PURCHASE AGREEMENT
Exhibit 10.1
THIS PURCHASE AGREEMENT is made this 25th day of August, 2006 (the “Effective
Date”) by and between Sutura, Inc., a Delaware corporation (the “Company”), Whitebox Convertible
Arbitrage Partners, L.P., a British Virgin Islands limited partnership (“WCAP”), Whitebox Hedged
High Yield Partners, L.P., a British Virgin Islands limited partnership (“WHHY”), Whitebox
Intermarket Partners, L.P., a British Virgin Islands limited partnership (“WIP’), Pandora Select
Partners, L.P., a British Virgin Islands limited partnership (“Pandora” and, together with WCAP,
WHHY and WIP, the “Partnerships”), Xxxx X. Xxxxxx, a Minnesota resident (“Kohler”) and Xxxx X.
Xxxxxx, a Minnesota resident (“Xxxxxx” and, together with the Partnerships and Kohler, the
“Whitebox Parties”) with reference to the following facts:
A. On June 7, 2006, the Partnerships purchased secured convertible promissory notes (each a
“June 7, 2006 Note” and, together, the “June 7, 2006 Notes”) from the Company in consideration of a
collective $500,000 loan (the “June 7, 2006 Loan”).
B. On June 28, 2006, the Partnerships purchased secured convertible promissory notes (each a
“June 28, 2006 Note” and, together, the “June 28, 2006 Notes”) from the Company in consideration of
a collective $500,000 loan (the “June 28, 2006 Loan”).
C. On July 31, 2006, the Partnerships purchased secured convertible promissory notes (each a
“July 31, 2006 Note”, together, the “July 31, 2006 Notes”, and, together with the June 7, 2006
Notes and the June 28, 2006 Notes, the “2006 Notes”) from the Company in consideration of a
collective $1,160,000 loan (the “July 31, 2006 Loan”).
D. The Whitebox Parties are holders of other certain secured convertible promissory notes,
having an aggregate principal balance of $16,550,000 (the “Pre-2006 Notes”). The aggregate amount
of accrued and unpaid interest owed to the Whitebox Parties under the Pre-2006 Notes is $793,000.00
(the “Past Due Interest”).
E. The Company desires to issue and sell to each of the Partnerships (severally and not
jointly) and the Partnerships desire to purchase shares of the Company’s common stock, par value
$.001 (the “Common Stock”) in full payment of the 2006 Notes, plus accrued and unpaid interest
through the Effective Date in the amount of $21,444.44. The Company further desires to issue and
sell to each of the Whitebox Parties (severally and not jointly), and the Whitebox Parties desire
to purchase, shares of the Common Stock in full payment of the Past Due Interest on the Pre-2006
Notes. The Company further desires to issue and sell to each of the Partnerships (severally and not
jointly), and the Partnerships desire to purchase, shares of the Common Stock and a warrant in the
form of the attached Exhibit A to purchase shares of the Common Stock (each a “Warrant” and,
together, the “Warrants”) in consideration of an additional $2,000,000 as more fully described in
this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises hereinafter
set forth, the parties hereto agree as follows:
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SECTION 1. AGREEMENT TO SELL AND PURCHASE
1.1. Authorization of Transactions. On or prior to the closing of the transactions
contemplated in this Agreement (the “Closing”), the Company shall have authorized the issuance and
sale of the Warrants and the shares of Common Stock issuable in full payment of the 2006 Notes and
the Past Due Interest and otherwise purchased under this Agreement
1.2. Sale and Purchase at the Closing. Subject to the terms and conditions of this Agreement,
at the Closing, the Company hereby agrees to issue and sell to the Whitebox Parties, and the
Whitebox Parties agree to purchase from the Company, 62,180,556 shares of Common Stock (rounded up
to the nearest whole share) for a purchase price of $.08 per share (the “Shares”) and Warrants,
registered in the name of the Partnerships, pursuant to which the Partnerships will have the right
to acquire an aggregate 10,400,000 shares of the Company’s Common Stock (the “Warrant Shares”). The
aggregate consideration for the Shares and the Warrants is $4,974,444.44 (the “Purchase Price”).
SECTION 2. CLOSING, DELIVERY AND PAYMENT
2.1. Closing. The Closing shall take place at 10:00 a.m. on the Effective Date at the offices
of the Whitebox Parties’ legal counsel, Xxxxxxxx & Xxxxxx P.A., in Minneapolis, Minnesota, or at
such other time or place as the Company and Whitebox Parties may mutually agree (the “Closing
Date”). At the Closing, subject to the terms and conditions of this Agreement, the Company and the
Whitebox Parties will deliver the following documents and instruments:
(a) Company’s Closing Deliveries.
(i) The Company will issue, sell and deliver certificates, evidencing 62,180,556 shares
of its Common Stock, registered in the name of the Whitebox Parties, as set forth on the
attached Exhibit B and issue, sell and deliver the Warrants, registered in the name of the
Partnerships, as set forth on the attached Exhibit B.
(ii) The Company will execute and deliver to the Whitebox Parties the Third Amended
Registration Rights Agreement in the form of the attached Exhibit C (the “Registration
Rights Agreement”) and the side agreement relating to the Pre-2006 Notes in the form of the
attached Exhibit D (the “Pre-2006 Notes Agreement”).
(iii) The Company will cause to be delivered the legal opinion of its counsel, in
agreed upon form, as to those matters set forth in Section 5(d).
(iv) The Company will pay to Xxxxxxxx & Xxxxxx P.A., counsel to the Whitebox Parties,
legal fees and expenses in the amount of $10,000 for representing the Whitebox Parties in
connection with the transactions contemplated by this Agreement.
(iv) The Company will execute and/or deliver to the Whitebox Parties any other
agreement or document as reasonably requested by the Whitebox Parties to
consummate the transactions contemplated by this Agreement including all third party
consents required in connection with this Agreement.
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(b) Whitebox Parties’ Closing Deliveries. The Whitebox Parties will deliver payment of
the Purchase Price as follows:
(i) The Partnerships will deliver $2,000,000 by certified check or wire transfer of
immediately available funds as and for payment of 25,000,000 shares of common stock.
(ii) The Whitebox Parties will surrender and deliver the 2006 Notes to the Company, and
hereby accept 27,268,056 shares of Common Stock, in lieu of cash, in full payment of the
2006 Notes, plus accrued and unpaid interest thereon through the Effective Date.
(iii) The Whitebox Parties hereby accept 9,912,500 shares of Common Stock, in lieu of
cash, in full payment of the Past Due Interest.
(iv) The Whitebox Parties shall execute and deliver the Registration Rights Agreement
and the Pre-2006 Notes Agreement.
SECTION 3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY
The Company hereby makes the following representations and warranties to the Whitebox Parties
as of the Closing Date.
3.1. Organization, Good Standing and Qualification. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of Delaware. The
Company’s only subsidiaries are (i) Sutura B.V., which is wholly-owned by the Company and which, in
turn, owns all of the outstanding capital stock of Sutura B.V. France SARL and Sutura GmbH; (ii)
Technology Visions, Inc., a California corporation, and (iii) HeartStitch, a Delaware corporation
(each a “Subsidiary” and, together, the “Subsidiaries”). The Company has all requisite corporate
power and authority to own and operate its properties and assets, to execute and deliver this
Agreement, the Registration Rights Agreement and the Pre-2006 Notes Agreement (together, the
“Transaction Documents”), to issue and sell the Common Stock and the Warrants, to carry out the
provisions of the Transaction Documents, and to carry on its business as presently conducted and as
presently proposed to be conducted. The Company is duly qualified to do business and is in good
standing in each jurisdiction in which the nature of its activities and of its properties (both
owned and leased) makes such qualification necessary, except for those jurisdictions in which
failure to be so qualified would not have a material adverse effect on the Company, or its business
or properties, taken as a whole.
3.2. Capitalization. The authorized capital stock of the Company consists of 500,000,000
shares of Common Stock, par value $0.001 per share, of which 186,637,990 shares are issued and
outstanding as of March 31, 2006 and 2,000,000 shares of Preferred Stock, par
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value $0.001 per share, of which no shares are issued and outstanding as of August 25, 2006. As of
the Closing Date, and except as disclosed on Schedule 3.2, the Company has no outstanding options,
warrants or other rights to acquire any capital stock, or securities convertible or exchangeable
for capital stock or for securities themselves convertible or exchangeable for capital stock
(together, “Convertible Securities”). As of the Closing Date, and except as disclosed on Schedule
3.2, the Company has no agreement or commitment to sell or issue any shares of capital stock or
Convertible Securities. All issued and outstanding shares of the Company’s capital stock (i) have
been duly authorized and validly issued, (ii) are fully paid and nonassessable, (iii) are free from
any preemptive and cumulative voting rights and (iv) were issued pursuant to valid exemptions under
federal and state securities laws. As of the Closing Date, and except as disclosed on Schedule
3.2, there are no outstanding rights of first refusal or proxy or shareholder agreements of any
kind relating to any of the Company’s securities to which the Company or any of its executive
officers and directors is a party or as to which the Company otherwise has knowledge of. The
Shares and the Warrant Shares (when, if and upon exercise of the Warrants) when issued, sold and
delivered in accordance with the terms of this Agreement, will be validly issued, fully paid,
nonassessable and free of any liens or encumbrances, other than restrictions on transfer under
applicable federal and state securities laws.
3.3. Authorization; Binding Obligations. All corporate action on the part of the Company, its
officers, directors and shareholders necessary for the authorization of the Transaction Documents
and the performance of all obligations of the Company under this Agreement at the Closing, has been
taken or will be taken prior to the Closing. The Transaction Documents, when executed and
delivered, will be valid and binding obligations of the Company enforceable in accordance with
their terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other laws of general application affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive relief or other
equitable remedies and (iii) to the extent that the enforceability of the indemnification
provisions of the Registration Rights Agreement may be limited by applicable laws. The sale of the
Shares, Warrants and Warrant Shares is not subject to any preemptive rights or rights of first
refusal.
3.4. Financial Statements. The Company’s unaudited consolidated balance sheet, and the
statements of operations, cash flow and stockholders’ deficit for the three month period ending
June 30, 2006, and the audited consolidated statements of operations, cash flows and stockholders’
deficit of the Company for the years ended December 31, 2005 and 2004 (all of the foregoing
together, the “Financial Statements”) fairly present in all material respects the consolidated
financial condition, operating results and cash flow of the Company as of the respective dates and
for the respective periods covered thereby. The Financial Statements have been prepared in
accordance with generally accepted accounting principles in the United States (“GAAP”) applied on a
consistent basis (except as may be indicated in the notes thereto). For purposes hereof, “Latest
Statement Date” means June 30, 2006, and “Latest Financial Statements” means the audited financial
statements of the Company at and for the year ended December 31, 2005.
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3.5. Liabilities. The Company (i) has no material liabilities and (ii) to the best of its
knowledge, has no material contingent liabilities, in each case not otherwise disclosed in the
Latest Financial Statements or on Schedule 3.6, except (A) current liabilities incurred in the
ordinary course of business subsequent to the Latest Statement Date and (B) obligations under
contracts and commitments incurred in the ordinary course of business and not required under GAAP
to be reflected in the Latest Financial Statements, which, in both cases have not had, either in
any individual case or in the aggregate, a material adverse effect on the Company, or its business
or properties, taken as a whole.
3.6. Certain Agreements and Actions. Except as disclosed in the Financial Statements or on
Schedule 3.6, the Company has not (i) declared or paid any dividends, or authorized or made any
distribution upon or with respect to any class or series of its capital stock during the periods
covered by the Financial Statements or since the Latest Statement Date, (ii) since the Latest
Statement Date, incurred any indebtedness for money borrowed or any other material liabilities out
of the ordinary course of business, (iii) except as set forth in Schedule 3.6, made any loans or
advances to any person, other than ordinary advances for travel or entertainment expenses or (iv)
sold, exchanged or otherwise disposed of any of its assets or rights, other than in the ordinary
course of business.
3.7. Obligations of or to Related Parties. Except as disclosed on Schedule 3.7, there are no
obligations of the Company to officers, directors or key employees of the Company or, to the
Company’s knowledge, to any members of their immediate families or other affiliates, other than (i)
for accrued salaries, (ii) reimbursement for expenses reasonably incurred on behalf of the Company
and (iii) for other employee benefits made generally available to all employees (including stock
option agreements outstanding under any stock option plan approved by the Board of Directors of the
Company). Except as disclosed on Schedule 3.7, to the Company’s knowledge, none of the officers,
directors or key employees of the Company or, to the Company’s knowledge, any members of their
immediate families or other affiliates, are indebted to the Company or have any direct or indirect
ownership interest in any firm, corporation or other entity with which the Company is affiliated or
with which the Company has a business relationship, or any firm, corporation or other entity that
competes with the Company, except that such officers, directors, employees and members of their
immediate families may own securities (with beneficial ownership not exceeding 2%) in
publicly-traded companies that compete with the Company. Except as disclosed on Schedule 3.7, no
officer, director or key employee of the Company, or, to the Company’s knowledge, any member of
their immediate families or other affiliates, is, directly or indirectly, interested in or a party
to any material contract with the Company. Except as disclosed on Schedule 3.7 or in the Financial
Statements, the Company is not a guarantor or indemnitor of any indebtedness of any other person,
firm or corporation.
3.8. Changes. Since the Latest Statement Date, and except as disclosed on Schedule 3.8, there
has not been, to the Company’s knowledge, any event or condition of any character that, either
individually or cumulatively, has materially and adversely affected the business, assets,
liabilities, financial condition, operations or prospects of the Company.
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3.9. Title to Properties and Assets; Liens. Except as set forth on Schedule 3.9, the Company
has good and marketable title to its properties and assets, including the properties and assets
reflected in the Latest Financial Statements, in each case subject to no mortgage, pledge, lien,
lease, encumbrance or charge, other than (i) those resulting from taxes that have not yet become
delinquent, (ii) liens and encumbrances that do not materially detract from the value of the
property subject thereto or materially impair the operations of the Company and (iii) those that
have otherwise arisen in the ordinary course of business. With respect to the property and assets
it leases, the Company is in compliance with such leases in all material respects and, to the
Company’s knowledge, holds a valid leasehold interest free of any liens, claims or encumbrances.
All facilities, machinery, equipment, fixtures and other properties owned, leased or used by the
Company which are reasonably necessary to the Company’s conduct of its business are in good
operating condition and repair and are reasonably fit and usable for the purposes for which they
are being used, reasonable wear and tear excepted.
3.10. Patents and Trademarks. Schedule 3.10 contains a listing of all U.S. and foreign
patents and patent applications, and U.S. and foreign trademarks and service marks and applications
therefor, owned by, assigned to or licensed to the Company. Except as set forth on Schedule 3.10,
the Company owns or has a valid right to use all patents, trademarks, service marks, trade names,
copyrights, trade secrets, information and other proprietary rights and processes necessary for its
business as now conducted and as proposed to be conducted, without any known infringement of the
rights of others. The Company is not aware that any of its employees is obligated under any
contract (including licenses, covenants or commitments of any nature) or other agreement, or
subject to any judgment, decree or order of any court or administrative agency, that would
interfere with their duties to the Company or that would conflict with the Company’s business as
now conducted or proposed to be conducted. None of the execution or delivery of, or the
performance of the transactions contemplated by, the Transaction Documents, the carrying on of the
Company’s business by the employees of the Company nor the conduct of the Company’s business as
currently conducted or proposed to be conducted will conflict with or result in a breach of the
terms, conditions or provisions of, or constitute a default under, any contract, covenant or
instrument under which any employee is now obligated. The Company does not believe it is or will
be necessary to utilize any inventions, trade secrets or proprietary information of any of its
employees made prior to their employment by the Company, except for inventions, trade secrets or
proprietary information that have been exclusively assigned to the Company.
Without limiting the generality of the above, neither of Cardio Medical Solutions, Inc. or
Xxxxxx XXX Engineering Inc., nor any other entity owned or controlled by officers, directors or key
employees of the Company, own or control any inventions, trade secrets or proprietary information
necessary for or desirable to the Company in connection with and directly related to its business
as now conducted or proposed to be conducted.
Except as set forth in Schedule 3.10, (i) each of the Company’s employees have executed
agreements of confidentiality and non-disclosure as to the Company’s confidential information,
including its intellectual property and trade secrets, and (ii) each of the Company’s employees has
agreed to assign to the Company any and all significant conceptions and ideas for inventions,
improvements and valuable discoveries, whether patentable or not, which are conceived or made
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by such employees, solely or jointly with another, during the period of employment, and which are
directly related to the business or activities of the Company and which the employee conceives as a
result of the employee’s employment by the Company (other than inventions for which no equipment,
supplies, facility or trade secret information of the Company was used and which was developed
entirely on the employee’s own time and (1) which does not relate (a) directly to the business of
the Company or (b) to the Company’s actual or demonstrably anticipated research or development or
(2) which does not result from any work performed by the employee for the Company).
3.11. Compliance with Other Instruments. Except as disclosed on Schedule 3.11, the Company is
not in violation or default of any term of its Certificate of Incorporation or Bylaws, or in any
material respect of any mortgage, indenture, contract, agreement, instrument or contract to which
it is party or by which it is bound or of any judgment, decree, order, writ or, to its knowledge,
any statute, rule or regulation applicable to the Company that would materially and adversely
affect the business, assets, liabilities, financial condition, operations or prospects of the
Company. The execution and delivery of, and the performance of and compliance with the
transactions contemplated by, the Transaction Documents, and the issuance and sale of the Shares,
the Warrants and the Warrant Shares, will not, with or without the passage of time or giving of
notice, result in any such material violation, or be in conflict with or constitute a default under
any such term, or result in the creation of any mortgage, pledge, lien, encumbrance or charge upon
any of the properties or assets of the Company or the suspension, revocation, impairment,
forfeiture or nonrenewal of any permit, license, authorization or approval applicable to the
Company, its business or operations or any of its assets or properties, except for such results
that would not materially and adversely affect the business, assets, liabilities, financial
condition, operations or prospects of the Company. The Company is in compliance with all effective
requirements of the Xxxxxxxx-Xxxxx Act of 2002, as amended, and the rules and regulations
thereunder, that are applicable to it, except where such noncompliance could not have or reasonably
be expected to materially and adversely affect the business, assets, liabilities, financial
condition, operations or prospects of the Company.
3.12. Litigation. There is no action, suit, proceeding or investigation pending or, to the
Company’s knowledge, currently threatened against the Company that questions the validity of this
Agreement or the other Transaction Documents or the right of the Company to enter into any of such
agreements, or to consummate the transactions contemplated hereby or thereby. Except as disclosed
in the Financial Statements or on Schedule 3.12, there is no action, suit, proceeding or
investigation or, to the Company’s knowledge, currently threatened against the Company that might
result, either individually or in the aggregate, in any material adverse change in the assets,
condition, affairs or prospects of the Company, financial or otherwise, or any change in the
current equity ownership of the Company. The foregoing includes, without limitation, actions
pending or threatened involving the prior employment of any of the employees of the Company, their
use in connection with the Company’s business of any information or techniques allegedly
proprietary to any of their former employers or their obligations under any agreements with prior
employers. The Company is not a party or subject to the provisions of any order, writ, injunction,
judgment or decree of any court or government agency or instrumentality.
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3.13. Tax Returns and Payments. The Company has filed all tax returns (federal, state and
local) required to be filed by it. All taxes shown to be due and payable on such returns, any
assessments imposed, and, to the Company’s knowledge, all other taxes due and payable by the
Company on or before the Closing have been paid or will be paid prior to the time they become
delinquent. The Company has not been advised (i) that any of its returns, federal, state or other,
have been or are being audited as of the date hereof or (ii) of any deficiency in assessment or
proposed judgment to its federal, state or other taxes. The Company has no knowledge of any
liability of any tax to be imposed upon the properties or assets of the Company as of the date of
this Agreement that is not adequately provided for.
3.14. Employees. The Company has no collective bargaining agreements with any of its
employees. The Company is not aware of any labor union organizing activity relating to its
employees. Except as set forth on Schedule 3.14, no employee has any agreement or contract,
written or verbal, regarding his employment. Except as disclosed on Schedule 3.14, the Company is
not a party to or bound by any currently effective employment contract, deferred compensation
arrangement, bonus plan, incentive plan, profit sharing or defined benefit plan, retirement
agreement or other employee compensation plan or agreement. To the Company’s actual knowledge, no
employee of the Company, nor any consultant with whom the Company has contracted, is in violation
of any material term of any employment contract, proprietary information agreement or any other
agreement relating to the right of any such individual to be employed by, or to contract with, the
Company because of the nature of the business to be conducted by the Company; and, to the
Company’s knowledge, the continued employment by the Company of its present employees, and the
performance of the Company’s contracts with its independent contractors, will not result in any
such violation. The Company has not received any written or oral notice alleging that any such
violation has occurred. Except as disclosed on Schedule 3.14, no employee of the Company has been
granted the right to continued employment by the Company or to any material compensation following
termination of employment with the Company. The Company is not aware that any officer or key
employee, or that any group of key employees, intends to terminate their employment with the
Company, nor does the Company have a present intention to terminate the employment of any officer,
key employee or group of key employees.
3.15. Compliance with Laws; Permits; Company Medical Devices. Except as disclosed on Schedule
3.15, the Company is not in violation of any applicable statute, rule, regulation, order or
restriction of any domestic or foreign government or any instrumentality or agency thereof in
respect of the conduct of its business or the ownership of its properties that would materially and
adversely affect the business, assets, liabilities, financial condition, operations or prospects of
the Company. No governmental orders, permissions, consents, approvals or authorizations are
required to be obtained and no registrations or declarations are required to be filed in connection
with the execution and delivery of, and the performance of the transactions contemplated by, the
Transaction Documents or the sale and issuance of the Shares, Warrants and Warrant Shares, except
such as has been duly and validly obtained or filed, or with respect to any filings that must be
made after the Closing, as will be filed in a timely manner. The Company has all franchises,
permits, licenses and any similar authority necessary for the conduct of its business as now being
conducted by it, the lack of which could materially and adversely affect the business, properties,
prospects or financial condition of the Company and the
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Company believes it can obtain any similar authority for the conduct of its business as now
conducted or planned to be conducted.
With respect to the Company’s marketing and sale of minimally invasive vessel closure devices
for surgical applications (which the Company represents are the only products that the Company
manufactures, markets or sells):
| (i) | The Company has received 510(k) clearance from the U.S. Food & Drug Administration (the “FDA”) to sell its F8 & F6 SuperStitch® devices, including its Next Generation versions (together, the “Company Medical Devices”) in the United States; | ||
| (ii) | The Company has obtained permission from its notified body to place the CE xxxx on the Company Medical Devices so as to permit their sale in European Union countries; | ||
| (iii) | The Company’s 510(k) clearance and CE xxxx for the Company Medical Devices are in full force and effect and the Company has not received and anticipates no warning letter or other notice of, and is unaware of any basis for, revocation, limitation or modification of such 510(k) clearance or CE marking; and | ||
| (iv) | The Company manufactures the Company Medical Devices in compliance with FDA quality system regulations and the EU Medical Device Directive and is otherwise in compliance with all applicable FDA rules and regulations and EU directives (including the Medical Device Directive) relating to the manufacture, marketing and sale of the Company Medical Devices, including with respect to reporting of any device failures or adverse reactions, except where such failure to comply would not materially and adversely affect the ability of the Company to sell the Company’s Medical Devices in each EU country. |
With respect to any human clinical investigation of new or proposed medical devices by the
Company, or modifications to the Company Medical Devices, the Company is conducting each such
investigation in material compliance with applicable rules and regulations, including by obtaining
any required Investigational Device Exemption or Institutional Review Board approvals.
3.16. Environmental and Safety Laws. The Company is not in violation of any applicable
statute, law or regulation relating to the environment or occupational health and safety, where
such violation would have a material adverse effect on the Company, and to the Company’s knowledge,
no material expenditures are or will be required in order to comply with any such existing statute,
law or regulation. Without limiting the foregoing:
| (i) | with respect to any real property owned, leased or otherwise utilized by the Company (“Real Property”), the Company is not or has not in the past been in violation of any Hazardous Substance Law which violation could reasonably be expected to result in a material liability to the Company or its properties and assets; |
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| (ii) | neither the Company nor, to the knowledge of the Company, any third party has used, released, generated, manufactured, produced or stored, in, on, under, or about any Real Property, or transported thereto or therefrom, any Hazardous Substances that could reasonably be expected to result in a material liability to the Company under any Hazardous Substance Law; | ||
| (iii) | to the knowledge of the Company, there are no underground tanks, whether operative or temporarily or permanently closed, located on any Real Property that could reasonably be expected to result in a material liability to the Company under any Hazardous Substance Law; | ||
| (iv) | there are no Hazardous Substances used, stored or present at, or on, or to the knowledge of the Company that could reasonably be expected to migrate onto any Real Property, except in compliance with Hazardous Substance Laws; and | ||
| (v) | to the knowledge of the Company, there neither is nor has been any condition, circumstance, action, activity or event that could reasonably be expected to be a material violation by the Company of any Hazardous Substance Law, or to result in liability to the Company under any Hazardous Substance Law. |
For purposes hereof, “Hazardous Substances” means (statutory acronyms and abbreviations having
the meaning given them in the definition below of “Hazardous Substances Laws”) substances defined
as “hazardous substances,” “pollutants” or “contaminants” in Section 101 of the CERCLA; those
substances defined as “hazardous waste,” “hazardous materials” or “regulated substances” by the
RCRA; those substances designated as a “hazardous substance” pursuant to Section 311 of the CWA;
those substances defined as “hazardous materials” in Section 103 of the HMTA; those substances
regulated as a hazardous chemical substance or mixture or as an imminently hazardous chemical
substance or mixture pursuant to Sections 6 or 7 of the TSCA; those substances defined as
“contaminants” by Section 1401 of the SDWA, if present in excess of permissible levels; those
substances regulated by the Oil Pollution Act; those substances defined as a pesticide pursuant to
Section 2(u) of the FIFRA; those substances defined as a source, special nuclear or by-product
material by Section 11 of the AEA; those substances defined as “residual radioactive material” by
Section 101 of the UMTRCA; those substances defined as “toxic materials” or “harmful physical
agents” pursuant to Section 6 of the OSHA; those substances defined as hazardous wastes in 40
C.F.R. Part 261.3; those substances defined as hazardous waste constituents in 40 C.F.R. Part
260.10, specifically including Appendix VII and VIII of Subpart D of 40 C.F.R. Part 261; those
substances designated as hazardous substances in 40 C.F.R. Parts 116.4 and 302.4; those substances
defined as hazardous substances or hazardous materials in 49 C.F.R. Part 171.8; those substances
regulated as hazardous materials, hazardous substances, or toxic substances in 40 C.F.R. Part 1910;
any chemical, material, toxin, pollutant, or waste regulated by or in any other Hazardous
Substances Laws; and in the regulations adopted and publications promulgated pursuant to said
laws, whether or not such regulations or publications are specifically referenced herein.
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“Hazardous Substances Law” means any of:
| (i) | the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et seq.) (“CERCLA”); | ||
| (ii) | the Federal Water Pollution Control Act (33 U.S.C. Section 1251 et seq.) (“Clean Water Act” or “CWA”); | ||
| (iii) | the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.) (“RCRA”); | ||
| (iv) | the Atomic Energy Act of 1954 (42 U.S.C. Section 2011 et seq.) (“AEA”); | ||
| (v) | the Clean Air Act (42 U.S.C. Section 7401 et seq.) (“CAA”); | ||
| (vi) | the Emergency Planning and Community Right to Know Act (42 U.S.C. Section 11001 et seq.) (“EPCRA”); | ||
| (vii) | the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Section 136 et seq.) (“FIFRA”); | ||
| (viii) | the Oil Pollution Act of 1990 (33 U.S.C.A. Section 2701 et seq.); | ||
| (ix) | the Safe Drinking Water Act (42 U.S.C. Sections 300f et seq.) (“SDWA”); | ||
| (x) | the Surface Mining Control and Reclamation Act of 1974 (30 U.S.C. Sections 1201 et seq.) (“SMCRA”); | ||
| (xi) | the Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.) (“TSCA”); | ||
| (xii) | the Hazardous Materials Transportation Act (49 U.S.C. Section 5101 et seq.) (“HMTA”); | ||
| (xiii) | the Uranium Mill Tailings Radiation Control Act of 1978 (42 U.S.C. Section 7901 et seq.) (“UMTRCA”); | ||
| (xiv) | the Occupational Safety and Health Act (29 U.S.C. Section 651 et seq.) (“OSHA”); and | ||
| (xv) | all other federal, state and local governmental rules which govern Hazardous Substances, and the regulations adopted and publications promulgated pursuant to all such foregoing laws. |
3.17. Offering Valid. Assuming the accuracy of the representations and warranties of the
Whitebox Parties contained in Section 4, the offer, sale and issuance of the Shares, Warrants and
Warrant Shares will be exempt from the registration requirements of the Securities Act of
11
1933 (as amended) (the “Securities Act”) and will have been registered or qualified (or are exempt
from registration and qualification) under the registration, permit or qualification requirements
of the State of Minnesota.
3.18. Full Disclosure. None of the Transaction Documents contains any untrue statement of a
material fact nor, to the Company’s knowledge and belief, omits to state a material fact necessary
in order to make the statements contained herein or therein not misleading.
3.19. Insurance. The Company has fire and casualty insurance policies with coverage customary
for companies similarly situated to the Company. The Company’s coverage for product liability is
described on Schedule 3.19.
3.20. Foreign Corrupt Practices. Neither the Company, nor to the knowledge of the Company,
any agent or other person acting on behalf of the Company, has (i) directly or indirectly, used any
corrupt funds for unlawful contributions, gifts, entertainment or other unlawful expenses related
to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic
government officials or employees or to any foreign or domestic political parties or campaigns from
corporate funds, (iii) failed to disclose fully any contribution made by the Company (or made by
any person acting on its behalf of which the Company is aware) which is in violation of law, or
(iv) violated in any material respect any provision of the Foreign Corrupt Practices Act of 1977,
as amended.
3.21. Brokers or Finders. Except as set forth in Schedule 3.21, the Company has not incurred
nor will incur, directly or indirectly, any liability for any brokerage or finders’ fees or agent’s
commissions or any similar charges (whether payable in cash, in equity securities or by a
combination thereof) in connection with this Agreement or any transaction contemplated hereby.
3.22 SEC Reports. Except as set forth in Schedule 3.22, the Company has filed all reports,
forms or other information required to be filed by it under the Securities Act and the Securities
Exchange Act of 1934, as amended (the “Exchange Act”) for the twelve months preceding the date
hereof or such shorter period as the Company has been required by law to file such reports, forms
or other information (the foregoing materials being collectively referred to herein as the “SEC
Reports”) on a timely basis or has timely filed a valid extension of such time of filing and has
filed any such SEC Reports prior to the expiration of any such extension. As of their respective
dates, the SEC Reports complied in all material respects with the requirements of the Securities
Act and the Exchange Act and the rules and regulations of the Commission promulgated thereunder,
and none of the SEC Reports, when filed, 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.
3.23 Investment Company Act. The Company is not, and will not use the net proceeds from the
sale of the Shares, Warrants and Warrant Shares in a manner so as to become, an “investment
company,” or a company “controlled” by an “investment company,” within the meaning of the
Investment Company Act of 1940, as amended
12
3.24 No Manipulation of Stock. Neither the Company, nor any of its governors, officers or
controlling persons, has taken or will, in violation of applicable law, take, any action designed
to or that might reasonably be expected to cause or result in, or which has constituted,
stabilization or manipulation of the price of the Company’s Common Stock to facilitate the sale or
resale of the securities issued or issuable in connection with the transactions contemplated under
this Agreement.
3.25 Registration Rights. Except as disclosed on Schedule 3.25 or required pursuant to the
Registration Rights Agreement, the Company is presently not under any obligation, and has not
granted any rights, to register (as defined in the Registration Rights Agreement) any of the
Company’s presently outstanding securities or any of its securities that may hereafter be issued.
3.26 Press Releases. The press releases disseminated by the Company during the twelve months
preceding the date of this Agreement do not individually or taken as a whole contain any untrue
statement of a material fact or omit 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 and when made, not misleading.
3.27 Material Changes. Since the date of the Latest Financial Statements, except as
specifically disclosed in the SEC Reports, (i) there has been no event, occurrence or development
that has had or that could reasonably be expected to result in a material and adverse effect on the
results of operations, assets, prospects, business or condition (financial or otherwise) of the
Company and the Subsidiaries, taken as a whole, (ii) the Company has not incurred any liabilities
(contingent or otherwise) other than (A) trade payables, accrued expenses and other liabilities
incurred in the ordinary course of business consistent with past practice and (B) liabilities (not
to exceed $100,000) not required to be reflected in the Company’s financial statements pursuant to
GAAP or required to be disclosed in filings made with the Commission, (iii) the Company has not
altered its method of accounting or the identity of its auditors, (iv) the Company has not declared
or made any dividend or distribution of cash or other property to its shareholders or purchased,
redeemed or made any agreements to purchase or redeem any shares of its capital stock, and (v) the
Company has not issued any equity securities, except pursuant to existing Company stock option
plans and consistent with past practice. The Company does not have pending before the Commission
any request for confidential treatment of information.
3.28 Listing and Maintenance Requirements. Except as specified in the SEC Reports, the
Company has not, in the two years preceding the date hereof, received notice from any Trading
Market to the effect that the Company is not in compliance with the listing or maintenance
requirements thereof. The Company is, and has no reason to believe that it will not in the
foreseeable future continue to be, in compliance with the listing and maintenance requirements for
continued listing of the Common Stock on the Trading Market on which the Common Stock is currently
listed or quoted. The issuance and sale of the Shares and Warrants under the Transaction Documents
does not contravene the rules and regulations of the Trading Market on which the Common Stock is
currently listed or quoted, and no approval of the shareholders of the Company thereunder is
required for the Company to issue and deliver to the Investors the Securities contemplated by the
Transaction Documents. A “Trading Market” is the
New York Stock Exchange, the American Stock Exchange, the NASDAQ National Market, the NASDAQ
SmallCap Market or OTC Bulletin Board.
13
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE WHITEBOX PARTIES
The Whitebox Parties hereby represent and warrant to the Company as of the Closing Date, and
agree, as follows:
4.1. Authorization. The Whitebox Parties have full power and authority to enter into this
Agreement and each of the Transaction Documents, and each such agreement, when executed and
delivered by such Whitebox Parties, will constitute the valid and binding obligation of the
Whitebox Parties enforceable in accordance with its terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting
enforcement of creditors’ rights generally and (ii) as limited by laws relating to the availability
of specific performance, injunctive relief or other equitable remedies.
4.2. Investment Representations. The Whitebox Parties understand that neither the offer nor
the sale of the Shares, the Warrants or the Warrant Shares has been registered under the Securities
Act. The Whitebox Parties also understands that the Shares, Warrants and Warrant Shares are being
offered and sold pursuant to an exemption from registration contained in the Securities Act based
in part upon the Whitebox Parties’ representations contained in the Agreement. The Whitebox
Parties hereby represent and warrant as follows:
(a) Whitebox Parties Bears Economic Risk. The Whitebox Parties has substantial experience in
evaluating and investing in private placement transactions of securities in companies similar to
the Company so that it is capable of evaluating the merits and risks of its investment in the
Company and has the capacity to protect its own interests. The Whitebox Parties must bear the
economic risk of this investment indefinitely unless the Shares and Warrant Shares are registered
pursuant to the Securities Act, or an exemption from registration is available. The Whitebox
Parties have no present intention of selling or otherwise transferring the Shares, the Warrants or
the Warrant Shares, or any interest therein. The Whitebox Parties also understand that there is no
assurance that any exemption from registration under the Securities Act will be available and that,
even if available, such exemption may not allow the Whitebox Parties to transfer all or any portion
of the Shares, Warrants or Warrant Shares under the circumstances, in the amounts or at the times
the Whitebox Parties might propose.
(b) Acquisition for Own Account. The Whitebox Parties are acquiring the Shares, the Warrants
and the Warrant Shares for their own account for investment only, and not with a view towards its
public distribution.
(c) Whitebox Parties Can Protect Its Interest. The Whitebox Parties represent that by reason
of its, or of its management’s, business or financial experience, the Whitebox Parties have the
capacity to protect their own interests in connection with the transactions contemplated in this
Agreement. Further, the Whitebox Parties are aware of no publication of any advertisement in
connection with the transactions contemplated in the Agreement.
14
(d) Accredited Investor. The Whitebox Parties represents that each is an accredited investor
within the meaning of Rule 501 of Regulation D of the Securities Act.
(e) Residence. The Whitebox Parties represent that the Partnerships are each organized under
the laws of the British Virgin Islands and that the principal place of business of each Partnership
is located in the State of Minnesota. The Whitebox Parties further represent that Kohler and Xxxxxx
are Minnesota residents.
(f) Rule 144. The Whitebox Parties acknowledge and agree that the Shares, Warrants and
Warrant Shares must be held indefinitely unless they are subsequently registered under the
Securities Act or an exemption from such registration is available. The Whitebox Parties have been
advised or are aware of the provisions of Rule 144 promulgated under the Securities Act, which
permits limited resale of shares purchased in a private placement subject to the satisfaction of
certain conditions, including, among other things: the availability of certain current public
information about the Company, the resale occurring not less than one year after a party has
purchased and paid for the security to be sold, the sale being through an unsolicited “broker’s
transaction” or in transactions directly with a market maker (as such term is defined under the
Exchange Act) and the number of shares being sold during any three-month period not exceeding
specified limitations.
(g) Disclosure of Information. The Whitebox Parties believes they have received all the
information it considers necessary or appropriate for deciding whether to purchase the securities
of the Company contemplated by this Agreement. The Whitebox Parties further represents that they
have had an opportunity to ask questions and receive answers from the Company regarding the
securities being issued by the Company pursuant to this Agreement and Company’s business,
properties, prospects and financial condition.
4.3. Transfer Restrictions. The Whitebox Parties acknowledge and agree that the Shares and
the Warrants are subject to restrictions on transfer and will bear restrictive legends.
SECTION 5. CONDITIONS FOR CLOSING
5.1. Conditions for the Company to Satisfy for the Closing. The obligation of the Whitebox
Parties to purchase the Shares and Warrants as contemplated by this Agreement is subject to
satisfaction of the following contingencies at or prior to the Closing:
(a) The Company shall have obtained all third party consents required in connection with this
Agreement.
(b) The Company shall have delivered the agreements, documents and instruments described in
Section 2.1(a) of this Agreement.
(c) The Company shall have performed and complied with all agreements, obligations and
conditions contained in this Agreement that are required to be performed or complied with by it on
or before the Closing.
15
(d) Xxxxxxx & Associates, legal counsel to the Company, shall have delivered an opinion to the
Whitebox Parties with respect to the following matters (which opinion may contain customary
exclusions and limitations that are reasonably acceptable to counsel for the Whitebox Parties):
| (i) | The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. The Company has all corporate power and authority necessary to own its properties and to conduct its business as, to our knowledge, it is presently conducted. The Company is qualified to do business and is in good standing in the State of California. | ||
| (ii) | The Company has the requisite corporate power and authority to execute, deliver and perform its obligations under the Transaction Documents. | ||
| (iii) | The Transaction Documents have been duly authorized by all necessary corporate action on the part of the Company. | ||
| (iv) | The authorized capital stock of the Company consists of 500,000,000 shares of Common Stock, par value $0.001 per share and 2,000,000 shares of Preferred Stock, par value $0.001. To our knowledge, except as described above or in the Purchase Agreement (including the schedules and exhibits thereto), there are no other presently outstanding preemptive rights to purchase from the Company any of the authorized but unissued stock of the Company. | ||
| (v) | Each of the Transaction Documents, when executed and delivered by the Company, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms. | ||
| (vi) | The Shares and the Warrant Shares have been duly authorized, and when issued in accordance with the terms of the Purchase Agreement, will be validly issued, fully paid and nonassessable. | ||
| (vii) | The execution and delivery of the Transaction Documents by the Company will not result in (i) a violation of the Company’s Certificate of Incorporation or Bylaws, as amended or (ii) a violation of any judgment or order specifically identified on the Schedules to the Purchase Agreement, if any. |
SECTION 6. OTHER AGREEMENTS
The Company covenants and agrees to the following (as to which the failure to comply shall
constitute an event of default under this Agreement)
6.1 Limitation on Use of Proceeds. The Company will not use any portion of the net proceeds
from the sale of the Shares and Warrants to pay all or any part of the unpaid wages, bonuses or
other cash compensation due for services rendered to the Company prior to calendar year 2006 to any
current or former employee of the Company, including the Company’s President, Chief Executive
Officer, Chief Financial Officer and Managing Director.
16
6.2 Internal Accounting Controls. The Company shall maintain a system of internal accounting
controls sufficient 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.
6.3. SEC Reporting. The Company shall (a) timely file (or obtain extensions in respect
thereof and file within the applicable grace period) all reports required to be filed by the
Company pursuant to the Exchange Act; and (b) maintain disclosure controls and procedures (as
defined in Exchange Act Rules 13a – 15(e) and 15(d) – 15(e)) that are designed to ensure that
material information relating to the Company is made known to the certifying officers by others
within the Company, particularly during the period in which the Company’s Form 10-KSB or Form
10-QSB, as the case may be, is being prepared.
SECTION 7. MISCELLANEOUS
7.1. Governing Law. This Agreement shall be governed by the internal laws of the State of
Minnesota as such laws are applied to agreements between Minnesota residents entered into and
performed entirely in Minnesota.
7.2. Survival. The representations, warranties, covenants and agreements made in this
Agreement shall survive any investigation made by the parties and the closing of the transactions
contemplated hereby. All statements as to factual matters contained in any certificate or other
instrument delivered by or on behalf of the Company pursuant hereto in connection with the
transactions contemplated hereby shall be deemed to be representations and warranties by the
Company hereunder solely as of the date of such certificate or instrument.
7.3. Successors and Assigns. Except as otherwise expressly provided herein, the provisions
hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs,
executors and administrators of the parties hereto and shall inure to the benefit of and be
enforceable by each person who shall be a holder of the Shares, the Warrants and the Warrant Shares
from time to time.
7.4. Entire Agreement. The Transaction Documents and the other documents delivered pursuant
hereto constitute the full and entire understanding and agreement between the parties with regard
to the subjects hereof and no party shall be liable or bound to any other in any manner by any
representations, warranties, covenants and agreements except as specifically set forth herein and
therein.
7.5. Severability. In case any provision of the Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
17
7.6. Amendment and Waiver. This Agreement may be amended or modified, and any provision
hereunder may be waived, only upon the written consent of the Company and the Whitebox Parties.
7.7. Notices. All notices, requests, consents, and other communications hereunder shall be in
writing and shall be deemed effectively given and received when delivered in person or by national
overnight courier service or by certified or registered mail, return receipt requested, or by
telecopier, addressed as follows:
(a)
|
if to the Company, at | |
| Sutura, Inc. | ||
| 00000 Xxxxxxx Xxxxxx | ||
| Xxxxxxxx Xxxxxx, Xxxxxxxxxx 00000 | ||
| Attention: Xxxxxxx X. Xxxxxx, President and Chief Executive Officer | ||
| Facsimile: (000) 000-0000 | ||
| with a copy to: | ||
| Xxxxxxx & Associates | ||
| 000 Xxxxx Xxxxxxxxx, 00xx Xxxxx | ||
| Xxxxx Xxxx, Xxxxxxxxxx 00000 | ||
| Attention: Xxxxxxx X. Xxxxxxx, Esq. | ||
| Facsimile: (000) 000-0000 | ||
(b)
|
if to the Whitebox Parties, at | |
| Whitebox Advisors, LLC | ||
| 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000 | ||
| Xxxxxxxxxxx, Xxxxxxxxx 00000 | ||
| Attention: Xxxxxxxx Xxxx, Chief Financial Officer | ||
| Facsimile: (000) 000-0000 | ||
| with a copy to: | ||
| Xxxxxxxx & Xxxxxx P.A. | ||
| 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000 | ||
| Xxxxxxxxxxx, Xxxxxxxxx 00000 | ||
| Attention: Xxxxxxx X. Xxxxxxx, Esq. | ||
| Facsimile: (000) 000-0000 |
7.8. Indemnification by the Company. The Company agrees to indemnify and hold the Whitebox
Parties, its affiliates and the directors, officers, managers, employees and agents of each of the
foregoing (each, a “Whitebox Party”) harmless against any and all claims, losses, liabilities,
obligations, damages, judgments, costs or expenses (including reasonable legal fees and costs) that
any such Whitebox Party may suffer, sustain or become subject to as a result of,
18
or in connection with, or in any way related to or by reason of (a) any misrepresentation, breach
or inaccuracy of any representation, warranty, covenant or agreement made by the Company in any of
the Transaction Documents; or (b) the execution, delivery or performance of any of the Transaction
Documents or any transaction contemplated by any of the Transaction Documents.
7.9. Expenses. The Company agrees to pay or reimburse the Whitebox Parties for its reasonable
legal fees and expenses that they may incur after the date hereof in connection with the granting
of any waiver with respect to, the modification of any of the terms or provisions of, or the
enforcement of any of the Transaction Documents.
7.10. Titles and Subtitles. The titles of the sections and subsections of the Agreement are
for convenience of reference only and are not to be considered in construing this Agreement.
7.11. Counterparts. This Agreement may be delivered via facsimile or other means of
electronic communication, and may be executed in counterparts, each of which shall be an original,
but all of which together shall constitute one instrument.
[signatures on the next page]
19
IN WITNESS WHEREOF, the parties hereto have caused this Purchase Agreement to be executed and
delivered as of the date first written above.
| SUTURA, INC. | ||||||
| By | ||||||
| Xxxxxxx X. Xxxxxx | ||||||
| President and Chief Executive Officer | ||||||
| PANDORA SELECT PARTNERS, L.P. | ||||||
| By | ||||||
| Name | ||||||
| Its | ||||||
| WHITEBOX HEDGED HIGH YIELD PARTNERS, L.P. | ||||||
| By | ||||||
| Name | ||||||
| Its | ||||||
| WHITEBOX CONVERTIBLE ARBITRAGE PARTNERS, L.P. | ||||||
| By | ||||||
| Name | ||||||
| Its | ||||||
| WHITEBOX INTERMARKET PARTNERS, L.P. | ||||||
| By | ||||||
| Name | ||||||
| Its | ||||||
| XXXX X. XXXXXX | ||||||
| XXXX X. XXXXXX | ||||||
20
EXHIBIT A
Form of Warrant
Form of Warrant
21
EXHIBIT B
Allocation of Shares and Warrants
Allocation of Shares and Warrants
| Whitebox Party | Number of Shares | Warrant | Purchase Price | |||||||||
WCAP |
24,610,418 | 4,128,800 | $ | 1,968,899.44 | ||||||||
WHHY |
19,654,474 | 3,296,800 | $ | 1,572,143.89 | ||||||||
WIP |
7,873,043 | 1,320,800 | $ | 629,849.44 | ||||||||
Pandora |
9,855,121 | 1,653,600 | $ | 788,551.67 | ||||||||
Kohler |
150,000 | 0 | $ | 12,000.00 | ||||||||
Xxxxxx |
37,500 | 0 | $ | 3,000.00 | ||||||||
Total |
62,180,556 | 10,400,000 | $ | 4,974,444.44 | ||||||||
22
EXHIBIT C
Third Amended Registration Rights Agreement
Third Amended Registration Rights Agreement
23
EXHIBIT D
Pre-2006 Notes Agreement
Pre-2006 Notes Agreement
24
