EXHIBIT 10.3
SHAREHOLDERS' AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of the
first day of February, 1999, by and among IMAGE SENSING SYSTEMS, INC., a company
incorporated under the laws of the State of Minnesota ("ISS"); BERKELEY
DEVELOPMENT LIMITED, a company incorporated under the laws of the British Virgin
Islands ("BDL"); MATS JOHAN BILLOW, an individual residing in Hong Kong
("Billow"); GROVE PLACE LIMITED, a company incorporated under the laws of the
British Virgin Islands ("GPL"); ANTHONY H. GOULD, an individual residing in
Thailand ("Gould"); and MAX RESOURCES LIMITED, a company incorporated under the
laws of Hong Kong (the "Company"), (collectively, the "parties").
WHEREAS, ISS, which is in the business of developing, manufacturing and
selling traffic control products throughout the world, desires to expand its
business in Asia by acquiring a majority equity interest in the Company, which
is a distributor of traffic control products in Asia;
WHEREAS, BDL and Billow are the sole shareholders of the Company, each
owning one (1) ordinary share, and Billow is the sole shareholder of BDL;
WHEREAS, on and subject to the terms of a certain Subscription
Agreement by and among ISS, the Company, BDL and Billow (the "Subscription
Agreement"), which shall be signed concurrently with this Agreement, ISS shall
acquire six (6) ordinary shares of the Company;
WHEREAS, GPL, a consulting firm with expertise in selling traffic
control products in Asia, which is wholly owned by Gould, is willing to render
services to the Company, and the Company is willing to issue two (2) shares of
the Company to GPL and pay such other consideration to GPL as shall be agreed
upon by GPL, ISS and the Company; and
WHEREAS, the parties desire to protect their respective interests from
dilution and to provide a mechanism for the transfer and valuation of their
respective shares by entering into this Agreement;
NOW, THEREFORE, in consideration of the premises and the respective
covenants and commitments of the parties set forth herein, the parties hereby
agree as follows:
ARTICLE I
MANAGEMENT
1.1 Principal Management Responsibilities.
(a) Billow, pursuant to a certain Service Agreement with the Company
executed as of the date of this Agreement (the "Service Agreement"), shall be
appointed as General Manager of the Company and be responsible for the
management of the Company's day-to-day operations in the ordinary course of
business, subject to powers and duties reserved to the Board of Directors and
the shareholders under applicable law, the Company's Memorandum and Articles of
Association, and the terms and conditions of this Agreement. The Company shall
also enter into a consulting agreement with BDL under which BDL will provide
consulting services to the Company regarding operations outside of Hong Kong
(the "BDL Consulting Agreement").
(b) Gould, acting through GPL and under a certain Consultancy
Agreement dated as of December 1, 1998 between GPL and ISS (the "Consultancy
Agreement"), shall assist with the management of the Company in the manner
determined by mutual agreement of GPL and the Company. As partial compensation
to GPL for making Gould available to assist the Company, the Company shall
issue two (2) ordinary shares of Company to GPL, and GPL shall subscribe for
such shares, as soon as possible after the date of this Agreement. The Company
shall also negotiate a service agreement with GPL or ISS regarding services to
be provided to the Company by Gould.
1.2 Board of Directors. The Board of Directors of the Company shall
consist of five (5) persons, three (3) of whom shall be nominated by ISS, one
(1) of whom shall be nominated by GPL, and one (1) of whom shall be nominated
by BDL. The chairman of the Board of Directors shall at all times be selected
from among the directors nominated by ISS. The parties shall vote their shares
in a manner to ensure that each party's nominee(s) are elected as director(s).
1.3 Board Meetings. The Board of Directors shall annually determine
the timing, frequency and location for regularly scheduled meetings; provided,
however, that they shall meet at least once during each fiscal year. Any
meeting of the Board of Directors may be conducted by telephone or video
conference, provided that each of the directors can hear all of the other
directors. Any action to be taken by the Board of Directors may be taken
without a meeting if all members of the Board of Directors consent in writing
to such action. For purpose of conducting business, a quorum shall consist of
three (3) directors, including those attending by telephone conference. Special
meetings of the Board of Directors, if any, may be called by one of the
signatories hereto or by any director with not less than 30 days prior written
notice of any such meeting and the subject thereof. Only subjects proposed may
be acted upon at such special meetings, should any become necessary to the
conduct of the Company's business.
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ARTICLE II
FINANCE
2.1 Consolidation of Financial Statements. The parties understand
that it is desirable for ISS to be able to consolidate the operations of the
Company with those of ISS for financial statement reporting purposes. The
parties agree to cooperate with ISS to achieve this objective. Notwithstanding
any such cooperative action by the shareholders pursuant to a reasonable
request by ISS, no such action shall modify the effective ownership ratio of
20% to GPL, 20% to BDL and 60% to ISS for purpose of the election of directors,
the application of the valuation formula to the purchase of shares or the
distribution of dividends, including a final distribution of the proceeds of
liquidation, if any.
2.2 Fiscal Year End. It is understood that the current financial
year end for the Company is 30 September, 1999. The current financial year end
for ISS is 31 December, 1999. It may be desirable or, if required by ISS's
certified public accountants, necessary, to change the financial year of the
Company to coincide with that of ISS. Whether or not the Company's fiscal year
end is changed, for purposes of applying the valuation formula and termination
provisions in this Agreement, the first financial year of operations for the
Company shall be the eleven months ending 31 December, 1999. Subsequent years
shall be reported for the twelve-month period ending on the 31st of each
succeeding December.
2.3 Annual Budget. Prior to 30 November of each year, the Board of
Directors of the Company shall adopt a budget for the ensuing financial year.
2.4 Annual Audit. A certified accounting firm acceptable to ISS
shall conduct an annual audit of the financial statements and operations of the
Company. The audit shall be conducted as of 31 December of each year, or such
other date as may be requested by ISS in the event that the Company has a
financial year end other than 31 December.
2.5 Additional Capital Contributions. The parties may provide
additional working capital to the Company in the form of loans or advances,
subject to mutual agreement of the parties as to the terms of repayment.
Neither Gould nor Billow, nor their respective companies, shall be required to
make any such loans or advances.
ARTICLE III
CONFIDENTIALITY
3.1 Protection of Confidential Information. During the term of this
Agreement and for a period of five (5) years thereafter, each party shall
maintain in strict confidence all "Confidential Information" (as such term is
defined in Section 3.2 below) obtained from another party hereto. None of the
parties shall use, disclose or grant the use of such Confidential Information
except as expressly authorized by this Agreement, and shall procure that its
officers, directors, agents and employees maintain such Confidential
Information in strictest confidence. Each of the parties agrees
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to promptly notify the others if it is required by law or judicial authority to
disclose any Confidential Information of another party.
3.2 Confidential Information. For purposes of this Agreement, the
term "Confidential Information" shall mean, with respect to each of the
parties, information that is proprietary to it, including, without limitation,
patents, know-how, designs, formulas, processes, technology, manufacturing
information, specifications, plans, drawings and data, trade secrets,
inventions, discoveries, improvements and ideas or works of authorship or
other information relating to its business; information concerning any of its
past, current or possible future products or projects; information about its
research, development, purchasing, accounting, marketing, or selling of
products; and information concerning any of its past, current or possible
future customers or business prospects. Confidential Information shall not
include (a) any information lawfully in any person's possession prior to the
date of disclosure thereof by any other party, (b) any information which is in
the public domain or hereafter becomes a part thereof through no fault of the
person to whom such Confidential Information has been disclosed, (c) any
information that becomes available to a person on a non-confidential and lawful
basis from a source other than a party, or (d) any information disclosed from
one party to another that is expressed in writing by the disclosing party to be
non-confidential.
ARTICLE IV
SHARE TRANSFER RESTRICTIONS
4.1 Prohibition on Transfer. Except to the extent expressly
provided below in this Article IV, no party that is a shareholder of the
Company (hereinafter referred to in this Article IV as a "shareholder") may
directly or indirectly sell, pledge, charge, mortgage, encumber, assign or
otherwise transfer (collectively, "transfer") its shares in the Company without
the prior approval of the Board of Directors of the Company and unless and
until the rights of purchase conferred under this Article IV have been
exhausted. Each shareholder shall procure that the members of the Board of
Directors nominated by it in accordance with this Agreement shall take all such
action as shall be required to approve any transfer of the shares of the
Company in accordance with the terms of this Article IV and to prohibit any
purported transfer of the shares of the Company which does not comply with the
terms of this Article IV. Any attempted transfer of Company shares in a manner
contrary to the terms of this Article IV shall be null and void.
4.2 Issuance of Shares. The Company shall not issue or allot any
new shares without the unanimous consent of the parties.
4.3 First Refusal Rights. In the event any shareholder wishes to
transfer all or part of its shares in the Company pursuant to a bona fide
purchase offer from a third party, such shareholder shall first offer such
shares to the Company for repurchase on the same terms as the bona fide
purchase offer. If the Company fails to purchase all of the shares to be sold,
any remaining shares shall in turn be offered for sale to the remaining
shareholders in proportion to their then current ownership percentages in the
share capital of the Company. In the event the Company and/or the
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other shareholders do not acquire all of the shares offered, then the offering
shareholder shall be permitted to transfer such remaining shares to the bona
fide third party purchaser within ninety (90) days on the same terms presented
to the other shareholders. If the transfer is not completed within the 90-day
period, the requirements of this Section 4.3 shall once again apply.
4.4 Buy/Sell Provisions. In the event of termination of the
Consultancy Agreement, the Service Agreement or the BDL Consulting Agreement,
ISS shall purchase (or have the option to purchase), and Billow, BDL and/or
GPL, as the case may be, shall sell their shares of the Company in the manner
described below:
(a) If Billow terminates the Service Agreement or if BDL terminates
the BDL Consulting Agreement prior to 31 December 2000, ISS may purchase all of
BDL's shares of the Company at par value (HK$1.00 per share). If GPL terminates
the Consultancy Agreement prior to 31 December 2000, ISS may purchase all of
GPL's shares of the Company at par value (HK$1.00 per share).
(b) If the Company terminates the Service Agreement or the BDL
Consulting Agreement prior to 31 December 2000, ISS shall purchase all of BDL's
shares of the Company for US$200,000 (US$100,000 per share). If ISS terminates
the Consultancy Agreement prior to 31 December 2000, ISS shall purchase all of
GPL's shares of the Company for US$200,000 (US$100,000 per share).
(c) If Billow terminates the Service Agreement or if BDL terminates
the BDL Consulting Agreement between 1 January 2001 and 31 December 2001, ISS
shall purchase all of BDL's shares of the Company from BDL at the lesser of
US$200,000 or the Formula Price (as defined in Section 4.5 below). If GPL
terminates the Consultancy Agreement between 1 January 2001 and 31 December
2001, ISS shall purchase all of GPL's shares of the Company from GPL at the
lesser of US$200,000 or the Formula Price.
(d) If the Company terminates the Service Agreement or the BDL
Consulting Agreement between 1 January 2001 and 31 December 2001, ISS shall
purchase all of BDL's shares of the Company from BDL at the higher of
US$200,000 or the Formula Price. If ISS terminates the Consultancy Agreement
between 1 January 2001 and 31 December 2001, ISS shall purchase all of GPL's
shares of the Company at the higher of US$200,000 or the Formula Price.
(e) If the Service Agreement or the BDL Consulting Agreement, or
both, are terminated by the Company, BDL or Billow after 31 December 2001, ISS
shall purchase all of BDL's shares of the Company at the Formula Price. If the
Consultancy Agreement is terminated by either party after 31 December 2001, ISS
shall purchase all of GPL's shares of the Company at the Formula Price.
(f) If the Company terminates the Service Agreement or the BDL
Consulting Agreement at any time because Billow or BDL has been found guilty by
a court of a criminal offense or other offense that directly affects his or its
capacity to properly conduct his or its duties under the agreement, or if BDL
undergoes a change of control as defined in Section 6.2(b) below, ISS may
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purchase all of BDL's shares of the Company at par value. If ISS terminates the
Consultancy Agreement because Gould or GPL has been found guilty by a court of
such an offense, or if GPL undergoes a change of control as defined in Section
6.2(b) below, ISS may purchase all of GPL's shares of the Company at par value.
(g) ISS may purchase all shares of the Company owned by BDL at the
Formula Price in the event of the death or disability of Billow, or if Billow
or BDL files a petition of any type as to his or its bankruptcy, or is declared
bankrupt, becomes insolvent, makes an assignment for the benefit of creditors,
goes into liquidation or receivership or otherwise loses legal control of its
business or is wound up (an "Event of Bankruptcy"). BDL may require ISS to
purchase all shares of the Company owned by BDL at the Formula Price in the
event of the death or disability of Billow.
(h) ISS may purchase all shares of the Company owned by GPL at the
Formula Price in the event of the death or disability of Gould, or an Event of
Bankruptcy of Gould or GPL. GPL may require ISS to purchase all shares of the
Company owned by GPL at the Formula Price in the event of the death or
disability of Gould.
(i) For purposes of this Section 4.4, references to shares of the
Company owned by BDL shall also include any Company shares held by Billow
individually, and references to shares of the Company owned by GPL shall also
include any Company shares held by Gould individually.
(j) A party may exercise his or its right to purchase or sell shares
of the Company under this Section 4.4, as the case may be, by providing written
notice of such exercise (the "Notice of Exercise") to the other party or
parties within thirty (30) days after becoming aware of the event or events
giving rise to such right of purchase or sale. Except as otherwise provided in
Section 4.4(k), full payment for all purchases of shares under this Section 4.4
shall be made in cash within ten (10) business days after delivery of the
Notice of Exercise to the purchasing party, unless the price for such shares is
the Formula Price, in which case the purchase price shall be payable in two
installments. A first installment equal to 50% of the Company's reasonable
estimate of the Formula Price shall be payable within 10 business days after
delivery of the Notice of Exercise. The balance of the purchase price shall be
payable within ten (10) business days after completion of an audit of the
Company's results for the current calendar year by the Company's auditor. The
Company shall use its best efforts to complete the audit within ninety (90)
days after the Company's year end.
(k) If ISS elects or is obligated to purchase shares of the Company
from BDL or GPL hereunder, ISS may pay up to 50% of the purchase price by
issuing shares of ISS' common stock to BDL or GPL, as the case may be, with an
aggregate value equal to the portion of the purchase price not paid in cash.
The value of such ISS common shares shall be equal to the average closing price
of ISS common shares for the 20 trading days immediately preceding the date on
which the Notice of Exercise if delivered. ISS' rights under this Section
4.4(k) shall be available so long as ISS' common shares are traded on Nasdaq or
another recognized stock exchange in the United States.
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4.5 Formula Price. For purposes of this Agreement, the "Formula
Price" of shares of the Company shall be determined as follows:
(a) The fair market value of the Company for purposes of this Section
shall be computed in two parts. The first part shall be equal to average annual
sales over a three year period, multiplied by 150% and then divided by two,
which shall represent 50% of the formula value of the Company. The second part,
comprising the remaining 50% of the formula value of the Company, shall be
equal to the average annual profits before taxes over a three year period,
multiplied by ten, and then divided by two. In each instance, the three year
averaging period shall include the two years immediately preceding the
valuation date, plus the current year. Financial performance for the current
year shall be estimated pending completion of a year end audit and final
adjustments to the purchase price shall reflect the actual operating results
for the current year. For purposes of this formula, the current year shall be
that year during which an event requiring application of the formula occurs,
and annual profit shall not have a value less than zero.
(b) To determine the value of particular ownership interest, the sum
of the two valuation components shall be multiplied by the percentage ownership
of the Company which the shares in question represent.
4.6 Liquidation of the Company. No action shall be undertaken by any
party to cause the winding up or liquidation of the Company without the
unanimous consent of all of the parties.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1 Representations and Warranties of ISS. ISS represents and
warrants to the other parties as follows:
(a) ISS is duly organized and validly existing under the laws of the
State of Minnesota, has all requisite authority to carry on its business as now
being conducted, and is qualified to do business in each jurisdiction where the
nature of its activities would require such qualification.
(b) ISS has taken all action necessary for the authorization,
execution, delivery and performance of this Agreement, and when accepted by the
other parties hereto, this Agreement shall constitute a valid and binding
obligation, enforceable against it in accordance with its terms.
5.2 Representations and Warranties of Gould and GPL. Gould and GPL
represent and warrant to the other parties as follows:
(a) GPL is duly organized and validly existing under the laws of the
British Virgin Islands, has all requisite authority to carry on its business as
now being conducted, and is qualified to do business in each jurisdiction where
the nature of its activities would require such qualification.
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(b) GPL has taken all action necessary for the authorization,
execution, delivery and performance of this Agreement, and when accepted by the
other parties hereto, this Agreement shall constitute a valid and binding
obligation, enforceable against it in accordance with its terms.
(c) Gould is the beneficial owner of all of the issued and outstanding
shares of GPL.
5.3 Representations and Warranties of Billow and BDL. Billow and BDL
represent and warrant to the other parties as follows:
(a) Each of BDL and the Company is duly organized and validly
existing under the laws of the jurisdiction of its organization, has all
requisite authority to carry on it business as now being conducted, and is
qualified to do business in each jurisdiction where the nature of its
activities would require such qualification.
(b) Each of BDL and the Company has taken all action necessary for
the authorization, execution, delivery and performance of this Agreement, and
when accepted by the other parties hereto, this Agreement shall constitute a
valid and binding obligation, enforceable against it in accordance with its
terms.
(c) Billow is the beneficial owner of all of the issued and
outstanding shares of BDL.
5.4 Joint and Several Liability.
(a) For purposes of this Agreement, Gould and GPL shall be deemed one
and the same party and shall be jointly and severally liable for the
obligations of the other under this Agreement, and any breach by Gould or GPL
of any of his or its obligations hereunder shall be deemed a breach of both
Gould and GPL.
(b) For purposes of this Agreement, Billow and BDL shall be deemed
one and the same party and shall be jointly and severally liable for the
obligations of the other under this Agreement, and any breach by Billow or BDL
of any of his or its obligations hereunder shall be deemed a breach of both
Billow and BDL.
ARTICLE VI
TERMINATION
6.1 Term. This Agreement shall take effect on the date first above
written and shall continue in full force and effect until terminated in
accordance with Section 6.2 hereof.
6.2 Termination. Notwithstanding anything to the contrary contained
herein, this Agreement may be terminated in accordance with the following
provisions:
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(a) This Agreement may be terminated at any time by the mutual
agreement of the parties in writing; or
(b) The rights of BDL, Billow, GPL and/or Gould may be terminated by
ISS if BDL or GPL undergoes a change in control. For purposes of this Agreement,
"change of control" means the occurrence of any sale, transfer, pledge or other
encumbrance, the issuance of shares or any other event, including, without
limitation, merger or consolidation, which gives effective control, including
the ability to direct the management, of such party to any third party not
theretofore an affiliate of such party, or any sale of substantially all of the
assets of a party to a buyer that is not a direct or indirect subsidiary of
such party. For purposes of this Agreement, "affiliate" means mean any
association, corporation, partnership, limited liability company, trust or
other entity of any kind or nature whatsoever (excluding any individual) that
controls, is controlled by, or is under common control with a party hereto.
ARTICLE VII
MISCELLANEOUS
7.1 Disputes. Disagreements between any parties relating to this
Agreement that can not be resolved through mutual consultation shall be
submitted to arbitration. The place of arbitration shall be the Hong Kong
Special Administrative Region. An independent expert arbitrator shall be
appointed by a unanimous decision of the board of directors of the Company, or,
failing a unanimous decision of the board, by the Hong Kong Chamber of Commerce.
7.2 Governing Law and Construction. The validity, construction and
performance of this Agreement shall be governed by and be interpreted in
accordance with the laws of the Hong Kong Special Administrative Region.
7.3 Entire Agreement. This Agreement constitutes and expresses the
entire agreement between the parties relating to its subject matter, superseding
in all respects any and all prior oral or written agreements or understandings
between them pertaining to the transactions contemplated by this Agreement,
including without limitation the Letter of Intent dated January 28, 1999 by and
among ISS, BDL, Billow, GPL and Gould.
7.4 Amendment. This Agreement may be amended or modified only by a
written instrument executed by all the parties hereto.
7.5 Further Assurances. The parties agree to execute such other
instruments and documents and to take such other action as may be necessary to
effect the purposes of this Agreement.
7.6 Conflict with Memorandum and Articles of Association. In the
event of any conflict between the terms of this Agreement and the terms of the
Memorandum and Articles of Association of the Company, it is the intention of
the parties that the provisions of this Agreement shall prevail,
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and the shareholders hereby agree to exercise all voting and other rights and
powers available to them so as to give effect of the terms of this Agreement
and shall, if necessary, take all action necessary to amend the Memorandum and
Articles of Association so as to give effect to the intents and purposes of
this Agreement. As soon as reasonably possible after the execution of the
Agreement, the parties shall cause the Memorandum and Articles of Association
of the Company to be amended to conform to the terms of this Agreement.
7.7 Notices. Any notice or demand provided for hereunder shall be
deemed sufficiently given if sent by telex, telefax (facsimile), internationally
recognized courier or receipted mail (in each case prepaid) to the address
specified in writing by the party to which it is sent and shall be deemed
effective on the date of delivery specified in the telex, telefax (facsimile) or
the courier or mail receipt. Unless and until a party receives written notice to
the contrary from another party, it shall be entitled to consider the following
to be proper addresses of the other parties respectively:
As to ISS: Image Sensing Systems, Inc.
500 Spruce Tree Centre
1600 University Avenue West
St. Paul, Minnesota 55104-3825
U.S.A.
Attention: President
Telefax No.: 1-651-603-7795
As to GPL or Gould: Mr. Anthony H. Gould
ISS Asia Regional Office
99/49 Chuan Chuen Floraville
Paturn Thani 12000
Thailand
Telefax No.: 662-598-2780
As to the Company, MAX Resources Limited
BDL or Billow: 2001 Central Plaza
18 Harbour Road
Wanchai, Hong Kong
Attention: Mats Johan Billow
Telefax No.: 852-2827-0056
7.8 Waiver. No failure on the part of any party to exercise and no
delay in exercising any right or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise or any right or remedy
hereunder preclude any other or further exercise thereof or the exercise of any
other right or remedy granted hereby or by any related document or at law or in
equity.
7.9 Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and permitted assigns;
provided, however, that no party shall
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have the right to assign this Agreement in whole or in part without the prior
written consent of the other parties hereto, which consent may be granted or
withheld in the sole and absolute discretion of such other parties.
7.10 Severability. Wherever possible, each provision of this Agreement
and each related document shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this
Agreements or any related document, shall be prohibited by or invalid under
applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity without invalidating the remainder of such provision
or the remaining provisions of this Agreement or such related documents.
7.11 Distribution Agreement. Within thirty (30) days after the date of
this Agreement, ISS and the Company shall enter into a distribution agreement
under which ISS shall appoint the Company as the exclusive distributor of ISS
products in Asia; provided, that such an agreement will not conflict with the
Company's then-current distribution agreement with Peek Traffic Limited.
7.12 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
shall constitute together one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Shareholders'
Agreement as of the date set forth in the first paragraph.
IMAGE SENSING SYSTEMS, INC MAX RESOURCES LIMITED
By /s/ WILLIAM L. RUSSELL By /s/ MATS JOHAN BILLOW
------------------------- -----------------------
William L. Russell Mats Johan Billow
President and Chief Executive Officer President
BERKELEY DEVELOPMENT LIMITED
By /s/ MATS JOHAN BILLOW /s/ MATS JOHAN BILLOW
------------------------- ----------------------------
Mats Johan Billow MATS JOHAN BILLOW
President
GROVE PLACE LIMITED
By /S/ ANTHONY H. GOULD /S/ ANTHONY H. GOULD
------------------------- ----------------------------
Anthony H. Gould ANTHONY H. GOULD
President
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