EXHIBIT 10.1
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT, dated as of the date of
acceptance set forth below (this "Agreement"), is entered into by and between
XXXXXX HEALTHCARE, INC., a Texas corporation, with headquarters located at 000
Xxxxxxxxxx Xxxxxxxxx, Xxxxx Xxxx, XX 00000 (the "Company"), and each entity
named on a signature page hereto (each, a "Buyer") (each agreement with a Buyer
being deemed a separate and independent agreement between the Company and such
Buyer, except that each Buyer acknowledges and consents to the rights granted to
each other Buyer under such agreement and the Transaction Agreements, as defined
below, referred to therein).
W I T N E S S E T H:
WHEREAS, the Company and the Buyer are executing and delivering this
Agreement in accordance with and in reliance upon the exemption from securities
registration afforded, INTER ALIA, by Rule 506 under Regulation D ("Regulation
D") as promulgated by the United States Securities and Exchange Commission (the
"SEC") under the Securities Act of 1933, as amended (the "1933 Act"), and/or
Section 4(2) of the 1933 Act; and
WHEREAS, the Buyer wishes to purchase, upon the terms and subject to
the conditions of this Agreement, shares of Series D Convertible Preferred
Stock, par value $0.10 per share and having a stated value of $1,000 per share,
of the Company (the "Convertible Preferred Stock") which will be convertible
into shares of Common Stock, $.01 par value per share of the Company (the
"Common Stock"), upon the terms and subject to the conditions of such
Convertible Preferred Stock, together with the Warrants (as defined below)
exercisable for the purchase of shares of Common Stock, and subject to
acceptance of this Agreement by the Company;
NOW THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. AGREEMENT TO PURCHASE; PURCHASE PRICE.
A. PURCHASE; CERTAIN DEFINITIONS.
(i) The undersigned hereby agrees to purchase from the Company
Convertible Preferred Stock having a stated value in the amount set forth on the
Buyer's signature page of this Agreement (the "Preferred Stock," which term
includes the Initial Preferred Stock and the Additional Preferred Stock, as
defined below), out of a total offering of such Convertible Preferred Stock
having a stated value of $3,500,000, and having the terms and conditions set
forth in the Statement of Designations of the Series D Convertible Preferred
Stock of the Company attached hereto as ANNEX I (the "Certificate of
Designations").
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(ii) Subject to the terms and conditions of this Agreement and the
other Transaction Agreements, the Buyer will purchase (x) Convertible Preferred
Stock having a stated value of $2,500,000 multiplied by the Buyer's Allocable
Share (the "Initial Preferred Stock") on the Initial Closing Date (as those
terms are defined below) and (y) the balance of the Preferred Stock (the
"Additional Preferred Stock") on the Additional Closing Date (as defined below).
(iii) The purchase price to be paid by the Buyer shall be equal to
the amount set forth on the Buyer's signature page of this Agreement, and shall
be payable in United States Dollars.
B. CERTAIN DEFINITIONAs used herein, each of the following terms has
the meaning set forth below, unless the context otherwise requires:
(i) "Securities" means the Preferred Stock, the Warrants and the
Common Stock issuable upon conversion of the Preferred Stock or the exercise of
the Warrants.
(ii) "Purchase Price" means the purchase price for the Initial
Preferred Stock or the Additional Preferred Stock, as the case may be.
(iii) "Initial Closing Date" means the date of the closing of the
purchase and sale of the Initial Preferred Stock, as provided herein.
(iv) "Additional Closing Date" means the date of the closing of the
purchase and sale of the Additional Preferred Stock, as provided herein.
(v) "Closing Date" means the Initial Closing Date or the Additional
Closing Date, as the case may be.
(vi) "Buyer's Allocable Share" means the fraction of which the
numerator is the stated value of the Buyer's Preferred Stock specified on the
Buyer's signature page of this Agreement and the denominator is $3,500,000.
(vii) "Effective Date" means the effective date of the Registration
Statement covering the Registrable Securities (as those terms are defined in the
Registration Rights Agreement defined below).
(viii)"Converted Shares" means the shares of Common Stock issuable
upon conversion of the Preferred Stock.
(ix) "Warrant Shares" means the shares of Common Stock issuable upon
exercise of the Warrants.
(x) "Shares" means the shares of Common Stock representing any or
all of the Converted Shares and the Warrant Shares.
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(xi) As used herein, the term "Market Price of the Common Stock"
means the average closing bid price of the Common Stock for the three (3)
trading days (which need not be consecutive) during the period of the fifteen
(15) trading days ending on the trading day immediately before the date
indicated in the relevant provision hereof (unless a different relevant period
is specified in the relevant provision) for which the closing bid price of the
Common Stock (as reported by Bloomberg, LP or, if not so reported, as reported
by the securities exchange or automated quotation system on which the Common
Stock is listed or on the over-the-counter market) were the lowest.
(xii) "Strategic Partner" means a third party unaffiliated with the
Company as of the date hereof which party (i) is engaged in a business which is
the business in which the Company is engaged or a similar or related business,
and (ii) subsequently purchases equity securities of the Company (or securities
convertible into equity securities of the Company), where such purchase is
accompanied or followed by any one or more of the following: the licensing by
the Company of all or any portion of its technology to such third party, the
licensing by such third party of all or any portion of its technology to the
Company, or any other coordination of all or a portion of their respective
business activities or operations by the Company and such third party. By way of
illustration and not in limitation of the foregoing, if a third party entity
engaged in the manufacturing or distribution of rehabilitation equipment or
similar products (exclusively or as one of multiple fields of endeavor)
purchases an equity interest in the Company where the Company and such third
party intend that such investment is to be accompanied by any one or more of a
licensing agreement by one or the other of the other party's technology or by a
cross-licensing agreement, by an OEM agreement, by a joint development agreement
or by other coordination of design, production or marketing activities, such
third party would be a Strategic Partner.
C. FORM OF PAYMENT; DELIVERY OF CERTIFICATES.
(i) The Buyer shall pay the Purchase Price for the relevant
Preferred Stock by delivering immediately available good funds in United States
Dollars to the escrow agent (the "Escrow Agent") identified in the Joint Escrow
Instructions attached hereto as ANNEX II (the "Joint Escrow Instructions") on
the date prior to the relevant Closing Date.
(ii) No later than the relevant Closing Date, but in any event
promptly following payment by the Buyer to the Escrow Agent of the relevant
Purchase Price, the Company shall deliver one or more certificates representing
the Preferred Stock and, if relevant to the transactions to be consummated on
that Closing Date, the Warrants to be issued hereunder, each duly executed on
behalf of the Company and issued in the name of the Buyer (collectively, the
"Certificates") to the Escrow Agent.
(iii) By signing this Agreement, each of the Buyer and the Company,
subject to acceptance by the Escrow Agent, agrees to all of the terms and
conditions of, and becomes a party to, the Joint Escrow Instructions, all of the
provisions of which are incorporated herein by this reference as if set forth in
full.
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D. METHOD OF PAYMENT. Payment into escrow of the Purchase Price
shall be made by wire transfer of funds to:
Bank of New York
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABA# 000000000
For credit to the account of Xxxxxxx & Prager LLP, Esqs.
Account No.: [To be provided to the Buyer by Xxxxxxx & Xxxxxx
LLP]
Re: Xxxxxx Healthcare Transaction
Not later than 5:00 p.m., New York time, on the date which is three (3)
Nasdaq/SmallCap Market trading days after the Company shall have accepted this
Agreement and returned a signed counterpart of this Agreement to the Escrow
Agent by facsimile, the Buyer shall deposit with the Escrow Agent the Purchase
Price for the Initial Preferred Stock in immediately available funds. Time is of
the essence with respect to such payment, and failure by the Buyer to make such
payment, shall allow the Company to cancel this Agreement.
E. ESCROW PROPERTY. The Purchase Price delivered to the Escrow Agent
as contemplated by Section 1(d) hereof is referred to as the "Escrow Funds." The
Escrow Funds and the Certificates delivered to the Escrow Agent as contemplated
by Section 1(c) hereof are referred to as the "Escrow Property."
2. BUYER REPRESENTATIONS, WARRANTIES, ETC.; ACCESS TO INFORMATION;
INDEPENDENT INVESTIGATION.
The Buyer represents and warrants to, and covenants and agrees with,
the Company as follows:
A. Without limiting Buyer's right to sell the Common Stock pursuant
to the Registration Statement, the Buyer is purchasing the Preferred Stock and
the Warrants and will be acquiring the Shares for its own account for investment
only and not with a view towards the public sale or distribution thereof and not
with a view to or for sale in connection with any distribution thereof.
B. The Buyer is (i) an "accredited investor" as that term is defined
in Rule 501 of the General Rules and Regulations under the 1933 Act by reason of
Rule 501(a)(3), (ii) experienced in making investments of the kind described in
this Agreement and the related documents, (iii) able, by reason of the business
and financial experience of its officers (if an entity) and professional
advisors (who are not affiliated with or compensated in any way by the Company
or any of its affiliates or selling agents), to protect its own interests in
connection with the
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transactions described in this Agreement, and the related documents, and (iv)
able to afford the entire loss of its investment in the Securities.
C. All subsequent offers and sales of the Preferred Stock and the
Shares by the Buyer shall be made pursuant to registration of the Shares under
the 1933 Act or pursuant to an exemption from registration.
D. The Buyer understands that the Securities are being offered and
sold to it in reliance on specific exemptions from the registration requirements
of United States federal and state securities laws and that the Company is
relying upon the truth and accuracy of, and the Buyer's compliance with, the
representations, warranties, agreements, acknowledgments and understandings of
the Buyer set forth herein in order to determine the availability of such
exemptions and the eligibility of the Buyer to acquire the Securities.
E. The Buyer and its advisors, if any, have been furnished with all
materials relating to the business, finances and operations of the Company and
materials relating to the offer and sale of the Preferred Stock and the offer of
the Shares which have been requested by the Buyer, including those set forth on
ANNEX V hereto. The Buyer and its advisors, if any, have been afforded the
opportunity to ask questions of the Company and have received complete and
satisfactory answers to any such inquiries. Without limiting the generality of
the foregoing, the Buyer has also had the opportunity to obtain and to review
the Company's (1) Annual Report on Form 10-K, as amended, for the fiscal year
ended December 31, 1999, (2) Definitive Proxy Statement filed on May 28, 1999,
and (3) Registration Statement on Form S-3 filed on June 14, 1999 (collectively,
the "Company's SEC Documents").
F. The Buyer understands that its investment in the Securities
involves a high degree of risk.
G. The Buyer understands that no United States federal or state
agency or any other government or governmental agency has passed on or made any
recommendation or endorsement of the Securities.
H. This Agreement and the other Transaction Agreements to which the
Buyer is a party have been duly and validly authorized, executed and delivered
on behalf of the Buyer and are valid and binding agreements of the Buyer
enforceable in accordance with their respective terms, subject as to
enforceability to general principles of equity and to bankruptcy, insolvency,
moratorium and other similar laws affecting the enforcement of creditors' rights
generally.
I. The Buyer is organized under the laws of and resident in the
jurisdictions set forth opposite the Buyer's name on the Buyer's signature page
hereof.
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3. COMPANY REPRESENTATIONS, ETC. The Company represents and warrants
to the Buyer as of the date hereof and as of each Closing Date that, except as
otherwise provided in the Company Disclosure Materials attached hereto as ANNEX
V hereto:
A. CONCERNING THE PREFERRED STOCK AND THE SHARES. The Preferred
Stock has been duly authorized, and when issued and paid for in accordance with
the terms of this Agreement, will be duly and validly issued, fully paid and
non-assessable and will not subject the holder thereof to personal liability
solely by reason of acquiring the Preferred Stock hereunder. There are no
preemptive rights of any stockholder of the Company, as such, to acquire the
Preferred Stock, the Warrants or the Shares.
B. REPORTING COMPANY STATUS. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Texas and has the requisite corporate power to own its properties and to carry
on its business as now being conducted. The Company is duly qualified as a
foreign corporation to do business and is in good standing in each jurisdiction
where the nature of the business conducted or property owned by it makes such
qualification necessary, other than those jurisdictions in which the failure to
so qualify would not have a material adverse effect on the business, operations
or financial condition or results of operation of the Company and its
subsidiaries taken as a whole. The Company has registered its stock and is
obligated to file reports pursuant to Section 12 of the 1934 Act. The Common
Stock is listed and traded on The Nasdaq/SmallCap Market. The Company has
received no notice, either oral or written, with respect to the continued
eligibility of the Common Stock for such listing, and the Company has maintained
all requirements for the continuation of such listing.
C. AUTHORIZED SHARES. The authorized capital stock of the Company
consists of (i) 20,000,000 shares of Common Stock, $.01 par value per share, of
which approximately 7,590,336 shares had been issued as of the date hereof and
(ii) 2,500,000 shares of Preferred Stock, par value $.10 per share, which, as of
the date hereof, have been authorized in three classes as follows:
SERIES AUTHORIZED ISSUED OUTSTANDING
------ ---------- ------ -----------
Series A Convertible Preferred Stock 5,000 2,500 395
Series B Convertible Preferred Stock 8,000 4,700 3,274
Series C Convertible Preferred Stock 2,250 750 750
All issued and outstanding shares of Common Stock have been duly authorized and
validly issued and are fully paid and nonassessable. The Company has sufficient
authorized and unissued shares of Common Stock as may be necessary to effect the
issuance of the Shares. The Shares have been duly authorized and, when issued
upon conversion of, or as dividends on, the Preferred Stock or upon exercise of
the Warrants, each in accordance with its respective terms, will be duly and
validly issued, fully paid and non-assessable and will not subject the holder
thereof to personal liability by reason of being such holder.
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D. SECURITIES PURCHASE AGREEMENT; REGISTRATION RIGHTS AGREEMENT AND
STOCK. This Agreement and the Registration Rights Agreement, the form of which
is attached hereto as ANNEX IV (the "Registration Rights Agreement"), and the
transactions contemplated thereby, have been duly and validly authorized by the
Company. This Agreement has been duly executed and delivered by the Company and
this Agreement is, and each of the other Transaction Agreements, when executed
and delivered by the Company, will be, a valid and binding agreement of the
Company enforceable in accordance with their respective terms, subject as to
enforceability to general principles of equity and to bankruptcy, insolvency,
moratorium, and other similar laws affecting the enforcement of creditors'
rights generally.
E. NON-CONTRAVENTION. The execution and delivery of this Agreement
and the Registration Rights Agreement by the Company, the issuance of the
Securities, and the consummation by the Company of the other transactions
contemplated by this Agreement, the Registration Rights Agreement, and the
Preferred Stock do not and will not conflict with or result in a breach by the
Company of any of the terms or provisions of, or constitute a default under (i)
the articles of incorporation or by-laws of the Company, each as currently in
effect, (ii) any indenture, mortgage, deed of trust, or other material agreement
or instrument to which the Company is a party or by which it or any of its
properties or assets are bound, including any listing agreement for the Common
Stock except as herein set forth, (iii) to its knowledge, any existing
applicable law, rule, or regulation or any applicable decree, judgment, or order
of any court, United States federal or state regulatory body, administrative
agency, or other governmental body having jurisdiction over the Company or any
of its properties or assets, or (iv) the Company's listing agreement for its
Common Stock, except such conflict, breach or default which would not have a
material adverse effect on the business, operations, condition (financial or
otherwise), or results of operations of the Company and its subsidiaries, taken
as a whole, or on the transactions contemplated herein.
F. APPROVALS. No authorization, approval or consent of any court,
governmental body, regulatory agency, self-regulatory organization, or stock
exchange or market or the stockholders of the Company is required to be obtained
by the Company for the issuance and sale of the Securities to the Buyer as
contemplated by this Agreement, except such authorizations, approvals and
consents that have been obtained.
G. SEC FILINGS. None of the Company's SEC Documents contained, at
the time they were filed, any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to make the
statements made therein in light of the circumstances under which they were
made, not misleading. The Company has since April 1, 1999 timely filed all
requisite forms, reports and exhibits thereto with the SEC.
H. ABSENCE OF CERTAIN CHANGES. Since December 31, 1999, there has
been no material adverse change and no material adverse development in the
business, properties, operations, condition (financial or otherwise), or results
of operations of the Company, except as disclosed in the Company's SEC
Documents. Since December 31, 1999, except as provided in the Company's SEC
Documents, the Company has not (i) incurred or become subject to any material
liabilities (absolute
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or contingent) except liabilities incurred in the ordinary course of business
consistent with past practices; (ii) discharged or satisfied any material lien
or encumbrance or paid any material obligation or liability (absolute or
contingent), other than current liabilities paid in the ordinary course of
business consistent with past practices; (iii) declared or made any payment or
distribution of cash or other property to stockholders with respect to its
capital stock, or purchased or redeemed, or made any agreements to purchase or
redeem, any shares of its capital stock; (iv) sold, assigned or transferred any
other tangible assets, or canceled any debts or claims, except in the ordinary
course of business consistent with past practices; (v) suffered any substantial
losses or waived any rights of material value, whether or not in the ordinary
course of business, or suffered the loss of any material amount of existing
business; (vi) made any changes in employee compensation, except in the ordinary
course of business consistent with past practices; or (vii) experienced any
material problems with labor or management in connection with the terms and
conditions of their employment.
I. FULL DISCLOSURE. There is no fact known to the Company (other
than general economic conditions known to the public generally or as disclosed
in the Company's SEC Documents) that has not been disclosed in writing to the
Buyer that (i) would reasonably be expected to have a material adverse effect on
the business, operations, condition (financial or otherwise), or results of
operations of the Company and its subsidiaries, taken as a whole , (ii) would
reasonably be expected to materially and adversely affect the ability of the
Company to perform its obligations pursuant to this Agreement or any of the
agreements contemplated hereby (collectively, including this Agreement, the
"Transaction Agreements"), or (iii) would reasonably be expected to materially
and adversely affect the value of the rights granted to the Buyer in the
Transaction Agreements.
J. ABSENCE OF LITIGATION. Except as set forth in the Company's SEC
Documents, there is no action, suit, proceeding, inquiry or investigation before
or by any court, public board or body pending or, to the knowledge of the
Company, threatened against or affecting the Company, wherein an unfavorable
decision, ruling or finding would have a material adverse effect on the
properties, business, operations, condition (financial or otherwise), or results
of operation of the Company and its subsidiaries taken as a whole or the
transactions contemplated by any of the Transaction Agreements or which would
adversely affect the validity or enforceability of, or the authority or ability
of the Company to perform its obligations under, any of the Transaction
Agreements.
K. ABSENCE OF EVENTS OF DEFAULT. Except as set forth in the
Company's SEC Documents, no Event of Default (or its equivalent term), as
defined in the respective agreement to which the Company is a party, and no
event which, with the giving of notice or the passage of time or both, would
become an Event of Default (or its equivalent term) (as so defined in such
agreement), has occurred and is continuing, which would have a material adverse
effect on the business, operations, condition (financial or otherwise), or
results of operations of the Company and its subsidiaries, taken as a whole.
L. PRIOR ISSUES. Except as set forth in the Company's SEC Documents,
during the twelve (12) months preceding the date hereof, the Company has not
issued any convertible
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securities. As of the date hereof, the outstanding unconverted principal amount
of each convertible security issued by the Company is as set forth in ANNEX V
hereto.
M. NO UNDISCLOSED LIABILITIES OR EVENTS. The Company has no
liabilities or obligations other than those disclosed in the Company's SEC
Documents or those incurred in the ordinary course of the Company's business
since December 31, 1999, and which individually or in the aggregate, do not or
would not have a material adverse effect on the properties, business,
operations, condition (financial or otherwise), or results of operations of the
Company and its subsidiaries, taken as a whole. No event or circumstances has
occurred or exists with respect to the Company or its properties, business,
operations, condition (financial or otherwise), or results of operations, which,
under applicable law, rule or regulation, requires public disclosure or
announcement prior to the date hereof by the Company but which has not been so
publicly announced or disclosed. There are no proposals currently under
consideration or currently anticipated to be under consideration by the Board of
Directors or the executive officers of the Company (other than the transactions
contemplated by the Transaction Agreements) which proposal would (x) change the
certificate of incorporation or other charter document or by-laws of the
Company, each as currently in effect, with or without shareholder approval,
which change would reduce or otherwise adversely affect the rights and powers of
the shareholders of the Common Stock or (y) materially or substantially change
the business, assets or capital of the Company, including its interests in
subsidiaries.
N. NO DEFAULT. Except as provided in the Company's SEC Documents,
the Company is not in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any material
indenture, mortgage, deed of trust or other material instrument or agreement to
which it is a party or by which it or its property is bound.
O. NO INTEGRATED OFFERING. Neither the Company nor any of its
affiliates nor any person acting on its or their behalf has, directly or
indirectly, at any time since November 1, 1999, made any offer or sales of any
security or solicited any offers to buy any security under circumstances that
would eliminate the availability of the exemption from registration under Rule
506 of Regulation D in connection with the offer and sale of the Securities as
contemplated hereby.
P. DILUTION. The number of Shares issuable upon conversion of the
Preferred Stock and the exercise of the Warrants may increase substantially in
certain circumstances, including, but not necessarily limited to, the
circumstance wherein the trading price of the Common Stock declines prior to the
conversion of the Preferred Stock. The Company's executive officers and
directors have studied and fully understand the nature of the Securities being
sold hereby and recognize that they have a potential dilutive effect. The board
of directors of the Company has concluded, in its good faith business judgment,
that such issuance is in the best interests of the Company. The Company
specifically acknowledges that its obligation to issue the Shares upon
conversion of the Preferred Stock and upon exercise of the Warrants is binding
upon the Company and enforceable regardless of the dilution such issuance may
have on the ownership interests of other shareholders of the Company, and the
Company will honor every Notice of Conversion (as defined in the Certificate of
Designations) relating to the conversion of the Preferred Stock and every Notice
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of Exercise Form (as contemplated by the Warrants) relating to the exercise of
the Warrants unless the Company is subject to an injunction (which injunction
was not sought by the Company) prohibiting the Company from doing so.
Q. BROKERS, FINDERS. Except for payment of fees to Union Atlantic LC
or Union Atlantic Capital, LC(the "Placement Agent"), payment of which is the
sole responsibility of the Company, the Company has taken no action which would
give rise to any claim by any person for brokerage commission, finder's fees or
similar payments by Buyer relating to this Agreement or the transactions
contemplated hereby. Buyer shall have no obligation with respect to such fees or
with respect to any claims made by or on behalf of other persons for fees of a
type contemplated in this Section 3(q) that may be due in connection with the
transactions contemplated hereby. The Company shall indemnify and hold harmless
each of Buyer, its employees, officers, directors, agents, and partners, and
their respective affiliates, from and against all claims, losses, damages, costs
(including the costs of preparation and attorney's fees) and expenses suffered
in respect of any such claimed or existing fees, as and when incurred.
4. CERTAIN COVENANTS AND ACKNOWLEDGMENTS.
A. TRANSFER RESTRICTIONS. The Buyer acknowledges that (1) the
Preferred Stock have not been and are not being registered under the provisions
of the 1933 Act and, except as provided in the Registration Rights Agreement,
the Shares have not been and are not being registered under the 1933 Act, and
may not be transferred unless (A) subsequently registered thereunder or (B) the
Buyer shall have delivered to the Company an opinion of counsel, reasonably
satisfactory in form, scope and substance to the Company, to the effect that the
Securities to be sold or transferred may be sold or transferred pursuant to an
exemption from such registration; (2) any sale of the Securities made in
reliance on Rule 144 promulgated under the 1933 Act may be made only in
accordance with the terms of said Rule and further, if said Rule is not
applicable, any resale of such Securities under circumstances in which the
seller, or the person through whom the sale is made, may be deemed to be an
underwriter, as that term is used in the 1933 Act, may require compliance with
some other exemption under the 1933 Act or the rules and regulations of the SEC
thereunder; and (3) neither the Company nor any other person is under any
obligation to register the Securities (other than pursuant to the Registration
Rights Agreement) under the 1933 Act or to comply with the terms and conditions
of any exemption thereunder.
B. RESTRICTIVE LEGEND. The Buyer acknowledges and agrees that the
Preferred Stock and the Warrants, and, until such time as the Common Stock has
been registered under the 1933 Act as contemplated by the Registration Rights
Agreement and sold in accordance with an effective Registration Statement,
certificates and other instruments representing any of the Securities shall bear
a restrictive legend in substantially the following form (and a stop-transfer
order may be placed against transfer of any such Securities):
THESE SECURITIES (THE "SECURITIES") HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
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AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR
OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES OR AN OPINION OF COUNSEL OR OTHER
EVIDENCE ACCEPTABLE TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.
C. REGISTRATION RIGHTS AGREEMENT. The parties hereto agree to enter
into the Registration Rights Agreement on or before the Closing Date.
D. FILINGS. (i) The Company undertakes and agrees to make all
necessary filings in connection with the sale of the Securities to the Buyer
under any United States laws and regulations applicable to the Company, or by
any domestic securities exchange or trading market, and to provide a copy
thereof to the Buyer promptly after such filing.
(ii) Subject to the conditions of the immediately following
sentence, the Company undertakes and agrees to take all steps necessary to have
a meeting and vote of the stockholders of the Company no later than the Meeting
Date (as defined below) regarding authorization of the Company's issuance to the
holders of the Preferred Stock and Warrants of shares of Common Stock in excess
of twenty percent (20%) of the outstanding shares of Common Stock on the date of
this Agreement in accordance with NASDAQ Rule 4310(c)(25)(H)(i) or Rule
4460(i)(1), as may be applicable. The term "Meeting Date" means the date which
is the earlier of (x) seventy-five (75) days after the date on which the Company
has issued, after the date of this Agreement, shares of Common Stock which, in
the aggregate equal or exceed ten percent (10%) of the outstanding shares of
Common Stock on the date hereof or (y) the date on which the Company holds its
next regular or special stockholders meeting. The Company will recommend to the
stockholders that such authorization be granted and will seek proxies from
stockholders not attending the meeting naming a director or officer of the
Company as such stockholder's proxy and directing the proxy to vote, or giving
the proxy the authority to vote, in favor of such authorization.
(iii) In furtherance of the provisions of the immediately
preceding subparagraph (ii) hereof, the Company (a) commits to using its best
efforts to obtain any stockholder authorization contemplated by said
subparagraph (ii), and (b) represents to the Buyer that the Company has obtained
the binding irrevocable commitment or proxy (each, a "Principal Voter Proxy") of
each Principal Voter (as defined below) that such Principal Voter will vote in
favor of any stockholder authorization contemplated by said subparagraph (ii). A
"Principal Voter" is a person who meets any one or more of the following
criteria: (A) a person who is a director or principal officer of the Company
(each, a "Company Principal") and who, directly or indirectly, holds any shares
of Common Stock of the Company; (B) a spouse of a Company Principal who resides
in the household of the Company Principal (a "Principal's Spouse") and who,
directly or indirectly, holds any shares of Common Stock of the Company, (C) a
parent, sibling or child of a Company Principal who resides in the household of
a Company Principal or of a Principal's Spouse (each, a "Principal's Relative")
and who, directly or indirectly, holds any shares of Common Stock or (D) any
other person or entity, including, without limitation, for profit or non-profit
corporations, partnerships and trusts,
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whose voting rights regarding Common Stock of the Company is subject to the
direction, control or other influence of any Company Principal, Principal's
Spouse or Principal's Relative. The Company will deliver such Principal Voter
Proxies to the Buyer or the Buyer's designee within (10) business days after the
Initial Closing Date.
E. REPORTING STATUS. So long as the Buyer beneficially owns any of
the Securities, the Company shall file all reports required to be filed with the
SEC pursuant to Section 13 or 15(d) of the 1934 Act, and the Company shall not
terminate its status as an issuer required to file reports under the 1934 Act
even if the 1934 Act or the rules and regulations thereunder would permit such
termination. The Company will take all reasonable action under its control to
obtain and to continue the listing and trading of its Common Stock (including,
without limitation, all Registrable Securities) on The Nasdaq/SmallCap Market
and will comply in all material respects with the Company's reporting, filing
and other obligations under the by-laws or rules of the National Association of
Securities Dealers, Inc. ("NASD") or The Nasdaq/SmallCap Market.
F. USE OF PROCEEDS. The Company will use the proceeds from the sale
of the Preferred Stock (excluding amounts paid by the Company for legal fees,
finder's fees and escrow fees in connection with the sale of the Preferred
Stock) for internal working capital purposes, and, unless specifically consented
to in advance in each instance by the Buyer, the Company shall not, directly or
indirectly, use such proceeds for any loan to or investment in any other
corporation (other than 80% owned subsidiaries), partnership enterprise or other
person or for the repayment of any outstanding loan by the Company to any other
party (other than the repayment of a portion of the Company's loans from
Comerica Bank or amounts payable to Maxxim Medical, Inc. under the Company's
Subordinated Promissory Note to Maxxim).
G. CERTAIN AGREEMENTS. (i) Except to the extent specifically
provided below, but in each such event subject to compliance with all of the
other provisions of this Agreement, the Company covenants and agrees that it
will not, without the prior written consent of the Buyer, enter into
(x) any subsequent or further offer or sale of Common Stock or securities
convertible into Common Stock (collectively, "New Common Stock"), or
(y) any subsequent offer or contract for an equity line or similar
arrangement which contemplates the issuance of New Common Stock
with any third party on any date which is earlier than one hundred eighty (180)
days after the Effective Date.
(ii) The foregoing provisions shall not restrict the Company from
issuing (A) shares of Common Stock upon the exercise of certain warrants and
options for the purchase of shares outstanding as of the date hereof, (B)
additional shares of Common Stock or other securities issued pursuant to the
Company's existing stock option plans, (C) shares issued as required by the
terms of
12
the Company's currently outstanding shares of Series A, B or C Preferred Stock
or other currently outstanding convertible securities identified in the
Company's SEC Documents, (D) up to an aggregate of 2,000,000 shares of
restricted Common Stock to satisfy unpaid accounts payable as of May 1, 2000;
provided, however, that the holders of such Common Stock are not granted any
registration rights in connection with the issuance thereof, (E) shares of
Common Stock issuable under the terms of the Company's convertible promissory
note in favor of Maxxim Medical, Inc., as amended, (F) in the event the Company
has not sold its Cybex Medical division as required by the terms of its Seconded
Amended and Restated Loan Agreement with Comerica Bank-Texas, (I) by November 1,
2000, 200,000 shares of Common Stock or warrants to purchase Common Stock, and,
(II) by the first day of each month thereafter, an additional 25,000 shares of
Common Stock or warrants to purchase Common Stock, or (G) up to 385 shares of
the Series D Convertible Preferred Stock and warrants to purchase 175,000 shares
to the Placement Agent or its designees in connection with the transactions
contemplated hereby and the shares of Common Stock issuable thereon pursuant to
the terms of the Certificate of Designations. In addition, the limitations
contained in Section 4(g)(i) shall not apply to any transaction involving
issuance of securities as consideration in a merger, consolidation or
acquisition of assets or in connection with a transaction with a Strategic
Partner (the primary purpose of which is not to raise equity capital or other
financing capital), or as consideration for the acquisition of a business,
product or license by the Company.
(iii) In the event the Company breaches the provisions of this
Section 4(g), the Conversion Price (as defined in the Certificate of
Designations) shall be amended to be equal to (x) 90% of (y) the amount
determined in accordance with the provisions of the Certificate of Designations
without regard to this provision.
H. AVAILABLE SHARES. The Company shall have at all times authorized
and reserved for issuance, free from preemptive rights, shares of Common Stock
sufficient to yield the aggregate of (i) one hundred fifty percent (150%) of the
number of shares of Common Stock issuable at conversion as may be required to
satisfy the conversion rights of the Buyer pursuant to the terms and conditions
of the Certificate of Designations or to represent payment of dividends on the
Preferred Stock and (ii) the number of shares issuable upon exercise as may be
required to satisfy the exercise rights of the Buyer pursuant to the terms and
conditions of the Warrants.
I. WARRANTS. The Company agrees to issue to the Buyer on the Initial
Closing Date transferable warrants (the "Warrants") for the purchase of eighty
thousand (80,000) shares of Common Stock for each one million dollars
($1,000,000) of Purchase Price for the Initial Preferred Stock subscribed for by
the Buyer, as determined in accordance with the provisions of Section 1(a)(ii)
hereof. The Warrants shall bear an exercise price per share equal to 125% of the
closing bid price of the Common Stock (as reported by Bloomberg, LP) on the
Initial Closing Date (subject to adjustment as provided in the Warrant). The
Warrants will expire on the last day of the calendar month in which the fifth
anniversary of the Initial Closing Date occurs. The Warrants shall be in the
form annexed hereto as ANNEX VI, together with (x) registration rights as
provided in the Registration Rights Agreement and (y) piggy-back registration
rights after the effectiveness of the Registration Statement expires, as
contemplated by the Registration Rights Agreement. No Warrants
13
are to be issued in connection with the purchase and sale of Additional
Preferred Stock on the Additional Closing Date.
J. LIMITATION ON ISSUANCE OF SHARES. If applicable to the Company,
the Company may be limited in the number of shares of Common Stock it may issue
by virtue of (i) the number of authorized shares or (ii) the applicable rules
and regulations of the principal securities market on which the Common Stock is
listed or traded, including, but not necessarily limited to, NASDAQ Rule
4310(c)(25)(H)(i) or Rule 4460(i)(1), as may be applicable (collectively, the
"Cap Regulations"). Without limiting the other provisions thereof, the Preferred
Stock shall provide that (i) the Company will take all steps reasonably
necessary to be in a position to issue shares of Common Stock on conversion of
the Preferred Stock without violating the Cap Regulations and (ii) if, despite
taking such steps, the Company still can not issue such shares of Common Stock
without violating the Cap Regulations, the holder of a share of Preferred Stock
which can not be converted as result of the Cap Regulations after all such
shares of Preferred Stock which can be converted under the Cap Regulations have
been converted (each such share, an "Unconverted Share") shall have the option,
exercisable in such holder's sole and absolute discretion, to elect either of
the following remedies:
(x) if permitted by the Cap Regulations, require the Company to
issue shares of Common Stock in accordance with such holder's notice of
conversion at a conversion purchase price equal to the average of the
closing price per share of Common Stock for any three (3) trading days
(which need not be consecutive, but subject to certain equitable
adjustments for certain events occurring during such period) during the
sixty (60) trading days immediately preceding the date of notice of
conversion; or
(y) require the Company to redeem each Unconverted Share for an
amount (the "Cap Redemption Amount"), payable in cash, equal to (i) one
hundred thirty percent (130.0%) of the stated value of the Unconverted
Share plus (ii) all accrued but unpaid dividends on the Preferred Stock
through the date of redemption (the "Cap Redemption Date") specified in
the notice from the holder electing this remedy.
A holder of more than one Unconverted Share may elect one of the above remedies
with respect to some of such Unconverted Shares and the other remedy with
respect to other Unconverted Shares. The Certificate of Designations shall
contain provisions substantially consistent with the above terms, with such
additional provisions as may be consented to by the Buyer. The provisions of
this paragraph are not intended to limit the scope of the provisions otherwise
included in the Certificate of Designations. Anything herein or in the
Certificate of Designations to the contrary notwithstanding, the remedy
contained in clause (y) of this Section 4(j) shall not be available to the Buyer
until after the earlier of (i) the Company's Annual Meeting of Shareholders
during calendar year 2000 or (ii) the expiration of sixty (60) days from the
date a holder of Securities has exercised a right pursuant to which the last
share of Common Stock issuable under the Cap Regulations is to be issued. If
prior to such date, the Cap Regulations no longer apply to limit the Company's
issuance of shares of Common Stock in connection with the Securities or the
transactions contemplated by the
14
Transaction Agreements, the remedies contained clauses (x) and (y) of this
Section 4(j) shall not be exercisable by the Buyer.
K. FUTURE PURCHASES.
(i) After the Effective Date, the Company may give notice (the
"Additional Closing Date Notice") to the Buyer, with a copy to the Escrow Agent,
specifying the date of the closing for the purchase of the Additional Preferred
Stock. The date for such closing (the "Additional Closing Date") shall be a
business day which is (x) at least sixty (60) days after the Effective Date and
(y) at least ten (10) business days after the Additional Closing Date Notice is
received by the Buyer.
(ii) It shall be a condition to the Company's right to issue an
Additional Closing Date Notice that, as of the Additional Closing Notice Date,
(A) the Registration Statement for all Registrable Securities, included the
Converted Shares attributable to the Additional Preferred Stock (the "Additional
Converted Shares"), shall have been declared effective and shall continue to be
effective, (B) each of the Transaction Agreements shall continue to be in full
force and effect and be applicable, to the extent relevant, to the Additional
Preferred Stock and the Additional Converted Shares (and the Company's issuance
of the Additional Closing Date Notice shall constitute the Company's making each
such representation and warranty as of such date), and (C) the representations
and warranties of the Company contained in Section 3 hereof shall be true and
correct in all material respects and there shall have been no material adverse
change to the business, operations or financial condition or results of
operation of the Company and its subsidiaries taken as a whole from the Initial
Closing Date through and including the date the Company gives the Additional
Closing Date Notice to the Buyer (and the Company's issuance of the Additional
Closing Date Notice shall constitute the Company's making each such
representation and warranty as of such date).
(iii) The Buyer's obligations to purchase the Additional Preferred
Stock shall terminate (w) if the Additional Closing Date does not occur within
seventy-five (75) days after the Additional Closing Date Notice is given to the
Buyer, (x) if the Company's available shares do not satisfy the provisions of
Section 4(h) hereof at any time, (y) if the Effective Date has not yet occurred
as of the date which is four (4) months after the Required Effective Date (as
defined in the Registration Rights Agreement), or (z) on the date which is
eighteen months after the Initial Closing Date.
L. RIGHT OF FIRST REFUSAL, SPECIAL DILUTION PROTECTION.
(i) The Company covenants and agrees that, if during the period from
the date hereof through and including the date which is two hundred forty (240)
days after the Effective Date, the Company offers to enter into any transaction
(a "New Transaction") for the sale of New Common Stock (other than in connection
with a transaction referred to in Section 4(g)(ii) hereof), the Company shall
notify the Buyer in writing of all of the terms of such offer (a "New
Transaction Offer"). The Buyer shall have the right (the "Right of First
Refusal"), exercisable by written notice
15
given to the Company by the close of business on the third business day after
the Buyer's receipt of the New Transaction Offer (the "Right of First Refusal
Expiration Date"), to participate in all or any part of the New Transaction
Offer on the terms so specified.
(ii) If, and only if, the Buyer does not exercise the Right of First
Refusal in full, the Company may consummate the remaining portion of the New
Transaction with any third party (a "New Investor") on the terms specified in
the New Transaction Offer within twenty (20) days of the Right of First Refusal
Expiration Date. If the New Transaction is not so consummated by such twentieth
day, the provisions of Section 4(l)(i) shall apply again before the Company can
consummate a New Transaction with any New Investor.
(iii) If the terms of the New Transaction to be consummated with
such other party differ in a material respect from the terms specified in the
New Transaction Offer so that the terms are more beneficial in any respect to
the New Investor, the Company shall give the Buyer a New Transaction Offer
relating to the terms of the New Transaction, as so changed, and the
Buyer's Right of First Refusal and the preceding terms of this Section 4(l)
shall apply with respect to such changed terms.
(iv) If there is more than one Buyer signatory to this Agreement,
the preceding provisions of this Section 4(l) shall apply pro rata among them
(based on their relative Buyer's Allocable Shares), except that, to the extent
any such Buyer does not exercise its Right of First Refusal in full (a"Declining
Buyer"), the remaining Buyer or Buyers who or which have exercised their own
Right of First Refusal in full, shall have the right (pro rata among them based
on their relative Buyer's Allocable Shares, if more than one) to exercise all or
a portion of such Declining Buyer's unexercised Right of Refusal. Nothing in
this Section 4(l) shall be deemed to permit a transaction not otherwise
permitted by subparagraph (g)(i), as modified by the provisions of subparagraph
(g)(ii).
(v) In the event the New Transaction is consummated for the sale of
New Common Stock or the issuance of warrants or other rights to purchase New
Common Stock with such third party at any time prior to the expiration of two
hundred forty (240) days after the Effective Date on terms providing for (x)
either a sale price equal to or computed based on, or a determination of a
conversion price based on, a lower percentage of the then current market price
(howsoever defined or computed) than provided in the Certificate of Designations
for determining the Conversion Price or a lower Fixed Conversion Price (as
defined in the Certificate of Designations, but howsoever defined or computed in
the New Transaction documents) and/or (y) the issuance of warrants at an
exercise price lower than that provided in the Warrants and/or for a greater
number of shares per dollar paid or invested by such third party to or in the
Company, the terms of the Certificate of Designations (or other documentation
affecting the terms of the Preferred Stock) and the Warrants (whether previously
issued and/or converted or not) shall be modified to (i) reduce the relevant
Conversion Price, Fixed Conversion Price or Warrant exercise price and/or (ii)
increase the number of shares covered by the Warrants, in each instance to be
equal to that provided in the New
16
Transaction as so consummated (provided, however, that such increased Warrants
shall have the same exercise price formula as the New Transaction warrants).
5. TRANSFER AGENT INSTRUCTIONS.
A. The Company warrants that, with respect to the Securities, other
than the stop transfer instructions to give effect to Section 4(a) hereof, it
will give its transfer agent no instructions inconsistent with instructions to
issue Common Stock from time to time upon conversion of the Preferred Stock in
such amounts as specified from time to time by the Company to the transfer
agent, bearing the restrictive legend specified in Section 4(b) of this
Agreement prior to registration of the Shares under the 1933 Act, registered in
the name of the Buyer or its nominee and in such denominations to be specified
by the Buyer in connection with each conversion of the Preferred Stock. Except
as so provided, the Shares shall otherwise be freely transferable on the books
and records of the Company as and to the extent provided in this Agreement, the
Registration Rights Agreement, and applicable law. Nothing in this Section shall
affect in any way the Buyer's obligations and agreement to comply with all
applicable securities laws upon resale of the Securities. If the Buyer provides
the Company with an opinion of counsel reasonably satisfactory to the Company
that registration of a resale by the Buyer of any of the Securities in
accordance with clause (1)(B) of Section 4(a) of this Agreement is not required
under the 1933 Act, the Company shall (except as provided in clause (2) of
Section 4(a) of this Agreement) permit the transfer of the Securities and, in
the case of the Converted Shares or the Warrant Shares, as the case may be,
promptly instruct the Company's transfer agent to issue one or more certificates
for Common Stock without legend in such name and in such denominations as
specified by the Buyer.
B. Subject to the provisions of this Agreement, the Company will
permit the Buyer to exercise its right to convert the Preferred Stock in the
manner contemplated by the Certificate of Designations.
C. The Company understands that a delay in the issuance of the
Shares of Common Stock beyond the Delivery Date (as defined in the Certificate
of Designations) could result in economic loss to the Buyer. As compensation to
the Buyer for such loss, the Company agrees to pay late payments to the Buyer
for late issuance of Shares upon conversion in accordance with the following
schedule (where "No. Business Days Late" is defined as the number of business
days beyond two (2) business days from the Delivery Date):
Late Payment For Each $10,000
of Stated Value or Dividend
No. Business Days Late Amount Being Converted
---------------------- -----------------------------
1 $100
2 $200
3 $300
4 $400
17
5 $500
6 $600
7 $700
8 $800
9 $900
10 $1,000
>10 $1,000 +$200 for each
Business Day Late beyond
10 days
The Company shall pay any payments incurred under this Section in immediately
available funds upon demand. For purposes of this Section 5(c), in connection
with a Mandatory Conversion (as defined in the Certificate of Designations), the
term "Delivery Date" shall refer to the earlier of (i) the Delivery Date
determined in relation to a Notice of Conversion actually submitted by the Buyer
to the Company or (ii) the third or fifth business date, as the case may be,
after written notice from the Buyer that the delivery of shares to the Buyer in
connection with the Mandatory Conversion has not been accomplished. The Company
shall pay any payments incurred under this Section in immediately available
funds upon demand. Nothing herein shall limit the Buyer's right to pursue actual
damages for the Company's failure to issue and deliver the Common Stock to the
Buyer. Furthermore, in addition to any other remedies which may be available to
the Buyer, in the event that the Company fails for any reason to effect delivery
of such shares of Common Stock within two (2) business days after the Delivery
Date, the Buyer will be entitled to revoke the relevant Notice of Conversion by
delivering a notice to such effect to the Company whereupon the Company and the
Buyer shall each be restored to their respective positions immediately prior to
delivery of such Notice of Conversion.
D. If, by the relevant Delivery Date, the Company fails for any
reason to deliver the Shares to be issued upon conversion of Preferred Stock and
after such Delivery Date, the holder of the Preferred Stock being converted (a
"Converting Holder") purchases, in an arm's-length open market transaction or
otherwise, shares of Common Stock (the "Covering Shares") in order to make
delivery in satisfaction of a sale of Common Stock by the Converting Holder (the
"Sold Shares"), which delivery such Converting Holder anticipated to make using
the Shares to be issued upon such conversion (a "Buy-In"), the Converting Holder
shall have the right, to require the Company to pay to the Converting Holder, in
lieu and instead of the amounts due under Section 5(c) hereof (but in addition
to all other amounts contemplated in other provisions of the Transaction
Agreements, and not in lieu of any such other amounts), the Buy-In Adjustment
Amount (as defined below). The "Buy-In Adjustment Amount" is the amount equal to
the excess, if any, of (x) the Converting Holder's total purchase price
(including brokerage commissions, if any) for the Covering Shares over (y) the
net proceeds (after brokerage commissions, if any) received by the Converting
Holder from the sale of the Sold Shares. The Company shall pay the Buy-In
Adjustment Amount to the Company in immediately available funds immediately upon
demand by the Converting Holder. By way of illustration and not in limitation of
the foregoing, if the Converting Holder purchases shares of Common Stock having
a total purchase price (including brokerage commissions) of $11,000 to cover a
Buy-In with respect to shares of Common Stock it sold for net proceeds of
$10,000, the Buy-In Adjustment Amount which Company will be required to pay to
the Converting Holder will be $1,000.
18
E. In lieu of delivering physical certificates representing the
Common Stock issuable upon conversion, provided the Company's transfer agent is
participating in the Depository Trust Company ("DTC") Fast Automated Securities
Transfer program, upon request of the Buyer and its compliance with the
provisions contained in this paragraph, so long as the certificates therefor do
not bear a legend and the Buyer thereof is not obligated to return such
certificate for the placement of a legend thereon, the Company shall use its
best efforts to cause its transfer agent to electronically transmit the Common
Stock issuable upon conversion to the Buyer by crediting the account of Buyer's
Prime Broker with DTC through its Deposit Withdrawal Agent Commission system.
F. If, at any time (i) the Company challenges, disputes or denies
the right of a holder of Preferred Stock to effect a conversion of the Preferred
Stock into Common Stock or otherwise dishonors or rejects any Conversion Notice
delivered in accordance with the terms of this Agreement or the Certificate of
Designations or any exercise of any Warrant in accordance with its terms
("Warrant Exercise"), or (ii) any third party who is not and has never been an
Affiliate of such holder commences any lawsuit or proceeding or otherwise
asserts any claim before any court or public or governmental authority, which
lawsuit, proceeding or claim seeks to challenge, deny, enjoin, limit, modify,
delay or dispute the right of such holder to effect the conversion of the
Preferred Stock into Common Stock, and the Company refuses to honor any such
Conversion Notice or Warrant Exercise, then such holder shall have the right, by
written notice to the Company, to require the Company to promptly redeem the
Preferred Stock for cash at a redemption price (the "Mandatory Purchase Amount")
equal to (x) one hundred thirty percent (130%) of the stated value of the
unconverted Preferred Stock held by such holder plus (y) all accrued but unpaid
dividends on the Preferred Stock through the date of payment of the Mandatory
Purchase Amount; provided, however, that the Company shall have a period of
sixty (60) days within which to (i) have the lawsuit or proceeding dismissed and
honor the Conversion Notice and/or the Warrant Exercise, or (ii) raise the
capital required to redeem the Mandatory Purchase Amount, as the case may be.
Under any of the circumstances set forth above, the Company shall be responsible
for the payment of all costs and expenses of such holder, including, but not
necessarily limited to, reasonable legal fees and expenses, as and when incurred
in connection with such holder's disputing any such action or pursuing such
holder's rights hereunder (in addition to any other rights such holder may have
hereunder or otherwise). The Mandatory Purchase Amount will be payable to such
holder in cash within five (5) business days from the date such holder gives the
Company written notice that it is exercising its rights under this paragraph.
G. The holder of any Preferred Stock shall be entitled to exercise
its conversion privilege with respect to the Preferred Stock notwithstanding the
commencement of any case under 11 U.S.C. ss.101 ET SEQ. (the "Bankruptcy Code").
In the event the Company is a debtor under the Bankruptcy Code, the Company
hereby waives, to the fullest extent permitted, any rights to relief it may have
under 11 U.S.C. ss.362 in respect of such holder's conversion privilege. The
Company hereby waives, to the fullest extent permitted, any rights to relief it
may have under 11 U.S.C. ss.362 in respect of the conversion of the Preferred
Stock. The Company agrees, without cost or expense to such holder, to take or to
consent to any and all action necessary to effectuate relief under 11 U.S.C.
ss.362.
19
H. The Company will authorize its transfer agent to give information
relating to the Company directly to the Buyer or the Buyer's representatives
upon the request of the Buyer or any such representative , to the extent such
information relates to (i) the status of shares of Common Stock issued or
claimed to be issued to the Buyer in connection with a Notice of Conversion, or
(ii) the number of outstanding shares of Common Stock of all stockholders as of
a current or other specified date. The Company will provide the Buyer with a
copy of the authorization so given to the transfer agent.
I. Nothing contained in this Section 5 shall be construed to require
the Company to pay to the Buyer any of the amounts contemplated by this Section
5 for late delivery of any certificates or refusal to honor a Notice of
Conversion or Warrant Exercise to the extent that such delay or refusal is
caused by the Buyer (but exclusion of the delay or refusal of the Company shall
be limited only to the period of such delay or refusal which was directly caused
by an uncured action or omission of the Buyer and not to periods beyond the cure
of such action or omission by or on behalf of the Buyer).
6. CLOSING DATES.
A. The Initial Closing Date shall occur on the date which is the
first Nasdaq SmallCap Market trading day after each of the conditions
contemplated by Sections 7 and 8 hereof shall have either been satisfied or been
waived by the party in whose favor such conditions run.
B. (i) The Additional Closing Date shall be the date determined in
accordance with the provisions of Section 4(k) hereof.
(ii) The closing for the Additional Preferred Stock shall be
conducted upon the same terms and conditions as those applicable to the Initial
Preferred Stock, except that no additional Warrants will be issued to the Buyer
in connection with the closing of the purchase of Additional Preferred Stock on
the Additional Closing Date.
C. Each closing of the purchase and issuance of Preferred Stock
shall occur on the relevant Closing Date at the offices of the Escrow Agent and
shall take place no later than 3:00 P.M., New York time, on such day or such
other time as is mutually agreed upon by the Company and the Buyer.
D. Notwithstanding anything to the contrary contained herein, the
Escrow Agent will be authorized to release the Escrow Funds to the Company and
to others and to release the other Escrow Property on the relevant Closing Date
upon satisfaction of the conditions set forth in Sections 7 and 8 hereof and as
provided in the Joint Escrow Instructions.
20
7. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
The Buyer understands that the Company's obligation to sell the
relevant Preferred Stock to the Buyer pursuant to this Agreement on the relevant
Closing Date is conditioned upon:
A. The Buyer's execution and delivery of this Agreement and the
other Transaction Agreements contemplated to be signed by the Buyer;
B. Delivery by the Buyer to the Escrow Agent of good funds as
payment in full of an amount equal to the Purchase Price for the relevant
Preferred Stock in accordance with this Agreement;
C. The accuracy on such Closing Date of the representations and
warranties of the Buyer contained in this Agreement, each as if made on such
date, and the performance by the Buyer on or before such date of all covenants
and agreements of the Buyer required to be performed on or before such date;
D. Except to the extent contemplated by specific provisions of the
Transaction Agreements, there shall not be in effect any law, rule or regulation
prohibiting or restricting the transactions contemplated hereby to an extent
materially greater than contemplated herein, or requiring any consent or
approval which shall not have been obtained; and
E. From and after the date hereof to and including such Closing
Date, the trading of the Common Stock shall not have been suspended by the SEC
or the NASD and trading in securities generally on The Nasdaq/SmallCap Market
shall not have been suspended or limited, nor shall minimum prices been
established for securities traded on The Nasdaq/SmallCap Market, nor shall there
be any outbreak or escalation of hostilities involving the United States or any
material adverse change in any financial market that in either case in the
reasonable judgment of the Company makes it impracticable or inadvisable to sell
the Preferred Stock.
8. CONDITIONS TO THE BUYER'S OBLIGATION TO PURCHASE.
The Company understands that the Buyer's obligation to purchase the
Preferred Stock on the relevant Closing Date is conditioned upon:
A. The adoption of the Certificate of Designations by all necessary
corporate action of the Company and the filing of all filings necessary to
effectuate the Certificate of Designations as a part of the charter documents of
the Company;
B. The execution and delivery of this Agreement and the Registration
Rights Agreement by the Company;
21
C. Delivery by the Company to the Escrow Agent of the relevant
Certificates in accordance with this Agreement;
D. The accuracy in all material respects on such Closing Date of the
representations and warranties of the Company contained in this Agreement, each
as if made on such date, and the performance by the Company on or before such
date of all covenants and agreements of the Company required to be performed on
or before such date;
E. On such Closing Date, the Registration Rights Agreement shall be
in full force and effect and the Company shall not be in default thereunder;
F. On such Closing Date, the Buyer shall have received an opinion of
counsel for the Company, dated such Closing Date, in form, scope and substance
reasonably satisfactory to the Buyer, substantially to the effect set forth in
ANNEX III attached hereto;
G. Except to the extent contemplated by specific provisions of the
Transaction Agreements, there shall not be in effect any law, rule or regulation
prohibiting or restricting the transactions contemplated hereby to an extent
materially greater than contemplated herein, or requiring any consent or
approval which shall not have been obtained;
H. From and after the date hereof to and including such Closing
Date, the trading of the Common Stock shall not have been suspended by the SEC
or the NASD and trading in securities generally on The Nasdaq/SmallCap Market
shall not have been suspended or limited, nor shall minimum prices been
established for securities traded on The Nasdaq/SmallCap Market, nor shall there
be any outbreak or escalation of hostilities involving the United States or any
material adverse change in any financial market that in either case in the
reasonable judgment of the Buyer makes it impracticable or inadvisable to
purchase the Preferred Stock; and
I. With respect to the Additional Closing Date,
(i) an Additional Closing Date Notice shall have been duly given in
accordance with the provisions of Section 4(k);
(ii) all other conditions of Section 4(k) shall have been satisfied;
(iii) the Registration Statement shall have been declared effective
with respect to all of the Registrable Securities, including the Additional
Converted Shares, and shall continue to be effective as of such date;
(iii) each of the Transaction Agreements shall continue to be in
full force and effect and be applicable, to the extent relevant, to the
Additional Preferred Stock and the Additional Converted Shares (and the
Company's issuance of the Additional Preferred Stock shall constitute the
Company's making a representation and warranty to such effect as of such date);
22
(iv) the representations and warranties of the Company contained in
Section 3 hereof shall be true and correct in all material respects (and the
Company's issuance of the Additional Preferred Stock shall constitute the
Company's making each such representation and warranty as of such date) and
there shall have been no material adverse change to the business, operations or
financial condition or results of operation of the Company and its subsidiaries
taken as a whole from the Initial Closing Date through and including the
Additional Closing Date (and the Company's issuance of the Additional Preferred
Stock shall constitute the Company's making such representation and warranty as
of such date);
(v) the Company shall have timely issued all shares issuable upon
conversion of the Preferred Stock or upon exercise of the Warrants prior to the
date of such Additional Closing Date; and
(vi) the Company shall have available and shall reserve for issuance
to Buyer at least one hundred fifty percent (150%) of the number of Shares which
would be issued on (x) conversion of all unconverted Initial Preferred Stock and
all Additional Preferred Stock and (y) exercise of all unexercised Warrants.
9. GOVERNING LAW: MISCELLANEOUS.
A. This Agreement shall be governed by and interpreted in accordance
with the laws of the State of New York for contracts to be wholly performed in
such state and without giving effect to the principles thereof regarding the
conflict of laws. Each of the parties consents to the jurisdiction of the
federal courts whose districts encompass any part of the City of New York or the
state courts of the State of New York sitting in the City of New York in
connection with any dispute arising under this Agreement and hereby waives, to
the maximum extent permitted by law, any objection, including any objection
based on FORUM NON CONVENIENS, to the bringing of any such proceeding in such
jurisdictions. To the extent determined by such court, the Company shall
reimburse the Buyer for any reasonable legal fees and disbursements incurred by
the Buyer in enforcement of or protection of any of its rights under any of the
Transaction Agreements.
B. Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such right or remedy,
shall not operate as a waiver thereof.
C. This Agreement shall inure to the benefit of and be binding upon
the successors and assigns of each of the parties hereto.
D. All pronouns and any variations thereof refer to the masculine,
feminine or neuter, singular or plural, as the context may require.
E. A facsimile transmission of this signed Agreement shall be legal
and binding on all parties hereto.
F. This Agreement may be signed in one or more counterparts, each of
which shall be deemed an original.
23
G. The headings of this Agreement are for convenience of reference
and shall not form part of, or affect the interpretation of, this Agreement.
H. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement or the
validity or enforceability of this Agreement in any other jurisdiction.
I. This Agreement may be amended only by an instrument in writing
signed by the party to be charged with enforcement thereof.
J. This Agreement supersedes all prior agreements and understandings
among the parties hereto with respect to the subject matter hereof.
10. NOTICES. Any notice required or permitted hereunder shall be
given in writing (unless otherwise specified herein) and shall be deemed
effectively given on the earliest of
(a) the date delivered, if delivered by personal delivery as against
written receipt therefor or by confirmed facsimile transmission,
(b) the seventh business day after deposit, postage prepaid, in the
United States Postal Service by registered or certified mail, or
(c) the third business day after mailing by domestic or
international express courier, with delivery costs and fees prepaid,
in each case, addressed to each of the other parties thereunto entitled at the
following addresses (or at such other addresses as such party may designate by
ten (10) days' advance written notice similarly given to each of the other
parties hereto):
COMPANY: Xxxxxx Healthcare, Inc.
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx, Executive Vice President-Finance
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxx, LLP
000 Xxxxxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
24
BUYER: At the address set forth on the signature page of this
Agreement.
with a copy to:
Xxxxxxx & Xxxxxx LLP
00 Xxxxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopier No. (000) 000-0000
ESCROW AGENT: Xxxxxxx & Xxxxxx LLP
00 Xxxxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx, Xxx.
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopier No. (000) 000-0000
11. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
Company's and the Buyer's representations and warranties herein shall survive
the execution and delivery of this Agreement and the delivery of the
Certificates and the Warrants and the payment of the Purchase Price for a period
of three (3) years from the last Closing Date, and shall inure to the benefit of
the Buyer and the Company and their respective successors and assigns.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK.]
25
IN WITNESS WHEREOF, this Agreement has been duly executed by the
Buyer by one of its officers thereunto duly authorized as of the date set forth
below.
STATED VALUE OF PREFERRED STOCK: $2,590,000.00
PURCHASE PRICE OF PREFERRED STOCK: $2,590,000.00
SIGNATURES FOR ENTITIES
IN WITNESS WHEREOF, the undersigned represents that the foregoing
statements are true and correct and that it has caused this Securities Purchase
Agreement to be duly executed on its behalf this 16th day May, 2000.
c/o Endeavor Management Inc.
14/14 Divrei Xxxxx St. THE ENDEAVOUR CAPITAL FUND S.A.
Address Printed Name of Subscriber
JERUSALEM, 00000 XXXXXX
By:/S/ XXXXXX XXXXXXXXX
Telecopier No. 972 2582 4443 (Signature of Authorized Person)
XXXXXX XXXXXXXXX, DIRECTOR
B.V.I Printed Name and Title
Jurisdiction of Incorporation
or Organization
As of the date set forth below, the undersigned hereby accepts this Agreement
and represents that the foregoing statements are true and correct and that it
has caused this Securities Purchase Agreement to be duly executed on its behalf.
XXXXXX HEALTHCARE, INC.
By: /S/ XXXX XXXXXXX
Xxxx Xxxxxxx
Title: PRESIDENT AND CHIEF EXECUTIVE OFFICER
Date: MAY 19, 2000
26
IN WITNESS WHEREOF, this Agreement has been duly executed by the
Buyer by one of its officers thereunto duly authorized as of the date set forth
below.
STATED VALUE OF PREFERRED STOCK: $560,000.00
PURCHASE PRICE OF PREFERRED STOCK: $560.000.00
SIGNATURES FOR ENTITIES
IN WITNESS WHEREOF, the undersigned represents that the foregoing
statements are true and correct and that it has caused this Securities Purchase
Agreement to be duly executed on its behalf this 24th day May, 2000.
X/X XXXXXXX XXXXXXXX
X.X. XXX 0000 XXXXXXX TRADE & INVEST INC.
Address Printed Name of Subscriber
0000 XXXX, XXXXXXXXXXX
By: /S/ XXXXXX XXXXXXX
Telecopier No. (000 0000) 000-0000 (Signature of Authorized Person)
XXXXXX XXXXXXX, DIRECTOR
Printed Name and Title
___________________________________
Jurisdiction of Incorporation
or Organization
As of the date set forth below, the undersigned hereby accepts this Agreement
and represents that the foregoing statements are true and correct and that it
has caused this Securities Purchase Agreement to be duly executed on its behalf.
XXXXXX HEALTHCARE, INC.
By: /S/ XXXX XXXXXXX
Xxxx Xxxxxxx
Title: PRESIDENT AND CHIEF EXECUTIVE OFFICER
Date: MAY 19, 2000
IN WITNESS WHEREOF, this Agreement has been duly executed by the
Buyer by one of its officers thereunto duly authorized as of the date set forth
below.
STATED VALUE OF PREFERRED STOCK: $350,000.00
PURCHASE PRICE OF PREFERRED STOCK: $350,000.00
SIGNATURES FOR ENTITIES
IN WITNESS WHEREOF, the undersigned represents that the foregoing
statements are true and correct and that it has caused this Securities Purchase
Agreement to be duly executed on its behalf this 24th day May, 2000.
c/oTrevisa-Trevland-Anstalt
Xxxxxxxxxxx
XXXXXXXXXXX 0000 XXXXXXX TRUST REG
Address Printed Name of Subscriber
BALZERS, LIECHTENSTEIN
By: /S/ XXXXXX XXXXX
Telecopier No. (011 431534) 532895 (Signature of Authorized Person)
XXXXXX XXXXX
Printed Name and Title
___________________________________
Jurisdiction of Incorporation
or Organization
As of the date set forth below, the undersigned hereby accepts this Agreement
and represents that the foregoing statements are true and correct and that it
has caused this Securities Purchase Agreement to be duly executed on its behalf.
XXXXXX HEALTHCARE, INC.
By: /S/ XXXX XXXXXXX
Xxxx Xxxxxxx
Title: PRESIDENT AND CHIEF EXECUTIVE OFFICER
Date: MAY 19, 2000
