EXHIBIT 3.
AMENDED AND RESTATED
SECURITIES PURCHASE AGREEMENT
BY AND AMONG
ADUROMED CORPORATION,
GENERAL DEVICES, INC.,
AND
THE PURCHASERS NAMED IN EXHIBIT A-I
DATED AS OF JANUARY 23, 2006
AMENDED AND RESTATED SECURITIES PURCHASE AGREEMENT
This Amended and Restated Securities Purchase Agreement (the "Amended
and Restated Purchase Agreement"), dated as of January 23, 2006, is entered into
by and among Aduromed Corporation, a Delaware corporation ("Aduromed"), General
Devices, Inc., Delaware corporation ("GDI"), and the persons listed on Exhibit
A-I hereto (the "Purchasers").
RECITALS
WHEREAS, Aduromed and the Purchasers have heretofore entered into that
certain Securities Purchase Agreement, dated as of September 30, 2005 (the
"Original Purchase Agreement"), pursuant to which Aduromed (a) at the First
Closing, issued to the Purchasers (i) certain shares of its Series A Preferred
Stock, $.01 par value per share (the "Aduromed Series A Preferred"), and (ii)
certain warrants (the "First Closing Aduromed Warrants") to purchase shares of
Aduromed's Common Stock, $.01 par value per share (the "Aduromed Common Stock"),
and (ii) agreed to issue to the Purchasers, at the Second Closing (as
contemplated by the Original Purchase Agreement), certain shares of its Series B
Preferred Stock, $.01 par value per share (the "Aduromed Series B Preferred")
and certain warrants (the "Second Closing Aduromed Warrants") to purchase shares
of Aduromed's Common Stock, in each case, upon the satisfaction of certain
conditions to such issuance described therein;
WHEREAS, subsequent to the consummation of the First Closing but prior
to the consummation of the Second Closing (as contemplated by the Original
Purchase Agreement), Aduromed entered into that certain Amended and Restated
Agreement and Plan of Merger, dated as of January 23, 2006 (the "Merger
Agreement"), by and among Aduromed, GDI, GD MergerSub, Inc., a Delaware
corporation, and GD MergerSub II, Inc. ("MergerSub"), a Delaware corporation,
pursuant to MergerSub shall merge with and into Aduromed (the "Merger"), with
Aduromed as the surviving entity of the Merger (the "Surviving Entity", and
together with Aduromed, GDI and MergerSub, each a "Company" and collectively,
the "Companies");
WHEREAS, pursuant to the terms of the Merger Agreement, upon the
consummation of the Merger (i) each outstanding share of Aduromed's Common
Stock, $.01 par value per share (the "Aduromed Common Stock"), will be converted
into 1.795 shares of GDI's Common Stock, $.0001 par value per share (the "GDI
Common Stock"), (ii) each outstanding share of Aduromed Series A Preferred will
be converted into 1.795 shares of GDI's Series A Preferred Stock, $.0001 par
value per share (the "GDI Series A Preferred"), which shares of GDI Series A
Preferred shall have the designations and powers, preferences and relative
participating, optional or other special rights, and the qualifications,
limitations and restrictions thereof, as set forth in the Certificate of
Designation attached hereto as Exhibit K (the "GDI Series A Certificate of
Designations"), (iii) each outstanding First Closing Aduromed Warrant will be
converted in warrants (the "First Closing GDI Warrants") to purchase such number
of shares of GDI Common Stock equal to (A) 1.795, times, (B) the number of
shares of Aduromed Common Stock issuable upon exercise of the First Closing
Aduromed Warrants, and (iv) all outstanding shares of MergerSub's Common Stock,
$.01 par value per share (the "MergerSub Common Stock"), will be converted into
100 shares of Aduromed Common Stock such that the Surviving Entity will become a
wholly-owned subsidiary of GDI;
WHEREAS, as a result of the structure of the Merger, the parties
hereto have agreed to amend and restate the terms of the Original Purchase
Agreement to provide that (a) in lieu of the issuance by Aduromed to the
Purchasers of Aduromed Series B Preferred at the Second Closing (as contemplated
by the Original Purchase Agreement), GDI shall issue to the Purchasers at the
Second Closing (as contemplated herein), upon the terms and conditions set forth
herein, certain shares of GDI's Series B Preferred Stock, $.0001 par value per
share (the "GDI Series B Preferred"), which shares of GDI Series B Preferred
shall have the designations and powers, preferences and relative participating,
optional or other special rights, and the qualifications, limitations and
restrictions thereof, as set forth in the Certificate of Designation attached
hereto as Exhibit L (the "GDI Series B Certificate of Designations"), and (b) in
lieu of the issuance by Aduromed to the Purchasers of Second Closing Aduromed
Warrants at the Second Closing (as contemplated by the Original Purchase
Agreement), GDI shall issue to the Purchasers at the Second Closing (as
contemplated herein), warrants (the "Second Closing GDI Warrants") to purchase
certain shares of GDI Common Stock, in each case, upon the terms and conditions
set forth herein;
NOW, THEREFORE, in consideration of the foregoing, the agreements set
forth below, and other good and valuable consideration, the receipt of which is
acknowledged, the parties hereto hereby agree that the Original Purchase
Agreement be, and hereby is, amended and restated in its entirety as herein set
forth:
1. Authorization, Sale and Exchange.
1.1 Authorization.
(a) Authorization of Aduromed Series A Preferred. As of the date
of the Original Purchase Agreement, Aduromed has duly authorized the
sale and issuance, pursuant to the terms of the Original Purchase
Agreement, of 3,489,527 shares of Aduromed Series A Preferred, having
the designations and powers, preferences and relative participating,
optional or other special rights, and the qualifications, limitations
and restrictions thereof, as set forth in the Certificate of
Designation attached hereto as Exhibit B (the "Aduromed Series A
Certificate of Designations").
(b) Authorization of First Closing Aduromed Warrants. As of the
date of the Original Purchase Agreement, Aduromed has duly authorized
the sale and delivery, pursuant to the terms of the Original Purchase
Agreement, of First Closing Aduromed Warrants to purchase 3,489,527
shares (the "First Closing Aduromed Warrant Shares") of Aduromed
Common Stock, each substantially in the form attached hereto as
Exhibit C.
(c) Authorization of GDI Series A Preferred. As of the date of
this Amended and Restated Purchase Agreement, GDI has duly authorized
the issuance to the Purchasers, pursuant to the terms of the Merger
Agreement, of 6,263,702 shares of GDI Series A Preferred, having the
designations and powers, preferences and relative participating,
optional or other special rights, and the qualifications, limitations
and restrictions thereof, as set forth in the GDI Series A Certificate
of Designations.
2
(d) Authorization of First Closing GDI Warrants. As of the date
of this Amended and Restated Purchase Agreement, GDI has duly
authorized the issuance and delivery to the Purchasers, pursuant to
the terms of the Merger Agreement, of First Closing GDI Warrants to
purchase 6,263,700.97 shares of GDI Common Stock (the "First Closing
GDI Warrant Shares"), each substantially in the form attached hereto
as Exhibit M.
(e) Authorization of GDI Series B Preferred. GDI will take all
action necessary to authorize, prior to the occurrence of the Second
Closing, the sale and issuance, pursuant to the terms of this Amended
and Restated Purchase Agreement, of 15,780,160 shares of GDI Series B
Preferred Stock, having the designations and powers, preferences and
relative participating, optional or other special rights, and the
qualifications, limitations and restrictions thereof, as set forth in
the GDI Series B Certificate of Designation.
(f) Authorization of Second Closing GDI Warrants. GDI will take
all action necessary to authorize, prior to the occurrence of the
Second Closing, the sale and delivery, pursuant to the terms of this
Amended and Restated Purchase Agreement, of warrants to purchase
15,780,160 shares (the "Second Closing GDI Warrant Shares" and
together with the First Closing GDI Warrant Shares, the "GDI Warrant
Shares") of GDI Common Stock, each substantially in the form attached
hereto as Exhibit E (the "Second Closing GDI Warrants" and together
with the First Closing GDI Warrants, the "GDI Warrants").
1.2 Sale of Preferred Stock and Warrants.
(a) First Closing. Subject to the terms and conditions of the
Original Purchase Agreement, at the First Closing (as defined in
Section 2) Aduromed will sell and deliver to each of the Purchasers,
and each Purchaser will severally (and not jointly) purchase:
(i) such number of shares of Aduromed Series A Preferred set
forth opposite such Purchaser's name under the heading "Aduromed
Series A Preferred Shares" on Exhibit A-I, and
(ii) a First Closing Aduromed Warrant to initially purchase
such number of First Closing Aduromed Warrant Shares set forth
opposite such Purchaser's name under the heading "First Closing
Aduromed Warrants" on Exhibit A-I, which shall be equal to the
number of shares of Aduromed Series A Preferred being purchased
by such Purchaser at the First Closing,
for an aggregate purchase price set forth opposite such Purchaser's
name under the heading "First Closing Purchase Price" on Exhibit A-I
(such Purchaser's "First Closing Purchase Price"), which aggregate
First Closing Purchase Price for such Purchaser shall equal the
product of (x) $0.57, times (y) the number of shares of Aduromed
Series A Preferred being purchased by such Purchaser at the First
Closing.
3
(b) Merger Closing. Subject to the terms and conditions of the
Merger Agreement, at the closing of the Merger, GDI will issue and
deliver to each of the Purchasers, in accordance with the Merger
Agreement:
(i) such number of shares of GDI Series A Preferred set
forth opposite such Purchaser's name under the heading "GDI
Series A Preferred Shares" on Exhibit A-I, and
(ii) a First Closing GDI Warrant to initially purchase such
number of First Closing GDI Warrant Shares set forth opposite
such Purchaser's name under the heading "First Closing GDI
Warrants" on Exhibit A-I, which shall be equal to the number of
shares of GDI Series A Preferred being issued to such Purchaser
in connection with the Merger.
(c) Second Closing. Subject to the terms and conditions of this
Amended and Restated Purchase Agreement, at the Second Closing (as
defined in Section 2), if such Second Closing shall occur in
accordance with this Amended and Restated Purchase Agreement, GDI will
sell and deliver to each of the Purchasers, and each Purchaser will
severally (and not jointly) purchase:
(i) such number of shares of GDI Series B Preferred set
forth opposite such Purchaser's name under the heading "GDI
Series B Preferred Shares" on Exhibit A-II, and
(ii) a Second Closing GDI Warrant to initially purchase such
number of Second Closing GDI Warrant Shares set forth opposite
such Purchaser's name under the heading "Second Closing GDI
Warrants" on Exhibit A-II, which shall be equal to the number of
shares of GDI Series B Preferred being purchased by such
Purchaser at the Second Closing,
for an aggregate purchase price set forth opposite such Purchaser's
name under the heading "Second Closing Purchase Price" on Exhibit A-II
(such Purchaser's "Second Closing Purchase Price").
1.3 Use of Proceeds. Aduromed, GDI and the Surviving Entity will use
the proceeds from the sale of the Aduromed Series A Preferred, the First Closing
Aduromed Warrants, the GDI Series B Preferred and the Second Closing GDI
Warrants sold under the Original Purchaser Agreement and this Amended and
Restated Purchase Agreement for the purposes set forth on Schedule 1.3 attached
hereto.
1.4 Separate Agreements. Aduromed's and GDI's agreement with each of
the Purchasers is a separate agreement, and the sale of the Aduromed Series A
Preferred, the First Closing Aduromed Warrants, the GDI Series B Preferred and
the Second Closing GDI Warrants to each of the Purchasers is a separate sale.
2. The Closings.
4
2.1 The First Closing. The first closing (the "First Closing") of the
sale and purchase of Aduromed Series A Preferred and First Closing Aduromed
Warrants under the Original Purchase Agreement shall take place at the offices
of Mayer, Brown, Xxxx & Maw LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at
such other place as is mutually agreeable to Aduromed and the Purchasers. At the
First Closing, Aduromed shall deliver to each Purchaser (a) certificates
representing shares of Aduromed Series A Preferred in an amount calculated in
accordance with Section 1.2(a) and (b) First Closing Aduromed Warrants to
purchase First Closing Aduromed Warrant Shares in an amount calculated in
accordance with Section 1.2(a), in each case, registered in the name of each
such Purchaser, against payment to Aduromed of the First Closing Purchase Price
therefor, by wire transfer, Federal Reserve Bank Check, or other method
acceptable to Aduromed. The First Closing occurred on September 1, 2005 (the
"First Closing Date").
2.2 The Merger Closing. At the closing of the Merger in accordance
with the Merger Agreement, GDI shall deliver to each Purchaser (a) certificates
representing shares of GDI Series A Preferred to be issued to the Purchasers
pursuant to the Merger Agreement, which shall be in an amount calculated in
accordance with Section 5 of the Merger Agreement and Section 1.2(b) hereof and
(b) First Closing GDI Warrants to purchase First Closing GDI Warrant Shares in
an amount calculated in accordance with Section 8 of the Merger Agreement and
Section 1.2(b) hereof, in each case, registered in the name of each such
Purchaser.
2.3 The Second Closing. The second closing (the "Second Closing" and
together with the First Closing, the "Closings"), if any, of the sale and
purchase of GDI Series B Preferred and Second Closing GDI Warrants under Amended
and Restated Purchase Agreement shall take place at the offices of Mayer, Brown,
Xxxx & Maw LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place
as is mutually agreeable to GDI, Aduromed and the Purchasers. At the Second
Closing, GDI shall deliver to the Purchasers (a) certificates representing
shares of GDI Series B Preferred in an amount calculated in accordance with
Section 1.2(c) and (b) Second Closing GDI Warrants to purchase Second Closing
GDI Warrant Shares in an amount calculated in accordance with Section 1.2(c), in
each case, registered in the name of such Purchasers, against payment to GDI of
the Second Closing Purchase Price therefor, by wire transfer, Federal Reserve
Bank Check, or other method acceptable to GDI. Subject to the satisfaction or
waiver of each of the conditions set forth in Section 6.2, the Second Closing
shall occur immediately following the closing of the Merger in accordance with
the Merger Agreement or on such other date as is mutually agreeable to GDI,
Aduromed and the Purchasers (the "Second Closing Date" and together with the
First Closing Date, the "Closing Dates").
3. First Closing Representations of Aduromed. For the purposes of this
Amended and Restated Purchase Agreement, the phrase "to Aduromed's knowledge"
shall include facts, events or circumstances that are actually known by, or
should have reasonably been known (after reasonable investigation) by, the Chief
Executive Officer or Chief Financial Officer of Aduromed. Except as disclosed by
Aduromed in the First Closing Disclosure Schedule attached as Exhibit F hereto
(the "First Closing Disclosure Schedule"), which First Closing Disclosure
Schedule makes explicit reference to the particular representation or warranty
as to which exception is taken (provided, that matters disclosed in any
particular part of the First Disclosure Schedule shall be deemed to have been
disclosed in the other parts of the First Disclosure Schedule regardless of
whether a specific cross reference is made provided the relevance of the
5
disclosed information with respect to such other parts would be reasonably
apparent, to a person experienced in corporate dealings of the nature
encompassed by the Original Purchase Agreement and the First Closing Related
Agreements, from the information disclosed), which exceptions shall be deemed to
be part of the representations and warranties made hereunder, Aduromed hereby
represents and warrants, as of the date of the Original Purchase Agreement and
as of the First Closing Date to the Purchasers as follows:
3.1 Organization and Corporate Power. Aduromed and each of its
subsidiaries is duly organized, validly existing and in good standing under the
laws of its respective jurisdiction of organization and has full power and
authority to own its properties and to conduct its business as presently
conducted and as proposed to be conducted by it and to enter into and perform
the Original Purchase Agreement and the First Closing Related Agreements (as
defined in Section 3.6 below), to carry out the transactions contemplated by the
Original Purchase Agreement and the First Closing Related Agreements and to (a)
issue, sell and deliver the shares of Aduromed Series A Preferred to be sold and
delivered to the Purchasers at the First Closing, (b) sell and deliver the First
Closing Aduromed Warrants to be sold and delivered to the Purchasers at the
First Closing, (c) issue, sell and deliver the First Closing Aduromed Warrant
Shares upon exercise of the First Closing Aduromed Warrants and (d) issue, sell
and deliver the shares of Aduromed Common Stock issuable upon conversion of the
shares of Aduromed Series A Preferred (the "Aduromed Conversion Shares").
Aduromed and each of its subsidiaries is duly qualified to do business as a
foreign corporation in every jurisdiction in which the failure to so qualify
would reasonably be expected to have a First Closing Material Adverse Effect.
For purposes of this Amended and Restated Purchase Agreement, the term "First
Closing Material Adverse Effect" shall mean (i) a material adverse effect on the
results of operations, business, assets, liabilities or condition (financial or
otherwise) of Aduromed and its subsidiaries, taken as a whole, or (ii) any
material limitation on the ability of Aduromed to perform its obligations under,
or the legality, validity or enforceability of, the Original Purchase Agreement
or the First Closing Related Agreements. Aduromed has furnished to the
Purchasers true and complete copies of its certificate of incorporation and
by-laws, each as amended to date and presently in effect.
3.2 Capitalization.
(a) The authorized capital stock of Aduromed (immediately prior
to the First Closing) consists of (i) 50,000,000 shares of Aduromed
Common Stock, of which 10,585,600 shares are issued and outstanding,
and (ii) 20,000,000 shares of Preferred Stock, of which 3,489,527
shares have been designated as Series A Preferred Stock, of which no
shares are issued and outstanding.
(b) All of the issued and outstanding shares of Aduromed's
capital stock have been duly authorized and validly issued and are
fully paid and nonassessable. Except as set forth in the First Closing
Disclosure Schedule or as provided in the Original Purchase Agreement
or in the First Closing Related Agreements, as of the date of the
Original Purchase Agreement, (i) no subscription, warrant, option,
convertible security or other right (contingent or otherwise) to
purchase or acquire any shares of capital stock of Aduromed is
authorized or outstanding, (ii) Aduromed has no obligation (contingent
or otherwise) to issue any subscription, warrant, option, convertible
security or other such
6
right or to issue or distribute to holders of any shares of its
capital stock, any evidences of indebtedness or assets of Aduromed,
and (iii) Aduromed has no obligation (contingent or otherwise) to
purchase, redeem or otherwise acquire any shares of its capital stock
or any interest therein or to pay any dividend or make any other
distribution in respect thereof. All of the issued and outstanding
shares of capital stock of Aduromed have been offered, issued and sold
by Aduromed in compliance with applicable federal and state securities
laws.
3.3 Subsidiaries, Etc. Except as set forth in the First Closing
Disclosure Schedule, Aduromed has no subsidiaries and does not own or control,
directly or indirectly, any shares of capital stock of any other corporation or
limited liability company or any interest in any partnership, joint venture or
other non-corporate business enterprise.
3.4 Agreements. Set forth on Exhibit F-1 hereof is a true and complete
list of the stockholders of Aduromed, showing the number of shares of Aduromed
or other securities of Aduromed held by each stockholder as of the date of the
Original Purchase Agreement. Except as contemplated under the Original Purchase
Agreement or under the First Closing Related Agreements, there are no
agreements, written or oral, between Aduromed and any holder of its capital
stock, or, to Aduromed's knowledge, among any holders of its capital stock,
relating to the acquisition (including without limitation rights of first
refusal or preemptive rights), disposition, registration under the Securities
Act of 1933, as amended (the "Securities Act"), or voting of the capital stock
of Aduromed.
3.5 Sale, Issuance and Delivery of Aduromed Series A Preferred and
First Closing Aduromed Warrants.
(a) The issuance, sale and delivery of the Aduromed Series A
Preferred at the First Closing, and the issuance and delivery of the
Aduromed Conversion Shares issuable upon conversion of the Aduromed
Series A Preferred, has been duly authorized by all necessary
corporate action on the part of Aduromed, and all such shares have
been duly reserved for issuance. The Aduromed Series A Preferred when
so issued and delivered at the First Closing against delivery by the
Purchasers to Aduromed of the First Closing Purchase Price, and the
Aduromed Conversion Shares issuable upon conversion of the Aduromed
Series A Preferred, when issued upon such conversion, will be duly and
validly issued, fully paid and non-assessable.
(b) The sale and delivery of the First Closing Aduromed Warrants
at the First Closing have been duly authorized by all necessary
corporate action on the part of Aduromed. The First Closing Aduromed
Warrants, when so sold and delivered against payment therefor in
accordance with the provisions of the Original Purchase Agreement,
will constitute valid and binding obligations of Aduromed enforceable
in accordance with their terms, subject as to enforcement of remedies
to applicable bankruptcy, insolvency, reorganization or similar laws
affecting generally the enforcement of creditors' rights and subject
to a court's discretionary authority with respect to the granting of a
decree ordering specific performance or other equitable remedies.
7
(c) The sale and delivery of the First Closing Aduromed Warrant
Shares issuable upon exercise of the First Closing Aduromed Warrants
have been duly authorized by all necessary corporate action on the
part of Aduromed, and all such shares have been duly reserved for
issuance. The First Closing Aduromed Warrant Shares, when so issued,
sold and delivered against payment therefor in accordance with the
provisions of the First Closing Aduromed Warrants, will be duly and
validly issued, fully paid and non-assessable.
3.6 Authority for Agreement; Effect of Transactions. The execution,
delivery and performance by Aduromed of the Original Purchase Agreement, the
Aduromed Series A Certificate of Designations, the First Closing Aduromed
Warrants, the Registration Rights Agreement (as defined in Section 6.1(f)
hereof) and the Stockholder Agreements (as defined in Section 6.1(g) hereof)
(the Aduromed Series A Certificate of Designations, the First Closing Aduromed
Warrants, the Registration Rights Agreement and the Stockholders Agreement are
sometimes hereinafter referred to collectively as the "First Closing Related
Agreements") and the consummation by Aduromed of the transactions contemplated
by the Original Purchase Agreement and the First Closing Related Agreements,
have been duly authorized by all necessary corporate action. The Original
Purchase Agreement and the First Closing Related Agreements have been duly
executed and delivered by Aduromed and constitute valid and binding obligations
of Aduromed enforceable in accordance with their respective terms, subject as to
enforcement of remedies to applicable bankruptcy, insolvency, reorganization or
similar laws affecting generally the enforcement of creditors' rights and
subject to a court's discretionary authority with respect to the granting of a
decree ordering specific performance or other equitable remedies. The execution
of and performance of the transactions contemplated by the Original Purchase
Agreement and the First Closing Related Agreements and compliance with their
provisions by Aduromed will not (a) violate any provision of law or regulation
applicable to Aduromed and its subsidiaries or any of their respective assets,
(b) result in the creation of any lien upon any of the property of Aduromed or
any of its subsidiaries, or (c) conflict with or result in any breach of any of
the terms, conditions or provisions of, or constitute a default under, or
require a consent or waiver under, Aduromed's certificate of incorporation or
by-laws (each as amended to date) or any indenture, lease, agreement or other
instrument to which Aduromed or any of its subsidiaries is a party or by which
it or any of their respective properties are bound, or any decree, judgment,
license, permit, order, statute, rule or regulation applicable to Aduromed or
any of its subsidiaries.
3.7 Litigation. There is no action, suit or proceeding, or
governmental inquiry or investigation, pending, or, to Aduromed's knowledge, any
reasonable basis therefor or threat thereof, against Aduromed or any of its
subsidiaries which questions the validity of the Original Purchase Agreement or
the First Closing Related Agreements or the right of Aduromed to enter into any
of them, or which would reasonably be expected to result, either individually or
in the aggregate, in a First Closing Material Adverse Effect.
3.8 Property and Assets. Except as set forth in the First Closing
Disclosure Schedule, Aduromed and each of its subsidiaries has good and
marketable title to all of its material properties and assets, and none of such
properties or assets is subject to any mortgage, pledge, lien, security
interest, lease, charge or encumbrance.
8
3.9 Leasehold Interests. Each lease or agreement to which Aduromed or
any of its subsidiaries is a party under which it is a lessee of any property,
real or personal, is a valid and subsisting agreement, duly authorized and
entered into, without any default of Aduromed or any of its subsidiaries
thereunder and, to Aduromed's knowledge, without any default thereunder of any
other party thereto. No event has occurred and is continuing which, with due
notice or lapse of time or both, would constitute a default or event of default
by Aduromed or any of its subsidiaries under such lease or agreement or, to
Aduromed's knowledge, by any other party thereto. Aduromed's and its
subsidiaries' possession of such property has not been disturbed and, to
Aduromed's knowledge after due inquiry, no claim has been asserted against
Aduromed or any of its subsidiaries adverse to its rights in such leasehold
interests.
3.10 Financial Statements. Aduromed has furnished to the Purchasers
(i) the audited balance sheet of Aduromed as of December 31, 2003, and the
related statements of operations, stockholders' equity and cash flows for the
twelve month period then ended, and (ii) the audited balance sheet of Aduromed
as of December 31, 2004, and the related statements of operations, stockholders'
equity and cash flows for the twelve month period then ended (collectively, the
"Aduromed Financial Statements"). The Aduromed Financial Statements were
prepared in accordance with generally accepted accounting principles
consistently applied during the period covered thereby, and fairly presents the
financial position of Aduromed and its consolidated subsidiaries on the date of
such statement, except that the Aduromed Financial Statements may not contain
all footnotes required by generally accepted accounting principles.
3.11 Absence of Undisclosed Liabilities. Except as and to the extent
expressly disclosed in the balance sheet contained in the Aduromed Financial
Statements or in the First Closing Disclosure Schedule, or for liabilities that
may have arisen in the ordinary course of business consistent with past
practices and that individually or in the aggregate do not have and would not
reasonably be expected to have a First Closing Material Adverse Effect, neither
Aduromed nor any of its subsidiaries has any liabilities of a type required
under generally accepted accounting principles to be disclosed therein.
3.12 Absence of Certain Developments. Since December 31, 2004, there
has been (a) to Aduromed's knowledge, no event which would constitute or
reasonably be expected to have a First Closing Material Adverse Effect, (b) no
declaration, setting aside or payment of any dividend or other distribution with
respect to, or any direct or indirect redemption or acquisition of, any of the
capital stock or other equity interest of Aduromed, (c) no waiver of any
material right of Aduromed or any of its subsidiaries or cancellation of any
material debt or claim held by Aduromed or any of its subsidiaries, (d) no loan
by Aduromed or any of its subsidiaries to any officer, director, employee or
stockholder of Aduromed or any of its subsidiaries, or any agreement or
commitment therefor, (e) no increase, direct or indirect, in the compensation
paid or payable to any officer, director, employee, consultant or agent of
Aduromed or any of its subsidiaries, other than reasonable and customary
increases in compensation consistent with Aduromed's past practices, (f) no
material loss, destruction, forfeiture of or damage to any property of Aduromed
or any of its subsidiaries whether or not insured, (g) no labor disputes
involving Aduromed or any of its subsidiaries, and (h) no acquisition,
disposition or lease of any material assets (or any contract or arrangement
therefor).
9
3.13 Tax Matters. Aduromed and each of its subsidiaries have timely
filed all foreign, federal, state and local income, excise or franchise tax
returns, real estate and personal property tax returns, sales and use tax
returns and other tax returns required to be filed by it and has paid all taxes
owed by it, except taxes which have not yet accrued or otherwise become due, or
for which adequate provision has, to the extent required by generally accepted
accounting principles, been made in the Aduromed Financial Statements. The
provision for taxes in the Aduromed Financial Statements is sufficient as of its
date for the payment of all accrued and unpaid federal, state, county and local
taxes of any nature of Aduromed and each of its subsidiaries, and any applicable
taxes owing to any foreign jurisdiction, whether or not assessed or disputed.
All taxes and other assessments and levies which Aduromed or any of its
subsidiaries is required to withhold or collect have been withheld and collected
and have been paid over to the proper governmental authorities. With regard to
the income tax returns of Aduromed and its subsidiaries, neither Aduromed nor
any of its subsidiaries has received notice of any audit or of any proposed
deficiencies from any taxing authority, and no controversy with respect to taxes
of Aduromed or any of its subsidiaries of any type is pending or, to Aduromed's
knowledge, threatened. There are in effect no waivers of applicable statutes of
limitations with respect to any taxes owed by Aduromed or any of its
subsidiaries for any year.
3.14 Contracts and Commitments. The First Closing Disclosure Schedule
contains a complete and accurate list, and Aduromed has delivered to the
Purchasers true and complete copies, of all written or oral agreements,
instruments, undertakings, commitments or restrictions (collectively, "Aduromed
Contracts") (a) under which Aduromed or any of its subsidiaries has any rights
or any obligation or liability, or (b) by which Aduromed or any of its
subsidiaries, or any of their respective assets, are bound. Aduromed and each of
its subsidiaries and, to Aduromed's knowledge, each other party thereto have in
all material respects performed all the obligations required to be performed by
them to date under the Aduromed Contracts (or each non-performing party has
received a valid, enforceable and irrevocable written waiver with respect to its
non-performance), have received no notice of default and are not in default
(with due notice or lapse of time or both) under any Aduromed Contract.
3.15 Loans and Advances. Neither Aduromed nor any of its subsidiaries
has any outstanding loans or advances to any person and is not obligated to make
any such loans or advances, except, in each case, for advances to employees of
Aduromed in respect of reimbursable business expenses anticipated to be incurred
by them in connection with their performance of services for Aduromed.
3.16 Assumptions, Guaranties, Etc. of Indebtedness of Other Persons.
Neither Aduromed nor any of its subsidiaries has assumed, guaranteed, endorsed
or otherwise become directly or contingently liable on any indebtedness of any
other person (including, without limitation, liability by way of agreement,
contingent or otherwise, to purchase, to provide funds for payment, to supply
funds to or otherwise invest in the debtor, or otherwise to assure the creditor
against loss), except for guaranties by endorsement of negotiable instruments
for deposit or collection in the ordinary course of business.
3.17 Transactions With Affiliates. Except as set forth in the First
Closing Disclosure Schedule, no director, officer, employee or stockholder of
Aduromed or any of its subsidiaries, or member of the family of any such person,
or any corporation, partnership, trust or other entity
10
in which any such person, or any member of the family of any such person, has a
substantial interest or is an officer, director, trustee, partner or holder of
more than 5% of the outstanding capital stock thereof, is a party to any
transaction with Aduromed or any of its subsidiaries, including any contract,
agreement or other arrangement providing for the employment of, furnishing of
services by, rental of real or personal property from or otherwise requiring
payments to any such person or firm, other than employment-at-will arrangements
in the ordinary course of business.
3.18 Proprietary Rights; Employee Restrictions. Set forth in the First
Closing Disclosure Schedule is a list and brief description of all patents,
copyrights, trademarks, trade names, service marks, and all applications for any
of the foregoing, logos, and other proprietary rights necessary for the conduct
of Aduromed's and its subsidiaries' business as presently conducted or
contemplated (collectively, "Aduromed Intellectual Property Rights"). Aduromed
owns or has the legal right to use all such Intellectual Property Rights and, to
Aduromed's knowledge, neither the present nor proposed business activities or
products of Aduromed or any of its subsidiaries infringe or misappropriate any
patents, copyrights, trademarks, trade names, service marks, logos or other
intellectual or tangible proprietary rights of others. Neither Aduromed nor any
of its subsidiaries has received any notice or other claim from any person
asserting that any of Aduromed's or any of its subsidiaries' present or proposed
activities infringe or misappropriate, or may infringe or misappropriate, any
intellectual property rights of any person. To Aduromed's knowledge, Aduromed
and its subsidiaries has the right to use, free and clear of claims or rights of
others, all trade secrets and know-how, including without limitation: customer
lists, manufacturing processes, hardware designs, programming processes,
software and other trade secrets or know-how required for or incident to its
products or its business as presently conducted or contemplated. Aduromed and
its subsidiaries have taken all steps reasonably required to establish and
preserve its ownership of all of the Aduromed Intellectual Property Rights,
including but not limited to requiring all employees and consultants to execute
a confidentiality and assignment of inventions agreement in favor of Aduromed
and its subsidiaries. Aduromed is not aware of any infringement or
misappropriation by others of any Aduromed Intellectual Property Rights of
Aduromed or any of its subsidiaries, or any violation of the confidentiality of
any of their respective proprietary information. Neither Aduromed nor any of its
subsidiaries is making unlawful use of any confidential information or trade
secrets of any past or present employees of Aduromed or any of its subsidiaries.
Neither Aduromed nor any of its subsidiaries has granted or assigned to any
other person or entity any right to manufacture, have manufactured, assemble or
sell the products or proposed products or to provide the services or proposed
services of Aduromed or any of its subsidiaries.
3.19 Proprietary Information of Third Parties. No third party has
claimed or, to Aduromed's knowledge, has reason to claim that any person
employed or engaged by Aduromed or any of its subsidiaries has (a) violated or
may be violating any of the terms or conditions of his employment,
non-competition or non-disclosure agreement with such third party, (b) disclosed
or may be disclosing or utilized or may be utilizing any trade secret or
proprietary information or documentation of such third party or (c) interfered
or may be interfering in the employment relationship between such third party
and any of its present or former employees. To Aduromed's knowledge, no person
employed by or affiliated with Aduromed or any of its subsidiaries has employed
or proposes to employ any trade secret or any information or documentation
proprietary to any former employer, and to Aduromed's knowledge, no person
11
employed by or affiliated with Aduromed or any of its subsidiaries has violated
any confidential relationship which such person may have had with any third
party, in connection with the development, manufacture or sale of any product or
proposed product or the development or sale of any service or proposed service
of Aduromed or any of its subsidiaries. To Aduromed's knowledge, neither the
execution or delivery of the Original Purchase Agreement or the First Closing
Related Agreements, the carrying on of the business of Aduromed and its
subsidiaries as officers, employees or agents by any officer, director or key
employee of Aduromed or any of its subsidiaries, nor the conduct or proposed
conduct of the business of Aduromed or any of its subsidiaries, will conflict
with or result in a breach of the terms, conditions or provisions of or
constitute a default under any Aduromed Contract.
3.20 Business; Compliance with Laws. Except for those which would not
reasonably be expected to have a First Closing Material Adverse Effect, Aduromed
and each of its subsidiaries has all necessary franchises, permits, licenses and
other rights and privileges necessary to permit it to own its property and to
conduct its business as is presently conducted. Neither Aduromed nor any of its
subsidiaries is in violation of any law, regulation, authorization or order
material to the ownership of its properties or the carrying on of its business
as presently conducted.
3.21 Books and Records. The copies of records of Aduromed, as
furnished to the Purchasers, contain complete and accurate copies of Aduromed's
certificate of incorporation and by-laws and complete and accurate records, in
all material respects, of all meetings and other corporate actions of its
stockholders and its Board of Directors and committees thereof. The stock ledger
of Aduromed is complete in all material respects and reflects all issuances,
transfers, repurchases and cancellations of shares of capital stock of Aduromed.
3.22 Environmental Compliance. Neither Aduromed nor any of its
subsidiaries (a) has ever violated, or is presently in noncompliance with, all
federal, state, and local environmental and health and safety laws, rules,
regulations, ordinances, guidelines, codes, orders, approvals and similar items
("Environmental Laws") applicable to its business and properties; (b) has
generated, manufactured, used, refined, transported, treated, stored, handled,
disposed of, transferred, produced, or processed any pollutant, toxic substance,
hazardous waste, hazardous substance, hazardous material, oil, or petroleum
product other than ordinary household cleaning and other similar products
("Hazardous Materials") as defined under any Environmental Law, or any solid
waste, and has any knowledge of the release or threat of release of any
Hazardous Materials from its products, properties or facilities except in
compliance with law; (c) has (i) entered into or been subject to any consent
decree, compliance order, or administrative order with respect to any
environmental or health and safety matter relating to its business or any of its
properties or facilities, (ii) received notice under the citizen suit provision
of any Environmental Law in connection with its business or any of its
properties or facilities, (iii) received any request for information, notice,
demand letter, administrative inquiry, or formal or informal complaint or claim
with respect to any environmental or health and safety matter relating to its
business or any of its properties or facilities, or (iv) been subject to or
threatened with any governmental or citizen enforcement action with respect to
any environmental or health and safety matter relating to its business or any of
its properties or facilities, and has any reason to believe that any matters
described in clauses (i) through (iv) above will be forthcoming. No lien has
been imposed on any of the properties or facilities of Aduromed or any of its
subsidiaries by any governmental
12
agency at the federal, state, or local level in connection with the presence of
any Hazardous Materials.
3.23 Brokerage. Except as set forth in the First Closing Disclosure
Schedule, there are no, and will be no, claims for and no person is entitled to
any brokerage commissions, finder's fees or similar compensation in connection
with the transactions contemplated by the Original Purchase Agreement from
Aduromed or any of its subsidiaries or based on any arrangement or agreement
made by or on behalf of Aduromed or any of its subsidiaries.
3.24 Employee Benefit Plans.
(a) Except as set forth in the First Closing Disclosure Schedule,
neither Aduromed nor any of its subsidiaries maintains or contributes
to any employee benefit plans. Aduromed and each of its subsidiaries
is and has been in material compliance with the provisions of all laws
or rules or regulations applicable to any employee benefit plan
maintained or contributed to by Aduromed or any of its subsidiaries
for the benefit of its employees and, to Aduromed's knowledge, there
are no claims (other than routine claims for benefits) pending or
threatened with respect to any of such employee benefit plans. Neither
Aduromed nor any of its subsidiaries maintains or contributes to, or
has ever maintained or contributed to, any qualified retirement plan
that is subject to the minimum funding requirements of Xxxxxxx 000 xx
xxx Xxxxxx Xxxxxx Internal Revenue Code of 1986, as amended. There are
no unfunded obligations of Aduromed or any of its subsidiaries under
any retirement, pension, profit-sharing or deferred compensation plan
or program. Neither Aduromed nor any of its subsidiaries is required
to make any payments or contributions to any employee benefit plan
pursuant to any collective bargaining agreement. Neither Aduromed nor
any of its subsidiaries has ever maintained or contributed to any
employee benefit plan providing or promising any health or other
non-pension benefits to terminated employees. For purposes of this
Section 3.24, the "Aduromed" includes all entities that have
controlled, have been under the control of, or have been under common
control with, Aduromed.
(b) Aduromed has made available to the Purchasers a description
of the compensation Aduromed and each of its subsidiaries is currently
paying, and has agreed to pay in the future, to each of its employees
and consultants, including without limitation, salaries, fees, bonuses
and benefits.
3.25 Employee Agreements. Each of the officers of Aduromed and each of
its subsidiaries, each key employee and each other employee now employed by
Aduromed or any of its subsidiaries who has access to confidential information
of Aduromed or of any of its subsidiaries has executed a Confidentiality,
Assignment of Inventions and Non-Competition Agreement in a form previously
disclosed to the Purchasers, and such agreements are in full force and effect.
No officer or key employee of Aduromed or any of its subsidiaries has advised
Aduromed or any of its subsidiaries (orally or in writing) that he or she
intends to terminate employment with Aduromed or any of its subsidiaries.
3.26 Employees. Aduromed and each of its subsidiaries has complied in
all material respects with all applicable laws relating to the employment of
labor, including provisions
13
relating to wages, laws, equal opportunity, collective bargaining and the
payment of social security and other taxes. None of the employees of Aduromed or
any of its subsidiaries is represented by any labor union or covered by any
collective bargaining agreements; Aduromed is not aware of any effort to
establish a labor union or bargaining unit or similar organizational effort with
respect to its employees or the employees of any of its subsidiaries; and, to
Aduromed's knowledge, there is no labor strike or other labor trouble pending or
threatened and with respect to Aduromed or any of its subsidiaries. There are no
pending, or, to Aduromed's knowledge, threatened or anticipated (i) employment
discrimination charges or complaints against or involving Aduromed or any of its
subsidiaries before any federal, state or local commission or agency or (ii)
unfair labor practice charges or complaints, disputes or grievances involving
Aduromed or any of its subsidiaries.
3.27 No Solicitation or Advertisement. Neither Aduromed nor any person
acting on its behalf has engaged, in connection with the offering of the
Aduromed Series A Preferred, First Closing Aduromed Warrants, First Closing
Aduromed Warrant Shares or Aduromed Conversion Shares, in any form of general
solicitation or general advertising within the meaning of Rule 502(c) under the
Securities Act.
3.28 Securities Act Registration. Assuming that the representations
and warranties of each of the Purchasers contained herein are true, it is not
necessary in connection with the offer, sale and delivery of the Aduromed Series
A Preferred, First Closing Aduromed Warrants, First Closing Aduromed Warrant
Shares and Aduromed Conversion Shares in the manner contemplated by the Original
Purchase Agreement to register any of the Aduromed Series A Preferred, First
Closing Aduromed Warrants, First Closing Aduromed Warrant Shares or Aduromed
Conversion Shares under the Securities Act or under applicable state securities
or Blue Sky laws regulating the issuance or sale of securities.
3.29 Investment Company Act. Aduromed is not an "investment company,"
or a company "controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended.
3.30 U.S. Real Property Holding Corporation. Aduromed is not now and
has never been a "United States real property holding corporation," as defined
in the Internal Revenue Code of 1986, as amended.
3.31 Information Supplied to Purchasers. Neither the Original Purchase
Agreement nor any First Closing Related Agreement nor any written agreement,
certificate or document furnished by management of Aduromed in connection with
the transactions contemplated herein, contain any untrue statement by Aduromed
of a material fact, or when taken as a whole omit to state a material fact
necessary in order to make the statements contained herein or therein not
misleading.
4. Second Closing Representations of Aduromed, GDI and the Surviving
Entity. For the purposes of this Amended and Restated Purchase Agreement, the
phrase "to the Company's knowledge" shall include facts, events or circumstances
that are actually known by, or should have reasonably been known (after
reasonable investigation) by, the Chief Executive Officer or Chief Financial
Officer of the any of the Companies. Except as disclosed in the First Cosing
14
Disclosure Schedule or the Second Closing Disclosure Schedule attached as
Exhibit N hereto (the "Second Closing Disclosure Schedule"), which Second
Closing Disclosure Schedule makes explicit reference to the particular
representation or warranty as to which exception is taken (provided, that
matters disclosed in any particular part of the First Closing Disclosure
Schedule or Second Closing Disclosure Schedule shall be deemed to have been
disclosed in the other parts of the Second Closing Disclosure Schedule
regardless of whether a specific cross reference is made provided the relevance
of the disclosed information with respect to such other parts would be
reasonably apparent, to a person experienced in corporate dealings of the nature
encompassed by this Amended and Restated Purchase Agreement and the Second
Closing Related Agreements, from the information disclosed), which exceptions
shall be deemed to be part of the representations and warranties made hereunder,
each of Aduromed, GDI and the Surviving Entity, jointly and severally, hereby
represents and warrants, as of the date of this Amended and Restated Purchase
Agreement and as of the Second Closing Date, to the Purchasers as follows:
4.1 Organization and Corporate Power. Each of the Companies and each
of their respective subsidiaries is duly organized, validly existing and in good
standing under the laws of its respective jurisdiction of organization and has
full power and authority to own its properties and to conduct its business as
presently conducted and as proposed to be conducted by it and to enter into and
perform this Amended and Restated Purchase Agreement and the Second Closing
Related Agreements (as defined in Section 4.6 below), to carry out the
transactions contemplated by this Amended and Restated Purchase Agreement and
the Second Closing Related Agreements and to (a) issue and deliver the shares of
GDI Series A Preferred and First Closing GDI Warrants to be issued and delivered
to the Purchasers at the closing of the Merger in accordance with the terms of
the Merger Agreement, (b) issue, sell and deliver the shares of GDI Series B
Preferred to be sold and delivered to the Purchasers at the Second Closing, (c)
sell and deliver the Second Closing GDI Warrants to be sold and delivered to the
Purchasers at the Second Closing, (d) issue, sell and deliver the GDI Warrant
Shares upon exercise of the GDI Warrants and (e) issue, sell and deliver the
shares of GDI Common Stock issuable upon conversion of the shares of GDI Series
A Preferred and GDI Series B Preferred (the "GDI Conversion Shares"). Each of
the Companies and each of their respective subsidiaries is duly qualified to do
business as a foreign corporation in every jurisdiction in which the failure to
so qualify would reasonably be expected to have a Second Closing Material
Adverse Effect. For purposes of this Amended and Restated Purchase Agreement,
the term "Second Closing Material Adverse Effect" shall mean (i) a material
adverse effect on the results of operations, business, assets, liabilities or
condition (financial or otherwise) of the Companies and their respective
subsidiaries, taken as a whole, or (ii) any material limitation on the ability
of any Company to perform its obligations under, or the legality, validity or
enforceability of, this Amended and Restated Purchase Agreement or the Second
Closing Related Agreements. Each of the Companies has furnished to the
Purchasers true and complete copies of its certificate of incorporation and
by-laws, each as amended to date and presently in effect.
4.2 Capitalization.
(a) The authorized capital stock of Aduromed (as of the date of
this Amended and Restated Purchase Agreement and as of immediately
prior to the consummation of the Merger) consists of (i) 50,000,000
shares of Aduromed Common Stock, of which 10,585,600 shares are issued
and outstanding, and (ii) 20,000,000 shares of Preferred
15
Stock, of which 3,489,527 shares have been designated as Series A
Preferred Stock, of which 3,489,527 shares are issued and outstanding.
(b) The authorized capital stock of the Surviving Entity
(immediately following the consummation of the Merger) will consist of
1,000 shares of Common Stock, par value $0.01 per share, of which
1,000 shares will be issued and outstanding and held by GDI.
(c) The authorized capital stock of GDI (as of the date of this
Amended and Restated Purchase Agreement and as of immediately prior to
the consummation of the Merger) consists of (i) 100,000,000 shares of
GDI Common Stock, of which 1,259,585 shares are issued and
outstanding, and (ii) 40,000,000 shares of Preferred Stock, of which
(A) 6,263,702 shares have been designated as Series A Preferred Stock,
of which none are issued and outstanding and (B) 15,780,160 shares
have been designated as Series B Preferred Stock, of which none are
issued and outstanding.
(d) The authorized capital stock of GDI (as of immediately
following the consummation of the Merger and the issuance of the GDI
Series B Preferred at the Second Closing) will consist of (i)
100,000,000 shares of GDI Common Stock, of which 20,260,737 shares
will be issued and outstanding, and (ii) 40,000,000 shares of
Preferred Stock, of which (i) 6,263,702 shares will have been
designated as Series A Preferred Stock, of which 6,263,702 shares will
be issued and outstanding and (ii) 15,780,160 shares have been
designated as Series B Preferred Stock, of which 15,780,160 shares
will be issued and outstanding.
(e) Set forth on Exhibit N-1 hereof is a true and complete list
of the stockholders of each of the Companies as of immediately
following the consummation of the Merger and the transactions
contemplated to occur at the Second Closing pursuant to the terms of
this Amended and Restated Purchase Agreement, showing the number of
shares of each class and series of capital stock or other securities
of each Company to be held by each stockholder as of immediately
following the consummation of the Merger and the transactions
contemplated to occur at the Second Closing pursuant to the terms of
this Amended and Restated Purchase Agreement.
(f) All of the issued and outstanding shares of each of the
Companies' capital stock have been duly authorized and validly issued
and are fully paid and nonassessable. Except as set forth in the
Second Closing Disclosure Schedule or as provided in this Amended and
Restated Purchase Agreement or in the Second Closing Related
Agreements, as of the date of this Amended and Restated Purchase
Agreement and as of the Second Closing, (i) no subscription, warrant,
option, convertible security or other right (contingent or otherwise)
to purchase or acquire any shares of capital stock of any Company is
authorized or outstanding, (ii) no Company has any obligation
(contingent or otherwise) to issue any subscription, warrant, option,
convertible security or other such right or to issue or distribute to
holders of any shares of its capital stock, any evidences of
indebtedness or assets of any Company, and (iii) no Company has any
obligation (contingent or otherwise) to purchase, redeem or otherwise
acquire any shares of its capital stock or any interest therein or to
pay any dividend or make any other distribution
16
in respect thereof. All of the issued and outstanding shares of
capital stock of each of the Companies have been offered, issued and
sold by the Companies in compliance with applicable federal and state
securities laws.
4.3 Subsidiaries, Etc. Except as set forth in the Second Closing
Disclosure Schedule, each Company has no subsidiaries and does not own or
control, directly or indirectly, any shares of capital stock of any other
corporation or limited liability company or any interest in any partnership,
joint venture or other non-corporate business enterprise.
4.4 Agreements. Except as contemplated by this Amended and Restated
Purchase Agreement or under the Second Closing Related Agreements, there are no
agreements, written or oral, between any Company or any holder of any Company's
capital stock, or, to the Company's knowledge, among any holders of the capital
stock of any Company, relating to the acquisition (including without limitation
rights of first refusal or preemptive rights), disposition, registration under
the Securities Act or voting of the capital stock of any Company.
4.5 Sale, Issuance and Delivery of GDI Series A Preferred, GDI Series
B Preferred and GDI Warrants.
(a) The issuance and delivery of the GDI Series A Preferred to
the Purchasers at closing of the Merger in accordance with the Merger
Agreement, and the issuance and delivery of the GDI Conversion Shares
issuable upon conversion of the GDI Series A Preferred, has been duly
authorized by all necessary corporate action on the part of GDI, and
all such shares have been duly reserved for issuance. The GDI Series A
Preferred when so issued and delivered to the Purchasers at closing of
the Merger in accordance with the Merger Agreement, and the GDI
Conversion Shares issuable upon conversion of the GDI Series A
Preferred, when issued upon such conversion, will be duly and validly
issued, fully paid and non-assessable.
(b) The issuance and delivery of the First Closing GDI Warrants
to the Purchasers at closing of the Merger in accordance with the
Merger Agreement have been duly authorized by all necessary corporate
action on the part of GDI. The First Closing GDI Warrants, so when so
issued and delivered to the Purchasers at closing of the Merger in
accordance with the Merger Agreement, will constitute valid and
binding obligations of GDI enforceable in accordance with their terms,
subject as to enforcement of remedies to applicable bankruptcy,
insolvency, reorganization or similar laws affecting generally the
enforcement of creditors' rights and subject to a court's
discretionary authority with respect to the granting of a decree
ordering specific performance or other equitable remedies.
(c) The issuance, sale and delivery of the GDI Series B Preferred
at the Second Closing, and the issuance and delivery of the GDI
Conversion Shares issuable upon conversion of the GDI Series B
Preferred, will, as of the Second Closing, have been duly authorized
by all necessary corporate action on the part of GDI, and all such
shares will, as of the Second Closing, have been duly reserved for
issuance. The GDI Series B Preferred when so issued and delivered at
the Second Closing against delivery by the Purchasers to GDI of the
Second Closing Purchase Price, and the GDI Conversion Shares
17
issuable upon conversion of the GDI Series B Preferred, when issued
upon such conversion, will be duly and validly issued, fully paid and
non-assessable.
(d) The sale and delivery of the Second Closing GDI Warrants at
the Second Closing have been duly authorized by all necessary
corporate action on the part of GDI. The Second Closing GDI Warrants,
when so sold and delivered against payment therefor in accordance with
the provisions of this Amended and Restated Purchase Agreement, will
constitute valid and binding obligations of GDI enforceable in
accordance with their terms, subject as to enforcement of remedies to
applicable bankruptcy, insolvency, reorganization or similar laws
affecting generally the enforcement of creditors' rights and subject
to a court's discretionary authority with respect to the granting of a
decree ordering specific performance or other equitable remedies.
(e) The sale and delivery of the GDI Warrant Shares issuable upon
exercise of the GDI Warrants have been duly authorized by all
necessary corporate action on the part of GDI, and all such shares
have been duly reserved for issuance. The GDI Warrant Shares, when so
issued, sold and delivered against payment therefor in accordance with
the provisions of the GDI Warrants, will be duly and validly issued,
fully paid and non-assessable.
4.6 Authority for Agreement; Effect of Transactions. The execution,
delivery and performance by each of the Companies of this Amended and Restated
Purchase Agreement, the GDI Series A Certificate of Designations, the GDI Series
B Certificate of Designations, the GDI Warrants, the Amended and Restated
Registration Rights Agreement (as defined in Section 6.2(j) hereof), the Amended
and Restated Stockholder Agreement (as defined in Section 6.2(k) hereof) and the
Merger Agreement (the GDI Series A Certificate of Designations, the GDI Series B
Certificate of Designations, the GDI Warrants, the Amended and Restated
Registration Rights Agreement, the Amended and Restated Stockholders Agreement
and the Merger Agreement are sometimes hereinafter referred to collectively as
the "Second Closing Related Agreements") and the consummation by the Companies
of the transactions contemplated hereby and thereby, have been duly authorized
by all necessary corporate action on behalf of each of the Companies. This
Amended and Restated Purchase Agreement and the Second Closing Related
Agreements have been duly executed and delivered by each of the Companies party
thereto and constitute valid and binding obligations of each of the Companies
party thereto enforceable in accordance with their respective terms, subject as
to enforcement of remedies to applicable bankruptcy, insolvency, reorganization
or similar laws affecting generally the enforcement of creditors' rights and
subject to a court's discretionary authority with respect to the granting of a
decree ordering specific performance or other equitable remedies. The execution
of and performance of the transactions contemplated by this Amended and Restated
Purchase Agreement and the Second Closing Related Agreements and compliance with
their provisions by each of the Companies party thereto will not (a) violate any
provision of law or regulation applicable to any Company or any of their
respective subsidiaries or any of their respective assets, (b) result in the
creation of any lien upon any of the property of any Company or any of their
respective subsidiaries, or (c) conflict with or result in any breach of any of
the terms, conditions or provisions of, or constitute a default under, or
require a consent or waiver under, any Company's certificate of incorporation or
by-laws (each as amended to date) or any indenture, lease, agreement or other
instrument to which any Company or any of their respective subsidiaries is a
party or by which it or any of
18
their respective properties are bound, or any decree, judgment, license, permit,
order, statute, rule or regulation applicable to any Company or any of their
respective subsidiaries.
4.7 Litigation. There is no action, suit or proceeding, or
governmental inquiry or investigation, pending, or, to the Company's knowledge,
any reasonable basis therefor or threat thereof, against any Company or any of
their respective subsidiaries which questions the validity of this Amended and
Restated Purchase Agreement or the Second Closing Related Agreements or the
right of any Company to enter into any of them, or which would reasonably be
expected to result, either individually or in the aggregate, in a Second Closing
Material Adverse Effect.
4.8 Property and Assets. Except as set forth in the Second Closing
Disclosure Schedule, each Company and each of their respective subsidiaries has
good and marketable title to all of its material properties and assets, and none
of such properties or assets is subject to any mortgage, pledge, lien, security
interest, lease, charge or encumbrance.
4.9 Leasehold Interests. Each lease or agreement to which any Company
or any of their respective subsidiaries is a party under which it is a lessee of
any property, real or personal, is a valid and subsisting agreement, duly
authorized and entered into, without any default of any Company or any of their
respective subsidiaries thereunder and, to the Company's knowledge, without any
default thereunder of any other party thereto. No event has occurred and is
continuing which, with due notice or lapse of time or both, would constitute a
default or event of default by any Company or any of their respective
subsidiaries under such lease or agreement or, to the Company's knowledge, by
any other party thereto. Each Company's and each of their respective
subsidiaries' possession of such property has not been disturbed and, to the
Company's knowledge after due inquiry, no claim has been asserted against any
Company or any of their respective subsidiaries adverse to its rights in such
leasehold interests.
4.10 Financial Statements; SEC Reports.
(a) Aduromed has furnished to the Purchasers the Aduromed
Financial Statements. The Aduromed Financial Statements were prepared
in accordance with generally accepted accounting principles
consistently applied during the period covered thereby, and fairly
presents the financial position of Aduromed and its consolidated
subsidiaries on the date of such statement, except that the Aduromed
Financial Statements may not contain all footnotes required by
generally accepted accounting principles.
(b) GDI has filed all reports, schedules, forms, statements and
other documents required to be filed by GDI with the United States
Securities and Exchange Commission (the "SEC") since January 1, 2003
pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and the rules and regulations of the SEC (the "SEC
Documents").
(c) As of its respective filing date, each SEC Document complied
in all material respects with the requirements of the Exchange Act and
the rules and regulations of the SEC promulgated thereunder applicable
to such SEC Document, and did not contain any untrue statement of a
material fact or omit to state a material fact required to
19
be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. None of the SEC Documents contains any untrue statement of
a material fact or omits to state any material fact required to be
stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading. The consolidated financial statements of GDI included in
the SEC Documents (the "GDI Financial Statements") comply as to form
in all material respects with applicable accounting requirements and
the published rules and regulations of the SEC with respect thereto,
have been prepared in accordance with generally accepted accounting
principles consistently applied (except, in the case of unaudited
statements, as permitted by the rules and regulations of the SEC)
applied on a consistent basis during the periods involved (except as
may be indicated in the notes thereto) and fairly present the
consolidated financial position of GDI and its consolidated
subsidiaries as of the dates thereof and the consolidated results of
their operations and cash flows for the periods shown (subject, in the
case of unaudited statements, to normal year-end audit adjustments)
4.11 Absence of Undisclosed Liabilities. Except as and to the extent
expressly disclosed in the balance sheet contained in the Aduromed Financial
Statements, in the most recent audited GDI Financial Statement or in the Second
Closing Disclosure Schedule, or for liabilities that may have arisen in the
ordinary course of business consistent with past practices and that individually
or in the aggregate do not have and would not reasonably be expected to have a
Second Closing Material Adverse Effect, none of the Companies nor any of their
respective subsidiaries has any liabilities of a type required under generally
accepted accounting principles to be disclosed therein.
4.12 Absence of Certain Developments. Since December 31, 2004, there
has been (a) to the Company's knowledge, no event which would constitute or
reasonably be expected to have a Second Closing Material Adverse Effect, (b) no
declaration, setting aside or payment of any dividend or other distribution with
respect to, or any direct or indirect redemption or acquisition of, any of the
capital stock or other equity interest of any Company, (c) no waiver of any
material right of any Company or any of their respective subsidiaries or
cancellation of any material debt or claim held by any Company or any of their
respective subsidiaries, (d) no loan by any Company or any of their respective
subsidiaries to any officer, director, employee or stockholder of any Company or
any of their respective subsidiaries, or any agreement or commitment therefor,
(e) no increase, direct or indirect, in the compensation paid or payable to any
officer, director, employee, consultant or agent of any Company or any of their
respective subsidiaries, other than reasonable and customary increases in
compensation consistent with the Companies' past practices, (f) no material
loss, destruction, forfeiture of or damage to any property of any Company or any
of their respective subsidiaries whether or not insured, (g) no labor disputes
involving any Company or any of their respective subsidiaries, and (h) no
acquisition, disposition or lease of any material assets (or any contract or
arrangement therefor).
4.13 Tax Matters. Each Company and each of their respective
subsidiaries have timely filed all foreign, federal, state and local income,
excise or franchise tax returns, real estate and personal property tax returns,
sales and use tax returns and other tax returns required to be filed by it and
has paid all taxes owed by it, except taxes which have not yet accrued or
otherwise become due, or for which adequate provision has, to the extent
required by generally accepted
20
accounting principles, been made in the Aduromed Financial Statements or the
most recent audited GDI Financial Statement, as applicable. The provision for
taxes in the Aduromed Financial Statements and the most recent audited GDI
Financial Statement are sufficient as of their date for the payment of all
accrued and unpaid federal, state, county and local taxes of any nature of any
Company and each of their respective subsidiaries, and any applicable taxes
owing to any foreign jurisdiction, whether or not assessed or disputed. All
taxes and other assessments and levies which any Company or any of their
respective subsidiaries is required to withhold or collect have been withheld
and collected and have been paid over to the proper governmental authorities.
With regard to the income tax returns of each Company and each of their
respective subsidiaries, none of the Companies nor any of their respective
subsidiaries has received notice of any audit or of any proposed deficiencies
from any taxing authority, and no controversy with respect to taxes of any
Company or any of their respective subsidiaries of any type is pending or, to
the Company's knowledge, threatened. There are in effect no waivers of
applicable statutes of limitations with respect to any taxes owed by any Company
or any of their respective subsidiaries for any year.
4.14 Contracts and Commitments. The Second Closing Disclosure Schedule
contains a complete and accurate list, and the Companies have delivered to the
Purchasers true and complete copies, of all written or oral agreements,
instruments, undertakings, commitments or restrictions (collectively, "Company
Contracts") (a) under which any Company or any of their respective subsidiaries
has any rights or any obligation or liability, or (b) by which any Company or
any of their respective subsidiaries, or any of their respective assets, are
bound. Each Company and each of their respective subsidiaries and, to the
Company's knowledge, each other party thereto have in all material respects
performed all the obligations required to be performed by them to date under the
Company Contracts (or each non-performing party has received a valid,
enforceable and irrevocable written waiver with respect to its non-performance),
have received no notice of default and are not in default (with due notice or
lapse of time or both) under any Company Contract.
4.15 Loans and Advances. No Company nor any of their respective
subsidiaries has any outstanding loans or advances to any person and is not
obligated to make any such loans or advances, except, in each case, for advances
to employees of a Company in respect of reimbursable business expenses
anticipated to be incurred by them in connection with their performance of
services for such Company.
4.16 Assumptions, Guaranties, Etc. of Indebtedness of Other Persons.
No Company nor any of their respective subsidiaries has assumed, guaranteed,
endorsed or otherwise become directly or contingently liable on any indebtedness
of any other person (including, without limitation, liability by way of
agreement, contingent or otherwise, to purchase, to provide funds for payment,
to supply funds to or otherwise invest in the debtor, or otherwise to assure the
creditor against loss), except for guaranties by endorsement of negotiable
instruments for deposit or collection in the ordinary course of business.
4.17 Transactions With Affiliates. Except as set forth in the Second
Closing Disclosure Schedule, no director, officer, employee or stockholder of
any Company or any of their respective subsidiaries, or member of the family of
any such person, or any corporation, partnership, trust or other entity in which
any such person, or any member of the family of any
21
such person, has a substantial interest or is an officer, director, trustee,
partner or holder of more than 5% of the outstanding capital stock thereof, is a
party to any transaction with any Company or any of their respective
subsidiaries, including any contract, agreement or other arrangement providing
for the employment of, furnishing of services by, rental of real or personal
property from or otherwise requiring payments to any such person or firm, other
than employment-at-will arrangements in the ordinary course of business.
4.18 Proprietary Rights; Employee Restrictions. Set forth in the
Second Closing Disclosure Schedule is a list and brief description of all
patents, copyrights, trademarks, trade names, service marks, and all
applications for any of the foregoing, logos, and other proprietary rights
necessary for the conduct of each Company's and each of their respective
subsidiaries' business as presently conducted or contemplated (collectively,
"Company Intellectual Property Rights"). Each Company owns or has the legal
right to use all such Company Intellectual Property Rights and, to the Company's
knowledge, neither the present nor proposed business activities or products of
any Company or any of their respective subsidiaries infringe or misappropriate
any patents, copyrights, trademarks, trade names, service marks, logos or other
intellectual or tangible proprietary rights of others. No Company nor any of
their respective subsidiaries has received any notice or other claim from any
person asserting that any of the Companies' or any of their respective
subsidiaries' present or proposed activities infringe or misappropriate, or may
infringe or misappropriate, any intellectual property rights of any person. To
the Company's knowledge, each Company and each of their respective subsidiaries
has the right to use, free and clear of claims or rights of others, all trade
secrets and know-how, including without limitation: customer lists,
manufacturing processes, hardware designs, programming processes, software and
other trade secrets or know-how required for or incident to its products or its
business as presently conducted or contemplated. Each Company and each of their
respective subsidiaries have taken all steps reasonably required to establish
and preserve its ownership of all of the Company Intellectual Property Rights,
including but not limited to requiring all employees and consultants to execute
a confidentiality and assignment of inventions agreement in favor of the
applicable Company and its subsidiaries. No Company is aware of any infringement
or misappropriation by others of any Company Intellectual Property Rights of
such Company or any of its subsidiaries, or any violation of the confidentiality
of any of their respective proprietary information. No Company nor any of their
respective subsidiaries is making unlawful use of any confidential information
or trade secrets of any past or present employees of such Company or any of its
subsidiaries. No Company nor any of their respective subsidiaries has granted or
assigned to any other person or entity any right to manufacture, have
manufactured, assemble or sell the products or proposed products or to provide
the services or proposed services of such Company or any of its subsidiaries.
4.19 Proprietary Information of Third Parties. No third party has
claimed or, to the Company's knowledge, has reason to claim that any person
employed or engaged by any Company or any of their respective subsidiaries has
(a) violated or may be violating any of the terms or conditions of his
employment, non-competition or non-disclosure agreement with such third party,
(b) disclosed or may be disclosing or utilized or may be utilizing any trade
secret or proprietary information or documentation of such third party or (c)
interfered or may be interfering in the employment relationship between such
third party and any of its present or former employees. To the Company's
knowledge, no person employed by or affiliated with any Company or any of their
respective subsidiaries has employed or proposes to employ any trade
22
secret or any information or documentation proprietary to any former employer,
and to the Company's knowledge, no person employed by or affiliated with any
Company or any of their respective subsidiaries has violated any confidential
relationship which such person may have had with any third party, in connection
with the development, manufacture or sale of any product or proposed product or
the development or sale of any service or proposed service of any Company or any
of their respective subsidiaries. To the Company's knowledge, neither the
execution or delivery of this Amended and Restated Purchase Agreement or the
Second Closing Related Agreements, the carrying on of the business of each
Company and each of their respective subsidiaries as officers, employees or
agents by any officer, director or key employee of such Company or any of its
subsidiaries, nor the conduct or proposed conduct of the business of any Company
or any of their respective subsidiaries, will conflict with or result in a
breach of the terms, conditions or provisions of or constitute a default under
any Company Contract.
4.20 Business; Compliance with Laws. Except for those which would not
reasonably be expected to have a Second Closing Material Adverse Effect, each
Company and each of their respective subsidiaries has all necessary franchises,
permits, licenses and other rights and privileges necessary to permit it to own
its property and to conduct its business as is presently conducted. No Company
nor any of their respective subsidiaries is in violation of any law, regulation,
authorization or order material to the ownership of its properties or the
carrying on of its business as presently conducted.
4.21 Books and Records. The copies of records of each Company, as
furnished to the Purchasers, contain complete and accurate copies of such
Company's certificate of incorporation and by-laws and complete and accurate
records, in all material respects, of all meetings and other corporate actions
of its stockholders and its Board of Directors and committees thereof. The stock
ledger of each Company is complete in all material respects and reflects all
issuances, transfers, repurchases and cancellations of shares of capital stock
of such Company.
4.22 Environmental Compliance. No Company nor any of their respective
subsidiaries (a) has ever violated, or is presently in noncompliance with, all
Environmental Laws applicable to its business and properties; (b) has generated,
manufactured, used, refined, transported, treated, stored, handled, disposed of,
transferred, produced, or processed any Hazardous Materials, or any solid waste,
and has any knowledge of the release or threat of release of any Hazardous
Materials from its products, properties or facilities except in compliance with
law; (c) has (i) entered into or been subject to any consent decree, compliance
order, or administrative order with respect to any environmental or health and
safety matter relating to its business or any of its properties or facilities,
(ii) received notice under the citizen suit provision of any Environmental Law
in connection with its business or any of its properties or facilities, (iii)
received any request for information, notice, demand letter, administrative
inquiry, or formal or informal complaint or claim with respect to any
environmental or health and safety matter relating to its business or any of its
properties or facilities, or (iv) been subject to or threatened with any
governmental or citizen enforcement action with respect to any environmental or
health and safety matter relating to its business or any of its properties or
facilities, and has any reason to believe that any matters described in clauses
(i) through (iv) above will be forthcoming. No lien has been imposed on any of
the properties or facilities of any Company or any of their respective
subsidiaries by any governmental agency at the federal, state, or local level in
connection with the presence of any Hazardous Materials.
23
4.23 Brokerage. Except as set forth in the Second Closing Disclosure
Schedule, there are no, and will be no, claims for and no person is entitled to
any brokerage commissions, finder's fees or similar compensation in connection
with the transactions contemplated by this Amended and Restated Purchase
Agreement from any Company or any of their respective subsidiaries or based on
any arrangement or agreement made by or on behalf of any Company or any of their
respective subsidiaries.
4.24 Employee Benefit Plans.
(a) Except as set forth in the Second Closing Disclosure
Schedule, no Company nor any of their respective subsidiaries
maintains or contributes to any employee benefit plans. Each Company
and each of their respective subsidiaries is and has been in material
compliance with the provisions of all laws or rules or regulations
applicable to any employee benefit plan maintained or contributed to
by such Company or any of its subsidiaries for the benefit of its
employees and, to the Company's knowledge, there are no claims (other
than routine claims for benefits) pending or threatened with respect
to any of such employee benefit plans. No Company nor any of their
respective subsidiaries maintains or contributes to, or has ever
maintained or contributed to, any qualified retirement plan that is
subject to the minimum funding requirements of Xxxxxxx 000 xx xxx
Xxxxxx Xxxxxx Internal Revenue Code of 1986, as amended. There are no
unfunded obligations of any Company or any of their respective
subsidiaries under any retirement, pension, profit-sharing or deferred
compensation plan or program. No Company nor any of their respective
subsidiaries is required to make any payments or contributions to any
employee benefit plan pursuant to any collective bargaining agreement.
No Company nor any of their respective subsidiaries has ever
maintained or contributed to any employee benefit plan providing or
promising any health or other non-pension benefits to terminated
employees. For purposes of this Section 4.24, the term "Company"
includes all entities that have controlled, have been under the
control of, or have been under common control with, any Company.
(b) Each Company has made available to the Purchasers a
description of the compensation such Company and each of its
subsidiaries is currently paying, and has agreed to pay in the future,
to each of its employees and consultants, including without
limitation, salaries, fees, bonuses and benefits.
4.25 Employee Agreements. Each of the officers of each Company and
each of their respective subsidiaries, each key employee and each other employee
now employed by any Company or any of their respective subsidiaries who has
access to confidential information of any Company or of any of their respective
subsidiaries has executed a Confidentiality, Assignment of Inventions and
Non-Competition Agreement in a form previously disclosed to the Purchasers, and
such agreements are in full force and effect. No officer or key employee of any
Company or any of their respective subsidiaries has advised any Company or any
of their respective subsidiaries (orally or in writing) that he or she intends
to terminate employment with any Company or any of their respective
subsidiaries.
4.26 Employees. Each Company and each of their respective subsidiaries
has complied in all material respects with all applicable laws relating to the
employment of labor,
24
including provisions relating to wages, laws, equal opportunity, collective
bargaining and the payment of social security and other taxes. None of the
employees of any Company or any of their respective subsidiaries is represented
by any labor union or covered by any collective bargaining agreements; no
Company is aware of any effort to establish a labor union or bargaining unit or
similar organizational effort with respect to its employees or the employees of
any of its subsidiaries; and, to the Company's knowledge, there is no labor
strike or other labor trouble pending or threatened and with respect to any
Company or any of their respective subsidiaries. There are no pending, or, to
the Company's knowledge, threatened or anticipated (i) employment discrimination
charges or complaints against or involving any Company or any of their
respective subsidiaries before any federal, state or local commission or agency
or (ii) unfair labor practice charges or complaints, disputes or grievances
involving any Company or any of their respective subsidiaries.
4.27 No Solicitation or Advertisement. No Company nor any person
acting on behalf of any Company has engaged, in connection with the offering of
the GDI Series A Preferred, GDI Series B Preferred, GDI Warrants, GDI Warrant
Shares or GDI Conversion Shares, in any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the Securities Act.
4.28 Securities Act Registration. Assuming that the representations
and warranties of each of the Purchasers contained herein are true, it is not
necessary in connection with the offer, sale and delivery of the GDI Series A
Preferred, GDI Series B Preferred, GDI Warrants, GDI Warrant Shares and GDI
Conversion Shares in the manner contemplated by the Merger Agreement and this
Amended and Restated Purchase Agreement to register any of the GDI Series A
Preferred, GDI Series B Preferred, GDI Warrants, GDI Warrant Shares or GDI
Conversion Shares under the Securities Act or under applicable state securities
or Blue Sky laws regulating the issuance or sale of securities.
4.29 Investment Company Act. Each Company is not an "investment
company," or a company "controlled" by an "investment company," within the
meaning of the Investment Company Act of 1940, as amended.
4.30 U.S. Real Property Holding Corporation. Each Company is not now
and has never been a "United States real property holding corporation," as
defined in the Internal Revenue Code of 1986, as amended.
4.31 Information Supplied to Purchasers. Neither this Amended and
Restated Purchase Agreement nor any Second Closing Related Agreement nor any
written agreement, certificate or document furnished by management of any
Company in connection with the transactions contemplated herein, contain any
untrue statement by any Company of a material fact, or when taken as a whole
omit to state a material fact necessary in order to make the statements
contained herein or therein not misleading.
4.32 OTC-BB Quotation. The GDI Common Stock is registered pursuant to
Section 12(g) of the Exchange Act and is quoted on the Over the Counter Bulletin
Board (the "OTC-BB"), and GDI has taken no action designed to, or likely to have
the effect of, terminating the registration of the GDI Common Stock under the
Exchange Act or terminating the quotation of
25
the GDI Common Stock from the OTC-BB, nor to the Company's knowledge is the
OTC-BB currently contemplating terminating such quotation. GDI and the GDI
Common Stock meet and GDI will use best efforts to ensure that GDI and the GDI
Common Stock continue to meet the criteria for continued quotation on the
OTC-BB.
4.33 No Change in Conversion Price or Exercise Price. No transaction
or other event has occurred since the First Closing that has the effect of, and
no transaction or other event will occur prior to the Second Closing that will
have the effect of, requiring a change to be made to either (a) the "Series A
Conversion Price" pursuant to Section 4 of the Aduromed Series A Certificate of
Designations or (b) the "Exercise Price" or "Warrant Shares Number" pursuant to
Section 4 or 5 of the First Closing Aduromed Warrants.
4.34 Disclosure. Each Company confirms that neither it, its employees,
officers or directors, nor, to its knowledge, any person or entity acting on its
behalf has provided any of the Purchasers or their agents or counsel with any
information that any Company believes constitutes material, non-public
information, except for the material terms embodied in this Amended and Restated
Purchase Agreement and the Second Closing Related Agreements (which will be
disclosed as provided in Section 5.11). Each Company understands and confirms
that the Purchasers will rely on the foregoing representations in effecting
transactions in securities of the Companies.
5. Representations of the Purchasers. Each of the Purchasers, severally and
not jointly, represents and warrants to each Company as follows:
5.1 Authority. Such Purchaser is duly organized, validly existing and
in good standing under the laws of its state of organization. Such Purchaser has
now, and will have at each Closing, all requisite power to enter into this
Amended and Restated Purchase Agreement and the Second Closing Related
Agreements to which it is a party and the transactions contemplated hereby and
thereby and to perform its obligations under the terms of this Amended and
Restated Purchase Agreement and each of the Second Closing Related Agreements to
which it is a party.
5.2 Validity. This Amended and Restated Purchase Agreement and each of
the Second Closing Related Agreements to which it is a party, when executed and
delivered by such Purchaser and each of the other parties thereto, will
constitute a valid and legally binding obligation of such Purchaser, enforceable
in accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights.
5.3 Purchase Entirely for Own Account. Such Purchaser hereby confirms
that the GDI Series A Preferred, GDI Series B Preferred and GDI Warrants to be
purchased by or issued to such Purchaser at the Second Closing and the closing
of the Merger will be acquired for investment for such Purchaser's own account,
not as a nominee or agent, and not with a view to the resale or distribution of
any part thereof. By executing this Amended and Restated Purchase Agreement,
such Purchaser further represents that such Purchaser does not have any
contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participation to
26
such person or to any third person, with respect to any such GDI Series A
Preferred, GDI Series B Preferred or GDI Warrants.
5.4 Reliance Upon Purchaser's Representations. Such Purchaser
understands that the GDI Series A Preferred, GDI Series B Preferred and GDI
Warrants are not currently, and any GDI Warrant Shares and GDI Conversion Shares
acquired on the exercise or conversion of any of the GDI Series A Preferred, GDI
Series B Preferred or GDI Warrants at the time of issuance may not be,
registered under the Securities Act, and that GDI's reliance on such exemption
is predicated on each Purchaser's representations set forth herein.
5.5 Restricted Securities. Such Purchaser understands that the GDI
Series A Preferred, GDI Series B Preferred and GDI Warrants (and any GDI Warrant
Shares and GDI Conversion Shares issued on exercise or conversion of any of the
GDI Series A Preferred, GDI Series B Preferred or GDI Warrants) may not be sold,
transferred, or otherwise disposed of without registration under the Securities
Act or an exemption therefrom, and that in the absence of an effective
registration statement covering the GDI Series A Preferred, GDI Series B
Preferred and GDI Warrants (or any GDI Warrant Shares and GDI Conversion Shares
issued on exercise or conversion of any of the GDI Series A Preferred, GDI
Series B Preferred or GDI Warrants) or an available exemption from registration
under the Securities Act, the GDI Series A Preferred, GDI Series B Preferred and
GDI Warrants (and any GDI Warrant Shares and GDI Conversion Shares issued on
exercise or conversion of any of the GDI Series A Preferred, GDI Series B
Preferred or GDI Warrants) must be held indefinitely. Each Purchaser understands
that no public market now exists for any of the GDI Series A Preferred or GDI
Series B Preferred, and that GDI has made no assurances that a public market
will ever exist for the GDI Series A Preferred, the GDI Series B Preferred or
the GDI Warrants.
5.6 Economic Risk: Sophistication. Such Purchaser is able to bear the
economic risk of an investment in the GDI Series A Preferred, GDI Series B
Preferred and GDI Warrants acquired by it pursuant to this Amended and Restated
Purchase Agreement and has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of the
proposed investment and therefore has the capacity to protect its own interests
in connection with such purchase and such conversion.
5.7 Accredited Investor. Such Purchaser meets the criteria of an
"accredited investor" as defined in Rule 501(a) of Regulation D adopted under
the Securities Act.
5.8 Legend. Each of the Purchasers understands that the GDI Series A
Preferred, GDI Series B Preferred, the GDI Conversion Shares and the GDI Warrant
Shares, may bear one or all of the following legends:
(a) "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED
FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE
OR DISTRIBUTION THEREOF. NO SUCH TRANSFER MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF
COUNSEL IN A FORM
27
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED
UNDER THE SECURITIES ACT OF 1933."
(b) Any legend required by the securities laws of any state to
the extent such laws are applicable to the GDI Series A Preferred, GDI
Series B Preferred, GDI Conversion Shares or GDI Warrant Shares
represented by the certificate so legended.
(c) If any of the GDI Series A Preferred, GDI Series B Preferred,
GDI Conversion Shares or GDI Warrant Shares are freely tradeable
pursuant to Rule 144(k) of the Securities Act or (ii) sold pursuant to
an effective registration statement under the Securities Act, GDI
shall, upon the written request of the holder thereof, issue to such
holder a new certificate evidencing such securities without the legend
required by this Section 5.8 endorsed thereon.
5.9 Disclosure of Information. The Purchasers, or their
representatives, have had the opportunity to discuss the Companies' business,
management, financial affairs and the terms and conditions of the offering of
the securities covered by this Amended and Restated Purchase Agreement with the
Companies' management and have had an opportunity to visit and review the
Companies' facilities.
5.10 Non-Public Information. Each Company covenants and agrees that
neither it nor any other person or entity acting on its behalf has provided or
will provide any Purchaser with any information that such Company believes
constitutes material non-public information, unless prior thereto such Purchaser
shall have executed a written agreement regarding the confidentiality and use of
such information. Each Company understands and confirms that each Purchaser
shall be relying on the foregoing covenant in effecting transactions in
securities of the Companies. In the event of a breach of the foregoing covenant
by a Company or any person or entity acting on its behalf, GDI shall, upon
written notice of such breach, make public disclosure of such material
non-public information; provided that GDI shall not be required to make public
disclosure of any such material non-public information which the Board of
Directors of GDI reasonably determines not to be in the best interests of GDI to
disclose. In the event that GDI has not made such public disclosure as required
pursuant to the foregoing sentence within two (2) business days of such written
notice, in addition to any other remedy provided herein or in the Second Closing
Related Agreements or otherwise available, a Purchaser shall have the right to
make a public disclosure, in the form of a press release, public advertisement
or otherwise, of such material non-public information without the prior approval
by any Company or any person or entity acting on its or their behalf. No
Purchaser shall have any liability to any Company or any person or entity acting
on its or their behalf for any such disclosure.
5.11 Audited Financial Statements and Form 10 Disclosure. GDI
covenants and agrees that it will comply with its obligation to file with the
SEC a current report on Form 8-K within four (4) days following the Second
Closing containing the requisite audited consolidated financial statements of
Aduromed and the requisite Form 10-type disclosure regarding the Aduromed. The
Form 8-K to be filed by GDI pursuant to this Section 5.11 will disclose all
material terms of the transactions contemplated hereby and by the Second Closing
Related Agreements (and attach as exhibits thereto the this Amended and Restated
Purchase Agreement and the Second Closing Related Agreements) in accordance with
the applicable SEC rules and
28
regulations. In addition, GDI will make such other filings and notices in the
manner and time required by the SEC and the OTC-BB. Notwithstanding the
foregoing, no Company shall publicly disclose the name of any Purchaser, or
include the name of any Purchaser in any filing with the SEC or any regulatory
agency or securities exchange or the OTC-BB, without the prior written consent
of such Purchaser, except to the extent such disclosure is required by law or
OTC-BB regulations, in which case such Company shall provide the Purchasers with
prior notice of such disclosure. Each Purchaser shall provide to the Companies
in a reasonably timely fashion such information regarding itself and its
affiliates as is reasonably requested from time to time by the Companies to
satisfy the requirements under the SEC's rules and regulations applicable to the
transactions contemplated hereunder and under the Second Closing Related
Agreements.
6. Conditions to the Obligations of the Purchasers.
6.1 Conditions to the Obligations of the Purchasers at the First
Closing. The obligation of each of the Purchasers to purchase the Aduromed
Series A Preferred and First Closing Aduromed Warrants at the First Closing is
subject to the fulfillment, or the waiver by such Purchaser, of each of the
following conditions on or before the First Closing Date:
(a) Accuracy of Representations and Warranties. Each
representation and warranty contained in Section 3 shall be true on
and as of the First Closing Date with the same effect as though such
representation and warranty had been made on and as of such date
(except representations and warranties, if any, which speak as of a
date certain, which shall be true and correct as of such date on the
First Closing Date).
(b) Performance. Aduromed shall have performed and complied in
all material respects with the agreements and conditions contained in
the Original Purchase Agreement and the First Closing Related
Agreements required to be performed or complied with by Aduromed prior
to or at the First Closing.
(c) Opinion of Counsel. The Purchasers shall have received an
opinion from counsel for Aduromed, dated as of the First Closing Date,
addressed to the Purchasers at the First Closing, in the form attached
hereto as Exhibit G.
(d) Certificates and Documents. On or prior to the First Closing
Date, Aduromed shall have delivered to each of the Purchasers each of
the certificates and documents referred to in Section 6.3(a).
(e) Effectiveness of Aduromed Series A Certificate of
Designations. The Aduromed Series A Certificate of Designations shall
have been made effective by filing such Aduromed Series A Certificate
of Designations with the Secretary of State of the State of Delaware.
(f) Registration Rights Agreement. The Registration Rights
Agreement, dated as of the date of the Original Purchase Agreement,
among Aduromed and the Purchasers, in the form attached hereto as
Exhibit H (the "Registration Rights Agreement"), shall have been
executed by Aduromed and the Purchasers.
29
(g) Stockholders Agreement. The Stockholders Agreement, dated as
of the date of the Original Purchase Agreement, among Aduromed, the
Purchasers and certain of the other stockholders of Aduromed, in the
form attached hereto as Exhibit I (the "Stockholders Agreement"),
shall have been executed by Aduromed, the Purchasers and each of the
other stockholders of Aduromed.
(h) Blue Sky Approvals. Aduromed shall have received the
requisite approvals of the securities commissioners of all states in
which prior approvals are required and such approvals shall be in full
force and effect on the First Closing Date.
(i) Other Matters. All corporate, legal, governmental,
administrative and other proceedings in connection with the
transactions contemplated by the Original Purchase Agreement and all
documents and instruments incident to such transactions shall be
reasonably satisfactory in substance and form to the Purchasers, and
the Purchasers shall have received all such counterpart originals or
certified or other copies of such documents as they may reasonably
request.
6.2 Conditions to the Obligations of the Purchasers at the Second
Closing. The obligation of each of the Purchasers to purchase the GDI Series B
Preferred and Second Closing GDI Warrants at the Second Closing is subject to
the fulfillment, or the waiver by such Purchaser, of each of the following
conditions on or before the Second Closing Date:
(a) Accuracy of Representations and Warranties. Each
representation and warranty contained in Section 4 shall be true on
and as of the Second Closing Date with the same effect as though such
representation and warranty had been made on and as of such date
(except representations and warranties, if any, which speak as of a
date certain, which shall be true and correct as of such date on the
Second Closing Date).
(b) Performance. Each Company shall have performed and complied
in all material respects with the agreements and conditions contained
in this Amended and Restated Purchase Agreement, the First Closing
Related Agreements and the Second Closing Related Agreements required
to be performed or complied with by such Company prior to or at the
Second Closing.
(c) Opinions of Counsel.
(i) The Purchasers shall have received an opinion from
counsel for Aduromed, dated as of the Second Closing Date,
addressed to the Purchasers at the Second Closing, in the form
attached hereto as Exhibit J-I.
(ii) The Purchasers shall have received an opinion from
counsel for GDI, dated as of the Second Closing Date, addressed
to the Purchasers at the Second Closing, in the form attached
hereto as Exhibit J-II.
(d) Certificates and Documents. On or prior to the Second Closing
Date, Aduromed and GDI shall have delivered to each of the Purchasers
each of the certificates and documents referred to in Section 6.3(b).
30
(e) Blue Sky Approvals. Each Company shall have received the
requisite approvals of the securities commissioners of all states in
which prior approvals are required and such approvals shall be in full
force and effect on the Second Closing Date.
(f) Public Company Merger. Each of the following shall have
occurred:
(i) The holders of a majority of the outstanding shares of
Aduromed Series A Preferred shall have approved the Merger and
the Merger Agreement in accordance with the provisions of the
Aduromed Series A Certificate of Designations; and
(ii) The Merger shall have been consummated immediately
prior to the consummation of the Second Closing.
(g) Effectiveness of GDI Series A Certificate of Designations.
The GDI Series A Certificate of Designations shall have been made
effective by filing such Series A Certificate of Designations with the
Secretary of State of the State of Delaware.
(h) Effectiveness of GDI Series B Certificate of Designations.
The GDI Series B Certificate of Designations shall have been made
effective by filing such Series B Certificate of Designations with the
Secretary of State of the State of Delaware.
(i) Certified Public Transaction Agreement. Aduromed and GDI
shall have delivered to the Purchasers a true and accurate copy of the
Merger Agreement as in effect as of the Second Closing, certified as
such by the Secretary of each of Aduromed and GDI.
(j) Amended and Restated Registration Rights Agreement. The
Amended and Restated Registration Rights Agreement, dated as of the
date of the Second Closing, among Aduromed and the Purchasers, in the
form attached hereto as Exhibit O (the "Amended and Restated
Registration Rights Agreement"), shall have been executed by GDI, the
Surviving Entity and the Purchasers.
(k) Amended and Restated Stockholders Agreement. The Amended and
Restated Stockholders Agreement, dated as of the date of the Second
Closing, among GDI, the Surviving Entity, the Purchasers and certain
of the other stockholders of GDI, in the form attached hereto as
Exhibit P (the "Amended and Restated Stockholders Agreement"), shall
have been executed by GDI, the Surviving Entity, the Purchasers and
each of the other stockholders of GDI party thereto.
(l) Other Matters. All corporate, legal, governmental,
administrative and other proceedings in connection with the
transactions contemplated by this Amended and Restated Purchase
Agreement and all documents and instruments incident to such
transactions shall be reasonably satisfactory in substance and form to
the Purchasers, and the Purchasers shall have received all such
counterpart originals or certified or other copies of such documents
as they may reasonably request.
6.3 Certificates and Documents to be Delivered at each Closing.
31
(a) On or prior to the First Closing Date, Aduromed shall deliver
to each of the Purchasers:
(i) the certificate of incorporation of Aduromed, as in
effect as of the First Closing Date, certified by the Secretary
of State of the State of Delaware;
(ii) certificates, dated no more than five days prior to the
First Closing Date, as to the corporate good standing of Aduromed
issued by the Secretary of State of the State of Delaware and any
other jurisdiction where Aduromed is qualified to do business;
(iii) the by-laws of Aduromed, as in effect as of the First
Closing Date, certified by its Secretary or Assistant Secretary
as of the First Closing Date;
(iv) a certificate of incumbency of Aduromed's principal
officers, certified by its Secretary or Assistant Secretary as of
the First Closing Date;
(v) resolutions of the Board of Directors of Aduromed,
authorizing and approving all matters in connection with the
Original Purchase Agreement and the First Closing Related
Agreements and the transactions contemplated hereby and thereby,
certified by the Secretary or Assistant Secretary of Aduromed as
of the First Closing Date; and
(vi) a certificate by the President of Aduromed evidencing
compliance with conditions set forth in Sections 6.1(a) and (b).
(b) On or prior to the Second Closing Date, Aduromed and GDI
shall deliver to each of the Purchasers:
(i) the certificate of incorporation of GDI, as in effect as
of the Second Closing Date, certified by the Secretary of State
of the State of Delaware;
(ii) the certificate of incorporation of Surviving Entity,
as in effect as of the Second Closing Date, certified by the
Secretary of State of the State of Delaware;
(iii) the certificate of merger in connection with the
Merger, as in effect as of the Second Closing Date, certified by
the Secretary of State of the State of Delaware;
(iv) certificates, dated no more than five days prior to the
Second Closing Date, as to the corporate good standing of
Aduromed, GDI and MergerSub issued by the Secretary of State of
the State of Delaware and any other jurisdiction where Aduromed,
GDI or MergerSub, as applicable, is qualified to do business;
(v) the by-laws of GDI, as in effect as of the Second
Closing Date, certified by its Secretary or Assistant Secretary
as of the Second Closing Date;
32
(vi) the by-laws of the Surviving Entity, as in effect as of
the First Closing Date, certified by its Secretary or Assistant
Secretary as of the First Closing Date;
(vii) a certificate of incumbency of GDI's principal
officers, certified by its Secretary or Assistant Secretary as of
the Second Closing Date;
(viii) a certificate of incumbency of the Surviving Entity's
principal officers, certified by its Secretary or Assistant
Secretary as of the Second Closing Date;
(ix) resolutions of the Board of Directors of Aduromed,
authorizing and approving all matters in connection with this
Amended and Restated Purchase Agreement and the Second Closing
Related Agreements and the transactions contemplated hereby and
thereby, certified by the Secretary or Assistant Secretary of
Aduromed as of the Second Closing Date;
(x) resolutions of the Board of Directors of GDI,
authorizing and approving all matters in connection with this
Amended and Restated Purchase Agreement and the Second Closing
Related Agreements and the transactions contemplated hereby and
thereby, certified by the Secretary or Assistant Secretary of GDI
as of the Second Closing Date; and
(xi) a certificate by the President of each of GDI and the
Surviving Entity evidencing compliance with conditions set forth
in Sections 6.2(a) and (b).
7. Conditions to the Obligations of the Company. The obligations of (i)
Aduromed to sell the Aduromed Series A Preferred and First Closing Aduromed
Warrants to the Purchasers at the First Closing on the First Closing Date, and
(ii) GDI to sell the GDI Series B Preferred and Second Closing GDI Warrants to
the Purchasers at the Second Closing on the Second Closing Date are subject to
fulfillment, or the waiver, of each of the following conditions on or before the
applicable Closing Date:
7.1 Accuracy of Representations and Warranties. The representations
and warranties of the Purchasers contained in Section 5 shall be true on and as
of the applicable Closing Date with the same effect as though such
representations and warranties had been made on and as of that date.
7.2 Performance. The Purchasers shall have performed and complied with
all agreements and conditions contained in this Amended and Restated Purchase
Agreement required to be performed and complied with by them prior to or at the
applicable Closing.
7.3 Purchase Price. The Purchasers shall have delivered, as
applicable, (a) to Aduromed the First Closing Purchase Price or (b) to GDI,
Second Closing Purchase Price.
8. Covenants.
33
8.1 Efforts to Effect Public Transaction. Aduromed and GDI shall use
their respective best efforts to consummate the Merger as practicable following
the First Closing, but in any event on or prior to February 28, 2006.
8.2 Repurchase of Shares and Warrants.
(a) In the event that any Purchaser shall deliver written notice
to Aduromed of its election to seek redemption pursuant to this
Section 8.2(a) at any time prior to the Second Closing when the First
Closing Aduromed Warrant Shares or Aduromed Conversion Shares then
held by such Purchaser shall not then be covered by an effective
registration statement under the Securities Act, Aduromed agrees that
it will, within 20 days of receipt of such written notice, repurchase
the Aduromed Series A Preferred and First Closing Aduromed Warrants
then held by such Purchaser for an aggregate repurchase price of $100
in cash.
(b) In the event that any Purchaser shall deliver written notice
to GDI of its election to seek redemption pursuant to this Section
8.2(b) at any time after the Second Closing when the GDI Warrant
Shares or GDI Conversion Shares then held by such Purchaser shall not
then be covered by an effective registration statement under the
Securities Act, GDI agrees that it will, within 20 days of receipt of
such written notice, repurchase the GDI Series A Preferred, GDI Series
B Preferred and GDI Warrants then held by such Purchaser for an
aggregate repurchase price of $100 in cash.
8.3 Notification. Prior to the Second Closing Date, Aduromed and GDI
will promptly notify Purchasers in writing if it becomes aware of any fact or
condition that causes or constitutes a breach of any of the representations and
warranties set forth in Section 4 as of the date of this Amended and Restated
Purchase Agreement, or if Aduromed or GDI becomes aware of the occurrence after
the date of this Amended and Restated Purchase Agreement of any fact or
condition that would (except as expressly contemplated by this Amended and
Restated Purchase Agreement) cause or constitute a breach of any such
representation or warranty had such representation or warranty been made as of
the time of occurrence or discovery of such fact or condition.
9. Miscellaneous.
9.1 Expenses. Each party hereto will pay its own expenses in
connection with the transactions contemplated hereby, whether or not such
transactions shall be consummated; provided, however, that Aduromed shall, at
each Closing, pay the reasonable fees and out-of-pocket expenses of the
Purchasers (including the reasonable fees and expenses of Purchasers' counsel,
Mayer, Brown, Xxxx & Maw LLP) in connection with such transactions in an amount
not to exceed $50,000 in the aggregate.
9.2 Survival of Representations and Warranties. With respect to each
Purchaser, all agreements, covenants, representations and warranties contained
herein shall survive the execution and delivery of this Amended and Restated
Purchase Agreement, and the respective closings of the transactions contemplated
hereby, until the first to occur of (a) all of the Registrable Securities (as
defined in the Amended and Restated Registration Rights Agreement)
34
of such Purchaser shall have been sold by such Purchaser pursuant to the
Required Registration Statement (as defined in the Amended and Restated
Registration Rights Agreement) and (b) the second anniversary of the Second
Closing Date, whereupon all such covenants, representations and warranties shall
expire and terminate and shall be of no further force or effect.
9.3 Notices. Any notice required or permitted under this Amended and
Restated Purchase Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or sent by
electronic facsimile transmission with a copy in either case sent by United
States Post Office, by registered or certified mail, postage prepaid and
addressed to the party to be notified or by overnight or international courier,
as follows:
If to Aduromed, at Aduromed Corporation, 000 Xxxxxxxxx Xxxxxx, Xxxxx
00-00, Xxxxxx, XX 00000, Attention: Xxxxxx X. Xxxxxx, President, or at such
other address or addresses as may have been furnished in writing by Aduromed to
the Purchasers, with a copy (which shall not constitute notice) to Stairs
Xxxxxxxxxx Xxxxxx, 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000,
Attention: Xxxxx X. Xxx, Esq.; or
If to GDI, at General Devices, Inc., 000 Xxxxxxxxx Xxxxxx, Xxxxx
00-00, Xxxxxx, XX 00000, Attention: Xxxxxx X. Xxxxxx, President, or at such
other address or addresses as may have been furnished in writing by GDI to the
Purchasers, with a copy (which shall not constitute notice) to Stairs Xxxxxxxxxx
Xxxxxx, 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxx X.
Xxx, Esq.;
If to a Purchaser, at such Purchaser's respective address set forth on
Exhibit A-III, or at such other address or addresses as may have been furnished
to Aduromed in writing by such Purchaser.
Notices provided in accordance with this Section 9.3 shall be deemed
delivered upon personal delivery or two business days after deposit in the mail.
9.4 Successor and Assigns. The provisions of this Amended and Restated
Purchase Agreement shall bind and inure to the benefit of the respective
successors, assigns, heirs, executors and administrators of the parties hereto.
9.5 Entire Agreement. This Amended and Restated Purchase Agreement
embodies the entire agreement and understanding between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, whether written or oral, relating to such subject matter.
9.6 Amendments and Waivers.
(a) Amendments to this Agreement. Except as otherwise expressly
set forth in this Amended and Restated Purchase Agreement, any term of
this Amended and Restated Purchase Agreement may be amended with
respect to all Purchasers and the observance of any term of this
Amended and Restated Purchase Agreement may be waived with respect to
all Purchasers (either generally or in a particular instance and
either retroactively or prospectively), with the written consent of
Aduromed, GDI and the
35
holders of at least a majority of the aggregate number of shares of
GDI Common Stock issued or issuable upon exercise of the GDI Warrants
and upon conversion of the GDI Series A Preferred and GDI Series B
Preferred (calculated on an as converted into GDI Common Stock basis).
(b) General. Any amendment or waiver effected in accordance with
this Section 9.6 shall be binding upon Aduromed, GDI and each
Purchaser. No waivers of or exceptions to any term, condition or
provision of this Amended and Restated Purchase Agreement or any
Second Closing Related Agreement, in any one or more instances, shall
be deemed to be, or construed as, a further or continuing waiver of
any such term, condition or provision.
9.7 Counterparts; Facsimile Signatures. This Amended and Restated
Purchase Agreement may be executed in counterparts, each of which shall be
deemed to be an original, but all of which shall be one and the same document.
This Amended and Restated Purchase Agreement may be executed by facsimile
signatures.
9.8 Press Releases; Publicity. The Purchasers, GDI and Aduromed will
consult with each other before issuing, and provide each other the opportunity
to review and comment upon, any press release or other public statements with
respect to this Amended and Restated Purchase Agreement or any other Second
Closing Related Agreement and shall not issue any such press release or make any
such public statement prior to such consultation, except as may be required by
applicable law, court process or by obligations pursuant to any listing
agreement with any national securities exchange. Notwithstanding anything to the
contrary set forth herein, without the prior written consent of the applicable
Purchaser, none of Aduromed, the Surviving Entity or GDI shall not disclose the
name of any Purchaser or otherwise identify any such Purchaser as a stockholder
of any Company except as may be required by applicable law, court process or
obligations pursuant to any listing agreement with any national securities
exchange.
9.9 Section Headings. The section headings are for the convenience of
the parties and in no way alter, modify, amend, limit, or restrict the
contractual obligations of the parties.
9.10 Severability. The invalidity or unenforceability of any provision
of this Amended and Restated Purchase Agreement shall not affect the validity or
enforceability of any other provision of this Amended and Restated Purchase
Agreement.
9.11 Governing Law. This Amended and Restated Purchase Agreement shall
be governed by and construed in accordance with the laws of the State of New
York, without reference to the principles thereof relating to the conflict of
laws.
[Remainder of Page Intentionally Left Blank]
36
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Securities Purchase Agreement as of the day and year first above
written.
ADUROMED:
ADUROMED CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
GDI:
GENERAL DEVICES, INC.
By: /s/ Xxxxx Xxxxxx, Xx.
------------------------------------
Name: Xxxxx Xxxxxx, Xx.
Title: President
PURCHASERS:
PEQUOT SCOUT FUND, L.P.
By: Pequot Capital Management, Inc.,
its Investment Manager
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: CFO
PEQUOT MARINER MASTER
FUND, L.P.
By: Pequot Capital Management, Inc.,
its Investment Manager
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: CFO
PEQUOT NAVIGATOR OFFSHORE FUND, INC.
By: Pequot Capital Management, Inc.,
its Investment Advisor
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: CFO
PEQUOT DIVERSIFIED MASTER FUND, LTD.
By: Pequot Capital Management, Inc.,
its Investment Manager
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: CFO
PREMIUM SERIES PCC LIMITED
CELL 33
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Attorney in Fact
SHERLEIGH ASSOCIATES INC.
DEFINED BENEFIT PENSION PLAN
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Trustee
