EXHBIIT 10.36
FORM OF SECURITIES PURCHASE AGREEMENT
================================================================================
OLYMPIC CASCADE FINANCIAL CORPORATION
SECURITIES PURCHASE AGREEMENT
DATED AS OF
--------------------- 2004
WITH RESPECT TO
---- NOTES AND WARRANTS
================================================================================
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (the "Agreement"), dated as of --------
--, 2004 by and among OLYMPIC CASCADE FINANCIAL CORPORATION, a Delaware
corporation (the "Company") and the individuals and entities listed on Exhibit A
hereto under the heading "Purchasers" (the "Purchasers") who become parties to
this Agreement by executing and delivering a financing signature page in the
form attached hereto as Exhibit B (the "Financing Signature Page").
WHEREAS, the Company desires to sell to the Purchasers, and the Purchasers
desires to purchase from the Company, an aggregate of up to (a) $-------------
principal amount of --% Senior Subordinated Promissory Notes (the "Notes") and
(b) warrants (the "Warrants") to purchase up to ------------ shares of the
Company's common stock, $0.02 par value per share (the "Common Stock"), at an
initial exercise price of $-------- per share, pursuant to the provisions of
this Agreement; and
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties do hereby
agree as follows:
1. Authorization; Sale of Notes and Warrants.
1.1 Authorization. The Company has, or before the Closing (as
defined in Section 2.1) will have, duly authorized the sale and issuance,
pursuant to the terms of this Agreement, of (i) the Notes and Warrants and (ii)
shares of Common Stock issuable upon exercise of the Warrants.
1.2 Sale of Notes and Warrants. Subject to the terms and conditions
of this Agreement, at the Closing, the Company will sell and each of the
Purchasers will purchase (a) the Notes in the principal amounts set forth on
Schedule A hereto and (b) the Warrants. The terms and provisions of the Notes
and Warrants are more fully set forth in the form of Senior Subordinated
Promissory Note, a true and correct copy of which is attached hereto as Exhibit
C, and in the form of Warrant, a true and correct copy of which is attached
hereto as Exhibit D, respectively.
2. Purchase Price; Closing.
2.1 Purchase Price. The aggregate purchase price (the "Purchase
Price") to be paid by the Purchasers to the Company to acquire the Notes and
Warrants shall be up to $--------.
2.2 The Closing. Subject to the terms and conditions of this
Agreement, the closing (the "Closing") of the sale and purchase of Notes and
Warrants under this Agreement shall take place at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ (or remotely via the exchange of
documents and signatures) on the date of this Agreement (the "Closing Date"). At
the Closing:
1
(a) the Company shall execute and deliver the Registration
Rights Agreement in the form attached hereto as Exhibit E (the "Registration
Rights Agreement");
(b) the Company shall deliver to each of the Purchasers, a
Note in the amount set forth opposite such Purchaser's name on Exhibit A
attached hereto, and a Warrant exercisable for the number of shares of Common
Stock set forth opposite such Purchaser's name on Exhibit A attached hereto,
registered in the name of such Purchaser;
(c) each Purchaser shall pay directly to the Company, by wire
transfer of immediately available funds, the Purchase Price for the Notes and
Warrants being purchased; and
(d) the Company shall have delivered to the Purchasers a
certificate of the Company (the "Compliance Certificate"), executed by the Chief
Executive Officer of the Company, dated the Closing Date, and certifying to,
among other things, the fulfillment of the conditions specified in Sections 5.1,
5.2 and 5.3 of this Agreement.
2.3 Additional Closings. Additional sales of Notes and Warrants not sold
at the Initial Closing may be made by the Company at one or more closings (each,
an "Additional Closing"). Each Additional Closing and the Initial Closing are
collectively referred to as the "Closings" and the date of each Additional
Closing and the Initial Closing are collectively referred to as the "Closing
Dates." Each Additional Closing shall take place at the offices of ▇▇▇▇▇▇▇
Krooks LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (or remotely via the exchange
of documents and signatures). The Purchasers agree that any additional persons
or entities that acquire Notes and Warrants at any "Additional Closing" shall
become "Purchasers" under this Agreement with all the rights and obligations
attendant thereto, upon their execution of this Agreement without further action
by any other Purchaser. For purposes of this Agreement, the terms "Closing" and
"Closing Date", unless otherwise indicated, refer to the applicable closing and
closing date of the Initial Closing or the Additional Closing(s), as the case
may be. 3. Representations of the Company. The Company hereby represents and
warrants to each Purchaser that the statements contained in this Section 3 are
complete and accurate as of the date of this Agreement.
3.1 Organization and Standing. The Company and each of its
subsidiaries (as defined below) is a corporation or other legal entity duly
organized, validly existing and in good standing under the laws of its
jurisdiction of existence, has all requisite corporate power and authority, and
has been duly authorized by all necessary approvals and orders, to own, lease
and operate its assets and properties to the extent owned, leased and operated
and to carry on its business as it is now being conducted and is duly qualified
and in good standing to do business in each jurisdiction in which the nature of
its business or the ownership or leasing of its assets and properties makes such
qualification necessary, other than in such jurisdictions where the failure to
be so qualified and in good standing would not, when taken together with all
other such failures, reasonably be expected to have a material adverse effect on
the business, properties, condition (financial or otherwise), prospects (other
than effects that are the result of general economic changes or
industry-specific risks) or results of operations of the Company and its
subsidiaries taken as a whole (any such material adverse effect being hereafter
referred to as a "Company Material Adverse Effect"). As used in this Agreement,
the term "subsidiary" of a person shall mean any corporation or other entity
(including partnerships and other business associations) of which a majority of
the outstanding capital stock or other voting securities having voting power
under ordinary circumstances to elect directors or similar members of the
governing body of such corporation or entity shall at the time be held, directly
or indirectly, by such person.
2
3.2 Subsidiaries. Except as disclosed in reports (the "SEC Reports")
filed with the Securities and Exchange Commission pursuant to the Securities Act
of 1933, as amended (the "Securities Act") and the Securities Exchange Act of
1934, as amended, the Company has no subsidiaries and does not currently own or
control, directly or indirectly, any equity interest, nor has any commitment to
purchase or otherwise acquire any equity interest, in any other corporation,
partnership, limited liability company, association, or other business entity.
Except as set forth in the SEC Reports, the Company is not a participant in any
joint venture, partnership, or similar arrangement.
3.3 Capitalization. The authorized and outstanding capital stock of
the Company consists of the following: (i) a total of Sixty Million (60,000,000)
shares of Common Stock, of which 3,367,558 shares are issued and outstanding;
and (ii) a total of One Hundred Thousand (100,000) shares of preferred stock,
$0.01 par value per share, of which 30,000 shares are designated as Series A
Convertible Preferred Stock (the "Series A Stock"), 27,825 of which are issued
and outstanding;
3.4 Issuance of Notes and Warrants. The issuance, sale and delivery
of the Notes and Warrants in accordance with this Agreement, and the issuance
and delivery of the shares of Common Stock underlying the Warrants (the
"Conversion Shares") have been, or will be on or prior to the Closing, duly
authorized by all necessary corporate action on the part of the Company, and all
such shares have been duly reserved for issuance. The Conversion Shares when so
issued, sold and delivered against payment therefor in accordance with the
provisions of this Agreement, when issued upon such conversion, will be duly and
validly issued, fully paid and nonassessable.
3.5 Corporate Power; Authority for Agreement; No Conflict. The
Company will have, at the Closing, all requisite legal and corporate power to
execute and deliver this Agreement, to sell and issue the Notes and Warrants
hereunder, to issue the Conversion Shares (upon due exercise of the Warrants),
to consummate the other transactions contemplated by the terms of this Agreement
and carry out and perform its obligations under the terms of this Agreement. The
execution, delivery and performance by the Company of this Agreement, and the
consummation by the Company of the transactions contemplated hereby and thereby,
have been duly authorized by all necessary corporate action. This Agreement has
been, and when executed at the Closing will be, duly executed and delivered by
the Company and constitute valid and binding obligations of the Company
enforceable in accordance with their respective terms, subject as to enforcement
of remedies to applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting generally the enforcement of creditors' rights and
subject to a court's discretionary authority with respect to the granting of a
decree ordering specific performance or other equitable remedies. The execution
and delivery of this Agreement, the consummation of the transactions
contemplated hereby and thereby and the compliance with their respective
provisions by the Company will not (a) conflict with or violate any provision of
the Certificate of Incorporation or By-laws of the Company, (b) require on the
part of the Company any filing with, or any permit, order, authorization,
consent or approval of, any court, arbitrational tribunal, administrative agency
or commission or other governmental or regulatory authority or agency (each of
the foregoing is hereafter referred to as a "Governmental Entity"), (c) conflict
with, result in a breach of, constitute (with or without due notice or lapse of
time or both) a default under, result in the acceleration of obligations under,
create in any party the right to accelerate, terminate, modify or cancel, or
require any notice, consent or waiver under, any contract, lease, sublease,
license, sublicense, franchise, permit, indenture, agreement or mortgage for
borrowed money, instrument of indebtedness, Security Interest (as defined below)
or other arrangement to which the Company is a party or by which the Company is
bound or to which its assets are subject, other than any of the foregoing events
listed in this clause (c) which do not and will not, individually or in the
aggregate, have a Company Material Adverse Effect, (d) result in the imposition
of any Security Interest upon any assets of the Company or (e) violate any
order, writ, injunction, decree, statute, rule or regulation applicable to the
Company or any of its properties or assets. For purposes of this Agreement,
"Security Interest" means any mortgage, pledge, security interest, encumbrance,
charge, or other lien (whether arising by contract or by operation of law).
3
3.6 Governmental Consents. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any Governmental Entity is required on the part of the Company in
connection with the offer, issuance, sale and delivery of the Notes and
Warrants, the issuance and delivery of the Conversion Shares or the other
transactions to be consummated at the Closing, as contemplated by this
Agreement, except such filings as shall have been made prior to and shall be
effective on and as of the Closing and such filings required to be made after
the Closing under applicable federal and state securities laws. Based on the
representations made by each of the Purchasers in Section 4 of this Agreement,
the offer and sale of the Notes and Warrants to each of the Purchasers will be
in material compliance with applicable federal and state securities laws.
3.7 Financial Statements. Each Purchaser has had the opportunity to
review the audited financial statements of the Company for the fiscal year ended
September 30, 2003, (all such financial statements being collectively referred
to herein as the "Financial Statements"), which have been prepared on a
consistent basis throughout the periods indicated and with each other. Such
Financial Statements (i) are in accordance with the books and records of the
Company; and (ii) are true, correct and complete, in all material respects, and
present fairly the financial condition of the Company at the date or dates, and
for the periods, indicated therein and the results of operations for the period
therein specified.
3.8 Broker's, Finder's or Similar Fees. Other than commissions to be
paid to certain brokers of National Securities Corporation, the Company's
wholly-owned subsidiary, in connection with the purchase and sale herein, there
are no brokerage commissions, finder's fees or similar fees or commissions
payable by the Company in connection with the transactions contemplated hereby
based on any agreement, arrangement or understanding with the Company or any
action taken by any entity or individual.
4
4. Representations of the Purchasers. Each of the Purchasers severally
represents and warrants to the Company as follows:
4.1 Existence and Power. The Purchaser (a) is duly organized and
validly existing and (b) has the requisite power and authority to execute,
deliver and perform its obligations under this Agreement to which such Purchaser
is a party. In the event the Purchaser is an individual, such Purchaser has the
legal capacity to execute, deliver and perform the obligations under this
Agreement to which such Purchaser is a party.
4.2 Authorization; No Contravention. The execution delivery and
performance by each Purchaser of this Agreement to which such Purchaser is a
party and the transactions contemplated hereby and thereby, (a) have been duly
authorized by all necessary action, (b) do not contravene the terms of such
Purchaser's organizational documents, or any amendment thereof, and (c) do not
violate, conflict with or result in any breach or contravention of, or the
creation of any lien under, any material contractual obligation of such
Purchaser or any requirement of law applicable to such Purchaser, and (d) do not
violate any orders of any Governmental Entity against, or binding upon, such
Purchaser.
4.3 Governmental Authorization; Third Party Consents. No approval,
consent, compliance, exemption, authorization or other action by, or notice to,
or filing with, any Governmental Entity or any other person, and no lapse of a
waiting period under any requirement of law, is necessary or required in
connection with the execution, delivery or performance (including, without
limitation, the purchase of the Notes and Warrants) by, or enforcement against,
the Purchaser of this Agreement to which it is a party or the transactions
contemplated hereby and thereby.
4.4 Binding Effect. This Agreement and the other documents to which
each Purchaser is a party have been duly executed and delivered by each
Purchaser and constitute the legal, valid and binding obligations of such
Purchaser, enforceable against it in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting generally the enforcement
of creditors' rights and subject to a court's discretionary authority with
respect to granting a decree ordering specific performance or other equitable
remedies.
4.5 Purchase for Own Account. The Notes and Warrants hereby acquired
by each Purchaser pursuant to this Agreement are being acquired for such
Purchaser's own account and with no intention of distributing or reselling such
securities in any transaction that would be in violation of the securities laws
of the United States of America or any state, without prejudice. If such
Purchaser should in the future decide to dispose of any of such Notes or
Warrants, such Purchaser understands and agrees that it may do so only in
compliance with the Securities Act and applicable state securities laws, as then
in effect. Each Purchaser agrees to the imprinting, so long as required by law,
of legends on certificates representing all of its Notes, Warrants and
Conversion Shares to the following effect:
5
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES MAY NOT BE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO
AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH
ACT AND SUCH LAWS.
4.6 Restricted Securities. Each Purchaser understands the Notes and
Warrants will not be registered at the time of their issuance under the
Securities Act since they are being acquired from the Company in a transaction
exempt from the registration requirements of the Securities Act and that the
reliance of the Company on such exemption is predicated in part on the
Purchaser's representations set forth herein.
4.7 Brokers, Finder's or Similar Fees. The Company has not incurred,
and will not incur, directly or indirectly, as a result of any action taken by
such Purchaser, any liability for brokerage or finders' fees or agents'
commissions or any similar charges in connection with this Agreement.
4.8 Accredited Investor. Each Purchaser is an "accredited investor"
within the meaning of Rule 501 of Regulation D under the Securities Act, as
presently in effect.
4.9 Experience. Each Purchaser has carefully reviewed the
representations concerning the Company contained in this Agreement and has made
detailed inquiry concerning the Company, its business and its personnel; the
officers of the Company have made available to such Purchaser any and all
written information which he, she or it has requested and have answered to such
Purchaser's satisfaction all inquiries made by such Purchaser; and such
Purchaser has sufficient knowledge and experience in finance and business that
he, she or it is capable of evaluating the risks and merits of his, her or its
investment in the Company and such Purchaser is able financially to bear the
risks thereof.
4.10 SEC Reports. Each Purchaser acknowledges that it has had the
opportunity to review the SEC Reports filed with the SEC, including the
information contained in the Company's most recently filed Annual Report on Form
10-K, Quarterly Report on Form 10-Q and Proxy Statement on Schedule 14A. Each
Purchaser acknowledged that it has read the information in such reports,
including the information under the caption "Risk Factors" contained in the SEC
Reports.
6
5. Conditions of Closing of the Purchasers. The obligations of the
Purchasers to purchase their respective Notes and Warrants and transfer the
Purchase Price for the Notes and Warrants being purchased at the Closing are
subject to the fulfillment at or before the Closing, as applicable, of the
following conditions precedent, any one or more of which may be waived in whole
or in part by the Purchasers, which waiver shall be at the sole discretion of
such Purchasers:
5.1 Representations and Warranties. The representations and
warranties made by the Company in this Agreement shall have been true and
correct in all respects as of the date when made and as of the Closing Date,
except for the representations and warranties that are expressly made as of a
particular date (which shall remain true and correct as of such date).
5.2 Agreements. All agreements, and conditions contained in this
Agreement to be performed or complied with by the Company prior to Closing shall
have been performed or complied with by the Company prior to or at the Closing.
5.3 Consents, Etc. The Company shall have secured and delivered to
the Purchasers all consents and authorizations that shall be necessary or
required lawfully to consummate this Agreement and to issue the Notes and
Warrants to be purchased by each Purchaser at the Closing.
5.4 Registration Rights Agreement. The Company shall have executed
and delivered to the Purchasers the Registration Rights Agreement.
5.5 Proceedings and Documents. All corporate and other proceedings
in connection with the transactions contemplated by this Agreement and all
documents and instruments incident to such transactions shall be in a form and
substance reasonably satisfactory to the Purchasers and their counsel, and the
Purchasers and their counsel shall have received all such counterpart originals
or certified or other copies of such documents as the Purchasers or their
counsel may reasonably request.
6. Conditions of Closing of the Company. The Company's obligations to sell
and issue the Notes and Warrants at the Closing are subject to the fulfillment
at or before the Closing of the following conditions, which conditions may be
waived in whole or in part by the Company, and which waiver shall be at the sole
discretion of the Company:
6.1 Representations and Warranties. The representations and
warranties made by the Purchasers in this Agreement shall have been true and
correct in all respects as of the date when made and as of the Closing Date,
except for the representations and warranties that are expressly made as of a
particular date (which shall remain true and correct as of such date).
6.2 Agreements. All agreements, and conditions contained in this
Agreement to be performed or complied with by the Purchasers prior to the
Closing shall have been performed or complied with by the Company prior to or at
the Closing.
7
6.3 Payment of Purchase Price. The Purchasers shall have tendered
the aggregate Purchase Price in exchange for the Notes and Warrants being issued
hereunder in accordance with Section 2.1.
6.4 Delivery of Documents. All of the documents to be delivered by
the Purchasers pursuant to Section 2.1 or 2.2, as applicable, shall be in a form
and substance reasonably satisfactory to the Company and its counsel, and shall
have been executed and delivered to the Company by each of the other parties
thereto.
7. Miscellaneous.
7.1 Successors and Assigns. This Agreement, and the rights and
obligations of each Purchaser hereunder, may be assigned by such Purchaser to
(a) any person or entity to which Notes and Warrants are transferred by such
Purchaser, or (b) to any Affiliated Party (as hereinafter defined), and, in each
case, such transferee shall be deemed a "Purchaser" for purposes of this
Agreement; provided that such assignment of rights shall be contingent upon the
transferee providing a written instrument to the Company notifying the Company
of such transfer and assignment and agreeing in writing to be bound by the terms
of this Agreement. The Company may not assign its rights under this Agreement.
For purposes of this Agreement, "Affiliated Party" shall mean, with respect to
any Purchaser, any person or entity which, directly or indirectly, controls, is
controlled by or is under common control with such Purchaser, including, without
limitation, any general partner, officer or director of such Purchaser and any
venture capital fund now or hereafter existing which is controlled by one or
more general partners of, or shares the same management company as, such
Purchaser.
7.2 Expenses. Each party hereto shall pay its or his own expenses
relating to the transactions contemplated by this Agreement, including, without
limitation, the fees and expenses of their respective counsel, financial
advisors and accountants.
7.3 Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
7.4 Specific Performance. In addition to any and all other remedies
that may be available at law in the event of any breach of this Agreement, each
Purchaser shall be entitled to specific performance of the agreements and
obligations of the Company hereunder and to such other injunctive or other
equitable relief as may be granted by a court of competent jurisdiction.
7.5 Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York (without reference
to the conflicts of law provisions thereof).
7.6 Notices. All notices, requests, consents, and other
communications under this Agreement shall be in writing and shall be deemed
delivered (i) three business days after being sent by registered or certified
mail, return receipt requested, postage prepaid or (ii) one business day after
being sent via a reputable nationwide overnight courier service guaranteeing
next business day delivery, in each case to the intended recipient as set forth
below:
8
If to the Company, to Olympic Cascade Financial Corporation, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Chief Executive
Officer, or at such other address as may have been furnished in writing by the
Company to the other parties hereto, with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.; or
If to a Purchaser, at its address set forth on Exhibit A, or at such other
address as may have been furnished in writing by such Purchaser to the other
parties hereto.
Any party may give any notice, request, consent or other communication
under this Agreement using any other means (including, without limitation,
personal delivery, messenger service, telecopy, first class mail or electronic
mail), but no such notice, request, consent or other communication shall be
deemed to have been duly given unless and until it is actually received by the
party for whom it is intended. Any party may change the address to which
notices, requests, consents or other communications hereunder are to be
delivered by giving the other parties notice in the manner set forth in this
Section.
7.8 Complete Agreement. This Agreement (including its exhibits)
constitutes the entire agreement and understanding of the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings relating to such subject matter.
7.9 Amendments and Waivers. This Agreement may not be amended or
terminated without the prior written consent of the Company.
7.10 Pronouns. Whenever the context may require, any pronouns used
in this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns and pronouns shall include the plural, and
vice versa.
7.11 Counterparts; Facsimile Signatures. This Agreement may be
executed in any number of counterparts (including, in the case of the
Purchasers, Financing Signature Pages), each of which shall be deemed to be an
original, and all of which shall constitute one and the same document. This
Agreement (including the Financing Signature Pages) may be executed by facsimile
signatures.
7.12 Section Headings and References. The section headings are for
the convenience of the parties and in no way alter, modify, amend, limit or
restrict the contractual obligations of the parties. Any reference in this
agreement to a particular section or subsection shall refer to a section or
subsection of this Agreement, unless specified otherwise.
9
7.13 Confidentiality. Each Purchaser acknowledges and agrees not to
use the Confidential Information (as hereafter defined) disclosed to him by the
Company for any purpose except as set forth in this Agreement. Each Purchaser
will not disclose any Confidential Information to any third party except those
directors, officers, employees, consultants and agents who are required to have
the information in order to carry out the purpose of this Agreement. Each
Purchaser also understands that certain of the Confidential Information may
constitute material non-public information and that trading in the Company's
securities while in possession of Confidential Information, recommending trading
in the Company's securities based upon Confidential Information or providing
Confidential Information to others who may trade in the Company's securities
could constitute a violation of federal securities laws and expose the Purchaser
to civil and criminal liability. Each Purchaser specifically acknowledges that
the Confidential Information is subject to the public disclosure requirements of
Regulation FD promulgated under the Securities Exchange Act of 1934, as amended,
and that the Company is specifically relying on each Purchaser's execution of,
and performance under, this Agreement in providing each Purchaser with the
Confidential Information in compliance with Regulation FD. "Confidential
Information" means any the information herein and any information, financial
data, research, technical data, or know-how disclosed to the Purchaser by the
Company, including, but not limited to, that which relates to services,
products, plans for future products and services, clients, markets, operational
methods, plans for future development, research, software, inventions,
processes, designs, drawings, engineering, hardware configuration information,
marketing, financial information, know-how and other trade secrets. Confidential
Information does not include information, technical data or know-how that the
Purchaser can show: (i) was rightfully in the possession of the Purchaser at the
time of disclosure; (ii) becomes a matter of public knowledge, not as a result
of any inaction or action of the Purchaser; or (iii) was received from a third
party without a duty or confidentiality.
Executed as of the date first written above.
COMPANY:
OLYMPIC CASCADE FINANCIAL CORPORATION
By:_____________________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Chief Executive Officer
10