EXHIBIT 10.1
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT ("Agreement") is made as of the 10th day of
March, 2005 by and among Endocare, Inc., a Delaware corporation (the "Company"),
and the Investors set forth on the signature pages affixed hereto (each an
"Investor" and collectively the "Investors").
RECITALS
A. The Company and the Investors are executing and delivering this
Agreement in reliance upon the exemption from securities registration afforded
by the provisions of Regulation D ("Regulation D"), as promulgated by the U.S.
Securities and Exchange Commission (the "SEC") under the Securities Act of 1933,
as amended; and
B. The Investors wish to purchase from the Company, and the Company
wishes to sell and issue to the Investors, upon the terms and conditions stated
in this Agreement, (i) an aggregate of 5,635,379 shares of the Company's Common
Stock, par value $0.001 per share (together with any securities into which such
shares may be reclassified the "Common Stock"), at purchase price of $2.77 per
share, (ii) Series A warrants to purchase an aggregate of 1,972,382 shares of
Common Stock (subject to adjustment) at an exercise price of $3.50 per share
(subject to adjustment) in the form attached hereto as Exhibit A (the "Series A
Warrants"), and (iii) Series B warrants to purchase an aggregate of 1,972,382
shares of Common Stock (subject to adjustment) at an exercise price of $4.00 per
share (subject to adjustment) in the form attached hereto as Exhibit B (together
with the Series A Warrants, the "Warrants"); and
C. Contemporaneous with the sale of the Common Stock and Warrants,
the parties hereto will execute and deliver a Registration Rights Agreement, in
the form attached hereto as Exhibit C (the "Registration Rights Agreement"),
pursuant to which the Company will agree to provide certain registration rights
under the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder, and applicable state securities laws.
In consideration of the mutual promises made herein and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. In addition to those terms defined above and elsewhere
in this Agreement, for the purposes of this Agreement, the following terms shall
have the meanings set forth below:
"Affiliate" means, with respect to any Person, any other Person
which directly or indirectly through one or more intermediaries Controls, is
controlled by, or is under common control with, such Person.
"Business Day" means a day, other than a Saturday or Sunday, on
which banks in New York City are open for the general transaction of business.
"Company's Knowledge" means the actual knowledge of the executive
officers (as defined in Rule 405 under the 0000 Xxx) of the Company, after due
inquiry.
"Confidential Information" means trade secrets, confidential
information and know-how (including but not limited to ideas, formulae,
compositions, processes, procedures and techniques, research and development
information, computer program code, performance specifications, support
documentation, drawings, specifications, designs, business and marketing plans,
and customer and supplier lists and related information).
"Control" (including the terms "controlling", "controlled by" or
"under common control with") means the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise.
"Effective Date" means the date on which the initial Registration
Statement is declared effective by the SEC.
"Effectiveness Deadline" means the date on which the initial
Registration Statement is required to be declared effective by the SEC under the
terms of the Registration Rights Agreement.
"Intellectual Property" means all of the following: (i) patents,
patent applications, patent disclosures and inventions (whether or not
patentable and whether or not reduced to practice); (ii) trademarks, service
marks, trade dress, trade names, corporate names, logos, slogans and Internet
domain names, together with all goodwill associated with each of the foregoing;
(iii) copyrights and copyrightable works; (iv) registrations, applications and
renewals for any of the foregoing; and (v) proprietary computer software
(including but not limited to data, data bases and documentation).
"Material Adverse Effect" means a material adverse effect on (i) the
assets, liabilities, results of operations, condition (financial or otherwise)
or business of the Company and its Subsidiaries taken as a whole, or (ii) the
ability of the Company to perform its obligations under the Transaction
Documents.
"Person" means an individual, corporation, partnership, limited
liability company, trust, business trust, association, joint stock company,
joint venture, sole proprietorship, unincorporated organization, governmental
authority or any other form of entity not specifically listed herein.
"Purchase Price" means Fifteen Million Six Hundred Ten Thousand
Dollars ($15,610,000).
"SEC Filings" has the meaning set forth in Section 4.6.
"Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Securities" means the Shares, the Warrants and the Warrant Shares.
"Shares" means the shares of Common Stock being purchased by the
Investors hereunder.
"Subsidiary" of any Person means another Person, an amount of the
voting securities, other voting ownership or voting partnership interests of
which is sufficient to elect at least a majority of its Board of Directors or
other governing body (or, if there are no such voting interests, 50% or more of
the equity interests of which) is owned directly or indirectly by such first
Person.
"Transaction Documents" means this Agreement, the Warrants and the
Registration Rights Agreement.
"Warrant Shares" means the shares of Common Stock issuable upon the
exercise of the Warrants.
"1933 Act" means the Securities Act of 1933, as amended, or any
successor statute, and the rules and regulations promulgated thereunder.
"1934 Act" means the Securities Exchange Act of 1934, as amended, or
any successor statute, and the rules and regulations promulgated thereunder.
2. Purchase and Sale of the Shares and Warrants. Subject to the terms
and conditions of this Agreement, on the Closing Date, each of the Investors
shall severally, and not jointly, purchase, and the Company shall sell and issue
to the Investors, the Shares and Warrants in the respective amounts set forth
opposite the Investors' names on the signature pages attached hereto in exchange
for the Purchase Price as specified in Section 3 below.
3. Closing. Upon confirmation that the other conditions to closing
specified herein have been satisfied or duly waived by the Investors, the
Company shall deliver to Xxxxxxxxxx Xxxxxxx PC, a copy of an instruction letter
from the Company to the Company's transfer agent irrevocably instructing the
transfer agent to issue a certificate or certificates, registered in such name
or names as the Investors may designate, representing the Shares and Warrants.
Upon the receipt by Xxxxxxxxxx Xxxxxxx PC of a copy of such instruction letter,
each Investor shall promptly, but no more than one Business Day thereafter,
cause a wire transfer in same day funds to be sent to the account of the Company
as instructed in writing by the Company, in an amount representing such
Investor's pro rata portion of the Purchase Price as set forth on the signature
pages to this Agreement. The closing of the purchase and sale of the Shares and
Warrants (the "Closing") shall occur on the date (the "Closing Date") that (i)
all of the Investors have executed and delivered to the Company the Transaction
Documents to which they are a party for an aggregate investment equal to the
Purchase Price and (ii) the Company receives at least
$8,000,000 of the Purchase Price. The Closing shall take place at the offices of
Xxxxxxxxxx Xxxxxxx PC, 1251 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, or at such other location and on such other date as the Company and
the Investors shall mutually agree. After the Closing, the Company may hold one
or more subsequent closings, all of which shall be within five (5) Business Days
of the Closing and all of which shall be on the same terms as provided herein.
4. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Investors that, except as set forth in the
schedules delivered herewith (collectively, the "Disclosure Schedules"):
4.1 Organization, Good Standing and Qualification. Each of the
Company and its Subsidiaries is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation and
has all requisite corporate power and authority to carry on its business as now
conducted and to own its properties. Except as described on Schedule 4.1 hereto,
each of the Company and its Subsidiaries is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property makes such
qualification or leasing necessary unless the failure to so qualify has not and
could not reasonably be expected to have a Material Adverse Effect. The
Company's Subsidiaries are listed on Schedule 4.1 hereto.
4.2 Authorization. The Company has full power and authority and
has taken all requisite action on the part of the Company, its officers,
directors and stockholders necessary for (i) the authorization, execution and
delivery of the Transaction Documents, (ii) the authorization of the performance
of all obligations of the Company hereunder or thereunder, and (iii) the
authorization, issuance (or reservation for issuance) and delivery of the
Securities. The Transaction Documents constitute the legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability, relating
to or affecting creditors' rights generally or by other equitable principles of
general application.
4.3 Capitalization. Schedule 4.3 sets forth as of a recent date,
(a) the authorized capital stock of the Company on the date hereof; (b) the
number of shares of capital stock issued and outstanding; (c) the number of
shares of capital stock issuable pursuant to the Company's stock plans; and (d)
the number of shares of capital stock issuable and reserved for issuance
pursuant to securities (other than the Shares and the Warrants) exercisable for,
or convertible into or exchangeable for any shares of capital stock of the
Company. All of the issued and outstanding shares of the Company's capital stock
have been duly authorized and validly issued and are fully paid, nonassessable
and free of pre-emptive rights and were issued in material compliance with
applicable state and federal securities law and any rights of third parties.
Except as described on Schedule 4.3, all of the issued and outstanding shares of
capital stock of each Subsidiary have been duly authorized and validly issued
and are fully paid, nonassessable and free of pre-emptive rights, were issued in
material compliance with applicable state and federal securities law and any
rights of third parties and are owned by the Company, beneficially and of
record, subject to no lien, encumbrance or other adverse claim. Except as
described on Schedule 4.3, no Person is entitled to pre-emptive or similar
statutory or contractual rights with respect to any securities of the Company.
Except as described on Schedule 4.3, there are no outstanding warrants, options,
convertible securities or other rights, agreements or arrangements of any
character under which the Company or any of its Subsidiaries is or may be
obligated to issue any equity securities of any kind and except as contemplated
by this Agreement, neither the Company nor any of its Subsidiaries is currently
in negotiations for the issuance of any equity securities of any kind. Except as
described on Schedule 4.3 and except for the Registration Rights Agreement,
there are no voting agreements, buy-sell agreements, option or right of first
purchase agreements or other agreements of any kind among the Company and any of
the securityholders of the Company relating to the securities of the Company
held by them. Except as described on Schedule 4.3 and except as provided in the
Registration Rights Agreement, no Person has the right to require the Company to
register any securities of the Company under the 1933 Act, whether on a demand
basis or in connection with the registration of securities of the Company for
its own account or for the account of any other Person.
Except as described on Schedule 4.3, the issuance and sale of the
Securities hereunder will not obligate the Company to issue shares of Common
Stock or other securities to any other Person (other than the Investors) and
will not result in the adjustment of the exercise, conversion, exchange or reset
price of any outstanding security.
Except as disclosed in the SEC Filings (as defined below), the
Company does not have outstanding stockholder purchase rights or "poison pill"
or any similar arrangement in effect giving any Person the right to purchase any
equity interest in the Company upon the occurrence of certain events.
4.4 Valid Issuance. The Shares have been duly and validly
authorized and, when issued and paid for pursuant to this Agreement, will be
validly issued, fully paid and nonassessable, and shall be free and clear of all
encumbrances and restrictions (other than those created by the Investors),
except for restrictions on transfer set forth in the Transaction Documents or
imposed by applicable securities laws. The Warrants have been duly and validly
authorized. Upon the due exercise of the Warrants, the Warrant Shares will be
validly issued, fully paid and non-assessable free and clear of all encumbrances
and restrictions, except for restrictions on transfer set forth in the
Transaction Documents or imposed by applicable securities laws and except for
those created by the Investors. The Company has reserved a sufficient number of
shares of Common Stock for issuance upon the exercise of the Warrants, free and
clear of all encumbrances and restrictions, except for restrictions on transfer
set forth in the Transaction Documents or imposed by applicable securities laws
and except for those created by the Investors.
4.5 Consents. The execution, delivery and performance by the
Company of the Transaction Documents and the offer, issuance and sale of the
Securities require no consent of, action by or in respect of, or filing with,
any Person, governmental body, agency, or official other than filings that have
been made pursuant to applicable state securities laws and post-sale filings
pursuant to applicable state and federal securities laws which the Company
undertakes to file within the applicable time periods. Subject to the accuracy
of the representations and warranties of each Investor set forth in Section 5
hereof, the Company has taken all action
necessary to exempt (i) the issuance and sale of the Securities, (ii) the
issuance of the Warrant Shares upon due exercise of the Warrants, and (iii) the
other transactions contemplated by the Transaction Documents from the provisions
of any stockholder rights plan or other "poison pill" arrangement, any
anti-takeover, business combination or control share law or statute binding on
the Company or to which the Company or any of its assets and properties may be
subject and any provision of the Company's Certificate of Incorporation or
By-laws that is or could reasonably be expected to become applicable to the
Investors as a result of the transactions contemplated hereby, including without
limitation, the issuance of the Securities and the ownership, disposition or
voting of the Securities by the Investors or the exercise of any right granted
to the Investors pursuant to this Agreement or the other Transaction Documents.
4.6 Delivery of SEC Filings; Business. The Company has made
available to the Investors through the XXXXX system, true and complete copies of
the Company's most recent Annual Report on Form 10-K for the fiscal year ended
December 31, 2003, as amended prior to the date hereof (the "10-K"), and all
other reports filed by the Company pursuant to the 1934 Act since the filing of
the 10-K and prior to the date hereof (collectively, the "SEC Filings"). The SEC
Filings are the only filings required of the Company pursuant to the 1934 Act
for such period. The Company and its Subsidiaries are engaged in all material
respects only in the business described in the SEC Filings and the SEC Filings,
as of their respective filing dates, contain a complete and accurate description
in all material respects of the business of the Company and its Subsidiaries,
taken as a whole.
4.7 Use of Proceeds. The net proceeds of the sale of the Shares
and the Warrants hereunder shall be used by the Company for working capital, to
pay expenses incurred in connection with the transactions contemplated by this
Agreement and general corporate purposes.
4.8 No Material Adverse Change. Since December 31, 2003, except as
identified and described in the SEC Filings or as described on Schedule 4.8,
there has not been:
(i) any change in the consolidated assets, liabilities,
financial condition or operating results of the Company from that reflected in
the financial statements included in the Company's Quarterly Report on Form 10-Q
for the quarter ended September 30, 2004, except for changes in the ordinary
course of business which have not had and could not reasonably be expected to
have a Material Adverse Effect;
(ii) any declaration or payment of any dividend, or any
authorization or payment of any distribution, on any of the capital stock of the
Company, or any redemption or repurchase of any securities of the Company;
(iii) any material damage, destruction or loss, whether or not
covered by insurance to any assets or properties of the Company or its
Subsidiaries;
(iv) any waiver, not in the ordinary course of business, by
the Company or any Subsidiary of a material right or of a material debt owed to
it;
(v) any satisfaction or discharge of any lien, claim or
encumbrance or payment of any obligation by the Company or a Subsidiary, except
in the ordinary course of business and which would not have a Material Adverse
Effect;
(vi) any change or amendment to the Company's Certificate of
Incorporation or by-laws, or material change to any material contract or
arrangement by which the Company or any Subsidiary is bound or to which any of
their respective assets or properties is subject;
(vii) any material labor difficulties or labor union
organizing activities with respect to employees of the Company or any
Subsidiary;
(viii) any material transaction entered into by the Company or
a Subsidiary other than in the ordinary course of business;
(ix) the loss of the services of any key employee;
(x) the loss or threatened loss of any customer which has
had or could reasonably be expected to have a Material Adverse Effect; or
(xi) any other event or condition of any character that has
had a Material Adverse Effect.
4.9 SEC Filings. At the time of filing thereof, the SEC Filings
complied as to form in all material respects with the requirements of the 1934
Act and did not contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements made therein, in the
light of the circumstances under which they were made, not misleading.
4.10 No Conflict, Breach, Violation or Default. The execution,
delivery and performance of the Transaction Documents by the Company and the
issuance and sale of the Securities will not conflict with or result in a breach
or violation of any of the terms and provisions of, or constitute a default
under (i) the Company's Certificate of Incorporation or the Company's Bylaws,
both as in effect on the date hereof (true and complete copies of which have
been made available to the Investors through the XXXXX system), or (ii)(a) any
statute, rule, regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over the Company, any Subsidiary
or any of their respective assets or properties, or (b) any agreement or
instrument to which the Company or any Subsidiary is a party or by which the
Company or a Subsidiary is bound or to which any of their respective assets or
properties is subject.
4.11 Tax Matters. Except as described in Schedule 4.11, the Company
and each Subsidiary has timely prepared and filed all tax returns required to
have been filed by the Company or such Subsidiary with all appropriate
governmental agencies and timely paid all taxes shown thereon or otherwise owed
by it. The charges, accruals and reserves on the books of the Company in respect
of taxes for all fiscal periods are adequate in all material respects, and
there are no material unpaid assessments against the Company or any Subsidiary
nor, to the Company's Knowledge, any basis for the assessment of any additional
taxes, penalties or interest for any fiscal period or audits by any federal,
state or local taxing authority except for any assessment which is not material
to the Company and its Subsidiaries, taken as a whole. All taxes and other
assessments and levies that the Company or any Subsidiary is required to
withhold or to collect for payment have been duly withheld and collected and
paid to the proper governmental entity or third party when due. There are no tax
liens or claims pending or, to the Company's Knowledge, threatened against the
Company or any Subsidiary or any of their respective assets or property. Except
as described on Schedule 4.11, there are no outstanding tax sharing agreements
or other such arrangements between the Company and any Subsidiary or other
corporation or entity.
4.12 Title to Properties. Except as disclosed in the SEC Filings,
the Company and each Subsidiary has good and marketable title to all real
properties and all other properties and assets owned by it, in each case free
from liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or currently planned to be
made thereof by them; and except as disclosed in the SEC Filings, the Company
and each Subsidiary holds any leased real or personal property under valid and
enforceable leases with no exceptions that would materially interfere with the
use made or currently planned to be made thereof by them.
4.13 Certificates, Authorities and Permits. The Company and each
Subsidiary possess adequate certificates, authorities or permits issued by
appropriate governmental agencies or bodies necessary to conduct the business
now operated by it, except where the failure to so possess has not had and could
not reasonably be expected to have a Material Adverse Effect, individually or in
the aggregate; and neither the Company nor any Subsidiary has received any
notice of proceedings relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to the Company or
such Subsidiary, could reasonably be expected to have a Material Adverse Effect,
individually or in the aggregate.
4.14 Labor Matters.
(a) Except as set forth on Schedule 4.14, the Company is not
a party to or bound by any collective bargaining agreements or other agreements
with labor organizations. The Company has not violated in any material respect
any laws, regulations, orders or contract terms, affecting the collective
bargaining rights of employees, labor organizations or any laws, regulations or
orders affecting employment discrimination, equal opportunity employment, or
employees' health, safety, welfare, wages and hours.
(b) (i) There are no labor disputes existing, or to the
Company's Knowledge, threatened, involving strikes, slow-downs, work stoppages,
job actions, disputes, lockouts or any other disruptions of or by the Company's
employees, (ii) there are no unfair labor practices or petitions for election
pending or, to the Company's Knowledge, threatened before the National Labor
Relations Board or any other federal, state or local labor commission relating
to the Company's employees, (iii) no demand for recognition or certification
heretofore made by any labor organization or group of employees is pending with
respect to the Company and (iv) to
the Company's Knowledge, the Company enjoys good labor and employee relations
with its employees and labor organizations.
(c) The Company is in compliance in all material respects
with all applicable laws respecting employment (including laws relating to
classification of employees and independent contractors) and employment
practices, terms and conditions of employment, wages and hours, and immigration
and naturalization. There no claims are pending against the Company before the
Equal Employment Opportunity Commission or any other administrative body or in
any court asserting any violation of Title VII of the Civil Rights Act of 1964,
the Age Discrimination Act of 1967, 42 U.S.C. Sections 1981 or 1983 or any other
federal, state or local Law, statute or ordinance barring discrimination in
employment.
(d) To the Company's Knowledge, the Company has no liability
for the improper classification by the Company of such employees as independent
contractors or leased employees prior to the Closing.
4.15 Intellectual Property.
(a) No Intellectual Property owned or licensed by the
Company or its Subsidiaries has been or is now involved in any cancellation,
dispute or litigation, and, to the Company's Knowledge, no such action is
threatened. No patent of the Company or its Subsidiaries has been or is now
involved in any interference, reissue, re-examination or opposition proceeding.
(b) All of the material licenses and sublicenses and
consent, royalty or other agreements concerning Intellectual Property to which
the Company or any Subsidiary is a party or by which any of their assets are
bound (other than generally commercially available, non-custom, off-the-shelf
software application programs having a retail acquisition price of less than
$10,000 per license) (collectively, "License Agreements") are valid and binding
obligations of the Company or its Subsidiaries that are parties thereto and, to
the Company's Knowledge, the other parties thereto, enforceable in accordance
with their terms, except to the extent that enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other similar laws affecting the enforcement of creditors' rights generally,
and, to the Company's Knowledge, there exists no event or condition which will
result in a material violation or breach of or constitute (with or without due
notice or lapse of time or both) a default by the Company or any of its
Subsidiaries under any such License Agreement.
(c) The Company and its Subsidiaries have a valid and
enforceable right to use all third party Intellectual Property and Confidential
Information used or held for use in the respective businesses of the Company and
its Subsidiaries.
(d) The conduct of the Company's and its Subsidiaries'
businesses as currently conducted does not infringe or otherwise impair or
conflict in any material respect with (collectively, "Infringe") any
Intellectual Property rights of any third party or any confidentiality
obligation owed to a third party, and, to the Company's Knowledge, the
Intellectual Property and Confidential Information of the Company and its
Subsidiaries are not being Infringed by any
third party. There is no litigation or order pending or outstanding or, to the
Company's Knowledge, threatened or imminent, that seeks to limit or challenge or
that concerns the ownership, use, validity or enforceability of any Intellectual
Property or Confidential Information of the Company and its Subsidiaries and the
Company's and its Subsidiaries' use of any Intellectual Property or Confidential
Information owned by a third party, and, to the Company's Knowledge, there is no
valid basis for the same.
(e) The consummation of the transactions contemplated hereby
and by the other Transaction Documents will not result in the alteration, loss,
impairment of or restriction on the Company's or any of its Subsidiaries'
ownership or right to use any of the Intellectual Property or Confidential
Information which is necessary for the conduct of Company's and each of its
Subsidiaries' respective businesses as currently conducted or as currently
proposed to be conducted.
(f) The Company and its Subsidiaries have taken reasonable
steps to protect the Company's and its Subsidiaries' rights in their
Intellectual Property and Confidential Information. Except under confidentiality
obligations, there has been no material disclosure of any of the Company's or
its Subsidiaries' Confidential Information to any third party.
4.16 Environmental Matters. Neither the Company nor any Subsidiary
is in violation of any statute, rule, regulation, decision or order of any
governmental agency or body or any court relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances (collectively, "Environmental Laws"), owns or operates any real
property contaminated with any substance that is subject to any Environmental
Laws, is liable for any off-site disposal or contamination pursuant to any
Environmental Laws, and is subject to any claim relating to any Environmental
Laws, which violation, contamination, liability or claim has had or could
reasonably be expected to have a Material Adverse Effect, individually or in the
aggregate; and there is no pending or, to the Company's Knowledge, threatened
investigation that might lead to such a claim.
4.17 Litigation. Except as disclosed in the SEC Filings or as
described on Schedule 4.17, there are no pending actions, suits or proceedings
against or affecting the Company, its Subsidiaries or any of its or their
properties; and to the Company's Knowledge, no such actions, suits or
proceedings are threatened or contemplated.
4.18 Financial Statements. The financial statements included in
each SEC Filing present fairly, in all material respects, the consolidated
financial position of the Company as of the dates shown and its consolidated
results of operations and cash flows for the periods shown, and such financial
statements have been prepared in conformity with United States generally
accepted accounting principles applied on a consistent basis ("GAAP") (except as
may be disclosed therein or in the notes thereto, and, in the case of quarterly
financial statements, as permitted by Form 10-Q under the 1934 Act). Except as
set forth in the financial statements of the Company included in the SEC Filings
filed prior to the date hereof or as described on Schedule 4.18, neither the
Company nor any of its Subsidiaries has incurred any liabilities, contingent or
otherwise, except those incurred in the ordinary course of business, consistent
(as
to amount and nature) with past practices since the date of such financial
statements, none of which, individually or in the aggregate, have had or could
reasonably be expected to have a Material Adverse Effect.
4.19 Insurance Coverage. The Company and each Subsidiary maintains
in full force and effect insurance coverage that is customary for comparably
situated companies for the business being conducted and properties owned or
leased by the Company and each Subsidiary, and the Company reasonably believes
such insurance coverage to be adequate against all liabilities, claims and risks
against which it is customary for comparably situated companies to insure.
4.20 [Intentionally Omitted]
4.21 Brokers and Finders. No Person will have, as a result of the
transactions contemplated by the Transaction Documents, any valid right,
interest or claim against or upon the Company, any Subsidiary or an Investor for
any commission, fee or other compensation pursuant to any agreement, arrangement
or understanding entered into by or on behalf of the Company, other than as
described in Schedule 4.21.
4.22 No Directed Selling Efforts or General Solicitation. Neither
the Company nor any Person acting on its behalf has conducted any general
solicitation or general advertising (as those terms are used in Regulation D) in
connection with the offer or sale of any of the Securities.
4.23 No Integrated Offering. Neither the Company nor any of its
Affiliates, nor any Person acting on its or their behalf has, directly or
indirectly, made any offers or sales of any Company security or solicited any
offers to buy any security, under circumstances that would adversely affect
reliance by the Company on Section 4(2) for the exemption from registration for
the transactions contemplated hereby or would require registration of the
Securities under the 1933 Act.
4.24 Private Placement. The offer and sale of the Securities to the
Investors as contemplated hereby is exempt from the registration requirements of
the 1933 Act.
4.25 Questionable Payments. Since January 1, 2004, neither the
Company nor any of its Subsidiaries nor, to the Company's Knowledge, any of
their respective current or former stockholders, directors, officers, employees,
agents or other Persons acting on behalf of the Company or any Subsidiary, has
on behalf of the Company or any Subsidiary or in connection with their
respective businesses: (a) used any corporate funds for unlawful contributions,
gifts, entertainment or other unlawful expenses relating to political activity;
(b) made any direct or indirect unlawful payments to any governmental officials
or employees from corporate funds; (c) established or maintained any unlawful or
unrecorded fund of corporate monies or other assets; (d) made any false or
fictitious entries on the books and records of the Company or any Subsidiary; or
(e) made any unlawful bribe, rebate, payoff, influence payment, kickback or
other unlawful payment of any nature.
4.26 Transactions with Affiliates. Except as disclosed in the SEC
Filings or as disclosed on Schedule 4.26, none of the officers or directors of
the Company and, to the Company's Knowledge, none of the employees of the
Company is presently a party to any transaction with the Company or any
Subsidiary (other than as holders of stock options and/or warrants, and for
services as employees, officers and directors), including any contract,
agreement or other arrangement providing for the furnishing of services to or
by, providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any officer, director or such employee or, to the
Company's Knowledge, any entity in which any officer, director, or any such
employee has a substantial interest or is an officer, director, trustee or
partner.
4.27 Internal Controls. The Company is in material compliance with
the provisions of the Xxxxxxxx-Xxxxx Act of 2002 currently applicable to the
Company. To the Company's Knowledge, the Company and the Subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management's
general or specific authorizations, (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with GAAP and to
maintain asset accountability, (iii) access to assets is permitted only in
accordance with management's general or specific authorization, and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences. The Company has established disclosure controls and procedures (as
defined in 1934 Act Rules 13a-14 and 15d-14) for the Company and designed such
disclosure controls and procedures to ensure that material information relating
to the Company, including the Subsidiaries, is made known to the certifying
officers by others within those entities, particularly during the period in
which the Company's most recently filed period report under the 1934 Act, as the
case may be, is being prepared. The Company's certifying officers have evaluated
the effectiveness of the Company's controls and procedures as of the end of the
period covered by the most recently filed periodic report under the 1934 Act
(such date, the "Evaluation Date"). The Company presented in its most recently
filed periodic report under the 1934 Act the conclusions of the certifying
officers about the effectiveness of the disclosure controls and procedures based
on their evaluations as of the Evaluation Date. Since the Evaluation Date, there
have been no significant adverse changes in the Company's internal controls (as
such term is defined in Item 307(b) of Regulation S-K) or, to the Company's
Knowledge, in other factors that could significantly and adversely affect the
Company's internal controls. The Company maintains and will continue to maintain
a standard system of accounting established and administered in accordance with
GAAP and the applicable requirements of the 0000 Xxx.
4.28 Disclosures. Neither the Company nor any Person acting on its
behalf has provided the Investors or their agents or counsel with any
information that constitutes or might constitute material, non-public
information, except pursuant to confidentiality agreements entered into with the
Investors.
5. Representations and Warranties of the Investors. Each of the
Investors hereby severally, and not jointly, represents and warrants to the
Company that:
5.1 Organization and Existence. Such Investor is a validly
existing corporation, limited partnership or limited liability company and has
all requisite corporate, partnership or limited liability company power and
authority to invest in the Securities pursuant to this Agreement.
5.2 Authorization. The execution, delivery and performance by such
Investor of the Transaction Documents to which such Investor is a party have
been duly authorized and will each constitute the valid and legally binding
obligation of such Investor, enforceable against such Investor in accordance
with their respective terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability,
relating to or affecting creditors' rights generally.
5.3 Purchase Entirely for Own Account. The Securities to be
received by such Investor hereunder will be acquired for such Investor's own
account, not as nominee or agent, and not with a view to the resale or
distribution of any part thereof in violation of the 1933 Act, and such Investor
has no present intention of selling, granting any participation in, or otherwise
distributing the same in violation of the 1933 Act without prejudice, however,
to such Investor's right at all times to sell or otherwise dispose of all or any
part of such Securities in compliance with applicable federal and state
securities laws. Nothing contained herein shall be deemed a representation or
warranty by such Investor to hold the Securities for any period of time. Such
Investor is not a broker-dealer registered with the SEC under the 1934 Act or an
entity engaged in a business that would require it to be so registered.
5.4 Investment Experience. Such Investor acknowledges that it can
bear the economic risk and complete loss of its investment in the Securities and
has such knowledge and experience in financial or business matters that it is
capable of evaluating the merits and risks of the investment contemplated
hereby.
5.5 Disclosure of Information. Such Investor has had an
opportunity to receive all information related to the Company requested by it
and to ask questions of and receive answers from the Company regarding the
Company, its business and the terms and conditions of the offering of the
Securities. Such Investor acknowledges receipt of copies of the SEC Filings.
Neither such inquiries nor any other due diligence investigation conducted by
such Investor shall modify, amend or affect such Investor's right to rely on the
Company's representations and warranties contained in this Agreement.
5.6 Restricted Securities. Such Investor understands that the
Securities are characterized as "restricted securities" under the U.S. federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the 1933 Act only in certain limited circumstances.
5.7 Legends. It is understood that, except as provided below,
certificates evidencing the Securities may bear the following or any similar
legend:
(a) "The securities represented hereby may not be
transferred unless (i) such securities have been registered for sale pursuant to
the Securities Act of 1933, as amended, (ii) such securities may be sold
pursuant to Rule 144(k), or (iii) the Company has received an opinion of counsel
reasonably satisfactory to it that such transfer may lawfully be made without
registration under the Securities Act of 1933 or qualification under applicable
state securities laws."
(b) If required by the authorities of any state in
connection with the issuance of sale of the Securities, the legend required by
such state authority.
5.8 Accredited Investor. Such Investor is an accredited investor
as defined in Rule 501(a) of Regulation D, as amended, under the 0000 Xxx.
5.9 No General Solicitation. Such Investor did not learn of the
investment in the Securities as a result of any public advertising or general
solicitation.
5.10 Brokers and Finders. No Person will have, as a result of the
transactions contemplated by the Transaction Documents, any valid right,
interest or claim against or upon the Company, any Subsidiary or an Investor for
any commission, fee or other compensation pursuant to any agreement, arrangement
or understanding entered into by or on behalf of such Investor.
5.11 Prohibited Transactions. During the last thirty (30) days
prior to the date hereof, neither such Investor nor any Affiliate of such
Investor which (x) had knowledge of the transactions contemplated hereby, (y)
has or shares discretion relating to such Investor's investments or trading or
information concerning such Investor's investments, including in respect of the
Securities, or (z) is subject to such Investor's review or input concerning such
Affiliate's investments or trading (collectively, "Trading Affiliates") has,
directly or indirectly, effected or agreed to effect any short sale, whether or
not against the box, established any "put equivalent position" (as defined in
Rule 16a-1(h) under the 0000 Xxx) with respect to the Common Stock, granted any
other right (including, without limitation, any put or call option) with respect
to the Common Stock or with respect to any security that includes, relates to or
derived any significant part of its value from the Common Stock or otherwise
sought to hedge its position in the Securities (each, a "Prohibited
Transaction"). Prior to the earliest to occur of (i) the termination of this
Agreement, (ii) the Effective Date or (iii) the Effectiveness Deadline, such
Investor shall not, and shall cause its Trading Affiliates not to, engage,
directly or indirectly, in a Prohibited Transaction. Such Investor acknowledges
that the representations, warranties and covenants contained in this Section
5.11 are being made for the benefit of the Investors as well as the Company and
that each of the other Investors shall have an independent right to assert any
claims against such Investor arising out of any breach or violation of the
provisions of this Section 5.11. Such Investor shall not sell, contract to sell,
grant any option to purchase, transfer the economic risk of ownership in, make
any short sale of, pledge or otherwise transfer or dispose of any interest in
any shares of Common Stock purchased pursuant to this Agreement (or issued upon
the exercise of the Warrants) until after the date of the Company's conference
call regarding the Company's financial results for the quarter ending March 31,
2005, but in any event no later that June 20, 2005.
5.12 Confidentiality of Disclosure Schedules. Such Investor shall
maintain in confidence the information in the Disclosure Schedules until the
earlier of (i) the date the Company files its Annual Report on Form 10-K for the
year ended December 31, 2004 and (ii) March 31, 2005.
6. Conditions to Closing.
6.1 Conditions to the Investors' Obligations. The obligation of
each Investor to purchase the Shares and the Warrants at the Closing is subject
to the fulfillment to such Investor's satisfaction, on or prior to the Closing
Date, of the following conditions, any of which may be waived by such Investor
(as to itself only):
(a) The representations and warranties made by the Company
in Section 4 hereof qualified as to materiality shall be true and correct at all
times prior to and on the Closing Date, except to the extent any such
representation or warranty expressly speaks as of an earlier date, in which case
such representation or warranty shall be true and correct as of such earlier
date, and, the representations and warranties made by the Company in Section 4
hereof not qualified as to materiality shall be true and correct in all material
respects at all times prior to and on the Closing Date, except to the extent any
such representation or warranty expressly speaks as of an earlier date, in which
case such representation or warranty shall be true and correct in all material
respects as of such earlier date. The Company shall have performed in all
material respects all obligations and conditions herein required to be performed
or observed by it on or prior to the Closing Date.
(b) The Company shall have obtained any and all consents,
permits, approvals, registrations and waivers necessary or appropriate for
consummation of the purchase and sale of the Securities and the consummation of
the other transactions contemplated by the Transaction Documents, all of which
shall be in full force and effect.
(c) The Company shall have executed and delivered the
Registration Rights Agreement.
(d) No judgment, writ, order, injunction, award or decree of
or by any court, or judge, justice or magistrate, including any bankruptcy court
or judge, or any order of or by any governmental authority, shall have been
issued, and no action or proceeding shall have been instituted by any
governmental authority, enjoining or preventing the consummation of the
transactions contemplated hereby or in the other Transaction Documents.
(e) The Company shall have delivered a Certificate, executed
on behalf of the Company by its Chief Executive Officer or its Chief Financial
Officer, dated as of the Closing Date, certifying to the fulfillment of the
conditions specified in subsections (a), (b), (d) and (h) of this Section 6.1.
(f) The Company shall have delivered a Certificate, executed
on behalf of the Company by its Secretary, dated as of the Closing Date,
certifying the resolutions
adopted by the Special Committee of the Board of Directors of the Company
approving the transactions contemplated by this Agreement and the other
Transaction Documents and the issuance of the Securities, certifying the current
versions of the Certificate of Incorporation and Bylaws of the Company and
certifying as to the signatures and authority of persons signing the Transaction
Documents and related documents on behalf of the Company.
(g) The Investors shall have received an opinion from
Xxxxxxxx & Xxxxxxxx LLP, the Company's counsel, dated as of the Closing Date, in
form and substance reasonably acceptable to the Investors and addressing such
legal matters as the Investors may reasonably request.
(h) No stop order or suspension of trading shall have been
imposed by the SEC or any other governmental or regulatory body with respect to
public trading in the Common Stock.
6.2 Conditions to Obligations of the Company. The Company's
obligation to sell and issue the Shares and the Warrants at the Closing is
subject to the fulfillment to the satisfaction of the Company on or prior to the
Closing Date of the following conditions, any of which may be waived by the
Company:
(a) The representations and warranties made by the Investors
in Section 5 hereof, other than the representations and warranties contained in
Sections 5.3, 5.4, 5.5, 5.6, 5.7, 5.8 and 5.9 (the "Investment
Representations"), shall be true and correct in all material respects when made,
and shall be true and correct in all material respects on the Closing Date with
the same force and effect as if they had been made on and as of said date. The
Investment Representations shall be true and correct in all respects when made,
and shall be true and correct in all respects on the Closing Date with the same
force and effect as if they had been made on and as of said date. The Investors
shall have performed in all material respects all obligations and conditions
herein required to be performed or observed by them on or prior to the Closing
Date.
(b) The Investors shall have executed and delivered the
Registration Rights Agreement.
(c) The Investors shall have delivered the Purchase Price to
the Company.
6.3 Termination of Obligations to Effect Closing; Effects.
(a) The obligations of the Company, on the one hand, and the
Investors, on the other hand, to effect the Closing shall terminate as follows:
(i) Upon the mutual written consent of the Company and
the Investors;
(ii) By the Company if any of the conditions set forth
in Section 6.2 shall have become incapable of fulfillment, and shall not have
been waived by the Company;
(iii) By an Investor (with respect to itself only) if
any of the conditions set forth in Section 6.1 shall have become incapable of
fulfillment, and shall not have been waived by the Investor; or
(iv) By either the Company or any Investor (with
respect to itself only) if the Closing has not occurred on or prior to March 31,
2005;
provided, however, that, except in the case of clause (i) above, the party
seeking to terminate its obligation to effect the Closing shall not then be in
breach of any of its representations, warranties, covenants or agreements
contained in this Agreement or the other Transaction Documents if such breach
has resulted in the circumstances giving rise to such party's seeking to
terminate its obligation to effect the Closing.
(b) In the event of termination by the Company or any Investor of
its obligations to effect the Closing pursuant to this Section 6.3, written
notice thereof shall forthwith be given to the other Investors and the other
Investors shall have the right to terminate their obligations to effect the
Closing upon written notice to the Company and the other Investors. Nothing in
this Section 6.3 shall be deemed to release any party from any liability for any
breach by such party of the terms and provisions of this Agreement or the other
Transaction Documents or to impair the right of any party to compel specific
performance by any other party of its obligations under this Agreement or the
other Transaction Documents.
7. Covenants and Agreements of the Company.
7.1 Reservation of Common Stock. The Company shall at all times
reserve and keep available out of its authorized but unissued shares of Common
Stock, solely for the purpose of providing for the exercise of the Warrants,
such number of shares of Common Stock as shall from time to time equal the
number of shares sufficient to permit the exercise of the Warrants issued
pursuant to this Agreement in accordance with their respective terms.
7.2 Reports. The Company will furnish to the Investors and/or
their assignees such information relating to the Company and its Subsidiaries as
from time to time may reasonably be requested by the Investors and/or their
assignees; provided, however, that the Company shall not disclose material
nonpublic information to the Investors, or to advisors to or representatives of
the Investors, unless prior to disclosure of such information the Company
identifies such information as being material nonpublic information and provides
the Investors, such advisors and representatives with the opportunity to accept
or refuse to accept such material nonpublic information for review and any
Investor wishing to obtain such information enters into an appropriate
confidentiality agreement with the Company with respect thereto.
7.3 No Conflicting Agreements. The Company will not take any
action, enter into any agreement or make any commitment that would conflict or
interfere in any material respect with the Company's obligations to the
Investors under the Transaction Documents.
7.4 Insurance. The Company shall not materially reduce the
insurance coverages described in Section 4.19.
7.5 Compliance with Laws. The Company will comply in all material
respects with all applicable laws, rules, regulations, orders and decrees of all
governmental authorities.
7.6 Listing of Underlying Shares and Related Matters. If the
Company applies to have its Common Stock or other securities traded on any other
principal stock exchange or market, it shall include in such application the
Shares and the Warrant Shares and will take such other action as is necessary to
cause such Common Stock to be so listed.
7.7 Termination of Covenants. The provisions of Sections 7.2
through 7.5 shall terminate and be of no further force and effect on the date on
which the Company's obligations under the Registration Rights Agreement to
register or maintain the effectiveness of any registration covering the
Registrable Securities (as such term is defined in the Registration Rights
Agreement) shall terminate.
7.8 Removal of Legends. Upon the earlier of (i) registration for
resale pursuant to the Registration Rights Agreement and receipt by the Company
of the Investor's written confirmation that such Securities will not be disposed
of except in compliance with the prospectus delivery requirements of the 1933
Act or (ii) Rule 144(k) becoming available the Company shall, upon an Investor's
written request, promptly cause certificates evidencing the Investor's
Securities to be replaced with certificates which do not bear such restrictive
legends, and Warrant Shares subsequently issued upon due exercise of the
Warrants shall not bear such restrictive legends provided the provisions of
either clause (i) or clause (ii) above, as applicable, are satisfied with
respect to such Warrant Shares. When the Company is required to cause unlegended
certificates to replace previously issued legended certificates, if unlegended
certificates are not delivered to an Investor within three (3) Business Days of
submission by that Investor of legended certificate(s) to the Company's transfer
agent together with a representation letter in customary form, the Company shall
be liable to the Investor for liquidated damages in an amount equal to 1.0% of
the aggregate purchase price of the Securities evidenced by such certificate(s)
for each thirty (30) day period (or portion thereof) beyond such three (3)
Business Day that the unlegended certificates have not been so delivered. Each
Investor will cooperate in all reasonable respects with the Company and the
transfer agent in delegending such Investor's certificates and providing the
documentation referred to above.
8. Survival and Indemnification.
8.1 Survival. The covenants and agreements contained in this
Agreement shall survive the Closing of the transactions contemplated by this
Agreement indefinitely. The
representations and warranties contained in this Agreement shall survive until
18 months after the Closing.
8.2 Indemnification. The Company agrees to indemnify and hold
harmless each Investor and its Affiliates and their respective directors,
officers, employees and agents from and against any and all losses, claims,
damages, liabilities and expenses (including without limitation reasonable
attorney fees and disbursements and other expenses incurred in connection with
investigating, preparing or defending any action, claim or proceeding, pending
or threatened and the costs of enforcement thereof) (collectively, "Losses") to
which such Person may become subject as a result of any breach of
representation, warranty, covenant or agreement made by or to be performed on
the part of the Company under the Transaction Documents, and will reimburse any
such Person for all such amounts as they are incurred by such Person.
8.3 Conduct of Indemnification Proceedings. Promptly after receipt
by any Person (the "Indemnified Person") of notice of any demand, claim or
circumstances which would or might give rise to a claim or the commencement of
any action, proceeding or investigation in respect of which indemnity may be
sought pursuant to Section 8.2, such Indemnified Person shall promptly notify
the Company in writing and the Company shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to such Indemnified
Person, and shall assume the payment of all fees and expenses; provided,
however, that the failure of any Indemnified Person so to notify the Company
shall not relieve the Company of its obligations hereunder except to the extent
that the Company is materially prejudiced by such failure to notify. In any such
proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless: (i) the Company and the Indemnified Person shall
have mutually agreed to the retention of such counsel; or (ii) in the reasonable
judgment of counsel to such Indemnified Person representation of both parties by
the same counsel would be inappropriate due to actual or potential differing
interests between them. The Company shall not be liable for any settlement of
any proceeding effected without its written consent, which consent shall not be
unreasonably withheld, but if settled with such consent, or if there be a final
judgment for the plaintiff, the Company shall indemnify and hold harmless such
Indemnified Person from and against any loss or liability (to the extent stated
above) by reason of such settlement or judgment. Without the prior written
consent of the Indemnified Person, which consent shall not be unreasonably
withheld, the Company shall not effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Party, unless such settlement includes an unconditional release of
such Indemnified Person from all liability arising out of such proceeding.
9. Miscellaneous.
9.1 Successors and Assigns. This Agreement may not be assigned by
a party hereto without the prior written consent of the Company or the
Investors, as applicable, provided, however, that an Investor may assign its
rights and delegate its duties hereunder in whole or in part to an Affiliate or
to a third party acquiring some or all of its Securities in a private
transaction without the prior written consent of the Company or the other
Investors, after
notice duly given by such Investor to the Company provided, that no such
assignment or obligation shall affect the obligations of such Investor
hereunder. The provisions of this Agreement shall inure to the benefit of and be
binding upon the respective permitted successors and assigns of the parties.
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
9.2 Counterparts; Faxes. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement may also
be executed via facsimile, which shall be deemed an original.
9.3 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
9.4 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given as hereinafter described (i) if given by personal delivery,
then such notice shall be deemed given upon such delivery, (ii) if given by
telex or telecopier, then such notice shall be deemed given upon receipt of
confirmation of complete transmittal, (iii) if given by mail, then such notice
shall be deemed given upon the earlier of (A) receipt of such notice by the
recipient or (B) three days after such notice is deposited in first class mail,
postage prepaid, and (iv) if given by an internationally recognized overnight
air courier, then such notice shall be deemed given one Business Day after
delivery to such carrier. All notices shall be addressed to the party to be
notified at the address as follows, or at such other address as such party may
designate by ten days' advance written notice to the other party:
If to the Company:
Endocare, Inc.
000 Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Chief Executive Officer
Fax: (000) 000-0000
With a copy to:
Xxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
If to the Investors:
to the addresses set forth on the signature pages hereto.
9.5 Expenses. The parties hereto shall pay their own costs and
expenses in connection herewith, except that the Company shall pay the
reasonable fees and expenses of Xxxxxxxxxx Xxxxxxx PC not to exceed $30,000.
Such expenses shall be paid not later than the Closing. The Company shall
reimburse the Investors upon demand for all reasonable out-of-pocket expenses
incurred by the Investors, including without limitation reimbursement of
attorneys' fees and disbursements, in connection with any amendment,
modification or waiver of this Agreement or the other Transaction Documents. In
the event that legal proceedings are commenced by any party to this Agreement
against another party to this Agreement in connection with this Agreement or the
other Transaction Documents, the party or parties which do not prevail in such
proceedings shall severally, but not jointly, pay their pro rata share of the
reasonable attorneys' fees and other reasonable out-of-pocket costs and expenses
incurred by the prevailing party in such proceedings.
9.6 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Investors.
Any amendment or waiver effected in accordance with this paragraph shall be
binding upon each holder of any Securities purchased under this Agreement at the
time outstanding, each future holder of all such Securities, and the Company.
9.7 Publicity. Except as set forth below, no public release or
announcement concerning the transactions contemplated hereby shall be issued by
the Company or the Investors without the prior consent of the Company (in the
case of a release or announcement by the Investors) or the Investors (in the
case of a release or announcement by the Company) (which consents shall not be
unreasonably withheld), except as such release or announcement may be required
by law or the applicable rules or regulations of any securities exchange or
securities market, in which case the Company or the Investors, as the case may
be, shall allow the Investors or the Company, as applicable, to the extent
reasonably practicable in the circumstances, reasonable time to comment on such
release or announcement in advance of such issuance. By 8:30 a.m. (New York City
time) on the trading day immediately following the Closing Date, the Company
shall issue a press release disclosing the consummation of the transactions
contemplated by this Agreement. No later than the third trading day following
the Closing Date, the Company will file a Current Report on Form 8-K attaching
the press release described in the foregoing sentence as well as copies of the
Transaction Documents. In addition, the Company will make such other filings and
notices in the manner and time required by the SEC. Notwithstanding the
foregoing, the Company shall not publicly disclose the name of any Investor, or
include the name of any Investor in any filing with the SEC (other than the
Registration Statement and any exhibits to filings made in respect of this
transaction in accordance with periodic filing requirements under the 0000 Xxx)
or any regulatory agency, without the prior written consent of such Investor,
except to the extent such disclosure is required by law or trading market
regulations, in which case the Company shall provide the Investors with prior
notice of such disclosure.
9.8 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof but shall be interpreted as if it
were written so as to be enforceable to the maximum extent permitted by
applicable law, and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereby
waive any provision of law which renders any provision hereof prohibited or
unenforceable in any respect.
9.9 Entire Agreement. This Agreement, including the Exhibits and
the Disclosure Schedules, and the other Transaction Documents constitute the
entire agreement among the parties hereof with respect to the subject matter
hereof and thereof and supersede all prior agreements and understandings, both
oral and written, between the parties with respect to the subject matter hereof
and thereof; provided, however, that, except as expressly set forth herein this
Agreement shall not supersede or otherwise affect any of the parties'
obligations under any confidentiality or non-disclosure agreements previously
executed by any of the parties with respect to the Company.
9.10 Further Assurances. The parties shall execute and deliver all
such further instruments and documents and take all such other actions as may
reasonably be required to carry out the transactions contemplated hereby and to
evidence the fulfillment of the agreements herein contained.
9.11 Governing Law; Consent to Jurisdiction; Waiver of Jury Trial.
This Agreement shall be governed by, and construed in accordance with, the
internal laws of the State of New York without regard to the choice of law
principles thereof. Each of the parties hereto irrevocably submits to the
exclusive jurisdiction of the courts of the State of New York located in New
York County and the United States District Court for the Southern District of
New York for the purpose of any suit, action, proceeding or judgment relating to
or arising out of this Agreement and the transactions contemplated hereby.
Service of process in connection with any such suit, action or proceeding may be
served on each party hereto anywhere in the world by the same methods as are
specified for the giving of notices under this Agreement. Each of the parties
hereto irrevocably consents to the jurisdiction of any such court in any such
suit, action or proceeding and to the laying of venue in such court. Each party
hereto irrevocably waives any objection to the laying of venue of any such suit,
action or proceeding brought in such courts and irrevocably waives any claim
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO
REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND
REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.
9.12 Independent Nature of Investors' Obligations and Rights. The
obligations of each Investor under any Transaction Document are several and not
joint with the obligations of any other Investor, and no Investor shall be
responsible in any way for the performance of the obligations of any other
Investor under any Transaction Document. The decision of each Investor to
purchase Securities pursuant to the Transaction Documents has been made by such
Investor independently of any other Investor. Nothing contained herein or in any
Transaction Document, and no action taken by any Investor pursuant thereto,
shall be deemed to constitute the Investors as a partnership, an association, a
joint venture or any other kind of entity, or create a presumption that the
Investors are in any way acting in concert or as a group with respect to such
obligations or the transactions contemplated by the Transaction Documents. Each
Investor acknowledges that no other Investor has acted as agent for such
Investor in connection with making its investment hereunder and that no Investor
will be acting as agent of such Investor in connection with monitoring its
investment in the Securities or enforcing its rights under the Transaction
Documents. Each Investor shall be entitled to independently protect and enforce
its rights, including, without limitation, the rights arising out of this
Agreement or out of the other Transaction Documents, and it shall not be
necessary for any other Investor to be joined as an additional party in any
proceeding for such purpose. The Company acknowledges that each of the Investors
has been provided with the same Transaction Documents for the purpose of closing
a transaction with multiple Investors and not because it was required or
requested to do so by any Investor.
[signature page follows]
IN WITNESS WHEREOF, the parties have executed this Agreement or
caused their duly authorized officers to execute this Agreement as of the date
first above written.
The Company: ENDOCARE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------
Senior Vice President, Finance and
Chief Financial Officer
The Investors: SRB Greenway Capital, L.P.
By: SRB Management, L.P., General Partner
By: BC Advisors, L.L.C., General Partner
Aggregate Purchase By /s/ Xxxxxx X. Xxxxxx
Price: $170,800.97 ---------------------------------
Number of Shares: 61,661 Xxxxxx X. Xxxxxx, Member
Number of Series A Warrants: 21,581
Number of Series B Warrants: 21,581
Address for Notice:
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
With a copy to:
Xxxxxxxxxx Xxxxxxx PC
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx, Esq.
Telephone: 000.000.0000
Facsimile: 973.597.2400
[other investors]
The Investors: SRB Greenway Capital (QP), L.P.
By: SRB Management, L.P., General Partner
By: BC Advisors, L.L.C., General Partner
Aggregate Purchase By /s/ Xxxxxx X. Xxxxxx
Price: $1,216,700.34 ---------------------------------
Number of Shares: 439,242 Xxxxxx X. Xxxxxx, Member
Number of Series A Warrants: 153,735
Number of Series B Warrants: 153,735
Address for Notice:
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
With a copy to:
Xxxxxxxxxx Xxxxxxx PC
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx, Esq.
Telephone: 000.000.0000
Facsimile: 973.597.2400
[other investors]
The Investors: SRB Greenway Offshore Operating Fund, L.P.
By: SRB Management, L.P., General Partner
By: BC Advisors, L.L.C., General Partner
Aggregate Purchase By /s/ Xxxxxx X. Xxxxxx
Price: $112,500.78 ----------------------------------
Number of Shares: 40,614 Xxxxxx X. Xxxxxx, Member
Number of Series A Warrants: 14,215
Number of Series B Warrants: 14,215
Address for Notice:
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
With a copy to:
Xxxxxxxxxx Xxxxxxx PC
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx, Esq.
Telephone: 000.000.0000
Facsimile: 973.597.2400
[other investors]
The Investors: WS Opportunity Fund (QP), L.P.
By: WS Ventures Management, L.P.,
General Partner
By: WSV Management, L.L.C.,
General Partner
Aggregate Purchase Price: $252,901 By:/s/ Xxxx X. Xxxxxx
Number of Shares: 91,300 ---------------------------------
Number of Series A Warrants: 31,955 Xxxx X. Xxxxxx, Member
Number of Series B Warrants: 31,955
Address for Notice:
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
With a copy to:
Xxxxxxxxxx Xxxxxxx PC
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx, Esq.
Telephone: 000.000.0000
Facsimile: 973.597.2400
[other investors]
The Investors: WS Opportunity Fund International, Ltd.
By: WS Ventures Management, L.P.,
As agent and attorney-in-fact
By: WSV Management, L.L.C.,
General Partner
Aggregate Purchase Price: $337,300.13 By:/s/ Xxxx Xxxxxx
Number of Shares: 121,769 ---------------------------------
Number of Series A Warrants: 42,619 Xxxx Xxxxxx, Member
Number of Series B Warrants: 42,619
Address for Notice:
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
With a copy to:
Xxxxxxxxxx Xxxxxxx PC
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx, Esq.
Telephone: 000.000.0000
Facsimile: 973.597.2400
[other investors]
The Investors: Xxxxxx Xxxxx Capital (QP), L.P.
By: WS Capital Management, L.P.,
General Partner
By: WS Capital, L.L.C.,
General Partner
Aggregate Purchase Price: $1,154,499.99 By:/s/ Xxxx X. Xxxxxx
Number of Shares: 416,787 -------------------------------
Number of Series A Warrants: 145,876 Xxxx X. Xxxxxx, Member
Number of Series B Warrants: 145,876
Address for Notice:
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
With a copy to:
Xxxxxxxxxx Xxxxxxx PC
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx, Esq.
Telephone: 000.000.0000
Facsimile: 973.597.2400
[other investors]
The Investors: WS Opportunity Fund, L.P.
By: WS Ventures Management, L.P.,
General Partner
By: WSV Management, L.L.C.,
General Partner
Aggregate Purchase Price: $235,100.98 By:/s/ Xxxx X. Xxxxxx
Number of Shares: 84,874 -------------------------------
Number of Series A Warrants: 29,706 Xxxx X. Xxxxxx, Member
Number of Series B Warrants: 29,706
Address for Notice:
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
With a copy to:
Xxxxxxxxxx Xxxxxxx PC
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx, Esq.
Telephone: 000.000.0000
Facsimile: 973.597.2400
[other investors]
The Investors: Xxxxxx Xxxxx International Fund, Ltd.
By: WS Capital Management, L.P.,
As agent and attorney-in-fact
By: WS Capital, L.L.C.,
General Partner
Aggregate Purchase Price: $1,775,896.86 By:/s/ Xxxx X. Xxxxxx
Number of Shares: 641,118 ------------------------------
Number of Series A Warrants: 224,391 Xxxx X. Xxxxxx, Member
Number of Series B Warrants: 224,391
Address for Notice:
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
With a copy to:
Xxxxxxxxxx Xxxxxxx PC
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx, Esq.
Telephone: 000.000.0000
Facsimile: 973.597.2400
[other investors]
The Investors: Xxxxxx Xxxxx Capital, L.P.
By: WS Capital Management, L.P.,
General Partner
By: WS Capital, L.L.C.,
General Partner
Aggregate Purchase Price: $244,300.15 By:/s/ Xxxx X. Xxxxxx
Number of Shares: 88,195 --------------------------------
Number of Series A Warrants: 30,868 Xxxx X. Xxxxxx, Member
Number of Series B Warrants: 30,868
Address for Notice:
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
With a copy to:
Xxxxxxxxxx Xxxxxxx PC
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx, Esq.
Telephone: 000.000.0000
Facsimile: 973.597.2400
[other investors]
The Investors (continued): PARAGON ASSOCIATES J.V.
Aggregate Purchase Price: $2,000,000.94 By /s/ Xxxxxxxx Xxxx, III
Number of Shares: 722,022 -------------------------------
Number of Series A Warrants: 252,707 Name: Xxxxxxxx Xxxx, III
Number of Series B Warrants: 252,707 Title: Managing Agent
Address for Notice: 000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
[SIGNATURE PAGE TO PURCHASE AGREEMENT RELATING TO SALE OF COMMON STOCK AND
WARRANTS OF ENDOCARE, INC.]
The Investors (continued): XXXXX CAPITAL PARTNERS, L.P.
By: XXXXX CAPITAL MANAGEMENT, LLC,
Its General Partner
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
Aggregate Purchase Price: $390,293.00
Number of Shares: 140,900
Number of Series A Warrants: 49,315
Number of Series B Warrants: 49,315
Address for Notice:
000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
[SIGNATURE PAGE TO PURCHASE AGREEMENT RELATING TO SALE OF COMMON STOCK AND
WARRANTS OF ENDOCARE, INC.]
The Investors (continued): GW 2001 FUND, L.P.
By: XXXXX CAPITAL MANAGEMENT, LLC,
Its General Partner
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
Aggregate Purchase Price: $109,705.85
Number of Shares: 39,605
Number of Series A Warrants: 13,861
Number of Series B Warrants: 13,861
Address for Notice:
000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
[SIGNATURE PAGE TO PURCHASE AGREEMENT RELATING TO SALE OF COMMON STOCK AND
WARRANTS OF ENDOCARE, INC.]
The Investors (continued): ARBOR PARTNERS, L.P.
By: APM Partners, L.P.,
General Partner
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: President of Shuco, Inc.,
General Partner of APM Partners, L.P.
Aggregate Purchase Price: $287,249.00
Number of Shares: 103,700
Number of Series A Warrants: 36,295
Number of Series B Warrants: 36,295
Address for Notice:
000 Xxxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000
[SIGNATURE PAGE TO PURCHASE AGREEMENT RELATING TO SALE OF COMMON STOCK AND
WARRANTS OF ENDOCARE, INC.]
The Investors (continued): WPG OPPORTUNISTIC VALUE FUND,
L.P.
By: WPG Opportunistic Value Fund
Manager, L.L.C., General Partner
By: Xxxxx, Xxxx & Xxxxx Investments, a
Division of Robeco USA, L.L.C., Sole
Managing Member
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
By: /s/ Xxxxxx Xxxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Chief Investment Officer
Aggregate Purchase Price: $1,111,116.25
Number of Shares: 401,125
Number of Series A Warrants: 140,393
Number of Series B Warrants: 140,393
Address for Notice:
000 Xxxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000
[SIGNATURE PAGE TO PURCHASE AGREEMENT RELATING TO SALE OF COMMON STOCK AND
WARRANTS OF ENDOCARE, INC.]
The Investors (continued): WPG OPPORTUNISTIC VALUE FUND,
OVERSEAS L.P.
By: WPG Opportunistic Value Fund
Manager, L.L.C., Supervisory
General Partner
By: Xxxxx, Xxxx & Xxxxx Investments, a
Division of Robeco USA, L.L.C., Sole
Managing Member
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Chief Investment Officer
Aggregate Purchase Price: $901,635.00
Number of Shares: 325,500
Number of Series A Warrants: 113,925
Number of Series B Warrants: 113,925
Address for Notice:
000 Xxxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000
[SIGNATURE PAGE TO PURCHASE AGREEMENT RELATING TO SALE OF COMMON STOCK AND
WARRANTS OF ENDOCARE, INC.]
The Investors (continued): PUBLIC EMPLOYEE RETIREMENT SYSTEM
OF IDAHO
By: XXXXXXX CAPITAL GROUP, LLC,
As Attorney-in-fact
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
Aggregate Purchase Price: $999,970.00
Number of Shares: 361,000
Number of Series A Warrants: 126,350
Number of Series B Warrants: 126,350
Address for Notice:
c/o Zesiger Capital Group LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
[SIGNATURE PAGE TO PURCHASE AGREEMENT RELATING TO SALE OF COMMON STOCK AND
WARRANTS OF ENDOCARE, INC.]
The Investors (continued): CITY OF MILFORD PENSION & RETIREMENT
FUND
By: XXXXXXX CAPITAL GROUP, LLC,
As Attorney-in-fact
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
Aggregate Purchase Price: $449,908.94
Number of Shares: 162,422
Number of Series A Warrants: 56,847
Number of Series B Warrants: 56,847
Address for Notice:
c/o Zesiger Capital Group LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
[SIGNATURE PAGE TO PURCHASE AGREEMENT RELATING TO SALE OF COMMON STOCK AND
WARRANTS OF ENDOCARE, INC.]
The Investors (continued): CITY OF STAMFORD FIREMEN'S PENSION
FUND
By: XXXXXXX CAPITAL GROUP, LLC,
As Attorney-in-fact
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
Aggregate Purchase Price: $199,994.00
Number of Shares: 72,200
Number of Series A Warrants: 25,270
Number of Series B Warrants: 25,270
Address for Notice:
c/o Zesiger Capital Group LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
[SIGNATURE PAGE TO PURCHASE AGREEMENT RELATING TO SALE OF COMMON STOCK AND
WARRANTS OF ENDOCARE, INC.]
The Investors (continued): NORWALK EMPLOYEES' PENSION PLAN
By: XXXXXXX CAPITAL GROUP, LLC,
As Attorney-in-fact
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
Aggregate Purchase Price: $175,064.00
Number of Shares: 63,200
Number of Series A Warrants: 22,120
Number of Series B Warrants: 22,120
Address for Notice:
c/o Zesiger Capital Group LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
[SIGNATURE PAGE TO PURCHASE AGREEMENT RELATING TO SALE OF COMMON STOCK AND
WARRANTS OF ENDOCARE, INC.]
The Investors (continued): XX XXXXXX TRUST CO. (BAHAMAS)
LIMITED AS TRUSTEE U/A/D 11/3/93
By: XXXXXXX CAPITAL GROUP, LLC,
As Attorney-in-fact
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
Aggregate Purchase Price: $170,078.00
Number of Shares: 61,400
Number of Series A Warrants: 21,490
Number of Series B Warrants: 21,490
Address for Notice:
c/o Zesiger Capital Group LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
[SIGNATURE PAGE TO PURCHASE AGREEMENT RELATING TO SALE OF COMMON STOCK AND
WARRANTS OF ENDOCARE, INC.]
The Investors (continued): XXXXXX X. XXXXXXX
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title
Aggregate Purchase Price: $4,986.00
Number of Shares: 1,800
Number of Series A Warrants: 630
Number of Series B Warrants: 630
Address for Notice:
c/o Zesiger Capital Group LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
[SIGNATURE PAGE TO PURCHASE AGREEMENT RELATING TO SALE OF COMMON STOCK AND
WARRANTS OF ENDOCARE, INC.]
The Investors (continued): CIMARRON OVERSEAS EQUITY MASTER
FUND LP
By: /s/ X.X. Xxxxxx Xxxxx
---------------------------
Name: X.X. Xxxxxx Xxxxx
Title: President of the General
Partner
Aggregate Purchase Price: $400,000.00
Number of Shares: 144,405
Number of Series A Warrants: 50,541
Number of Series B Warrants: 50,541
Address for Notice:
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
[SIGNATURE PAGE TO PURCHASE AGREEMENT RELATING TO SALE OF COMMON STOCK AND
WARRANTS OF ENDOCARE, INC.]
The Investors (continued): XXXXXXX FAMILY LIMITED PARTNERSHIP
LP
By: /s/ X.X. Xxxxxx Xxxxx
--------------------------------
Name: X.X. Xxxxxx Xxxxx
Title: Managing General Partner
Aggregate Purchase Price: $300,000.00
Number of Shares: 108,303
Number of Series A Warrants: 37,906
Number of Series B Warrants: 37,906
Address for Notice:
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
[SIGNATURE PAGE TO PURCHASE AGREEMENT RELATING TO SALE OF COMMON STOCK AND
WARRANTS OF ENDOCARE, INC.]
The Investors (continued): XXXXXX X. XXXXXXX AND XXXXXXX X.
XXXXXXX REVOCABLE TRUST
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Trustee
Aggregate Purchase Price: $499,998.85
Number of Shares: 180,505
Number of Series A Warrants: 63,176
Number of Series B Warrants: 63,176
Address for Notice:
00000 Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
[SIGNATURE PAGE TO PURCHASE AGREEMENT RELATING TO SALE OF COMMON STOCK AND
WARRANTS OF ENDOCARE, INC.]
The Investors (continued): HAIMOVITCH MEDICAL TECHNOLOGY
CONSULTANTS
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------------
Aggregate Purchase Price: $24,999.25
Number of Shares: 9,025
Number of Series A Warrants: 3,158
Number of Series B Warrants: 3,158
Address for Notice:
000 Xxxxxxxx Xxxx
Xxxx Xxxxxx, XX 00000
[SIGNATURE PAGE TO PURCHASE AGREEMENT RELATING TO SALE OF COMMON STOCK AND
WARRANTS OF ENDOCARE, INC.]
Please note:
These securities should be issued in my trust name The Xxxxx Xxxxxxxxxx 2000
Separate Property Revocable Trust.
The Investors:
/s/ Xxxxx Xxxxxx
------------------------------------
Aggregate Purchase Price: $99,999.77
Number of Shares: 36,101
Number of Series A Warrants: 12,635
Number of Series B Warrants: 12,635
Address for Notice:
000 Xxxx Xxxxxx Xxxxx
Xxx. 00X
Xxx Xxxx, XX 00000
[SIGNATURE PAGE TO PURCHASE AGREEMENT RELATING TO SALE OF COMMON STOCK AND
WARRANTS OF ENDOCARE, INC.]
The Investors:
/s/ Xxxx Xxxxxxx
------------------------------------
Aggregate Purchase Price: $499,998.85
Number of Shares: 180,505
Number of Series A Warrants: 63,176
Number of Series B Warrants: 63,176
Address for Notice:
LB Capital Investments
00 Xxxxxxxx Xxx
Xxxxx Xxxxx, XX 00000
[SIGNATURE PAGE TO PURCHASE AGREEMENT RELATING TO SALE OF COMMON STOCK AND
WARRANTS OF ENDOCARE, INC.]
The Investors (continued): MIDWOOD CAPITAL PARTNERS, L.P.
By: /s/ Xxxx XxXxxx
--------------------------------
Name: Xxxx XxXxxx
Title: Principal
Aggregate Purchase Price: $340,017.50
Number of Shares: 122,750
Number of Series A Warrants: 42,960
Number of Series B Warrants: 42,960
Address for Notice:
Arcadia Management, LLC
Xxx Xxxxxxxxxx Xxxx, 0xx xxxxx
Xxxxxx, XX 00000
[SIGNATURE PAGE TO PURCHASE AGREEMENT RELATING TO SALE OF COMMON STOCK AND
WARRANTS OF ENDOCARE, INC.]
The Investors (continued): MIDWOOD CAPITAL PARTNERS QP, L.P.
By: /s/ Xxxx XxXxxx
--------------------------------
Name: Xxxx XxXxxx
Title: Principal
Aggregate Purchase Price: $159,981.35
Number of Shares: 57,755
Number of Series A Warrants: 20,216
Number of Series B Warrants: 20,216
Address for Notice:
Arcadia Management, LLC
Xxx Xxxxxxxxxx Xxxx, 0xx xxxxx
Xxxxxx, XX 00000
[SIGNATURE PAGE TO PURCHASE AGREEMENT RELATING TO SALE OF COMMON STOCK AND
WARRANTS OF ENDOCARE, INC.]
The Investors (continued):
/s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Aggregate Purchase Price: $184,999.99
Number of Shares: 66,787
Number of Series A Warrants: 23,375
Number of Series B Warrants: 23,375
Address for Notice:
Xxxxxxx Xxxxxx & Co., Inc.
Attn: Alternative Investment Services
000 Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
[SIGNATURE PAGE TO PURCHASE AGREEMENT RELATING TO SALE OF COMMON STOCK AND
WARRANTS OF ENDOCARE, INC.]
The Investors (continued):
/s/ Xxxxxxx X. Xxxxx
------------------------------------
Aggregate Purchase Price: $499,998.85
Number of Shares: 180,505
Number of Series A Warrants: 63,176
Number of Series B Warrants: 63,176
Address for Notice:
00000 Xxxxx Xxx Xxx
Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
[SIGNATURE PAGE TO PURCHASE AGREEMENT RELATING TO SALE OF COMMON STOCK AND
WARRANTS OF ENDOCARE, INC.]
The Investors (continued):
Xxxxxxx Family Trust
Trustee /s/ Xxxx X. Xxxxxxx, M.D.
------------------------------------
Trustee /s/ XxxxXxxxx Xxxxxxx
------------------------------------
Aggregate Purchase Price: $299,999.31
Number of Shares: 108,303
Number of Series A Warrants: 37,906
Number of Series B Warrants: 37,906
Address for Notice:
000 Xxx Xxxxx
Xxxxxxx Xxxxxxxxx, XX 00000
[SIGNATURE PAGE TO PURCHASE AGREEMENT RELATING TO SALE OF COMMON STOCK AND
WARRANTS OF ENDOCARE, INC.]
