EXHIBIT 10.1
AGREEMENT
This AGREEMENT is made and entered into as of July 31, 2003, by and
among MARKET CENTRAL, INC., a Delaware corporation ("Buyer"); ODYSSEY CAPITAL,
LLC; EDWARD C. GAIENNIE; PAUL ODOM; J. DAVID CABELLO; STUART SCHUBE; THE
MENIKOFF FAMILY PARTNERSHIP; JOHN J. BARRY III; R. DOUGLAS PARKER; EDDY J.
ROGERS, JR.; EDDY J. ROGERS, JR., as agent for Andrews & Kurth L.L.P.; THE
GUNTHER 1993 FAMILY TRUST; WALLACE TECHNOLOGIES, LTD.; SUBRAMANIAN AKILESWAR;
ROBIE CHILDERS; and DENNIS KOTLAR (collectively, the "Senior Debt Holders");
and COE F. MILES, J.D., Ph. D., ("Miles" and collectively with Odyssey Capital,
LLC and Eddy J. Rogers, Jr., as agent for Andrews & Kurth, L.L.P., the
"Professional Services Creditors"). The Senior Debt Holders and the
Professional Services Creditors are sometimes hereinafter referred to
collectively as the "Discharging Creditors." Subramanian Akileswar, Robie
Childers and Dennis Kotlar are sometimes hereinafter referred to collectively
as the "Cash Recipients."
WITNESSETH:
WHEREAS, the Senior Debt Holders are the holders of those
certain 12% Promissory Notes (the "Bridge Notes") issued by Pliant
Technologies, Inc., a Delaware corporation ("Seller") and secured pursuant to
that certain Security Agreement, dated as of March 13, 2003, between Seller and
R. Douglas Parker (successor to David Cabello), as Collateral Agent, as amended
(the "Security Agreement"); and
WHEREAS, the Professional Services Creditors have provided
professional services to Seller in connection with the transactions
contemplated by the Purchase Agreement, and, as a result, Seller owes to each
of them the respective amount set forth opposite such Professional Services
Creditor's name on Exhibit A attached hereto and by this reference incorporated
herein (such amounts owed, collectively, the "Professional Services
Obligations"); and
WHEREAS, pursuant to that certain Asset Purchase Agreement,
of even date herewith, by and between Buyer and Seller (the "Purchase
Agreement"), Buyer shall, at the Closing (as defined in the Purchase
Agreement), assume Seller's obligation to discharge (a) the indebtedness owed
to the Senior Debt Holders pursuant to the Bridge Notes (the "Bridge Note
Indebtedness"), and (b) the Professional Services Obligations; and
WHEREAS, Buyer, the Senior Debt Holders and the Professional
Services Creditors wish to provide for the discharge of the Bridge Note
Indebtedness and the Professional Services Obligations, and the release of any
and all security interests held by or on behalf of the Senior Debt Holders or
the Professional Services Creditors with respect to the Purchased Assets (as
defined in the Purchase Agreement);
NOW, THEREFORE, for and in consideration of the premises, the
mutual covenants contained herein, and other good and valuable consideration,
the receipt, adequacy and sufficiency of which are hereby acknowledged, the
parties hereto covenant and agree as follows:
ARTICLE I
Discharge of Bridge Note Indebtedness and Professional Services Obligations
1.1 Cancellation of Bridge Note Indebtedness; Release of Security
Interests. At the Closing, each Discharging Creditor that is not a Cash
Recipient (collectively, the "Securities Recipients") shall (a) accept the
Discharge Consideration payable to such party pursuant to Section 1.2 below in
full satisfaction and settlement of the Bridge Note Indebtedness and/or the
Professional Services Obligations owed to such party; (b) execute and deliver
to Buyer a cancellation of indebtedness evidencing the repayment in full of the
Professional Services Obligation owed to such Discharging Creditor and/or the
Bridge Note Indebtedness represented by the Bridge Note(s) held by such
Discharging Creditor, as the case may be, in form and substance reasonably
satisfactory to Buyer; (c) execute and deliver to Buyer a written release of
any and all security interests held by or on behalf of such Discharging
Creditor in any of the Purchased Assets (collectively, the "Security
Interests"); (d) execute and deliver to Buyer to such further instruments as
Buyer may reasonably request to terminate or cancel any financing statement or
other document previously filed by or on behalf of the Discharging Creditors
(or any of them) to perfect such Security Interests. Each Cash Recipient shall
take the actions described in (a)-(d) above at the Cash Payment Closing (as
defined below).
1.2 Discharge Consideration. The aggregate consideration to be
paid by Buyer for the cancellation of the Bridge Note Indebtedness and the
Professional Services Obligations shall include the following (collectively,
the "Discharge Consideration"):
(a) 228,351 shares (the "Consideration Shares") of the
Common Stock, par value $.001 per share, of Buyer ("Buyer Common Stock"), which
shall be issued to the Discharging Creditors pursuant to Section 1.3 below, in
accordance with the allocation set forth on Schedule 1.2, as a payment against
the Professional Services Obligations and/or as a repayment of the Bridge Note
Indebtedness, as the case may be;
(b) Warrants to acquire an aggregate of 182,681 shares
of Buyer Common Stock, at an exercise price of $2.00 per share (the
"Consideration Warrants"), which shall be issued to the Discharging Creditors
at the Closing, in accordance with the allocation set forth on Schedule 1.2, as
a payment against the Professional Services Obligations and/or as a repayment
of the Bridge Note Indebtedness, as the case may be. The Consideration Warrants
shall be issued in the form of Exhibit 1.2(b) attached hereto; and
(c) An amount in cash equal to the amount required to
pay the outstanding principal amount of the Bridge Notes held by the Cash
Recipients, and all accrued but unpaid interest thereon as of the Cash Payment
Closing, which shall be paid by Buyer to the Cash Recipients at the Cash
Payment Closing, according to the face amounts of the Bridge Notes held by each
of them respectively. The Buyer shall set a date, time and place for the "Cash
Payment Closing," which date shall be on or before the ninetieth (90th) day
following the Closing, and shall give notice of such date, time and place no
later than three (3) days prior to the Cash Payment Closing.
1.3 Issuance of Consideration Shares. At the Closing, Buyer shall
issue to its transfer agent an irrevocable instruction (the "Transfer Agent
Instruction") to issue the Consideration Shares to the Securities Recipients
according to the distribution set forth on Schedule 1.2. All certificates
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issued in the names of the Securities Recipients representing any of the
Consideration Shares shall bear the following restrictive legend:
"THE SECURITIES EVIDENCED HEREBY WERE ISSUED AND SOLD WITHOUT
REGISTRATION UNDER THE FEDERAL SECURITIES ACT OF 1933, AS AMENDED (THE
"FEDERAL ACT"), OR THE SECURITIES LAWS OF ANY STATE, IN RELIANCE UPON
CERTAIN EXEMPTIVE PROVISIONS OF SAID ACTS. SAID SECURITIES CANNOT BE
SOLD OR TRANSFERRED UNLESS SUCH SALE OR TRANSFER IS MADE: (1) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE FEDERAL ACT OR
PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION; AND (2) IN A
TRANSACTION WHICH IS EXEMPT UNDER APPLICABLE STATE SECURITIES LAWS OR
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH LAWS, OR IN
A TRANSACTION WHICH IS OTHERWISE IN COMPLIANCE WITH SUCH LAWS."
1.4 Escrow of Discharge Consideration. At the Closing, Andrews &
Kurth, L.L.P., Buyer and each of the Securities Recipients shall enter into an
Escrow Agreement in form of Exhibit 1.4 (the "Escrow Agreement") and all of the
Discharge Consideration to be issued to the Securities Recipients pursuant to
Section 1.2 above (collectively, the "Escrowed Securities") shall be deposited
with Andrews & Kurth, L.L.P., as Escrow Agent under the Escrow Agreement, as
security for the indemnification obligations of the Securities Recipients
pursuant to this Agreement. Accordingly, the Transfer Agent Instruction shall
provide (i) that the Consideration Shares be represented by a separate
certificate issued in the name of the Securities Recipient to whom such stock
is issuable pursuant to Section 1.2 above, (ii) that each such certificate bear
the following legend (in addition to the legend set forth in Section 1.3
above): "THE SHARES REPRESENTED HEREBY ARE SUBJECT TO CERTAIN RIGHTS OF OFFSET
IN FAVOR OF THE ISSUER AND MAY NOT BE TRANSFERRED EXCEPT WITH THE CONSENT OF
THE ISSUER", and (iii) that each such certificate be deposited with Andrews &
Kurth, L.L.P. to be held pursuant to that certain Escrow Agreement of even date
herewith by and among Andrews & Kurth, L.L.P., Buyer and the Securities
Recipients (the "Escrow Agreement"). At the Closing, the Securities Recipients
shall each deliver to Andrews & Kurth, L.L.P., as Escrow Agent, proper
instruments of transfer relating to the Consideration Shares issued in such
Securities Recipient's name, duly executed in blank to be held by Andrews &
Kurth, L.L.P. pursuant to the terms of the Escrow Agreement. In the event any
Securities Recipient defaults on such Securities Recipient's indemnification
obligations pursuant to this Agreement, Buyer shall be entitled to cancel a
number of such Securities Recipient's Escrowed Securities having an Indemnity
Value (as defined in Section 6.6 below) equal to the amount in default or any
portion thereof; provided that such cancellation shall not affect Buyer's right
to recover any remaining amount from such Securities Recipient pursuant to
Article VI of this Agreement. In such event, Buyer shall be entitled to receive
the certificates representing such Escrowed Securities and any related
instruments of transfer from the escrow under the Escrow Agreement, for the
purpose of effecting such cancellation. Any Escrowed Securities remaining in
escrow under the Escrow Agreement on the first (1st) anniversary of the Closing
Date (the "Escrow Release Date"), shall be released on the Escrow Release Date,
unless a Notice of Claim (as defined in Article VI below) shall have been
delivered by Buyer prior to such date and the claims set forth in such Notice
of Claim shall not have been finally resolved prior to such date, in which case
such remaining Escrowed Securities shall be released promptly following the
final resolution of all such
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claims. Upon the proper release from the escrow to the Securities Recipients of
any certificates representing the Consideration Shares, Buyer shall cause the
legend described in clause (ii) above to be removed from each of the
certificates representing the Consideration Shares.
ARTICLE II
Representations and Warranties of the Discharging Creditors
As an inducement to Buyer to enter into this Agreement and to
consummate the transactions contemplated hereby, and with the knowledge that
Buyer shall rely thereon, each Discharging Creditor hereby represents and
warrants to Buyer the following (as of the date hereof, as of the Closing and,
if applicable, as of the Cash Payment Closing):
2.1 Authority; Binding Effect. Such Discharging Creditor has full
power, authority and legal capacity to execute and deliver this Agreement and
the other agreements, certificates and instruments required to be executed and
delivered by such Discharging Creditor hereunder (collectively, the
"Discharging Creditor Documents") and to carry out the transactions
contemplated hereby and thereby. This Agreement and each of the Discharging
Creditor Documents are valid and binding agreements of such Discharging
Creditor enforceable against such Discharging Creditor in accordance with their
respective terms.
2.2 Approvals; Non-Contravention. No consent, authorization or
approval of, or declaration, filing or registration with, any governmental or
regulatory authority, nor any consent, authorization or approval of any other
third party is necessary in order to enable such Discharging Creditor to enter
into and perform his, her or its respective obligations under this Agreement or
any of the Discharging Creditor Documents. Neither the execution and delivery
of this Agreement or any of the Discharging Creditor Documents nor the
consummation of the transactions contemplated hereby or thereby will:
(a) conflict with, require any consent under, result in
the violation of or constitute a breach of any provision of the certificate of
incorporation or the bylaws of Seller or the charter documents, bylaws,
partnership agreement, operating agreement or any similar governing document of
such Discharging Creditor;
(b) conflict with, require any consent under, result in
the violation of, constitute a breach of or accelerate the performance required
on the part of Seller or such Discharging Creditor by the terms of, any
contract or evidence of indebtedness to which Seller or such Discharging
Creditor is a party, including, without limitation, any contract, mortgage or
deed of trust creating a Lien (as defined in the Purchase Agreement) to which
any of the Purchased Assets is subject, or permit the termination of any such
contract by another person, in each case, with or without notice or lapse of
time or both;
(c) result in the creation or imposition of any Lien
upon, or restriction on the use of, any of the Purchased Assets under any
contract to which Seller or such Discharging Creditor is bound;
(d) accelerate, or constitute an event entitling, or
which would, on notice or lapse of time or both, entitle the holder of any
indebtedness of Seller or such Discharging Creditor to accelerate the maturity
of any such indebtedness;
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(e) conflict with or result in the breach or violation
of any writ, judgment, order, injunction, decree or award of any court or
governmental body or agency or arbitration tribunal that is binding on Seller
or such Discharging Creditor; or
(f) constitute a violation by Seller or such Discharging
Creditor of any applicable statute, law, regulation or court order.
2.3 Alienation. Such Discharging Creditor, has not sold,
transferred, conveyed, pledge, hypothecated or granted a security interest in
the Bridge Note Indebtedness or the Professional Services Obligation, as the
case may be, owed to such Discharging Creditor, or any interest therein.
2.4 Collateral Agent. Such Discharging Creditor, if a Senior Debt
Holder, represents and warrants that R. Douglas Parker is the Collateral Agent
under the Security Agreement, and any instrument executed by him in such
capacity in relation to the Security Agreement is and will be binding on each
of the Senior Debt Holders as if executed by each of them personally.
2.5 Purchase for Investment. Such Discharging Creditor (if a
Securities Recipient) is acquiring the Consideration Shares and Consideration
Warrants issuable to such Discharging Creditor hereunder (the "Applicable
Securities") for investment for such Discharging Creditor's own account, not on
behalf of others and not with a view to resell or otherwise distribute such
stock in a transaction that would be in violation of the securities laws of the
United States or any state thereof.
2.6 Absence of Registration. Such Discharging Creditor (if a
Securities Recipient) acknowledges that the Applicable Securities have not been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
or under any state securities laws and, therefore, cannot be resold unless
registered under the Securities Act and applicable state securities laws or
unless an exemption from such registration is available and, as a result, such
Discharging Creditor must bear the risk of an investment in the Applicable
Securities for an indefinite period of time.
2.7 Investor Status. Such Discharging Creditor, if a Securities
Recipient, represents and warrants that all information regarding such
Discharging Creditor's financial condition and such Discharging Creditor's
knowledge and experience in investment and business matters provided to Buyer
by such Discharging Creditor on the Investor Questionnaire completed and
executed by such Discharging Creditor, is true, correct and complete in all
material respects. The financial condition of such Discharging Creditor (if a
Securities Recipient) is currently adequate to bear the substantial economic
risk of an investment in the Applicable Securities. Such Discharging Creditor
(in conjunction with a "purchaser representative" within the meaning of
Regulation D under the Securities Act of 1933, as amended (the "Securities
Act"), if applicable), if a Securities Recipient, has sufficient knowledge and
experience in investment and business matters to understand the economic risks
of such an investment and the risks involved in a commercial enterprise such as
Buyer.
2.8 No General Solicitation; State of Residence. Such Discharging
Creditor (if a Securities Recipient) acknowledges that (a) neither Buyer nor
any person acting on its behalf has offered or sold any of the Applicable
Securities by means of any form of general solicitation or general advertising;
and (b) none of the Applicable Securities were offered or sold to such
Discharging Creditor by means of publicly disseminated advertisements or sales
literature. Such Discharging Creditor (if a Securities Recipient), if an
individual, is a bona fide resident of the State set forth below such
Discharging Creditor's signature hereto, and if other than individual,
maintains
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its principal place of business in the State set forth below such Discharging
Creditor's signature hereto, and all communications and information, written or
oral, concerning the Applicable Securities and this Agreement have been
directed to such Discharging Creditor and have been received by such
Discharging Creditor in such State.
2.9 Access to Information. Such Discharging Creditor (if a
Securities Recipient) has received and carefully read Buyer's Proxy Statement
dated January 13, 2003, Buyer's most recent Annual Report on Form 10-KSB for
the fiscal year ended August 31, 2002, Buyer's Quarterly Report on Form 10-QSB
for the quarter ended November 30, 2002, Buyer's Quarterly Report on Form
10-QSB for the quarter ended February 28, 2003, Buyer's Current Report on Form
8-K dated February 5, 2003 (as amended) and Buyer's Current Report on Form 8-K
dated April 3, 2003 (as amended), each filed with the Securities and Exchange
Commission (the "SEC") pursuant to the Securities Exchange Act of 1934 (the
"Exchange Act"), as amended. Such Discharging Creditor (if a Securities
Recipient) acknowledges that (a) Buyer has informed such Discharging Creditor
that, on April 3, 2003, Buyer acquired all of the capital stock of U.S.
Convergion, Inc. ("Convergion") pursuant to the terms of that certain Stock
Purchase Agreement dated April 3, 2003, by and among Buyer and the shareholders
of Convergion named therein (the "Convergion Purchase Agreement"); (b) the
Convergion Purchase Agreement and the schedules and exhibits thereto contain
material, non-public information regarding Buyer and Convergion; and (c) such
Discharging Creditor has received and had an opportunity to carefully review a
copy of the Convergion Purchase Agreement and the schedules and exhibits
thereto. Such Discharging Creditor (if a Securities Recipient) acknowledges
that the Form 8-K dated April 3, 2003 (as amended) filed by Buyer with the SEC
does not include financial statements of Convergion as an acquired business as
required by the terms of Form 8-K, since preparation of those financial
statements has not yet been completed. Such Discharging Creditor (if a
Securities Recipient) has had the opportunity to ask questions of, and receive
answers from, officers of Buyer concerning Buyer, its subsidiaries (including,
without limitation Convergion), its business (including, without limitation,
that portion of its business conducted through Convergion) and the Applicable
Securities and to obtain any additional information which such Discharging
Creditor reasonably requested. Such Discharging Creditor (if a Securities
Recipient) understands that Buyer will rely upon the statements made by such
Discharging Creditor in this Article III for purposes of establishing and
relying upon an exemption from the registration requirements of the Securities
Act for the issuance of the Consideration Shares and the Consideration
Warrants.
2.10 Professional Services Creditors. If such Discharging Creditor
is a Professional Services Creditor, such Professional Services Creditor
represents and warrants that the Professional Services Obligation owed to such
Professional Services Creditor, which is being paid in full pursuant to this
Agreement, represents an amount owed by Seller for services rendered to Seller
by such Professional Services Creditor in connection with the negotiation and
consummation of the transactions contemplated by the Purchase Agreement and
does not represent any amount owed for services rendered in connection with any
other transaction or matter.
ARTICLE III
Representations and Warranties of Buyer
As an inducement to the Discharging Creditors to enter into this
Agreement and to consummate the transactions contemplated hereby, and with the
knowledge that the Discharging Creditors shall rely
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thereon, Buyer hereby represents and warrants to the Discharging Creditors the
following (as of the date hereof and as of the Closing):
3.1 Corporate Status and Good Standing. Buyer is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, with full corporate power and authority under its
certificate of incorporation and by-laws to own and lease its properties and to
conduct its business as the same exists at the date hereof.
3.2 Authorization. Buyer has full corporate power and authority
under its certificate of incorporation and by-laws and has taken, or as of the
Closing will have taken, all necessary corporate action to authorize the
execution and delivery of this Agreement, and the consummation of the
transactions contemplated hereby, and this Agreement constitutes the valid and
binding obligation of Buyer enforceable in accordance with its terms.
3.3 Non-Contravention. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby does or
will violate, conflict with, result in a breach of any material provision of,
constitute a default under, result in the termination of or permit any third
party to terminate (with or without notice, lapse of time or pursuant to any
legal or equitable principle) or accelerate the performance required on the
part of Buyer by the terms of, or accelerate the maturity of or require the
prepayment of any indebtedness of Buyer under, any judgment, order, decree or
material agreement or instrument to or by which Buyer or any of its assets is
subject or bound.
3.4 Capitalization; Validity of Consideration Shares. The capital
structure of Buyer as set forth on Schedule 3.4 annexed hereto accurately
reflects the capital structure of Buyer as of the date of this Agreement. All
of the Consideration Shares will be, at the time of issuance and delivery, duly
authorized, validly issued, fully paid and non-assessable.
ARTICLE IV
Covenants
4.1 Pre-Closing Covenant. From the date hereof to the Closing
Date, each Discharging Creditor shall use his, her or its best efforts to cause
Seller to perform and satisfy each covenant of Seller contained in the Purchase
Agreement that is to be performed at or prior to the Closing and each condition
precedent to the Buyer's obligation to consummate the transactions contemplated
therein.
4.2 Exclusive Dealing. During the period beginning on the date
hereof and ending on July ___, 2003 (the "Exclusivity Period"), the Discharging
Creditors shall refrain, and shall cause each of their respective
representatives, directors, officers, stockholders, agents or affiliates to
refrain, from (i) entertaining or discussing a possible sale, merger,
recapitalization or other disposition of Seller, any capital stock or assets of
Seller or any interest therein with any other party or provide any information
to any other party in connection therewith, or (ii) disclose to any other party
the contents of this Agreement or the details of the transactions proposed
herein.
4.3 Further Assurances; Post-Closing Covenant. Each of the
Discharging Creditors covenants and agrees that from and after the Closing each
will execute, deliver and acknowledge (or cause to be executed, delivered and
acknowledged), from time to time at the request of Buyer and
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without further consideration, all such further instruments and take all such
further action as may be reasonably necessary or appropriate to transfer more
effectively to Buyer, or to perfect or record Buyer's title to or interest in
or to enable Buyer to use, the Purchased Assets, or otherwise to confirm or
carry out the provisions and intent of this Agreement and the Purchase
Agreement. From and after the Closing, each Discharging Creditor shall use his,
her or its best efforts to cause Seller to perform or respect, each covenant of
Seller contained in the Purchase Agreement.
4.4 Covenant of Cash Recipients. Each Cash Recipient hereby
covenants and agrees that, from the date hereof until the Cash Payment Closing,
such Cash Recipient shall not sell, transfer, convey, pledge, hypothecate or
grant a security interest in the Bridge Note Indebtedness owed to such Cash
Recipient, or any interest therein. Each Cash Recipient further agrees that,
for a period of ninety (90) days following the date hereof, such Cash Recipient
shall not exercise, and shall cause its agents to refrain from exercising, any
remedies such Cash Recipient (or such agents) may have for a default under the
Bridge Notes, the Security Agreement or any other documents relating to the
Bridge Note Indebtedness owed to such Cash Recipient.
ARTICLE V
Conditions Precedent to the Obligation of Buyer to Consummate Transactions
The obligation of Buyer to consummate the transactions contemplated by
this Agreement is subject, at Buyer's option, to the fulfillment on or prior to
the Closing Date of the following conditions, any one or more of which may be
waived by Buyer only in writing:
5.1 Representations and Covenants. The representations and
warranties of each Discharging Creditor contained in this Agreement shall be
true on and as of the Closing Date with the same force and effect as though
made on and as of the Closing Date. Each Discharging Creditor shall have
performed and complied in all material respects with all covenants and
agreements required by this Agreement to be performed or complied with by such
Discharging Creditor on or prior to the Closing Date. At the Closing, the
Discharging Creditors shall have delivered to Buyer a certificate to such
effect.
5.2 Litigation. No action, suit or proceeding shall have been
instituted before any court or governmental or regulatory body, or instituted
or threatened against by any governmental or regulatory body, to restrain,
modify or prevent the carrying out of the transactions contemplated by this
Agreement or to seek damages or a discovery order in connection with such
transactions. At the Closing, the Discharging Creditors shall have delivered to
Buyer a certificate to such effect.
5.3 Closing of the Purchase Agreement. Each of the conditions
precedent to Buyer's obligation to consummate the transactions contemplated by
the Purchase Agreement shall have been satisfied and such transactions shall
have been consummated in accordance with the terms of the Purchase Agreement.
5.4 Conditions to Cash Payment Closing. In addition to the
foregoing, the obligation of Buyer to make the payments provided for under
Section 1.2(c) above is subject, at Buyer's option, to the fulfillment on or
prior to the Cash Payment Closing of the following conditions, any one or more
of which may be waived by Buyer only in writing:
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(a) The representations and warranties of each Cash
Recipient contained in this Agreement shall be true on and as of the Cash
Payment Closing with the same force and effect as though made on and as of the
date of the Cash Payment Closing. Each Cash Recipient shall have performed and
complied in all material respects with all covenants and agreements required by
this Agreement to be performed or complied with by such Cash Recipient at or
before the Cash Payment Closing. At the Cash Payment Closing, the Discharging
Creditors shall have delivered to Buyer a certificate to such effect.
(b) No action, suit or proceeding shall have been
instituted before any court or governmental or regulatory body, or instituted
or threatened against by any governmental or regulatory body, to restrain,
modify or prevent the carrying out of the transactions contemplated by this
Agreement or to seek damages or a discovery order in connection with such
transactions.
ARTICLE VI
Survival of Representations and Warranties; Indemnification
6.1 Survival of Representations and Warranties. The
representations and warranties of any party hereto set forth in this Agreement
shall survive the Closing for a period of one (1) year. Any claim any party
makes against another in writing prior to the expiration of such two-year
period shall survive the expiration of such period and the party asserting the
claim shall have the right to pursue the same in accordance with the applicable
indemnification provisions provided for in this Agreement. This Article VI
shall provide the sole and exclusive remedy for any and all damages, claims,
losses, liabilities or expenses arising out of or relating to this Agreement or
the transactions contemplated herein provided, however, the provisions of this
Section 6.1 shall not in any manner diminish, restrict or otherwise limit any
party's right to obtain either (i) a remedy in addition to the indemnification
provided for in this Article VI, with respect to any breach or violation or
failure to fully perform, any covenant, agreement, undertaking or obligation of
any party set forth in this Agreement based on or arising out of fraud,
fraudulent inducement or intentional misrepresentation, or (ii) injunctive or
other provisional relief as necessary or appropriate.
6.2 Joint and Several Indemnity Agreement of the Senior Debt
Holders. The Discharging Creditors shall, jointly and severally, defend,
indemnify and hold harmless Buyer and its directors, officers, employees,
agents, affiliates, successors and assigns (the "Buyer Indemnified Parties")
from and against any and all damages, fines, fees, penalties, deficiencies,
losses and expenses (including without limitation interest, court costs, fees
of attorneys, accountants and other experts or other expenses of litigation or
other proceedings or of any claim, default or assessment) ("Losses") suffered,
incurred or sustained by any of them or to which any of them becomes subject,
resulting from, arising out of or relating to:
(a) any breach of any representation or warranty on the
part of Seller contained in the Purchase Agreement or any misrepresentation in
or omission on the part of Seller contained in any certificate furnished or to
be furnished to Buyer by Seller pursuant to the Purchase Agreement;
(b) any breach or non-fulfillment on the part of Seller
of any covenant contained in the Purchase Agreement;
(c) any failure of Seller to convey to Buyer good and
marketable title to the Purchased Assets, free and clear of all Liens;
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(d) Seller's failure to timely satisfy, perform or
discharge any liability or obligation of Seller that is not an Assumed
Liability under the Purchase Agreement; or
(e) any claims with respect to brokers' or finders' fees
due with respect to the transactions contemplated in the Purchase Agreement and
alleged to arise from any contract entered into by Seller.
6.3 Individual Indemnity Agreement of Each Discharging Creditor.
Each Discharging Creditor shall, defend, indemnify and hold harmless the Buyer
Indemnified Parties from and against any and all Losses suffered, incurred or
sustained by any of them or to which any of them becomes subject, resulting
from, arising out of or relating to:
(a) any breach of any representation or warranty or
non-fulfillment of any covenant or agreement on the part of such Discharging
Creditor contained in this Agreement, or any misrepresentation in or omission
from or non-fulfillment of any covenant on the part of such Discharging
Creditor contained in any certificate furnished or to be furnished to Buyer by
such Discharging Creditor pursuant to this Agreement; or
(b) any claims with respect to brokers' or finders' fees
due with respect to the transactions contemplated herein or in the Purchase
Agreement and alleged to arise from any contract entered into by such
Discharging Creditor.
6.4 Buyer's Indemnity Agreement. Buyer shall, defend, indemnify
and hold harmless the Discharging Creditors from and against any and all Losses
suffered, incurred or sustained by any of them or to which any of them becomes
subject, resulting from, arising out of or relating to:
(a) any breach of any representation or warranty or
non-fulfillment of any covenant or agreement on the part of Buyer contained in
this Agreement, or any misrepresentation in or omission from or non-fulfillment
of any covenant on the part of Buyer contained in any certificate furnished or
to be furnished to the Discharging Creditors by Buyer pursuant to this
Agreement; or
(b) any claims with respect to brokers' or finders' fees
due with respect to the transactions contemplated herein or in the Purchase
Agreement and alleged to arise from any contract entered into by Buyer.
6.5 Indemnification Procedure.
(a) With respect to any claim for indemnification under
this Agreement, the party seeking indemnification (the "Indemnitee") shall
promptly notify the indemnifying party hereunder (the "Indemnitor") in writing
of any damage, claim, loss, liability or expense or other matter which the
Indemnitee has determined has given or could give rise to a claim for which
indemnification rights are granted hereunder (such written notice referred to
as the "Notice of Claim"). The Notice of Claim shall specify, in reasonable
detail, the nature and estimated amount of any such claim giving rise to a
right of indemnification, to the extent the same can reasonably be estimated.
Any failure on the part of an Indemnitee to give timely notice to the
Indemnitor of a claim shall not affect the right of the Indemnitee to obtain
indemnification from the Indemnitor with respect to such claim unless the
Indemnitor is actually harmed by such failure to notify, and then only to the
extent of such actual harm.
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(b) With respect to any matter set forth in a Notice of
Claim relating to a third party claim, the Indemnitor shall defend, in good
faith and at its expense, any such claim or demand, and the Indemnitee, at its
expense, shall have the right to participate in the defense of any such third
party claim. So long as the Indemnitor is defending any such third party claim
in good faith, the Indemnitee shall not settle or compromise such third party
claim. The Indemnitee shall make available to the Indemnitor or its
representatives all records and other materials reasonably required by them for
use in contesting any third party claim and shall cooperate fully with the
Indemnitor in the defense of all such claims. If the Indemnitor does not defend
any such third party claim or if the Indemnitor does not provide the Indemnitee
with prompt and reasonable assurances that the Indemnitor will satisfy the
third party claim, the Indemnitee may, at its option, elect to defend any such
third party claim, at the Indemnitor's expense. An Indemnitor may not settle or
compromise any claim without obtaining a full and unconditional release of the
Indemnitee, unless the Indemnitee consents in writing to such settlement or
compromise. Notwithstanding the foregoing, if there is a reasonable probability
that a third party claim for which Buyer has indemnification rights against any
Discharging Creditor hereunder will materially and adversely affect Buyer other
than as a result of money damages or other payments, Buyer shall be entitled to
conduct the defense of such claim at the expense of such Discharging Creditor.
6.6 Limits on Indemnification.
(a) Following the Closing, the aggregate indemnification
obligation of each Securities Recipient under Sections 6.2 and 6.3 shall be
limited to the greater of (i) the aggregate value, as of the Closing Date, of
the Consideration Shares and Consideration Warrants received by such
Discharging Creditor pursuant to Section 1.2 above; or (ii) the aggregate value
of such Consideration Shares and Consideration Warrants as of the date the
first claim for indemnification is made by Buyer against such Discharging
Creditor (the "Indemnity Value"). For purposes of this Article VI, (A) the
value of each Consideration Share shall be equal to the average closing price
of a share of Buyer Common Stock as quoted on the OTC Bulletin Board (or as
reported on such exchange or quotation system on which shares of Buyer Common
Stock are then traded) over the five trading days immediately preceding the
date of determination (provided that, if shares of Buyer Common Stock are not
then quoted or reported on any such exchange or quotation system, then such
value shall be determined by the arbitrator appointed pursuant to Section 9.11
below), and (B) the value of each Consideration Warrant shall be equal to the
amount by which the value of the shares of Buyer Common Stock underlying such
Consideration Warrant (at the price determined under clause (A) above) exceeds
the exercise price that would be payable if such Consideration Warrant were
exercised on the date of determination. Following the Closing, the aggregate
indemnification obligation of each Cash Recipient under Sections 6.2 and 6.3
shall be limited to the amount received by such Cash Recipient pursuant to
Section 1.2(c) above. The aggregate indemnification obligation of Buyer under
Section 6.4 shall be limited to an amount equal to $500,000, minus the
aggregate amount Buyer has previously paid in satisfaction of its
indemnification obligations contained in the Purchase Agreement.
(b) Notwithstanding the foregoing, the limitations set
forth in this Section 6.6 shall not apply to fraudulent misrepresentations or
intentional misconduct.
(c) In the event any payment of the indemnity
obligations of the Securities Recipients set forth in Sections 6.2 and 6.3 is
required to be made, the Securities Recipients may satisfy such indemnity
obligation by the delivery to Buyer of shares of Buyer Common Stock acquired by
them pursuant to this Agreement or pursuant to the Consideration Warrants,
which
11
shares, for such purpose, shall be valued at the Indemnity Value thereof. Such
delivery shall be accomplished, if at all, by delivery of original stock
certificates and appropriate stock transfer powers executed in blank with
Medallion signature guarantees, and otherwise in a form acceptable to Buyer's
then current transfer agent. The number of shares of Buyer Common Stock any
Securities Recipient may use to satisfy such indemnity obligations shall not
exceed the number of shares of Buyer Common Stock acquired by such Securities
Recipient pursuant to this Agreement or pursuant to the Consideration Warrants,
minus the number of shares of Buyer Common Stock sold by such Securities
Recipient following the date of this Agreement. In addition, the Securities
Recipient may satisfy such indemnity obligation by surrendering to Buyer
Consideration Warrants for cancellation with respect to all or a portion of the
shares of Buyer Common Stock issuable thereunder. Upon such cancellation, the
Securities Recipients shall be entitled to a credit against such indemnity
obligation in an amount equal to the Indemnity Value of the shares with respect
to which such Consideration Warrants are cancelled, less the aggregate exercise
price that would be payable with respect to such shares if such Consideration
Warrants were exercised with respect with respect to such shares on the date as
of the date used to determine the Indemnity Value. It is understood and agreed
that, if any Securities Recipient surrenders to Buyer for cancellation in
accordance with this subsection (c) all of the Consideration Shares and all of
the Consideration Warrants received by such Securities Recipient pursuant to
this Agreement, such Securities Recipient shall have no further liability
pursuant to this Article VI.
ARTICLE VII
Covenants Against Competition
7.1 Restrictive Covenants. To induce Buyer to enter into this
Agreement and consummate the transactions contemplated hereby, each Discharging
Creditor covenants and agrees with Buyer that, if the transactions contemplated
hereby are closed, each will not for a period of three (3) years following the
Closing Date:
(a) Within the Territory (as hereinafter defined),
engage in any Competitive Activity (as hereinafter defined); or
(b) Directly or indirectly solicit the employment of, or
encourage to leave the employment of Buyer or any of its affiliates, any
employee of Buyer or any of its affiliates who was an employee of Seller
immediately prior to the Closing.
7.2 Nondisclosure of Confidential Information. To induce Buyer to
enter into this Agreement and consummate the transactions contemplated hereby,
each Discharging Creditor covenants and agrees with Buyer that, if the
transactions contemplated herein are closed, such Discharging Creditor will not
disclose or use or otherwise exploit for his, her or its own benefit or for the
benefit of any other person or entity any Confidential Information (as
hereinafter defined). The covenant contained in this Section 7.2 shall survive
for a period of five (5) years following the Closing Date; provided, however,
that with respect to those items of Confidential Information which constitute
trade secrets under applicable law, the obligations of confidentiality and
nondisclosure as set forth in this Section 7.2 shall continue to survive after
said five (5) year period to the greatest extent permitted by applicable law.
These rights of Buyer are in addition to those rights Buyer has under the
common law or applicable statutes for the protection of trade secrets.
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7.3 Remedies. The Discharging Creditors acknowledge that
irreparable loss and injury would result to Buyer upon any breach of any of the
covenants contained in Section 7.1 or Section 7.2 and that damages arising out
of such breach would be difficult to ascertain. The Discharging Creditors agree
that, in addition to all the remedies provided at law or at equity, Buyer may
petition and obtain, without bond, from a court of law or equity both temporary
and permanent injunctive relief to prevent a breach by any of the Discharging
Creditors of any such covenant.
7.4 Blue-Penciling. If any court determines that any one or more
of the restrictive covenants contained in Section 7.1 or 7.2, or any part
thereof, is unenforceable because of the duration of such provision or the
territory or activities covered thereby, such court shall have the power to
reduce the duration or the territory or prohibited activities of such
provision, and, in its reduced form, such provisions shall then be enforceable
and shall be enforced.
7.5 Definitions. For purposes of this Article VII the following
terms shall have the meanings set forth below:
(a) The term "Confidential Information" shall mean and
include all information, data and know-how of Seller which is purchased and
transferred to Buyer pursuant to the terms of the Purchase Agreement or relates
to the Business (as defined in the Purchase Agreement) including without
limitation, administrative procedures, sales or marketing programs or
techniques, payment plans, existing or new products of the business purchased
by Buyer from Seller under the Purchase Agreement, unpublished list of current
or prospective customers, information relating to the solicitation of customers
for the Business purchased by Buyer, pricing, quotations, manufacturing
techniques, software (source or object code), diagrams, mask works, or know-how
and any other information (whether or not constituting a trade secret) not
generally known by businesses competitive with the Business which has value to
Buyer in its operation of the Business. Confidential Information shall not
include any data or information that has been voluntarily disclosed to the
public by Buyer (except where such public disclosure has been made without
authorization), or that has been independently developed and disclosed by
others, or that otherwise enters the public domain by means other than by
breach of this Agreement by the Discharging Creditors or their respective
affiliates or by breach of the Purchase Agreement by Seller.
(b) The term "Competitive Activity" shall mean and
include any activity in which a Senior Debt Holder directly or indirectly owns,
manages, operates, controls, is employed by (either as an employee or an
independent contractor) or participates in the ownership, management, operation
or control, of any business (other than the business of Buyer or its successors
or assigns) that is competitive with the Business as conducted by Seller at any
time during two-year period ending on the Closing Date.
(c) The term "Territory" shall mean and include all
geographic areas located in the following states: Texas, California, Georgia,
North Carolina, Louisiana, Arkansas and Florida.
ARTICLE VIII
Termination
8.1 Termination. This Agreement will terminate automatically upon
any termination of the Purchase Agreement, unless earlier terminated by written
agreement of the parties hereto.
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8.2 Effect of Termination. If this Agreement is terminated
pursuant to Section 8.1 above, then except as otherwise provided herein, all
further obligations of the parties under or pursuant to this Agreement shall
immediately terminate without further liability of any party to the others;
provided, however, that (i) nothing in this Section 8.2 shall relieve the
liability or obligations hereunder of any party (the "Defaulting Party") to the
other party or parties (each, a "Non-Defaulting Party") on account of a breach
by the Defaulting Party of any covenant, agreement, representation or warranty
of the Defaulting Party contained herein; and (ii) the provisions of Section
9.1 (relating to publicity) and Section 9.4 (relating to expenses) shall
survive any such termination.
ARTICLE IX
Miscellaneous
9.1 Publicity. Except as otherwise required by law (including
compliance with applicable bulk transfer laws), no Discharging Creditor shall
issue any press release or make any other public statement prior to Closing, in
each case relating to, or in connection with, or arising out of this Agreement,
the Purchase Agreement, or the matters contained herein or therein, without
obtaining the prior written approval of Buyer as to the contents and manner of
presentation and publication thereof. Anything in this Agreement to the
contrary notwithstanding, each of the Discharging Creditors may, at any time
after the execution and delivery hereof or the public announcement of the
transactions contemplated hereby, disclose to any and all persons without
limitation of any kind the tax treatment and tax structure of the transactions
contemplated hereby and all materials of any kind (including opinions or other
tax analyses) that are provided to any of them relating to such tax treatment
or tax structure; provided, however, that any such information relating to the
tax treatment or tax structure shall be kept confidential to the extent
necessary to comply with any and all federal or state securities laws that may
be applicable to Buyer. For this purpose, "tax structure" is limited to any
facts relevant to the U.S. federal income tax treatment of the transactions
contemplated hereby and does not include information relating to the identity
of the parties.
9.2 Knowledge. Where any representation or warranty contained in
this Agreement is expressly qualified by reference to the knowledge,
information and belief of an individual, such individual confirms that he or
she has made due and diligent inquiry as to the matters that are the subject of
such representations and warranties. As used in this Agreement, the terms
"knowledge", "information" and "belief", with respect to an entity or
organization, means the actual knowledge, information or belief, as the case
may be, after due inquiry of each of its officers, directors, managers,
shareholders, partners and members.
9.3 Defined Terms; Gender. Capitalized terms used herein, unless
otherwise defined herein, shall have the respective meanings given to such
terms in the Purchase Agreement. All pronouns and any variations thereof refer
to the masculine, feminine or neuter, singular or plural, as the identity of
the person or persons may require.
9.4 Expenses. Except as otherwise specifically provided herein,
Buyer and the Discharging Creditors shall pay their own respective expenses,
including the fees and disbursements of their respective counsel in connection
with the negotiation, preparation and execution of this Agreement and the
consummation of the transactions contemplated hereby.
9.5 Entire Agreement. This Agreement, including all schedules and
exhibits hereto, constitutes the entire agreement of the parties with respect
to the subject matter hereof, and may not
14
be modified, amended or terminated (other than pursuant to Section 8.1 above)
except by a written instrument specifically referring to this Agreement signed
by the party to be so bound by such modification, amendment or termination.
9.6 Waivers and Consents. All waivers and consents given
hereunder shall be in writing. No waiver by any party hereto of any breach or
anticipated breach of any provision hereof by any other party shall be deemed a
waiver of any other contemporaneous, preceding or succeeding breach or
anticipated breach, whether or not similar, on the part of the same or any
other party.
9.7 Notices. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given only if
delivered personally or by facsimile transmission or mailed (first class
postage prepaid) to the parties at the following addresses or facsimile
numbers:
If to Buyer, to:
Market Central, Inc.
3109 Crossing Park Road
Norcross, GA 30071
Facsimile: (770) 840-2071
Attention: Glen H. Hammer, Chairman
With a copy in like manner (which shall not constitute
notice) to:
Smith, Gambrell & Russell, LLP
1230 Peachtree Street, N.E.
Suite 3100, Promenade II
Atlanta, Georgia 30309-3592
Facsimile: (404) 685-6832
Attention: A. Jay Schwartz, Esq.
If to any Discharging Creditor, to the address or facsimile
number (if any) set forth below his signature to this
Agreement.
All such notices, requests and other communications will (a) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (b) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (c) if delivered by
mail in the manner described above to the address as provided in this Section,
be deemed given upon receipt (in each case regardless of whether such notice,
request or other communication is received by any other Person to whom a copy
of such notice, request or other communication is to be delivered pursuant to
this Section). Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice specifying such change to the other parties hereto.
9.8 Rights of Third Parties. All conditions of the obligations of
the parties hereto, and all undertakings herein, are solely and exclusively for
the benefit of the parties hereto and their successors and assigns, and no
other person or entity shall have standing to require satisfaction of
15
such conditions or to enforce such undertakings in accordance with their terms,
or be entitled to assume that any party hereto will refuse to consummate the
purchase and sale contemplated hereby in the absence of strict compliance with
any or all thereof, and no other person or entity shall, under any
circumstances, be deemed a beneficiary of such conditions or undertakings, any
or all of which may be freely waived in whole or in part, by mutual consent of
the parties hereto at any time, if in their sole discretion they deem it
desirable to do so.
9.9 Headings. The Article and Section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
9.10 Governing Law. Except as expressly provided below, the
interpretation and construction of this Agreement, and all matters relating
hereto, shall be governed by the internal laws of the State of Georgia;
provided, however, that the parties acknowledge that O.C.G.A. ss. 11-6-101, et
seq., shall not apply with respect to any of the Purchased Assets not located
in the State of Georgia on the Closing Date. Notwithstanding the foregoing, the
interpretation and construction of the non-competition and confidentiality
covenants of the Discharging Creditors set forth in Article VII above shall be
governed by the internal laws of the State of Texas.
9.11 Arbitration.
(a) Any controversy or claim arising out of or relating
to this Agreement shall be settled by arbitration to be held at the office of
the American Arbitration Association ("AAA") in Atlanta, Georgia, U. S. A. The
arbitration shall be conducted in accordance with the United States Arbitration
Act (9 U.S.C. ss. 1 et seq.) and the AAA Commercial Arbitration Rules then in
effect; provided, however, that the parties agree that any arbitration shall be
conducted under AAA's expedited procedures then in effect, regardless of the
amount in controversy. Each party may be represented by counsel in such
arbitration proceeding. AAA shall select one (1) neutral arbitrator to conduct
such arbitration proceeding. The parties agree to request the arbitrator to
render a written decision within three (3) months of the request for
arbitration or within two (2) months after appointment of the arbitrator,
whichever is earlier. To the extent permitted under applicable law, such award
shall be final and binding upon both parties. Any costs, fees or expenses
incident to enforcing the award shall, to the maximum extent permitted by law,
be charged against the party resisting such enforcement. Judgment upon an award
rendered by the arbitrator may be entered in any court of competent
jurisdiction, or application may be made to such court for a judicial
acceptance of the award and an order of enforcement, as the law of such
jurisdiction may require or allow. The costs and expenses of the arbitration
proceedings, including attorney's fees, shall be borne by the losing party to
the arbitration or, at the discretion of the arbitrator, may be allocated among
the parties to properly reflect any partial prevailing or losing of the parties
to the arbitration, as determined by the arbitrator.
(b) Notwithstanding subsection (a) above to the
contrary, any party may seek temporary or preliminary injunctive relief against
the other party in any court of proper jurisdiction, pending the outcome of any
arbitration proceeding.
9.12 Parties in Interest. Buyer may transfer and assign this
Agreement and its rights hereunder without the consent of any Discharging
Creditor. Except as expressly stated above, this Agreement may not be
transferred, assigned, pledged or hypothecated by any party hereto, other than
by operation of law or with the written consent of the other parties hereto.
This Agreement shall be
16
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, successors and permitted assigns.
9.13 Counterparts. This Agreement may be executed in two or more
counterparts, any of which may be executed and delivered by facsimile, all of
which taken together shall constitute one instrument.
9.14 Time of the Essence. Time shall be of the essence with
respect to the performance of any obligation or duty hereunder.
9.15 Severability. In case any provision in this Agreement shall
be held invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof will not in any way be
affected or impaired thereby.
[Signatures begin on following page]
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IN WITNESS WHEREOF, the parties have executed this Agreement, under
seal, as of the date first above written.
"BUYER"
MARKET CENTRAL, INC.
By: /s/ Glen H. Hammer
------------------------------------
Name: Glen H. Hammer
Title: Chairman
Attest:
Secretary
[CORPORATE SEAL]
"DISCHARGING CREDITORS"
ODYSSEY CAPITAL, LLC
By: (SEAL)
------------------------------
Name:
----------------------------------
Title:
----------------------------------
Address:
-------------------------------
-------------------------------
-------------------------------
Fax:
---------------------------
(SEAL)
---------------------------------
EDWARD C. GAIENNIE
Address:
-------------------------------
-------------------------------
-------------------------------
Fax:
---------------------------
[Signatures continue on following page]
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/s/ Paul Odom (SEAL)
---------------------------------
PAUL ODOM
Address: 17023 Evergreen Elm Way
Houston, TX 77059
Fax: 281-488-6813
/s/ J. David Cabello (SEAL)
---------------------------------
J. DAVID CABELLO
Address: 20333 S.H. 249
Suite 600
Houston, TX
Fax: 832-446-2410
/s/ Stuart Schube (SEAL)
---------------------------------
STUART SCHUBE
Address: 6324 Rutgen
Houston, TX 77005
Fax: 713-666-8883
THE MENIKOFF FAMILY PARTNERSHIP
By: /s/ Peter Menikoff (SEAL)
------------------------------
Name: Peter Menikoff
Title: General Partner
Address: 3 Willowilk Circle
Houston, TX 77024
Fax: 713-977-5739
[Signatures continue on following page]
18
/s/ John J. Barry III (SEAL)
---------------------------------
JOHN J. BARRY III
Address: 5492 Cedar Creek Drive
Houston, TX 77056
Fax:
---------------------
/s/ R. Douglas Parker (SEAL)
---------------------------------
R. DOUGLAS PARKER
Address: 17007 Copper Shore Drive
Houston, TX 77095
Fax: 281-856-0329
/s/ Eddy J. Rogers, Jr. (SEAL)
---------------------------------
EDDY J. ROGERS, JR.
Address: 503 W. Forest Drive
Houston, TX 77079
Fax: 713-238-7419
/s/ Eddy J. Rogers (SEAL)
---------------------------------
EDDY J. ROGERS, as agent for Andrews
and Kurth, L.L.P
Address: 600 Travis, Suite 4200
Houston, TX
Fax: 713-238-7419
[Signatures continue on following page]
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THE GUNTHER 1993 FAMILY TRUST
By: /s/ Don J. Gunther (SEAL)
------------------------------
By: /s/ Rosemary T. Gunther (SEAL)
------------------------------
Name: Don J. Gunther
Rosemary T. Gunther
Title: Trustee
Address: 8665 Bay Colony Drive, #2204
Naples, FL 34108
Fax: 239-596-0889
WALLACE TECHNOLOGIES, LTD
By: /s/ Sidney Wallace (SEAL)
------------------------------
Name: Sidney Wallace
Title: General Partner
Address: 5124 Braeburn Drive
Bellaire, TX 77401-4902
Fax:
----------------------
/s/ Coe F. Miles (SEAL)
---------------------------------
COE F. MILES, J.D., PH.D.
Address: 11810 Mighty Redwood Drive
Houston, TX 77059
Fax: 281-488-4597
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(SEAL)
---------------------------------
SUBRAMANIAN AKILESWAR
Address:
-------------------------------
-------------------------------
-------------------------------
Fax:
---------------------------
(SEAL)
---------------------------------
ROBIE CHILDERS
Address:
-------------------------------
-------------------------------
-------------------------------
Fax:
---------------------------
(SEAL)
---------------------------------
DENNIS KOTLAR
Address:
-------------------------------
-------------------------------
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Fax:
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[End of Signatures]
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