Exhibit 4.7
EAGLE FAMILY FOODS HOLDINGS, INC.
SUBSCRIPTION AGREEMENT
January 23, 1998
GE PRIVATE PLACEMENT PARTNERS II,
A LIMITED PARTNERSHIP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
WARBURG, ▇▇▇▇▇▇ VENTURES, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇
Gentlemen:
This letter is being written for the purpose of setting forth the
basic terms of the understandings between Eagle Family Foods Holdings, Inc., a
Delaware corporation (the "Company"), and you in connection with the purchase by
you and sale by the Company of shares of common stock, par value $0.01 per
share, of the Company (the "Common Stock") and Series A Non-Voting Preferred
Stock, par value $0.01 per share ("Preferred Stock") as set forth below.
If you are in agreement with the terms and conditions set forth
herein, please sign the last page of one copy of this letter and return it to
us, whereupon this letter shall represent a legally binding agreement between us
and shall supersede any prior agreement between you and the Company or any third
party as regards the sale and purchase of stock of the Company. Please keep the
other copy of this letter for your files.
1. AUTHORIZATION OF CAPITAL STOCK. The Company has authorized the
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creation of (i) 1,200,000 shares of Common Stock and (ii) 1,000,000 shares of
Preferred Stock. The terms, limitations and relative rights and preferences of
the Common Stock and Preferred Stock are set forth in the Amended and Restated
Certificate of Incorporation of the Company (the "Certificate of
Incorporation").
2. PURCHASE AND SALE OF SHARES.
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(a) Subject to the terms and conditions hereof, on the Closing Date,
as defined herein, the Company shall issue to you and you shall purchase from
the Company, the number of shares of Common Stock and Preferred Stock
(collectively, the "Shares") set forth opposite your name on Schedule I hereto
for the amount per share in cash set forth on Schedule I hereto (the "Purchase
Price").
(b) Such issuance and purchase shall be effected by the Company
executing and delivering to you duly executed certificates evidencing the Shares
to be subscribed by you, duly registered in your name against delivery by you to
the Company of the amounts set forth opposite your name on Schedule I. Such
payment shall be made by wire transfer.
(c) The closing of the sale shall take place concurrently with the
closing of the acquisition of the ▇▇▇▇▇▇ Brands North America business by the
Company's wholly-owned subsidiary, Eagle Family Foods, Inc., pursuant to the
Asset Purchase Agreement dated as of November 24, 1997, as amended as of
December 9, 1997 and January 15, 1998 (as so amended, the "Asset Purchase
Agreement"), among ▇▇▇▇▇▇ Foods Corporation, BFC Investments, L.P. and the
Company (the "Closing Date").
(d) On the Closing Date, the Company shall deliver to you such
officers' certificates, good standing certificates, instruments and opinions as
you shall reasonably request relating to the transactions contemplated hereby.
3. RESTRICTIONS ON STOCK. None of the Shares (including any shares
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received as a result of dividends, splits or any other forms of recapitalization
in respect of such Shares) shall be Transferred (as hereinafter defined), either
voluntarily or involuntarily, directly or indirectly, except (i) pursuant to an
effective registration under the Securities Act (as hereinafter defined), or in
a transaction which, in the opinion of counsel reasonably satisfactory to the
Company, qualifies as an exempt transaction under the Securities Act and the
rules and regulations promulgated thereunder and (ii) in accordance with the
terms of the Stockholders Agreement, dated as of the Closing Date, by and among
the Company, each of you and the Management Investors (as defined therein) (as
the same may be amended from time to time, the "Stockholders Agreement").
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4. WARRANTIES AND REPRESENTATIONS OF THE COMPANY
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The Company represents and warrants that:
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware. Annexed hereto as
Exhibits A and B, respectively, are true and complete copies of the Certificate
of Incorporation and the Bylaws as in effect on the date hereof.
(b) The Company has been recently formed to enter into the Asset
Purchase Agreement and to consummate the transactions contemplated thereby and
has not conducted any business other than in connection therewith and certain
start-up activities. As of the Closing Date, the Company will have no assets or
liabilities other than those incurred in connection with the Company's
incorporation and the Company's start-up activities, and those acquired or
assumed pursuant to the Asset Purchase Agreement and those acquired or incurred
in connection with the transactions contemplated thereby.
(c) The Board of Directors of the Company (the "Board") has
authorized the execution, delivery, and performance of this Agreement, and each
of the transactions contemplated hereby. No other corporate action is necessary
to authorize such execution, delivery and performance, and upon such execution
and delivery, this Agreement shall constitute a valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms. The
Board has authorized the issuance and delivery of the Shares in accordance with
this Agreement.
(d) The Shares to be issued and sold by the Company pursuant to this
Agreement, when issued in accordance with the provisions hereof, will be validly
issued by the Company, fully paid and nonassessable shares of the Company, and
no stockholder of the Company has any preemptive rights to subscribe for any
such Shares.
(e) The creation, authorization, issuance, offer and sale of the
Shares do not require any consent, approval or authorization of, or filing,
registration or qualification with, any governmental authority on the part of
the Company or the vote, consent or approval in any manner of the holders of any
Security (as hereinafter defined) of the Company as a condition to the execution
and delivery of this Agreement or the creation, authorization, issuance, offer
and sale of the Shares. The execution and delivery by the Company of this
Agreement and the performance by the Company of its obligations hereunder will
not violate (i) the terms and conditions of the Certificate of Incorporation or
the Bylaws of the Company, or any agreement or instrument to which the Company
is a party or by which it is
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bound or (ii) subject to the accuracy of your representations and warranties
contained in Section 5 hereof, any federal or state law.
5. INVESTOR REPRESENTATIONS
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You represent and warrant that:
(a) Offering Exemption. You understand that the Shares have not been
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registered under the Securities Act, nor qualified under any state securities
laws, and that they are being offered and sold pursuant to an exemption from
such registration and qualification based in part upon your representations
contained herein.
(b) Knowledge of Offer. You are familiar with the business and
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operations of the Company and have been given the opportunity to obtain from the
Company all information that you have requested regarding its business plans and
prospects.
(c) Knowledge and Experience; Ability to Bear Economic Risks. You
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have such knowledge and experience in financial and business matters that you
are capable of evaluating the merits and risks of the investment contemplated by
this Agreement; and you are able to bear the economic risk of this investment in
the Company (including a complete loss of this investment).
(d) Limitations on Disposition. You recognize that no public market
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exists for the Shares, and none will exist in the future (other than as set
forth in the Registration Rights Agreement). You understand that you must bear
the economic risk of this investment indefinitely unless your Shares are
registered pursuant to the Securities Act or an exemption from such registration
is available, and unless the disposition of such Shares is qualified under
applicable state securities laws or an exemption from such qualification is
available, and that the Company has no obligation or present intention of so
registering the Shares (other than as set forth in the Registration Rights
Agreement). You further understand that there is no assurance that any exemption
from the Securities Act will be available, or, if available, that such exemption
will allow you to Transfer any or all the Shares, in the amounts, or at the
times you might propose. You understand at the present time Rule 144 promulgated
under the Securities Act by the Securities and Exchange Commission ("Rule 144")
is not applicable to sales of the Shares because they are not registered under
Section 12 of the Exchange Act (as hereinafter defined) and there is not
publicly available the information concerning the Company specified in Rule 144.
You further acknowledge that the Company is not presently under any obligation
to register under Section 12 of the Exchange Act
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or to make publicly available the information specified in Rule 144 and that it
may never be required to do so. You further acknowledge the restrictions on
disposition and other terms set forth in the Stockholders Agreement.
(e) Investment Purpose. You are acquiring the Shares solely for your
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own account for investment and not with a view toward the resale, Transfer, or
distribution thereof, nor with any present intention of distributing the Shares.
No other Person (as hereinafter defined) has any right with respect to or
interest in the Shares to be purchased by you, nor have you agreed to give any
Person any such interest or right in the future.
(f) Capacity. You have full power and legal right to execute and
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deliver this Agreement and to perform your obligations hereunder.
SECTION 6. COVENANTS
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(a) Conduct of Business and Maintenance of Existence. The Company
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will continue to engage in business of the same general type as will be
conducted by it on the Closing Date, and preserve, renew and keep in full force
and effect its corporate existence and take all reasonable action to maintain
all rights, privileges and franchises necessary or desirable in the normal
conduct of its business.
(b) Compliance with Laws. The Company will comply in all material
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respects with all applicable laws, rules, regulations and orders except where
the failure to comply would not have a material adverse effect on the business,
properties, operations, prospects or financial condition of the Company.
(c) Insurance. The Company will maintain insurance with responsible
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and reputable insurance companies or associations in such amounts and covering
such risks as is usually carried by companies of similar size and credit
standing engaged in similar business and owning similar properties, provided
that such insurance is and remains available to the Company at commercially
reasonable rates.
(d) Keeping of Books. The Company will keep proper books of record
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and account, in which full and correct entries shall be made of all financial
transactions and the assets and business of the Company in accordance with
generally accepted accounting principles.
(e) Lost, etc. Certificates Evidencing Shares (or Shares of Common
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Stock); Exchange. Upon receipt by the Company of evidence reasonably
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satisfactory to it of the loss, theft,
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destruction or mutilation of any certificate evidencing any Shares owned by you,
and (in the case of loss, theft or destruction) of an unsecured indemnity
satisfactory to it, and upon reimbursement to the Company of all reasonable
expenses incidental thereto, and upon surrender and cancellation of such
certificate, if mutilated, the Company will make and deliver in lieu of such
certificate a new certificate of like tenor and for the number of shares
evidenced by such certificate which remain outstanding. Your agreement of
indemnity shall constitute an indemnity satisfactory to the Company for purposes
of this Section 6. Upon surrender of any certificate representing any Shares for
exchange at the office of the Company, the Company at its expense will cause to
be issued in exchange therefor new certificates in such denomination or
denominations as may be requested for the same aggregate number of Shares
represented by the certificate so surrendered and registered as such holder may
request. The Company will also pay the cost of all deliveries of certificates
for such shares to you (including the cost of insurance against loss or theft in
an amount satisfactory to the holders) upon any exchange provided for in this
Section 6.
(f) Termination. The provisions of this Section 6 (other than
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Section 6(e), which shall survive) shall remain in effect until the closing of
an Initial Public Offering (as defined in the Stockholders Agreement).
7. SECURITIES ACT RESTRICTIONS. In addition to the legend required by
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Section 1(a) of the Stockholders Agreement, the certificates evidencing the
Shares will bear the following legend reflecting the restrictions on the
transfer of such securities contained in this Agreement:
"The securities evidenced hereby have not been registered under the
Securities Act of 1933, as amended (the "Act"), and may not be transferred
except pursuant to an effective registration under the Act or in a
transaction which, in the opinion of counsel reasonably satisfactory to the
Company, qualifies as an exempt transaction under the Act and the rules and
regulations promulgated thereunder."
8. OTHER AGREEMENTS. On the Closing Date, the Company and each of you
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shall execute and mutually deliver a counterpart of the Stockholders Agreement
and the Registration Rights Agreement.
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9. INTERPRETATION OF THIS AGREEMENT
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(a) Terms Defined. As used in this Agreement, the following terms
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have the respective meaning set forth below:
Exchange Act: the Securities Exchange Act of 1934, as amended.
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Person: an individual, partnership, joint-stock company,
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corporation, limited liability company, trust or unincorporated organization,
and a government or agency or political subdivision thereof.
Registration Rights Agreement: that certain registration rights
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agreement, dated as of the Closing Date, by and among the Company, each of you,
the Management Investors and the other Investors identified therein.
Securities Act: the Securities Act of 1933, as amended.
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Security, Securities: as defined in Section 2(1) of the
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Securities Act.
Transfer: any sale, assignment, pledge, hypothecation, or other
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disposition or encumbrance.
(b) Directly or Indirectly. Where any provision in this Agreement
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refers to action to be taken by any Person, or which such Person is prohibited
from taking, such provision shall be applicable whether such action is taken
directly or indirectly by such Person.
(c) Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of New York applicable to contracts
made and to be performed entirely within such State.
(d) Section Headings. The headings of the sections and subsections of
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this Agreement are inserted for convenience only and shall not be deemed to
constitute a part thereof.
SECTION 10 MISCELLANEOUS
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(a) Notices. All communications under this Agreement shall be in
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writing and shall be delivered by hand or facsimile or mailed by overnight
courier or by registered mail or certified mail, postage prepaid:
(i) if to GEI, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ (Fax No.:
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(▇▇▇) ▇▇▇-▇▇▇▇, or at such other address or facsimile number as GEI
may have furnished the other parties hereto in writing;
(ii) if to Warburg, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇▇▇ (Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇, or at such other
address or facsimile number as Warburg may have furnished the other
parties hereto in writing;
(iii) if to the Company, to Eagle Family Foods Holdings, Inc., ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇
▇▇▇▇, Esq. (Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇), or at such other address or
facsimile number as the Company may have furnished the other parties
hereto in writing.
(b) Any notice so addressed shall be deemed to be given: if delivered
by hand or facsimile, on the date of such delivery, if a business day, otherwise
the first business day thereafter; if mailed by courier, on the first business
day following the date of such mailing; and if mailed by registered or certified
mail, on the third business day after the date of such mailing.
(c) Advances; Expenses and Taxes. (i) The Company agrees to (A) pay
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the reasonable fees and disbursements of Coopers & ▇▇▇▇▇▇▇ LLP, ▇▇▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, and such other counsel, consultant or
advisor as shall have been engaged by you, incurred in connection with the
negotiation, preparation, execution and delivery of the Asset Purchase
Agreement, the debt and equity financing and offering documents related thereto,
this Agreement, the Stockholders Agreement, the Registration Rights Agreement,
the Certificate of Incorporation and the other instruments and agreements
entered into pursuant to this Agreement or such other agreements, and any
amendments to the same and the due diligence activities related to the Asset
Purchase Agreement and (B) reimburse each of you for all the out of pocket
expenses incurred or advanced by you or by your respective counsel, consultants,
advisors or agents on behalf of the Company in connection with the start-up
activities of the Company, said payment or reimbursement to be made no later
than thirty (30) days after a ▇▇▇▇ for such advances, fees and/or disbursements
has been sent to the Company.
(ii) The Company will pay, and save and hold each of you harmless
from any and all liabilities (including interest and penalties) with respect to,
or resulting from any delay or failure in paying, stamp and other taxes (other
than income taxes), if any, which may be payable or determined to be payable on
the execution and delivery or acquisition of the Shares.
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(d) Reproduction of Documents. This Agreement and all documents
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relating thereto, including, without limitation, (i) consents, waivers and
modifications relating hereto which may hereafter be executed, (ii) documents
received by you on the Closing Date (except for certificates evidencing the
Shares themselves), and (iii) financial statements, certificates and other
information previously or hereafter furnished to you, may be reproduced by you
by any photographic, photostatic, microfilm, micro-card, miniature photographic
or other similar process and you may destroy any original document so
reproduced. All parties hereto agree and stipulate that any such reproduction
shall be admissible in evidence as the original itself in any judicial or
administrative proceeding (whether or not the original is in existence and
whether or not such reproduction was made by you in the regular course of
business) and that any enlargement, facsimile or further reproduction of such
reproduction shall likewise be admissible in evidence.
(e) Survival. All warranties, representations, and covenants made by
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you and the Company herein or in any certificate or other instrument delivered
by one of you or the Company under this Agreement shall be considered to have
been relied upon by the Company or you, as the case may be, and shall survive
all deliveries to you of the Shares, or payment to the Company for such Shares,
regardless of any investigation made by the Company or one of you, as the case
may be, or on the Company's or your behalf. All statements in any such
certificate or other instrument shall constitute warranties and representations
by the Company hereunder.
(f) Successors and Assigns; No Third Party Beneficiaries. This
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Agreement shall inure to the benefit of and be binding upon the successors and
assigns of each of the parties. Nothing in this Agreement shall confer upon any
Person not a party to this Agreement any rights or remedies of any nature or
kind whatsoever under or by reason of this Agreement.
(g) Entire Agreement; Amendment and Waiver. This Agreement, the
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Registration Rights Agreement, the Stockholders Agreement and the Certificate of
Incorporation constitute the entire understandings of the parties hereto and
supersede all prior agreements or understandings with respect to the subject
matter hereof among such parties. This Agreement may be amended, and the
observance of any term of this Agreement may be waived, with (and only with) the
written consent of the Company and each of you.
(h) Severability. In the event that any part or parts of this
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Agreement shall be held illegal or unenforceable by any court or administrative
body of competent jurisdiction, such
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determination shall not effect the remaining provisions of this Agreement which
shall remain in full force and effect.
(i) Obligations Several. Notwithstanding anything to the contrary
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contained in this Agreement, each of your representations and warranties,
covenants and other agreements under this Agreement shall be several, but not
joint.
(j) Limitation on Enforcement of Remedies. The Company hereby agrees
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that it will not assert against the limited partners of either of you any claim
it may have under this Agreement by reason of any failure or alleged failure by
either of you to meet its obligations hereunder.
(k) Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
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Please indicate your acceptance and approval of the foregoing in
the space provided below.
EAGLE FAMILY FOODS HOLDINGS, INC.
By: /s/ ▇▇▇▇ O'▇. ▇▇▇▇▇▇
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ACCEPTED AND APPROVED
AS OF THE 23RD DAY OF
JANUARY, 1998
GE INVESTMENT PRIVATE PLACEMENT
PARTNERS II, A LIMITED PARTNERSHIP
By: GE Investment Management
Incorporated, its General
Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
WARBURG, ▇▇▇▇▇▇ VENTURES, L.P.
By: Warburg, ▇▇▇▇▇▇ & Co., its
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇
Title: Partner
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SCHEDULE I
PURCHASES OF SHARES
Number of Price Per Number of Price Per
Shares of Share of Shares of Share of
Preferred Preferred Common Common
Name of Subscriber Stock Stock Stock Stock
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GE INVESTMENT PRIVATE
PLACEMENT PARTNERS II, A 404,075 $100.00 400,034.25 $1.00
LIMITED PARTNERSHIP
WARBURG, ▇▇▇▇▇▇ VENTURES, 404,075 $100.00 400,034.25 $1.00
L.P.
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EXHIBIT A
CERTIFICATE OF INCORPORATION
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EXHIBIT B
BY-LAWS
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