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PROMISSORY NOTE AND WARRANT PURCHASE AGREEMENT
by and among
Critical Home Care, Inc.
and
the parties named herein on Schedule 1, as Purchasers
September 21, 2004
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This PROMISSORY NOTE AND WARRANT PURCHASE AGREEMENT (this "AGREEMENT")
is dated as of September 21, 2004, among Critical Home Care, Inc., a Nevada
corporation (the "COMPANY"), and the purchasers identified on SCHEDULE 1 hereto
(each a "PURCHASER" and collectively the "PURCHASERS").
WHEREAS, subject to the terms and conditions set forth in this Agreement
and pursuant to Section 4(2) of the Securities Act (as defined below), and Rule
506 promulgated thereunder, the Company desires to issue and sell to the
Purchasers, and the Purchasers, severally and not jointly, desire to purchase
from the Company in the aggregate, $5,000,000 principal amount of the Seller's
6% Promissory Notes and Warrants to purchase 3,150,000 shares of Common Stock.
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement, and for other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the Company and each Purchaser agree
as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS.
In addition to the terms defined elsewhere in this Agreement, for all
purposes of this Agreement, the following terms have the meanings indicated in
this Section 1.1:
"ACTION" shall have the meaning ascribed to such term in Section 3.1(j).
"AFFILIATE" means any Person that, directly or indirectly through one or
more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 144. With
respect to a Purchaser, any investment fund or managed account that is managed
on a discretionary basis by the same investment manager as such Purchaser will
be deemed to be an Affiliate of such Purchaser.
"AGREEMENT" shall have the meaning ascribed to such term in the
Preamble.
"BUSINESS DAY" means any day except Saturday, Sunday and any day which
shall be a federal legal holiday or a day on which banking institutions in the
State of Michigan are authorized or required by law or other governmental action
to close.
"CLOSING" shall have the meaning ascribed to such term in Section
2.1(a).
"CLOSING DATE" shall have the meaning ascribed to such term in Section
2.1(a).
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means the common stock of the Company, $0.01 par value
per share, and any securities into which such common stock may hereafter be
reclassified.
"COMMON STOCK EQUIVALENTS" means any securities of the Company or the
Subsidiaries which would entitle the holder thereof to acquire at any time
Common Stock, including without limitation, any debt, preferred stock, rights,
options, warrants or other instrument that is at any time convertible into or
exchangeable for, or otherwise entitles the holder thereof to receive, Common
Stock.
"COMPANY" shall have the meaning ascribed to such term in the Preamble.
"DISCLOSURE SCHEDULES" means the Disclosure Schedules concurrently
delivered herewith.
"EFFECTIVE DATE" means the date that the Registration Statement is first
declared effective by the Commission.
"ENVIRONMENTAL LAWS" shall have the meaning ascribed to such term in
Section 3.1(y).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"GAAP" shall have the meaning ascribed to such term in Section 3.1(h).
"GOVERNMENTAL AUTHORIZATIONS" shall have the meaning ascribed to such
term in Section 3.1(m).
"HAZARDOUS SUBSTANCES" shall have the meaning ascribed to such term in
Section 3.1(y).
"INDEMNIFIED PARTY" shall have the meaning ascribed to such term in
Section 5.3.
"INDEMNIFYING PARTY" shall have the meaning ascribed to such term in
Section 5.3.
"INTELLECTUAL PROPERTY" shall have the meaning ascribed to such term in
Section 3.1(o).
"INVESTOR RIGHTS AGREEMENT" means the Investor Rights Agreement, dated
as of the date of this Agreement, between the Company and each of the
Purchasers, in the form of EXHIBIT A hereto.
"LIEN" means a lien, charge, security interest, encumbrance, right of
first refusal or other restriction, except for a lien for current taxes not yet
due and payable and a minor imperfection of title, if any, not material in
nature or amount and not materially detracting from the value or impairing the
use of the property subject thereto or impairing the operations or proposed
operations of the Company.
"MATERIAL ADVERSE EFFECT" shall have the meaning ascribed to such term
in Section 3.1(b).
"PERSON" means an individual or corporation, partnership, trust,
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof)
or other entity of any kind.
"PREMISES" shall have the meaning ascribed to such term in Section
3.1(y).
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"PROMISSORY NOTES" means the 6% Promissory Notes of the Seller, which
shall be in the form attached as EXHIBIT B hereto.
"PURCHASER" shall have the meaning ascribed to such term in the
Preamble.
"REGISTRATION STATEMENT" means a registration statement meeting the
requirements set forth in the Investor Rights Agreement and covering the resale
by the Purchasers of the Warrant Shares.
"RIGHTS" shall have the meaning ascribed to such term in Section 3.1(o).
"RULE 144" means Rule 144 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the
same effect as such Rule.
"SEC REPORTS" shall have the meaning ascribed to such term in Section
3.1(h).
"SECURITIES" means the Promissory Notes, the Warrants and the Warrant
Shares.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SUBSCRIPTION AMOUNT" means, as to each Purchaser, the amount set forth
beside such Purchaser's name on SCHEDULE 1 hereto, in United States dollars and
in immediately available funds.
"SUBSIDIARY" means, with respect to any entity, any corporation or other
organization of which securities or other ownership interest having ordinary
voting power to elect a majority of the board of directors or other persons
performing similar functions, are directly or indirectly owned by such entity or
of which such entity is a partner or is, directly or indirectly, the beneficial
owner of 50% or more of any class of equity securities or equivalent profit
participation interests.
"TRADING DAY" means (i) a day on which the Common Stock is traded on a
Trading Market, or (ii) if the Common Stock is not listed on a Trading Market, a
day on which the Common Stock is traded on the over-the-counter market, as
reported by the OTC Bulletin Board, or (iii) if the Common Stock is not quoted
on the OTC Bulletin Board, a day on which the Common Stock is quoted in the
over-the-counter market as reported by the National Quotation Bureau
Incorporated (or any similar organization or agency succeeding to its functions
of reporting prices); provided, that in the event that the Common Stock is not
listed or quoted as set forth in (i), (ii) and (iii) hereof, then Trading Day
shall mean a Business Day.
"TRADING MARKET" means the following markets or exchanges, if any, on
which the Common Stock is listed or quoted for trading on the date in question:
the American Stock Exchange, the New York Stock Exchange, the Nasdaq National
Market or the Nasdaq SmallCap Market.
"TRANSACTION DOCUMENTS" means this Agreement, the Investor Rights
Agreement, the Promissory Notes, the Warrants and any other documents or
agreements executed in connection with the transactions contemplated hereunder.
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"WARRANTS" means the Common Stock Purchase Warrants, in the form of
EXHIBIT C hereto.
"WARRANT SHARES" means the shares of Common Stock issuable upon exercise
of the Warrants.
ARTICLE II
PURCHASE AND SALE
2.1 CLOSING.
(a) The closing of the transactions contemplated under this
Agreement (the "CLOSING") will take place as promptly as practicable, but no
later than five (5) Business Days following satisfaction or waiver of the
conditions set forth in Sections 2.2 and 2.3 (other than those conditions which
by their terms are not to be satisfied or waived until the Closing), at the
offices of Xxxxxx and Xxxx LLP, 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000 (or
remotely via exchange of documents and signatures) or at such other place or day
as may be mutually acceptable to the Purchasers and the Company. The date on
which the Closing occurs is the "CLOSING DATE".
(b) At the Closing, the Purchasers shall purchase, severally and not
jointly, and the Company shall issue and sell, in the aggregate, $5,000,000
principal amount of Promissory Notes and Warrants to purchase 3,150,000 shares
of Common Stock on the Closing Date. Each Purchaser shall purchase from the
Company, and the Company shall issue and sell to each Purchaser, Promissory
Notes in a principal amount equal to such Purchaser's Subscription Amount and a
Warrant to purchase the number of Shares as indicated on SCHEDULE 1 for such
Purchaser.
2.2 CONDITIONS TO OBLIGATIONS OF PURCHASERS TO EFFECT THE CLOSING.
The obligations of each Purchaser to effect the Closing and the
transactions contemplated by this Agreement shall be subject to the satisfaction
at or prior to the Closing of each of the following conditions, any of which may
be waived, in writing, by such Purchaser:
(a) At the Closing (unless otherwise specified below) the Company
shall deliver or cause to be delivered to each Purchaser the following:
(i) this Agreement, duly executed by the Company;
(ii) a certificate evidencing the Promissory Note in the
principal amount equal to such Purchaser's Subscription Amount as set forth on
SCHEDULE 1 hereto, registered in the name of such Purchaser;
(iii) a Warrant, registered in the name of such Purchaser,
pursuant to which such Purchaser shall have the right to acquire up to the
number of shares of Common Stock as set forth on SCHEDULE 1 hereto;
(iv) the Investor Rights Agreement, duly executed by the
Company;
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(v) a legal opinion of Xxxx, Xxxxxxx and Xxxxx, PLC, counsel
to the Company, in the form of EXHIBIT D hereto; and
(vi) a legal opinion of Marquis & Aurbach, Nevada counsel to
the Company, in the form of EXHIBIT E hereto; and
(vii) a certificate of the Secretary of the Seller (the
"SECRETARY'S CERTIFICATE"), attaching a true copy of the Certificate of
Incorporation and Bylaws of the Seller, as amended to the Closing Date, and
attaching true and complete copies of the resolutions of the Board of Directors
of the Seller authorizing the execution, delivery and performance of this
Agreement and the other Transaction Documents.
(viii) A wire transfer representing the Purchasers' reasonable
legal fees and other expenses as described in Section 6.1 hereof; such fee may,
at the election of the Purchasers, be paid out of the funds due from the
Purchasers at the Closing.
(b) All representations and warranties of the Company contained
herein shall remain true and correct as of the Closing Date as though such
representations and warranties were made on such date (except those
representations and warranties that address matters only as of a particular date
will remain true and correct as of such date).
(c) As of the Closing Date, there shall have been no Material
Adverse Effect with respect to the Company since the date hereof.
(d) From the date hereof to the Closing Date, trading in the Common
Stock shall not have been suspended by the Commission (except for any suspension
of trading of limited duration agreed to by the Company, which suspension shall
be terminated prior to the Closing), and, at any time prior to the Closing Date,
trading in securities generally as reported by Bloomberg Financial Markets shall
not have been suspended or limited, or minimum prices shall not have been
established on securities whose trades are reported by such service, or on any
Trading Market, nor shall a banking moratorium have been declared either by the
United States or New York State authorities.
(e) Xxxx Xxxxxxx and Xxxxxxxx Xxxxxxx shall have executed an
agreement, in form and substance acceptable to the Purchasers, waiving their
preemptive rights with respect to the issuance by the Seller of the Securities.
2.3. CONDITIONS TO OBLIGATIONS OF THE COMPANY TO EFFECT THE CLOSING.
(a) The obligations of the Company to effect the Closing and the
transactions contemplated by this Agreement shall be subject to the satisfaction
at or prior to the Closing of each of the following conditions, any of which may
be waived, in writing, by the Company. At the Closing, each Purchaser shall
deliver or cause to be delivered to the Company the following:
(i) this Agreement, duly executed by such Purchaser;
(ii) such Purchaser's Subscription Amount, by wire transfer
of immediately available funds as provided in the Closing Escrow Agreement; and
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(iii) the Investor Rights Agreement, duly executed by such
Purchaser.
(b) All representations and warranties of each of the Purchasers
contained herein shall remain true and correct as of the Closing Date as though
such representations and warranties were made on such date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Except as set forth under the corresponding section of the Disclosure
Schedules delivered concurrently herewith, the Company hereby makes the
following representations and warranties as of the date hereof and as of the
Closing Date to each Purchaser:
(A) SUBSIDIARIES. Except as listed in the SEC Reports, the Company
has no direct or indirect Subsidiaries.
(B) ORGANIZATION AND QUALIFICATION. Each of the Company and the
Subsidiaries is an entity duly incorporated or otherwise organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization (as applicable), with the requisite corporate
power and authority to own and use its properties and assets and to carry on its
business as currently conducted. Neither the Company nor any Subsidiary is in
violation of any of the provisions of its respective certificate or articles of
incorporation, bylaws or other organizational or charter documents. Each of the
Company and the Subsidiaries is duly qualified to conduct business and is in
good standing as a foreign corporation or other entity in each jurisdiction in
which the nature of the business conducted or property owned by it makes such
qualification necessary, except where the failure to be so qualified or in good
standing, as the case may be, would not have or result in (i) a material adverse
effect on the legality, validity or enforceability of any Transaction Document,
(ii) a material adverse effect on the business or financial condition of the
Company and the Subsidiaries, taken as a whole, or (iii) a material adverse
effect on the Company's ability to perform in any material respect on a timely
basis its obligations under any Transaction Document (any of (i), (ii) or (iii),
a "MATERIAL ADVERSE EFFECT").
(C) AUTHORIZATION; ENFORCEABILITY. The Company has the requisite
corporate power and authority to enter into and to consummate the transactions
contemplated by each of the Transaction Documents and otherwise to carry out its
obligations thereunder. The execution and delivery of each of the Transaction
Documents by the Company and the consummation by it of the transactions
contemplated thereby have been duly authorized by all necessary action on the
part of the Company and no further action is required by the Company in
connection therewith. Each Transaction Document has been (or upon delivery will
have been) duly executed by the Company and, when delivered in accordance with
the terms hereof, will constitute the valid and binding obligation of the
Company enforceable against the Company in accordance with its terms, subject to
laws of general application relating to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and rules
of law governing specific performance, injunctive relief, or other equitable
remedies.
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(D) NO CONFLICTS. The execution, delivery and performance of the
Transaction Documents by the Company and the consummation by the Company of the
transactions contemplated thereby do not and will not (i) conflict with or
violate any provision of the Company's or any Subsidiary's certificate or
articles of incorporation, bylaws or other organizational or charter documents,
or (ii) conflict with, or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation (with or without
notice, lapse of time or both) of, any agreement, credit facility, debt or other
instrument (evidencing a Company or Subsidiary debt or otherwise) or other
understanding to which the Company or any Subsidiary is a party or by which any
property or asset of the Company or any Subsidiary is bound or affected, or
(iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Company or a Subsidiary is subject (including federal and state
securities laws and regulations), or by which any property or asset of the
Company or a Subsidiary is bound or affected, except, in the cases of clause
(ii), where such conflict, default or violation would not have or result in a
Material Adverse Effect.
(E) FILINGS, CONSENTS AND APPROVALS. The Company is not required to
obtain any consent, waiver, authorization or order of, give any notice to, or
make any filing or registration with, any court or other federal, state, local
or other governmental authority or other Person in connection with the
execution, delivery and performance by the Company of the Transaction Documents,
other than (a) the filing with the Commission of the Registration Statement, the
application(s) to each Trading Market for the listing of the Warrant Shares for
trading thereon in the time and manner required thereby, Form D and applicable
Blue Sky filings and (b) such as have already been obtained or such exemptive
filings as are required to be made under applicable securities laws.
(F) ISSUANCE OF THE SECURITIES. The Securities are duly authorized
and, when issued and paid for in accordance with the Transaction Documents, will
be duly and validly issued, fully paid and nonassessable, free and clear of all
Liens, other than any Liens created by or imposed on the holders thereof through
no action of the Company. The Company has reserved from its duly authorized
capital stock the maximum number of shares of Common Stock issuable pursuant to
the Warrants, including, without limitation, such number of shares as would be
issuable pursuant to the Warrants upon the occurrence of the contingencies
described in Section 15 of the Warrants.
(G) CAPITALIZATION.
(i) The authorized and outstanding capitalization of the
Company is as described in the Company's most recent periodic report filed with
the Commission. The Company has not issued any capital stock since such filing,
other than pursuant to the exercise of employee stock options under the
Company's stock option plans and pursuant to the conversion or exercise of
Common Stock Equivalents outstanding on the date thereof. All shares of the
Company's issued and outstanding capital stock have been duly authorized, are
validly issued and outstanding, and are fully paid and nonassessable. No
securities issued by the Company from May 7, 2004 to the date hereof were issued
in violation of any statutory or common law preemptive rights. There are no
dividends which have accrued or been declared but are unpaid on the capital
stock of the Company. All taxes required to be paid by the Company in connection
with the issuance and any transfers of the Company's capital stock have been
paid. Since May 7, 2004 all securities of
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the Company have been issued in all material respects in accordance with the
provisions of all applicable securities and other laws.
(ii) Except as described on Schedule 3(g)(ii), no Person has
any right of first refusal, preemptive right, right of participation, or any
similar right to participate in the transactions contemplated by the Transaction
Documents. Except as disclosed on Schedule 3(g)(ii) and as a result of the
purchase and sale of the Securities, there are no outstanding options, warrants,
rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities, rights or obligations convertible into or
exchangeable for, or giving any Person any right to subscribe for or acquire,
any shares of Common Stock, or contracts, commitments, understandings or
arrangements by which the Company or any Subsidiary is or may become bound to
issue additional shares of Common Stock, or securities or rights convertible or
exchangeable into shares of Common Stock. The issue and sale of the Securities
will not obligate the Company to issue shares of Common Stock or other
securities to any Person (other than the Purchasers) and will not result in a
right of any holder of Company securities to adjust the exercise, conversion,
exchange or reset price under such securities.
(H) SEC REPORTS; FINANCIAL STATEMENTS; LIABILITIES.
(i) The Company has filed all reports required to be filed
by it under the Securities Act and the Exchange Act, including pursuant to
Section 13(a) or 15(d) of the Exchange Act, for the 12 months preceding the date
hereof (or such shorter period as the Company was required by law to file such
material) (the foregoing materials, including the exhibits thereto, being
collectively referred to herein as the "SEC REPORTS"). As of their respective
filing dates, the SEC Reports complied in all material respects with the
requirements of the Securities Act and the Exchange Act, as the case may be, and
the rules and regulations of the Commission promulgated thereunder, as
applicable, and none of the SEC Reports, as of their respective filing dates,
contained any untrue statement of a material fact or omitted to state a 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.
(ii) The financial statements of the Company included in the
SEC Reports comply with applicable accounting requirements and the rules and
regulations of the Commission with respect thereto as in effect at the time of
filing. Such financial statements have been prepared in accordance with
generally accepted accounting principles in the United States, applied on a
consistent basis during the periods involved ("GAAP"), except as may be
otherwise specified in such financial statements or the notes thereto and except
that unaudited financial statements may not contain all footnotes required by
GAAP, subject to normal year-end audit adjustments. Such financial statements
fairly present in all material respects the financial position of the Company
and its consolidated subsidiaries, if any, as of and for the dates thereof and
the results of operations and cash flows for the periods then ended, subject, in
the case of unaudited statements, to normal year-end audit adjustments.
(iii) Except as set forth in the SEC Reports, and except for
liabilities and obligations incurred since June 30, 2004 in the ordinary course
of business, consistent with past practice, as of the date hereof: (i) the
Company and its Subsidiaries do not have any material liabilities or obligations
(absolute, accrued, contingent or otherwise) and (ii) there has not been any
aspect of the prior or current conduct of the business of the Company or its
Subsidiaries
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which may form the basis for any material claim by any third party which if
asserted could result in a Material Adverse Effect.
(I) MATERIAL CHANGES. Since June 30, 2004, the Company has conducted
its business only in the ordinary course, consistent with past practice, and
there has not occurred:
(i) any event that would have a Material Adverse Effect on
the Company or any of its Subsidiaries;
(ii) any amendments or changes in the charter documents of
the Company and its Subsidiaries;
(iii) any damage, destruction or loss, whether or not covered
by insurance, that would, individually or in the aggregate, have or would be
reasonably likely to have, a Material Adverse Effect on the Company and its
Subsidiaries;
(iv) any:
(A) incurrence, assumption or guarantee by the
Company or its Subsidiaries of any debt for borrowed money other than (i)
equipment leases made in the ordinary course of business, consistent with past
practice and (ii) any such incurrence, assumption or guarantee with respect to
an amount of $25,000 or less that has been disclosed in the SEC Reports;
(B) issuance or sale of any securities convertible
into or exchangeable for securities of the Company other than to directors,
employees and consultants pursuant to existing equity compensation or stock
purchase plans of the Company;
(C) issuance or sale of options or other rights to
acquire from the Company or its Subsidiaries, directly or indirectly, securities
of the Company or any securities convertible into or exchangeable for any such
securities, other than options issued to directors, employees and consultants in
the ordinary course of business, consistent with past practice;
(D) issuance or sale of any stock, bond or other
corporate security other than to directors, employees and consultants pursuant
to existing equity compensation or stock purchase plans of the Company;
(E) discharge or satisfaction of any material Lien;
(F) declaration or making any payment or
distribution to stockholders or purchase or redemption of any share of its
capital stock or other security other than to directors, officers and employees
of the Company or its Subsidiaries as compensation for services rendered to the
Company or its Subsidiary (as applicable) or for reimbursement of expenses
incurred on behalf of the Company or its Subsidiary (as applicable);
(G) sale, assignment or transfer of any of its
intangible assets except in the ordinary course of business, consistent with
past practice, or cancellation of any debt or claim except in the ordinary
course of business, consistent with past practice;
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(H) waiver of any right of substantial value whether
or not in the ordinary course of business;
(I) material change in officer compensation, except
in the ordinary course of business and consistent with past practice; or
(J) other commitment (contingent or otherwise) to do
any of the foregoing.
(v) any creation, sufferance or assumption by the Company or
any of its Subsidiaries of any Lien on any asset or any making of any loan,
advance or capital contribution to or investment in any Person, in an aggregate
amount which exceeds $25,000 outstanding at any time;
(vi) any entry into, amendment of, relinquishment,
termination or non-renewal by the Company or its Subsidiaries of any material
contract, license, lease, transaction, commitment or other right or obligation,
other than in the ordinary course of business, consistent with past practice; or
(vii) any transfer or grant of a right with respect to the
patents, trademarks, trade names, service marks, trade secrets, copyrights or
other intellectual property rights owned or licensed by the Company or its
Subsidiaries, except as among the Company and its Subsidiaries.
(J) LITIGATION. There is no action, suit, inquiry, notice of
violation, proceeding or investigation pending or, to the knowledge of the
Company, threatened against the Company, any Subsidiary or any of their
respective properties before or by any court, arbitrator, governmental or
administrative agency or regulatory authority (federal, state, county, local or
foreign) (collectively, an "ACTION") which (i) adversely affects or challenges
the legality, validity or enforceability of any of the Transaction Documents or
the Securities or (ii) would, if there were an unfavorable decision, have or
result in a Material Adverse Effect. Neither the Company nor any Subsidiary,
nor, to the knowledge of the Company, any director or officer thereof, is or has
been the subject of any Action involving a claim of violation of or liability
under federal or state securities laws or a claim of breach of fiduciary duty.
To the knowledge of the Company, there has not been and there is not pending or
contemplated, any investigation by the Commission involving the Company or any
current or former director or officer of the Company. The Commission has not
issued any stop order or other order suspending the effectiveness of any
registration statement filed by the Company or any Subsidiary under the Exchange
Act or the Securities Act.
(K) LABOR RELATIONS. No material labor dispute exists or, to the
knowledge of the Company, is imminent with respect to any of the employees of
the Company which would have or result in a Material Adverse Effect.
(L) COMPLIANCE. Neither the Company nor any Subsidiary (i) is in
default under or in violation of (and no event has occurred that has not been
waived that, with notice or lapse of time or both, would result in a default by
the Company or any Subsidiary under), nor has the Company or any Subsidiary
received notice of a claim that it is in default under or that it is in
violation of, any indenture, loan or credit agreement or any other agreement or
instrument to which it is a party or by which it or any of its properties is
bound (whether or not such default or
11
violation has been waived), (ii) is in violation of any order of any court,
arbitrator or governmental body, or (iii) is or has been in violation of any
statute, rule or regulation of any governmental authority, including without
limitation all foreign, federal, state and local laws applicable to its
business, except in the case of clauses (i) and (iii) as would not have or
reasonably be expected to result in a Material Adverse Effect.
(M) LICENSES; COMPLIANCE WITH REGULATORY REQUIREMENTS. The Company
holds all material authorizations, consents, approvals, franchises, licenses and
permits required under applicable law or regulation for the operation of the
business of the Company and its Subsidiaries as presently operated (the
"GOVERNMENTAL AUTHORIZATIONS"). All the Governmental Authorizations have been
duly issued or obtained and are in full force and effect, and the Company and
its Subsidiaries are in material compliance with the terms of all the
Governmental Authorizations. The Company and its Subsidiaries have not engaged
in any activity that, to the Company's knowledge, would cause revocation or
suspension of any such Governmental Authorizations. The Company has no knowledge
of any facts which would reasonably be expected to cause the Company to believe
that the Governmental Authorizations will not be renewed by the appropriate
governmental authorities in the ordinary course. Neither the execution, delivery
nor performance of this Agreement shall adversely affect the status of any of
the Governmental Authorizations.
(N) TITLE TO ASSETS. The Company and the Subsidiaries do not own any
real property, and have good and marketable title to all personal property owned
by them that is material to the business of the Company and the Subsidiaries,
taken as a whole, in each case free and clear of all Liens, except those, if
any, reflected in the Company's financial statements or disclosed on Schedule
3.1(n). Any real property and facilities held under lease by the Company and the
Subsidiaries are held by them under valid, subsisting and enforceable leases
(subject to laws of general application relating to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally and rules of law governing specific performance, injunctive relief, or
other equitable remedies) with which the Company and the Subsidiaries are in
material compliance.
(O) INTELLECTUAL PROPERTY.
(i) The Company or a Subsidiary thereof has the right to use
or is the sole and exclusive owner of all right, title and interest in and to
all foreign and domestic patents, patent rights, trademarks, service marks,
trade names, brands and copyrights (whether or not registered and, if
applicable, including pending applications for registration) owned, used or
controlled by the Company and its Subsidiaries (collectively, the "RIGHTS") and
in and to each material invention, software, trade secret, technology, product,
composition, formula and method of process used by the Company or its
Subsidiaries (the Rights and such other items, the "INTELLECTUAL PROPERTY"),
and, to the Company's knowledge, has the right to use the same, free and clear
of any claim or conflict with the rights of others;
(ii) other than as set forth in the SEC Reports, no royalties
or fees (license or otherwise) are payable by the Company or its Subsidiaries to
any Person by reason of the ownership or use of any of the Intellectual
Property;
12
(iii) there have been no claims made against the Company or
its Subsidiaries asserting the invalidity, abuse, misuse, or unenforceability of
any of the Intellectual Property, and, to the best of the Company's knowledge,
there are no reasonable grounds for any such claims;
(iv) neither the Company nor its Subsidiaries have made any
claim of any violation or infringement by others of its rights in the
Intellectual Property, and to the best of the Company's knowledge, no reasonable
grounds for such claims exist; and
(v) neither the Company nor its Subsidiaries have received
notice that it is in conflict with or infringing upon the asserted rights of
others in connection with the Intellectual Property.
(P) INSURANCE. The Company and the Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses in which the
Company and the Subsidiaries are engaged. All of the insurance policies of the
Company and its Subsidiaries are in full force and effect and are valid and
enforceable in accordance with their terms, and the Company and its Subsidiaries
have complied with all material terms and conditions thereof. Neither the
Company nor any Subsidiary has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to continue
its business without a significant increase in cost.
(Q) TRANSACTIONS WITH AFFILIATES AND EMPLOYEES. None of the officers
or directors of the Company and, to the knowledge of the Company, none of the
employees of the Company is presently a party to any transaction with the
Company or any Subsidiary (other than for services as employees, officers and
directors), including any contract, agreement or other arrangement providing for
the furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Company, any entity in
which any officer, director, or any such employee has a substantial interest or
is an officer, director, trustee or partner, other than (a) for payment of
salary or consulting fees for services rendered, (b) reimbursement for expenses
incurred on behalf of the Company and (c) for other employee benefits, including
stock option agreements and other stock awards under any equity compensation
plan of the Company.
(R) INTERNAL ACCOUNTING CONTROLS. The Company and each of the
Subsidiaries maintains a system of internal accounting controls sufficient in
the judgment of the Company's management to provide reasonable assurance that
(i) transactions are executed in accordance with management's general or
specific authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain
asset accountability, (iii) access to assets is permitted only in accordance
with management's general or specific authorization, and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(S) CERTAIN FEES. Except for fees payable to Sandgrain Securities,
Inc., no brokerage or finder's fees or commissions are or will be payable by the
Company to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with
13
respect to the transactions contemplated by this Agreement. The Purchasers shall
have no obligation with respect to any fees or with respect to any claims made
by or on behalf of other Persons for fees of a type contemplated in this Section
that may be due in connection with the transactions contemplated by this
Agreement.
(T) PRIVATE PLACEMENT; INTEGRATED OFFERING. Assuming the accuracy of
the Purchasers representations and warranties set forth in Section 3.2, no
registration under the Securities Act is required for the offer and sale of the
Securities by the Company to the Purchasers as contemplated hereby. The issuance
and sale of the Securities hereunder does not contravene the rules and
regulations of the Trading Market. Neither the Company, nor any of its
Affiliates, nor any Person acting on its or their behalf has, directly or
indirectly, made any offers or sales of any security or solicited any offers to
buy any security, under circumstances that would cause this offering of the
Securities to be integrated with prior offerings by the Company for purposes of
the Securities Act and would as a result require registration under the
Securities Act or trigger any applicable shareholder approval provisions,
including, without limitation, under the rules and regulations of any exchange
or automated quotation system on which any of the securities of the Company are
listed or designated.
(U) CHARTER, BYLAWS AND CORPORATE RECORDS. The minute books of the
Company and its Subsidiaries contain in all material respects complete and
accurate records of all meetings and other corporate actions of the board of
directors, committees of the board of directors, incorporators and stockholders
of the Company and its Subsidiaries, all material corporate decisions and
actions have been validly made or taken and all corporate books, including
without limitation the share transfer register, comply in all material respects
with applicable laws and regulations and have been regularly updated, in each
case, from, in the case of the Company, May 7, 2004 to the date hereof and in
the case of such Subsidiaries, the date of incorporation of each such Subsidiary
to the date hereof.
(V) REGISTRATION RIGHTS. Except as set forth in Schedule 3.1(v), no
Person has any right to cause the Company to effect the registration under the
Securities Act of any securities of the Company.
(W) LISTING AND MAINTENANCE REQUIREMENTS. The Company has not, in
the 12 months preceding the date hereof, received notice from any Trading Market
on which the Common Stock is or has been listed or quoted to the effect that the
Company is not in compliance with the listing or maintenance requirements of
such Trading Market. The Company is, and has no reason to believe that it will
not in the foreseeable future continue to be, in compliance with all such
listing and maintenance requirements.
(X) TAXES. All tax returns and tax reports required to be filed with
respect to the income, operations, business or assets of the Company and its
Subsidiaries have been timely filed (or appropriate extensions have been
obtained) with the appropriate governmental agencies in all jurisdictions in
which such returns and reports are required to be filed, and all of the
foregoing as filed are, in all material respects, correct and complete and, in
all material respects, reflect accurately all liability for taxes of the Company
and its Subsidiaries for the periods to which such returns relate, and all
amounts shown as owing thereon have been paid. All income, profits, franchise,
sales, use, value added, occupancy, property, excise, payroll, withholding,
FICA, FUTA and other taxes (including interest and penalties), if any,
collectible or payable by
14
the Company and its Subsidiaries or relating to or chargeable against any of its
material assets, revenues or income or relating to any employee, independent
contractor, creditor, stockholder or other third party through the Closing Date,
were fully collected and paid by such date if due by such date or provided for
by adequate reserves in the financial statements contained in the SEC Reports as
of and for the periods ended June 30, 2004 (other than taxes accruing after such
date) and all similar items due through the Closing Date will have been fully
paid by that date or provided for by adequate reserves, whether or not any such
taxes were reported or reflected in any tax returns or filings. No taxation
authority has sought to audit the records of the Company or any of its
Subsidiaries for the purpose of verifying or disputing any tax returns, reports
or related information and disclosures provided to such taxation authority, or
for the Company's or any of its Subsidiaries' alleged failure to provide any
such tax returns, reports or related information and disclosure. No material
claims or deficiencies have been asserted against or inquiries raised with the
Company or any of its Subsidiaries with respect to any taxes or other
governmental charges or levies which have not been paid or otherwise satisfied,
including claims that, or inquiries whether, the Company or any of its
Subsidiaries has not filed a tax return that it was required to file, and, to
the best of the Company's knowledge, there exists no reasonable basis for the
making of any such claims or inquiries. Neither the Company nor any of its
Subsidiaries has waived any restrictions on assessment or collection of taxes or
consented to the extension of any statute of limitations relating to taxation.
(Y) ENVIRONMENTAL MATTERS. None of the premises or any properties
owned, occupied or leased by the Company or its Subsidiaries (the "PREMISES")
has been used by the Company or the Subsidiaries or, to the Company's knowledge,
by any other Person, to manufacture, treat, store, or dispose of any substance
that has been designated to be a "hazardous substance" under applicable
Environmental Laws (hereinafter defined) ("HAZARDOUS SUBSTANCES") in violation
of any applicable Environmental Laws. To its knowledge, the Company has not
disposed of, discharged, emitted or released any Hazardous Substances which
would require, under applicable Environmental Laws, remediation, investigation
or similar response activity. No Hazardous Substances are present as a result of
the actions of the Company or, to the Company's knowledge, any other Person, in,
on or under the Premises which would give rise to any liability or clean-up
obligations of the Company under applicable Environmental Laws. The Company and,
to the Company's knowledge, any other Person for whose conduct it may be
responsible pursuant to an agreement or by operation of law, are in compliance
with all laws, regulations and other federal, state or local governmental
requirements, and all applicable judgments, orders, writs, notices, decrees,
permits, licenses, approvals, consents or injunctions in effect on the date of
this Agreement relating to the generation, management, handling, transportation,
treatment, disposal, storage, delivery, discharge, release or emission of any
Hazardous Substance (the "ENVIRONMENTAL LAWS"). Neither the Company nor, to the
Company's knowledge, any other Person for whose conduct it may be responsible
pursuant to an agreement or by operation of law has received any written
complaint, notice, order, or citation of any actual, threatened or alleged
noncompliance with any of the Environmental Laws, and there is no proceeding,
suit or investigation pending or, to the Company's knowledge, threatened against
the Company or, to the Company's knowledge, any such Person with respect to any
violation or alleged violation of the Environmental Laws, and, to the knowledge
of the Company, there is no basis for the institution of any such proceeding,
suit or investigation.
(Z) DISCLOSURE. The Company confirms that neither the Company nor
any other Person acting on its behalf and at the direction of the Company, has
provided any of the
15
Purchasers or their agents or counsel with any information that in the Company's
reasonable judgment, at the time such information was furnished, constitutes
material, non-public information. The Company understands and confirms that the
Purchasers will rely on the foregoing representations and covenants in effecting
transactions in securities of the Company. All disclosure provided to the
Purchasers regarding the Company, its business and the transactions contemplated
hereby, including the Disclosure Schedules to this Agreement, furnished by or on
behalf of the Company are true and correct and do not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements made therein, in light of the circumstances under
which they were made, not misleading.
3.2 REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS.
Each Purchaser hereby, for itself and for no other Purchaser, represents
and warrants as of the date hereof and as of the Closing Date to the Company as
follows:
(A) ORGANIZATION; AUTHORITY; ENFORCEABILITY. Such Purchaser (other
than individuals) is an entity duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization with full power
and authority to enter into and to consummate the transactions contemplated by
the Transaction Documents and otherwise to carry out its obligations thereunder.
The execution, delivery and performance by such Purchaser of the transactions
contemplated by this Agreement has been duly authorized by all necessary
corporate or similar action on the part of such Purchaser. Each Transaction
Document to which it is a party has been duly executed by such Purchaser, and
when delivered by such Purchaser in accordance with the terms hereof, will
constitute the valid and legally binding obligation of such Purchaser,
enforceable against it in accordance with its terms, subject to laws of general
application relating to bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally and rules of law
governing specific performance, injunctive relief, or other equitable remedies.
(B) GENERAL SOLICITATION. Such Purchaser is not purchasing the
Securities as a result of any advertisement, article, notice or other
communication regarding the Securities published in any newspaper, magazine or
similar media or broadcast over television or radio or presented at any seminar
or any other general solicitation or general advertisement.
(C) NO PUBLIC SALE OR DISTRIBUTION. Such Purchaser is (i) acquiring
the Promissory Notes and Warrants and (ii) upon exercise of the Warrants will
acquire the Warrant Shares, for its own account and not with a view towards, or
for resale in connection with, the public sale or distribution thereof;
PROVIDED, HOWEVER, that by making the representations herein, such Purchaser
does not agree to hold any of the Securities for any minimum or other specific
term and reserves the right to dispose of the Securities at any time in
accordance with or pursuant to a registration statement or an exemption under
the Securities Act. Such Purchaser is acquiring the Securities hereunder in the
ordinary course of its business. Such Purchaser does not have any agreement or
understanding, directly or indirectly, with any Person to distribute any of the
Securities.
(D) ACCREDITED INVESTOR STATUS. Such Purchaser is an "accredited
investor" as that term is defined in Rule 501(a) of Regulation D.
16
(E) RESIDENCY. Such Purchaser is a resident of the jurisdiction set
forth below such Purchaser's name on SCHEDULE 1 attached hereto.
(F) RELIANCE ON EXEMPTIONS. Such Purchaser understands that the
Promissory Notes and Warrants are being offered and sold to it in reliance on
specific exemptions from the registration requirements of United States federal
and state securities laws and that the Company is relying in part upon the truth
and accuracy of, and such Purchaser's compliance with, the representations,
warranties, agreements, acknowledgments and understandings of such Purchaser set
forth herein in order to determine the availability of such exemptions and the
eligibility of such Purchaser to acquire the Promissory Notes and Warrants.
(G) INFORMATION. Such Purchaser and its advisors, if any, have been
furnished with all publicly available materials relating to the business,
finances and operations of the Company and such other publicly available
materials relating to the offer and sale of the Promissory Notes and Warrants as
have been requested by such Purchaser. Such Purchaser and its advisors, if any,
have been afforded the opportunity to ask questions of the Company. Neither such
inquiries nor any other due diligence investigations conducted by such Purchaser
or its advisors, if any, or its representatives shall modify, amend or affect
such Purchaser's right to rely on the Company's representations and warranties
contained herein. Such Purchaser understands that its investment in the
Promissory Notes and Warrants involves a high degree of risk.
(H) NO GOVERNMENTAL REVIEW. Such Purchaser understands that no
United States federal or state agency or any other government or governmental
agency has passed on or made any recommendation or endorsement of the Promissory
Notes and Warrants or the fairness or suitability of the investment in the
Promissory Notes and Warrants, nor have such authorities passed upon or endorsed
the merits of the offering of the Promissory Notes and Warrants.
(I) EXPERIENCE OF SUCH PURCHASER. Such Purchaser, either alone or
together with its representatives, has such knowledge, sophistication and
experience in business and financial matters, including investing in companies
engaged in the business in which the Company is engaged, so as to be capable of
evaluating the merits and risks of the prospective investment in the Promissory
Notes and Warrants, and has so evaluated the merits and risks of such
investment. Such Purchaser is able to bear the economic risk of an investment in
the Promissory Notes and Warrants and, at the present time, is able to afford a
complete loss of such investment.
The Company acknowledges and agrees that each Purchaser does not make or
has not made any representations or warranties with respect to the transactions
contemplated hereby other than those specifically set forth in this Section 3.2.
ARTICLE IV
OTHER AGREEMENTS OF THE PARTIES
4.1 TRANSFER RESTRICTIONS.
(a) The Securities may only be disposed of in compliance with state
and federal securities laws. In connection with any transfer of Securities other
than pursuant to an effective registration statement, to the Company, to an
Affiliate of a Purchaser (who is an accredited investor and executes a customary
representation letter) or in connection with a pledge as
17
contemplated in Section 4.1(b), the Company may require the transferor thereof
to provide to the Company an opinion of counsel selected by the transferor, the
form and substance of which opinion shall be reasonably satisfactory to the
Company, to the effect that such transfer does not require registration of such
transferred Securities under the Securities Act, PROVIDED, HOWEVER, that in the
case of a transfer pursuant to Rule 144, no opinion shall be required if the
transferor provides the Company with a customary seller's representation letter,
and if such sale is not pursuant to subsection (k) of Rule 144, a customary
broker's representation letter and a Form 144. Any such transferee that agrees
in writing to be bound by the terms of this Agreement and the Investor Rights
Agreement shall have the rights of a Purchaser under this Agreement and the
Investor Rights Agreement. Except as required by federal securities laws and the
securities law of any state or other jurisdiction within the United States, the
Securities may be transferred, in whole or in part, by any of the Purchasers at
any time. The Company shall reissue certificates evidencing the Securities upon
surrender of certificates evidencing the Securities being transferred in
accordance with this Section 4.1(a).
(b) The Purchasers agree to the imprinting, so long as is required
by this Section 4.1(b), of a legend on any of the Securities in substantially
the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED, SOLD, ASSIGNED
OR TRANSFERRED, IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID
ACT OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY THAT REGISTRATION UNDER SAID ACT IS NOT REQUIRED.
The Company acknowledges and agrees that a Purchaser may from time to
time pledge pursuant to a bona fide margin agreement with a registered
broker-dealer or grant a security interest in some or all of the Securities to a
financial institution that is an "accredited investor" as defined in Rule 501(a)
under the Securities Act and, if required under the terms of such arrangement,
such Purchaser may transfer pledged or secured Securities to the pledgees or
secured parties. Such a pledge or transfer would not be subject to approval of
the Company and no legal opinion of legal counsel of the pledgee, secured party
or pledgor shall be required in connection therewith; provided, however, that
such Purchaser shall provide the Company with such documentation as is
reasonably requested by the Company to ensure that the pledge is pursuant to a
bona fide margin agreement with a registered broker-dealer or a security
interest in some or all of the Securities to a financial institution that is an
"accredited investor" as defined in Rule 501(a) under the Securities Act. The
Company will execute and deliver such documentation as a pledgee or secured
party of Securities may reasonably request in connection with a pledge or
transfer of the Securities, including the preparation and filing of any required
prospectus supplement under Rule 424(b)(3) under the Securities Act or other
applicable provision of the Securities Act to appropriately amend the list of
selling stockholders thereunder.
(c) Certificates evidencing the Warrant Shares shall not contain any
legend (including the legend set forth in Section 4.1(b)), (i) following any
sale of such Warrant Shares pursuant to Rule 144, or (ii) if such Warrant Shares
are eligible for sale under Rule 144(k), (iii) if such Warrant Shares have been
sold pursuant to an effective Registration Statement or (iv) if such legend is
not required under applicable requirements of the Securities Act (including
judicial interpretations and pronouncements issued by the Staff of the
Commission). The Company shall
18
cause its counsel to issue a legal opinion to the Company's transfer agent
promptly upon the occurrence of any of the events in clauses (i), (ii) (iii) or
(iv) above to effect the removal of the legend hereunder and shall also cause
its counsel to issue a "blanket" legal opinion to the Company's transfer agent
promptly after the Effective Date, if required by the Company's transfer agent,
to allow sales pursuant to an effective Registration Statement. The Company
agrees that at such time as such legend is no longer required under this Section
4.1(c), it will, no later than three Trading Days following the delivery by a
Purchaser to the Company or the Company's transfer agent of a certificate
representing Warrant Shares, as the case may be, issued with a restrictive
legend, deliver or cause to be delivered to such Purchaser a certificate
representing such Securities that is free from all restrictive and other
legends. The Company may not make any notation on its records or give
instructions to any transfer agent of the Company that enlarge the restrictions
on transfer set forth in this Section.
(d) Each Purchaser, severally and not jointly, agrees that the
removal of the restrictive legend from certificates representing Securities as
set forth in this Section 4.1 is predicated upon the Company's reliance on, and
the Purchaser's agreement that, and each Purchaser hereby agrees that, the
Purchaser will not sell any Securities except pursuant to either the
registration requirements of the Securities Act, including any applicable
prospectus delivery requirements, or an exemption therefrom.
4.2 FURNISHING OF INFORMATION.
As long as any Purchaser owns Securities, the Company covenants to
timely file (or obtain extensions in respect thereof and file within the
applicable grace period) all reports required to be filed by the Company after
the date hereof pursuant to the Exchange Act. Upon the request of any such
holder of Securities, the Company shall deliver to such holder a written
certification of a duly authorized officer as to whether it has complied with
the preceding sentence. As long as any Purchaser owns Securities, if the Company
is not required to file reports pursuant to the Exchange Act, it will prepare
and furnish to the Purchasers and make publicly available in accordance with
Rule 144(c), such information as is required for the Purchasers to sell the
Securities under Rule 144. The Company further covenants that it will take such
further action as any holder of Securities may reasonably request, all to the
extent required from time to time to enable such Person to sell such Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144.
4.3 INTEGRATION.
The Company shall not sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in Section 2 of the
Securities Act) that would be integrated with the offer or sale of the
Securities in a manner that would require the registration under the Securities
Act of the sale of the Securities to the Purchasers or that would be integrated
with the offer or sale of the Securities for purposes of the rules and
regulations of any Trading Market.
19
4.4 PUBLICITY.
The Company shall, within four Business Days following the Closing Date,
file a Current Report on Form 8-K, disclosing the transactions contemplated
hereby and make such other filings and notices in the manner and time required
by the Commission. The Company and BayStar Capital II, L.P. ("BayStar") shall
consult with each other in issuing any press releases with respect to the
transactions contemplated hereby, and neither the Company nor any Purchaser nor
BayStar shall issue any such press release or otherwise make any such public
statement without the prior consent of the Company, with respect to any press
release of any Purchaser or BayStar, or without the prior consent of BayStar,
with respect to any press release of the Company, except if such disclosure is
required by law, in which case the disclosing party shall promptly provide the
other party with prior notice of such public statement or communication.
4.5 SHAREHOLDERS RIGHTS PLAN.
No claim will be made or enforced by the Company or any other Person
that any Purchaser is an "acquiring person" under any shareholders rights plan
or similar plan or arrangement in effect or hereafter adopted by the Company, or
that any Purchaser could be deemed to trigger the provisions of any such plan or
arrangement, by virtue of receiving Securities under the Transaction Documents
or under any other agreement between the Company and the Purchasers.
4.6 NON-PUBLIC INFORMATION.
The Company covenants and agrees that neither it nor any other Person
acting on its behalf will provide any Purchaser or its agents or counsel with
any information that the 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. The Company
understands and confirms that each Purchaser shall be relying on the foregoing
representations in effecting transactions in securities of the Company.
4.7 USE OF PROCEEDS.
The Company covenants and agrees that the proceeds from the sale of the
Promissory Notes and Warrants shall be used by the Company for working capital
and general corporate purposes including, without limitation, business
acquisitions; under no circumstances shall any portion of the proceeds be
applied to:
(i) accelerated repayment of debt existing on the date
hereof;
(ii) the payment of dividends or other distributions on any
capital stock of the Company;
(iii) increased executive compensation (other than in the
ordinary course of business) or loans to officers, employees, stockholders or
directors, unless approved by a majority of the disinterested members of the
Board of Directors;
20
(iv) the purchase of debt or equity securities of any Person,
including the Company and its Subsidiaries, except in connection with investment
of excess cash in high quality (A1/P1 or better) money market instruments having
maturities of one year or less; or
(v) any expenditure not directly related to the business of
the Company.
4.8 RESERVATION OF COMMON STOCK.
As of the date hereof, the Company has reserved and the Company shall
continue to reserve and keep available at all times, free of preemptive rights,
a sufficient number of shares of Common Stock for the purpose of enabling the
Company to issue Warrant Shares pursuant to the Warrants.
4.9 LISTING OF COMMON STOCK.
The Company hereby agrees to use commercially reasonable efforts to
maintain the listing of the Common Stock on any applicable Trading Market, and,
if required, as soon as reasonably practicable following the Closing to list the
applicable Warrant Shares on any applicable Trading Market. The Company further
agrees, if the Company applies to have the Common Stock traded on any Trading
Market, it will include in such application the Warrant Shares, and will take
such other action as is necessary to cause the Warrant Shares to be listed on
such Trading Market as promptly as possible.
4.10 BUSINESS OPERATIONS.
Until the earlier of: (i) the fifth year anniversary of the Closing Date
and (ii) the date that no Promissory Notes remain outstanding and the Purchasers
own less than 50% of the Warrants (or Warrant Shares, issued upon exercise
thereof) originally issued pursuant to this Agreement, the Company shall comply
with the following covenants:
(A) INSURANCE. The Company and its Subsidiaries shall maintain
insurance policies such that the representations contained in the first sentence
of Section 3.1(p) hereof continue to be true and correct and shall, from time to
time upon the written request of the Purchasers, promptly furnish or cause to be
furnished to the Purchasers evidence, in form and substance reasonably
satisfactory to the Purchasers, of the maintenance of all insurance maintained
by it.
(B) CORPORATE EXISTENCE; LICENSES. The Company shall preserve and
maintain and cause its Subsidiaries to preserve and maintain their corporate
existence and good standing in the jurisdiction of their incorporation and the
rights, privileges and franchises of the Company and its Subsidiaries (except,
in each case, in the event of a merger or consolidation in which the Company or
its Subsidiaries, as applicable, is not the surviving entity) in each case where
the failure to so preserve or maintain could have a Material Adverse Effect on
the financial condition, business or operations of the Company and its
Subsidiaries taken as a whole. The Company shall, and shall cause its
Subsidiaries to, maintain at all times all material licenses or permits
necessary to the conduct of its business and as required by any governmental
agency or instrumentality thereof, including without limitation all FDA
clearances and approvals.
(C) TAXES AND CLAIMS. The Company and its Subsidiaries shall duly
pay and discharge (a) all taxes, assessments and governmental charges upon or
against the Company or its properties or assets prior to the date on which
penalties attach thereto, unless and to the extent
21
that such taxes are being diligently contested in good faith and by appropriate
proceedings, and appropriate reserves therefor have been established, and (b)
all lawful claims, whether for labor, materials, supplies, services or anything
else which might or could, if unpaid, become a lien or charge upon the
properties or assets of the Company or its Subsidiaries, unless and to the
extent only that the same are being contested in good faith and by appropriate
proceedings and appropriate reserves therefor have been established.
(D) AFFILIATE TRANSACTIONS. Except for transactions approved by a
majority of the disinterested members of the board of directors of the Company,
neither the Company nor any of its Subsidiaries shall enter into any transaction
with any (i) director, officer, employee or holder of more than 5% of the
outstanding capital stock of any class or series of capital stock of the Company
or any of its Subsidiaries, (ii) member of the immediate family of any such
person, or (iii) corporation, partnership, trust or other entity in which any
such person, or member of the immediate family of any such person, is a
director, officer, trustee, partner or holder of more than 5% of the outstanding
capital stock thereof.
4.11 SECURITIES LAW COMPLIANCE.
(A) SECURITIES ACT. The Company shall timely prepare and file with
the Securities and Exchange Commission the form of notice of the sale of
securities pursuant to the requirements of Regulation D or such other notices or
documents as may be required to be filed pursuant to applicable federal
securities laws, regarding the sale of the Promissory Notes and Warrants under
this Agreement.
(B) STATE SECURITIES LAW COMPLIANCE -- SALE. The Company shall
timely prepare and file such applications, consents to service of process (but
not including a general consent to service of process) and similar documents and
take such other steps and perform such further acts as shall be required by the
state securities law requirements of each jurisdiction where a Purchaser
resides, as indicated on SCHEDULE 1, with respect to the sale of the Promissory
Notes and Warrants under this Agreement.
(C) STATE SECURITIES LAW COMPLIANCE --RESALE. Beginning no later
than 30 days following the date of this Agreement and continuing until either
(i) the purchasers have sold all of their Warrant Shares under a registration
statement pursuant to the Investor Rights Agreement or (ii) the Common Stock
becomes a "covered security" under Section 18(b)(1)(A) of the Securities Act,
the Company shall maintain within either Moody's Industrial Manual or Standard
and Poor's Standard Corporation Descriptions (or any successors to these manuals
which are similarly qualified as "recognized securities manuals" under state
Blue Sky laws) an updated listing containing (i) the names of the officers and
directors of the Company, (ii) a balance sheet of the Company as of a date that
is at no time older than eighteen months and (iii) a profit and loss statement
of the Company for either the preceding fiscal year or the most recent year of
operations.
22
ARTICLE V
INDEMNIFICATION, TERMINATION AND DAMAGES
5.1 SURVIVAL OF REPRESENTATIONS.
Except as otherwise provided herein, the representations and warranties
of the Company and the Purchasers contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement and the
Closing Date and shall continue in full force and effect for a period of two (2)
years from the Closing Date; PROVIDED, HOWEVER, that the Company's warranties
and representations under Sections 3.1(a) (Subsidiaries), 3.1(g)
(Capitalization), 3,1(x) (Taxes) and 3.1(y) (Environmental Matters) shall
survive the Closing Date and continue in full force and effect until the
expiration of all applicable statutes of limitation. The Company's and the
Purchasers' warranties and representations shall in no way be affected or
diminished in any way by any investigation of (or failure to investigate) the
subject matter thereof made by or on behalf of the Company or the Purchasers.
5.2 INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless the
Purchasers, their Affiliates, each of their officers, directors, employees and
agents and their respective successors and assigns, from and against any losses,
damages, or expenses which are caused by or arise out of (i) any breach or
default in the performance by the Company of any covenant or agreement made by
the Company in this Agreement or in any of the Transaction Documents; (ii) any
breach of warranty or representation made by the Company in this Agreement or in
any of the Transaction Documents; and/or (iii) any and all third party actions,
suits, proceedings, claims, demands, judgments, costs and expenses (including
reasonable legal fees and expenses) incident to any of the foregoing.
(b) The Purchasers, severally and not jointly, agree to indemnify
and hold harmless the Company, its Affiliates, each of their officers,
directors, employees and agents and their respective successors and assigns,
from and against any losses, damages, or expenses which are caused by or arise
out of (A) any breach or default in the performance by the Purchasers of any
covenant or agreement made by the Purchasers in this Agreement or in any of the
Transaction Documents; (B) any breach of warranty or representation made by the
Purchasers in this Agreement or in any of the Transaction Documents; and (C) any
and all third party actions, suits, proceedings, claims, demands, judgments,
costs and expenses (including reasonable legal fees and expenses) incident to
any of the foregoing; PROVIDED, HOWEVER, that a Purchaser's liability under this
Section 5.2(b) shall not exceed the Purchase Price paid by such Purchaser
hereunder.
5.3 INDEMNITY PROCEDURE.
A party or parties hereto agreeing to be responsible for or to indemnify
against any matter pursuant to this Agreement is referred to herein as the
"INDEMNIFYING PARTY" and the other party or parties claiming indemnity is
referred to as the "INDEMNIFIED PARTY". An Indemnified Party under this
Agreement shall, with respect to claims asserted against such party by any third
party, give written notice to the Indemnifying Party of any liability which
might give rise to a
23
claim for indemnity under this Agreement within sixty (60) Business Days of the
receipt of any written claim from any such third party, but not later than
twenty (20) days prior to the date any answer or responsive pleading is due, and
with respect to other matters for which the Indemnified Party may seek
indemnification, give prompt written notice to the Indemnifying Party of any
liability which might give rise to a claim for indemnity; PROVIDED, HOWEVER,
that any failure to give such notice will not waive any rights of the
Indemnified Party except to the extent the rights of the Indemnifying Party are
materially prejudiced.
The Indemnifying Party shall have the right, at its election, to take
over the defense or settlement of such claim by giving written notice to the
Indemnified Party at least fifteen (15) days prior to the time when an answer or
other responsive pleading or notice with respect thereto is required. If the
Indemnifying Party makes such election, it may conduct the defense of such claim
through counsel of its choosing (subject to the Indemnified Party's approval of
such counsel, which approval shall not be unreasonably withheld), shall be
solely responsible for the expenses of such defense and shall be bound by the
results of its defense or settlement of the claim. The Indemnifying Party shall
not settle any such claim without prior notice to and consultation with the
Indemnified Party, and no such settlement involving any equitable relief or
which might have an adverse effect on the Indemnified Party may be agreed to
without the written consent of the Indemnified Party (which consent shall not be
unreasonably withheld). So long as the Indemnifying Party is diligently
contesting any such claim in good faith, the Indemnified Party may pay or settle
such claim only at its own expense and the Indemnifying Party will not be
responsible for the fees of separate legal counsel to the Indemnified Party,
unless the named parties to any proceeding include both parties or
representation of both parties by the same counsel would be inappropriate in the
reasonable opinion of the Indemnified Party, due to conflicts of interest or
otherwise. If the Indemnifying Party does not make such election, or having made
such election does not, in the reasonable opinion of the Indemnified Party
proceed diligently to defend such claim, then the Indemnified Party may (after
written notice to the Indemnifying Party), at the expense of the Indemnifying
Party, elect to take over the defense of and proceed to handle such claim in its
discretion and the Indemnifying Party shall be bound by any defense or
settlement that the Indemnified Party may make in good faith with respect to
such claim. In connection therewith, the Indemnifying Party will fully cooperate
with the Indemnified Party should the Indemnified Party elect to take over the
defense of any such claim. The parties agree to cooperate in defending such
third party claims and the Indemnified Party shall provide such cooperation and
such access to its books, records and properties as the Indemnifying Party shall
reasonably request with respect to any matter for which indemnification is
sought hereunder; and the parties hereto agree to cooperate with each other in
order to ensure the proper and adequate defense thereof.
With regard to claims of third parties for which indemnification is
payable hereunder, such indemnification shall be paid by the Indemnifying Party
upon the earlier to occur of: (i) the entry of a judgment against the
Indemnified Party and the expiration of any applicable appeal period, or if
earlier, five (5) days prior to the date that the judgment creditor has the
right to execute the judgment; (ii) the entry of an unappealable judgment or
final appellate decision against the Indemnified Party; or (iii) a settlement of
the claim. Notwithstanding the foregoing, the reasonable expenses of counsel to
the Indemnified Party shall be reimbursed on a current basis by the Indemnifying
Party. With regard to other claims for which indemnification is payable
hereunder, such indemnification shall be paid promptly by the Indemnifying Party
upon demand by the Indemnified Party.
24
ARTICLE VI
MISCELLANEOUS
6.1 FEES AND EXPENSES.
The Company shall be responsible for the payment of the Purchasers'
reasonable legal fees and other third-party expenses relating to the
preparation, negotiation and execution of this Agreement and the Transaction
Documents and the consummation of the transactions contemplated herein.
6.2 ENTIRE AGREEMENT.
The Transaction Documents, together with the exhibits and schedules
thereto, contain the entire understanding of the parties with respect to the
subject matter hereof and supersede all prior agreements and understandings,
oral or written, with respect to such matters, which the parties acknowledge
have been merged into such documents, exhibits and schedules.
6.3 NOTICES.
Any and all notices or other communications or deliveries required or
permitted to be provided hereunder shall be in writing and shall be deemed given
and effective on the earliest of (a) the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number specified on
the signature pages attached hereto prior to 5:00 p.m. (New York City time) on a
Trading Day, (b) the next Trading Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile number on
the signature pages attached hereto on a day that is not a Trading Day or later
than 5:00 p.m. (New York City time) on any Trading Day, (c) the Trading Day
following the date of mailing, if sent by U.S. nationally recognized overnight
courier service, or (d) upon actual receipt by the party to whom such notice is
required to be given. The address for such notices and communications shall be
as follows:
If to the Purchasers, at each Purchaser's address set forth under its
name on SCHEDULE 1 attached hereto, or with respect to the Company, addressed
to:
Critical Home Care, Inc.
00000 Xxxxxxx Xxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Tel. No.: (000) 000-0000
Facsimile No.: (248) ___________
25
or to such other address or addresses or facsimile number or numbers as any such
party may most recently have designated in writing to the other parties hereto
by such notice. Copies of notices to the Company shall be sent to:
Xxxx, Xxxxxxx & Xxxxx, PLC
000 Xxxxxxxx Xxx., Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
Copies of notices to any Purchaser shall be sent to the addresses, if any,
listed on SCHEDULE 1 attached hereto.
6.4 AMENDMENTS; WAIVERS.
No provision of this Agreement may be waived or amended except in a
written instrument signed, in the case of an amendment, by the Company and each
Purchaser or, in the case of a waiver, by the party against whom enforcement of
any such waiver is sought. No waiver of any default with respect to any
provision, condition or requirement of this Agreement shall be deemed to be a
continuing waiver in the future or a waiver of any subsequent default or a
waiver of any other provision, condition or requirement hereof, nor shall any
delay or omission of either party to exercise any right hereunder in any manner
impair the exercise of any such right.
6.5 CONSTRUCTION.
The headings herein are for convenience only, do not constitute a part
of this Agreement and shall not be deemed to limit or affect any of the
provisions hereof. The language used in this Agreement will be deemed to be the
language chosen by the parties to express their mutual intent, and no rules of
strict construction will be applied against any party. Any form of the word
"include" shall be interpreted as if it were followed by the phrase "without
limitation".
6.6 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of the
parties and their successors and permitted assigns. The Company may not assign
this Agreement or any rights or obligations hereunder without the prior written
consent of each Purchaser. Any Purchaser may assign any or all of its rights
under this Agreement to any Person, provided such transferee agrees in writing
to be bound, with respect to the transferred Securities, by the provisions
hereof that apply to the Purchasers.
6.7 NO THIRD-PARTY BENEFICIARIES.
This Agreement is intended for the benefit of the parties hereto and
their respective successors and permitted assigns and is not for the benefit of,
nor may any provision hereof be enforced by, any other Person, except as
otherwise set forth in Article V.
26
6.8 GOVERNING LAW.
All questions concerning the construction, validity, enforcement and
interpretation of the Transaction Documents shall be governed by and construed
and enforced in accordance with the internal laws of the State of New York,
without regard to the principles of conflicts of law thereof.
6.9 JURISDICTION; VENUE; SERVICE OF PROCESS.
This Agreement shall be subject to the exclusive jurisdiction of the
Xxxxxxx Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxxxxx of New York and if such court does not
have proper jurisdiction, the State Courts of New York County, New York. The
parties to this Agreement agree that any breach of any term or condition of this
Agreement shall be deemed to be a breach occurring in the State of New York by
virtue of a failure to perform an act required to be performed in the State of
New York and irrevocably and expressly agree to submit to the jurisdiction of
the Xxxxxxx Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxxxxx of New York and if such court does
not have proper jurisdiction, the State Courts of New York County, New York for
the purpose of resolving any disputes among the parties relating to this
Agreement or the transactions contemplated hereby. The parties irrevocably
waive, to the fullest extent permitted by law, any objection which they may now
or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement, or any judgment entered by any
court in respect hereof brought in New York County, New York, and further
irrevocably waive any claim that any suit, action or proceeding brought in
Xxxxxxx Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxxxxx of New York and if such court does not
have proper jurisdiction, the State Courts of New York County, New York has been
brought in an inconvenient forum. Each of the parties hereto consents to process
being served in any such suit, action or proceeding, by mailing a copy thereof
to such party at the address in effect for notices to it under this Agreement
and agrees that such service shall constitute good and sufficient service of
process and notice thereof. Nothing in this Section 6.9 shall affect or limit
any right to serve process in any other manner permitted by law.
6.10 EXECUTION.
This Agreement may be executed in two or more counterparts, all of which
when taken together shall be considered one and the same agreement and shall
become effective when counterparts have been signed by each party and delivered
to the other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by facsimile or other
means of electronic image transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile signature page
were an original thereof.
6.11 SEVERABILITY.
If any provision of this Agreement is held to be invalid or
unenforceable in any respect, the validity and enforceability of the remaining
terms and provisions of this Agreement shall not in any way be affected or
impaired thereby and the parties will attempt to agree upon a valid and
enforceable provision that is a reasonable substitute therefor, and upon so
agreeing, shall incorporate such substitute provision in this Agreement.
27
6.12 REPLACEMENT OF SECURITIES.
If any certificate or instrument evidencing any Securities is mutilated,
lost, stolen or destroyed, the Company shall issue or cause to be issued in
exchange and substitution for and upon cancellation thereof, or in lieu of and
substitution therefor, a new certificate or instrument, but only upon receipt of
evidence reasonably satisfactory to the Company of such loss, theft or
destruction and customary and reasonable indemnity, if requested by the Company.
6.13 REMEDIES.
In addition to being entitled to exercise all rights provided herein or
granted by law, including recovery of damages, each of the Purchasers and the
Company will be entitled to specific performance under the Transaction
Documents. The parties agree that monetary damages may not be adequate
compensation for any loss incurred by reason of any breach of obligations
described in the foregoing sentence and hereby agrees to waive in any action for
specific performance of any such obligation the defense that a remedy at law
would be adequate.
6.14 PAYMENT SET ASIDE.
To the extent that the Company makes a payment or payments to any
Purchaser pursuant to any Transaction Document or a Purchaser enforces or
exercises its rights thereunder, and such payment or payments or the proceeds of
such enforcement or exercise or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside, recovered from, disgorged
by or are required to be refunded, repaid or otherwise restored to the Company,
a trustee, receiver or any other person under any law (including, without
limitation, any bankruptcy law, state or federal law, common law or equitable
cause of action), then to the extent of any such restoration the obligation or
part thereof originally intended to be satisfied shall, to the extent
permissible under applicable law, be revived and continued in full force and
effect as if such payment had not been made or such enforcement or setoff had
not occurred.
6.15 INDEPENDENT NATURE OF PURCHASERS' OBLIGATIONS AND RIGHTS.
The obligations of each Purchaser under any Transaction Document are
several and not joint with the obligations of any other Purchaser, and no
Purchaser shall be responsible in any way for the performance of the obligations
of any other Purchaser under any Transaction Document. Nothing contained herein
or in any Transaction Document, and no action taken by any Purchaser pursuant
thereto, shall be deemed to constitute the Purchasers as a partnership, an
association, a joint venture or any other kind of entity, or create a
presumption that the Purchasers are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by the
Transaction Document. Each Purchaser shall be entitled to independently protect
and enforce its rights, including without limitation, the rights arising out of
this Agreement or out of the other Transaction Documents, and it shall not be
necessary for any other Purchaser to be joined as an additional party in any
proceeding for such purpose. Each Purchaser has been represented by its own
separate legal counsel in their review and negotiation of the Transaction
Documents. For reasons of administrative convenience only, Purchasers and their
respective counsel have chosen to communicate with the Company through Xxxxxx
and Xxxx LLP, but such counsel does not represent any of the Purchasers in this
transaction other than BayStar. The Company has elected to provide all
Purchasers with the same terms and
28
Transaction Documents for the convenience of the Company and not because it was
required or requested to do so by the Purchasers.
6.16 WAIVER OF TRIAL BY JURY.
THE PARTIES HERETO IRREVOCABLY WAIVE TRIAL BY JURY IN ANY SUIT, ACTION
OR PROCEEDING RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
6.17 FURTHER ASSURANCES.
Each party agrees to cooperate fully with the other parties and to
execute such further instruments, documents and agreements and to give such
further written assurances as may be reasonably requested by any other party to
better evidence and reflect the transactions described herein and contemplated
hereby and to carry into effect the intents and purposes of this Agreement, and
further agrees to take promptly, or cause to be taken, all actions, and to do
promptly, or cause to be done, all things necessary, proper or advisable under
applicable law to consummate and make effective the transactions contemplated
hereby, to obtain all necessary waivers, consents and approvals, to effect all
necessary registrations and filings, and to remove any injunctions or other
impediments or delays, legal or otherwise, in order to consummate and make
effective the transactions contemplated by this Agreement for the purpose of
securing to the parties hereto the benefits contemplated by this Agreement.
[SIGNATURE PAGE FOLLOWS]
29
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
COMPANY:
CRITICAL HOME CARE, INC.
By: /s/ Xxxxxxxx Xxxxxxx
-----------------------
Name: Xxxxxxxx Xxxxxxx
Title: President
30
PURCHASERS:
Print Exact Name: Bay Star Capital II, L.P.
By: /s/ Xxxxx Xxxxx
--------------------------------------
Name: Xxxxx Xxxxx
Title: General Partner of Managing Member Bay
East, L.P.
Address: c/o Bay Star Capital Management, LLC
00 X. Xxx Xxxxxxx Xxxxx Xxxx.,
Xxxxx 00
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: Xxxxx@xxxxxxxxxx.xxx
SSN/EIN: 00-0000000
Subscription Amount:$5,000,000
[Omnibus Critical Home Care, Inc.
Promissory Note and Warrant Purchase Agreement Signature Page]
31
SCHEDULE 1
TO PROMISSORY NOTE AND WARRANT PURCHASE AGREEMENT
PURCHASERS AND AMOUNT OF PROMISSORY NOTES AND WARRANTS
------------------------------------------- ------------------------------- ----------------------- --------------------------------
Subscription Amount And
-----------------------
Name, Address and Fax Number of Copies of Notices to Common Stock Principal Amount of
------------------------------- -------------------- ------------ -------------------
Purchaser Underlying Warrants Promissory Notes
--------- ------------------- ---------------
Purchased
---------
------------------------------------------- ------------------------------- ----------------------- --------------------------------
BayStar Capital II, L.P.
Xxxxxxx Xxxxxxx, Esq.
c/o BayStar Capital Management, LLC Xxxxxx and Xxxx LLP
00 X. Xxx Xxxxxxx Xxxxx Xxxx., Xxxxx 0X 000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000 3,150,000 $5,000,000
Attn: Xxxxx Xxxxx Tel: 000-000-0000
Tel: (000) 000-0000 Fax: 000-000-0000
Fax: (000) 000-0000 Email: XXXXXXXX@XXXXXX.XXX
------------------------------------------- ------------------------------- ----------------------- --------------------------------
