EXHIBIT 10.44
NOTE AND WARRANT PURCHASE AGREEMENT
NOTE AND WARRANT PURCHASE AGREEMENT (the "Agreement"), dated as of May
---------
10, 2001, by and between ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, a Delaware corporation (the
"Company"), and the persons and entities listed on Exhibit A attached hereto
------- ---------
(each a "Purchaser" and together the "Purchasers").
--------- ----------
WHEREAS, the Company desires to issue and sell and the Purchasers
desire to purchase secured promissory notes in substantially the form attached
to this Agreement as Exhibit B (the "Notes") and warrants to purchase Common
--------- -----
Stock of the Company (the "Shares") in substantially the form attached to this
------
Agreement as Exhibit C (the "Warrants"). The Warrants and the Shares are
--------- --------
collectively referred to herein as the "Securities."
----------
WHEREAS, the Company has agreed to effect the registration of the
Shares under the Securities Act of 1933, as amended (the "Securities Act"),
--------------
pursuant to a Registration Rights Agreement of even date herewith by and between
the Company and the Purchasers attached hereto as Exhibit D (the "Registration
--------- ------------
Rights Agreement"); and
----------------
WHEREAS, the sale of the Securities by the Company to the Purchasers
will be effected in reliance upon an exemption from securities registration in
accordance with Section 4(2) of the Securities Act and the rules and regulations
promulgated by the Securities and Exchange Commission (the "Commission") under
----------
the Securities Act.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants contained in this Agreement, the Company and the Purchaser hereby
agree as follows:
1. PURCHASE AND SALE OF THE SHARES.
1.1 Sale and Issuance of Notes and Warrants. Subject to the terms
---------------------------------------
and conditions of this Agreement, each Purchaser agrees to purchase at the
Closing and the Company agrees to sell and issue to each Purchaser a Note in the
principal amount specified with respect to such Purchaser on Exhibit A to this
---------
Agreement, and a Warrant to purchase the number of shares of Common Stock
specified with respect to such Purchaser on Exhibit A to this Agreement, which
---------
number of shares shall be calculated on the basis of five (5) shares per $1.00
in principal under such Purchaser's Note. The purchase price of each Note shall
be equal to 100% of the principal amount of such Note, and the purchase price of
each Warrant shall be $0.0001 for each share of Common Stock issuable
thereunder. The Company's agreements with each of the Purchasers are separate
agreements, and the sales of the Notes and Warrants to each of the Purchasers
are separate sales.
(b) Closing; Delivery. The purchase and sale of the Notes and
-----------------
Warrants shall take place in one or more closings (each a "Closing") at the
-------
offices of Venture Law Group, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, at
5:00 p.m., on May 10, 2001, or at such other time and place as the Company and
the Purchasers purchasing the Notes agree upon, orally or in writing,
provided that at the first such Closing a minimum of $1,000,000 in Notes are
issued and sold to the Purchasers and provided that up to a maximum of
$4,000,000 in aggregate Notes may be issued and sold to the Purchasers (and any
additional Purchasers who may be added to Exhibit A after the date hereof at the
---------
Company's discretion by executing signature pages to the applicable Transaction
Documents) within 60 days after the date of the first closing. At each Closing,
the Company shall deliver to each Purchaser the Note and Warrant to be purchased
by such Purchaser against payment of the purchase price therefor by check or by
wire transfer to the Company's bank account.
1.3 Certain Definitions. When used herein, (A) "business day" shall
------------------- ------------
mean any day on which the New York Stock Exchange and commercial banks in the
city of San Francisco are open for business, (B) an "affiliate" of a party shall
---------
mean any person or entity controlling, controlled by or under common control
with that party and (C) "control" shall mean, with respect to an entity, the
-------
ability to direct the business, operations or management of such entity, whether
through an equity interest therein or otherwise.
2. REPRESENTATIONS AND WARRANTIES OF EACH OF THE PURCHASERS.
Each of the Purchasers hereby makes the following representations and
warranties to the Company and agrees with the Company that, as of the date of
this Agreement and as of the Closing Date:
2.1 Authorization; Enforceability. Such Purchaser, if an entity, is
-----------------------------
duly and validly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation or organization with full power and
authority to purchase the Notes and the Warrants and to execute and deliver this
Agreement. This Agreement constitutes such Purchaser's valid and legally
binding obligation, enforceable in accordance with its terms, except as such
enforcement may be limited by (i) applicable bankruptcy, insolvency,
reorganization or other laws of general application relating to or affecting the
enforcement of creditors' rights generally and (ii) general principles of
equity.
2.2 Accredited Investor; Investment Intent. Such Purchaser is an
--------------------------------------
accredited investor as that term is defined in Rule 501 of Regulation D, and is
acquiring the Securities solely for his or its own account for investment
purposes as a principal and not with a present view to the public resale or
distribution of all or any part thereof, except pursuant to sales that are
exempt from the registration requirements of the Securities Act or sales
registered under the Securities Act; provided, however that in making such
representation, such Purchaser does not agree to hold the Securities for any
minimum or specific term and reserves the right to sell, transfer or otherwise
dispose of the Securities at any time in accordance with the provisions of this
Agreement and with federal and state securities laws applicable to such sale,
transfer or disposition.
2.3 Information. The Company has provided such Purchaser with
-----------
information regarding the business, operations and financial condition of the
Company, and has granted to such Purchaser the opportunity to ask questions of
and receive answers from representatives of the Company, its officers,
directors, employees and agents concerning the Company and
-2-
materials relating to the terms and conditions of the purchase and sale of the
Notes and Warrants hereunder.
2.4 Limitations on Disposition. Such Purchaser acknowledges that,
--------------------------
except as provided in the Registration Rights Agreement, the Securities have not
been and are not being registered under the Securities Act and may not be
transferred or resold without registration under the Securities Act or unless
pursuant to an exemption therefrom.
2.5 Legend. Such Purchaser understands that the certificates
------
representing the Securities will bear at issuance a restrictive legend in
substantially the following form:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Securities Act"), or the securities laws of any state, and may
--------------
not be offered or sold unless a registration statement under the
Securities Act and applicable state securities laws shall have
become effective with regard thereto, or an exemption from
registration under the Securities Act and applicable state
securities laws is available in connection with such offer or
sale."
Notwithstanding the foregoing, it is agreed that, as long as (A) the
resale of any of the Shares is registered pursuant to an effective registration
statement, (B) the Shares can be sold to the public pursuant to Rule 144 under
the Securities Act ("Rule 144") and a registered broker dealer provides to the
--------
Company a customary broker's Rule 144 letter, or (C) the Shares are eligible for
sale to the public, without limitation as to the amount of or manner in which
the Shares may be sold, under Rule 144(k) or any successor provision, the Shares
shall be issued without any legend or other restrictive language and, with
respect to Shares upon which such legend is stamped, the Company shall issue new
certificates without the legend to the holder upon request.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby makes the following representations and warranties
to each of the Purchasers that, as of the date of this Agreement and as of the
initial Closing Date, except as disclosed in a document (the "Disclosure
----------
Schedule") delivered to each of the Purchasers prior to the Closing:
--------
3.1 Organization, Good Standing and Qualification. Each of the
---------------------------------------------
Company and its subsidiaries is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or organization
and has all requisite corporate power and authority to carry on its business as
now conducted.
3.2 Authorization; Consents. The Company has the requisite corporate
-----------------------
power and authority to enter into and perform its obligations under (i) this
Agreement, (ii) the Notes, (iii) the Warrants, (iv) the Security Agreement
attached as Exhibit E hereto, (v) the Registration Rights Agreement, (vi) all
---------
other agreements, documents, certificates or other instruments executed and
delivered by or on behalf of the Company at the Closing (the instruments
described
-3-
in (i) through (vi) being collectively referred to herein as the "Transaction
-----------
Documents") and to issue and sell the Notes and Warrants to the Purchaser in
---------
accordance with the terms hereof. All corporate action on the part of the
Company by its officers, directors and stockholders necessary for the
authorization, execution and delivery of, and the performance by the Company of
its obligations under the Transaction Documents has been taken, and no further
consent or authorization of the Company, its Board of Directors, its
stockholders, any governmental agency or organization (other than as may be
required under the Securities Act and applicable state securities laws in
respect of the Registration Rights Agreement), or any other person or entity is
required (pursuant to any rule of the National Association of Securities
Dealers, Inc. (the "NASD") or otherwise).
----
3.3 Enforcement. The Transaction Documents constitute valid and
-----------
legally binding obligations of the Company, enforceable in accordance with their
respective terms, except as such enforcement may be limited by (i) applicable
bankruptcy, insolvency, reorganization or other laws of general application
relating to or affecting the enforcement of creditors' rights generally and (ii)
general principles of equity.
3.4 Disclosure Documents; Agreements; Financial Statements; Other
-------------------------------------------------------------
Information. The Company has filed with the Commission: (i) the Company's
-----------
Annual Report on Form 10-K for the year ended December 31, 2000, (ii) all
Current Reports on Form 8-K required to be filed by the Company with the
Commission since December 31, 2000 (collectively, the "Disclosure Documents").
--------------------
The Company is not aware of any event occurring on or prior to the Closing
(other than the transactions effected hereby) that would require the filing of,
or with respect to which the Company intends to file, a Form 8-K after the
Closing. Each Disclosure Document, as of the date of the filing thereof with
the Commission, conformed, and as of the Closing Date will conform, in all
material respects to the requirements of the Exchange Act, and the rules and
regulations thereunder and such Disclosure Document did not, as of the date of
such filing, and will not, as of the Closing Date, contain an untrue statement
of material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that any information
set forth in any Disclosure Document that is a forward-looking statement as
defined in Rule 175(c) promulgated by the Commission under the Securities Act
shall not be deemed to contain an untrue statement of material fact as long as
such forward-looking statement was made with a reasonable basis and in good
faith.
3.5 Capitalization. The capitalization of the Company as of April
--------------
30, 2001, including its authorized capital stock, the number of shares issued
and outstanding, the number of shares issuable and reserved for issuance
pursuant to the Company's stock option plans, the number of shares issuable and
reserved for issuance pursuant to securities exercisable for, or convertible
into or exchangeable for any shares of Common Stock is set forth in the
Disclosure Schedule. All of such outstanding shares of capital stock have been,
or upon issuance will be, validly issued, fully paid and non-assessable. No
shares of the capital stock of the Company are subject to preemptive rights or
any other similar rights of the stockholders of the Company or any liens or
encumbrances created by or through the Company. Except as disclosed in the
Disclosure Schedule, or as contemplated herein, there are no outstanding
options, warrants, scrip, rights to
-4-
subscribe to, calls or commitments of any character whatsoever relating to, or
securities or rights convertible into or exercisable or exchangeable for, any
shares of capital stock of the Company or any of its subsidiaries, or
arrangements by which the Company or any of its subsidiaries is or may become
bound to issue additional shares of capital stock of the Company or any of its
subsidiaries.
3.6 Valid Issuance. The Warrants and the Shares are duly authorized
--------------
and, when issued, sold and delivered in accordance with the terms of this
Agreement and the Company's Certificate of Incorporation, (i) will be duly and
validly issued, fully paid and nonassessable, free and clear of any taxes,
liens, claims, preemptive or similar rights or encumbrances imposed by or
through the Company, (ii) based in part upon the representations of each of the
Purchasers in this Agreement, will be issued, sold and delivered in compliance
with all applicable federal and state securities laws and (iii) upon exercise of
the Warrants, the Shares will be entitled to all of the rights, preferences and
privileges of the holders of the Common Stock of the Company.
3.7 No Conflict with Other Instruments. The execution, delivery and
----------------------------------
performance of this Agreement and the other Transaction Documents, and
consummation of the transactions contemplated hereby and thereby will not result
in (a) a violation of any provision of the Certificate of Incorporation or by-
laws of the Company or its subsidiaries, (b) a violation of any Law (as defined
below) or any judgment, decree, order, regulation or rule of any court or other
Governmental Entity applicable to the Company, or (c) any violation of any
provision, instrument or contract to which the Company or any of its
subsidiaries is a party or by which any of their assets are subject, or an event
which results in the creation of any lien, charge or encumbrance upon any assets
of the Company or of any of its subsidiaries or the triggering of any preemptive
or anti-dilution rights or rights of first refusal or first offer on the part of
holders of the Company's securities. "Law" shall mean any statute, ordinance,
---
code, rule, regulation or order enacted, adopted, promulgated, applied or
followed by any Governmental Entity.
3.8 Solicitation. Neither the Company nor any of its subsidiaries or
------------
affiliates, nor any person acting on its or their behalf, (i) 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 Shares or (ii) has,
directly or indirectly, made any offers or sales of any security or solicited
any offers to buy any security, under any circumstances that would require
registration of the Securities under the Securities Act.
3.9 No Other Secured Debt. The Company has no other secured debt,
---------------------
other than the Notes and capitalized lease obligations.
3.10 No Material Undisclosed Liability. Except as described in the
----------------------------------
Disclosure Schedule and Disclosure Documents, to the Company's knowledge, there
is no material liability against the Company or any of its subsidiaries, or
against any officer or director of the Company or any such subsidiary in
connection with such person's employment therewith. Neither the Company nor any
of its subsidiaries is a party to or subject to the provisions of, any order,
writ, injunction, judgment or decree of any court or government agency or
instrumentality which
-5-
could reasonably be expected to have a material adverse effect on the
consolidated business or financial condition of the Company and its subsidiaries
taken as a whole.
4. COVENANTS OF THE COMPANY AND THE PURCHASERS.
4.1 Provision of Information. The Company shall provide each
------------------------
Purchaser, as long as the Purchaser holds any Warrants or Shares, with copies of
its annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports
on Form 8-K and proxy statements and other materials sent to stockholders, in
each such case promptly after the filing thereof with the Commission.
5. CONDITIONS TO CLOSING.
5.1 Conditions to Each Purchaser's Obligations at Closing. Each
-----------------------------------------------------
Purchaser's obligations at the Closing, including without limitation his or its
obligation to purchase the Notes and Shares, are conditioned upon the
fulfillment (or waiver by such Purchaser) of each of the following events as of
the Closing Date:
5.1.1 the representations and warranties of the Company set
forth in this Agreement shall be true and correct in all material respects as of
such date as if made on such date;
5.1.2 the Company shall have complied with or performed in all
material respects all of the agreements, obligations and conditions set forth in
this Agreement that are required to be complied with or performed by the Company
on or before the Closing;
5.1.3 the Company and each of the other Purchasers shall have
executed and delivered the applicable Transaction Documents;
5.1.4 except for the effects of the Company's continued use of
cash in the ordinary course of business, there shall have been no material
adverse changes in the Company's consolidated business or financial condition
since the date of the Company's most recent financial statements delivered to
the Purchasers;
5.1.5 there shall be no action or proceeding by or before any
federal, state, local or foreign government or any court of competent
jurisdiction, administrative agency or commission or other governmental
authority or instrumentality, domestic or foreign (a "Governmental Entity") or
-------------------
NASD, pending or threatened, challenging or seeking to restrain or prohibit the
purchase and sale of the Securities or any of the other transactions
contemplated by this Agreement or seeking to obtain damages from either party
hereto in connection with the purchase and sale of the Securities or any of the
other transactions contemplated by this Agreement; and
5.1.6 there shall be no statute, rule, regulation, executive
order, decree, temporary restraining order, preliminary injunction, permanent
injunction or other order, enacted,
-6-
entered, promulgated, enforced or issued by any Governmental Entity or other
legal restraint or prohibition preventing the purchase and sale of the
Securities in effect.
5.2 Conditions to Company's Obligations at Closing. The Company's
----------------------------------------------
obligations at the Closing are conditioned upon the fulfillment (or waiver by
the Company) of each of the following events as of the Closing Date:
5.2.1 the representations and warranties of each of the
Purchasers shall be true and correct in all material respects as of such date as
if made on such date;
5.2.2 each of the Purchasers shall have complied with or
performed all of the agreements, obligations and conditions set forth in this
Agreement that are required to be complied with or performed by such Purchaser
on or before the Closing;
5.2.3 there shall be no action or proceeding by or before any
Governmental Entity or NASD, pending or threatened, challenging or seeking to
restrain or prohibit the purchase and sale of the Securities or any of the other
transactions contemplated by this Agreement or seeking to obtain damages from
either party hereto in connection with the purchase and sale of the Securities
or any of the other transactions contemplated by this Agreement; and
5.2.4 there shall be no statute, rule, regulation, executive
order, decree, temporary restraining order, preliminary injunction, permanent
injunction or other order, enacted, entered, promulgated, enforced or issued by
any Governmental Entity or other legal restraint or prohibition preventing the
purchase and sale of the Securities in effect.
6. MISCELLANEOUS.
6.1 Survival; Severability. The representations, warranties and
----------------------
covenants made by the parties herein shall survive for twelve months after the
Closing notwithstanding any due diligence investigation made by or on behalf of
the party seeking to rely thereon. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in full force and
effect without said provision; provided that in such case the parties shall
negotiate in good faith to replace such provision with a new provision which is
not illegal, unenforceable or void, as long as such new provision does not
materially change the economic benefits of this Agreement to the parties.
6.2 No Third Party Beneficiaries; No Assignment. The terms and
-------------------------------------------
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective successors of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and permitted assignors any rights, remedies,
obligations or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement. Neither the Company nor any of the
Purchasers may assign its rights and obligations under this Agreement, except
that a Purchaser may assign its rights and obligations hereunder in connection
with a permitted transfer of the entire interest of such Purchaser's Note and
Warrant as provided thereunder.
-7-
6.3 No Reliance. Each Purchaser acknowledges that such Purchaser (i)
-----------
has such knowledge in business and financial matters as to be fully capable of
evaluating this Agreement, the other Transaction Documents and the transactions
contemplated hereby and thereby, (ii) is not relying on any advice or
representation of any other party in connection with entering into this
Agreement, the other Transaction Documents or such transactions (other than the
representations made in this Agreement or the other Transaction Documents),
(iii) has not received from any other party any assurance or guarantee as to the
merits (whether legal, regulatory, tax, financial or otherwise) of entering into
this Agreement or the other Transaction Documents or the performance of such
Purchaser's obligations hereunder and thereunder, and (iv) has consulted with
his or its own legal, regulatory, tax, business, investment, financial and
accounting advisors to the extent that such Purchaser has deemed necessary, and
has entered into this Agreement and the other Transaction Documents based on
such Purchaser's own independent judgment and on the advice of his or its
advisors as such Purchaser has deemed necessary, and not on any view (whether
written or oral) expressed by any other party.
6.4 Governing Law; Jurisdiction. This Agreement shall be governed by
---------------------------
and construed under the laws of the State of California without regard to the
conflict of laws provisions thereof. Each party hereby irrevocably submits to
the exclusive jurisdiction of the state and federal courts sitting in San
Francisco or Alameda County in the State of California, for the adjudication of
any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives, and
agrees not to assert in any suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of any such court, that such suit, action
or proceeding is brought in an inconvenient forum or that the venue of such
suit, action or proceeding is improper. Each party hereby irrevocably waives
personal service of process and 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 contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law.
6.5 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
6.6 Headings. The headings used in this Agreement are used for
--------
convenience only and are not to be considered in construing or interpreting this
Agreement.
6.7 Notices. Any notice, demand or request required or permitted to
-------
be given by any party to any other party pursuant to the terms of this Agreement
shall be in writing and shall be deemed given (i) when delivered personally or
by verifiable facsimile transmission (with an original to follow) on or before
5:00 p.m., California time, on a business day or, if such day is not a business
day, on the next succeeding business day, (ii) on the next business day after
timely delivery to a nationally-recognized overnight courier and (iii) on the
third business day after deposit in the U.S. mail (certified or registered mail,
return receipt requested, postage prepaid), addressed to the Purchasers as shown
on Exhibit A and addressed to the Company as follows:
---------
-8-
If to the Company:
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Executive Officer
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Venture Law Group
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
6.8 Expenses. The Company and each of the Purchasers shall pay their own
--------
costs and expenses incurred in connection with the negotiation, execution,
delivery and performance of this Agreement.
6.9 Entire Agreement; Amendments. This Agreement and the other
----------------------------
Transaction Documents constitute the entire agreement between the parties with
regard to the subject matter hereof and thereof, superseding all prior
agreements or understandings, whether written or oral, between or among the
parties. Except as expressly provided herein, neither this Agreement nor any
term hereof may be amended except pursuant to a written instrument executed by
the Company and the Purchasers holding all of the outstanding Notes and no
provision hereof may be waived other than by a written instrument signed by the
party against whom enforcement of any such waiver is sought.
6.10 Finder's Fee. Each party represents that it neither is nor will be
------------
obligated for any finder's fee or commission in connection with this
transaction. Each Purchaser agrees to indemnify and to hold harmless the
Company and the other Purchasers from any liability for any commission or
compensation in the nature of a finder's fee (and the costs and expenses of
defending against such liability or asserted liability) for which such Purchaser
or any of its officers, employees, or representatives is responsible. The
Company agrees to indemnify and hold harmless each of the Purchasers from any
liability for any commission or compensation in the nature of a finder's fee
(and the costs and expenses of defending against such liability or asserted
liability) for which the Company or any of its officers, employees or
representatives is responsible.
-9-
IN WITNESS WHEREOF, this Agreement has been executed as of the date first
written above.
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
By: /s/ C. ▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: C. ▇▇▇▇ ▇▇▇▇▇
------------------------------
Title: Chief Executive Officer
------------------------------
SIGNATURE PAGE TO NOTE AND WARRANT PURCHASE AGREEMENT
IN WITNESS WHEREOF, this Agreement has been executed as of the date first
written above.
PURCHASERS:
PORRIDGE, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Title: Managing Partner
-------------------------------------
PAW OFFSHORE FUND, LTD.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Title: Chief Op. Officer of Inv. Advisor
-------------------------------------
PAW PARTNERS, LP.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Title: Chief Op. Officer of G.P.
-------------------------------------
HELZEL ▇▇▇▇▇▇▇▇, ▇.▇.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Title: General Partner
-------------------------------------
SIGNATURE PAGE TO NOTE AND WARRANT PURCHASE AGREEMENT
HORNTHAL LIVING TRUST
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Title: Trustee
-------------------------------------
C. ▇▇▇▇ ▇▇▇▇▇
By: /s/ C. ▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: C. ▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Title: _____________________________________
BANK ONE TRUST COMPANY, N.A. AS TRUSTEE OF
▇▇▇▇▇▇ ▇. CHEZ ▇▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Title: Vice President
-------------------------------------
▇▇▇ ▇. AND ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LIVING TRUST
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇ ▇. Helzlel
-------------------------------------
Title: Trustee
-------------------------------------
SIGNATURE PAGE TO NOTE AND WARRANT PURCHASE AGREEMENT
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------
Title: ______________________
THE ▇▇▇▇▇▇▇ AND ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ REVOCABLE
TRUST DATED 1/6/00
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------
Title: Trustee
------------------------
▇▇▇▇▇ ▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
------------------------
Title: ________________________
UBS PAINEWEBBER INC., NOT IN ITS CORPORATE
CAPACITY BUT SOLELY AS CUSTODIAN FOR THE
INDIVIDUAL RETIREMENT ACCOUNT OF ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------
Title: President
------------------------
SIGNATURE PAGE TO NOTE AND WARRANT PURCHASE AGREEMENT
THE ▇▇▇▇▇ R.E. ▇▇▇▇▇▇▇ SEPARATE PROPERTY
REVOCABLE TRUST, DATED FEBRUARY 16, 2001
By: /s/ ▇▇▇▇▇ R.E. ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ R.E. ▇▇▇▇▇▇▇
------------------------
Title: Trustee
------------------------
SIGNATURE PAGE TO NOTE AND WARRANT PURCHASE AGREEMENT
EXHIBIT A
SCHEDULE OF PURCHASERS
First Closing: May 10, 2001
Number of Shares Underlying
---------------------------
Name/Address Principal Amount of Note Warrant
------------ ------------------------ -------
Porridge, LLC $1,000,000 5,000,000
c/o Pequot Capital
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
PAW Offshore Fund, Ltd. $ 550,000 2,750,000
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇
PAW Partners, LP $ 450,000 2,250,000
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇.▇. $ 100,000 500,000
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇ Living Trust $ 300,000 1,500,000
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇. ▇▇▇▇▇▇▇▇ Trustee
C. ▇▇▇▇ ▇▇▇▇▇ $ 100,000 500,000
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: C. ▇▇▇▇ ▇▇▇▇▇
Subtotal of First Closing $2,500,000 12,500,000
EXHIBIT A (con.)
SCHEDULE OF PURCHASERS
Other Closings:
---------------
Number of Shares Underlying
---------------------------
Name/Address Principal Amount of Note Warrant
------------ ------------------------ -------
May 11, 2001
------------
▇▇▇ ▇. and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Living $ 200,000 1,000,000
Trust
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇
May 15, 2001
------------
▇▇▇▇▇▇ ▇. Chez ▇▇▇ $ 200,000 1,000,000
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ #▇ - ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ Chez
May 21, 2001
------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ $ 100,000 500,000
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
May 25, 2001
------------
The ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ $ 200,000 1,000,000
Revocable Trust Dated 1/6/00
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
May 29, 2001
------------
▇▇▇▇▇ ▇▇▇▇ $ 100,000 500,000
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
EXHIBIT A (con.)
SCHEDULE OF PURCHASERS
Other Closings:
---------------
Number of Shares Underlying
---------------------------
Name/Address Principal Amount of Note Warrant
------------ ------------------------ -------
June 1, 2001
------------
UBS Painewebber $ 100,000 500,000
as ▇▇▇ custodian for ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇.
c/o Pacific Growth Equities
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
The ▇▇▇▇▇ R.E. ▇▇▇▇▇▇▇ Separate $ 100,000 500,000
Property Revocable Trust, dated
February 16, 2001
c/o ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Subtotal of Other Closings $1,000,000 5,000,000
Subtotal of First Closing $2,500,000 12,500,000
Total of all Closings $3,500,000 17,500,000
EXHIBIT B
---------
FORM OF NOTE
------------
Filed as Exhibit 10.45
EXHIBIT C
---------
FORM OF WARRANT
---------------
Filed as Exhibit 10.46
EXHIBIT D
---------
REGISTRATION RIGHTS AGREEMENT
-----------------------------
Filed as Exhibit 10.49
EXHIBIT E
---------
SECURITY AGREEMENT
------------------
Filed as Exhibit 10.47
EXHIBIT F
---------
DISCLOSURE SCHEDULE
-------------------
3.5 Capitalization
Authorized Capital Stock:
Common Stock 100,000,000
Preferred 5,000,000
Issued and Outstanding:
Common Stock 50,661,038
Preferred Stock 480,000
Stock Option Plans:
Reserved for Issuance Available for Grant Outstanding
1998 Plan 3,000,000 1,268,559 1,148,776
1999 Plan 5,412,500 2,936,429 2,476,071
Directors' Plan 312,500 293,750 18,750
3.10 No Material Undisclosed Liability
On January 29, 2001, XOR, Inc. filed an action in ▇▇▇▇▇ County, Colorado
District Court (Case No. 01 CV 108) against ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. The complaint
alleges breach of contract, unjust enrichment and promissory estoppel. The
complaint alleges monetary damages of approximately $1.3 million. The Company
has responded with an Answer and Counter Claim for breach of contract and has
retained the law firm of Moye, Giles, ▇'▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to
vigorously defend against this claim. The Company's financial statements have
capitalized $0.5 million related to XOR.
