1
EXHIBIT 10.7
PURCHASE AGREEMENT
dated as of October 22, 1998
between
REVENGE MARINE, INC.
and
BYC ACQUISITION CORPORATION
2
INDEX
1. PURCHASE AND SALE........................................................1
2. CLOSING..................................................................1
3. WARRANT..................................................................2
4. FEES.....................................................................5
5. REPRESENTATIONS AND WARRANTIES OF REVENGE................................7
6. REPRESENTATIONS AND WARRANTIES OF BYC....................................9
7. COVENANTS................................................................9
8. LEGEND..................................................................11
9. FEES AND EXPENSES.......................................................12
10. INDEMNIFICATION.........................................................12
11. SURVIVAL OF REPRESENTATIONS, WARRANTIES, ETC............................14
12. NOTICES.................................................................14
13. MISCELLANEOUS...........................................................14
SCHEDULES
- ---------
Schedule 1A - BYC Assets
Schedule 1B - Assumed Liabilities
DEFINITIONS
-----------
Agreement....................1 Indemnified Party........................13
Assumed Liabilities..........1 Indemnifying Party.......................13
Blackfin Vessel..............7 NASDAQ....................................9
BYC..........................1 Revenge...................................1
BYC Assets...................1 SEC.......................................3
Common Stock.................1 Sold, leased or otherwise disposed of.....7
Designated Assets............7 Unit Sales Price..........................6
Exchange Act.................8 Warrant...................................1
Exercise Date................7 Warrant Shares............................2
First Sale Date..............7
3
PURCHASE AGREEMENT
This Purchase Agreement (the "Agreement") dated October 22, 1998, is
entered into by and between Revenge Marine, Inc., a Delaware corporation
("Revenge"), and BYC Acquisition Corporation, a Delaware corporate ("BYC").
RECITALS
The parties desire to consummate the purchase and sale of substantially
all of the assets of BYC, and the transfer and assumption of certain of the
liabilities of BYC, upon the terms and conditions set forth in this Agreement.
The parties hereto agree as follows:
1. PURCHASE AND SALE. BYC hereby grants, bargains, sells, transfers,
assigns and delivers to Revenge all right, title and interest in and to all of
the assets listed on Schedule 1A (collectively, the "BYC Assets") and all of
its obligations with respect to those liabilities listed on Schedule 1B
(collectively, the "Assumed Liabilities"), and Revenge hereby purchases from BYC
the BYC Assets and agrees to assume, perform and discharge the Assumed
Liabilities. All assets and liabilities of BYC not specifically included as BYC
Assets or BYC Liabilities will remain the property or obligation of BYC, as the
case may be, and Revenge will have no interest therein or obligation therefor.
In consideration of the transfer, assignment and delivery of the BYC Assets and
BYC Liabilities:
(a) Revenge is paying BYC $905,455 in immediately available
funds by wire transfer to BYC's designated account,
which amount represents $1,005,455 less a credit for
the amount paid under the Option Agreement, and
(b) Revenge is issuing to BYC a warrant (the "Warrant") to
purchase up to 545,455 shares (subject to adjustment)
of Revenge's Common Stock, par value $.01 per share
(the "Common Stock"), at an exercise price of $6.44 per
share (subject to adjustment), for which BYC will pay
Revenge the par value of the Warrant Shares, and
(c) Revenge shall pay BYC the fees described in Section 4.
2. CLOSING. Simultaneously with the execution and delivery of this
Agreement:
(a) BYC shall execute and deliver, or caused to be executed and
delivered, a Bill of Sale for the BYC Assets (conveying title thereto free and
clear of all liens, claims or encumbrances of any kind).
(b) Revenge shall make the payment pursuant to Section 1(a), and shall
execute and deliver, or caused to be executed and delivered, the following
documents:
(1) The Warrant specified in Section 1(b).
1
4
(2) An opinion of counsel reasonably satisfactory to BYC
3. WARRANT. This section describes certain provisions specific to the
Warrant and the shares of Common Stock that BYC may from time to time acquire
upon exercise of the Warrant (the "Warrant Shares"):
(a) DEMAND REGISTRATION. Upon BYC's written request in accordance with
Section 3(c) any time on or after the first anniversary of the first exercise of
the Warrant Shares but before the fourth anniversary of such exercise, Revenge
will use reasonable efforts to register under the Securities Act any Warrant
Shares, as soon as reasonably practicable following such request so as to permit
the sale of such shares. Revenge will be entitled to postpone for a reasonable
period of time, the filing of any registration statement otherwise required to
be prepared and filed by it with respect to such registration if, at the time it
receives such request, Revenge (i) in its reasonable judgment and based on the
advice of counsel, determines that such registration and sale would materially
interfere with any financing, acquisition, corporate reorganization or other
material transaction and promptly gives BYC written notice of such
determination, or (ii) has filed or is about to file a registration statement
relating to Revenge's securities and the managing underwriters of such offering
have advised in writing that the filing of a registration statement would
materially and adversely affect Revenge's offering. If Revenge so postpones a
registration statement filing, then BYC may withdraw the request for
registration by giving Revenge written notice within 30 calendar days after
receipt of the notice of postponement. Revenge will have no further obligation
to register any Warrant Shares under this Section 3(a) after it has filed two
separate registration statements that have become effective pursuant to requests
by BYC under this Section 3(a).
(b) PIGGYBACK REGISTRATION. At any time after an initial public
offering of shares, if Revenge proposes to register under the Securities Act
any of its Common Stock or other securities convertible into Common Stock
relating to an underwritten public sale of such securities, it will at each
such time give written notice to BYC of its intention to do so, together with
reasonable details regarding such proposed registration and sale. Upon BYC's
written request in accordance with Section 3(c) made within 15 days after the
receipt of any such notice, Revenge will use reasonable efforts to include in
such registration the number of Warrant Shares requested by BYC.
Notwithstanding the foregoing, Revenge will not be required to provide BYC
notice of, and BYC will not have any right to have Warrant Shares included in,
(i) a registration of securities solely in connection with any plan for the
acquisition of securities by employees of Revenge or any dividend reinvestment
plan, (ii) a registration on Form S-4 or similar form or (iii) a registration
of securities solely in connection with the acquisition of a business.
Revenge's obligations under this Section 3(b) are subject to the following
conditions:
(1) If at any time after giving written notice of its intention to
register any securities under this Section 3(b) and prior to the
effective date of the registration statement filed in connection
with such registration, Revenge determines for any reason not to
register such securities, Revenge will give BYC written notice of
such determination and, thereupon, will be relieved from its
obligation to proceed with such registration.
2
5
(2) If the managing underwriter advises Revenge in writing that, in
its opinion, the amount of securities to be offered should be
limited in order to assure a successful offering, the amount of
Warrant Shares to be included in such registration will be
limited and will be allocated among the persons selling such
securities in the following order of priority: (i) first to be
registered will be the securities Revenge proposes to sell, and
(ii) next to be registered will be the Warrant Shares and any
other Common Stock subject to similar piggyback registration
rights granted by Revenge, in proportion, as nearly as
practicable, to the number of Common Stock desired and eligible
to be sold by each holder of such Common Stock.
(c) FORM OF BYC REQUEST. Each BYC request for registration under
Section 3(a) or (b) will (i) specify the number of Warrant Shares intended to be
offered and sold, and (ii) describe the intended method of disposition of such
Warrant Shares.
(d) REGISTRATION EXPENSES. Revenge will pay all registration expenses
in connection with any registration of Warrant Shares under Section 3(a) or (b).
The registration expenses referred to in the preceding sentence include, without
limitation, the fees and expenses of Revenge's counsel and accountants, the fees
and expenses of BYC's counsel (up to $10,000), the costs and expenses incident
to the preparation, printing and filing by Revenge of the registration statement
(including the financial statements included in, and all amendments and exhibits
to, the registration statement), the preliminary prospectus and the final
prospectus and any amendment or supplement to any of the foregoing, the filing
fees of the Securities and Exchange Commission (the "SEC"), the National
Association of Securities Dealers, Inc., and of any state securities or blue sky
authorities, the fees and expenses of counsel in connection with the
qualification of the securities under state securities or blue sky laws, the
costs of printing and copying the various underwriting and blue sky documents,
any fees relating to the listing of the securities on the National Association
of Securities Dealers, Inc. Automated Quotation System or in any other market in
which Revenge's securities are traded, the cost of printing certificates
representing the securities being offered, any fees of the transfer agent, the
cost of preparing and publishing advertisements, including "tombstone"
advertisements, relating to the offering, and the cost of preparing bound
volumes relating to the offering; provided, however, that BYC and Revenge shall
share equally all costs of printing and delivering preliminary and final
prospectuses in connection with any registration of Warrant Shares under Section
3(a). BYC will be solely responsible for any underwriting discounts or
commissions applicable to its securities sold in the offering. Notwithstanding
the foregoing, Revenge and BYC will in good faith discuss BYC sharing a pro rata
portion of the offering expenses in connection with any registration of Warrant
Shares under Section 3(a) or (b) if such sharing is required to effect the
registration of securities in a particular jurisdiction and the managing
underwriter advises Revenge in writing that, in its opinion, the registration of
securities in that jurisdiction is necessary to assure a successful offering.
(e) REGISTRATION PROCEDURES. If and whenever Revenge is required to use
reasonable efforts to effect the registration of any Warrant Shares under the
Securities Act as provided in Sections 3(a) and (b), Revenge will promptly:
3
6
(1) prepare and file with the SEC a registration statement with
respect to such Warrant Shares and use reasonable efforts to
cause such registration statement to become effective;
(2) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement
effective for a period up to 180 days and to comply with the
provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement until
such time as all of such securities have been disposed of in
accordance with the intended methods of disposition by BYC as set
forth in such registration statement;
(3) furnish to BYC such number of conformed copies of such
registration statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of
copies of the prospectus contained in such registration statement
(including each preliminary prospectus and any summary
prospectus), in conformity with the requirements of the
Securities Act, and such other documents, as BYC may reasonably
request in order to facilitate the disposition of the Warrant
Shares by BYC; provided, however, that BYC and Revenge shall
share equally all costs of printing and delivering preliminary
and final prospectuses in connection with any registration of
Warrant Shares under Section 3(a);
(4) use its reasonable efforts to register or qualify such securities
covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as BYC may
reasonably request, and do any and all other acts and things
which may be reasonably necessary or advisable to enable BYC to
consummate the disposition in such jurisdictions of the Warrant
Shares owned by BYC, except that Revenge will not for any such
purpose be required to qualify generally to do business as a
foreign corporation in any jurisdiction wherein it is not so
qualified, or to consent to general service of process in any
such jurisdiction;
(5) notify BYC at any time when a prospectus relating to its Warrant
Shares is required to be delivered under the Securities Act of
the happening or any event as a result of which the prospectus
included in such registration statement, as then in effect, is
known by Revenge to include an untrue statement of material fact
or to omit to state any material fact required to be stated
therein or necessary to make statements therein not misleading in
the light of the circumstances then existing (provided that the
period during which such a condition may occur shall not be
permitted by the Company to persist for longer than 30 days nor
shall two or mor such periods be permitted by the Company to
persist for an aggregate of longer than 60 days during the term
of such registration), and promptly prepare, file and furnish to
BYC a reasonable number of copies of a supplement to, or an
amendment of, such prospectus as may be necessary so that, as
delivered to the purchasers of such securities, such prospectus
shall not include an untrue
4
7
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading in the light of the
circumstances then existing; and
(6) advise BYC as to the time when such registration statement
becomes effective and as to the issuance by the SEC of any
stop order suspending the effectiveness of such registration
statement or the institution of any proceedings for that
purpose, and use reasonable efforts to prevent the issuance
of any such stop order and to obtain as soon as possible the
lifting thereof, if issued.
BYC will furnish to Revenge such information regarding BYC and the distribution
of the Warrant Shares as Revenge may from time to time reasonably request.
(f) TAG-ALONG RIGHTS. If at any time Revenge proposes to sell
securities representing, or convertible into or exchangeable for, more than 20%
of its then outstanding Common Stock to a third party, other than pursuant to a
registered public offering under the Securities Act or a bona fide business
acquisition, then Revenge will give written notice to BYC. BYC may, upon giving
written notice to Revenge within 20 business days after receipt of Revenge's
notice, participate in such sale at the same price and upon the same terms and
conditions as are applicable to Revenge in such transaction. BYC may sell up to
the lesser of (i) one third of the total number of shares proposed to be sold
by Revenge, or (ii) all of the Warrant Shares. If BYC gives timely notice under
this Section 3(f), then Revenge will require as a condition precedent to
consummating the purchase of shares from Revenge, that the purchaser purchase
the Warrant Shares that BYC is entitled to sell under this Section 3(f), and
Revenge will not complete its sale to the purchaser if the purchaser falls to
satisfy such condition. The purchaser's purchase of the Warrant Shares be on
terms no less favorable than those set forth in Revenge's notice referred to
in the second preceding sentence.
(g) RESTRICTIONS ON BYC'S RIGHTS. Notwithstanding any provision of
this Section 3, BYC shall not have any demand registration rights under Section
3(a) or tag-along rights under Section 3(f) at any time in which BYC could sell
the Warrant Shares it holds under Rule 144 or in another transaction exempt
from registration during the following 180 days.
4. FEES.
(a) Revenge will pay BYC a fee of 2% of the Unit Sales Price for each
Blackfin Vessel sold, leased or otherwise disposed of at any time from the date
of this Agreement to the third anniversary of the First Sale Date. The fee will
be due and payable monthly by wire transfer to BYC's designated account in
United States dollars within 30 days following each month for the Blackfin
Vessels sold, leased or otherwise disposed of during such month. Revenge will
simultaneously with each such payment furnish BYC a written certification
showing the quantity of Blackfin Vessels sold, leased or otherwise disposed of
during the month, as well as year-to-date, together with such other information
as BYC may from time to time reasonably request. The first such certificate
will clearly identify the First Sale Date. Upon payment of the fee under
Section 4(b), Revenge will have no further obligation to BYC for fees
5
8
under this Section 4(a). Notwithstanding the above, the time for payment of this
fee shall be upon delivery of the Blackfin Vessel to the customer.
(b) If at any time on or before the third anniversary of the First
Sale Date, Revenge sells, leases or otherwise disposes of all or
substantially all of the Designated Assets in one or more transactions before
it has paid BYC at least $900,000 in the aggregate under Section 4(a), then
Revenge will pay BYC a fee equal to (i) $900,000, minus (ii) the aggregate of
all fees actually paid by Revenge under Section 4(a) on or before the date of
such payment. The fee will be due and payable by wire transfer to BYC's
designated account in United States dollars within 10 days following such
sale, lease or other disposition. Revenge will simultaneously with such
payment furnish BYC a written certification showing the calculation of the
amount due under this Section 4(b), together with such other information as
BYC may reasonably request.
(c) Revenge will maintain complete, clear and accurate records in
sufficient detail to enable the fees payable under this Section 4 to be
determined or audited, and Revenge will retain such records, and make them
available for inspection at any time, for a period of four years. BYC may
designate independent certified public accountants reasonably acceptable to
Revenge to audit, on a confidential basis, any fee certificates delivered or
due to BYC pursuant to this Section 4, provided that no more than two such
audits may be conducted during any 12-month period. Revenge will give the
accountants reasonable access to its facilities, as well as the opportunity
to inspect at such facilities all records that are reasonably necessary for
the accountants to determine if the fees have been properly calculated. The
accountants will not disclose any financial information but will only state
that the calculated fees were correct or that Revenge has correctly paid,
overpaid or underpaid the fees. If the accountants determine that Revenge has
underpaid the fees, then Revenge will promptly pay BYC the amount of the
underpayment, together with interest calculated from the date such amount was
originally due at the rate of 12% per annurn or the maximum amount permitted
by applicable law, if lower, by wire transfer to BYC's designated account in
United States dollars. If the accountant determines that Revenge has overpaid
the fees, then Revenge will receive a credit in the amount of such
overpayment on its next quarterly payment. BYC will bear the costs of the
audit unless the accountants determine that Revenge has underpaid the fees by
ten percent or more, in which case Revenge will bear such costs.
(d) For purposes of this Agreement:
(1) "Unit Sales Price" means, with respect to the sale, lease or
other disposition of a Blackfin Vessel, actual invoice price,
f.o.b. factory, after deducting regular trade and quantity
discounts, but before deducting any other items, including but
not limited to freight allowances, cash discounts, and agents'
commissions; or if the Blackfin Vessel is not sold, but is
instead leased or otherwise disposed of, (i) the highest price at
which Revenge is offering to sell a comparable Blackfin Vessel,
or (ii) if Revenge is not currently offering a comparable
Blackfin Vessel for sale, 120% of Revenge's manufacturing costs
related to such vessel, including reasonable allocations for
overhead and other fixed costs.
6
9
(2) A "Blackfin Vessel" means any marine vessel directly or
indirectly manufactured by or on behalf of, or under license
from, Revenge that in any way uses any of the Designated Assets.
(3) "Sale, lease or other disposition" and similar phrases mean any
sale, lease, loan, license or other disposition, regardless of
whether or not title is transferred, but does not, with respect
to any Blackfin Vessel, include any short-term transfer of
possession for purposes of bona fide vessel testing or
demonstration.
(4) "Designated Assets" means (i) the molds included in the BYC
Assets, (ii) the trademarks included in the BYC Assets, and (iii)
any other assets included in the BYC Assets that are identified
in Schedule 1A as "Designated Assets."
(5) The "First Sale Date" means the date on which Revenge first
sells, leases or otherwise disposes of a Blackfin Vessel in a
bona fide third-party transaction.
5. REPRESENTATIONS AND WARRANTIES OF REVENGE. Revenge hereby represents
and warrants to BYC on the date hereof and on each Exercise Date (as defined in
the Warrant) as follows:
(a) Revenge has been duly incorporated and is validly existing in good
standing under the laws of State of Delaware.
(b) The execution, delivery and performance of this Agreement and the
Warrant by Revenge have been duly authorized by all requisite corporate action;
and no further consent or authorization of Revenge, its Board of Directors or
its stockholders is required. This Agreement and the Warrant have been duly
executed and delivered by Revenge and, when duly authorized, executed and
delivered by BYC, will be valid and binding agreements, enforceable against
Revenge in accordance with their terms, subject to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights generally and to general principles of equity.
(c) Revenge has full corporate power and authority necessary to execute
and deliver this Agreement and the Warrant and to perform its obligations
hereunder and thereunder.
(d) No consent, approval, authorization or order of any court,
governmental agency or other body is required for execution and delivery by
Revenge of this Agreement or the Warrant or the performance by Revenge of any of
its obligations hereunder or thereunder, other than, with respect to any
Exercise Date, any consent, approval, authorization or order which is received
on or prior to such date.
(e) Neither the execution and delivery by Revenge of this Agreement or
the Warrant nor the performance by Revenge of any of its obligations hereunder
or thereunder:
(1) violates, conflicts with, results in a breach of, or constitutes
a default (or an event which with the giving of notice or the
lapse of time or both would be reasonably likely to constitute a
default) under (i) the Certificate of Incorporation or by-laws
7
10
of Revenge or any of its subsidiaries or any Certificate of
Designation relating to any securities of Revenge or any of its
subsidiaries, (ii) any decree, judgment, order, law, treaty,
rule, regulation or determination of which Revenge is aware
(after due inquiry) of any court, governmental agency or body, or
arbitrator having jurisdiction over Revenge or any of its
subsidiaries or any of their respective properties or assets,
(iii) the terms of any bond, debenture, note or any other
evidence of indebtedness, or any agreement, stock option or other
similar plan, indenture, lease, mortgage, deed of trust or other
instrument to which Revenge or any of its subsidiaries is a
party, by which Revenge or any of its subsidiaries is bound, or
to which any of the properties or assets of Revenge or any of its
subsidiaries is subject, (iv) the terms of any "lock-up" or
similar provision of any underwriting or similar agreement to
which Revenge or any of its subsidiaries is a party or (v) any
rules of the National Association of Securities Dealers, Inc.
applicable to Revenge or the transactions contemplated hereby; or
(2) results in the creation or imposition of any lien, charge or
encumbrance upon (i) the Warrant or (ii) any of the properties or
assets of Revenge or any of its subsidiaries.
(f) Revenge has authorized and reserved 545,455 shares of Common Stock
for issuance upon exercise of the Warrants. When issued to BYC against payment
therefor in accordance with the terms of the Warrant, each Warrant Share (i)
will have been duly and validly authorized, duly and validly issued, fully paid
and nonassessable; (ii) will be free and clear of any security interests, liens,
claims or other encumbrances; and (iii) will not have been issued or sold in
violation of any preemptive or other similar rights of the holders of any
securities of Revenge.
(g) There is no pending or, to the best knowledge of Revenge,
threatened action, suit, proceeding or investigation before any court,
governmental agency, self regulatory agency, or body, or arbitrator having
jurisdiction over Revenge or any of its affiliates that would materially
adversely affect Revenge, or the execution or performance of its obligations
under this Agreement or the Warrant.
(h) Revenge has timely filed all filings with the SEC under the
Securities Act or the Securities and Exchange Act of 1934, as amended (the
"Exchange Act"), required to be filed by Revenge pursuant to such Acts, and no
such filing, or press release containing information material to the business of
Revenge as a whole, contained any untrue statement of a material fact or omitted
to state any material fact necessary in order to make the statements, in the
light of the circumstances under which they were made, not misleading.
(i) As of October 15, 1998, the authorized capital stock of Revenge
consisted of 10,000,000 shares of Common Stock of which 2,571,978 shares were
issued and outstanding. All such shares are, and all shares which may be issued
pursuant to stock options, warrants or other convertible rights will be, when
issued and paid for in accordance with the respective terms thereof, duly
authorized, validly issued, fully paid and nonassessable and free of any
preemptive rights in respect thereof. There are no outstanding options,
warrants, scrip, rights to subscribe to,
8
11
calls or commitments of any character whatsoever granted or issued by Revenge
and relating to, or securities or rights granted or issued by Revenge and
convertible into, any shares of capital stock of Revenge or any of its
subsidiaries, or arrangements by which Revenge or any of its subsidiaries is or
may become bound to issue additional shares of capital stock of Revenge or any
of its subsidiaries. There are no outstanding debt securities issued by
Revenge. There are no agreements or arrangements under which Revenge or any of
its subsidiaries is obligated to register the sale of any of its or their
securities under the Securities Act. Revenge has furnished to BYC true and
correct copies of the Certificate of Incorporation and bylaws, as in effect on
the date hereof.
6. REPRESENTATIONS AND WARRANTIES OF BYC. BYC hereby represents and
warrants to Revenge on the date hereof as follows:
(a) BYC has been duly incorporated and is validly existing in good
standing under the laws of State of Delaware.
(b) The execution, delivery and performance of this Agreement by BYC
have been duly authorized by all requisite corporate action; and no further
consent or authorization of BYC, its Board of Directors or its stockholders is
required. This Agreement has been duly executed and delivered by BYC and, when
duly authorized, executed and delivered by Revenge, will be a valid and binding
agreement, enforceable against BYC in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights generally and to
general principles of equity.
(c) BYC is transferring good and marketable title to the BYC Assets,
free and clear of all liens, encumbrances or claims. EXCEPT FOR THE FOREGOING,
BYC IS TRANSFERRING THE BYC ASSETS AS IS WHERE IS AND WITH ALL FAULTS, BYC
HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES REGARDING THE BYC
ASSETS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
(d) Subject to Section 3, BYC understands that the Warrant and the
Warrant Shares have not been registered under the Securities Act and may not be
re-offered or resold other than pursuant to such registration or an available
exemption therefrom.
(e) BYC is an "accredited investor" as that term is defined in
Regulation D. BYC is acquiring the Warrant for its own account for investment
only and not with a view to, or for resale in connection with, the public sale
or distribution thereof except pursuant to sales registered under the Securities
Act or an exemption from registration statement.
7. COVENANTS. Revenge covenants and agrees with BYC as follows:
(a) Following an initial public offering of Common Stock and for so
long as any portion of the Warrant remains outstanding, Revenge will use
reasonable efforts to (i) maintain the eligibility of the Common Stock for
quotation on NASDAQ National Market ("NASDAQ") or listing on a national or
regional securities exchange (as defined in the Exchange Act) and (ii)
9
12
use reasonable efforts to regain the eligibility of the Common Stock for
quotation on NASDAQ in the event that the Common Stock is delisted by NASDAQ or
national or regional securities exchange.
(b) Revenge will (i) provide BYC with an opportunity to review and
comment on any public disclosure by Revenge of information regarding this
Agreement and the transactions contemplated hereby, (ii) promptly notify BYC if
there is any public disclosure by Revenge of material information regarding
Revenge or its financial condition, prospects or results of operation and (iii)
provide BYC with copies of all registration statements, annual reports,
quarterly reports, proxy materials and other filings with the SEC, NASDAQ and
any national or regional securities exchange on which the Common Stock is
listed.
(c) Revenge will comply with the terms and conditions of the Warrant as
set forth in the Warrant (as duly amended from time to time by the parties
hereto).
(e) For so long as any portion of the Warrant remains outstanding,
Revenge will at all times reserve and keep available, free from preemptive
rights, out of its authorized but unissued Common Stock, for issuance upon
exercise of such Warrant, the maximum number of Warrant Shares then so issuable.
If at any time the number of authorized but unissued shares of Common Stock is
not sufficient to effect the exercise of the Warrant for all the Warrant Shares
issuable thereunder, Revenge shall use reasonable efforts to increase its number
of authorized shares of Common Stock to such number of shares as shall be
sufficient to effect such exercise, including causing its Board of Directors to
call a meeting of stockholders and recommending such increase, and after
obtaining any such approval Revenge shall reserve for issuance to BYC the number
of shares of Common Stock required to effect such exercise.
(f) Revenge will fully, faithfully and timely perform the Assumed
Liabilities in a good and workmanlike manner, and, to the extent such Revenge
engages a third party to perform any of the Assumed Liabilities, will cause such
third party to fully, faithfully and timely perform the Assumed Liabilities in a
good and workmanlike manner.
(g) Revenge will furnish BYC financial statements as follows: (i)
within 30 days after the end of each calendar quarter, financial statements
prepared and certified by management, and (ii) within 90 after the end of each
fiscal year, audited financial statements, prepared by certified public
accountants of national standing. The financial statements provided by Revenge
under this subsection (g) will be prepared in accordance with generally accepted
accounting principles, consistently applied, and will include all balance
sheets, cash flows and earnings statements, and other financial information
which lender may from time to time reasonably request.
(h) From the Closing Date to the first anniversary of the Closing Date,
BYC will be responsible for advancing on behalf of Revenge all sums necessary to
satisfy the Assumed Liabilities. On the first anniversary of the Closing Date,
Revenge will reimburse for all amounts so advanced up to $75,000.
(i) As long as the Warrant or any Warrant Shares are outstanding,
unless DDC otherwise consents in advance in writing:
10
13
(1) Revenge will continue to engage in business of the same general
type as conducted on the Closing Date and do or cause to be done
all things necessary to preserve, renew and keep in full force
and effect its legal existence and the rights, licenses, permits,
privileges and franchises material to the conduct of its
business.
(2) Revenge will not enter into any merger, consolidation,
amalgamation or share exchange, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution), or convey,
sell, lease, assign, transfer or otherwise dispose of, all or
substantially all of its property, business or assets, or make
any material change in its present method of conducting business.
(3) Revenge will not convey, sell, lease, assign, transfer or
otherwise dispose of any of its property, business or assets,
whether now owned or hereafter acquired, other than in the
ordinary course of business.
(4) Revenge will not enter into any transaction, including, without
limitation, any purchase, sale, lease or exchange of property or
the rendering of any service, with any affiliate unless such
transaction is (a) in the ordinary course of Revenge's and such
affiliate's business and (b) upon fair and reasonable terms no
less favorable to Revenge than it would obtain in a comparable
arm's length transaction with a person which is not an affiliate.
(j) Within 180 days after the Closing Date, Revenge will acquire
substantially all of the assets of Revenge Marine, Inc., a Nevada corporation,
pursuant to a purchase, merger, share exchange or similar transaction upon fair
and reasonable terms no less favorable to Revenge than it would obtain in a
comparable arm's length transaction with a person which is not an affiliate.
8. LEGEND. BYC understands that the certificates or other instruments
representing the Warrant and, until such time as the Warrant Shares shall have
been sold pursuant to a registration under the Securities Act as contemplated by
this Agreement, the stock certificates representing the Warrant Shares shall
bear a restrictive legend in substantially the following form (and a stop-
transfer order may be placed against transfer of such certificates or other
instruments):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND
MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER
SAID ACT AND APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL
IN FORM, SUBSTANCE AND SCOPE REASONABLY ACCEPTABLE TO THE ISSUER THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE
SECURITIES LAWS.
11
14
The legend set forth above shall be removed and Revenge shall issue a
certificate without such legend to any holder of the Warrant Shares if, unless
otherwise required by state securities laws, (i) the same are sold pursuant to
an effective registration statement under the Securities Act, or (ii) in
connection with a sale transaction, such holder provides Revenge with an opinion
of counsel, in form, substance and scope reasonably acceptable to Revenge, to
the effect that a public sale, assignment or transfer thereof maybe lawfully
effected without registration under the Securities Act, or (iii) such holder
provides Revenge with assurances reasonably satisfactory to Revenge that the
same may be publicly sold pursuant to Rule 144 without restriction.
9. FEES AND EXPENSES. Except as otherwise provided in this Agreement or
the Warrant, each party will be bear its own legal fees and expenses incurred
in connection with preparing this Agreement and the related transactions.
Revenge will be responsible for, and will timely pay, all taxes and assessments
relating to the transfer of the BYC Assets and Assumed Liabilities and all
taxes and assessments, from and after the date of this Agreement, relating to
the BYC Assets and Assumed Liabilities, including all sales, use and transfer
taxes.
10. INDEMNIFICATION.
(a) INDEMNIFICATION OF BYC. Revenge hereby agrees to indemnify BYC and
each of its officers, directors, employees, agents and affiliates and each
person that controls (within the meaning of Section 20 of the Exchange Act) any
of the foregoing persons against any claim, demand, action, liability, damages,
loss, cost, settlement, disposition or expense (including, without limitation,
reasonable legal fees and reasonable investigation expenses), that it incurs in
connection with:
(1) any material breach of or failure to perform any covenant,
agreement or obligation of Revenge made in this Agreement or the
Warrant;
(2) any material inaccuracy in or material breach of the
representations and warranties of Revenge made in this Agreement
or the Warrant;
(3) any matter arising from or relating to the BYC Assets or the
Assumed Liabilities or the use thereof from and after the date of
this Agreement; provided that the maximum liability of Revenge
for the Assumed Liabilities will not exceed $75,000 in the
aggregate;
(4) any untrue statement or alleged untrue statement of any material
fact contained in any registration statement, prospectus, or any
amendment or supplement thereto, or any related preliminary
prospectus filed by or on behalf of Revenge, or the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading; except to the extent that any such claim, demand,
action, liability, damages, loss, cost, settlement, disposition
or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in
any such document or amendment or supplement thereto, in reliance
upon and in
12
15
conformity with written information furnished to Revenge by, or
on behalf of, BYC specifically for use therein.
(b) INDEMNIFICATION OF REVENGE. BYC hereby agrees to indemnify Revenge
and each of its officers, directors, employees, agents and affiliates and each
person that controls (within the meaning of Section 20 of the Exchange Act) any
of the foregoing persons against any claim, demand, action, liability, damages,
loss, cost, settlement, disposition or expense (including, without limitation,
reasonable legal fees and reasonable investigation expenses), it incurs in
connection with:
(1) any material breach of or failure to perform any covenant,
agreement or obligation of BYC made in this Agreement or the
Warrant;
(2) any material inaccuracy in or material breach of the
representations and warranties of BYC made in this Agreement or
the Warrant;
(3) any matter arising from or relating to the BYC Assets or the
Assumed Liabilities or the use thereof before the date of this
Agreement and any matter arising from or relating to any asset or
liability of BYC that is not part of the BYC Assets or the
Assumed Liabilities;
(4) any liability of BYC not designated as part of the Assumed
Liabilities; and
(5) any untrue statement or alleged untrue statement of any material
fact contained in any registration statement, prospectus, or any
amendment or supplement thereto, or any related preliminary
prospectus filed by or on behalf of Revenge, or the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, but only to the to the extent that any such claim,
demand, action, liability, damages, loss, cost, settlement,
disposition or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged
omission made in any such document or amendment or supplement
thereto, in reliance upon and in conformity with written
information furnished to Revenge by, or on behalf of, BYC
specifically for use therein.
(c) CONDUCT OF CLAIMS. Whenever a claim for indemnification arises
under this Section 11, the party seeking indemnification (the "Indemnified
Party") will notify the party from whom such indemnification is sought (the
"Indemnifying Party") in writing of the relevant event or proceeding and the
facts constituting the basis for such claim in reasonable detail. Upon delivery
of such notice, such Indemnified Party will take all reasonable steps to
mitigate any losses, liabilities, costs, charges and expenses relating to any
such event or proceeding. Such Indemnifying Party shall have the right to retain
counsel of its choice in connection with such event or proceeding and to
participate at its own expense in the defense of any such event or proceeding.
An Indemnifying Party will not, without the prior written consent of the
applicable Indemnified Parties (which consent may not be unreasonably withheld),
settle or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or
13
16
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification could be sought under this
Section 11 unless such settlement, compromise or consent (i) includes an
unconditional release of each Indemnified Party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement constituting an admission of fault, culpability or a failure to act
by or on behalf of any Indemnified Party.
11. SURVIVAL OF REPRESENTATIONS, WARRANTIES, ETC. The respective
representations, warranties, and agreements made herein by or on behalf of the
parties hereto will remain in full force and effect, regardless of any
investigation made by or on behalf of the other party to this Agreement or any
officer, director or employee of, or person controlling or controlled by or
under common control with, such party and will survive delivery of and payment
for the Warrant and any Warrant Shares.
12. NOTICES. All communications hereunder will be in writing, and will be
delivered by hand, sent by registered mail or transmitted and confirmed by
facsimile
If to Revenge: Revenge Marine, Inc.
775-B Taylor Lane
Dania, Florida 33004
Fax: (954) 927-9498
Attention: Don Mitchell, President
If to BYC: BYC Acquisition Corporation
c/o Detroit Diesel Corporation
13400 Outer Drive, West
Detroit, Michigan 48239-4001
Fax: (313) 592-7323
Attention: Daniel J. McEnroe, Treasurer
13. MISCELLANEOUS.
(a) This Agreement may be executed in one or more counterparts and it
is not necessary that signatures of all parties appear on the same counterpart,
but such counterparts together shall constitute but one and the same agreement.
(b) This Agreement and the Warrant shall inure to the benefit of and be
binding upon the parties hereto, their respective successors and assigns and,
with respect to Section 11 hereof, their respective officers, directors,
employees, agents, affiliates and controlling persons, and no other person shall
have any right or obligation hereunder. BYC may not transfer its rights and
obligations under this Agreement or the Warrant without Revenge's prior written
consent, which may not be unreasonably withheld or delayed, except that BYC may
transfer its rights and obligations to Detroit Diesel Corporation (or any of its
affiliates) without such consent. Revenge may not assign its rights or
obligations under this Agreement or the Warrant.
14
17
(c) This Agreement and the Warrant shall be governed by, and construed
in accordance with, the internal laws of the State of Michigan, and each of the
parties hereto hereby submits to the non-exclusive jurisdiction of any Federal
court in the Eastern District of Michigan or appropriate State court in Michigan
and any court hearing any appeal therefrom, over any suit, action or proceeding
against it arising out of or based upon this Agreement and the Warrant. Each of
the parties hereto hereby waives any objection to any such suit, action or
proceeding in such courts whether on the grounds of venue, residence or domicile
or on the ground that such suit, action or proceeding has been brought in an
inconvenient forum.
(d) The provisions of this Agreement and the Warrant are severable, and
if any clause or provision hereof shall be held invalid, illegal or
unenforceable as a whole or in part, such invalidity or unenforceability shall
not in any manner affect any other clause or provision of this Agreement or the
Warrant.
(e) The headings of the sections of this Agreement have been inserted
for convenience of reference only and shall not be deemed to be a part of this
Agreement.
(f) This Agreement and the Warrant constitute the entire agreement and
supersedes all prior agreements and understandings, written or oral, between the
parties hereto with respect to the subject matter of this Agreement and the
Warrant, including the Option Agreement. Neither this Agreement nor the Warrant
is intended to confer upon any person other than the parties hereto any rights
or remedies hereunder or thereunder.
(g) As used in this Agreement, the phrase "reasonable efforts" means,
with respect to any action, those reasonable good faith efforts required to
diligently pursue completion of the subject action in a timely manner.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement, all as of the day and year first above written.
REVENGE MARINE, INC.
By: /s/ Donald Mitchell
---------------------------------
Donald Mitchell
Its: President
BYC ACQUISITION CORPORATION
By:
---------------------------------
Daniel J. McEnroe
Its: Vice President
15
18
SCHEDULE 1A
BYC ASSETS
----------
MOLDS AND RELATED ASSETS
- ---------------------------------------------------------------------------------------------------------
24' BLACKFIN 29' BLACKFIN 38' BLACKFIN
Hull Combi Hull Combi Deck
Deck Combi Deck Combi Liner
Liner Combi Liner Combi Patterns & Templates
Parts Flybridge Deck Combi Drawings & Blueprints
Drawings & Blueprints Flybridge Liner Flybridge Deck
Parts Flybridge Liner
25' BLACKFIN Patterns & Templates Flybridge Patterns & Templates
Hull Drawings & Blueprints Flybridge Drawings &
Deck Hull Plug Blueprints
Liner
Parts 31' BLACKFIN 40' BLACKFIN
Drawings & Blueprints Combi Hull Combi Hull
Combi Deck Combi Deck
27' BLACKFIN SPORTSMAN Combi Liner Combi Liner
Hull Combi Parts Combi Patterns & Templates
Deck Patterns & Templates Combi Drawings & Blueprints
Liner Drawings & Blueprints
Parts 46' BLACKFIN
Patterns & Templates 33' BLACKFIN Hull
Drawings & Blueprints Hull Deck
Combi Deck Parts
Combi Liner Drawings & Blueprints
Combi Parts
Combi Patterns & Templates MISCELLANEOUS
Combi Drawings & Blueprints All other Blackfin molds, plugs
Flybridge Deck and related parts that appear on
Flybridge Liner the August 6, 1998 Valuation
Flybridge Parts Report prepared by Seamaster
Flybridge Patterns & Templates Yachts, to the extent they exist
Flybridge Drawings & in the Blackfin assets held by
Blueprints BYC on the date hereof.
INTANGIBLES
- --------------------------------------------------------------------------------
All patents, trademarks, copyrights, service marks, trade names, corporate name
and logos associated with Blackfin, Blackfin Yacht and Blackfin Yacht
Corporation.
MISCELLANEOUS
- --------------------------------------------------------------------------------
Miscellaneous production and office equipment.
19
SCHEDULE 1B
ASSUMED LIABILITIES
-------------------
HULL SERVICE DATE BROKER WARRANTY EXPIRES CUSTOMER
---- ------------ ------ ---------------- --------
29-775 02/10/98 RBI (Coleman) Parts--2/10/99 Robert J. Bryan
Hull--2/10/03 13140 SW 95th Ave. Miami, FL
33176 (305) 264-8799
31-153 02/12/98 RBI Parts--2/12/99 John S. Marini
Hull--2/12/03 367 Bolivar
Canton, MA
31-154 02/25/98 RBI Parts--2/25/99 William C. Scott
Hull--2/25/03 503 Savoy
Sugarland, TX 77478
33-293 03/11/98 Moran Yachts (Callahan) Parts--3/11/99 Robert Furness
Hull-- 3/11/03 2755 E. Oakland Park
Ft. Lauderdale, FL 33306
(954) 561-3777
33-294 03/05/98 RBI (RCY Deal) Parts--3/5/99 David Boyer
Hull--3/5/03 306 Laurel Lane
Haverford, PA 19401
33-295 10/25/97 Clark's Landing (Levy) Parts--10/25/98 Martin Judge
Hull--10/25/02 4414 5th Ave.
Avalon, NJ 08202
(609) 967-1880
33-543 04/03/98 RBI Parts--4/3/99 Lee Goodbar
Hull--4/3/03 6 South Tejon
Colorado Springs, CO 80903
33-544 12/10/97 Pete Horst Yacht Sales Parts--12/10/98 James H. Price
Hull--12/10/02 601 Aldeborough Lane
Charlotte, NC 28270
40-503 03/20/98 RBI Parts--3/20/99 Michael Cherico
Hull--3/20/03 1220 N. Market St.
Wilmington, DE 19801
40-504 04/03/98 RBI Parts--4/3/99 Roberto Duran, Jr.
Hull-4/3/03 Consultenos, S.A.
Panama
20
REVENGE MARINE, INC.
(A Delaware Corporation)
Secretary's Certificate
I, the undersigned, being the duly elected, qualified and acting
Secretary of REVENGE MARINE, INC., a Delaware corporation (the "Corporation"),
and as such having access to the Corporation's corporate records and being
familiar with the Purchase Agreement dated as of October 22, 1998 (the
"Agreement"), between the Corporation and BYC Acqusition Corporation, and the
Warrant issued thereunder, do hereby certify that I am authorized to execute
and deliver this Certificate on behalf of the Corporation, and that:
1. The following persons are the duly elected, qualified and acting
officers of the Corporation and occupy the offices set opposite their
respective names, and the signatures set opposite their names are the true
signatures of said officers:
NAME OFFICE SIGNATURE
---- ------ ---------
Donald Mitchell President /s/ Donald Mitchell
-------------------
2. Attached hereto as Exhibit A is a true, correct and complete copy
of the Certificate of Incorporation of the Corporation and all amendments
thereto, together with a certificate of the Secretary of State (or reproduction
thereof) certifying as to the authenticity of such documents, and since the
date of such certificate, such Certificate of Incorporation has not been
revoked and remains in full force and effect on the date hereof.
3. Attached hereto as Exhibit B is a true, correct and complete copy
of the Bylaws of the Corporation as in effect on the date hereof. Such Bylaws
have not been rescinded or modified and remain in full force and effect.
4. Attached hereto as Exhibit C are resolutions adopted by the Board
of Directors at a duly convened meeting on October 14, 1998, authorizing the
execution, delivery and performance of the Agreement and the Warrant. Such
resolutions constitute the only resolutions adopted by the Board of Directors,
or any committee thereof, in connection with the execution and delivery of the
Agreement and such resolutions have not been amended or rescinded and each is
in full force and effect on the date hereof.
IN WITNESS WHEREOF, I have hereunto set my hand, on behalf of the
Corporation, as of October 22, 1998.
/s/ Linda D. Riznick
--------------------
Asst., Secretary
21
I, Donald A. Mitchell, President of REVENGE MARINE, INC., a Delaware
corporation (the "Corporation"), do hereby certify that Linda Riznick is the
duly elected, qualified and acting Secretary of the Corporation, and that his
signature set forth above is his true signature.
IN WITNESS WHEREOF, I have hereunto set my hand as of October 22, 1998.
/s/ Donald A. Mitchell
------------------------------
10/22/98, Pres.
---------------
2
22
EXHlBIT C
RESOLUTIONS
-----------
23
MINUTES OF THE TELEPHONIC MEETING OF THE BOARD 0F DIRECTORS
OF
REVENGE MARINE, INC. (A Delaware Corporation)
A telephonic meeting of the Board of Directors of Revenge Marine, Inc. (a
Delaware Corporation), was held on the 14th of October, 1998 at 1:30 p.m.
There were present at said meeting the following directors constituting a
majority of the full Board:
Donald A. Mitchell
William Robinson
Linda Riznick
James Gardiner
Scott Flanders
The meeting was called to order with a majority of the board present.
PRESIDING OFFICER
Donald Mitchell, Chairman, called the meeting to order
VALIDITY OF MEETING
The chairman announced that the meeting was held pursuant to written Waiver of
Notice thereof and consent thereto signed by all the Directors of the
Corporation named as such by the incorporator thereof; such Waiver and consent
was presented to the meeting and upon motion duly made, seconded, and
unanimously carried, was made a part of the records of the meeting and now
precedes the Minutes of this meeting in the Book of Minutes of the Corporation.
The Chairman stated that the purpose of the meeting was (1) to approve the
purchase of the BYC Acquisition Corporation from the Detroit Diesel Corporation,
(2) to approve the qualification of the Corporation to do business in the State
of Florida, and (3) to appoint Desai Robinson and Linda Riznick as Assistant
Secretaries for the Corporation.
RESOLVED
It was resolved that the Board of Directors has approved the purchase of BYC
Acquisition Corporation, a Delaware Corporation, and any and all of its
accompanying assets, tangible and intangible, pursuant to a purchase agreement
to be finalized by the officers herein designated.
RESOLVED
It was resolved that the Board of Directors appoints Donald Mitchell and William
Robinson to negotiate and finalize the purchase agreement with the designated
representatives of the seller, Detroit Diesel Corporation, so as to conclude the
purchase of such assets and/or stock.
24
RESOLVED
It was resolved that the Board of Directors has approved the intent and ability
of the Corporation to do business in the State of Florida and to cause its
designated officers to qualify the Corporation to register with the Secretary of
State of Florida, Division of Corporations, so as to take all means and courses
of action to so qualify Revenge Marine, Inc. (a Delaware Corporation) as a
qualifying entity within the State of Florida.
RESOLVED
It was resolved that the Board of Directors hereby appoints Desai Robinson and
Linda Riznick Assistant Secretaries of the Corporation.
ADJOURNMENT
There being no further business to come before the meeting, upon motion duly
made, seconded, and unanimously carried, the meeting adjourned.
---------------------------
William Robinson, Secretary
/s/ Linda Riznick
----------------------------------
Linda Riznick, Assistant Secretary
APPROVED:
- --------------------------------------
Donald Mitchell, President
25
NOTICE OF NOTICE AND CONSENT TO THE HOLDING OF
A TELEPHONIC MEETING OF THE BOARD OF DIRECTORS OF
REVENGE MARINE, INC. (A DELAWARE CORPORATION).
The undersigned, being the directors named as such by the incorporator of
Revenge Marine, Inc. (a Delaware Corporation), desiring to hold a telephonic
meeting of the Board of Directors of said corporation for the purpose of (1)
approving the purchase of the BYC Acquisition Corporation from the Detroit
Diesel Corporation, (2) approving the qualification of the Corporation to do
business in the State of Florida, and (3) appointing Desai Robinson and Linda
Riznick as Assistant Secretaries for the Corporation, does hereby waive notice
of said meeting and consent to the holding thereof at the time and place
designated hereunder:
The undersigned agree and consent that this meeting be held for the purpose of
(1) approving the purchase of the BYC Acquisition Corporation from the Detroit
Diesel Corporation, (2) approving the qualification of the Corporation to do
business in the State of Florida, and (3) appointing Desai Robinson and Linda
Riznick as Assistant Secretaries for the Corporation, and transacting such other
business as may be brought before said meeting; and do further agree that any
business transacted at said meeting shall be valid and legal and of the same
force and effect as though said meeting was held after notice duly given.
Dated: October 14, 1998
/s/ Donald A. Mitchell
---------------------------
Donald Mitchell, Chairman