Schedule 13D

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NfIVUKYz4i9sttxLZ933VC2xxag3gEIFvZPX6gVLVqffecCWrqYRjNlMKSS/0DBI Ne+QGXWCUNEhc3pWajFQTw== 0001193125-03-011468.txt : 20030620 0001193125-03-011468.hdr.sgml : 20030620 20030620130116 ACCESSION NUMBER: 0001193125-03-011468 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20030620 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: DEMAND AGGREGATION SOLUTIONS LLC CENTRAL INDEX KEY: 0001239032 FILING VALUES: FORM TYPE: SC 13D MAIL ADDRESS: STREET 1: 1445 ROSS AVE STREET 2: STE 4500 CITY: DALLAS STATE: TX ZIP: 750202 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: AXTIVE CORP CENTRAL INDEX KEY: 0001015172 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 133778895 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-49607 FILM NUMBER: 03751407 BUSINESS ADDRESS: STREET 1: 1445 ROSS AVENUE STREET 2: SUITE 4500 CITY: DALLAS STATE: TX ZIP: 75202 BUSINESS PHONE: 214.397.0200 MAIL ADDRESS: STREET 1: 1445 ROSS AVENUE STREET 2: SUITE 4500 CITY: DALLAS STATE: TX ZIP: 75202 FORMER COMPANY: FORMER CONFORMED NAME: EDGE TECHNOLOGY GROUP INC DATE OF NAME CHANGE: 20000912 FORMER COMPANY: FORMER CONFORMED NAME: VISUAL EDGE SYSTEMS INC DATE OF NAME CHANGE: 19960604 SC 13D 1 dsc13d.htm SCHEDULE 13D Schedule 13D

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under The Securities Exchange Act of 1934

(Amendment No. )*

Axtive Corporation

(Name of Issuer)

Common Stock

(Title of Class of Securities)

05462 R1 00

(CUSIP Number)

Randall G. Ray, Gardere Wynne Sewell LLP, 1601 Elm Street,

Suite 3000, Dallas, Texas 75201, (214) 999-3000

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

May 23, 2003

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §240.13d-1(e), §240.13d-1(f) or §240.13d-1(g), check the following box ¨.

NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

SCHEDULE 13D

CUSIP No. 05462 R1 00

PAGE 2 OF 6 PAGES


1.	Name of Reporting Person, S.S. or I.R.S. Identification No. of above person Demand Aggregation Solutions, LLC

2.	Check the Appropriate Box if a Member of a Group* (a) ¨ (b) x

3.	SEC Use Only

4.	Source of Funds* OO

5.	Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)	¨

6.	Citizenship or Place of Organization Texas, U.S.A.

NUMBER OF

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7. Sole Voting Power

12,000,000

8. Shared Voting Power

9. Sole Dispositive Power

12,000,000

10. Shared Dispositive Power

11.	Aggregate Amount Beneficially Owned by Each Reporting Person 12,000,000

12.	Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares*	¨

13.	Percent of Class Represented by Amount in Row (11) 37.2%

14.	Type of Reporting Person* OO

See instructions before filling out! Include both sides of the cover page, responses to Items 1-7 (including Exhibits) of the Schedule, and the Signature Attestation.

Item

1. Security and Issuer.

This Schedule 13D (this “Filing”) relates to the Common Stock, par value $0.01 per share (the “Common Stock”), and voting and other contractual rights relating thereto, of Axtive Corporation, a Delaware corporation formerly known as Edge Technology Group, Inc. (the “Company”), which has its principal executive offices located at 1445 Ross Avenue, Suite 4500, Dallas, Texas 75202. The purpose of this Filing is to reflect the beneficial ownership of Common Stock by Demand Aggregation Solutions, LLC, a Texas limited liability company (the “Reporting Person”).

Item 2. Identity and Background.

(a)

Demand Aggregation Solutions, LLC, a Texas limited liability company

(b)

1445 Ross Avenue, Suite 4500, Dallas, Texas 75202

(c)

Demand Aggregation Solutions, LLC is engaged in the business of software development.

(d)

Demand Aggregation Solutions, LLC has not, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

(e)

Demand Aggregation Solutions, LLC has not, during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction resulting in or subjecting it to a judgment, decree, or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

Item 3. Source and Amount of Funds or Other Consideration.

On May 23, 2003, pursuant to that certain Subscription and Securities Purchase Agreement, dated as of May 22, 2003, by and among the Company, the Reporting Person, and certain other persons (the “Purchase Agreement”), Demand Aggregation purchased 1,200 shares (the “Preferred Shares”) of the Company’s Series A Convertible Preferred Stock, $0.01 par value per share (the “Preferred Stock”), at a price per share of $1,000 and a warrant to purchase 2,400,000 shares of Common Stock (the “Warrant”) at a per share exercise price of $0.20. Each share of Preferred Stock is currently convertible into 10,000 shares of Common Stock. The initial conversion price of the Preferred Stock is $0.10, which is subject to future adjustment. Conversion is determined by dividing the liquidation price with respect to the Preferred Stock, which is equal to the issuance price of $1,000 per share plus any accrued, but unpaid dividends, by the conversion price. There are currently no accrued, but unpaid dividends. Accordingly, 12,000,000 shares of Common Stock, which represents the conversion of the Preferred Shares, are included in the Reporting Person’s beneficial ownership. Since the Warrant is not exercisable by it until May 23, 2005, none of the shares of Common Stock represented by the Warrant are included in the Reporting Person’s total beneficial ownership. The Reporting Person funded its purchase of the Preferred Shares and the Warrant with a capital call from its members for the purpose of purchasing the Preferred Shares and the Warrant.

Item 4. Purpose of Transaction.

The Reporting Person does not have any specific plans or proposals that relate to or would result in any extraordinary corporate transaction, such as a merger, reorganization, or liquidation, involving the Company or any of its subsidiaries; a sale or transfer of a material amount of assets of the Company or any of its subsidiaries; any change in the present board of directors or management of the Company; any change in the present capitalization or dividend policy of the Company; any other material change in the Company’s business or corporate structure; changes in the Company’s charter, bylaws, or instruments corresponding thereto or other actions which may impede the acquisition of control of the Company by any person; causing a class of securities of the Company to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; a class of securities of the Company becoming eligible for termination or registration pursuant to Section 12(g)(4) of the Act; or any action similar to any of those enumerated above; provided, however, that the Reporting Person reserves the right to propose or undertake or participate in any of the foregoing actions in the future.

Item 5. Interest in Securities of the Issuer.

(a)

The following chart reflects the number of shares of Common Stock beneficially owned by the Reporting Person and the percentage of the outstanding Common Stock such shares represent:

Name		Shares		Percentage
Demand Aggregation Solutions, LLC		12,000,000		37.2	%

Represents 12,000,000 shares of Common Stock issuable upon the conversion of the Preferred Shares, which are currently convertible. The percentage calculation is based upon 20,258,771 shares of Common Stock outstanding on May 23, 2003, which is the number of shares of Common Stock reported in the Company’s Quarterly Report on Form 10-QSB for the quarter ended September 30, 2002, and filed with the Commission on November 14, 2002, plus additional shares of Common Stock subsequently issued by the Company and notified to the Reporting Person.

(b)

The Reporting Person has sole voting and dispositive power over 12,000,000 shares of Common Stock, which represents the shares of Common Stock issuable upon conversion of the Preferred Shares.

(c)

See Item 3.

(d)

None.

(e)

Not applicable.

Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.

On February 14, 2003, pursuant to that certain Management Services Agreement, dated as of February 14, 2003, by and between the Company and the Reporting Person (the “Management Services Agreement”), the Reporting Person appointed the Company to manage the Reporting Person’s business during the term of the Management Services Agreement. Such appointment includes, without limitation, the authority of the Company to supervise, direct, and operate the Reporting Person’s day-to-day business. Pursuant to the Management Services Agreement, the Company shall at all times when providing such services comply with policies and procedures set forth by the Management Committee of the Reporting Person. The Company is not an agent of the Reporting Person and the Company does not have the authority to (i) incur on behalf of the Reporting Person any indebtedness for money borrowed, (ii) pledge any property of the Reporting Person, (iii) issue any securities of the Reporting Person, or (iv) otherwise bind the Reporting Person to any obligation that would require board approval under applicable Texas laws if the Reporting Person were a Texas corporation, unless such specific authority is expressly authorized and approved in writing by the Reporting Person’s Management Committee. Accordingly, management of the Reporting Person, other than its day-to-day business and operations, continues to be vested in the Reporting Person’s Management Committee, and the Company does not have any voting or dispositive power over any securities owned by the Reporting Person, including the Preferred Shares and the Warrant.

In exchange for such services by the Company, beginning in May 2003, the Reporting Person is required to pay the Company $25,000 per month during the term of the Management Services Agreement. In addition, the Reporting Person granted to the Company an additional membership interest in the Reporting Person. The Company is also obligated under the Management Services Agreement to make certain cash advances to the Reporting Person, which are required to be repaid to the Company, with interest, by the Reporting Person. The term of the Management Services Agreement is for three years, commencing on February 13, 2003, and will thereafter continue on a month-to-month basis unless terminated by either party upon 30-days’ written notice.

On May 23, 2003, pursuant to the Purchase Agreement, the Reporting Person (i) purchased the Preferred Shares, at a price per share of $1,000, and (ii) acquired the Warrant.

On May 23, 2003, pursuant to that certain Stockholders and Voting Agreement (the “Voting Agreement”), dated as of May 23, 2003, among Sandera Partners, L.P. (“Sandera”), Global Capital Funding Group, L.P (“Global”), GCA Strategic Investment Fund Limited (“GCA”), and the Reporting Person (the Reporting Person, and together with Sandera, Global, and GCA, the “Stockholders”), the Stockholders agreed to vote their shares in the manner provided

for in the Voting Agreement with respect to the election of members of the Company’s Board of Directors and agreed to certain restrictions on the disposition of any shares of the Company’s capital stock then owned or acquired by them in the future.

Item 7. Material to be Filed as Exhibits.

Management Services Agreement, dated as of February 14, 2003, by and between Axtive Corporation and Demand Aggregation Solutions, LLC.

Subscription and Securities Purchase Agreement, dated as of May 22, 2003, by and among Axtive Corporation, Demand Aggregation Solutions, LLC, Beachum Investments, LLC, Sandera Partners, L.P., GCA Strategic Investment Fund Limited, Kerry Osborne, and Graham C. Beachum III (incorporated by reference to Exhibit 3 to the Schedule 13D dated May 23, 2003, and filed by G. C. Beachum III with the Commission on June 5, 2003).

Warrant to Purchase Common Stock of Axtive Corporation, dated as of May 23, 2003, executed by Axtive Corporation and issued to Demand Aggregation Solutions, LLC.

Stockholders and Voting Agreement, dated as of May 23, 2003, among Sandera Partners, L.P., Global Capital Funding Group, L.P., GCA Strategic Investment Fund Limited, and Demand Aggregation Solutions, LLC.

SIGNATURE

After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

	DEMAND AGGREGATION SOLUTIONS, LLC

	By:	Axtive Corporation, as its appointee to manage its business pursuant to the Management Services Agreement, dated as of February 14, 2003, by and between Axtive Corporation and Demand Aggregation Solutions, LLC

June 20, 2003	By:	/s/ DAVID N. PILOTTE
		David N. Pilotte Executive Vice President and Chief Financial Officer

Exhibit Index

Management Services Agreement, dated as of February 14, 2003, by and between Axtive Corporation and Demand Aggregation Solutions, LLC.

Warrant to Purchase Common Stock of Axtive Corporation, dated as of May 23, 2003, executed by Axtive Corporation and issued to Demand Aggregation Solutions, LLC.

EX-1 3 dex1.htm MANGEMENT SERVICES AGREEMENT Mangement Services Agreement

Exhibit 1

MANAGEMENT SERVICES

AGREEMENT

THIS MANAGEMENT SERVICES AGREEMENT (this “Agreement”) is dated and deemed to be effective as of February 14, 2003 (the “Effective Date”), and is made and entered by and between Axtive Corporation, a Delaware corporation (“Axtive”), and Demand Aggregation Solutions, LLC, a Texas limited liability company (“DAS”).

RECITALS:

A. Axtive is the beneficial owner of a membership interest of DAS (the “Membership Interest”) and has a material interest in the success of DAS and its businesses.

B. DAS is willing to contribute the sum of $1.2 million to Axtive, and to fulfill its other obligations hereunder in consideration of the issuance to DAS of 1,200 shares of Axtive’s Series A Convertible Preferred Stock, par value $0.01 per share (the “Shares”), and a warrant to purchase 2,400,000 shares of Axtive’s Common Stock, par value $0.01 per share. In addition, Axtive and DAS are entering into this Agreement pursuant to which Axtive (1) will provide certain services to DAS for monthly fees and other compensation in accordance with the terms of this Agreement, and (2) will make certain advances to or on behalf of DAS in accordance with the terms of this Agreement.

C. Axtive has, since February 14, 2003, provided certain services to DAS relating to the management and operations of DAS, such services having been provided to DAS pursuant to the due approval and valid authority of the Management Committee of DAS. DAS desires to formalize its relationship with Axtive pursuant to the terms and conditions of this Agreement; provided, however, that DAS, by its execution hereof, ratifies and confirms all actions taken by DAS concerning the management and operation of the business of DAS during the period commencing on February 14, 2003 and ending on the Effective Date.

D. DAS desires to engage Axtive to manage and operate the business of DAS on behalf of DAS, and Axtive desires to accept such engagement upon the terms and conditions set forth in this Agreement, including but not limited to, the payment of a monthly management fee, and the issuance to Axtive by DAS of an additional interest in DAS as set forth in the Amended and Restated Limited Liability Company Agreement of DAS dated as of February 12, 2003 (the “Original Agreement”), as amended by that certain Amendment No. 1 to the Original Agreement dated as of the date hereof (the Original Agreement as amended shall be referred to as the “LLC Agreement”).

NOW, THEREFORE, in consideration of the premises and the mutual covenants herein set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Axtive and DAS agree as follows:

1. Issuance of Shares. Axtive shall issue the Shares to DAS in accordance with the terms of that certain Subscription and Securities Purchase Agreement, by and between Axtive and DAS, among others, dated as of even date with this Agreement. The terms and conditions of the Subscription and Securities Purchase Agreement are incorporated herein for all purposes; provided, however, that if the terms of the Subscription and Securities Purchase Agreement conflict with the terms of this Agreement with respect to the Shares and any rights related thereto, the terms of the Subscription Agreement and Securities Purchase Agreement control.

2. Services and Facilities. DAS hereby appoints Axtive as DAS’s manager to manage the business of DAS during the term of this Agreement, which appointment includes, without limitation, the authority of Axtive to supervise, direct and operate DAS’s day-to-day business. Axtive accepts said appointment and during the term of this Agreement agrees to manage the business of DAS in a commercially reasonable and prudent manner, and otherwise in accordance with the provisions set forth in this Agreement.

In connection with the management of DAS’s business, Axtive shall (i) make available such time of Graham Beachum II, David Welp, and such other employees of Axtive and its affiliates as Axtive and DAS may determine, in their reasonable discretion, to be necessary or appropriate to perform the services under this Agreement; (ii) make available its Dallas office(s) and any other facilities that Axtive determines, in its reasonable discretion, are necessary for such Axtive employees to perform the services contemplated by this Agreement; (iii) allow DAS to use the address of Axtive’s principal office in Dallas, Texas as the address of DAS’s principal office; (iv) recommend outside consultants and professionals who may be hired by and at the expense of DAS; (v) subject to express instructions from the Management Committee of DAS, select and negotiate terms with customers, vendors and service providers of DAS on behalf of DAS; and (vi) subject to the provisions contained in Section 6 of this Agreement, collect DAS’s cash receipts and make disbursements for DAS’s liabilities. Axtive shall at all times when providing the services under this Agreement comply with policies and procedures set forth by the Management Committee of DAS, but Axtive is not an agent of DAS and the parties acknowledge and agree that Axtive does not have the authority to (w) incur on behalf of DAS any indebtedness for money borrowed, (x) pledge any property of DAS, (y) issue any securities of DAS, or (z) otherwise bind DAS to any obligation that would require board approval under applicable Texas laws if DAS were a Texas corporation, unless such specific authority

is expressly authorized and approved in writing by the DAS Management Committee. The performance of all lawful activities by Axtive in accordance with the terms of this Agreement shall be for the account of DAS.

3. Compensation. In exchange for the services provided by Axtive under this Agreement, beginning in May 2003, DAS will pay Axtive twenty-five thousand dollars ($25,000) per month (the “Management Fee”), payable on or before the 5th day of each calendar month (excluding February, March and April 2003) during the term of this Agreement. In addition, DAS shall grant an additional interest in DAS to Axtive as set forth in the LLC Agreement.

4. Term and Termination.

(a) The term of this Agreement is for three (3) consecutive years commencing on the Effective Date. The term shall thereafter continue on a month-to-month basis unless terminated by either party for convenience with 30 days’ advance written notice to the other party. Notwithstanding the foregoing, this Agreement shall terminate in the event of the sale of all or substantially all of the assets or membership interests of DAS or in accordance with the following subsections of this Section 4.

(b) If either party commits a material breach of this Agreement, the non-breaching party shall give written notice to the breaching party specifically outlining the nature of the breach, and:

(i) Following DAS’s written notice to Axtive of any material breach by Axtive of the provisions of this Agreement, Axtive shall have 15 business days to cure such noticed breach or, if such breach is not capable of cure within such 15 business-day period and Axtive does not provide DAS a plan to remedy the default and continuously pursue such remedy, then with respect to such breach, DAS shall have the option to terminate this Agreement immediately upon the earlier of (A) the expiration of 15 business days after DAS provides written notice to Axtive of the breach and Axtive’s failure to cure, and (B) DAS’s receipt of Axtive’s written notice that Axtive does not intend to cure the noticed breach. DAS shall have 45 days after the earlier of (A) or (B) above to provide written notice of its decision to terminate this Agreement in accordance with this clause (i).

(ii) Following Axtive’s written notice to DAS of any material breach by DAS of the provisions of this Agreement, DAS shall have 15 business days to cure such noticed breach or, if such breach is not capable of cure within such 15 business-day period and DAS does not provide Axtive a plan to remedy the default and continuously pursue such remedy, then with respect to such breach, Axtive shall have the option to terminate this Agreement immediately upon the earlier of (A) the expiration of 15 business days after Axtive provides written notice to DAS of the breach and DAS’s failure to cure, and (B) Axtive’s receipt of DAS’s written notice that DAS

does not intend to cure the noticed breach. Axtive shall have 45 days after the earlier of (A) or (B) above to provide written notice of its decision to terminate this Agreement in accordance with this clause (ii).

(c) If this Agreement is terminated as a result of any breach (and subsequent failure to timely cure) by Axtive, in addition to any other damages due to DAS from Axtive, Axtive’s additional interest in DAS may be subject to reduction pursuant to the terms of the LLC Agreement. The provisions of this Section 4(c) survive the termination of this Agreement.

5. Advances by Axtive; Repayment from DAS Cash Flow and/or Sale Proceeds; 5% Commission Upon Sale.

(a) Advances. On or before May 15, 2003, Axtive shall make an initial advance to DAS of up to twenty-five thousand dollars ($25,000) to cover DAS’s costs incurred in connection with its acquisition of the Shares (the “Initial Advance”). Thereafter, on the first business day of each month during the term of this Agreement, Axtive shall make unsecured monthly advances (expressly exclusive of the Initial Advance, collectively, the “Monthly Advances”) to DAS in amounts sufficient for DAS to pay required fees to Axtive and to conduct DAS’s business in accordance with this Agreement; provided, however, that (i) such advances shall not be considered capital contributions to DAS, but shall be deemed to be extensions of credit to DAS (to be repaid in accordance with the terms hereof); (ii) Axtive is not required to make any Monthly Advance in excess of fifty thousand dollars ($50,000) per month on average during the term of this Agreement (e.g., if Axtive makes a Monthly Advance of $30,000 in month 1, Axtive will make a Monthly Advance of $70,000 in month 2 if DAS’s business requires that amount), nor any Monthly Advances in excess of $1.2 million in the aggregate (exclusive of the amount of the Initial Advance), and (iii) Axtive is not required to make any Monthly Advance during any time that DAS is in material breach of this Agreement or at any time after this Agreement has been terminated by Axtive in accordance with the provisions hereof as the result of any such material breach by DAS.

(b) Repayment of Advances. DAS shall pay to Axtive, in addition to any amounts due and owing to Axtive pursuant to the provisions of Section 3, the amount of each Monthly Advance, together with simple interest at the rate of eight percent (8%) per annum, from the date of each such advance until such advance is repaid. The Initial Advance, each Monthly Advance (including interest accrued on any Monthly Advance), and any other amounts due and owing to Axtive pursuant to the terms of this Agreement shall be paid from all cash flow (income, net of all accrued expenses and capital expenditures other than amounts owing to Axtive hereunder) of DAS and the aggregate proceeds of any sale (or related series of sales) of all or substantially all of the assets or membership

interests of DAS (net of all expenses associated with such sale(s)), it being understood that any such cash flow or proceeds may be applied to repayment of such advances, accrued interest, and obligations in the order determined by Axtive in its reasonable discretion (so long as any such application by Axtive does not preclude payment of any expense (including capital expenditures) necessary or reasonably appropriate to the conduct of DAS’s business). The provisions of this Section 5(b) shall survive termination of this Agreement.

(c) 5% Commission Upon Sale. Upon the sale (or related series of sales) of all or substantially all of the assets or membership interests of DAS, Axtive shall be entitled, in addition to any other amount due and payable to Axtive under this Agreement, to receive a commission in cash equal to five percent (5%) of the aggregate proceeds of such sale(s), net of all expenses associated with such sale(s) (the “Sale Commission”); provided, however, if (x) DAS terminates this Agreement as the result of any DAS objection to any sale(s) of DAS assets or membership interests proposed by Axtive and (y) following such termination, DAS sells any of its assets to the entity introduced to DAS by Axtive pursuant to terms substantially similar to the terms of such sale(s) proposed by Axtive, then the provisions of this Section 5(c) shall be deemed to have survived such termination and Axtive shall be entitled to the Sale Commission; and provided, further, however, that Axtive shall in no event be entitled to the Sale Commission if Axtive is then in material breach of this Agreement or this Agreement has previously been terminated by DAS in accordance with the provisions hereof as the result of any such material breach by Axtive. The parties expressly acknowledge and agree that, in the event of any sale(s) described in this Section 5(c), Axtive shall receive payment in full of the Sale Commission (to the extent so entitled in accordance with the terms of this Section 5(c)), and all other amounts owed to Axtive in accordance with the terms of this Agreement, prior to any distribution of such sale proceeds by DAS in respect of any membership interest in DAS.

6. Accounts and Expenditures.

(a) Axtive will deposit the Initial Advance, each Monthly Advance, and all funds derived from operation of the business of DAS in one or more bank accounts in a bank designated by Axtive and approved by DAS, which approval shall not be unreasonably withheld. Withdrawals from said accounts by Axtive shall be made only as necessary for Axtive to perform the services under this Agreement (including, without limitation, Axtive withdrawals for purposes of payment to Axtive of the Management Fee and repayment to Axtive of Monthly Advances, each in accordance with the provisions of this Agreement), and solely by authorized representatives of Axtive.

(b) DAS will pay the Management Fee, and Axtive will make any payments for the account

of DAS or otherwise in the performance of its obligations hereunder, from such authorized bank account(s). Axtive is not required to make any payment on behalf of DAS except out of such authorized bank accounts, and Axtive is not obligated to incur any liability or obligation on behalf of DAS without assurances satisfactory to Axtive that necessary funds for the discharge thereof will be provided by DAS or otherwise made available as contemplated under this Agreement. In any event, if any such liability or obligation is incurred by Axtive on DAS’s behalf, Axtive shall have the option to deduct such amounts from such authorized accounts if DAS has not fully reimbursed Axtive for amounts due and owing within 15 business days after DAS’s receipt of notice from Axtive that said amounts are due and owing.

(c) Debts and liabilities incurred by Axtive as a result of its operation and management of the business of DAS pursuant to the terms hereof, whether asserted before or after termination of this Agreement, that have not otherwise been repaid in accordance with the terms of this Section 6, shall be repaid from the aggregate proceeds of any sale of all or substantially all of the assets or membership interests of DAS (net of all expenses associated with such sale), and DAS shall indemnify, defend and hold Axtive harmless from and against all losses, liabilities, claims, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) asserted against Axtive that arise from any DAS failure to satisfy any debt or obligation authorized by DAS and incurred by Axtive in its performance of this Agreement. The provisions of this Section 6(c) shall survive the termination of this Agreement.

7. Performance Warranty. Axtive represents and warrants that, in providing DAS the services under this Agreement, Axtive shall act and shall cause its agents and employees to act in a commercially reasonably manner consistent at all times with the terms of this Agreement and the prevailing business purposes and circumstances of DAS.

8. Indemnification. Each party shall indemnify and hold harmless the other party, and the other party’s officers, directors, agents, and employees from and against any and all losses, liabilities, claims, damages, costs and expenses (including attorney fees and other expenses of litigation) of third parties arising out of any (i) breach of this Agreement by the indemnifying party, its employees, or representatives, or (ii) personal injury (including but not limited to death, slander or libel) or property damage to the extent caused by the negligent act(s) or omission(s) of the indemnifying party, its employees or representatives, provided that such indemnity shall not protect any such party against any liability to which such person would otherwise be subject by reason of willful acts or gross negligence. The indemnified party will give the indemnifying party prompt notice of any such claim,

demand or actions and shall, to the extent the indemnified party is not adversely affected, cooperate fully with the indemnifying party in the defense and settlement thereof. The indemnifying party shall control the defense and settlement of any such claim, provided that no settlement that involves a remedy relating to an admission of liability by, injunctive relief against, or other affirmative obligations by the indemnified party will be entered into without indemnified party’s consent. The indemnified party has the right to, at its own expense and with counsel of its own choosing, take part in any discussions, negotiations, meetings, conferences, appearances, settlement talks, hearings, trials, and other communications related to the subject of this indemnification.

9. Confidentiality. In connection with the activities contemplated by this Agreement, each party may have access to confidential or proprietary technical or business information of the other party, including without limitation (a) proposals, ideas or research related to possible new products or services; (b) financial statements and other financial information; (c) the material terms of the relationship between the parties; (d) any software or other technology of a party; and (e) any other material that, by its nature, should reasonably be considered confidential (collectively, “Confidential Information”). Each party will take reasonable precautions to protect the confidentiality of the other party’s Confidential Information, which precautions will be at least equivalent to those taken by such party to protect its own Confidential Information. Except as required by law, neither party will knowingly disclose the Confidential Information of the other party. Each party’s obligations in this Section 9 with respect to any portion of the other party’s disclosed Confidential Information shall terminate if such disclosed Confidential Information: (i) was in the public domain at or subsequent to the time it was communicated to the receiving party (“Recipient”) by the disclosing Party (“Discloser”) through no fault of Recipient; (ii) was rightfully in Recipient’s possession free of any obligation of confidence at or subsequent to the time it was communicated to Recipient by Discloser; (iii) was developed by employees or agents of Recipient independently of and without reference to any information communicated to Recipient by Discloser; or (iv) was communicated by Discloser to an unaffiliated third party free of any obligation of confidence. If either party is required to disclose the other’s Confidential Information in response to a valid order by a court or other governmental body, or otherwise as required by law, then such disclosure may be made without liability, provided that the owner of the Confidential Information shall be promptly notified of such requirement prior to the disclosure of any Confidential Information and both parties will stipulate to any orders necessary to protect said information from public disclosure. The provisions of this Section 9 shall survive the termination of this Agreement.

10. Ownership. Title to any intellectual property owned by DAS prior to the Effective Date belongs

exclusively to DAS. Title to all written materials and any and all ideas, discoveries, inventions, improvements, reports, programs, manuals, recordings, systems or enhancements or modifications thereto, developed, prepared, conceived, made, discovered or suggested by Axtive for DAS during the term of this Agreement (“Work Product”), and all related copyrights, trademarks, patents, trade secrets, moral rights (to the extent permitted by applicable law) and other proprietary rights with respect to the United States and any other country, belong to DAS; provided, however, if DAS ceases to operate, to the extent Axtive has licensed any DAS products, including Work Product (collectively, “DAS Products”), to a third party as part of performing the services under this Agreement, and has committed to such third party to provide services, support or maintenance for DAS Products, then (i) DAS grants to Axtive a fully paid, royalty-free license to such DAS Products for a period extending until the last such obligation has expired, but only as necessary to provide services, support or maintenance of the applicable DAS Products; and (ii) any money received by Axtive for providing such services, support or maintenance will be for the account of DAS. Any intellectual property owned by Axtive prior to the Effective Date belongs exclusively to Axtive. The parties acknowledge that all Work Product is “specifically ordered or commissioned work” and a “work-made-for-hire” as these terms are defined by the United States Copyright Act. To the extent that any Work Product does not so qualify, Axtive agrees to and does hereby irrevocably assign and transfer to DAS all of Axtive’s right, title and interest in the copyrights, trademarks, patents, trade secrets, moral rights (to the extent permitted by applicable law) and other proprietary rights with respect to the United States and any other country to such Work Product. At DAS’s request and expense, Axtive shall execute and deliver such instruments and take such other action as may be requested by DAS to perfect or protect DAS’s rights in all Work Product and to carry out the assignments contemplated in this Section 10. The provisions of this Section 10 shall survive the termination of this Agreement.

11. Miscellaneous.

(a) Representations and Warranties. Each party hereby represents and warrants to the other that it has full power and legal right and authority to execute, deliver, and perform under this Agreement and that the officers executing this Agreement on its behalf have full power and authority to do so.

(b) Independent Contractors. Nothing herein contained shall be deemed to have created, or be construed as having created any joint venture, partnership, agency or employment relationship between Axtive and DAS. At all times during the performance of its duties and obligations arising hereunder, Axtive shall be deemed to be an independent contractor.

other person or entity any rights, benefits or remedies of any kind or character whatsoever, and no third person or entity shall be deemed a third party beneficiary of this Agreement.

(d) Notices. Any notice, consent, or approval which is given or delivered under this Agreement shall be in writing and shall be deemed given (i) if given by telecopy, when such telecopy is transmitted to the telecopy number specified on the signature page hereof, (ii) if given by mail, 4 days after such communication is deposited in the mail with first class postage prepaid, addressed as aforesaid, or (iii) if given by other means, when delivered at the address specified in or pursuant to this Section 11(d).

(e) Section Headings. The section headings are inserted only as a matter of convenience and for reference and in no way define, limit, or describe the scope or intent of any provision of this Agreement.

(f) Assignment. This Agreement shall be binding on and inure to the benefit of the parties and their respective successors and assigns. Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other party.

(g) Amendment and Waiver. This Agreement may only be amended in a writing signed by the parties. No delay or forbearance by a party in enforcing a right or obligation shall be deemed a waiver of such right or obligation or future rights or obligations, and no waiver shall be effective unless in writing signed by the waiving party.

(h) Governing Law. This Agreement shall be governed by and construed under the laws of the State of Texas without giving effect to principles of conflict of law.

(i) Entire Agreement. This Agreement, the LLC Agreement, and the Subscription and Securities Purchase Agreement (together with all schedules and exhibits to this Agreement) constitute the entire understanding between the parties relating to the subject hereof and, unless specifically mentioned in this Agreement, there are no agreements or understanding whether written or oral which are not incorporated herein. This Agreement, the LLC Agreement, and the Subscription and Securities Purchase Agreement supersede all prior and contemporaneous agreements, negotiations and understandings between the parties, both oral and written, relating to the subject matter hereof.

(j) Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

(k) Severability. In the event that any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall continue in full force

and effect without said provision; provided that such severability shall be ineffective if it materially changes the economic benefit of this Agreement to any party.

[Remainder of Page Intentionally Left Blank]

IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the Effective Date.

AXTIVE CORPORATION 1445 Ross Avenue, Suite 4500 Dallas, Texas 75202

By:		/s/ DAVID N. PILOTTE
Name:		David N. Pilotte
Title:		Executive Vice President and Chief Financial Officer

DEMAND AGGREGATION SOLUTIONS, LLC, a Texas limited liability company 1445 Ross Avenue, Suite 4500 Dallas, Texas 75202

By:		/s/ RON BENEKE
Name:		Ron Beneke
Title:		Member of Management Committee

EX-2 4 dex2.htm WARRANT TO PURCHASE COMMON STOCK Warrant to Purchase Common Stock

Exhibit 2

THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY OTHER APPLICABLE SECURITIES LAW, AND MAY NOT BE TRANSFERRED IN THE ABSENCE OF REGISTRATION THEREUNDER OR AN EXEMPTION THEREFROM.

WARRANT

To Purchase Common Stock of

AXTIVE CORPORATION

a Delaware corporation formerly known as

Edge Technology Group, Inc.

1. Issuance. This Warrant, dated as of May 23, 2003 (the “Issuance Date”), is issued to Demand Aggregation Solutions, LLC, a Texas limited liability company (“DAS”), by Axtive Corporation, a Delaware corporation formerly known as Edge Technology Group, Inc. (hereinafter with its successors called the “Company”). The term “Warrant” as used herein shall include this Warrant and any warrants delivered in substitution or exchange herefor or therefor as provided herein.

2. Exercise of Warrant.

(a) Exercise Price; Number of Shares. This Warrant represents the right to purchase from the Company TWO MILLION FOUR HUNDRED THOUSAND (2,400,000) shares (the “Warrant Shares”) of the Company’s common stock, $0.01 par value (“Common Stock”), at an initial exercise price of Twenty Cents ($0.20) per share (the “Exercise Price”). Until such time as this Warrant is exercised in full or expires, the Exercise Price and the Warrant Shares are subject to adjustments pursuant to the procedures described in Section 8 below.

(b) Exercise Procedure. Subject to the terms and conditions of this Warrant, the registered holder of this Warrant (the “Holder”), is entitled to exercise this Warrant during the Exercise Period, in whole or in part, upon surrender of this Warrant together with payment of the Exercise Price and delivery of the subscription form (as annexed hereto as Addendum A, the “Subscription Form”) duly executed, to be presented at the office of the Company, 1445 Ross Avenue, Suite 4500, Dallas, Texas 75202, or such other office in the United States as the Company shall notify the Holder of in writing.

(c) Exercise Period. This Warrant may be exercised at any time after the second anniversary of the Issuance Date until the earlier of (i) the fourth anniversary of the Issuance Date or (ii) the date of a Deemed Liquidation, as defined below (the “Exercise Period”); provided, however, that the Company shall not effect a Deemed Liquidation without compliance with the provisions of Section 2(d) below.

(d) Deemed Liquidation. For purposes of this Warrant, a “Deemed Liquidation” shall mean (i) any liquidation, dissolution or winding up of the Company, (ii) any sale, conveyance or disposition of all or substantially all of its property or business, (iii) any merger or consolidation with any other corporation or entity (other than a wholly owned subsidiary) or (iv) any other transaction or series of related transactions in which more than fifty percent (50%) of the voting power of the Company will not immediately after such acquisition or transaction be held by the company’s stockholders of record as constituted immediately prior to such acquisition or transaction, provided that a merger effected exclusively for the purpose of changing the domicile of the Company shall not constitute a Deemed Liquidation.

(i) Notice of Transaction. The Company shall give each Holder written notice of a Deemed Liquidation (a “Notice of Liquidation Event”) not later than 10 days prior to the stockholders’ meeting called to approve such transaction, or 10 days prior to the closing of such transaction, whichever is earlier, and shall also notify the Holders in writing of the final approval of such transaction. The first of such notices shall describe the material terms and conditions of the impending transaction and the provisions of this Section 2(d), and the Company shall thereafter

give such Holders prompt notice of any material changes. The transaction shall in no event take place sooner than 10 days after the Company has given the first notice provided for herein or sooner than 5 days after the Company has given notice of any material changes provided for herein; provided, however, that such periods may be shortened upon the written consent of all of the Holders.

(ii) Effect of Noncompliance. In the event the requirements of this Section 2(d) are not complied with, the Company shall forthwith either cause the closing of the transaction to be postponed until such requirements have been complied with, or cancel such transaction.

(iii) Election to Exercise. Upon receipt of a Notice of Liquidation Event, the Holder shall have the right to elect to exercise this Warrant, in whole or in part, as provided for in this Section 2, notwithstanding the prohibition on exercise prior to the second anniversary of the Issuance Date set forth in Section 2(c) above.

3. Payment of Exercise Price. The Holder may make payment of the Exercise Price in cash or by certified or official bank check payable to the order of the Company or by wire transfer of immediately available funds to the account of the Company.

4. Cashless Exercise of Warrants.

(a) Notwithstanding the provisions of Section 3 above, if the Fair Market Value is greater than the Exercise Price (at the date of calculation, as set forth below), in lieu of exercising the Warrant as permitted in Section 2.1(b), the Holder may elect to receive shares of Common Stock equal to the value (as determined below) of the Warrant (or the portion thereof being canceled) by surrender of the Warrant, together with the Subscription Form duly executed, to the Company at its office referred to in Section 2(b) hereof, in which event the Company shall issue to the Holder that number of shares of Common Stock computed using the following formula:

CS = WCS x (FMV - EP)

FMV

Where:

CS equals the number of shares of Common Stock to be issued to the holder of the Warrant;

WCS equals the number of shares of Common Stock purchasable under the Warrant being exercised (at the date of such calculation);

FMV equals the Fair Market Value of one share of the Common Stock (at the date of such calculation); and

EP equals the Exercise Price (as adjusted to the date of such calculation).

(b) For purposes of Rule 144 under the Securities Act, 17 C.F.R. § 230.144, as amended, the parties hereto agree that the exercise of this Warrant in accordance with this Section 2.2 shall be deemed to be a conversion of such Warrant, pursuant to the terms of this Warrant, into Common Stock.

(c) For purposes of this Section 4, “Fair Market Value” shall mean with respect to every share of Common Stock on any date in question (i) the average of the closing bid prices per share of the Common Stock for the previous 15 consecutive trading days (A) on the principal securities exchange or trading market where the Common Stock is listed or traded or, if the foregoing does not apply, (B) in the over-the-counter market on the electronic bulletin board for the Common Stock or (ii), if, and only if, no trading price is reported for the Common Stock, then its Fair Market Value shall be as determined, in good faith by the board of directors of the Company. If the Holder shall object in writing within 5 days of notification of the determination of the Company’s board of directors, then the Fair Market Value shall be

determined by an investment banking firm or appraisal firm (which firm shall own no securities of, and shall not be an affiliate, subsidiary or a related person of, the Company or any Holder) of recognized national standing retained by the Company and acceptable to the Holder.

5. Partial Exercise. This Warrant may be exercised in part, and the Holder shall be entitled to receive a new warrant, which shall be dated as of the date of this Warrant, covering the number of Warrant Shares in respect of which this Warrant shall not have been exercised.

6. Issuance Date. The person or persons in whose name or names any certificate representing Warrant Shares is issued hereunder shall be deemed to have become the holders of record of such shares represented thereby as at the close of business on the date this Warrant is exercised with respect to such shares, whether or not the transfer books of the Company shall be closed. As soon as practicable after the exercise of this Warrant, the Company at its expense (including the payment of any applicable taxes) will use its best lawful efforts to cause the Company’s transfer agent to issue and deliver to Holder a certificate for the number of fully paid nonassessable shares of Common Stock to which such Holder is entitled.

7. Reserved Shares; Valid Issuance. The Company covenants that it will reserve and keep available at all times from and after the date hereof such number of its authorized shares of Common Stock, free from all preemptive or similar rights therein, as will be sufficient to permit the exercise of this Warrant in full. The Company further covenants that such shares as may be issued pursuant to the exercise of this Warrant will, upon issuance, be duly and validly issued, fully paid and nonassessable and free from all taxes, liens and charges with respect to the issuance thereof.

8. Adjustment Provision.

(a) Subdivisions, Split-ups, Combinations and Stock Dividends. If after the Issuance Date the Company shall subdivide the Common Stock, by split up or otherwise, or combine such shares, or issue additional shares in payment of a stock dividend on such shares, the number of shares issuable on the exercise of this Warrant shall forthwith be proportionately increased in the case of a subdivision or stock dividend, or proportionately decreased in the case of a combination, and the Exercise Price shall forthwith be proportionately decreased in the case of a subdivision or stock dividend, or proportionately increased in the case of a combination.

(b) Reclassifications. If after the Issuance Date there shall be any reclassification, capital reorganization or change of the Common Stock (other than as a result of a subdivision, combination or stock dividend provided for in Section 8 (a) hereof), then, as a condition of such reclassification, reorganization or change, lawful provisions shall be made, and duly executed documents evidencing the same from the Company shall be delivered to the Holder, so that the Holder shall thereafter have the right to purchase, at a total price not to exceed that payable upon the exercise of this Warrant in full, the kind and amount of shares of stock and other securities and property receivable upon such reclassification, reorganization or change, by holders of the number of shares of Common Stock which might have been purchased by the Holder immediately prior to such reclassification, reorganization or change, and in such case appropriate provisions shall be made with respect to the rights and interest of the Holder to the end that the provisions hereof (including, without limitation, provisions for the adjustment of the Exercise Price and the number of shares issuable hereunder) shall thereafter be applicable in relation to any shares of stock or other securities and property thereafter deliverable upon exercise hereof.

9. Fractional Shares. In no event shall any fractional share of Common Stock be issued upon any exercise of this Warrant and the number of shares of Common Stock to be issued shall be rounded to the nearest whole share.

10. Certificate of Adjustment. Whenever the Exercise Price or the number of shares issuable hereunder is adjusted, as herein provided, the Company shall promptly deliver to the Holder a certificate of the Company’s Chief Financial Officer setting forth the number of shares issuable hereunder and the Exercise Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment.

11. Notices of Record Date. In the event of:

(a) any taking by the Company of a record of the holders of any class of securities for the purpose of determining the holders thereof who are entitled to receive any dividend or other distribution, or any right to subscribe for, purchase or otherwise acquire any shares of stock of any class or any other securities or property, or to receive any other right,

(b) any reclassification of the capital stock of the Company, capital reorganization of the Company, or

(c) any transaction which would constitute a Deemed Liquidation, then and in each such event the Company will mail or cause to be mailed to the Holder a notice specifying (i) the date on which any such record is to be taken for the purpose of such dividend, distribution or right, and stating the amount and character of such dividend, distribution or right, or (ii) the date on which any such reclassification, reorganization, conveyance or Deemed Liquidation is to take place, and the time, if any is to be fixed, as of which the holders of record in respect of such event are to be determined. Such notice shall be mailed at least 10 days prior to the date specified in such notice on which any such action is to be taken.

12. Amendment. The terms of this Warrant may be amended, modified or waived only with the written consent of the Company and the Holder.

13. Warrant Register; Transfers.

(a) The Company will maintain a register containing the names and addresses of the registered holders of the Warrants. The Holder may change his or its address as shown on the warrant register by written notice to the Company requesting such change. Any notice or written communication required or permitted to be given to the Holder may be given by certified mail or delivered to the Holder at his or its address as shown on the warrant register.

(b) Subject to compliance with applicable federal and state securities laws, this Warrant may be transferred by the Holder with respect to any or all of the Warrant Shares purchasable hereunder. Upon surrender of this Warrant to the Company, together with the assignment hereof (in form substantially similar to Addendum B annexed hereto) properly endorsed for transfer of this Warrant as an entirety by the Holder, the Company shall issue a new warrant of the same denomination to the assignee. Upon surrender of this Warrant to the Company, together with the assignment hereof properly endorsed by the Holder for transfer with respect to a portion of the Warrant Shares purchasable hereunder, the Company shall issue a new warrant to the assignee, in such denomination as shall be requested by the Holder hereof, and shall issue to such Holder a new warrant covering the number of shares in respect of which this Warrant shall not have been transferred.

(c) In case this Warrant shall be mutilated, lost, stolen or destroyed, the Company shall issue a new warrant of like tenor and denomination and deliver the same (i) in exchange and substitution for and upon surrender and cancellation of any mutilated Warrant, or (ii) in lieu of any Warrant lost, stolen or destroyed, upon receipt of evidence reasonably satisfactory to the Company of the loss, theft or destruction of such Warrant (including a reasonably detailed affidavit with respect to the circumstances of any loss, theft or destruction) and of indemnity reasonably satisfactory to the Company.

14. No Impairment. The Company will not, by amendment of its Charter or by-laws or through any reclassification, capital reorganization, consolidation, merger, sale or conveyance of assets, dissolution, liquidation, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Holder.

15. Governing Law. The provisions and terms of this Warrant shall be governed by and construed in accordance with the internal laws of State of Texas, without giving effect to principles of conflicts law.

16. Successors and Assigns. This Warrant shall be binding upon the Company’s successors and assigns and shall inure to the benefit of each of the Holder’s successors, legal representatives and permitted assigns.

IN WITNESS WHEREOF, the Company has caused this Warrant to be executed as an instrument under seal by its duly authorized officer as of the date first above written.

AXTIVE CORPORATION

By:		/s/ GRAHAM C. BEACHUM II
		Graham C. Beachum II President and Chief Executive Officer

Attest:

/s/ DAVID N. PILOTTE

David N. Pilotte,

Secretary

ADDENDUM A

(Form of Subscription)

Date:

The undersigned hereby subscribes for:

shares of Common Stock covered by that certain Warrant issued by Axtive Corporation, dated , to the undersigned.

The certificate(s) for such shares shall be issued in the name of the undersigned or as otherwise indicated below:

Signature

Name for Registration

Mailing Address

ADDENDUM B

(Form of Assignment)

For value received hereby sells, assigns and transfers unto

(Please print or typewrite name and address of Assignee)

the within Warrant, and does hereby irrevocably constitute and appoint its attorney to transfer the within Warrant on the books of the within named Company with full power of substitution in the premises.


Dated:

In the Presence of:

EX-3 5 dex3.htm STOCKHOLDERS AND VOTING AGREEMENT Stockholders and Voting Agreement

Exhibit 3

STOCKHOLDERS AND VOTING AGREEMENT

THIS STOCKHOLDERS AND VOTING AGREEMENT (this “Agreement”), dated as of May 23, 2003, is among Sandera Partners, L.P., a Texas limited partnership (“Sandera”), Global Capital Funding Group, L.P., a Delaware limited partnership (“Global”), GCA Strategic Investment Fund Limited, a Bermuda corporation (“GCA”), and Demand Aggregation Solutions, LLC, a Texas limited liability company (“DAS,” together with Sandera, Global and GCA, collectively referred to as the “Stockholders,” and each, individually, referred to as a “Stockholder”).

RECITALS

A. Each of the Stockholders owns, or will own after consummation of the transactions contemplated by that certain Subscription and Securities Purchase Agreement, dated on even date herewith, among Sandera, DAS, Beachum Investments, LLC, a Texas limited liability company, and Axtive Corporation, a Delaware corporation (the “Company”), the number of shares of the Company’s Series A Convertible Preferred Stock (the “Preferred Stock”) and common stock respectively set forth opposite such Stockholder’s name on Schedule I attached hereto.

B. The Stockholders desire to evidence their agreement with respect to certain other matters in relation to the Company and their respective shares of Preferred Stock and other shares of capital stock of the Company, whether now owned or hereafter acquired (collectively, the “Shares”).

NOW, THEREFORE, in consideration of the premises and the respective covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby covenant and agree as follows:

ARTICLE 1.

BOARD OF DIRECTORS; VOTING; BOARD APPROVAL

1.1 Number of Directors. Each Stockholder hereby agrees to vote all of its Shares so that the Company is at all times during the term of this Agreement managed by or under the direction of a Board of Directors (the “Board”) consisting of seven (7) directors, which shall include the five (5) Agreed Directors (hereinafter defined).

1.2 Election of Directors.

(i) Independent Series A Directors. The Stockholders acknowledge that the terms of the Company’s Certificate of Incorporation and Certificate of Designation for the Series A Convertible Preferred Stock (as amended, restated or otherwise modified form time to time, together with any other charter documents of the Company, collectively, the “Charter Documents”) entitle the holders of the Preferred Stock, voting separately as a class, to elect two (2) directors to the Board (the “Series A Directors”). During the term of this Agreement, each Stockholder shall vote all of its Shares in any election or designation of Series A Directors for an individual who is not (i) an officer or director of such Stockholder, or the Company, or of any Affiliate (as that term is defined in Section 2.2) thereof, or (ii) the holder of more than ten percent (10%) of the voting power of such Stockholder, the Company, or of any Affiliate thereof, or (iii) a Relative (as that term is defined in Section 2.6) of such Stockholder or any person described in the preceding clauses (i) and (ii). Additionally, no Stockholder shall refrain from voting its Shares in any election or designation of Series A Directors to permit the election by other holders of Preferred Stock of any individual described in the preceding sentence.

(b) Agreed Directors. During the term of this Agreement, in addition to its obligations regarding election of Series A Directors set forth in Section 1(a) above, each Stockholder agrees to vote all of its Shares to elect and re-elect the following named individuals (collectively, the “Agreed Directors”) to serve as directors of the Board:

Graham C. Beachum II

Ron Beneke

Paul Morris

Brad Thompson

Alan W. Thompkins

(c) Replacement of Agreed Directors. If during the term of this Agreement any Agreed Director shall resign from the Board or otherwise become unwilling or unable to serve as a director of the Board, then each Stockholder covenants to and agrees with each other Stockholder that it shall (i) not vote any of its Shares and/or otherwise take any action to replace such departing director, unless each of the Stockholders shall have agreed to vote all of their respective Shares to elect the same individual as the replacement director for such departing director, and (ii) in the event all of the Stockholders shall so agree upon a replacement director, thereafter use all reasonable efforts, including the voting of each of its respective Shares, to cause the individual so agreed upon to be elected and re-elected as a director of the Board. Any director elected to the Board by a vote of the Stockholders in accordance with this Section 1.2 shall be deemed to be an Agreed Director for all purposes of this Agreement.

1.3 Removal of Agreed Directors. During the term of this Agreement, no Stockholder shall vote its Shares in favor of the removal of any director designated and elected or appointed pursuant to Section 1.1 or Section 1.2 hereof; provided, however, notwithstanding the provisions of Section 1.2, that all Stockholders may vote all of their respective Shares for the removal and replacement of any Agreed Director to the extent that the Stockholders unanimously agree upon (a) the director to be removed and (b) the individual to be nominated to replace such removed director. Provided, further, that, if the Stockholders have unanimously agreed to vote all of their collective Shares for the removal and replacement of any director, no Stockholder may thereafter vote its respective Shares in contravention of such unanimous agreement of all of the Stockholders. The Stockholders further hereby acknowledge and agree that any replacement director designated by the Stockholders in accordance with this Section 1.3, and so elected to the Board, shall thereafter be deemed to be an Agreed Director for all purposes of this Agreement.

1.4 Proxies. No Stockholder shall give any proxy or power of attorney to any person or entity that permits the holder thereof to vote in its discretion on any matter that may be submitted to the Company’s stockholders for their consideration and approval, unless such proxy or power of attorney is made expressly subject to and is exercised in conformity with the provisions of this Agreement.

1.5 Other Voting. Each Stockholder hereby covenants to and agrees with each other Stockholder that it shall not vote any of its shares of Preferred Stock, or take any action by written consent in lieu of such voting, to amend any term of any Charter Document the effect of which would be to disproportionately and adversely affect the rights, preferences, or privileges of any Stockholder (in its capacity as a holder of Preferred Stock) as compared to any other Stockholder (in its capacity as a holder of Preferred Stock).

ARTICLE 2.

DISPOSITION OF SHARES

2.1 Restrictions on Disposition. So long as this Agreement is in effect, no Stockholder shall sell, assign, transfer, give, encumber, pledge, or in any other way dispose of its Shares, except as otherwise provided in or permitted by this Agreement. Subject to the terms of this Agreement, the Stockholders shall be entitled to exercise all rights of ownership of their Shares.

2.2 Transfers to Members and Affiliates. Any Stockholder shall be entitled to sell, distribute or otherwise transfer its Shares to any Affiliate and/or equity owner of such Stockholder (whether a stockholder, member of partner thereof), except that any such permitted transferee must first agree to execute a consent, in the form attached hereto as Exhibit A, to be bound by the terms of this Agreement. Any such transferring Stockholder

shall remain subject to this Agreement to the extent it retains any of its Shares.

For purposes of this Agreement, the term “Affiliate” means, with respect to any Stockholder (the “Subject Stockholder”), (i) any other individual or legal entity (a “Controlling Person”) that directly, or indirectly through one or more intermediaries, controls the Subject Stockholder, or (ii) any individual or legal entity (other than the Subject Stockholder or a consolidated subsidiary of the Subject Stockholder) which is Controlled by or is under common Control with a Controlling Person. The term “Control” (including, with correlative meanings, the terms “Controlling,” “Controlled by” and under “common Control with”), as used with respect to any individual or legal entity, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such individual or legal entity, whether through the ownership of voting securities, by contract or otherwise.

2.3 Open-market Transfers to Unrelated Parties. Any Stockholder shall be entitled to sell, distribute or otherwise transfer its Shares to any third party so long as such transfer (a) is not made to any other Stockholder, any Affiliate of any Stockholder, any Affiliate of any of the foregoing, or any “related party” (as that term is defined in Regulation S-X promulgated under the Securities Act of 1933, as amended) to any of the foregoing, and (b) is not otherwise intended to result in the ultimate transfer of such Shares to such Stockholder or any prohibited transferee under the preceding clause (a), and (c) is consummated on the open market (including bulletin board listings) through a registered broker. For the avoidance of doubt, any transfer consummated in compliance with this Section 2.3 shall not require the transferee to execute a consent to be bound by the terms of this Agreement.

2.4 Other Transfers.

(a) If (i) any Stockholder shall file a petition in bankruptcy, reorganization, insolvency, readjustment of debt, or arrangement under any bankruptcy, insolvency, dissolution, or liquidation law or file an answer admitting the material allegations of a petition filed against it in any proceeding under such law or shall take any action for the purpose of effecting any of the foregoing, or (ii) any Stockholder shall be required to relinquish all or any part of its Shares pursuant to a divorce settlement or decree of a court pursuant to divorce proceedings, then in either case the other Stockholders (the “Remaining Stockholders”) shall have the unconditional right, but not the obligation, to purchase such Shares for 60 days thereafter at fair market value (as determined by an investment bank or accounting firm of national or regional recognition selected by the Board). Each Remaining Stockholder wishing to purchase such Shares (for purposes of this section only, a “Participating Stockholder”) shall be entitled to purchase that portion of such Shares as is equal to a percentage determined by dividing (y) the number of Shares owned by such Participating Stockholder, computed on a fully diluted basis, by (z) the number of Shares owned by all Participating Stockholders, computed on a fully diluted basis; provided, however, that if any Participating Stockholder shall determine to purchase less than the portion such Participating Stockholder is entitled to purchase under this Section 2.4(a), the other Participating Stockholders shall be entitled to purchase their proportionate percentage of the remaining Shares which would otherwise transfer under an event described in clause (i) or (ii) above.

(b) The time periods during which the Remaining Stockholders may purchase the Shares under this Section 2.4 shall commence (i) in the case of bankruptcy or other event set forth under Section 2.3(a) hereof, on the date of the occurrence of any event set forth thereunder, or (ii) in the case of divorce, on the date the divorce settlement or decree is entered and is filed of record.

(c) If for any reason (other than breach of this Agreement) the available Shares are not purchased under this Section 2.4 within the 60-day period described in Section 2.4(a) hereof, then the available Shares may then be transferred pursuant to the occurrence of an event described in Section 2.4(a), provided the transferee executes a consent, in the form attached hereto as Exhibit A, to be bound by the terms of this Agreement. The transferring Stockholder shall, nonetheless, remain subject to this Agreement to the extent it retains any Shares, including any Shares, which were to be transferred.

2.5 Involuntary Encumbrance. If all or any part of any Stockholder’s Shares are involuntarily encumbered or transferred by judicial process (other than pursuant to bankruptcy or divorce proceedings as provided for in Section 2.4 hereof) to any person (the “Purchaser”) other than the other Stockholders, then any Stockholder whose Shares were not so encumbered or transferred shall have the option, exercisable by written notice to the Purchaser, for a period of six months from the date of encumbrance or transfer by judicial process to purchase the

encumbered or transferred Shares for fair market value. The purchase shall take place on a date selected by the Purchaser within 75 days following the date the purchasing Stockholder gives notice of its intent to exercise the option. If more than one Stockholder exercises the option, then each such Stockholder shall be entitled to purchase that portion of the Shares as is equal to a percentage determined by dividing (a) the number of Shares owned by such Stockholder, computed on a fully diluted basis, by (b) the number of Shares owned by all such Stockholders who exercise the option, computed on a fully diluted basis. If all of the Shares are not purchased by such Stockholders, the Shares shall nevertheless remain subject to the terms and provisions of this Agreement, and the Purchaser shall succeed to the rights and obligations hereunder of the Stockholder from whom the Purchaser acquired the Shares.

2.6 Pledges. If any Stockholder desires to pledge, hypothecate, or encumber any of its Shares as collateral for a loan or for any other obligation or purpose, then such Stockholder may do so only if the proposed pledgee agrees, in connection with such pledge, that if it ultimately acquires all or a portion of such Shares, or if a purchaser at a foreclosure sale or otherwise acquires all or a portion of such Shares, it or they will be bound by all of the terms and provisions of this Agreement, such agreement by the pledgee to be in writing and in form reasonably approved by the Board. Any sale or foreclosure by a lender shall trigger the rights of the other Stockholders pursuant to the foregoing provisions of this Article 2. If for any reason a lender or a purchaser acquires any Shares pursuant to a permitted pledge, then such lender shall execute a consent, in the form attached as Exhibit A, to be bound by this Agreement.

2.7 Expressly Permitted Transfers. Notwithstanding anything to the contrary contained in this Agreement, and without the provisions of Section 2.2, Section 2.3, or Section 2.4 hereof becoming applicable, a Stockholder may make a gift or donation of Shares to such Stockholder’s spouse or any of such Stockholder’s lineal descendants (the term “lineal descendants” shall include adopted children) or to such Stockholder’s parents or any of their lineal descendants (collectively, “Relatives”), or to a trust or family partnership for the benefit of any such persons and/or for the benefit of such Stockholder; provided, however, that any such donee, purchaser, or transferee must execute a consent, in the form attached hereto as Exhibit A, to be bound by the terms of this Agreement. Any transfer to a child who is then under 18 years old must be conditioned upon the transferor Stockholder retaining and reserving for such Stockholder or some other adult or entity reasonably acceptable to the Company the right to do any act with respect to the transferred Shares on behalf of such transferee that is permitted, authorized, or required by this Agreement.

ARTICLE 3.

TERMINATION OF THIS AGREEMENT

This Agreement shall continue until, and shall terminate immediately and automatically upon the earliest to occur of: (a) execution of a written agreement of termination by all of the parties to this Agreement, (b) the sale of all or substantially all of the assets of the Company, (c) any registered public offering of the Company pursuant to which over forty percent (40%) of the Company’s then outstanding shares of common stock may lawfully be traded publicly, (d) any merger of the Company that results in a surviving corporation or other entity other than the Company, the shares of which may lawfully be traded publicly, (e) any time that only one Stockholder continues to own any Shares, or (f) the third (3rd) anniversary of the date of this Agreement.

ARTICLE 4.

MISCELLANEOUS

4.1 Endorsement on Certificates. Upon execution of this Agreement, and subject to the approval of the Company, the stock certificates representing the Shares owned by the Stockholders shall contain substantially the following legend, in addition to any other legends deemed appropriate or necessary by the Company:

This certificate is transferable only upon compliance with and subject to, and the securities evidenced by this certificate must be voted in compliance with and subject to, the provisions of the Stockholders and Voting Agreement, dated as of May , 2003, among certain Stockholders of the Company, a copy of which is on file in the office of the Secretary of the Company at its principal place of business. The Company will furnish a copy of such Stockholders and Voting Agreement to the record holder of this certificate, without charge, upon written request to the Company at its principal place of business.

4.2 Tax Stamps; Negotiable Form. Whenever any of the Shares are to be transferred pursuant to this Agreement, the person transferring such Shares shall affix to the stock certificates representing such Shares any necessary documentary stamp taxes and shall deliver such certificates in negotiable form for transfer without necessity for further endorsement.

4.3 Enforcement. No sale, assignment, transfer, pledge, or other disposition of any Shares shall be effective unless and until the terms and provisions of this Agreement are complied with, and in case of violation of this Agreement by the attempted transfer of the Shares without compliance with the terms and provisions hereof, such sale, assignment, transfer, pledge, or other disposition shall be invalid and of no effect and the Stockholders who are not attempting to transfer the Shares shall have the right to compel the Stockholder who is attempting to transfer the Shares, and/or the purported transferee, to transfer and deliver the same in accordance with this Agreement.

4.4 Specific Performance. The parties hereto recognize that it is to the benefit of the Stockholders that this Agreement be carried out; and for those and other reasons, the parties hereto would be irreparably damaged if this Agreement is not specifically enforced in the event of a breach hereof. If any controversy concerning the rights or obligations to purchase or sell any of the Shares arises, or if this Agreement is breached, then the parties hereto hereby agree that remedies at law might be inadequate and that, therefore, such rights and obligations, and this Agreement, shall be enforceable by specific performance. The remedy of specific performance shall not be an exclusive remedy, but shall be cumulative of all other rights and remedies of the parties hereto at law, in equity, or under this Agreement.

4.5 Failure to Deliver Stock. If a Stockholder (or its personal representative) having become obligated to sell its Shares hereunder shall fail to deliver the certificates representing such Shares in accordance with the terms of this Agreement, then the purchaser of such Shares may, at its option, in addition to all other remedies he or it may have, send to such obligated Stockholder (or its personal representative) by registered mail, return receipt requested, the applicable purchase price for such Shares. Thereupon, the purchaser of such Shares shall be entitled to request the Company to (a) cancel on its books the certificates representing the Shares to be sold, (b) issue in the name of the purchaser, in lieu thereof, a new certificate representing such Shares, and (c) deliver such new certificate to the purchaser; and each Stockholder hereby agrees that the Company, upon prior written notice to such obligated Stockholder, shall be entitled to take such actions as are set out in the immediately preceding clauses (a) through (c) without incurring any liability to such obligated Stockholder, and that thereupon all of the rights of such obligated Stockholder (or its personal representative) in and to said Shares shall terminate. EACH STOCKHOLDER HEREBY ACKNOWLEDGES AND AGREES THAT THE COMPANY IS A THIRD-PARTY BENEFICIARY OF, AND IS ENTITLED TO RELY UPON, THE PROVISIONS OF THIS SECTION 4.5.

4.6 Transferee and Future Stockholders. Except as provided in Section 2.3, the Stockholders shall cause any transferee of any Shares, and such transferee’s spouse, to execute a consent, in the form attached hereto as Exhibit A, to be bound by the terms of this Agreement.

4.7 Notices. Any notice or other communication required or permitted to be given under this Agreement must be in writing and given by (a) deposit in the United States mail, addressed to the party to be notified, postage prepaid and registered or certified with return receipt requested, (b) delivery in person, by courier service, or by overnight delivery service, or (c) transmission by telecopy. Each notice or communication that is mailed, delivered, or transmitted in the manner described above shall be deemed sufficiently given, served, sent, and received, in the case of mailed notices, on the third business day following the date on which it is mailed and, in the case of notices delivered by hand, courier service, overnight delivery service, or telecopy, at such time as it is delivered to the addressee (with the delivery receipt or the affidavit of the courier service or overnight delivery service being proof of delivery) or at such time as delivery is refused by the addressee upon presentation. For purposes of notice, the addresses of the parties shall be the addresses set forth beside the signatures of the parties hereto. Any party may change its address for notice by written notice given to the other parties hereto. A copy of any notice or other communication to DAS must be sent to c/o Beneke Companies, Inc., 8080 N. Central Expressway, Suite 1580, Dallas, TX 75206, Telecopy: .

4.8 Binding Effect. This Agreement shall be binding upon and enforceable by the parties hereto and their respective executors, administrators, successors, personal representatives, heirs, and assigns.

4.9 Entire Agreement. This Agreement and the Exhibits hereto constitute the entire agreement and understanding between the parties relating to the subject matter hereof and thereof and supersede all prior representations, endorsements, premises, agreements, memoranda, communications, negotiations, discussions, understandings, and arrangements, whether oral, written, or inferred, between the parties relating to the subject matter hereof. This Agreement may not be modified, amended, rescinded, canceled, altered, or supplemented, in whole or in part, except upon the execution and delivery of a written instrument executed by a duly authorized representative of each of the parties hereto.

4.10 Amendments. This Agreement may not be modified, amended, rescinded, canceled, altered, or supplemented, in whole or in part, except upon the execution and delivery of a written instrument executed by each of the Stockholders (including any party bound hereby pursuant to the execution of a consent in the form attached hereto as Exhibit A).

4.11 Waiver. The waiver of any breach of any term or condition of this Agreement shall not be deemed to constitute the waiver of any other breach of the same or any other term or condition.

4.12 Governing Law. This Agreement shall be governed by and construed and enforced in all respects in accordance with the laws of the State of Texas without regard to the conflicts of laws principles thereof. The parties agree that any litigation directly or indirectly relating to this Agreement must be brought before and determined by a court of competent jurisdiction within Dallas County, Texas, and the parties hereby agree to waive any rights to object to, and hereby agree to submit to, the jurisdiction of such courts.

4.13 Severability. If any provision of this Agreement is held to be illegal, invalid, or unenforceable under present or future laws effective during the term hereof, such provision shall be fully severable and this Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable provision never comprised a part hereof; and the remaining provisions hereof shall remain in full force and effect and shall not be affected by the illegal, invalid, or unenforceable provision or by its severance herefrom. Furthermore, in lieu of such illegal, invalid, or unenforceable provision, there shall be added automatically as part of this Agreement, a provision as similar in its terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable.

4.14 No Third Party Beneficiaries. Except to the extent a third party is expressly given rights herein, any agreement contained, expressed or implied in this Agreement shall be only for the benefit of the parties hereto and their respective legal representatives, successors, heirs, and assigns and such agreements shall not inure to the benefit of the obligees of any indebtedness of any party hereto, it being the intention of the parties hereto that no person or entity shall be deemed a third party beneficiary of this Agreement, except to the extent a third party is expressly given rights herein.

4.15 Time is of the Essence. Time is of the essence with respect to all time periods and dates referenced in this Agreement.

4.16 Interpretation. If at any time the Shares of a Stockholder shall be transferred to an individual, as permitted pursuant under this Agreement, the term “Stockholder” shall also be deemed to include such Stockholder as appropriate in the context of the related provision.

4.17 Headings. The headings of the Articles and Sections of this Agreement have been inserted for convenience of reference only and shall in no way restrict or otherwise modify any of the terms or provisions hereof or affect in any way the meaning or interpretation of this Agreement.

4.18 Gender; Number. The use of terms denoting masculine, feminine, or neuter gender shall include each other gender. The use of singular or plural references shall include the other where appropriate.

4.19 Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute but one and the same instrument. Facsimile transmission of any signed original document and/or retransmission of any signed facsimile transmission will be deemed the same as delivery of an original. At the request of any party, the parties will confirm facsimile transmission by signing a duplicate original document.

IN WITNESS WHEREOF, the parties hereto have duly executed this Stockholders and Voting Agreement as of the date first written above.

DEMAND AGGREGATION SOLUTIONS, LLC, a Texas limited liability company

By:		/s/ RON BENEKE
Name:		Ron Beneke
Title:		Management Committee

Address:

1445 Ross Avenue, Suite 4500 Dallas, Texas 75202 Fax: 214-397-0228 Tel.: 214-397-0200

SANDERA PARTNERS, L.P., a Texas limited partnership

By:	SANDERA CAPITAL MANAGEMENT, L.P., its sole general partner

	By:	SANDERA CAPITAL, L.L.C., its sole general partner

		By:	/s/ J. KEITH BENEDICT
		Name:	J. Keith Benedict
		Title:	Vice President

Address:

1601 Elm Street, Suite 4000 Dallas, Texas 75201 Fax: 214-720-1612 Tel.: 214-720-1600

GLOBAL CAPITAL FUNDING GROUP, L.P., a Delaware limited partnership

By:	GLOBAL CAPITAL MANAGEMENT SERVICES, INC., its general partner

	By:	/s/ LEWIS N. LESTER
	Name:	Lewis N. Lester
	Title:	President

Address:

106 Colony Park Drive, Suite 900 Cumming, Georgia 30040 Attn: Brad A. Thompson Fax: 678-947-6499 Tel.: 678-947-0028

GCA STRATEGIC INVESTMENT FUND LIMITED, a Bermuda corporation

By:		/s/ LEWIS N. LESTER
Name:		Lewis N. Lester
Title:		Director

Address:

227 King Street Frederiksted, St. Croix, USVI 00840 Attn: Lewis N. Lester Fax: 340-719-3974 Tel.: 340-772-7772

EXHIBIT A

Consent

The undersigned, having purchased shares of capital stock of Axtive Corporation, a Delaware corporation (the “Company”), hereby agrees to be bound by the terms and conditions of the Shareholders and Voting Agreement among certain shareholders of the Company, the form of which is attached hereto.


Name

Signature:

Address:



Telecopy

No. and Type of Shares

I, the undersigned, being the spouse of the above-named Shareholder, hereby acknowledge that I have read and understand the Shareholders and Voting Agreement, and I agree to be bound by the terms thereof, including, but not limited to, Article 2 thereof.


Name

Signature:

SCHEDULE I

Stockholder	Common Shares	Series A Preferred Shares (and converted shares at $0.10)		Warrant Shares	Total Shares, fully diluted
Sandera Partners, L.P.	2,380,357	2,250 (22,500,000	)	4,500,000	29,380,357
Global Capital Funding Group, L.P.	0	1,250 (12,500,000	)	2,500,000	15,00,000
GCA Strategic Investment Fund Limited	7,107,787	1,000 (10,000,000	)	2,000,000	19,107,787
Demand Aggregation Solutions, LLC	0	1,200 (12,000,000	)	2,400,000	14,400,000

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