares of Common Stock purchased hereunder pursuant to the terms
hereof; and
NOW, THEREFORE, in consideration of the foregoing premises and the
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Certain Definitions. As used in this Agreement, the following terms shall
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have the following respective meanings:
"Closing" and "Closing Date" shall have the meanings ascribed to such terms
in Section 1.3 herein.
"Commission" shall mean the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Holder" and "Holders" shall include an Investor or Investors,
respectively, and any transferee of the shares of Common Stock or Registrable
Securities which have not been sold to the public to whom the registration
rights conferred by this Agreement have been transferred in compliance with this
Agreement.
"Registrable Securities" shall mean: (i) the shares of Common Stock issued
or issuable to each Holder or the respective permitted transferee or designee;
(ii) any securities issued to each Holder as a result of any stock split, stock
dividend, recapitalization or similar event or upon the exchange of the shares
of Common Stock; or (iii) any other security of the Company issued as a dividend
or other distribution with respect to, in exchange of or in replacement of
Registrable Securities.
The terms "register", "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and applicable rules and regulations
thereunder, including without limitation, Rule 415 under the
Securities Act or any successor rule providing for offering securities on a
continuous or delayed basis, and the declaration or ordering of the
effectiveness of such registration statement by the Commission.
"Registration Expenses" shall mean all expenses to be incurred by the
Company in connection with each Holder's registration rights under this
Agreement, including, without limitation, all registration and filing fees,
printing expenses, fees and disbursements of counsel for the Company, blue sky
fees and expenses, reasonable fees and disbursements of counsel for Holders
(using a single counsel selected by a majority in the interest of the Holders)
for a "due diligence" examination of the Company and review of the Registration
Statement and related documents (in an amount not to exceed $5,000), and the
expense of any special audits incident to or required by any such registration
(but excluding the compensation of regular employees of the Company, which shall
be paid in any event by the Company).
"Registration Statement" shall have the meaning set forth in Section 4.1(a)
herein.
"Regulation D" shall mean Regulation D as promulgated pursuant to the
Securities Act, and as subsequently amended.
"Securities" shall mean the shares of Common Stock.
"Securities Act" or "Act" shall mean the Securities Act of 1933, as
amended.
"Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities, if any, and all
fees and disbursements of counsel for Holders not included within "Registration
Expenses".
ARTICLE I
Purchase and Sale of the Stock
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Section 1.1 Purchase and Sale. Upon the following terms and conditions, the
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Company shall issue and sell to each Investor listed on Schedule I severally,
and each Investor listed on Schedule I severally shall purchase from the
Company, the number of shares of Common Stock indicated next to such Investor's
name on Schedule I attached hereto.
Section 1.2 Purchase Price. The per share purchase price for the shares of
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Common Stock shall be equal to $4.10 per share of Common Stock (the "Common
Stock Purchase Price").
Section 1.3 The Closing. (a) The closing of the purchase and sale of the
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Common Stock (the "Closing"), shall take place at the offices of the Company, at
10:00 a.m., local time following acceptance by the Company of subscriptions
representing a minimum of $2,050,000.00 of shares of Common Stock, which
acceptance shall not occur until the conditions set forth in Article V hereof
shall be fulfilled or waived in accordance herewith. The date on which the
Closing occurs is referred to herein as the "Closing Date."
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(b) On the Closing Date, the Company shall deliver to each Investor
certificates (with the number of and denomination of such certificates
reasonably requested by such Investor) representing the Common Stock purchased
hereunder by such Investor registered in the name of such Investor, and such
Investor shall deliver to the Company the purchase price for the Common Stock
purchased by such Investor hereunder by wire transfer in immediately available
funds to an account designated in writing by the Company. In addition, each
party shall deliver all documents, instruments and writings required to be
delivered by such party pursuant to this Agreement at or prior to the Closing
Date. The foregoing notwithstanding, the Company may, in lieu of delivering
certificates on the Closing Date, deliver an irrevocable instruction letter
addressed to the Company's transfer agent authorizing such transfer agent to
issue the applicable share certificates (the "Irrevocable Instruction Letter").
ARTICLE II
Representations and Warranties
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Section 2.1 Representations and Warranties of the Company. The Company
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hereby makes the following representations and warranties to each of the
Investors from and as of the date hereof through the Closing Date:
(a) Organization and Qualification; Material Adverse Effect. The Company
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does not have any direct or indirect subsidiaries. The Company is a corporation
duly incorporated and validly existing and in good standing under the laws of
its respective jurisdiction of incorporation and the Company has the requisite
corporate power to own its properties and to carry on its business as now being
conducted. The Company is duly qualified as a foreign corporation to do business
and is in good standing in every jurisdiction in which the nature of the
business conducted or property owned by it makes such qualification necessary
other than those in which the failure so to qualify would not have a Material
Adverse Effect. "Material Adverse Effect" means any adverse effect on the
business, operations, properties, or financial condition of the entity with
respect to which such term is used and which is material to such entity and
other entities controlling or controlled by such entity, taken as a whole, and
any material adverse effect on the transactions contemplated under the Agreement
or any other agreement or document contemplated hereby.
(b) Authorization; Enforcement. (i) The Company has the requisite corporate
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power and authority to enter into and perform this Agreement and to issue the
Securities in accordance with the terms hereof, (ii) the execution and delivery
of this Agreement by the Company and the consummation by it of the transactions
contemplated hereby, including the issuance of the Common Stock in accordance
with the terms of this Agreement have been duly authorized by all necessary
corporate action, and no further consent or authorization of the Company or its
Board of Directors or stockholders is required, (iii) this Agreement has been
duly executed and delivered by the Company, and (iv) this Agreement constitutes
the valid and binding obligations of the Company enforceable against the Company
in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation and other similar laws affecting the
enforcement of creditors' rights generally, general equitable principles and the
discretion of courts in granting equitable remedies.
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(c) Capitalization. The authorized capital stock of the Company consists of
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100,000,000 shares of Common Stock and 4,500,000 shares of preferred stock, par
value $.01 per share ("Preferred Stock"); as of November 30, 2003, there are
13,650,523 shares of Common Stock and no shares of Preferred Stock issued and
outstanding, respectively. All of the outstanding shares of the Common Stock
have been validly issued and are fully paid and non-assessable. No shares of
Common Stock or preferred stock are entitled to preemptive rights, there are no
other scrip, rights to subscribe for, calls or commitments of any character
whatsoever relating to, or securities or rights exchangeable or convertible
into, any shares of capital stock of the Company, or contracts, commitments,
understandings or arrangements by which the Company is or may become bound to
issue additional shares of capital stock of the Company or options, warrants,
scrip, rights to subscribe for, or commitments to purchase or acquire, any
shares, or securities or rights convertible into shares, of capital stock of the
Company, in each case, other than shares of the Company's common stock issuable
pursuant to the stock options issued and available for issuance under the
Company's stock option plans, shares issuable pursuant to the Company's
outstanding stock warrants, and shares issuable pursuant to the Agreement and
Plan of Merger, dated as of October 30, 2003, among the Company, Stun
Acquisition Corporation, and Phazar Corp.
(d) No Conflicts. The execution, delivery and performance of this Agreement
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by the Company and the consummation by the Company of the transactions
contemplated hereby do not and will not (i) result in a violation of the charter
or By-Laws of the Company or any Subsidiary or (ii) 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, patent, patent
license or instrument to which the Company or any Subsidiary is a party, or
result in a violation of any Federal, state, local or foreign law, rule,
regulation, order, judgment or decree (including Federal and state securities
laws and regulations) applicable to the Company or any Subsidiary or by which
any property or asset of the Company or any Subsidiary is bound or affected
(except for such conflicts, defaults, terminations, amendments, accelerations,
cancellations and violations as would not, individually or in the aggregate,
have a Material Adverse Effect); provided that, for purposes of such
representation as to Federal, state, local or foreign law, rule or regulation,
no representation is made herein with respect to any of the same applicable
solely to the Investors and not to the Company or any Subsidiary. Neither the
business of the Company nor of any Subsidiary is being conducted in violation of
any law, ordinance or regulation of any governmental entity, except for
violations which either singly or in the aggregate do not and will not have a
Material Adverse Effect. The Company is not required under Federal, state, local
or foreign law, rule or regulation to obtain any consent, authorization or order
of, or to make any filing or registration with, any court or governmental agency
in order for it to execute, deliver or perform any of its obligations under this
Agreement or issue and sell the Common Stock in accordance with the terms
hereof, except for the registration provisions provided for herein, provided
that, for purposes of the representation made in this sentence, the Company is
assuming and relying upon the accuracy of the relevant representations and
agreements of the Investors herein.
(e) SEC Documents; Financial Statements. The Common Stock of the Company is
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registered pursuant to Section 12(g) of the Exchange Act and the Company has
timely filed all reports, schedules, forms, statements and other documents
required to be filed by
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it with the Commission pursuant to the reporting requirements of the Exchange
Act, including material filed pursuant to Section 13(a) or 15(d) (all of the
foregoing including filings incorporated by reference therein being referred to
herein as the "SEC Documents"). The Company has delivered or made available to
the Investors true and complete copies of all SEC Documents (including, without
limitation, proxy information and solicitation materials and registration
statements) filed with the Commission since September 30, 1999. As of their
respective dates, the SEC Documents (as amended by any amendments filed prior to
the date of this Agreement or any Closing Date and provided or made available to
each Investor) complied or will comply in all material respects with the
requirements of the Exchange Act and the rules and regulations of the Commission
promulgated thereunder and other Federal, state and local laws, rules and
regulations applicable to such SEC Documents, and none of the SEC Documents
contained or will contain any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading. The financial statements of the Company included in the
SEC Documents comply as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the
Commission or other applicable rules and regulations with respect thereto. Such
financial statements have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis during the periods involved
(except (i) as may be otherwise indicated in such financial statements or the
notes thereto or (ii) in the case of unaudited interim statements, to the extent
they may not include footnotes or may be condensed or summary statements) and
fairly present in all material respects the financial position of the Company as
of the dates thereof and the results of operations and cash flows for the
periods then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments and the lack of footnotes).
(f) Principal Exchange/Market. The principal market on which the Common
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Stock is currently traded is the OTC Bulletin Board.
(g) No Material Adverse Change. Since September 30, 2003, the date through
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which the most recent quarterly report of the Company on Form 10-Q has been
prepared and filed with the Commission, a copy of which is included in the SEC
Documents, no event which had or is likely to have a Material Adverse Effect has
occurred or exists with respect to the Company or any Subsidiary that was
required to be publicly disclosed on or before the date of this Agreement under
applicable securities laws and regulations, except as otherwise disclosed or
reflected in press releases or other SEC Documents filed, publicly released, or
prepared through or as of a date subsequent to September 30, 2003 and provided
or made available to the Investors.
(h) No Undisclosed Liabilities. Neither the Company nor any Subsidiary has
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any liabilities or obligations not disclosed in the SEC Documents that were
required to be publicly disclosed on or before the date of this Agreement under
applicable securities laws and regulations, except as otherwise disclosed or
reflected in press releases or other SEC Documents filed, publicly released, or
prepared through or as of a date subsequent to September 30, 2003 and provided
or made available to the Investors.
(i) No Undisclosed Events or Circumstances. No event or circumstance has
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occurred or exists with respect to the Company, any Subsidiary or their
respective business,
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properties, operations or financial condition, which, under applicable law, rule
or regulation, requires public disclosure or announcement by the Company as of
the date of this Agreement but which has not been so publicly announced or
disclosed.
(j) No General Solicitation. None of the Company, the Subsidiaries or, to
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the Company's knowledge, any of their respective affiliates or any person acting
on its or their behalf has engaged in any form of general solicitation or
general advertising (within the meaning of Regulation D) in connection with the
offer or sale of the Securities.
(k) No Integrated Offering. None of the Company, the Subsidiaries, or, to
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the Company's knowledge, any of their respective affiliates, or any person
acting on its or their behalf has, directly or indirectly, made any offers or
sales of any security or solicited any offers to buy any security, under
circumstances that would require registration of any of the Securities.
(l) Intellectual Property. Each of the Company and the Subsidiaries owns or
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has licenses to use certain copyrights and trademarks ("intellectual property")
associated with its respective business. Each of the Company and the
Subsidiaries has all intellectual property rights which are needed to conduct
its respective business as it is now being conducted or as proposed to be
conducted as disclosed in the SEC Documents. The Company has no reason to
believe that the intellectual property rights owned by the Company or any of its
Subsidiaries are invalid or unenforceable or that the use of such intellectual
property by the Company or the Subsidiaries infringes upon or conflicts with any
right of any third party, and neither the Company nor any Subsidiary has
received notice of any such infringement or conflict. The Company has no
knowledge of any infringement of the Company's or any Subsidiary's intellectual
property by any third party.
(m) No Litigation. Except as set forth in the SEC Documents delivered or
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made available to the Investors, no litigation or claim against the Company or
any Subsidiary is pending or, to the Company's knowledge, threatened.
(n) Brokers. The Company has taken no action which would give rise to any
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claim by any person, other than ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Incorporated, for brokerage
commissions, finder's fees or similar payments by the Company relating to this
Agreement or the transactions contemplated hereby. The Company has taken no
action which would give rise to any claim by any person for brokerage
commissions, finder's fees or similar payments by any Investor relating to this
Agreement or the transactions contemplated hereby.
(o) Forms S-3. The Company is not currently eligible to file a Registration
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Statement on Form S-3 under the Act and the rules promulgated thereunder for
either primary or secondary offerings.
Section 2.2 Representations and Warranties of the Investors. Each of the
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Investors, severally and not jointly, hereby makes the following representations
and warranties to the Company as of the date hereof and on the Closing Date:
(a) Authorization; Enforcement. (i) Such Investor has the requisite power
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and authority, or the legal capacity, as the case may be, to enter into and
perform this Agreement and to purchase the Securities being sold to such
Investor hereunder, (ii) the execution and delivery
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of this Agreement by such Investor and the consummation by it of the
transactions contemplated hereby have been duly authorized by all necessary
corporate or partnership action, as required, and (iii) this Agreement
constitutes the valid and binding obligation of such Investor enforceable
against such Investor in accordance 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.
(b) No Conflicts. The execution, delivery and performance of this Agreement
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and the consummation by such Investor of the transactions contemplated hereby do
not and will not (i) result in a violation of such Investor's organizational
documents, or (ii) conflict with any agreement, indenture, or instrument to
which such Investor is a party, or (iii) result in a violation of any law, rule,
or regulation or any order, judgment or decree of any court or governmental
agency applicable to such Investor. Such Investor is not required to obtain any
consent or authorization of any governmental agency in order for it to perform
its obligations under this Agreement.
(c) Investment Representation. Such Investor is purchasing the securities
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purchased hereunder for its own account and not with a view to distribution in
violation of any securities laws. Such Investor has no present intention to sell
the securities purchased hereunder and such Investor has no present arrangement
(whether or not legally binding) to sell the Securities purchased hereunder to
or through any person or entity; provided, however, that by the representations
herein, such Investor does not agree to hold any of the Securities for any
minimum or other specific term and reserves the right to dispose of any of the
Securities at any time in accordance with Federal and state securities laws
applicable to such disposition.
(d) Accredited Investor. Such Investor is an "accredited investor" as
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defined in Rule 501 promulgated under the Act. The Investor has such knowledge
and experience in financial and business matters in general and investments in
particular, so that such Investor is able to evaluate the merits and risks of an
investment in the securities purchased hereunder and to protect its own
interests in connection with such investment. In addition (but without limiting
the effect of the Company's representations and warranties contained herein),
such Investor has received such information as it considers necessary or
appropriate for deciding whether to purchase the Securities purchased hereunder.
Each Investor acknowledges that the Company has offered to discuss non-public
information concerning the Company with the Investor if the Investor signed a
confidentiality agreement with the Company and that the Investor has declined to
do so. Each Investor represents and warrants that the jurisdiction of its
formation and location of its principal place of business is as set forth on the
signature page to this Agreement signed by such Investor.
(e) Rule 144. Such Investor understands that the Common Stock must be held
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indefinitely unless such securities are registered under the Act or an exemption
from registration is available. Such Investor has been advised or is aware of
the provisions of Rule 144 promulgated under the Act.
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(f) Brokers. Such Investor has taken no action which would give rise to any
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claim by any person for brokerage commissions, finder's fees or similar payments
by the Company relating to this Agreement or the transactions contemplated
hereby.
(g) Reliance by the Company. Such Investor understands that the Common
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Stock is being offered and sold in reliance on a transactional exemption from
the registration requirements of Federal and state securities laws and that the
Company is relying upon the truth and accuracy of the representations,
warranties, agreements, acknowledgments and understandings of such Investor set
forth herein in order to determine the applicability of such exemptions and the
suitability of such Investor to acquire the Securities.
ARTICLE III
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Covenants
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Section 3.1 Registration and Listing. Until the expiration of the
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Effectiveness Period (as hereinafter defined in Section 4.3), the Company will
cause the Common Stock to continue to be registered under Section 12(g) of the
Exchange Act, will comply in all respects, with its reporting and filing
obligations under the Exchange Act, and will not take any action or file any
document (whether or not permitted by the Exchange Act or the rules thereunder)
to terminate or suspend such reporting and filing obligations. Until the
expiration of the Effectiveness Period, the Company shall use its best efforts
to continue the listing or trading of the Common Stock on the OTC Bulletin
Board, the Nasdaq National Market, the Nasdaq SmallCap Market, or a principal
exchange (which consists exclusively of the NYSE or AMEX) and comply in all
respects with the Company's reporting, filing and other obligations under the
bylaws or rules of the OTC Bulletin Board, Nasdaq or such principal exchange, as
the case may be.
Section 3.2 Replacement Certificates. The certificate(s) representing the
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shares of Common Stock held by any Investor (or then holder) may be exchanged by
such Investor (or such holder) at any time and from time to time for
certificates with different denominations representing an equal number of shares
of Common Stock, as the case may be, as reasonably requested by such Investor
(or such holder) upon surrendering the same. No service charge will be made for
such registration, transfer or exchange.
Section 3.3 Securities Compliance. The Company shall notify the Commission
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and Nasdaq, in accordance with their requirements, of the transactions
contemplated by this Agreement and shall take all other necessary action and
proceedings as may be required and permitted by applicable law, rule and
regulation, for the legal and valid issuance of the Securities.
Section 3.4 Prohibition on Short Selling. Anything in this Agreement or
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elsewhere herein to the contrary notwithstanding, each Investor represents,
warrants, and covenants to each other Investor and to the Company that (1) none
of such Investor and its affiliates or related entities, directly or indirectly,
has ever held or will hold any short positions in the Company's securities or
put or other options to dispose of the Company's securities; (2) the undersigned
Investor and its affiliates or related entities will not, directly or
indirectly, sell short
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either securities issued by the Company or "derivative" securities based on
securities issued by the Company or enter into any transaction that has the
effect of or is equivalent to selling short the Company's securities; and (3)
past or future open market or other transactions by Investor, including short
sales, and specifically including, without limitation, short sales or
"derivative" transactions, before or after the closing of this or future private
placement transactions, may negatively impact the market price of the Company's
publicly-traded securities. The parties to this Agreement intend that each
Investor and the Company be direct beneficiaries of the rights and benefits
arising from the representations, warranties and covenants made by each other
Purchaser under this Section 3.4, and expressly acknowledge and agree that any
such beneficiary may exercise and enforce such rights and benefits,
notwithstanding Section 8.9 of this Agreement.
ARTICLE IV
Registration
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Section 4.1 Registration Requirements. The Company shall use its best
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efforts to effect the registration of the Registrable Securities (including,
without limitation, the execution of an undertaking to file post-effective
amendments, appropriate qualification under applicable blue sky or other state
securities laws and appropriate compliance with applicable regulations issued
under the Securities Act) as would permit or facilitate the public sale or
distribution of all the Registrable Securities in the manner (including manner
of sale) and in all states reasonably requested by the Holders. Such best
efforts by the Company shall include the following:
(a) The filing by the Company no later than the earlier of (i) ninety (90)
days after the Closing or (ii) thirty (30) days after the Common Stock begins
trading on the Nasdaq SmallCap Market or the Nasdaq National Market (such
earlier date being referred to as the "Filing Date") of a registration statement
or registration statements (as necessary) with the Commission pursuant to Rule
415 under the Securities Act on Form S-3 (or such other appropriate registration
form if the Company is ineligible to use Form S-3) covering the resale of the
Registrable Securities acquired at the Closing ("Registration Statement(s)"). In
the event that such Registration Statement is not filed on or before the Filing
Date, then the Company shall until the Registration Statement is filed, pay in
cash to each Holder an amount equal to 1.5% of the respective purchase price
paid by such Holder (the "Damages") for each 30 day period beginning on the 1st
day following the Filing Date (the "Default Period") that the Registration
Statement has not been filed; provided, however, that the Default Period shall
terminate and Damages shall cease to accrue on the date upon which such
Registrable Securities may be sold under Rule 144(k) in the reasonable opinion
of counsel to the Company (provided that the Company's transfer agent has
accepted an instruction from the Company to such effect). If any applicable
Default Period is less than 30 days such cash payment shall be on a pro rata
basis. The amount of such cash payment shall be calculated by the Company on the
earlier of (i) the effective date of such Registration Statement or (ii) the
last day of each Default Period, and a certified or bank check in lawful money
of the United States of America shall be sent within three (3) business days of
such calculation to the address of each Holder as listed in the stock transfer
ledger maintained by the Company or its transfer agent. Notwithstanding the
foregoing, if the Default Period commences from the failure of the Company to
cause to be filed the
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Registration Statement solely by reason of the failure of any Holder to provide
such information as (i) the Company may reasonably request from such Holder to
be included in the Registration Statement or (ii) the Commission or Nasdaq may
request in connection with such Registration Statement (which request was
provided to the Holder in writing) (the "Late Holder"), the Company shall not be
required to pay such Damages to any of the Holders; provided, that the Company
shall file the Registration Statement excluding the Late Holder or take such
other action as necessary to cause the Registration Statement to be filed within
two (2) business days after the initial day of the original Default Period,
provided that a new Default Period will commence three (3) business days after
the initial day of the original Default Period if the Registration Statement is
not filed. The Company agrees to promptly file an amendment to such Registration
Statement including the Late Holder once the requested information has been
provided.
(b) Prepare and file with the Commission such amendments (including
post-effective amendments) and supplements to such Registration Statement and
the prospectus used in connection with such Registration Statement as may be
necessary to keep such Registration Statement effective at all times during the
Effectiveness Period (as defined below) and notify the Holders of the filing and
effectiveness of such Registration Statement and any amendments or supplements.
In the case of amendments and supplements to a Registration Statement which are
required to be filed pursuant to this Agreement by reason of the Company filing
a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the
Exchange Act, the Company shall have incorporated such report by reference into
the Registration Statement, if applicable, or shall file such amendments or
supplements with the Commission on the same day on which the Exchange Act report
is filed which created the requirement for the Company to amend or supplement
the Registration Statement.
(c) Furnish to each Holder such numbers of copies of a current prospectus
conforming with the requirements of the Act, copies of the Registration
Statement, any amendment or supplement thereto and any documents incorporated by
reference therein and such other documents as such Holder may reasonably require
in order to facilitate the disposition of Registrable Securities owned by such
Holder.
(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 each Holder; provided
that the Company shall not be required in connection therewith or as a condition
thereto to (i) qualify to do business where it would not otherwise be required
to qualify, (ii) file a general consent to service of process in any such states
or jurisdictions, (iii) make any change in the Company's charter or By-Laws, or
(iv) subject itself to general taxation in any such jurisdiction.
(e) Notify each Holder immediately of the happening of any event as a
result of which the prospectus (including any supplement thereto or thereof)
included in such Registration Statement, as then in effect, includes an untrue
statement of material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing, and use its best efforts to promptly
update and/or correct such prospectus.
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(f) Notify each Holder immediately of the issuance by the Commission or any
state securities commission or agency of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose. The Company shall use its reasonable best efforts to prevent
the issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible time.
(g) Permit a single firm of counsel, designated as Holders' counsel by the
Holders of a majority of the Registrable Securities included in the Registration
Statement, to review the Registration Statement and all amendments and
supplements thereto within a reasonable period of time prior to each filing, and
shall not file any document in a form to which such counsel reasonably objects,
provided such counsel shall provide such counsel's comments or objection within
three (3) business days after receipt of any document.
(h) As of the date the Registration Statement is declared effective by the
Commission, the Company shall have caused the Registrable Securities covered by
such Registration Statement to be listed with all securities exchange(s) and/or
markets on which the Common Stock is then listed, and prepared and filed any
required filings with the National Association of Securities Dealers, Inc. or
any exchange or market where the Common Stock is traded.
(i) The Company shall make available for inspection by the Holders,
representative(s) of all the Holders together, any underwriter participating in
any disposition pursuant to a Registration Statement, and any attorney or
accountant retained by any Holder or underwriter, all financial and other
records customary for purposes of the Holders' due diligence examination of the
Company and all SEC Documents filed subsequent to the Closing Date, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors and employees to supply all information reasonably requested
by any such representative, underwriter, attorney or accountant in connection
with such Registration Statement, provided that such parties agree to enter into
a Confidentiality Agreement in the form and substance mutually agreeable to the
Company and the Investors.
(j) The term "best efforts" as used in this Agreement shall include,
without limitation, that the Company shall submit to the Commission, within five
(5) business days after the Company learns that no review of a particular
Registration Statement will be made by the staff of the Commission or that the
staff has no further comments on the Registration Statement, as the case may be,
a request for acceleration of effectiveness of such Registration Statement to a
time and date not later than 72 hours after the submission of such request.
Section 4.2 Expenses of Registration. All Registration Expenses incurred in
------------------------
connection with any registration, qualification or compliance with registration
pursuant to this Section 4 shall be borne by the Company, and all Selling
Expenses of a Holder shall be borne by such Holder.
Section 4.3 Registration Period. In the case of the registration effected
--------------------
by the Company pursuant to this Section 4, the Company will use its best efforts
to keep such registration effective (the "Effectiveness Period") until the
earlier to occur of (a) one year from the Closing Date, provided, however, that
the period of time which such Registration Statement
11
is required to be effective shall be increased by the number of days that the
Registration Statement's effectiveness was suspended, if any, during the one
year period from the Closing Date, (b) the date on which all the Holders have
completed the sales or distributions of the Registrable Securities included in
the Registration Statement or, (c) the date on which such Registrable Securities
of all Holders may be sold without restriction under Rule 144(k) promulgated
under the Securities Act (or any successor thereto) in the reasonable opinion of
counsel to the Company (provided that the Company's transfer agent has accepted
an instruction from the Company to such effect and will issue certificates
representing such Registrable Securities without any legend endorsed thereon).
Section 4.4 Obligation of Holder. It shall be a condition precedent to the
--------------------
obligations of the Company to complete the registration pursuant to this
Agreement with respect to Registrable Securities of the Holder that:
(a) the Holder by such Holder's acceptance of the Registrable Securities
agrees to cooperate with the Company as reasonably requested by the Company in
connection with the preparation and filing of any Registration Statement
hereunder, unless the Holder has notified the Company in writing of the Holder's
election to exclude all of the Holder's Registrable Securities from such
Registration Statement.
(b) the Holder shall furnish to the Company such information regarding the
Holder, the Registrable Securities held by the Holder and the intended method of
disposition of the Registrable Securities held by the Holder as shall be
reasonably required to effect the registration of such Registrable Securities
and the Holder shall execute such documents as are customary in connection with
such registration as the Company may reasonably request.
Section 4.5 Indemnification.
---------------
(a) Company Indemnity. The Company will indemnify each Holder, each of its
-----------------
officers, directors and partners, and each person controlling each Holder,
within the meaning of Section 15 of the Securities Act and the rules and
regulations thereunder with respect to which registration, qualification or
compliance has been effected pursuant to this Agreement, and each underwriter,
if any, and each person who controls, within the meaning of Section 15 of the
Securities Act and the rules and regulations thereunder, any underwriter,
against all claims, losses, damages and liabilities (or actions in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any prospectus, offering circular or
other document (including any related registration statement, notification or
the like) incident to any such registration, qualification or compliance, or
based on any 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 any violation by the Company of the Securities Act or any state
securities law or in either case, any rule or regulation thereunder applicable
to the Company and relating to action or inaction required of the Company in
connection with any such registration, qualification or compliance, and will
reimburse each Holder, each of its officers, directors and partners, and each
person controlling such Holder, each such underwriter and each person who
controls any such underwriter, for any legal and any other expenses reasonably
incurred in connection with investigating and defending any such claim, loss,
damage, liability or action, provided that the Company will not be liable in any
such case to any
12
Holder to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue statement or
omission based upon written information furnished to the Company by any Holder
or the underwriter (if any) therefor specifically for use therein. The indemnity
agreement contained in this Section 4.5(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 will
not be unreasonably withheld).
(b) Holder Indemnity. Each Holder will, severally and not jointly, if
-----------------
Registrable Securities held by it are included in the securities as to which
such registration, qualification or compliance is being effected, indemnify the
Company, each of its directors, officers, partners, and each underwriter, if
any, of the Company's securities covered by such registration statement, each
person who controls the Company or such underwriter within the meaning of
Section 15 of the Securities Act and the rules and regulations thereunder, each
other Holder (if any), and each of their directors, officers and partners, and
each person controlling such other Holder(s) against all claims, losses, damages
and liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement, prospectus, offering circular or other
document, or any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statement therein not
misleading, in each case only insofar as such untrue statement or alleged untrue
statement or omission relates to such Holder, and will reimburse the Company and
such other Holder(s) and their directors, officers and partners, underwriters or
control persons for any legal or any other expenses reasonably incurred in
connection with investigating and defending any such claim, loss, damage,
liability or action, in each case to the extent, but only to the extent, that
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by such Holder specifically for use therein. The
indemnity agreement contained in this Section 4.5(b) shall not apply to amounts
paid in settlement of any such claims, losses, damages or liabilities if such
settlement is effected without the consent of such Holder (which consent will
not be unreasonably withheld).
(c) Procedure. Each party entitled to indemnification under this Article
---------
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim in any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
be unreasonably withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Article except to the extent
that the Indemnifying Party is materially and adversely affected by such failure
to provide notice. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation. Each Indemnified Party shall furnish such information regarding
itself or the
13
claim in question as an Indemnifying Party may reasonably request in writing and
as shall be reasonably required in connection with the defense of such claim and
litigation resulting therefrom.
4.6 Contribution. If the indemnification provided for in Section 4 herein
------------
is unavailable to the Indemnified Parties in respect of any losses, claims,
damages or liabilities referred to herein (other than by reason of the
exceptions provided therein), then each such Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such losses, claims, damages or
liabilities as between the Company on the one hand and any Holder on the other,
in such proportion as is appropriate to reflect the relative fault of the
Company and of such Holder in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the Company on the one
hand and of any Holder on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by such Holder.
In no event shall the obligation of any Indemnifying Party to contribute
under this Section 4.6 exceed the amount that such Indemnifying Party would have
been obligated to pay by way of indemnification if the indemnification provided
for under Section 4.5(a) or 4.5(b) hereof had been available under the
circumstances.
The Company and the Holders agree that it would not be just and equitable
if contribution pursuant to this Section 4.6 were determined by pro rata
allocation (even if the Holders or the underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraphs. The amount paid or payable by an Indemnified Party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraphs shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such Indemnified
Party in connection with investigating or defending any such action or claim. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
ARTICLE V
Conditions
----------
Section 5.1 Conditions Precedent to the Obligation of the Company to Issue
---------------------------------------------------------------
and Sell the Securities. The obligation hereunder of the Company to issue and
------------------------
sell the Common Stock to the Investors is subject to the satisfaction, at or
before the Closing Date, of each of the conditions set forth below. These
conditions are for the Company's sole benefit and may be waived by the Company
at any time in its sole discretion.
(a) Accuracy of the Investors' Representations and Warranties. The
----------------------------------------------------------------
representations and warranties of each Investor shall be true and correct in all
material respects
14
as of the date when made and as of the Closing Date as though made at that time
(except for representations and warranties that speak as of a particular date).
(b) Performance by the Investors. Each Investor shall have performed all
-----------------------------
agreements and satisfied all conditions required hereby to be performed or
satisfied by such Investor at or prior to the Closing Date.
(c) No Injunction. No statute, rule, regulation, executive order, decree,
-------------
ruling or injunction shall have been enacted, entered, promulgated or endorsed
by any court or governmental authority of competent jurisdiction which prohibits
the consummation of any of the transactions contemplated by this Agreement.
(d) Execution of Agreement. The Company shall have signified its acceptance
----------------------
of the Investors subscription to purchase the Securities by executing this
Agreement.
Section 5.2 Conditions Precedent to the Obligation of the Investors to
--------------------------------------------------------------
Purchase the Stock. The obligation hereunder of each Investor to acquire and pay
for the Common Stock is subject to the satisfaction, at or before the Closing
Date, of each of the conditions set forth below. These conditions are for each
Investor's sole benefit and may be waived by each Investor at any time in its
sole discretion.
(a) Accuracy of the Company's Representations and Warranties. The
---------------------------------------------------------------
representation and warranties of the Company 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 for representations and warranties that speak as of a
particular date).
(b) Performance by the Company. The Company shall have performed all
----------------------------
agreements and satisfied all conditions required to be performed or satisfied by
the Company at or prior to the Closing Date.
(c) OTC. From the date hereof to the Closing Date, trading in the Company's
---
Common Stock shall not have been suspended by the Commission or OTC and trading
in securities generally as reported by OTC, shall not have been suspended or
limited, and the Common Stock shall not have been delisted from any exchange or
market where they are currently listed.
(d) No Injunction. No statute, rule, regulation, executive order, decree,
-------------
ruling or injunction shall have been enacted, entered, promulgated or endorsed
by any court or governmental authority or competent jurisdiction which prohibits
the consummation of any of the transactions contemplated by this Agreement.
(e) Minimum Subscription. An aggregate of $2,050,000 of shares of Common
---------------------
Stock shall have been purchased by the Investors pursuant to this Agreement.
(f) Secretary's Certificate. The Company shall have delivered to the
------------------------
Investors a certificate in form and substance reasonably satisfactory to the
Investors, executed by the Secretary of the Company on behalf of the Company,
certifying as to the satisfaction of all
15
closing conditions, incumbency of signing officers, charter, By-Laws, good
standing and authorizing resolutions of the Company.
ARTICLE VI
Legend and Stock
----------------
Section 6.1. Legend and Stock. Each certificate representing the Common
----------------
Stock shall be stamped or otherwise imprinted with a legend substantially in the
following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR QUALIFIED UNDER ANY STATE SECURITIES LAWS.
THE SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED, ASSIGNED,
TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT (I) PURSUANT TO A REGISTRATION
STATEMENT UNDER THE SECURITIES ACT WHICH HAS BECOME EFFECTIVE AND IS CURRENT
WITH RESPECT TO THESE SECURITIES OR (II) PURSUANT TO A SPECIFIC EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT, BUT ONLY UPON A HOLDER HEREOF FIRST
HAVING OBTAINED THE WRITTEN OPINION OF COUNSEL OF THE ISSUER, OR OTHER COUNSEL
REASONABLY ACCEPTABLE TO THE ISSUER, THAT THE PROPOSED DISPOSITION IS CONSISTENT
WITH ALL APPLICABLE PROVISIONS OF THE SECURITIES ACT AS WELL AS ANY APPLICABLE
"BLUE SKY" OR SIMILAR SECURITIES LAW.
ARTICLE VII
Termination
-----------
Section 7.1 Termination by Mutual Consent. This Agreement may be terminated
-----------------------------
at any time prior to the Closing Date by the mutual written consent of the
Company and the Investors.
Section 7.2 Other Termination. This Agreement may be terminated by action
------------------
of the Board of Directors of the Company or by any of the Investors at any time
if the Closing Date shall not have been consummated by the third business day
following the date of this Agreement.
ARTICLE VIII
Miscellaneous
-------------
Section 8.1 Stamp Taxes; Agent Fees. The Company shall pay all stamp and
------------------------
other taxes and duties levied in connection with the issuance of the Common
Stock pursuant hereto.
Section 8.2 Specific Enforcement; Consent to Jurisdiction.
---------------------------------------------
(a) The Company and the Investors acknowledge and agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not
16
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent or cure breaches of the provisions of this Agreement and
to enforce specifically the terms and provisions hereof, this being in addition
to any other remedy to which any of them may be entitled by law or equity.
(b) The Company and each of the Investors (i) hereby irrevocably submits to
the exclusive jurisdiction of the United States District Court, the Virginia
State courts and other courts of the United States sitting in Fairfax County,
Virginia for the purposes of any suit, action or proceeding arising out of or
relating to this Agreement and (ii) hereby waives, and agrees not to assert in
any such suit, action or proceeding, any claim that it is not personally subject
to the jurisdiction of such court, that the suit, action or proceeding is
brought in an inconvenient forum or that the venue of the suit, action or
proceeding is improper. The Company and each of the Investors consents to
process being served in any such suit, action or proceeding by mailing a copy
thereof to such party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing in this paragraph shall affect or
limit any right to serve process in any other manner permitted by law.
Section 8.3 Entire Agreement; Amendment. This Agreement together with the
----------------------------
agreements and documents executed in connection herewith, contains the entire
understanding of the parties with respect to the matters covered hereby and,
except as specifically set forth herein, neither the Company nor any Investor
makes any representation, warranty, covenant or undertaking with respect to such
matters. No provision of this Agreement may be waived or amended other than by a
written instrument signed by the party against whom enforcement of any such
amendment or waiver is sought.
Section 8.4 Notices. Any notices, consents, waivers or other communications
-------
required or permitted to be given under the terms of this Agreement must be in
writing and will be deemed to have been delivered: (i) upon receipt, when
delivered personally; (ii) upon receipt, when sent by facsimile (provided
confirmation of transmission is mechanically or electronically generated and
kept on file by the sending party); or (iii) one business day after deposit with
a nationally recognized overnight delivery service, in each case properly
addressed to the party to receive the same. The addresses and facsimile numbers
for such communications shall be:
to the Company: YDI Wireless, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
YDI Wireless, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
17
to the Investors: To each Investor and its representative at the
addresses set forth on Schedule I of this Agreement.
Any party hereto may from time to time change its address for notices by giving
at least 5 days written notice of such changed address to the other parties
hereto. Written confirmation of receipt (A) given by the recipient of such
notice, consent, waiver or other communication, (B) mechanically or
electronically generated by the sender's facsimile machine containing the time,
date, recipient facsimile number and an image of the first page of such
transmission or (C) provided by a nationally recognized overnight delivery
service shall be rebuttable evidence of personal service, receipt by facsimile
or receipt from a nationally recognized overnight delivery service in accordance
with clause (i), (ii) or (iii) above.
Section 8.5 Indemnity. Each party shall indemnify each other party against
---------
any loss, cost or damages (including reasonable attorney's fees but excluding
consequential damages) incurred as a result of such parties' breach of any
representation, warranty, covenant or agreement in this Agreement.
Section 8.6 Waivers. No waiver by any party of any default with respect to
-------
any provision, condition or requirement 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 any party to exercise
any right hereunder in any manner impair the exercise of any such right accruing
to it thereafter.
Section 8.7 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 8.8 Successors and Assigns. Except as otherwise provided herein,
----------------------
this Agreement shall be binding upon and inure to the benefit of the parties and
their successors and permitted assigns. The parties hereto may amend this
Agreement without notice to or the consent of any third party. The Company may
not assign this Agreement or any rights or obligations hereunder without the
prior written consent of all Investors (which consent may be withheld for any
reason in their sole discretion), except that the Company may assign this
Agreement in connection with a merger, consolidation, business combination or
the sale of all or substantially all of its assets provided that the Company is
not released from any of its obligations hereunder, such successor in interest
or assignee assumes all obligations of the Company hereunder, and appropriate
adjustment of the provisions contained in this Agreement is made, in form and
substance satisfactory to the Investors, to place the Investors in substantially
the same position as they would have been but for such assignment. Any Investor
may assign this Agreement (in whole or in part) or any rights or obligations
hereunder with the consent of the Company in connection with any sale or
transfer of all or any portion of the Securities held by such Investor.
18
Section 8.9 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 8.10 Governing Law. This Agreement shall be governed by and
--------------
construed and enforced in accordance with the internal laws of the State of
Delaware without regard to such state's principles of conflict of laws.
Section 8.11 Survival. The representations and warranties and the
--------
agreements and covenants of the Company and each Investor contained herein shall
survive the Closing.
Section 8.12 Execution. This Agreement may be executed in two or more
---------
counterparts, all of which shall be considered one and the same agreement, it
being understood that all parties need not sign the same counterpart.
Section 8.13 Publicity. The Company agrees that it will not disclose, and
---------
will not include in any public announcement, the name of any Investor without
its consent, unless and until such disclosure is required by law or applicable
regulation, and then only to the extent of such requirement.
Section 8.14 Severability. The parties acknowledge and agree that the
------------
Investors are not agents, affiliates or partners of each other, that all
representations, warranties, covenants and agreements of the Investors hereunder
are several and not joint, that no Investor shall have any responsibility or
liability for the representations, agreements, acts or omissions of any other
Investor, and that any rights granted to "Investors" hereunder shall be
enforceable by each Investor hereunder.
Section 8.15 Like Treatment of Holders. Neither the Company nor any of its
-------------------------
affiliates shall, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee, payment for the redemption or
exchange of Securities, or otherwise, to any holder of Securities, for or as an
inducement to, or in connection with the solicitation of, any consent, waiver or
amendment of any terms or provisions of the Securities or this Agreement, unless
such consideration is required to be paid to all holders of Securities bound by
such consent, waiver or amendment whether or not such holders so consent, waive
or agree to amend and whether or not such holders tender their Securities for
redemption or exchange. The Company shall not, directly or indirectly, redeem
any Securities unless such offer of redemption is made pro rata to all holders
of Securities on identical terms.
19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
INVESTOR:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President/CIO
MTB Investment Advisors
Exact Name in Which Securities Should be registered: Keypunch & Co. as
-----------------
nominee for MTB Investment Advisors
-----------------------------------
Jurisdiction of Incorporation or Formation of Investor: Baltimore, MD
--------------
Location of Principal Place of Business of Investor: Baltimore, MD
--------------
___________________________________________________________________________
___________________________________________________________________________
20
SCHEDULE I
No. of
Name, Address, and Fax Shares of Common
Number of Investor Purchase Price Stock
--------------------------------- -------------- ----------------
Keypunch & Co. as nominee for $4.10 500,000
MTB Investment Advisors
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Sched I-1