Exhibit 99.1
THIS SUBORDINATED NOTE AND WARRANT PURCHASE AGREEMENT CONTAINS A LIMITED POWER
OF ATTORNEY WHICH APPOINTS PEAR TREE PARTNERS, L.P. AS ATTORNEY-IN-FACT FOR EACH
INVESTOR WHO SUBSCRIBES FOR UNITS (AS DEFINED HEREIN) PURSUANT TO WHICH SUCH
ATTORNEY-IN-FACT IS AUTHORIZED TO EXECUTE AND DELIVER SUCH DOCUMENTS, AGREEMENTS
AND INSTRUMENTS AS MAY BE NECESSARY OR APPROPRIATE TO GIVE EFFECT TO THE
SUBORDINATION OF THE NOTES (AS DEFINED HEREIN) TO THE SENIOR OBLIGATIONS (AS
DEFINED IN THE FORM OF NOTE ATTACHED AS EXHIBIT A HERETO).
SUBORDINATED NOTE AND WARRANT PURCHASE AGREEMENT
THIS SUBORDINATED NOTE AND WARRANT PURCHASE AGREEMENT (the "Agreement") is
made as of the 20th day of September, 2002, by and between Inverness Medical
Innovations, Inc. (the "Company"), a corporation organized under the laws of the
state of Delaware, with its principal offices at 00 Xxxxxx Xxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxxxxxxx 00000, the investors whose names and addresses are set
forth on the signature pages hereto (the "Investors") and, solely for purposes
of Sections 5.9 and 8 hereof, Pear Tree Partners, L.P., a limited partnership
organized under the laws at the state of Delaware, with its principal offices at
Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000.
IN CONSIDERATION of the mutual covenants contained in this Agreement, the
Company and the Investors agree as follows:
SECTION 1. AUTHORIZATION OF SALE OF THE UNITS AND THE SECURITIES. Subject to the
terms and conditions of this Agreement, the Company has authorized the sale of
up to 500 units (the "Units") each consisting of (i) $50,000 in original
principal amount of its Subordinated Promissory Notes, each in the form of
EXHIBIT A attached hereto (the "Notes"), and (ii) original rights to purchase
400 shares of its Common Stock (as defined in Section 4.2) under the terms and
conditions of its Warrants, each in the form of EXHIBIT B attached hereto (the
"Warrants"; together with the Notes, the "Securities").
SECTION 2. AGREEMENT TO SELL AND PURCHASE THE UNITS AND THE SECURITIES. At the
Closing (as defined in Section 3), the Company will sell to each Investor a Note
and a Warrant together representing the number of Units (which number shall not
be less than two, unless waived by U.S. Boston Capital Corporation (the
"Placement Agent")) set forth on the signature page to this Agreement executed
by such Investor and accepted by the Company, and each such Investor will
purchase such Securities representing such Units from the Company, upon the
terms and conditions hereinafter set forth, at the purchase price of $50,000 per
Unit and for the aggregate purchase price set forth on such Investor's signature
page hereto. The obligations of each Investor under this Agreement, and all
representations, warranties and covenants made by such Investor herein, shall be
several and not joint.
SECTION 3. CLOSING; DELIVERY OF SECURITIES.
3.1 CLOSING. The closing of the purchase and sale of the Securities (the
"Closing") shall occur on September 16, 2002, or such later date selected by the
Company and agreed to by the Placement Agent, but in any event no later than
October 31, 2002 (the "Closing Date").
3.2 DELIVERY OF THE SECURITIES AT THE CLOSING. At the Closing, the Company
will issue to each Investor a Note and a Warrant, each registered in the name of
such Investor, or in such nominee name(s) as designated by such Investor in
writing, representing the Securities being purchased by such Investor. The
name(s) in which the Securities are to be registered are set forth in the
Investor Questionnaire delivered with this Agreement. The Company's obligation
to complete the purchase and sale of the Securities being purchased hereunder
and deliver such Securities to the Investors at the Closing shall be subject to
the following conditions, any one or more of which may be waived by the Company:
(a) receipt by the Company of same-day funds in the full amount of the purchase
price for the Securities being purchased at the Closing; (b) delivery by or on
behalf of each Investor of an executed signature page (signed by or on behalf of
such Investor) to the Subordination Agreement (as defined in Section 5.9 hereof)
in form satisfactory to the Company's senior lender or lenders (the "Senior
Lender"), any other holder of Senior Obligations (as defined in the form of
Note) on or prior to the Closing Date and the Company, providing for the joinder
by such investor as a party thereto; (c) if required, receipt by the Company of
a consent from the Senior Lender to the transactions contemplated hereby, such
consent to be in form and substance satisfactory to the Company; and (d) the
accuracy in all material respects of the representations and warranties made by
the Investors and the fulfillment of those undertakings of the Investors to be
fulfilled prior to or at the Closing. The obligation of the Investors to accept
delivery of and pay for such Securities at the Closing shall be subject to the
accuracy in all material respects of the representations and warranties made by
the Company herein as of the Closing Date and the fulfillment of those
undertakings of the Company to be fulfilled prior to or at the Closing.
3.3 COMPANY ACCEPTANCE. The Company may accept or reject any subscription
set forth on the signature page hereto by a prospective investor. As described
in SCHEDULE 4.3 hereto, certain holders of other securities of the Company may
have participation rights in the placement of the Units described in the
Confidential Memorandum. In the event any such holder elects to purchase Units
in accordance with such holder's rights, if any, or there is otherwise an
oversubscription for Units, the Company may allocate subscriptions for Units
among such holders of other securities of the Company as described in the
Confidential Memorandum. The Company will not be required to allocate among
holders of other securities and prospective investors on a pro rata basis in the
event of an oversubscription.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The Company
hereby represents and warrants to, and covenants with, the Investors as follows:
4.1 ORGANIZATION AND QUALIFICATION. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware; and the Company is in good standing in each other jurisdiction in
which qualification is required, except where the failure to be so qualified
will not have a Material Adverse Effect, as defined in Section 4.4.
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4.2 AUTHORIZED CAPITAL STOCK. The authorized capital stock of the Company
consists of 50,000,000 shares of common stock, $.001 par value per share
("Common Stock"), and 5,000,000 shares of preferred stock, $.001 par value per
share ("Preferred Stock"), 2,065,407 of which have been designated as Series A
Convertible Preferred Stock. SCHEDULE 4.2 hereto sets forth the number of shares
of Preferred Stock, Common Stock and all subscriptions, warrants, options,
convertible securities, and other rights (contingent or other) to purchase or
otherwise acquire equity securities of the Company issued and outstanding on the
date referred to in such schedule. The issued and outstanding shares of the
Company's capital stock have been duly authorized and validly issued, are fully
paid and nonassessable, have been issued in compliance with all applicable
federal and state securities laws, and were not issued in violation of or
subject to any preemptive rights or other rights to subscribe for or purchase
securities. Except as set forth on SCHEDULE 4.2 hereto, there are no outstanding
registration rights with respect to the outstanding capital stock of the
Company. There are no voting trusts, proxies, or other agreements or
understandings with respect to the voting of the capital stock of the Company to
which the Company, or, to the Company's knowledge, any holder of five percent or
more of the outstanding capital stock of such entity, is a party.
4.3 ISSUANCE, SALE AND DELIVERY OF THE SECURITIES. The Securities being
purchased hereunder and the Common Stock issuable upon exercise of the Warrants
(the "Warrant Shares") and which may be issuable, at the Company's election,
pursuant to the Notes (the "Note Shares") have been duly authorized and, when
issued, delivered and paid for in the manner set forth in this Agreement, will
be duly authorized, validly issued, fully paid and nonassessable. Except as
disclosed on SCHEDULE 4.3, no preemptive rights or other rights of any
stockholder of the Company or other person to subscribe for or purchase exist
with respect to the issuance and sale of the Securities or the Warrant Shares
or, if applicable, the Note Shares by the Company pursuant to this Agreement. No
further approval or authority of the stockholders or the Board of Directors of
the Company will be required for the issuance and sale of the Securities or the
issuance of the Warrant Shares as contemplated herein. Assuming the accuracy of
the representations and warranties made by the Investors herein, the Company's
issuance of the Securities and the Warrant Shares, and if applicable, the Note
Shares shall be in compliance with all applicable federal and state securities
laws. The Company will at all times hereafter reserve and keep available, solely
for issuance and delivery upon the exercise of the Warrants, such shares of
Common Stock as from time to time shall be issuable with respect thereto.
4.4 DUE EXECUTION, DELIVERY AND PERFORMANCE OF THE AGREEMENTS. The Company
has full legal right, corporate power and authority to enter into this Agreement
and perform the transactions contemplated hereby. This Agreement has been duly
authorized, executed and delivered by the Company. The execution, delivery and
performance of this Agreement by the Company and the consummation by the Company
of the transactions herein contemplated will not violate any provision of the
organizational documents of the Company. The execution, delivery and performance
of this Agreement by the Company and the consummation by the Company of the
transactions herein contemplated will not result in the creation of any lien,
charge, security interest or encumbrance upon any assets of the Company pursuant
to the terms or provisions of, or conflict with, result in the breach or
violation of, or constitute, either by itself or upon notice or the passage of
time or both, a default under any agreement, mortgage, deed of trust, lease,
franchise, license, indenture, permit or other instrument to which the Company
is a party or by which the Company or any of its properties may be bound or
affected and in each
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case which individually or in the aggregate would have a material adverse effect
on the condition (financial or otherwise), properties, business, or results of
operations of the Company and its subsidiaries, taken as a whole (a "Material
Adverse Effect"), or any statute or any authorization, judgment, decree, order,
rule or regulation of any court or any regulatory body, administrative agency or
other governmental body applicable to the Company or any of its respective
properties. No consent, approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental body or any other
third party is required for the execution and delivery of this Agreement or the
consummation of the transactions contemplated by this Agreement, except for
compliance with all federal and state securities laws applicable to the offering
and sale of the Securities and the issuance of the Warrant Shares or, if
applicable, the Note Shares. Upon its execution and delivery, and assuming the
valid execution thereof by the Investors, this Agreement will constitute a valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' and contracting parties' rights generally and except as
enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
4.5 GOOD STANDING OF SUBSIDIARIES. Each of the Company's subsidiaries has
been duly organized and is validly existing in good standing under the laws of
the jurisdiction of its incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business as conducted and as
proposed to be conducted, and is duly qualified and is in good standing as a
foreign corporation in each jurisdiction in which such qualification is
required, except where the failure to be so qualified will not have a Material
Adverse Effect. All of the issued and outstanding capital stock of each such
subsidiary has been duly authorized and validly issued, is duly paid and
nonassessable and is owned by the Company only free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity except for any
pledge for the benefit of the Company's (or its subsidiaries') senior lenders;
and none of the outstanding shares of capital stock of each such subsidiary was
issued in violation of any preemptive or similar rights of any third party.
4.6 NO DEFAULTS. The Company is not in violation of or default under any
provision of its Certificate of Incorporation or Bylaws, each as amended. The
Company, and to the best of the Company's knowledge, each other party thereto,
is not in breach of or default with respect to any provision of any agreement,
judgment, decree, order, mortgage, deed of trust, lease, franchise, license,
indenture, permit or other instrument to which the Company is a party or by
which the Company or any of its properties are bound (each, a "Commitment"); and
there does not exist any state of facts which, with notice or lapse of time or
both, would constitute an event of default as defined in such documents on the
part of the Company, and to the best of the Company's knowledge, on the part of
each other party thereto, except for such breaches and defaults which
individually or in the aggregate would not have a Material Adverse Effect. The
Company filed with the Securities and Exchange Commission (the "Commission") all
Commitments required to be filed with its Annual Report on Form 10-K for the
year ended December 31, 2001 pursuant to Item 601 of Regulation S-K promulgated
under the Securities Act of 1933, as amended.
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4.7 NO ACTIONS. Except as disclosed in the Information Documents (as
defined in Section 4.14) or in SCHEDULE 4.7, there are no legal or governmental
actions, suits or proceedings pending or, to the best of the Company's
knowledge, threatened to which the Company or any of its subsidiaries is or may
be a party or of which property owned or leased by the Company or any of its
subsidiaries is or may be subject (except for actions, suits or proceedings
which individually or in the aggregate would not be reasonably expected to have
a Material Adverse Effect) and no material labor disturbance by the employees of
the Company or any of its subsidiaries exists, or, to the best of the Company's
knowledge, is imminent. Except as disclosed in SCHEDULE 4.7, neither the Company
nor any of its subsidiaries is a party to or subject to the provisions of any
injunction, judgment, decree or order of any court, regulatory body,
administrative agency or other governmental body which is material to the
Company or its business taken as a whole.
4.8 PROPERTIES. The Company and each of its subsidiaries has, as of the
applicable dates referred to therein, good and marketable title to all the
properties and assets reflected as owned by it in the financial statements
included in the Information Documents, subject to no lien, mortgage, pledge,
charge or encumbrance of any kind except (i) those, if any, reflected in such
financial statements, (ii) those disclosed on SCHEDULE 4.8 , or (iii) those
which are not material in amount and do not adversely affect the use made and
currently proposed to be made of such property by the Company or such
subsidiary. The Company and its subsidiaries hold their leased properties under
valid and binding leases except where the failure to so hold would not have a
Material Adverse Effect. The Company and its subsidiaries own or lease all such
properties as are material to the conduct of the Company and its subsidiaries'
business taken as a whole as presently conducted.
4.9 NO MATERIAL CHANGE. Since March 31, 2002 and except for the
transactions described on SCHEDULE 4.9 or described in the Information Documents
(as defined in Section 4.14 below), (i) the Company and its subsidiaries have
not incurred any material liabilities or obligations, indirect or contingent, or
entered into any material agreement or other transaction which is not in the
ordinary course of business; (ii) the Company and its subsidiaries have not
sustained any material loss or interference with their businesses or properties
from fire, flood, windstorm, accident or other calamity, whether or not covered
by insurance; (iii) the Company has not paid or declared any dividends or other
distributions with respect to its capital stock, and the Company and each of its
subsidiaries is not in default in the payment of principal or interest on any
outstanding debt obligations, if any; (iv) there has not been any material
change in the capital stock of the Company or any of its subsidiaries other than
the sale of the Securities hereunder; and (v) there has not been a material
adverse change in the condition (financial or otherwise), properties, business
or results of operations of the Company or any of its subsidiaries.
4.10 INTELLECTUAL PROPERTY.
(a) The Company and its subsidiaries own or have the right to use all
Intellectual Property Rights (as defined below) used by the Company and its
subsidiaries for the conduct of their respective businesses, which
Intellectual Property Rights are the only Intellectual Property Rights
necessary or required for the conduct of their respective businesses.
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(b) Neither the Company nor any of its subsidiaries is in default of
any obligation to pay any material royalties or other amounts to other
persons by reason of the ownership or use of any Intellectual Property
Rights by the Company and its subsidiaries for the conduct of their
respective businesses.
(c) To the best of the Company's knowledge, no Intellectual Property
Right owned by the Company or any of its subsidiaries violates or will
violate any license or infringes or will infringe any Intellectual Property
Rights of another. To the best of the Company's knowledge, no Intellectual
Property Right, product or service marketed, sold or licensed (as licensor
or as licensee) by the Company or any of its subsidiaries, violates or will
violate any license or infringes or will infringe any Intellectual Property
Rights of another, nor has the Company or any of its subsidiaries received
any notice that any of the Intellectual Property Rights used by the Company
or any of its subsidiaries for the conduct of their respective businesses,
conflicts or will conflict with the rights of others.
(d) Except as disclosed in the Information Documents or in SCHEDULE
4.10, there are no claims pending or, to the best of the Company's
knowledge, threatened with respect to any Intellectual Property Rights
necessary or required for the conduct of the Company and its subsidiaries'
businesses taken as a whole, except any such claim as would not have a
Material Adverse Effect, nor, to the best of the Company's knowledge, does
there exist any basis therefor.
As used herein, the term "Intellectual Property Rights" means all patents,
trademarks, service marks, trade names, copyrights, inventions, trade secrets,
know-how, proprietary processes and formulae, applications for patents,
trademarks, service marks and copyrights, and other intellectual property rights
which are material to the conduct of the Company's and its subsidiaries'
businesses taken as a whole.
4.11 COMPLIANCE. The Company has not been advised, or has no reason to
believe, that the Company or any of its subsidiaries is not conducting business
in compliance with all applicable laws, rules and regulations of the
jurisdictions in which it is conducting business, except where failure to be so
in compliance would not have a Material Adverse Effect.
4.12 USE OF PROCEEDS. The Company intends to use the proceeds obtained from
the sale of the Securities hereunder for general corporate purposes including to
fund working capital and one or more acquisitions including the acquisition of
Xxxxxxx Laboratories disclosed by the Company .
4.13 REPORTING COMPANY; LISTED SECURITIES. The Company has filed all
reports required to be filed by Sections 13(a) or 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") since it became a public company on
November 21, 2001. The Company's Common Stock is listed on the American Stock
Exchange ("AMEX"). As of the Closing Date, the Company meets all the
requirements for continued listing on AMEX, and to the best of the Company's
knowledge, there is no stop order suspending the trading of the Common Stock on
AMEX or any information which would result in the Common Stock being delisted
from AMEX.
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4.14 ADDITIONAL INFORMATION. The Company has made available to the
Investors a Confidential Memorandum dated August 13, 2002, a true and complete
copy of its Annual Report on Form 10-K for the year-ended December 31, 2001, its
Quarterly Report on Form 10-Q for the quarter ended March 31, 2002, its current
Report(s) on Form 8-K (or amendments thereto) for events dated December 20,
2001, March 19, 2002, April 11, 2002, May 28, 2002, June 28, 2002, July 29, 2002
and August 7, 2002 and its definitive proxy statement dated April 29, 2002, as
filed with the Securities and Exchange Commission (the "Commission")
(collectively, the "Information Documents"). As of their respective dates, the
Information Documents and any forms, reports and other documents filed by the
Company with the Commission pursuant to the Securities Act of 1933, as amended,
or the Securities Exchange Act of 1934, as amended, during the period commencing
on the date of this Agreement and ending on the last date on which the Company
is required to maintain the effectiveness of any Registration Statement (as
defined in Section 7 hereof) covering any Registrable Shares held by any
Investors, complied or will comply in all material respects with the
requirements of the Securities Act of 1933, as amended (the "Securities Act") or
the Exchange Act, as the case may be, and the rules and regulations of the
Commission thereunder applicable to the Information Documents or such other
forms, reports or other documents, and none of the Information Documents
contained, and none of such other forms, reports or other documents will contain
at the time they are filed, any untrue statement of a material fact or omitted,
or will omit at the time they are filed, to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The financial
statements of the Company (if any) included in the Information Documents comply
as to form in all material respects with applicable accounting requirements and
with the published rules and regulations of the Commission with respect thereto,
have been prepared in accordance with generally accepted accounting principles
applied on a consistent basis during the periods involved (except as may be
indicated in the notes thereto or, in the case of the unaudited statements, as
permitted by the rules and regulations of the Commission) and fairly present
(subject, in the case of the unaudited statements, to normal, recurring audit
adjustments, which were not individually or in the aggregate material) in all
material respects the financial position of the Company as at the dates thereof
and the results of its operations and cash flows for the periods then ended.
Notwithstanding the foregoing, the Company announced on July 29, 2002 (which
announcement is included in the Current Report on Form 8-K, event date July 29,
2002) that certain of its financial results reported in its Quarterly Report on
Form 10-Q for the quarter ended March 31, 2002 were to be restated in connection
with an adjustment to the purchase accounting utilized to account for the
Company's acquisition of Unipath, a division of Unilever plc in December 2001
and all representations included in this section 4.14 are qualified by such
disclosure by the Company.
4.15 LEGAL OPINION. At the Closing, the Company will cause Xxxxxxx Procter
LLP, counsel to the Company, to deliver to the Investors a legal opinion as to
the matters substantially in the form set forth in EXHIBIT C hereto.
4.16 CERTIFICATE. At the Closing, the Company will deliver to the Investors
a certificate executed by the Chief Executive Officer or President of the
Company, dated the Closing Date, in form and substance reasonably satisfactory
to the Investors, to the effect that the representations and warranties of the
Company set forth in this Section 4 are true and correct in all material
respects as of the Closing Date, and the Company has complied in all material
respects with all
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the agreements and satisfied all the conditions herein on its part to be
performed or satisfied on or prior to the Closing Date.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INVESTORS.
5.1 Each Investor, severally and not jointly represents and warrants to,
and covenants with, the Company that: (i) such Investor is knowledgeable,
sophisticated and experienced in making, and is qualified to make, decisions
with respect to investments in securities representing an investment decision
such as that involved in the purchase of the Securities and has requested,
received, reviewed and understood all information it deems relevant in making an
informed decision to purchase the Securities, including, without limitation, the
information contained in the Information Documents; (ii) such Investor
acknowledges that the offering of the Securities pursuant to this Agreement is
being made without registration under the Securities Act and applicable state
securities laws and has not been reviewed by the Commission or any state
regulatory authority; (iii) such Investor is acquiring the Securities set forth
on its signature page hereto for its own account for investment only and with no
present intention of distributing any of such Securities or any arrangement or
understanding with any other persons regarding the distribution of such
Securities; (iv) such Investor will not, directly or indirectly, offer, sell,
pledge, transfer or otherwise dispose of (or solicit any offers to buy, purchase
or otherwise acquire or take a pledge of) any of the Securities except in
compliance with the Securities Act, the rules and regulations thereunder and any
applicable state securities or blue sky laws; (v) such Investor has completed or
caused to be completed the Securities Questionnaire, attached hereto as APPENDIX
I, and the answers thereto are true and correct as of the date hereof; (vi) such
Investor has, in connection with its decision to purchase the number of
Securities set forth on its signature page, not relied upon any representations
or other information (whether oral or written) other than as set forth in the
Information Documents and the representations and warranties of the Company
contained herein; and (vii) such Investor has had an opportunity to discuss this
investment with representatives of the Company and ask questions of them and
such questions have been answered to the full satisfaction of such Investor.
5.2 Each Investor hereby covenants with the Company not to make any sale of
the Registrable Shares (as hereinafter defined) without satisfying the
prospectus delivery requirements under the Securities Act, if any.
5.3 Each Investor further represents and warrants to, and covenants with,
the Company that (i) such Investor has full right, power, authority and capacity
to enter into this Agreement and to consummate the transactions contemplated
hereby and has taken all necessary action to authorize the execution, delivery
and performance of this Agreement, (ii) if such Investor is an entity, such
Investor is duly organized, validly existing and in good standing under the laws
of its jurisdiction of organization, (iii) the execution, delivery and
performance of this Agreement by such Investor and the consummation by such
Investor of the transactions contemplated by this Agreement will not (A) if such
Investor is an entity, violate any provision of the organizational documents of
such Investor or (B) conflict with, result in the breach or violation of, or
constitute, either by itself or upon notice or the passage of time or both, a
default under any material agreement, mortgage, deed of trust, lease, franchise,
license, indenture, permit or other instrument to which such Investor is a party
or, any statute or any authorization, judgment, decree, order, rule or
regulation of any court or any regulatory body, administrative
8
agency or other governmental body applicable to such Investor, (iv) no consent,
approval, authorization or other order of any court, regulatory body,
administrative agency or other governmental body is required on the part of such
Investor for the execution and delivery of this Agreement or the consummation of
the transactions contemplated by this Agreement, (v) upon the execution and
delivery of this Agreement, this Agreement shall constitute a valid and binding
obligation of such Investor enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law) and (vi) there is not in effect any order
enjoining or restraining such Investor from entering into or engaging in any of
the transactions contemplated by this Agreement.
5.4 Each Investor recognizes that an investment in the Securities and the
Warrant Shares and, if applicable, the Note Shares is speculative and involves a
high degree of risk, including a risk of total loss of such Investor's
investment.
5.5 All of the information provided to the Company or its agents or
representatives by such Investor concerning such Investor's suitability to
invest in the Company and the representations and warranties of such Investor
contained herein, are complete, true and correct as of the date hereof. Such
Investor understands that the Company is relying on the statements contained
herein to establish an exemption from registration under federal and state
securities laws.
5.6 The address set forth on the Investor's signature page hereto is the
Investor's true and correct domicile.
5.7 Each Investor covenants to provide the Company an updated, accurate and
complete plan of distribution at all times during which the Company is required
to keep in effect any Registration Statement covering any Registrable Shares
held by such Investors.
5.8 Each Investor understands and agrees that each Note, each Warrant and
each certificate or other document evidencing any of the Securities or any
Warrant Shares, or if applicable, Note Shares shall be endorsed with a legend in
substantially the form set forth below as well as any other legends required by
applicable law, and such Investor covenants that such Investor shall not
transfer any Note, any Warrant or any shares of Common Stock represented by any
such certificate or other document without complying with the restrictions on
transfer described in the legends endorsed on such certificate:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED ("SECURITIES ACT"), OR REGISTERED OR QUALIFIED UNDER
ANY APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES MAY NOT BE
TRANSFERRED UNLESS (A) COVERED BY AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND REGISTERED OR QUALIFIED UNDER APPLICABLE
STATE SECURITIES LAWS OR (B) EXEMPTIONS FROM SUCH REGISTRATION OR
QUALIFICATION
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REQUIREMENTS ARE AVAILABLE. AS A CONDITION TO PERMITTING ANY TRANSFER
OF THESE SECURITIES, THE COMPANY MAY REQUIRE THAT IT BE FURNISHED WITH
AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY TO THE
EFFECT THAT NO REGISTRATION OR QUALIFICATION IS LEGALLY REQUIRED FOR
SUCH TRANSFER.
[FOR THE NOTES ONLY] THIS SUBORDINATED PROMISSORY NOTE WAS ISSUED WITH
ORIGINAL ISSUE DISCOUNT ("OID"). THE TREASURER OF THE BORROWER, WHO
CAN BE REACHED AT THE ADDRESS OF THE BORROWER PROVIDED IN SECTION 10
HEREOF, TEL. NO. (000) 000-0000, WILL MAKE AVAILABLE TO THE HOLDER,
HEREOF, UPON REQUEST THE ISSUE PRICE, THE AMOUNT OF OID, THE ISSUE
DATE AND THE YIELD TO MATURITY.
5.9 SUBORDINATION. (a) Each Investor understands and agrees that the rights
and obligations of the Company and such Investor under such Investor's Note are
subject to the provisions of the Subordination Agreement (as defined below), as
more fully described in Section 3(i) of the form of Note attached hereto as
EXHIBIT A, and that each Note shall be endorsed with a legend substantially to
such effect. Each Investor understands that, among other things, the
Subordination Agreement generally prohibits cash payments by the Company in
respect of such Investor's Note until certain senior indebtedness of the Company
is paid in full, provided that quarterly payments of interest in cash may be
made on the Notes so long as no default or event of default exists under the
terms of the applicable Senior Obligation (as defined in the Note). As used
herein, the term "Subordination Agreement" shall mean one or more subordination
and/or intercreditor agreements entered or to be entered into by and among the
Company, one or more of its Senior Lenders, one or more holders of Senior
Obligations (as defined in the form of Note) and certain other parties, as
amended, varied, supplemented, restated or novated from time to time, and as
joined in by the Investors as parties thereto. In the event that the Company
incurs Senior Obligations (as such term is defined in the Notes) to a party not
entitled to the benefit of the Subordination Agreement, each Investor will, upon
the Company's written request, enter into a subordination agreement with such
party containing terms and conditions no more restrictive than those set forth
in the Subordination Agreement.
(b) Each Investor hereby constitutes and appoints Pear Tree Partners,
L.P. as the undersigned's true and lawful Attorney-in-Fact and agent (the
"Attorney-in-Fact"), with full power and authority of substitution and
resubstitution, to: (i)(A) execute and deliver any Subordination Agreement
to be entered into with a holder of a Senior Obligation on or prior to the
Closing Date, and (B) agree to and accept the Note(s) and Warrant(s)
issuable to such Investor on such Investor's behalf and to execute and
deliver the same to give effect to such agreement and acceptance; (ii) do
and perform any and all acts for and on behalf of the undersigned which may
be necessary or desirable to execute and deliver such Subordination
Agreement or to give effect to the subordination of the Notes to the Senior
Obligations; and (iii) take any other action of any type whatsoever which,
in the opinion of such Attorney-in-Fact, may be necessary or desirable in
connection with the foregoing authority, it being understood that the
documents executed by such Attorney-in-Fact on behalf of the undersigned
pursuant to
10
this Power of Attorney shall be in such form and shall contain such terms
and conditions as such Attorney-in-Fact may approve, execute and deliver.
The undersigned hereby grants to such Attorney-in-Fact full power and
authority to do and perform any and every act and thing whatsoever
requisite, necessary, proper or desirable to be done in the exercise of any
of the rights and powers herein granted, as fully to all intents and
purposes as the undersigned might or could do if personally present, with
full power of substitution or revocation, hereby ratifying and confirming
all that each such Attorney-in-Fact, or each such Attorney-in-Fact's
substitute or substitutes (any such substitute also being referred to
herein as an "Attorney-in-Fact"), shall lawfully do or cause to be done by
virtue of this Power of Attorney and the rights and powers herein granted.
The undersigned agrees that the Attorney-in-Fact shall not be liable for
any error of judgment or for any act done or omitted to be done or for any
mistake of fact or law except for the Attorney-in-Fact's own bad faith.
Without limiting the generality of the foregoing, each Investor agrees to
indemnify such Attorney-in-Fact in its capacity as such from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, reasonable expenses or disbursements of any kind
whatsoever which may at any time be imposed on, incurred by or asserted
against such Attorney-in-Fact in its capacity as such, in any way relating
to or arising out of this Power of Attorney, or any documents contemplated
by or referred to herein or the transactions contemplated hereby or any
action taken or omitted to be taken by such Attorney-in-Fact, PROVIDED,
HOWEVER, that such Investor shall not be liable to such Attorney-in-Fact
for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting solely from such Attorney-in-Fact's own bad faith.
Notwithstanding anything to the contrary set forth herein, this Power of
Attorney shall be irrevocable but shall terminate on the earlier of (a) the
date on which the Investors execute and deliver the Subordination Agreement
and (b) the date on which all obligations under the Notes have been
indefeasibly paid in full.
(c) Each Investor acknowledges that certain relationships exist among
the Attorney-in-Fact, the Placement Agent, the principals of the Attorney
in Fact and the Placement Agent and the Company, all as more fully
described in the Confidential Memorandum, a copy of which has been
furnished to such Investor.
SECTION 6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Notwithstanding any investigation made by any party to this Agreement, all
covenants, agreements, representations and warranties made by the Company and
the Investors herein and in any certificates or documents delivered pursuant
hereto or in connection therewith shall survive following the delivery to the
Investors of the Securities being purchased and the payment therefor.
SECTION 7. REGISTRATION OF COMMON STOCK.
7.1 REGISTRATION PROCEDURES AND EXPENSES. The Company shall:
(a) following the Closing Date, prepare and file with the SEC one or
more registration statements relating to the resale pursuant to Rule 415
under the Securities Act of the Registrable Shares (as defined below) by
the Investors from time to time on AMEX or the facilities of any other
national securities exchange or automated quotation system on which the
Common Stock is then traded or in privately-negotiated transactions, and
specifically excluding underwritten offerings. "Registrable Shares" shall
mean (i) the Warrant Shares and, if applicable
11
any shares issued under the Notes, (ii) any shares of Common Stock issued
in respect of such shares (because of stock splits, stock dividends,
reclassifications, recapitalizations, or similar events);
(b) subject to receipt of necessary information from the Investors,
(i) in the case of the Note Shares, cause a Registration Statement (as
defined in Section 7.3 below) to be declared effective by the Commission on
or prior to the date on which the Note Shares are issued by the Company and
(ii) in the case of the Warrant Shares, use its best efforts to cause a
Registration Statement to be declared effective by the Commission on or
prior to the six month anniversary of the Closing hereunder.
(c) promptly and in good faith respond to all of the Commission's
comments on each Registration Statement, and within two (2) business days
of receipt of an indication from the Commission that it has no further
comments, request acceleration of the effectiveness of the registration at
the earliest practicable time;
(d) prepare and file with the Commission such amendments and
supplements to each Registration Statement and the prospectuses used in
connection therewith as may be necessary to keep such Registration
Statement effective until the earlier of (i) the date on which the
Investors may sell all the Registrable Shares covered by such Registration
Statement that are then held by the Investors in accordance with paragraph
(k) of Rule 144 under the Securities Act ("Rule 144"), or (ii) such time as
all the Registrable Shares covered by such Registration Statement have been
sold pursuant to a registration statement;
(e) so long as a Registration Statement is effective covering the
resale of Registrable Shares owned by the Investors, furnish to the
Investors such number of copies of prospectuses and such other documents as
the Investors may reasonably request in order to facilitate the public sale
or other disposition of all or any of such Registrable Shares by the
Investors;
(f) file documents required of the Company for blue sky clearance in
states specified in writing by the Investors; provided, however, that the
Company shall not be required to qualify to do business or consent to
service of process in any jurisdiction in which it is not so qualified or
has not so consented; and
(g) bear all expenses in connection with the procedures in paragraphs
(a) through (f) of this Section 7.1 and the registration of the Registrable
Shares pursuant to the Registration Statements, and reasonable legal fees
and expenses, if any, of one (1) counsel to all of the Investors whose
shares are registered, and except for any underwriting discounts, brokerage
fees and commissions incurred by the Investors, if any.
7.2 ADDITIONAL OBLIGATIONS OF THE PARTIES.
(a) With a view to making available to the Investors the benefits of
Rule 144 (or its successor rule) and any other rule or regulation of the
Commission that may at any time permit the Investors to sell the
Registrable Shares to the public without registration, the Company
covenants and agrees to: (i) make and keep public information available, as
those terms are understood and defined in Rule 144, until the earlier of
(A) such date as all of the
12
Investors' Registrable Shares may be resold pursuant to paragraph (k) of
Rule 144 or any other rule of similar effect or (B) such date as all of the
Investors' Registrable Shares shall have been resold and (ii) file with the
Commission in a timely manner all reports and other documents required of
the Company under the Securities Act and under the Exchange Act.
(b) If the Company has delivered preliminary or final prospectuses to
the Investors who own Registrable Shares included in any Registration
Statement (each a "Selling Investor") and after having done so the
prospectus is amended to comply with the requirements of the Securities
Act, the Company shall promptly notify the Selling Investors and, if
requested, the Selling Investors shall immediately cease making offers of
Registrable Shares and return all prospectuses to the Company. The Company
shall promptly provide the Selling Investors with revised prospectuses and,
following receipt of the revised prospectuses, the Selling Investors shall
be free to resume making offers of the Registrable Shares.
(c) In the event that, in the good faith judgment of the Company after
consultation with the Company's outside legal counsel, it is advisable to
suspend use of a prospectus included in a Registration Statement due to
pending material developments or other events that have not yet been
publicly disclosed and as to which the Company believes public disclosure
would be detrimental to the Company, the Company shall notify all investors
to such effect, and, upon receipt of such notice, each such Selling
Investor shall immediately discontinue any sales of Registrable Shares
pursuant to such Registration Statement until such Selling Investor has
received copies of a supplemented or amended prospectus or until such
Selling Investor is advised in writing by the Company that the then current
prospectus may be used and has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by
reference in such Prospectus. Each Investor acknowledges and agrees that
the existence, content and receipt of any such notice may constitute
material non-public information and such Investor agrees to keep the
existence, content and receipt of any such notice confidential.
Notwithstanding anything to the contrary herein, the Company shall not
exercise its rights under this Section 7.2(c) to suspend sales of
Registrable Shares for a period in excess of 90 days in any 365-day period.
(d) Each Investor including Registrable Shares in any Registration
Statement shall furnish to the Company such information regarding such
Investor as the Company may reasonably request and as shall be required in
connection with any registration, qualification or compliance referred to
in this Agreement.
7.3 INDEMNIFICATION. For the purpose of this Section 7.3:
(i) the term "Investors" shall include the Investors and any
affiliate of the Investors; and
(ii) the term "Registration Statement" shall include any final
prospectus, exhibit, supplement or amendment included in or relating
to any Registration Statement referred to in Section 7.1.
(a) In the event of any registration of any Registrable Shares under
the Securities Act pursuant to this Agreement, the Company agrees to
indemnify and hold harmless
13
each of the Selling Investors with respect thereto and each person, if any,
who controls any such Selling Investor within the meaning of the Securities
Act, against any losses, claims, damages, liabilities or expenses, joint or
several, to which any such Selling Investor or controlling person may
become subject, under the Securities Act, the Exchange Act, or any other
federal or state statutory law or regulation, or at common law or otherwise
(including in settlement of any litigation, if such settlement is effected
with the written consent of the Company), insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof as
contemplated below) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any Registration
Statement covering any Registrable Shares, including the prospectus,
financial statements and schedules, and all other documents filed as a part
thereof, as amended at the time of effectiveness of such Registration
Statement, including any information deemed to be a part thereof as of the
time of effectiveness pursuant to paragraph (b) of Rule 430A, or pursuant
to Rule 434, under the Securities Act, or the prospectus, in the form first
filed with the Commission pursuant to Rule 424(b) under the Securities Act,
or filed as part of such Registration Statement at the time of
effectiveness if no Rule 424(b) filing is required (a "Prospectus"), or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state a material fact required to be stated
in such Registration Statement, Prospectus or any amendment or supplement
thereto or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, and will reimburse
the Selling Investors and each such controlling person for any legal and
other expenses reasonably incurred, as such expenses are reasonably
incurred, by the Selling Investors or such controlling person in connection
with investigating, defending, settling, compromising or paying any such
loss, claim, damage, liability, expense or action; PROVIDED, HOWEVER, that
the Company will not be liable in any such case to the extent that any such
loss, claim, damage, liability or expense arises out of or is based upon
(i) an untrue statement or alleged untrue statement or omission or alleged
omission made in any Registration Statement, Prospectus or any amendment or
supplement thereto in reliance upon and in conformity with written
information furnished to the Company by or on behalf of a Selling Investor
expressly for use therein, or (ii) the failure of a Selling Investor to
comply with Section 5.2 hereof respecting sale of the Registrable Shares,
or (iii) the inaccuracy of any representations made by any Selling Investor
herein or (iv) any statement or omission in any Prospectus that is
corrected in any subsequent Prospectus that was delivered to a Selling
Investor prior to the pertinent sale or sales by such Selling Investor.
(b) In the event of any registration of any Registrable Shares under
the Securities Act pursuant to this Agreement, each Selling Investor
severally and not jointly, with respect thereto will indemnify and hold
harmless the Company, each of its directors, each of its officers who sign
any Registration Statement covering any Registrable Shares and each person,
if any, who controls the Company within the meaning of the Securities Act,
against any losses, claims, damages, liabilities or expenses to which the
Company, each of its directors, each of its officers who signed such
Registration Statement or controlling person may become subject, under the
Securities Act, the Exchange Act, or any other federal or state statutory
law or regulation, or at common law or otherwise (including in settlement
of any litigation, if such settlement is effected with the written consent
of such Selling Investor) insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof as contemplated
below) arise out of or are based upon (i) any failure by such Selling
Investor to comply with Section 5.2 hereof respecting the sale of the
Registrable Shares or (ii) the inaccuracy of any representation
14
made by such Selling Investor herein or (iii) any untrue or alleged untrue
statement of any material fact contained in any Registration Statement,
Prospectus or any amendment or supplement thereto, or the omission or
alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in such Registration Statement,
Prospectus or any amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of such Selling Investor expressly for use therein, and will
reimburse the Company, each of its directors, each of its officers who
signed Registration Statement and each such controlling person for any
legal and other expense reasonably incurred, as such expenses are
reasonably incurred, by the Company, each of its directors, each of its
officers who signed such Registration Statement or such controlling person
in connection with investigating, defending, settling, compromising or
paying any such loss, claim, damage, liability, expense or action.
Notwithstanding the foregoing, no Selling Investor shall be liable pursuant
to this Section 7.3(b) for an aggregate amount in excess of actual proceeds
from the sale of his, her or its Registrable Shares.
(c) Promptly after receipt by an indemnified party under this Section
7.3 of notice of the threat or commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against an
indemnifying party under this Section 7.3, promptly notify the indemnifying
party in writing thereof, but the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party for contribution or otherwise to the extent it is not
actually prejudiced as a result of such failure. In case any such action is
brought against any indemnified party and such indemnified party seeks or
intends to seek indemnity from an indemnifying party, the indemnifying
party will be entitled to participate in, and, to the extent that it may
wish, jointly with all other indemnifying parties similarly notified, to
assume the defense thereof with counsel reasonably satisfactory to such
indemnified party; PROVIDED, HOWEVER, that if the defendants in any such
action include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there may be a
conflict between the positions or defenses of the indemnifying party and
the indemnified party in conducting the defense of any such action, the
indemnified party or parties shall have the right to select separate
counsel to assume such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified party of
its election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 7.3 for any legal or other
expenses subsequently incurred by such indemnified party in connection with
the defense thereof unless: (i) the indemnified party shall have employed
such counsel in connection with the assumption of legal defenses in
accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses
of more than one separate counsel, reasonably satisfactory to the
indemnifying party, representing the indemnified parties who are parties to
such action and all other purchasers of Registrable Shares who may be
parties to such action; PROVIDED, HOWEVER, that if any indemnified party
shall have reasonably concluded that there may be a conflict between the
positions or defenses of such indemnified party and the positions or
defenses of other indemnified parties or other purchasers in conducting the
defense of any such action, the indemnified party shall have the right to
select a separate counsel to assume such legal defenses)
15
or (ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of action, in each of
which cases the reasonable fees and expenses of counsel shall be at the
expense of the indemnifying party. The indemnity agreements contained in
Section 7.3(a) and (b) shall not apply to amounts paid in settlement of any
action if such settlement is effected without the prior written consent of
the indemnifying party (which consent shall not be unreasonably withheld or
delayed), or to amounts paid in settlement of any action if the
indemnifying party is not fully released under such settlement from any
claim or liability under such action.
(d) If the indemnification provided for in this Section 7.3 is
required by its terms but is for any reason held to be unavailable to or
otherwise insufficient to hold harmless an indemnified party under
paragraphs (a), (b) or (c) of this Section 7.3 in respect to any losses,
claims, damages, liabilities or expenses referred to herein, then each
applicable indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of any losses, claims,
damages, liabilities or expenses referred to herein (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company
and the Selling Investors from the sale of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but the relative fault of the
Company and the Selling Investors in connection with the statements or
omissions or inaccuracies in the representations and warranties in this
Agreement which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The
respective relative benefits received by the Company on the one hand and
the Selling Investors on the other shall be deemed to be in the same
proportion as the amount paid by the Selling Investors to the Company
pursuant to this Agreement for the Registrable Shares that were sold
pursuant to any Registration Statement bears to the difference (the
"Difference") between the amount the Selling Investors paid for such
Registrable Shares and the amount received by the Selling Investors from
the sale of such Registrable Shares. The relative fault of the Selling
Investors shall be determined by reference to, among other things, whether
the untrue or alleged statement of a material fact or the omission or
alleged omission to state a material fact or the inaccurate or the alleged
inaccurate representation and/or warranty relates to information supplied
by the Company or by the Selling Investors and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party
as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the limitations
set forth in paragraph (c) of this Section 7.3, any legal or other fees or
expenses reasonably incurred by such party in connection with investigating
or defending any action or claim. The provisions set forth in paragraph (c)
of this Section 7.3 with respect to the notice of the threat or
commencement of any threat or action shall apply if a claim for
contribution is to be made under this paragraph (d); PROVIDED, HOWEVER,
that no additional notice shall be required with respect to any threat or
action for which notice has been given under paragraph (c) for purposes of
indemnification. The Company and the Investors agree that it would not be
just and equitable if contribution pursuant to this Section 7.3 were
determined solely by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations
referred to in this paragraph. Notwithstanding the provisions of this
Section 7.3, the Selling Investors shall not be required to contribute any
amount in excess of the amount by which the Difference exceeds the amount
of any damages that the Selling Investors
16
have otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
SECTION 8. XXX SERVICING AGENT
8.1 The Company hereby appoints Pear Tree Partners, L.P. as the servicing
agent (the "Servicing Agent") with respect to the Declaration of Administrative
Feasibility to enable Retirement Accounts, Inc. and First Trust Corporation, the
trustees of the self-directed individual retirement accounts (the "Trustees"),
to administer the investment of the owners of such accounts (the "Owners") in
the Securities. Each of the Owners has entered into an XXX Servicing Agreement
(the "Servicing Agreement") with the Servicing Agent. The Company hereby
acknowledges that the Servicing Agent may take all actions consistent with the
directions of the Owners, and all other actions necessary or in furtherance of
the Owners' instructions, pursuant to the Servicing Agreement and the Company
agrees to cooperate with the Servicing Agent in connection with the Servicing
Agent's functions under the Servicing Agreement and the Declaration of
Administrative Feasibility. Notwithstanding the foregoing, the Company shall
have no further obligations, responsibilities or liabilities to the Trustees or
the Owners, and the Servicing Agent hereby indemnifies the Company from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, reasonable expenses or disbursements of any
kind whatsoever which may at any time be imposed on, incurred by or asserted
against the Company in any way relating to or arising out of the Servicing
Agent's performance of services to or for the benefit of the Trustees or the
Owners under the Servicing Agreement and the Declaration of Administrative
Feasibility.
SECTION 9. NOTICES. Any notice required or permitted to be given to a party
under this Agreement shall be made in writing at the address or facsimile number
of the party specified below (or such other address or facsimile number as the
party may specify in a written notice to the other party) and shall be deemed to
have been given, if delivered personally or sent via electronic facsimile
transmission with confirmation received, on the date of delivery or, if sent via
nationally recognized overnight express courier with established tracking
capability marked for delivery on the next business day, on the earlier of the
date of delivery, as demonstrated by the tracking records of the courier, or two
(2) business days after deposit of the notice with the courier:
if to the Company, to:
Inverness Medical Innovations, Inc.
00 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxx Xxxxxxxxx, President
17
with a copy to:
Inverness Medical Innovations, Inc.
00 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel
and to:
Xxxxxxx Xxxxxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
if to the Investors, at their addresses as set forth on their respective
signature pages to this Agreement.
with copies to:
U.S. Boston Capital Corporation
00 Xxx Xxxxxxx Xxxx
Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
and to:
Xxxxx Xxxx
000 Xxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxx, Esq.
Facsimile: 000-000-0000
SECTION 10. CHANGES. After the Closing, this Agreement may not be modified
or amended, and no provision hereof may be waived, except pursuant to an
instrument in writing, signed by (a) the Company and (b) the holders of greater
than fifty percent (50%) of the aggregate principal amount outstanding under the
Notes (or if there is no principal amount outstanding under the Notes, the
aggregate number of shares issuable upon exercise of the Warrants, to the extent
not previously exercised). Prior to the Closing, this Agreement may not be
modified or amended, and no provision hereof may be waived, except pursuant to
an instrument in writing, signed by (a) the Company and (b) the subscribers to
greater than fifty percent (50%) of the Units then subscribed for.
SECTION 11. HEADINGS. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed to be part of this Agreement.
18
SECTION 12. SEVERABILITY. In case any provision contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
SECTION 13. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of The Commonwealth of Massachusetts,
without giving effect to its principles of conflicts of law. Any dispute arising
out of or relating to this Agreement or the Securities shall be filed and
prosecuted in any court of competent subject matter jurisdiction located in
Massachusetts. The Company and each of the Investors hereby consent to the
personal jurisdiction of such courts over them, stipulate to the convenience,
fairness and efficiency of proceeding in such courts, and covenant not to assert
any objection to proceeding in such courts based on any alleged lack of
jurisdiction or any alleged inconvenience, unfairness or inefficiency of such
courts.
SECTION 14. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but both of which,
when taken together, shall constitute but one instrument, and shall become
effective when one or more counterparts have been signed by each party hereto
and delivered to the other party.
SECTION 15. ENTIRE AGREEMENT. This Agreement (including the attachments
hereto) contains the entire agreement of the parties with respect to the subject
matter hereof and supersedes and is in full substitution for any and all prior
oral or written agreements and understandings between them related to such
subject matter, and neither party hereto shall be liable or bound to the other
party hereto in any manner with respect to such subject matter by any
representations, indemnities, covenants or agreements except as specifically set
forth herein.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives shown below as of the date
first written above.
*SEE SCHEDULE OF INVESTORS BELOW
--------------------- --------------------------------------------
Witness [Name of Investor]
By:
-----------------------------------------
Name:
Title:
Address:
-----------------------------------
-----------------------------------
-----------------------------------
Telephone:
----------------------------------
Facsimile:
----------------------------------
Date:
---------------------------------------
UNITS TO BE PURCHASED
Warrant to Purchase the
Note in the Original Number of shares of Aggregate Purchase Price
Number of Principal Amount Set Common Stock Set in U.S. Dollars for Units
Units Forth Below Forth Below to be Purchased
---------- -------------------- ----------------------- -------------------------
Accepted and Agreed to by:
INVERNESS MEDICAL INNOVATIONS, INC.
By: /S/ XXXXXXX X. XXXXXXXX
--------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President & Chief Operating Officer
Solely for the purposes of Sections 5.9 and 8 hereof, the undersigned has caused
this Agreement to be executed by its duly authorized representative shown below
as of the date first written above.
Accepted and Agreed to by:
PEAR TREE PARTNERS, L.P.
By: /S/ XXXXXXX X. XXXXXXXX OR XXXXXXX X. XXXXXXX
---------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx or Xxxxxxx X. Xxxxxxx
Title: Manager, Pear Tree Partners Management, LLC,
General Partner of Pear Tree Partners, L.P.
EXHIBIT A
INTENTIONALLY OMITTED
EXHIBIT B
Intentionally Omitted
EXHIBIT C
The opinion of the Company's legal counsel shall address the following matters,
as of the Closing Date:
1. The Company is a corporation validly existing and in good standing under
the laws of the State of Delaware and has the requisite corporate power to own
and operate its properties and assets and to carry on its business as described
in the Annual Report on Form 10-K for the year ended December 31, 2001.
2. Based upon your representations, warranties and covenants set forth in
the Agreement and the representations, warranties and covenants of certain
purchasers of other subordinated notes to be issued on or about the date hereof,
the offer, issuance and sale of the Notes and the Warrants pursuant to the terms
of the Transaction Agreements are exempt from registration under Securities Act.
3. Except as contemplated by the Transaction Agreements, to our knowledge,
no consent, approval or authorization of or designation, declaration or filing
with any federal or Massachusetts governmental authority is required to be
obtained or made by the Company for (i) the execution and delivery of the
Transaction Agreements, (ii) the offer, sale or issuance of the Notes and
Warrants, (iii) the exercise of the Warrants, or (iv) the consummation of any
other transaction contemplated by the Transaction Agreements to occur at the
Closing, with the exception of: (1) the filing of one or more Form Ds with the
SEC, (2) the filing of appropriate notices with blue sky authorities, (3) the
filing of one or more Registration Statements pursuant to the registration
rights provisions contained in the Purchase Agreement, (4) the filing of an
additional shares listing application with AMEX and (5) the disclosure of such
transactions in periodic reports to be filed by the Company under the Securities
Exchange Act of 1934, as amended.
4. The Company has all requisite corporate power to execute and deliver the
Transaction Agreements and to carry out all of its obligations thereunder,
including the sale and issuance of the Notes, the Warrants, and the Warrant
Shares upon exercise of the Warrants, in accordance with the terms of the
Transaction Agreements.
5. Each of the Transaction Agreements has been duly and validly authorized
by all necessary corporate action, and has been executed and delivered by, and
constitutes a valid and binding agreement of, the Company and is enforceable
against the Company in accordance with its terms.
6. The Notes and Warrants, when issued, sold and delivered against payment
therefor in accordance with the provisions of the Agreement, will be validly
issued, fully paid and nonassessable, and, upon issuance and payment therefor in
accordance with the terms of the Warrants, the Warrant Shares will be validly
issued, fully paid and non-assessable.
8. The execution and delivery of the Transaction Agreements by the Company,
and the issuance of the Notes, the Warrants and the Warrant Shares issuable upon
exercise of the Warrants, as contemplated by such documents (i) do not result in
a violation by the Company of federal or Massachusetts law; or (ii) do not
conflict, and will not (assuming no amendments to any of the following after the
date hereof) conflict with or result in a breach or default by the Company of
any of the terms or provisions of: (A) the Certificate of Incorporation or the
Bylaws of the Company, or (B) to our knowledge, any existing federal or
Massachusetts court order, judgment or decree applicable to the Company in
existence on the date hereof.
Schedule of Investors
AGGREGATE
NUMBER OF PURCHASE
SHARES OF PRICE IN
ORIGINAL COMMON STOCK US DOLLARS
PRINCIPAL ACQUIRABLE UPON FOR UNITS
NUMBER AMOUNT OF EXERCISE OF TO
INVESTOR OF UNITS NOTE WARRANT PURCHASED
Xxxxx Xxxxxxxxx 2 $100,000 800 $100,000
AJAC Partnership 2 $100,000 800 $100,000
Xxxx X. Xxxxxxxxx 8 $400,000 3,200 $400,000
Xxxx X. Xxxx 4 $200,000 1,600 $200,000
Xxxxxxx Logging Co., Inc. 2 $100,000 800 $100,000
Xxxxxx Xxxxxxxxx 1 $50,000 400 $50,000
Xxxx and Xxxxx Xxxxxxxxxx 1 $50,000 400 $50,000
Xxxxxxx X. Xxxxxxxx 2 $100,000 800 $100,000
Xxxxxx Xxxxxxx, PSRP/RO 3 $150,000 1,200 $150,000
Xxxxx X. Xxxxxx 1 $50,000 400 $50,000
Xxxx Xxxxx 6 $300,000 2,400 $300,000
Brookside Institute for Psychotherapy Employees
Retirement Plan, Xxxxx X. Xxxxx, Trustee 2 $100,000 800 $100,000
Xxxxx Xxxx, MPPP 1 $50,000 400 $50,000
Xxxxx X. Male 2 $100,000 800 $100,000
Xxxxx XxXxxxxxx 1 $50,000 400 $50,000
Xxxxx Xxxxxxxxx 2 $100,000 800 $100,000
Xxxxx X. Xxxxxxxxxx, PSRP R/O 1 $50,000 400 $50,000
Xxxxxxx Xxxxx 2 $100,000 800 $100,000
Xxxxxxx and Xxxxxx Xxxxxxxx, PSRP, Trustees 1 $50,000 400 $50,000
Xxxxxxx X. Xxx 1/2 $25,000 200 $25,000
Xxxxx X. Xxxxxx 2 $100,000 800 $100,000
Xxxxx & Xxxx Profit Sharing Retirement Plan FBO Xxxx X.
Xxxx, III, Xxx X. Xxxx, III, Trustee 1 $50,000 400 $50,000
DAC Associates Trust U/A/D 11/21/83 As Amended 7/01/02 4 $200,000 1,600 $200,000
Xxxxx X. Xxxxxx 3 $150,000 1,200 $150,000
Xxxxx Xxxxxx, Defined Ben. 2 $100,000 800 $100,000
Xxxxx X. Link 2 $100,000 800 $100,000
Xxxx X. Xxxxxx, Xx. 1 $50,000 400 $50,000
Xxxxxxx Xxxxxxxx and Xxxxxx Xxxxxxxx 2 $100,000 800 $100,000
Xxxxx X. Xxxxxxxx, MD and Xxxxxx X. Xxxxxxx, MD
PCPSRP, Xxxxx X. Xxxxxxxx and Xxxxxx X. Xxxxxxx,
Trustees 1 $50,000 400 $50,000
Dermatology Associates of Concord, Inc. Profit Sharing
Retirement Plan Xxxxx Xxxxxx Trustee 6 $300,000 2,400 $300,000
Xxxxx Xxxxxx 2 $100,000 800 $100,000
Xxxxxxxxx Xxxxxxxxxxx 20 $1,000,000 8,000 $1,000,000
Xxxxxxx Xxxxxxx 1/2 $25,000 200 $25,000
Xxxxxx X. Xxxxxxxxxx Testamentary Trust, Xxxx X.
Xxxxxxxxxx TTEE 1 $50,000 400 $50,000
Xxxxxx X. Xxxxx 1 $50,000 400 $50,000
Xxxxxx X. Xxxxx, Trustee Xxxxxx X. Xxxxx Money
Purchase Pension Plan 8 $400,000 3,200 $400,000
Xxxxxx X. Xxxxxxx, MD PSRP A/C Xxxxxx X. Xxxxxxx (RO)
Xxxxxx X. Xxxxxxx, Trustee 1 $50,000 400 $50,000
Xxxxx X. Xxxxxx 1 $50,000 400 $50,000
Xxxxx X. Xxxxxx, Xx. 1995 Trust U/A/D 6/27/95, Xxxxx X.
Xxxxxx, Xx. and Xxxxxxxx X. Xxxxxx, TTEE 1 $50,000 400 $50,000
Xxxxxx X. and Xxxxxxx X. Xxxxxx Trust U/A DTD 1/26/96,
Xxxxxx X. and Xxxxxxx X. Xxxxxx, Trustees 4 $200,000 1,600 $200,000
Xxxxxx X. Xxxxxxxxx Xx. 2 $100,000 800 $100,000
Everest Properties II, LLC Money Purchase Revision Plan
FBO Xxxxxx Kohorest 2 $100,000 800 $100,000
Xxxx Xxx Xxxx 1 $50,000 400 $50,000
First Trust A83Corporation, Trustee FBO Xxxx Xxxxx, Xx.
XXX+A133 2 $100,000 800 $100,000
First Trust Corporation Trustee FBO Xxxxx Xxxxxxxxx, XXX 2 $100,000 800 $100,000
First Trust Corporation Trustee FBO Xxxxxx Xxxxxxx XXX 6 $300,000 2,400 $300,000
First Trust Corporation Trustee FBO Xxxx X. Xxxx-XXX 1 $50,000 400 $50,000
First Trust Corporation Trustee FBO Xxxxxxx Xxxxxx Friend
XXX 1 $50,000 400 $50,000
First Trust Corporation, FBO Xxxxxx XxXxxx, Xx. - XXX 1 $50,000 400 $50,000
First Trust Corporation, Trustee FBO Xxx X. Xxxx - XXX 6 $300,000 2,400 $300,000
Xxxxxx Xxxxxx 7 $350,000 2,800 $350,000
Xxxxxx Xxxxxx 1 $50,000 400 $50,000
Xxxxxx X. Xxxxxx 2 $100,000 800 $100,000
Xxxxx Grandchildren Trust, Xxxxxxx Xxxxx, Trustee 2 $100,000 800 $100,000
Guy E. and Xxxxxx X. Xxxxxx 1 $50,000 400 $50,000
Xxx X. Xxxxx 1/2 $25,000 200 $25,000
Xxxxx X. Xxxxxxx 2 $100,000 800 $100,000
Xxxxx and Xxxxxxxx Xxxxxx 1/2 $25,000 200 $25,000
Xxxxx X. and Xxxxx X. Xxxxxxxx 1 $50,000 400 $50,000
Xxx Xxxxxxxxxx 1/2 $25,000 200 $25,000
JCS Systems, Inc. Profit Sharing Plan, Xxxxx X. Xxxxxxx
and Xxxxxxx Xxxxxxx, TTEE 1 $50,000 400 $50,000
Xxxxxx-Xxxxx Xxxxxx 2 $100,000 800 $100,000
Xxxxxxxx X. Xxxxxx 1 $50,000 400 $50,000
Xxxx Xxxxx and Xxxxx Xxxxx 5 $250,000 2,000 $250,000
Xxxx X. Xxxxx 4 $200,000 1,600 $200,000
Xxxx X. Xxxxx 4 $200,000 1,600 $200,000
Xxxx X. Xxxx 10 $500,000 4,000 $500,000
Xxxx X. Xxxxxx 1 $50,000 400 $50,000
Xxxxxxxx Xxxxx 2 $100,000 800 $100,000
Xxxxxx X. Xxxxxxx and Xxxx Xxxxx 1 $50,000 400 $50,000
Xxxxxx X. Xxxxx, Xx. 2 $100,000 800 $100,000
Kankere T. Mahesh 1 $50,000 400 $50,000
Xxxxxxxx Xxxxx 1 $50,000 400 $50,000
Xxxxxx X. Xxxxxxxxx 4 $200,000 1,600 $200,000
XxXxx Xxxxxxxx 10 $500,000 4,000 $500,000
Xxxxxx Xxxxx, Money Purchse Pension Plan, Xxxxxx X. Xxxxx
and Jidth X. Xxxxx, Trustees 2 $100,000 800 $100,000
Lexington Medical Associates, Inc. MPPP/ PSRP Transfer
accts., Xxxxxxx Xxxxxxx, Trustee 5 $250,000 2,000 $250,000
Xxxxx Xxxxxxxx 1/2 $25,000 200 $25,000
Xxxx X. Xxxxx 2001 Revocable Trust U/A DTD 1/30/01, Xxxx
X. Xxxxx, Trustee 2 $100,000 800 $100,000
Xxxxxxxx Xxxxxxx 1 $50,000 400 $50,000
Xxxxxx Anesthesiology, PSRP 4 $200,000 1,600 $200,000
Xxxxxxxx X. Xxxxxx 2 $100,000 800 $100,000
Xxxxxxxx Xxxxx 6 $300,000 2,400 $300,000
Xxxxx Xxxx 2 $100,000 800 $100,000
Xxxxx Xxxxxxxx XxXxxxxx 2 $100,000 800 $100,000
Xxxx and Xxxxxx Parent 4 $200,000 1,600 $200,000
Xxxx Xxxxxxxxxx 1 $50,000 400 $50,000
Xxxx Xxxxxx 1 $50,000 400 $50,000
Xxxx Xxxxx 1 $50,000 400 $50,000
Xxxxxxxx Living Trust UTA dated 03/11/99, Xxxxxxx X.
Xxxxxxxx and Xxxxxxx Xxxxxxxx, Trustees 4 $200,000 1,600 $200,000
Xxxxxxx X. Xxxxxxx 1 $50,000 400 $50,000
Xxxxxxx X. Xxxxxxxx and Xxxxx X. Xxxxxxx 2 $100,000 800 $100,000
Xxxxxxx Xxxxxxxx 1 $50,000 400 $50,000
Xxxxxxx Xxxxxx 1 $50,000 400 $50,000
Xxxx X. Xxxx 3 $150,000 1,200 $150,000
Xxxxxxx X. Xxxxxx, Esq. Profit Sharing Plan U/A
1/15/85, Xxxxxxxx Xxxxxx, Trustee 1 $50,000 400 $50,000
Xxxxxxx X. Xxxxxxx, Productions, Money Purchase Pension
Xxxxxxx Xxxxxxx, Trustee 1 $50,000 400 $50,000
Xxxxxx Xxxxxxxx 8 $400,000 3,200 $400,000
Xxxxxxxx Xxxxxxx 1/2 $25,000 200 $25,000
Xxxxxxx and Xxxxx X. Xxxxxxx 1 $50,000 400 $50,000
Xxxx X. Van Wallegham 1 $50,000 400 $50,000
Xxxxx X. Xxxxx 10 $500,000 4,000 $500,000
Xxxxx X. Xxxxxx 2 $100,000 800 $100,000
Xxxxx Xxxxxxx 7 $350,000 2,800 $350,000
Xxxxxxx X. Page, PSRP 2 $100,000 800 $100,000
Retirement Accounts, Inc., Trustee FBO Xxxxx X. Xxxxxxxx
XXX 1 $50,000 400 $50,000
Retirement Accounts, Inc., Trustee FBO Xxxxxx X. Xxxxxx
XXX 1 $50,000 400 $50,000
Retirement Accounts, Inc., Trustee FBO Xxxxx X. Xxxxxx
XXX 1 $50,000 400 $50,000
Retirement Accounts, Inc., Trustee FBO Xxxxx X. Xxxx XXX 2 $100,000 800 $100,000
Retirement Accounts, Inc., Trustee FBO Xxxxxx Xxxxx XXX 1 $50,000 400 $50,000
------------ ------------
Retirement Accounts, Inc., Trustee FBO Xxxxxxx XxXxx
XXX 1 $50,000 400 $50,000
Retirement Accounts, Inc., Trustee FBO Xxxx X. Xxxxx XXX 2 $100,000 800 $100,000
Retirement Accounts, Inc., Trustee FBO Xxxxxxx Xxxxxxx
XXX 1 $50,000 400 $50,000
Retirement Accounts, Inc., Trustee FBO Xxxxx X. Xxxxx XXX 4 $200,000 1,600 $200,000
Retirement Accounts, Inc., Trustee FBO Xxxxx X. Xxxx XXX 1 $50,000 400 $50,000
Retirement Accounts, Inc., Trustee FBO Xxxxxxx Xxxxxxxx
XXX 1 $50,000 400 $50,000
Retirement Accounts, Inc., Trustee FBO Xxxxxx Xxxxxxx
XXX 1 $50,000 400 $50,000
Retirement Accounts, Inc., Trustee FBO Xxxxxxx X. Xxxx XXX 4 $200,000 1,600 $200,000
Retirement Accounts, Inc., Trustee Inc. FBO Xxxxxxx X.
Xxxxxxx XXX 1 $50,000 400 $50,000
Retirement Accounts, Inc., Trustee Inc. FBO Xxxxxx XxXxx 1 $50,000 400 $50,000
Retirement Accounts, Inc., Trustee Inc. FBO Xxxxx
Xxxxxxxxxx 1 $50,000 400 $50,000
Retirement Accounts, Inc., Trustee Inc. FBO Xxxxxxx
XxXxxxxxx 1 $50,000 400 $50,000
Retirement Accounts, Inc., Trustee Inc., FBO Xxxxx X.
Xxxxxxxxx XXX 4 $200,000 1600 $200,000
Xxxxxxx and Xxxxxx Xxxxxxxx 1 $50,000 400 $50,000
Xxxxxxx and Xxxxxxxx Xxxxxxx 2 $100,000 800 $100,000
Xxxxxx and Xxxxxxxxxxx Xxxxxxx 1/2 $25,000 200 $25,000
Xxxxxx X. Xxxxx 1 $50,000 400 $50,000
Xxxxxx X. Xxxxxxx, Profit Sharing Trust, Xxxxxx X. Xxxxxxx,
Trustee 1/2 $25,000 200 $25,000
Xxxxxx Xxxx 1 $50,000 400 $50,000
Xxxxxx X. Xxxxxxxxx 1 $50,000 400 $50,000
Rolf and Xxxxxx Xxxxxxxx 1/2 $25,000 200 $25,000
Xxxxxxxxx Family Ventures, LLC 23 $1,150,000 9,200 $1,150,000
Xxx X. Xxxx Revocable Trust, DTD 08/08/98, Xxx X. Xxxx
Trustee 3 $150,000 1,200 $150,000
Xxxxxxx Xxxxx Xxxxxx XXX Rollover Custodian FBO
Xxxxxxx Xxxxxxx XXX 1 $50,000 400 $50,000
Xxxxxx X. Xxxxxxxx Self-Employed Retirement Plan,
Xxxxxx Xxxxxxxx, Trustee 1 $50,000 400 $50,000
Xxxx X. Xxxxxxx 2002 Trust, Xxxx Xxxxxxxxx, Trustee 1 $50,000 400 $50,000
Xxxx Xxxxxxx 1 $50,000 400 $50,000
Xxxxxx Xxxxxx 2 $100,000 800 $100,000
Xxxxxxx X. Xxxxxxxxxx, Profit Sharing Retirement Plan,
Xxxxxxx X. Xxxxxxxxxx, Trustee 2 $100,000 800 $100,000
Xxxxxx Xxxxxxx, Money Purchase Pension Plan, Xxxxxx
Xxxxxxx, Trustee 2 $100,000 800 $100,000
Xxxxxx X. Xxxxxxxx 2 $100,000 800 $100,000
Xxx Xxxx Xxxxx 2 $100,000 800 $100,000
Xxxxx Xxx Xxxx 1998 Revocable Trust DTD 04/24/98,
Xxxxx Xxx Xxxx, Trustee 2 $100,000 800 $100,000
Xxxxxxx Eye Associates PC, PSRP, Xxxxxx Xxxxxxx, TTEE 5 $250,000 2,000 $250,000
The Cardiovascular Specialists, LCC MPPP FBO Xxxxx
Xxxxxx, Xxxxxx Xxxxxx Trustee 1 $50,000 400 $50,000
The Cardiovascular Specialists, LLC MPPP FBO Xxxxxx
Xxxxxx, Xxxxxx Xxxxxx Trustee 1 $50,000 400 $50,000
Xxxxxx X. Xxxx 3 $150,000 1,200 $150,000
Xxxxxx Xxxxxxx and Xxxx Xxxxxxx 1 $50,000 400 $50,000
US Boston Corp. PSRP U/A DTD 10/1/84, Xxxx Xxxxxxxxx,
Trustee A/C Xxxx Xxxxxxxxx 4 $200,000 1,600 $200,000
Xxxx X.X.Xxxxxxx 4 $200,000 1,600 $200,000
W. Xxxxxx Xxxxxx 2 $100,000 800 $100,000
Xxxxxx Xxxxxxx, MPPP 1 $50,000 400 $50,000
Xxxxxxx X. Xxxxxxx Revocable 1996 Revocable Trust U/A/D
03/26/96, Xxxxxxx X. Xxxxxxx Trustee 20 $1,000,000 8,000 $1,000,000
Xxxxxxx Xxxxxxxxxx, III, Money Purchase Pension Plan,
Xxxxxxx Xxxxxxxxxx, III, Trustee 2 $100,000 800 $100,000
20,000,000
