EXHIBIT 10.1
SELFCARE, INC.
SECURITIES PURCHASE AGREEMENT
DATED AS OF JUNE 26, 1998
TABLE OF CONTENTS
SECTION 1 DESCRIPTION OF FINANCING
1.1 Authorization of Sale of Units
1.2 Initial Closing
1.3 Additional Closings
1.4 Subordination
1.5 No Demand
1.6 Alternative Delivery
SECTION 2 REPRESENTATIONS AND WARRANTIES OF THE COMPANY
2.1 Organization and Good Standing of the Company
2.2 Authorization
2.3 Litigation
2.4 Use of Proceeds
2.5 Brokers or Finders
2.6 Exemptions from Securities Laws
SECTION 3 REPRESENTATIONS, WARRANTEES ANDAGREEMENTS OF THE
PURCHASERS
3.1 Binding Agreement
3.2 Investment Representations
3.3 Brokers or Finders
3.4 Transfer or Assignment of Note
3.5 Legends
3.6 Non-Disclosure
3.7 Tax Matters.
SECTION 4 FINANCIAL STATEMENTS
4.1 Quarterly Financial Statements
4.2 Annual Financial Statements
SECTION 5 AUTHORIZED REPRESENTATIVE
5.1 Powers and Authority
5.2 Term
5.3 Exculpation
5.4 Fee
SECTION 6 DEFAULTS
6.1 Events of Default
SECTION 7 MISCELLANEOUS
7.1 Survival
7.2 Successors and Assigns
7.3 Notices
7.4 Amendment
7.5 Integration
7.6 Interpretation
7.7 Governing Law; Jurisdiction
7.8 Counterparts
7.9 Captions
7.10 Replacement of Authorized Representative
SELFCARE, INC.
SECURITIES PURCHASE AGREEMENT
This Agreement, dated as of June 26, 1998, is among
Selfcare, Inc., a Delaware corporation (the "Company"), the
purchasers named on Exhibit A attached hereto (the "Initial
Purchasers"), such additional purchasers as may be identified on
such addenda to Exhibit A as may be agreed upon by the Company
and such additional purchasers in accordance with the terms of
this Agreement (the "Additional Purchasers" and, together with
the Initial Purchasers, the "Purchasers") and Pear Tree Royalty
Company, Inc., a Massachusetts corporation, as authorized
representative and agent for the Purchasers (the "Authorized
Representative").
The parties hereby agree as follows:
SECTION 1
DESCRIPTION OF FINANCING
1.1 AUTHORIZATION OF SALE OF UNITS. The Company has
authorized the issuance pursuant to this Agreement of up to
$7,500,000 aggregate issue price of Units ("Units") each of which
shall consist of $25,000 in principal amount of its Subordinated
Notes which shall be substantially in the form of Exhibit B
hereto, with blanks appropriately completed (individually a
"Note" and collectively the "Notes") and (ii) a warrant, which
shall be substantially in the form of Exhibit C hereto, with
blanks appropriately completed (individually a "Warrant" and
collectively the "Warrants"), to acquire such number of shares of
the Company's Common Stock, par value $.00l per share (the
"Common Stock") as is determined by dividing $3,750 by the
Exercise Price (as hereinafter defined) as of the date of
issuance of such Warrant. The "Exercise Price" as of a
particular date shall mean the (i) the average of the closing
prices for shares of Common Stock on the American Stock Exchange
on the five trading days immediately preceding such date, or (ii)
if the American Stock Exchange is then not the principal trading
market for shares of Common Stock, the average of the last
reported sales prices for such five trading days (or, if there is
no reported sales price for such trading days, the last reported
bid price for such trading days) on the principal trading market
for shares of Common Stock, or (iii) if neither clause (i) nor
clause (ii) is applicable, the fair market value on such date of
one share of Common Stock as determined by the Board of Directors
of the Company. The issue price for each Unit (the "Issue
Price") shall be $25,000.
1.2 INITIAL CLOSING. Subject to the terms and conditions
of this Agreement, at the initial closing pursuant to this
Agreement (the "Initial Closing"), the Company shall deliver to
each Initial Purchaser, against payment by such Initial Purchaser
of the Issue Price for each Unit being purchased by such Initial
Purchaser, by check payable to the order of the Company, an
executed Note in the principal amount of $25,000 multiplied by
the number of Units being purchased by such Initial Purchaser and
an executed Warrant for the number of shares of Common Stock
determined by multiplying $3,750 by the number of Units being
purchased by such Initial Purchaser and then dividing the
resulting product by the Exercise Price as of the date of the
Initial Closing. The number of Units to be purchased by an
Initial Purchaser is set forth opposite the name of such Initial
Purchaser on Exhibit A. The Initial Closing shall take place
simultaneously with the execution of this Agreement at the
offices of Xxxxxxx, Procter & Xxxx XXX, Xxxxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000.
1.3 ADDITIONAL CLOSINGS.
(a) Subject to the terms and conditions of this
Agreement, at one or more closings subsequent to the Initial
Closing (each, an "Additional Closing"), the Company may issue
and sell Units to one or more Additional Purchasers who enter
into this Agreement by executing one or more counterparts hereof
in the form attached hereto as Exhibit D; PROVIDED, HOWEVER, that
the aggregate Issue Prices of all Units to be issued under this
Agreement shall not exceed $5,000,000 unless the Company and the
Authorized Representative so agree and in any event shall not
exceed $7,500,000.
(b) Each Additional Closing shall take place at such
time, date and place as are mutually agreeable to the Company and
the Additional Purchasers participating in the Additional
Closing; PROVIDED, HOWEVER, that no Additional Closing shall take
place after September 30, 1998 unless extended by the Company
from time to time to a later date, but any such later date shall
not be later than December 31, 1998.
(c) At each Additional Closing, the Company shall
deliver to each Additional Purchaser participating in the
Additional Closing, against payment by each Additional Purchaser
of the Issue Price for each Unit being purchased by such
Additional Purchaser by check payable to the order of the
Company, (i) an executed Note in the principal amount of $25,000
multiplied by the number of Units being purchased by such Initial
Purchaser and (ii) an executed Warrant for the number of shares
of Common Stock determined by multiplying $3,750 by the number of
Units being purchased by such Additional Purchaser and then
dividing the resulting product by the Exercise Price as of the
date of the Additional Closing. The number of Units to be
purchased by an Additional Purchaser shall be set forth opposite
the Additional Purchaser's name on an addendum to Exhibit A in
the form attached hereto as Exhibit E. Each addendum shall be
executed by the Company and each such Additional Purchaser, a
copy of each addendum shall be delivered to the Authorized
Representative, and each addendum shall be deemed a part of this
Agreement ab initio.
1.4 SUBORDINATION. Each of the Notes issued pursuant to
this Agreement shall be subordinated to all existing and future
"Senior Indebtedness" of the Company, as defined and provided for
in the form of Note attached hereto as Exhibit B. To the extent
provided in the Notes, Senior Indebtedness must be paid before
any Note may be paid.
1.5 NO DEMAND. Each of the Purchasers hereby agrees that
only the Authorized Representative shall have the right to demand
payment from the Company under any Note.
1.6 ALTERNATIVE DELIVERY. At the Initial Closing or any
Additional Closing the Company may deliver one or more of the
Notes or of the Warrants to the Authorized Representative rather
than to one or more of the Purchasers. The Authorized
Representative shall then forward any such Notes and Warrants to
the appropriate Purchaser.
SECTION 2
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to each of the
Purchasers as follows:
2.1 ORGANIZATION AND GOOD STANDING OF THE COMPANY. The
Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware. The
Company has the corporate power and authority to carry on its
business as now conducted or proposed to be conducted, to enter
into this Agreement, to issue the Notes as contemplated herein
and to carry out the provisions of this Agreement.
2.2 AUTHORIZATION. This Agreement, the Notes and the
Warrants when executed and delivered, shall be valid and binding
obligations of the Company, enforceable in accordance with their
respective terms except as such enforcement may be limited by
applicable bankruptcy, insolvency, reorganization or other laws
of general application relating to or affecting enforcement of
creditors' rights. The execution, delivery and performance of
this Agreement, the Notes and the Warrants have been duly
authorized by all necessary corporate or other action of the
Company. Neither the execution and delivery of this Agreement,
the Notes or the Warrants nor the consummation of the
transactions contemplated hereby or thereby will: (a) violate any
provisions of the charter or by-laws of the Company; (b) violate,
conflict with or result in the breach or termination of, or
otherwise give any other contracting party the right to
terminate, or constitute a default under the terms of, any
agreement or instrument to which the Company is a party or by or
to which the Company or any of the Company's property or assets
may be bound or subject; (c) result in the creation of any lien,
charge or encumbrance upon the properties or assets of the
Company pursuant to the terms of any such agreement or
instrument; (d) violate any judgment, order, injunction, decree
or award against, or binding upon, the Company or upon the
securities, property or business of the Company; or (e)
constitute a violation of any law or regulation of any applicable
jurisdiction.
2.3 LITIGATION. There is no action, proceeding or
investigation pending or to the knowledge of the Company
threatened (or any basis therefor) which questions the validity
of this Agreement, the issuance of the Notes or the Warrants or
any other actions taken or to be taken pursuant hereto or
contemplated hereby.
2.4 USE OF PROCEEDS. The Company shall use the net
proceeds of the sale of the Units as follows: for the repayment
of short term debt, for capital expenditures, and for working
capital and other general corporate purposes.
2.5 BROKERS OR FINDERS. The Company has not employed any
broker or finder in connection with the transactions contemplated
by this Agreement except U.S. Boston Capital Corporation, to
which the Company has agreed to pay the following: (a) a
commission of six percent (6%) of the Issue Price received by the
Company for each Unit issued pursuant to this Agreement, (b)
reimbursement of reasonable attorney fees and disbursements of
counsel to U.S. Boston Capital Corporation incurred in connection
with this Agreement and the Notes and Warrants and (c)
reimbursement pursuant to a non-accountable expense allowance of
up to $5,000 in other out-of-pocket costs, such amount to be
increased to $7,500 if the aggregate Issue Prices of all Units
sold hereunder equals $7,500,000.
2.6 EXEMPTIONS FROM SECURITIES LAWS. Subject to the
accuracy of the representations and warranties of the Purchasers
set forth in Section 3 hereof as of the date hereof and as of the
date of any closing hereunder, the provisions of Section 5 of the
federal Securities Act of 1933, as amended (the "Act") are
inapplicable to the offering, issuance, sale and delivery of the
Notes and the Warrants, and no consent, approval, qualification
or registration or filing under any state securities or blue sky
laws is required in connection therewith except such as have been
obtained or such as may be filed, or will be filed, after the
closing relating to such Notes and Warrants.
SECTION 3
REPRESENTATIONS, WARRANTEES AND
AGREEMENTS OF THE PURCHASERS
Each Purchaser (severally and not jointly) represents and
warrants to the Company as follows:
3.1 BINDING AGREEMENT. This Agreement constitutes a valid
and legally binding obligation of such Purchaser except as such
enforcement may be limited by applicable bankruptcy, insolvency,
reorganization or other laws of general application relating to
or affecting enforcement of creditors' rights.
3.2 INVESTMENT REPRESENTATIONS.
(a) Any Note and any Warrant to be received by a
Purchaser pursuant to this Agreement will be acquired for
investment for such Purchaser's own account, not as a nominee or
agent, and not with a view to the sale or distribution of any
part thereof, and such Purchaser has no present intention of
selling, granting participation in or otherwise distributing the
same (provided, however, that the disposition by each Purchaser
of such Purchaser's property shall at all times be within the
Purchaser's control). No Purchaser has a contract, undertaking,
agreement or arrangement with any person to sell, transfer or
grant participations to such person, or to any third person, with
respect to any of the securities of the Company acquired pursuant
to this Agreement.
(b) Each Purchaser understands that the Notes and the
Warrants will not be registered under the Act, on the grounds
that the sales provided for in this Agreement and the issuance of
securities hereunder are exempt from registration under the Act
pursuant to Section 4(2) thereof, and that the Company's reliance
on such exemption is predicated in part on such Purchaser's
representations set forth herein.
(c) Each Purchaser represents that such Purchaser has
such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of the
Purchaser's investment, and has the ability to bear the economic
risks of such investment. Each Purchaser further represents that
such Purchaser has had access, during the course of the
transaction and prior to any purchase hereunder, to all such
information as such Purchaser deemed necessary or appropriate (to
the extent the Company possessed such information or could
acquire it without unreasonable effort or expense) and that such
Purchaser has had, during the course of the transaction and prior
to any purchase hereunder, the opportunity to ask questions of
and receive answers from the Company concerning the terms and
conditions of the offering of the Units and to obtain additional
information (to the extent the Company possessed such information
or could acquire it without unreasonable effort or expense)
necessary to verify the accuracy of any information furnished to
such Purchaser or to which such Purchaser had access.
(d) Each Purchaser understands that the Notes and
Warrants may not be sold, transferred or otherwise disposed of
other than pursuant to a registration under the Act or an
exemption therefrom. In particular, each Purchaser is aware that
the Notes and Warrants may not be sold pursuant to Rule 144
promulgated under the Act ("Rule 144") unless all of the
conditions of Rule 144 applying to such Purchaser and the Company
at the time of such sale are met. Each Purchaser represents
that, in the absence of an effective registration statement
covering the Notes and Warrants, such Purchaser will sell,
transfer or otherwise dispose of any of such securities only in a
manner consistent with such Purchaser's representations set forth
herein.
3.3 BROKERS OR FINDERS. Such Purchaser has not employed
any broker or finder in connection with the transactions
contemplated by this Agreement.
3.4 TRANSFER OR ASSIGNMENT OF NOTES AND WARRANTS. Each
Purchaser agrees that in no event will such Purchaser make a
transfer, assignment or other disposition of any of the Notes or
any of the Warrants (other than pursuant to an effective
registration statement under the Act) unless and until (i) such
Purchaser shall have notified the Company of the proposed
disposition and shall have furnished the Company with a statement
of the circumstances relating to the proposed disposition, (ii)
at the expense of the Purchaser, transferee or assignee, such
Purchaser shall have furnished to the Company an opinion of
counsel, which counsel and opinion are reasonably satisfactory to
the Company, to the effect that such disposition may be made
without registration under the Act or qualification under state
securities laws, (iii) the Company shall have received such
written representations and warranties from the transferee or
assignee as it shall reasonably require to assure continued
compliance with the Act and such laws and (iv) the transferee or
assignee shall have agreed to be bound by the terms and
conditions of this Agreement. The opinion of counsel pursuant to
clause (ii) shall not be required in the case of any Purchaser's
transfer or assignment of a Note or a Warrant by gift or bequest
or through inheritance to, or for the benefit of, any member or
members of such Purchaser's immediate family.
3.5 LEGENDS. Each Purchaser acknowledges such Purchaser's
understanding that the Notes and the Warrants will bear a legend
substantially in the following forms until the Company's counsel
determines that the legend is no longer advisable or required:
THIS NOTE [WARRANT] IS SUBJECT TO
RESTRICTIONS ON TRANSFER AS SET FORTH IN THE
SECURITIES PURCHASE AGREEMENT AMONG THE
REGISTERED OWNER OF THIS NOTE [WARRANT] AND
CERTAIN OTHERS. ANY TRANSFEREE OF A HOLDER
OF THIS NOTE [WARRANT] SHALL, AS A CONDITION
OF SUCH TRANSFER, BE REQUIRED TO BECOME A
PARTY TO SUCH AGREEMENT. THE COMPANY WILL
FURNISH A COPY OF THE AGREEMENT TO THE HOLDER
OF THIS NOTE [WARRANT] UPON REQUEST WITHOUT
CHARGE.
THIS NOTE [WARRANT] HAS BEEN ACQUIRED FOR
INVESTMENT AND HAS NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED, AND EXCEPT AS SET FORTH IN SUCH
AGREEMENT MAY NOT BE SOLD, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED UNLESS
(i) A REGISTRATION STATEMENT WITH RESPECT
THERETO IS EFFECTIVE UNDER SAID ACT OR (ii)
THE COMPANY HAS RECEIVED AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.
[FOR THE NOTES ONLY] THIS NOTE WAS ISSUED WITH ORIGINAL
ISSUE DISCOUNT ("OID"). THE CHIEF FINANCIAL OFFICER OF
SELFCARE, INC., WHO CAN BE CONTACTED AT SELFCARE, INC.
000 XXXXXXXX XXXXXX, XXXXXXX, XX 00000, TEL. NO. 781-
647-3900, WILL MAKE AVAILABLE TO THE HOLDER HEREOF UPON
REQUEST THE ISSUE PRICE, THE AMOUNT OF OID, THE ISSUE
DATE AND THE YIELD TO MATURITY.
and that appropriate stop-transfer orders will be noted on the
Company's notes and warrants register with respect to all Notes
and Warrants so legended.
3.6 NON-DISCLOSURE. Other than for purposes of enforcement
of this Agreement, each Purchaser agrees to hold in confidence
any confidential information about the Company that such
Purchaser has received or hereafter receives pursuant to any
provision of this Agreement under circumstances indicating the
confidentiality of such information until the Company shall have
publicly disclosed such information.
3.7 TAX MATTERS. Each Purchaser agrees to treat the amount
to be specified by the Company as the fair market value of the
Note issued to such Purchaser as the issue price of such Note for
all tax purposes, including the filing of all tax returns and
reports.
SECTION 4
FINANCIAL STATEMENTS
So long as any of the Notes are outstanding, the Company
shall deliver the following to the Authorized Representative:
4.1 QUARTERLY FINANCIAL STATEMENTS. Within 50 days after
the end of each of the first three fiscal quarters of the
Company:
(a) The internally prepared consolidated balance
sheets of the Company and its subsidiaries as at the end of such
fiscal quarter, the consolidated statements of operation and the
consolidated statements of stockholders' equity and of cash flows
of the Company and the Company's subsidiaries for such fiscal
quarter and for the portion of the fiscal year then ended (all in
reasonable detail) and together, in the case of consolidated
financial statements, with comparative figures for the same
period in the preceding fiscal year.
(b) A certificate of the Company signed by an officer
of the Company to the effect that such financial statements have
been prepared in accordance with generally accepted accounting
principles as from time to time in effect, including the
statements and interpretations of the United States Financial
0Accounting Standards Board and any predecessor or successor
entity ("GAAP") and present fairly, in all material respects, the
financial position of the Company at the dates thereof and the
results of its operations for the periods covered thereby,
subject only to normal year-end audit adjustments and the
addition of footnotes and schedules at year end.
4.2 ANNUAL FINANCIAL STATEMENTS. Within 95 days after the
end of each fiscal year of the Company:
(a) Consolidated balance sheets of the Company and its
subsidiaries as at the end of such fiscal year, the consolidated
statements of operations and the consolidated statements of
stockholders' equity and of cash flows of the Company and its
subsidiaries for such fiscal year (all in reasonable detail) and
together, in the case of consolidated financial statements, with
comparative figures for the immediately preceding fiscal year.
(b) Reports of the Company's independent certified
public accountants to the effect that they have audited the
foregoing financial statements in accordance with generally
accepted auditing standards and that such financial statements
present fairly, in all material respects, the financial position
of the Company and its subsidiaries covered thereby at the dates
thereof and the results of their operations for the periods
covered thereby in conformity with GAAP.
SECTION 5
AUTHORIZED REPRESENTATIVE
5.1 POWERS AND AUTHORITY. The Purchasers hereby confirm
the appointment of the Authorized Representative as their agent
for the purposes specified in this Agreement. In furtherance of
these purposes, the Authorized Representative shall be empowered
and is hereby authorized by the Purchasers to take such actions
and exercise such powers as are necessary or appropriate to carry
out its obligations hereunder, together with such powers as are
reasonably incidental thereto, and to exercise any and all of the
rights, powers and remedies available to the Purchasers under
this Agreement, the Notes and under applicable law that the
Authorized Representative deems appropriate for the protection of
the Purchasers.
5.2 TERM. The Authorized Representative shall serve in
such capacity until it resigns or until it is replaced. The
Authorized Representative or any successor may be replaced by
written direction of the Majority of Holders.
5.3 EXCULPATION. As to any matters not expressly provided
for by this Agreement, the Authorized Representative shall not be
required to exercise any discretion or to take any action, but
shall be required to act or refrain from acting (and shall be
fully protected in so acting or refraining from acting) only upon
the written instructions of the Majority of Holders, provided,
however, that the Authorized Representative shall not be required
to take any action that it reasonably believes will expose it to
personal liability or to be contrary to this Agreement or
applicable law. The Authorized Representative shall not be
liable for any action taken or omitted to be taken by it under or
in connection with this Agreement, except for its own gross
negligence or willful misconduct. Without limiting the
generality of the foregoing, the Authorized Representative: (i)
may consult with legal counsel, independent public accountants
and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or
experts; (ii) shall not have any duty to ascertain or to inquire
as to the performance or observance of any of the terms,
covenants or conditions of this Agreement or the Notes on the
part of the Company; (iii) shall not be responsible to any
Purchaser for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this
Agreement, any Note or any other instrument or document furnished
pursuant hereto; and (iv) shall incur no liability under or in
respect of this Agreement by acting upon any notice, consent,
certificate or other instrument or writing believed by it to be
genuine and believed by it to have been signed or sent by the
proper party or parties in accordance with Section 7.3 of this
Agreement. The Purchasers agree to indemnify the Authorized
Representative, ratably according to the proportion that the
total remaining unpaid principal amount of each Purchaser's Note
or Notes bears to the aggregate total remaining unpaid principal
amount of all Notes then outstanding, from and against any and
all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of
any kind or nature whatsoever that may be imposed upon, incurred
by, or asserted against the Authorized Representative in any way
relating to or arising out of this Agreement or any action taken
or omitted by the Authorized Representative under this Agreement,
PROVIDED that such indemnity shall not be applicable in the event
of the Authorized Representative's gross negligence or willful
misconduct.
5.4 FEE. As a fee for the services provided by the
Authorized Representative in connection with this Agreement and
the Units, the Authorized Representative will be issued a Warrant
by the Company on the date of the Initial Closing and, if
applicable, any Additional Closing to purchase, at the Exercise
Price for Warrants being issued at such closing, the number of
shares of Common Stock equal to one-third the number of shares of
Common Stock issuable pursuant to the Warrants being issued on
such date to the Initial Purchasers or the Additional Purchasers,
as the case may be.
SECTION 6
DEFAULTS
6.1 EVENTS OF DEFAULT. The following events are "Events of
Default" for purposes of the Notes:
(a) The Company shall fail to make any payment as
required by the Notes.
(b) The Company shall fail to perform or observe any
covenant, agreement or provision to be performed or observed by
it under this Agreement or any of the Notes.
(c) Any representation or warranty of or with respect
to the Company in, pursuant to or in connection with this
Agreement shall be materially false on the date as of which it
was made.
(d) (i) Any person, together with "affiliates" and
"associates" of such person within the meaning of Rule 12b-2 of
the federal Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or any "group" including such person under
sections 13(d) and 14(d) of the Exchange Act, shall acquire after
the date hereof beneficial ownership within the meaning of Rule
13d-3 of the Exchange Act of fifty percent (50%) or more of
either the voting stock or total equity capital of the Company;
(ii) the Company shall initiate any action to dissolve, liquidate
or otherwise terminate its existence; (iii) the Company shall
merge or consolidate into another entity in a transaction in
which the stockholders of the Company immediately prior to such
merger or consolidation do not own fifty percent (50%) or more of
either the voting stock or total equity capital of the surviving
entity immediately after the transaction; or (iv) the Company
shall sell substantially all of its assets.
(e) The Company shall:
(i) commence a voluntary case under Title 11 of
the United States Code (the "Bankruptcy Code") or authorize,
by appropriate proceedings of its Board of Directors or
other governing body, the commencement of such a voluntary
case;
(ii) (A) have filed against it a petition
commencing an involuntary case under the Bankruptcy Code
that shall not have been dismissed within 90 days after the
date on which such petition is filed, or (B) file an answer
or other pleading within such 90-day period admitting or
failing to deny the material allegations of such a petition
or seeking, consenting to or acquiescing in the relief
therein provided, or (C) have entered against it an order
for relief in any involuntary case commenced under the
Bankruptcy Code;
(iii) seek relief as a debtor under any
applicable law, other than the Bankruptcy Code, of any
jurisdiction relating to the liquidation or reorganization
of debtors or to the modification or alteration of the
rights of creditors generally, or consent to or acquiesce in
such relief;
(iv) have entered against it an order by a court
of competent jurisdiction (A) finding it to be bankrupt or
insolvent, (B) ordering or approving its liquidation or
reorganization as a debtor or any modification or alteration
of the rights of its creditors generally or (C) assuming
custody of, or appointing a receiver or other custodian for,
all or a substantial portion of its property; or
(v) make an assignment for the benefit of, or
enter into a composition with, its creditors, or appoint, or
consent to the appointment of, or suffer to exist a receiver
or other custodian for, all or a substantial portion of its
property.
SECTION 7
MISCELLANEOUS
7.1 SURVIVAL. All agreements, representations and
warranties contained herein shall survive the execution and
delivery of this Agreement and of the Notes and Warrants. Each
of the parties may rely on such covenants, representations and
warranties irrespective of any investigation made, or notice or
knowledge held by, it or any other person.
7.2 SUCCESSORS AND ASSIGNS. All covenants and agreements
in this Agreement made by or on behalf of any of the parties
hereto shall bind and inure to the benefit of their respective
permitted successors and assigns; provided, however, that the
obligations of the Authorized Representative hereunder may only
be assigned in connection with the appointment of a substitute
Authorized Representative pursuant to the provisions of this
Agreement.
7.3 NOTICES. All notices or other communication required
or permitted hereunder and under the Notes shall be in writing
and shall be deemed to have been duly given and delivered when
(a) delivered personally, (b) five days after being sent by
certified mail, return receipt requested, (c) one day after being
sent by United States express mail, (d) one day after deposit
with a national overnight courier service providing evidence of
delivery or (e) upon oral acknowledgment of receipt after being
sent by facsimile transmission, in each case delivery charges or
postage prepaid, and addressed to the party to whom such notice
is to be given at the following address (or to the addressee at
such other address as the addressee shall have specified by
notice actually received by the addressor):
If to the Company:
Selfcare, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Facsimile Number: 000-000-0000
Attention: Vice President, U.S. Operations
with a copy to:
Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile Number: 000-000-0000
Attention: Xxxxxx Xxxxxxxxxx III, P.C.
and
Xxxxxxx X. Xxxx, P.C.
If to the Authorized Representative:
Pear Tree Royalty Company, Inc.
00 Xxx Xxxxxxx Xxxx
Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Facsimile Number: 000-000-0000
Attention: Xxxxxxx Xxxxxxxx Xxxxxxxx, Esquire
with a copy to:
Xxxxxxx X. Xxx Xxxx
Van Xxxx & Xxxxxx, P.C.
0 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Facsimile Number: 000-000-0000
If to any Purchaser:
At such Purchaser's address as set forth on the signature
pages hereto or in the note register provided for in the
Notes, with a copy to the Authorized Representative.
7.4 AMENDMENT. This Agreement may not be amended or
modified except by an agreement in writing among the Company, the
Majority of Holders and, with respect only to the rights and
obligations of the Authorized Representative hereunder, the
Authorized Representative.
7.5 INTEGRATION. This Agreement and the other documents
referred to herein or delivered pursuant hereto contain the
entire agreement among the parties with respect to the financing
transactions contemplated hereby and supersede all prior
negotiations, commitments, agreements and understandings among
them with respect thereto. All Exhibits to this Agreement are
hereby incorporated into and made a part of this Agreement.
7.6 INTERPRETATION. Whenever possible, each provision of
this Agreement shall be interpreted in such manner as to be valid
and effective under applicable law, but if any provision of this
Agreement or the effect thereof shall be invalid under or
prohibited by such law, such provision shall be invalid or denied
effect only to the extent of such invalidity or prohibition,
without prohibiting or invalidating the remainder of such
provision or the remaining provisions of this Agreement or the
enforcement thereof.
7.7 GOVERNING LAW; JURISDICTION. This Agreement shall be
deemed to be executed in The Commonwealth of Massachusetts and
shall be governed by and construed and enforced in accordance
with the laws of The Commonwealth of Massachusetts. The parties
hereto consent to the sole and exclusive jurisdiction of the
courts of The Commonwealth of Massachusetts, or the Federal
Courts sitting in, The Commonwealth of Massachusetts in respect
to any action or proceeding arising out of or relating to this
Agreement. Each party hereto irrevocably waives, to the fullest
extent it may effectively do so, the defense of improper venue or
any inconvenient forum to the maintenance of such action or
proceeding.
7.8 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original and
all of which together shall constitute one and the same
agreement.
7.9 CAPTIONS. All section and descriptive headings are
inserted for convenience only, and shall not affect any
construction or interpretation hereof.
7.10 REPLACEMENT OF AUTHORIZED REPRESENTATIVE. The holders
of a majority in interest of the Notes outstanding at any time
may remove the then existing Authorized Representative and
designate a new Authorized Representative by written notice to
the Company and the then existing Authorized Representative.
In witness whereof the parties hereto have executed this
Agreement as of the day and year first written above.
THE COMPANY
SELFCARE, INC.
By:__________________________
Its:
THE AUTHORIZED REPRESENTATIVE
PEAR TREE ROYALTY COMPANY, INC.
By:_________________________
Its:
PURCHASER SIGNATURE PAGE
TO SELFCARE, INC. SECURITIES PURCHASE AGREEMENT
By executing this page in the space provided, the
undersigned purchaser hereby agrees (i) that the undersigned is a
"Purchaser" as defined in the Securities Purchase Agreement dated
as of June 26, 1998 among Selfcare, Inc., certain purchasers
named on Exhibit A thereto and Pear Tree Royalty Company, Inc. as
authorized representative of the purchasers (the "Agreement"),
(ii) that the undersigned is a party to the Agreement for all
purposes and (iii) that the undersigned is bound by all terms and
conditions of the Agreement.
EXECUTED this _____ day of ______________, 1998.
_________________________
(print name)
By:______________________
Title:___________________
Address:_________________
_________________
_________________
Facsimile:_______________