ThermoEnergy Corporation Bridge Loan Agreement
ThermoEnergy
Corporation
This Bridge Loan Agreement (this “Agreement”) made this 10th day of
March 2010 but effective as of March 1, 2010 by and among ThermoEnergy
Corporation, a Delaware corporation having its principal place of business in
Little Rock, Arkansas (the “Borrower”) and the individual and entities named on
Schedule I hereto (collectively, the “Lenders”).
WHEREAS, the Borrower and certain of
the Lenders are parties to a certain Securities Purchase Agreement dated as of
November 19, 2009 (the “Series B Agreement”) pursuant to which such Lenders have
purchased from the Borrower shares of the Series B Convertible Preferred Stock
of the Borrower (the “Series B Stock”) and Common Stock Purchase Warrants
entitling the holders thereof to purchase shares of the Common Stock of the
Borrower (the “Warrants”); and
WHEREAS,
pursuant to the Series B Agreement, certain of the Lenders are obligated, upon
the satisfaction of certain conditions set forth in the Series B Agreement (the
“Third and Fourth Tranche Conditions”), to purchase from the Borrower additional
shares of Series B Stock and additional Warrants (the “Third and Fourth Tranche
Securities”); and
WHEREAS,
the Borrower requires cash to fund their operations prior to the satisfaction of
the Third and Fourth Tranche Conditions; and
WHEREAS,
the Lenders are prepared to make loans to the Borrower on the terms and
conditions herein set forth;
NOW, THEREFORE, IN CONSIDERATION of the
mutual covenants contained in this Agreement, and for other good and valuable
consideration the receipt and adequacy of which are hereby acknowledged, the
Borrowers and the Lenders agree as follows:
ARTICLE
1
Loans
Section
1.1. Issuance
of Notes. The Borrower hereby agrees to issue to each Lender a
Convertible Promissory Note in substantially the form attached here to Exhibit A
(the “Notes”) in the original principal amount set forth opposite the name of
such Lender on Schedule I attached hereto under the heading
“Commitment”.
Section
1.2. Draw
Downs. No later than 5 business days prior to the end of each
month, the Borrower will deliver to the Lenders an operating budget for the
succeeding month (the “Monthly Budgets”) indicating the amount of
cash that the Borrower desires to be advanced by the Lenders under the Notes to
fund operations for such month (the “Draw”). Unless the Lenders
(acting by the vote of the holders of at least 66⅔% of the then outstanding
principal amounts of the Notes) reject a Monthly Budget no later than 3 business
days after delivery, on the first business day of such succeeding month each
Lender shall deliver to the Borrower, by wire transfer, its applicable
percentage of the Draw, as calculated in accordance with the Lenders’ respective
Participation Percentages as set forth on Schedule I attached hereto under the
heading “Participation Percentage”). Notwithstanding the foregoing, any Lender
may, but shall not be obligated to, advance under the Notes an amount greater
than its respective Participation Percentage of any Draw (an “Advance”) and the
amount of any such Advance shall be credited against subsequent
Draws.
Section
1.3. Security
Interest in Collateral. The obligation of the Lenders to
advance funds against any Draw is expressly conditioned on the Borrower’s
execution and delivery of a Security Agreement in substantially the form
attached hereto as Exhibit B (the “Security Agreement” and, together with this
Agreement and the Notes, the “Transaction Documents”) granting to the lenders a
security interest in substantially all of the assets of the
Borrower.
|
|
(i)
|
The
Security Agreement; and
|
|
|
(ii)
|
The
Notes; and
|
|
|
(iii)
|
Copies
of resolutions of the board of directors of the Borrower approving the
execution, delivery and performance of the Transaction Documents and the
transactions contemplated thereby, in each case certified by the Secretary
of the Borrower to be in full force and effect on the Closing
Date.
|
ARTICLE
2
Representations and
Warranties
Section 2.1. Representations
and Warranties of the Borrower. The Borrower hereby makes
the following representations and warranties to the Lenders:
|
|
(a)
|
Organization
and Qualification. The Borrower is duly
incorporated, validly existing and in good standing under the laws of the
State of Delaware, with the requisite power and authority to own and use
its properties and assets and to carry on its business as currently
conducted. The Borrower is not in violation of any of the provisions of
its certificate of incorporation, bylaws or other organizational or
charter documents. The Borrower is duly qualified to conduct its
respective business and is in good standing as a foreign corporation in
each jurisdiction in which the nature of the business conducted or
property owned by it makes such qualification necessary, except where the
failure to be so qualified or in good standing, as the case may be, could
not, individually or in the aggregate, have or reasonably be expected to
result in a Material Adverse Effect, and no proceedings have been
instituted in any such jurisdiction revoking, limiting or curtailing, or
seeking to revoke, such power and authority or
qualification. For purposes of this Agreement, the term
“Material Adverse Effect” shall mean any of (i) a material and adverse
effect on the legality, validity or enforceability of any Transaction
Document, (ii) a material and adverse effect on the results of operations,
assets, prospects, business or condition (financial or otherwise) of the
Borrower, taken as a whole, or (iii) a material impairment of the
Borrower’s ability to perform on a timely basis their obligations under
any Transaction Document.
|
2
|
|
(b)
|
Authorization;
Enforcement. The Borrower has the
requisite corporate power and authority to enter into and to consummate
the transactions contemplated by each of the Transaction Documents and
otherwise to carry out its obligations thereunder. The execution and
delivery of each of the Transaction Documents by the Borrower and the
consummation by the Borrower of the transactions contemplated thereby have
been duly authorized by all necessary action on the part of the Borrower
and no further action is required by the Borrower in connection therewith.
Each Transaction Document has been (or upon delivery will have been) duly
executed by the Borrower and, when delivered in accordance with the terms
hereof, will constitute the valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally the enforcement of, creditors’ rights and remedies or
by other equitable principles of general
application.
|
|
|
(c)
|
No
Conflicts.
The execution, delivery and performance of the Transaction Documents by
the Borrower and the consummation by the Borrower of the transactions
contemplated thereby do not and will not (i) conflict with or violate any
provision of the Borrower’s certificate of incorporation, bylaws or other
organizational or charter documents, or (ii) conflict with, or constitute
a default (or an event that 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 (with or without notice, lapse of
time or both) of, or (except as contemplated by the Security Agreement)
result in the imposition of any lien upon any of the material properties
or assets of the Borrower pursuant to, any agreement, credit facility,
debt or other instrument or other understanding to which the Borrower is a
party or by which any property or asset of the Borrower is bound or
affected, or (iii) result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court or
governmental authority to which the Borrower is subject (including federal
and state securities laws and regulations), or by which any property or
asset of the Borrower is bound or affected; except in the case of each of
clauses (ii) and (iii), such as could not, individually or in the
aggregate, have or reasonably be expected to result in a Material Adverse
Effect.
|
|
|
(d)
|
Filings,
Consents and Approvals. The Borrower is not
required to obtain any consent, waiver, authorization or order of, give
any notice to, or make any filing or registration with, any court or other
federal, state, local or other governmental authority (a “Governmental
Authority”)
or other Person in connection with the execution, delivery and
performance by the Borrower of the Transaction Documents and the
consummation of the transactions contemplated thereby, other than the
filing of a financing statement on Form UCC-1 with the Secretary of State
of the State of Delaware.
|
|
|
(e)
|
Issuance
of the Notes. The Notes have been
duly authorized. Each Note, when issued in accordance with this
Agreement, will be duly and validly
issued.
|
|
|
(f)
|
SEC
Reports; Financial Statements. The
Borrower has filed all reports required to be filed by it under the
Securities Act of 1933 (the “Securities Act”) and the Securities Exchange
Act of 1934 (the “Exchange Act”) for the twelve months preceding the date
hereof (or such shorter period as the Borrower was required by law to file
such reports) (the foregoing materials, being collectively referred to
herein as the “SEC
Reports”). As of
their respective dates, the SEC Reports complied in all material respects
with the requirements of the Securities Act and the Exchange Act and the
rules and regulations of the Securities and Exchange Commission
promulgated thereunder, and none of the SEC Reports, when filed, contained
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 Borrower
included in the SEC Reports comply in all material respects with
applicable accounting requirements and the rules and regulations of the
Commission with respect thereto as in effect at the time of
filing. Such financial statements have been prepared in
accordance with GAAP applied on a consistent basis during the periods
involved, except as may be otherwise specified in such financial
statements or the notes thereto, and fairly present in all material
respects the financial position of the Borrower and its consolidated
subsidiaries as of and for 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, immaterial, year-end audit
adjustments.
|
3
|
|
(g)
|
Compliance. Except as has been
disclosed to the Lenders in writing, the Borrower (i) is not in default
under or in violation of (and no event has occurred that has not been
waived that, with notice or lapse of time or both, would result in a
default by the Borrower under), nor has the Borrower received notice of a
claim that it is in default under or that it is in violation of, any
indenture, loan or credit agreement or any other agreement or instrument
to which it is a party or by which it or any of its properties is bound
(whether or not such default or violation has been waived), (ii) is not in
violation of any order of any court, arbitrator or governmental body, or
(iii) is not and has not been in violation of any statute, rule or
regulation of any governmental authority, including without limitation all
foreign, federal, state and local laws relating to taxes, environmental
protection, occupational health and safety, product quality and safety and
employment and labor matters, except in each case as could not,
individually or in the aggregate, have or reasonably be expected to result
in a Material Adverse Effect.
|
|
|
(h)
|
Title
to Assets.
Except as has been disclosed to the Lenders in writing, the Borrower has
good and marketable title in fee simple to all real property owned by it
that is material to its businesses and good and marketable title in all
personal property owned by it that is material to its businesses, in each
case free and clear of all liens, except for liens as do not materially
affect the value of such property and do not materially interfere with the
use made and proposed to be made of such property by the Borrower. Any
real property and facilities held under lease by the Borrower and its
subsidiaries are held by them under valid, subsisting and enforceable
leases of which the Borrower and its subsidiaries are in compliance,
except as could not, individually or in the aggregate, have or reasonably
be expected to result in a Material Adverse
Effect.
|
|
|
(i)
|
Patents
and Trademarks. The Borrower and its
subsidiaries have, or have rights to use, all patents, patent
applications, trademarks, trademark applications, service marks, trade
names, copyrights, licenses and other similar rights that are necessary or
material for use in connection with their respective businesses as
described in the SEC Reports and which the failure to so have could,
individually or in the aggregate, have or reasonably be expected to result
in a Material Adverse Effect (collectively, the “Intellectual Property
Rights”). The SEC
Reports describe all claims and Actions made or filed by others against
the Borrower deemed material by the Borrower to the effect that
Intellectual Property Rights used by the Borrower or any subsidiary
violate or infringe upon the rights of such claimant. Except as set forth
in the SEC Reports, to the knowledge of the Borrower, all of the
Intellectual Property Rights are enforceable and there is no existing
infringement by another Person of any of the Intellectual Property
Rights.
|
|
|
(j)
|
Insurance. The Borrower and its
subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
prudent and customary in the businesses in which the Borrower and its
subsidiaries are engaged. The Borrower has no reason to believe that it
will not be able to renew its and the subsidiaries’ existing insurance
coverage as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue its business on
terms consistent with the market for the Borrower’s and such subsidiaries’
respective lines of business.
|
4
|
|
Solvency. Based on the financial
condition of the Borrower as of the Closing Date (and assuming that the
Closing shall have occurred), (i) the Borrower’s assets do not constitute
unreasonably small capital to carry on its business for the current fiscal
year as now conducted and as proposed to be conducted including its
capital needs taking into account the particular capital requirements of
the business conducted by the Borrower, and projected capital requirements
and capital availability thereof; and (ii) the current cash flow of the
Borrower, together with the proceeds the Borrower would receive, were it
to liquidate all of its assets, after taking into account all anticipated
uses of the cash, would be sufficient to pay all amounts on or in respect
of its debt when such amounts are required to be paid. The Borrower does
not intend to incur indebtedness beyond its ability to pay such debts as
they mature (taking into account the timing and amounts of cash to be
payable on or in respect of its
debt).
|
|
|
(l)
|
Certain
Fees. No
brokerage or finder’s fees or commissions are or will be payable by the
Borrower to any broker, financial advisor or consultant, finder, placement
agent, investment banker, bank or other person with respect to the
transactions contemplated by this Agreement. The Lenders shall have no
obligation with respect to any fees or with respect to any claims (other
than such fees or commissions owed by the Lenders pursuant to written
agreements executed by the Lenders which fees or commissions shall be the
sole responsibility of the Lenders) made by or on behalf of other persons
for fees of a type contemplated in this Section that may be due in
connection with the transactions contemplated by this
Agreement.
|
Section
2.2. Representations
and Warranties of the Lenders. Each Lender,
severally and not jointly, hereby represents and warrants to the Borrower as to
itself as follows:
|
|
(a)
|
Authority. This Agreement has
been duly executed by such Lender, and when delivered by the Lender in
accordance with terms hereof, will constitute the valid and legally
binding obligation of the Lender, enforceable against him or it in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation
or similar laws relating to, or affecting generally the enforcement of,
creditors’ rights and remedies or by other equitable principles of general
application.
|
|
|
(b)
|
Investor
Status.
Such Lender is an “accredited investor” as defined in Rule 501(a) under
the Securities Act.
|
|
|
(c)
|
Access
to Information. Such Lender
acknowledges that he or it has been afforded (i) the opportunity to ask
such questions as he has deemed necessary of, and to receive answers from,
representatives of the Borrower concerning the terms and conditions of the
offering of the Notes and the merits and risks of making loans to the
Borrower under the Notes; (ii) access to information about the Borrower
and its subsidiaries and their respective financial condition, results of
operations, business, properties, management and prospects sufficient to
enable him to evaluate his investment; and (iii) the opportunity to obtain
such additional information that the Borrower possesses or can acquire
without unreasonable effort or expense that is necessary to make an
informed investment decision with respect to the
investment.
|
5
ARTICLE
3
Series B
Agreement
Section
3.1 Amendment
of Series B Agreement. The Series B Agreement
is hereby amended (i) to add as parties thereto the Lenders who were not,
heretofore, parties to such Series B Agreement and (ii) to delete in there
entirety Schedules B and C to such Series B Agreement and to substitute in place
thereof the Schedules B and C attached hereto. In all other respects,
the Series B Agreement shall remain in full force and effect without alteration
or amendment.
Section
3.2 Conversion
of Notes. The outstanding
principal amount, and all accrued and unpaid interest thereon, shall be
surrendered by the Lenders in satisfaction of their obligations pursuant to
Section 2.4 of the Series B Agreement to the Borrower the “Purchase Price” (as
such term is defined in the Series B Agreement) for the “Securities” (as such
term is defined in the Series B Agreement) to be purchased by such Lender at the
“Third Tranche Closing” (as such term is defined in the Series B Agreement) and,
if the principal amount and accrued and unpaid interest on such Lender’s Note
exceeds the Purchase Price payable by such Lender at the Third Tranche Closing,
the balance shall be applied against the Purchase Price payable by such lender
for the Securities to be purchased by such Lender at the “Fourth Tranche
Closing” (as such term is defined in the Series B Agreement). Accrued
and unpaid interest on the Notes shall be applied against the Purchase Prices
first, with the principal amounts of the Notes being applied against any
remaining portion of the Purchase Prices.
Section
3.3 Warrant
Exercise Price. Notwithstanding
anything to the contrary contained in the Series B Agreement or the schedules
thereto, the exercise price of the “Warrants” (as such term is defined in the
Series B Agreement) issuable to the Lenders at the Third Tranche Closing or the
Fourth Tranche Closing for which the Purchase Price is paid by surrender of
Notes as provided in Section 3.1 shall be $0.30 per share. The
exercise price of any Warrants issuable to the Lenders at the Third Tranche
Closing or the Fourth Tranche Closing for which the Purchase Price is paid other
than by surrender of Notes shall remain $0.50.
Section
3.4 Additional
Warrant Coverage. In the event a
Lender makes an Advance pursuant to Section 1.2, the number of “Warrant Shares”
(as such term is defined in the Series B Agreement) issuable upon exercise of
Warrants issued at the Third Tranche Closing or the Fourth Tranche Closing
attributable to the portion of the Purchase Price paid by such Advance shall be
increased by a factor of 25% over the number of Warrant Shares issuable to such
Lender as set forth on Schedule B or Schedule C to the Series B Agreement, as
the case may be, so that with respect to the amount of any Advance the Warrant
coverage shall be 250% rather than 200%.
ARTICLE
4
Miscellaneous
Section
4.1. Additional
Parties. From
time to time on or before the “Third Tranche Closing Date” (as such term is
defined in the Series B Agreement), this Agreement may be amended by the
Borrower, with the consent of Lenders holding at least 66⅔% of the principal
amount of the then outstanding Notes, to add as parties hereto one or more
persons or entities as additional Lenders and/or to permit any Lender to
increase the amount of his or its Commitment; provided, however, that the
aggregate amount of such additional Commitments (whether from Lenders already
party hereto or from new Lenders) shall not exceed $2,000,000. Upon
any such amendment, (i) Schedule I hereto shall be amended to reflect the
addition of such additional Lender or Lenders and/or such increase in the
Commitment of a Lender, and the Participation Percentage of all Lenders shall be
adjusted proportionately and (ii) such additional Lender or Lenders shall become
parties to the Series B Agreement and Schedules B and C to the Series B
Agreement shall be amended to reflect such additional Commitments.
6
Section
4.2. Fees and
Expenses. Each party shall
pay the fees and expenses of its advisers, counsel, accountants and other
experts, if any, and all other expenses incurred by such party incident to the
negotiation, preparation, execution, delivery and performance of the Transaction
Documents. The Borrower shall pay all stamp and other taxes and duties levied in
connection with the sale of the Shares.
Section
4.3. Entire
Agreement. The
Transaction Documents contain the entire understanding of the parties with
respect to the subject matter hereof and supersede all prior agreements,
understandings, discussions and representations, oral or written, with respect
to such matters, which the parties acknowledge have been merged into such
documents and exhibits.
Section
4.5. Amendments;
Waivers; No Additional Consideration. No provision of
this Agreement may be waived or amended except in a written instrument signed by
the Borrower and by Lenders holding at least 66⅔% of the principal amount of the
then outstanding Notes. No waiver 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 subsequent default or a
waiver of any other provision, condition or requirement hereof, nor shall any
delay or omission of either party to exercise any right hereunder in any manner
impair the exercise of any such right. No consideration shall be offered or paid
to any Lender to amend or consent to a waiver or modification of any provision
of any Transaction Document unless the same consideration is also offered to all
Lenders who then hold Notes.
Section
4.6. Construction. 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. The
language used in this Agreement will be deemed to be the language chosen by the
parties to express their mutual intent, and no rules of strict construction will
be applied against any party. This Agreement shall be construed as if drafted
jointly by the parties, and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any provisions
of this Agreement or any of the Transaction Documents.
7
Section
4.7. Successors
and Assigns. This Agreement
shall be binding upon and inure to the benefit of the parties and their
successors and permitted assigns. The Borrower may not assign this Agreement or
any rights or obligations hereunder without the prior written consent of Lenders
holding at least 66⅔% of the principal amount of the then outstanding Notes. A
Lender may assign any or all of his rights under this Agreement to any person to
whom such Lender assigns or transfers its Note, provided such transferee agrees
in writing to be bound by the provisions hereof that apply to a
“Lender.”
Section
4.8. No
Third-Party Beneficiaries. This Agreement is
intended for the benefit of the parties hereto and their respective successors
and permitted assigns and is not for the benefit of, nor may any provision
hereof be enforced by, any other person.
Section
4.9. Governing
Law and Jurisdiction. This Agreement
and the rights of the parties hereunder shall be construed and enforced in
accordance with the laws of the State of Delaware applicable to agreements
executed and to be performed wholly within such state and without regard to
principles of conflicts of law. Each party irrevocably (a) consents
to the jurisdiction of the federal and state courts situated in or having
jurisdiction over Wilmington, Delaware in any action that may be brought for the
enforcement of this Agreement, and (b) submits to and accepts, with respect to
its properties and assets, generally and unconditionally, the in personam
jurisdiction of the aforesaid courts, waiving any defense that such court is not
a convenient forum In any such litigation to the extent permitted by
applicable law, each party waives personal service of any summons, complaint or
other process, and agrees that the service thereof may be made either (i) in the
manner for giving of notices provided in the Notes or (ii) in any other manner
permitted by law.
Section
4.10. Survival. The
representations, warranties, agreements and covenants contained herein shall
survive the Closing and the delivery of the Securities.
Section
4.11. Execution. This Agreement
may be executed in two or more counterparts, all of which when taken together
shall be considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other party, it
being understood that both parties need not sign the same counterpart. In the
event that any signature is delivered by facsimile transmission, such signature
shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect as if such
facsimile signature page were an original thereof notwithstanding any subsequent
failure or refusal to deliver an original signed in ink.
Section
4.12. Severability. If any provision
of this Agreement is held to be invalid or unenforceable in any respect, the
validity and enforceability of the remaining terms and provisions of this
Agreement shall not in any way be affected or impaired thereby and the parties
will attempt to agree upon a valid and enforceable provision that is a
reasonable substitute therefor, and upon so agreeing, shall incorporate such
substitute provision in this Agreement.
Section
4.13. Payment
Set Aside. To the extent
that the Borrower makes a payment or payments to any Lender pursuant to any
Transaction Document or any Lender enforces or exercises its rights thereunder,
and such payment or payments or the proceeds of such enforcement or exercise or
any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside, recovered from, disgorged by or are required to be
refunded, repaid or otherwise restored to the Borrower, a trustee, receiver or
any other person under any law (including, without limitation, any bankruptcy
law, state or federal law, common law or equitable cause of action), then to the
extent of any such restoration the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such enforcement or setoff had not
occurred.
8
IN
WITNESS WHEREOF, the parties hereto have caused this Bridge Loan Agreement to be
duly executed by their respective authorized signatories as of the date first
indicated above.
| ThermoEnergy Corporation | The Quercus Trust | |||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
|
Empire
Capital Partners, ltd
By:
Empire
Capital Management, llc,
its
Investment Manager
|
Empire
Capital Partners, lp
By:
Empire
gp, llc, its General Partner
|
|||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
|
Empire
Capital Partners Enhanced Master Fund, ltd
By:
Empire
Capital Management, llc,
its
Investment Manager
|
|
|||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | ||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | ||||
| Focus Fund, l.p. | ||||
| By: | /s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ III | |||
9
Schedule
I
|
Lender
|
Commitment
|
3rd
Tranche Participation Percentage
|
4th
Tranche Participation Percentage
|
|
The
Quercus Trust
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇-▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
$1,200,000
|
63.16%
|
0%
|
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇
▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
$600,000
|
15.79%
|
37.50%
|
|
Focus
Fund L.P.
▇.▇.
▇▇▇ ▇▇▇
▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
$200,000
|
5.26%
|
12.50%
|
|
Empire
Capital Partners, LP
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
$233,333
|
5.26%
|
16.67%
|
|
Empire
Capital Partners, Ltd
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
$233,333
|
5.26%
|
16.67%
|
|
Empire
Capital Partners Enhanced Master Fund, Ltd
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
$233,333
|
5.26%
|
16.67%
|
10
Schedule
B
|
Investor
|
Third
Closing Purchase Price
|
Third
Closing Shares
|
Third
Closing Warrant Shares
|
|
The
Quercus Trust
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇.
A109-PMC
467
▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
$1,200,000
|
500,000
shares
|
4,800,000
shares
|
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇
▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
$300,000
|
125,000
shares
|
1,200,000
shares
|
|
Empire
Capital Partners, LP
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
$100,000
|
41,667
shares
|
400,000
shares
|
|
Empire
Capital Partners, Ltd
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
$100,000
|
41,667
shares
|
400,000
shares
|
|
Empire
Capital Partners Enhanced Master Fund, Ltd
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
$100,000
|
41,667
shares
|
400,000
shares
|
|
Focus
Fund L.P.
▇.▇.
▇▇▇ ▇▇▇
▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
$100,000
|
41,667
shares
|
400,000
shares
|
11
Schedule
C
|
Investor
|
Fourth
Closing Purchase Price
|
Fourth
Closing Shares
|
Fourth
Closing Warrant Shares
|
|
The
Quercus Trust
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇.
A109-PMC
467
▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
0
|
0 shares
|
0
shares
|
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇
▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
$300,000
|
125,000
shares
|
1,200,000
shares
|
|
Empire
Capital Partners, LP
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
$133,333
|
55,555
shares
|
533,332
shares
|
|
Empire
Capital Partners, Ltd
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
$133,333
|
55,555
shares
|
533,332
shares
|
|
Empire
Capital Partners Enhanced Master Fund, Ltd
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
$133,333
|
55,555
shares
|
533,332
shares
|
|
Focus
Fund L.P.
▇.▇.
▇▇▇ ▇▇▇
▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
|
$100,000
|
41,667
shares
|
400,000
shares
|
12