INVESTMENT UNIT PURCHASE AGREEMENT
Exhibit 10.1
INVESTMENT UNIT PURCHASE AGREEMENT
THIS AGREEMENT (this “Agreement”) is made as of February 28, 2005, by and among NationsHealth, Inc., a Delaware corporation (the “Company”). NationsHealth Holdings, L.L.C., a Florida limited liability company and a wholly-owned subsidiary of the Company (“NH LLC”), United States Pharmaceutical Group, L.L.C., a Delaware limited liability company and an indirect wholly-owned subsidiary of the Company (“USPG,” and together with the Company and NH LLC, the “Issuers”) and MHR Capital Partners LP, OTQ LLC and MHR Capital Partners (100) LP (each such holder, including the successors and assigns of any such holder, a “Holder” and, all such holders and their respective successors and assigns collectively, the “Holders”) and MHR Capital Partners LP, as collateral agent.
1. Purchase and Issuance of Units; Closing.
(a) Subject to the terms and conditions set forth in this Agreement, the Issuers agree to sell to each Holder the number of Units set opposite such Holder’s name on the signature page hereto and the Holder agrees to pay to the Issuers a per Unit price of $1,000 and the aggregate purchase price set below such Holder’s name on the signature page hereto (the “ Purchase Price”).
(b) The closing (the “Closing”) shall take place at the offices of Stroock & Stroock & Xxxxx LLP on the date hereof simultaneously with the execution of this Agreement.
(c) At the Closing, the Issuers will deliver to the Holders the following:
(1) duly executed original counterparts to this Agreement and the other Transaction Documents (as defined herein);
(2) evidence satisfactory to the Holders of the perfection of a security interest in the Company’s assets and each Subsidiary’s assets, all as more particularly described in
the Notes, including without limitation that all filings shall have been made and all fees payable, if any, in connection therewith shall have been paid by the Company;
(3) duly executed Notes and validly issued Common Shares;
(4) a certificate addressed to the Holders, executed by the Chief Executive Officer of the Company after reasonable investigation, dated as of the time of Closing to the effect and that: the representations and warranties of the Company and the Subsidiaries are true and correct as of the time of Closing (except for representations and warranties that speak as of a specific date, which representations and warranties shall be true and correct as of such date);
(5) copies of each consent or approval of each person or entity whose consent or approval is required under any contract or agreement to which the Company or any of its Subsidiaries is a party in connection with this Agreement and the Transactions Documents and which consent or approval is not otherwise expressly referenced in this Section 1(c), except those for which the failure to obtain such consent or approval, individually or in the aggregate, is not reasonably likely to have a Material Adverse Effect (as defined herein) or is not reasonably likely to prevent or to materially impair the ability of the parties to consummate this Agreement or any of the Transaction Documents;
(6) an opinion of the Company’s counsel, dated as of the date of Closing, in form, scope and substance reasonably satisfactory to the Holders as to: (i) due incorporation; (ii) power and authority to execute transactions; (iii) due authorization of transaction and Transaction Documents; (iv) due execution of Transaction Documents, issuance and delivery; (v) no violation of charter and bylaws or any of the following: (a) the Amended and Restated Revolving Credit and Security Agreement, dated as of June 29, 2004, among the Issuers and CapitalSource Finance LLC, as amended, (b) the Warrant Agreement, dated as of August 25, 2003, between the Company (formerly Millstream Acquisition Corporation), and Continental Stock Transfer & Trust Company, (c) the Stockholders Agreement, dated as of March 9, 2004, among the Company (formerly Millstream Acquisition Corporation), RGGPLS Holding, Inc. and GRH Holdings, Inc., (d) the Registration Rights Agreement dated as of July 22, 2003, among the Company and the investor parties listed on the signature pages thereto, (e) the Registration Rights Agreement dated as of March 9, 2004, as amended as of June 2, 2004, among the Company and the investor parties listed on the signature pages thereto, (f) the Service Agreement, dated as of March 30, 2004, between USPG and Professional Claim Services, Inc. d/b/a Wellpoint Pharmacy Management and (g) Medical Benefit Distribution Agreement, dated as of October 1, 2003, between Becton Xxxxxxxxx and Company and USPG; (vi) valid and binding and enforceable obligation; (vii) no violation of applicable laws; (viii) no registration under federal securities laws required; (ix) no consent, order, approval or authorization of governmental authority necessary; (x) Shares validly issued and fully paid; and (xi) Common Stock duly reserved for issuance and upon conversion of the Notes will be validly issued, fully paid and free of preemptive rights;
(7) a copy of the certificate of incorporation, by-laws or other applicable organizational documents of each Issuer and a copy of resolutions, duly adopted by the
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Board of Directors or other governing body of each Issuer, which shall be in full force and effect at the time of the Closing, authorizing the execution, delivery and performance by such Issuer of this Agreement and the Transaction Documents, and the consummation by such Issuer of the transactions contemplated hereby and thereby, certified as such by the Secretary or Assistant Secretary of such Issuer;
(8) good standing certificates as of a recent date for each of the Issuers from the Secretary of State of such Issuer’s jurisdiction of organization;
(9) A copy of duly executed waivers and consents from the Company and any and all third parties that have registration rights with respect to the Company’s securities, including the Registration Rights Agreement, dated as of July 22, 2003, by and among Millstream Acquisition Corporation (currently the Company) and the other signatories thereto and the Registration Rights Agreement, dated as of March 9, 2004, as amended as of June 2, 2004, by and among Millstream Acquisition Corporation (currently the Company), RGGPLS Holding, Inc., GRH Holdings, L.L.C. and Becton Xxxxxxxxx and Company (the “Existing Registration Rights Agreements”) that the Holders pursuant to the Registration Rights Agreement shall be able to participate on the basis set forth in the Registration Rights Agreement in the sale of securities with such third parties with respect to any (i) demands for registration made by such third parties, and prior to the Company selling any securities pursuant to such registration statement, including by way of reduction of any shares offered in a demand registration pursuant to Sections 2.1.4 of the Existing Registration Rights Agreements and (ii) piggyback registrations, including by way of reduction of any shares offered in a piggyback registration pursuant to Sections 2.2.2 of the Existing Registration Rights Agreements; and
(10) a copy of a duly executed Existing Senior Lender Waiver and Consent (as defined herein).
(d) At the Closing, the Holders will deliver to an account designated by the Company, by wire transfer in immediately available funds, an amount equal to the aggregate Purchase Price.
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necessary unless the failure to so qualify has not and could not reasonably be expected to have a Material Adverse Effect (as defined below). For purposes of this agreement, “Subsidiary” shall mean, (i) as to the Company, any person or entity in which more than 50% of all equity, membership, partnership or other ownership interests is owned directly or indirectly by the Company and/or one or more of its Subsidiaries (each a Subsidiary, and collectively the “Subsidiaries”). As of the date hereof, the Company’s subsidiaries are reflected on Schedule 2(a) hereto.
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to (i) the issuance of the Shares and the Conversion Shares, (ii) any adjustments in other securities resulting from such issuance, and (iii) the exercise or conversion of all outstanding securities. All of the issued and outstanding shares of the Company’s capital stock have been duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights and were issued in full compliance with applicable law. All of the issued and outstanding shares of capital stock of each Subsidiary have been duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights, were issued in full compliance with applicable law and are owned by the Company, beneficially and of record, subject to no lien, encumbrance or other adverse claim. No person is entitled to preemptive or similar statutory or contractual rights with respect to any securities of the Company. Except as described herein and on Schedule 2(c), (i) there are no outstanding warrants, options, convertible securities or other rights, agreements or arrangements of any character under which the Company or any of its Subsidiaries is or may be obligated to issue any equity securities of any kind and except as expressly contemplated by this Agreement, (ii) neither the Company nor any of its Subsidiaries is currently in negotiations for the issuance of any equity securities of any kind (other than the Units), (iii) there are no agreements or arrangements under which the Company or a Subsidiary is obligated to register the sale of any of its or their securities under the Securities Act of 1933, as amended (the “Securities Act”) and (iv) there are no voting agreements, buy sell agreements, or right of first purchase agreements among the Company and any of the securityholders of the Company.
The Company has furnished to the Holders true and correct copies of the Company’s Certificate of Incorporation as in effect on the date hereof (“Certificate of Incorporation”), the Company’s By-laws as in effect on the date hereof (the “By-laws”), and all other instruments and agreements governing securities convertible into or exercisable or exchangeable for capital stock of the Company and each of its Subsidiaries.
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securities laws which the Company undertakes to file within the applicable time periods. The granting of the security interest in the Collateral (as defined in the Notes) pursuant to the Notes and Intercreditor Agreement and the exercise of the rights granted to the Holders therein (including, without limitation, the disposition of the Collateral) do not require the consent, authorization or approval of any Governmental Authority.
(1) any change in the consolidated assets, liabilities, financial condition or operating results of the Company from that reflected in the financial statements included in the 2003 10-KSB, except for changes in the ordinary course of business, in each case which have not and could not reasonably be expected to have a Material Adverse Effect (as defined herein), individually or in the aggregate;
(2) any declaration or payment of any dividend, or any authorization or payment of any distribution, on any of the capital stock of the Company, or any redemption or repurchase of any securities of the Company;
(3) any material damage, destruction or loss, whether or not covered by insurance to any assets or properties of the Company or its Subsidiaries;
(4) any waiver, not in the ordinary course of business, by the Company or any Subsidiary of a material right or of a material debt owed to it;
(5) any satisfaction or discharge of any lien, claim or encumbrance or payment of any obligation by the Company or a Subsidiary, except in the ordinary course of business and which is not material to the assets, properties, financial condition, operating results or business of the Company and its Subsidiaries taken as a whole (as such business is presently conducted and as it is proposed to be conducted);
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(6) any change or amendment to the Company’s Certificate of Incorporation or By-laws, or material change to any material contract or arrangement by which the Company or any Subsidiary is bound or to which any of their respective assets or properties is subject;
(7) any material labor difficulties or labor union organizing activities with respect to employees of the Company or any Subsidiary;
(8) any transaction entered into by the Company or a Subsidiary other than in the ordinary course of business;
(9) the loss of the services of any key employee, or material change in the composition or duties of the senior management of the Company or any Subsidiary;
(10) the loss, or threatened loss in writing, of any customer which has had or could reasonably be expected to have a material adverse effect on (i) the assets, liabilities, results of operations, condition (financial or otherwise) or business of the Company and its subsidiaries taken as a whole or (ii) on the ability of the Company to perform its obligations under the Transaction Documents (collectively, a “Material Adverse Effect”); or
(11) any other event or condition of any character that has had or could reasonably be expected to have a Material Adverse Effect.
(1) At the time of filing thereof, the SEC Filings complied as to form in all material respects with the requirements of the Exchange Act and did 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 the light of the circumstances under which they were made, not misleading.
(2) During the preceding two years, each registration statement and any amendment thereto filed by the Company (or its predecessors) pursuant to the Securities Act and the rules and regulations thereunder, as of the date such statement or amendment became effective, complied as to form in all material respects with the Securities Act and did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading; and each prospectus filed pursuant to Rule 424(b) under the Securities Act, as of its issue date and as of the closing of any sale of securities pursuant thereto did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
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the granting of the security interest pursuant to the Notes, and the exercise of the rights granted to the Holders herein or therein do not and will not conflict with or result in a breach or violation of any of the terms and provisions of, 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 of obligations, impairment of rights or cancellation under (i) the Certificate of Incorporation or the By-laws, or any governing documents of any Subsidiary, each as in effect on the date hereof (copies of which have been provided to the Holders before the date hereof) or as hereafter amended, or (ii)(a) any statute, rule, regulation or order of any governmental agency or body (including without limitation, the Xxxxxxxx-Xxxxx Act of 2002) or any court, or other governmental, administrative, regulatory or self-regulatory authority domestic or foreign, having jurisdiction over the Company, any Subsidiary or any of their respective assets or properties (each such authority, a “Governmental Authority”), or (b) upon receipt of the consents set forth on Schedule 2(e), any agreement, or instrument to which the Company or any Subsidiary is a party or by which the Company or a Subsidiary is bound or to which any of their respective assets or properties is subject, except in the case of (i) and (ii) above for such conflicts, violations defaults or rights which could not reasonably be expected to have a Material Adverse Effect. Neither the Company nor any Subsidiaries is in violation of its Certificate of Incorporation, By-laws or other governing documents and, except as provided in Schedule 2(i), neither the Company nor any Subsidiary is in default (and no event has occurred which, with notice or lapse of time or both, would put the Company or any Subsidiary in default) under, nor has there occurred any event giving others (with notice or lapse of time or both) any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company or Subsidiary is a party, except for actual or possible violations, defaults or rights that would not, individually or in the aggregate, have a Material Adverse Effect. Each of the Company and its Subsidiaries is (i) in compliance with all laws, statutes, rules, regulations, ordinances and tariffs of any Governmental Authority applicable to the Company or its Subsidiaries’ business, assets or operations, including, without limitation, applicable requirements of the Standards for Privacy of Individually Identifiable Health Information which were promulgated pursuant to the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”), Employee Retirement Income Security Act of 1974, as amended and the rules and regulations thereunder (“ERISA”), and all applicable statutes, laws, ordinances, rules and regulations of any Governmental Authority with respect to regulatory matters primarily relating to patient healthcare, healthcare providers and healthcare services (including without limitation Section 1128B(b) of the Social Security Act, as amended, 42 U.S.C. Section 1320a-7(b) (Criminal Penalties Involving Medicare or State Health Care Programs), commonly referred to as the “Federal Anti-Kickback Statute,” and the Social Security Act, as amended, Section 1877, 42 U.S.C. Section 1395nn (Prohibition Against Certain Referrals), commonly referred to as “Xxxxx Statute”) (collectively, “Healthcare Laws”) and (ii) not in violation of any law, ordinance or regulation of any Governmental Authority or other board or tribunal, except in the case of (i) and (ii) above as set forth on Schedule 2(i) or where noncompliance or violation could not reasonably be expected to have a Material Adverse Effect. To the Company’s knowledge, there is no event, fact, condition or circumstance which, with notice or passage of time, or both, would constitute or result in any noncompliance with, or any violation of any of the foregoing laws, in each case except where such noncompliance or such violation could not reasonably be expected to
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have a Material Adverse Effect. To the knowledge of the Company, the Issuers have not received any written notice that they or any of their Subsidiaries are not in compliance in any respect with any of the requirements of any of the foregoing or that there is any ongoing investigation by a Governmental Authority with respect to the foregoing, except as set forth on Schedule 2(i) or where such noncompliance or investigation could not reasonably be expected to have a Material Adverse Effect. The Issuers have (a) not engaged in any non-exempt prohibited transaction as defined in Section 406 of ERISA and Section 4975 of the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder, (b) not failed to meet any applicable minimum funding requirements under Section 302 of ERISA in respect of its plans and no funding requirements have been postponed or delayed, (c) no knowledge of any amounts due but unpaid to the Pension Benefit Guaranty Corporation, or of any event or occurrence which would cause the Pension Benefit Guaranty Corporation to institute proceedings under Title IV of ERISA to terminate any of the employee benefit plans, (d) no fiduciary responsibility under ERISA for investments with respect to any plan existing for the benefit of persons other than its employees or former employees, or (e) not withdrawn, completely or partially, from any multi-employer pension plans so as to incur liability under the MultiEmployer Pension Plan Amendments of 1980. With respect to the Issuers, there exists no event described in Section 4043 of ERISA, excluding Subsections 4043(b)(2) and 4043(b)(3) thereof, for which the thirty (30) day notice period contained in 12 C.F.R. 2615.3 has not been waived. The Issuers have maintained all records required to be maintained by the Food and Drug Administration, Drug Enforcement Agency and State Boards of Pharmacy and the federal and state Medicare and Medicaid programs as required by the Healthcare Laws, HIPAA or ERISA and, to the Company’s knowledge, there are no presently existing circumstances which would reasonably be expected to result in violations of the Healthcare Laws, HIPAA or ERISA, except as set forth on Schedule 2(i) or where such failure, circumstance or violation could not reasonably be expected to have a Material Adverse Effect.
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As used in this Agreement, (i) the term “Tax” (including, with correlative meaning, the terms “Taxes” and “Taxable”) includes all federal, state, local and foreign income, profits, franchise, gross receipts, environmental, customs duty, capital stock, severances, stamp, payroll, sales, employment, unemployment, disability, use, property, withholding, excise, production, value added, occupancy and other taxes, charges, fees, levies, duties or assessments of any nature whatsoever, together with all interest, penalties and additions imposed with respect to such amounts and any interest in respect of such penalties and additions, and (ii) the term “Tax Return” includes any return, report, form or similar statement (including elections, declarations, disclosures, schedules, estimates and information returns) required to be supplied to a Tax authority relating to any Taxes.
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that, if determined adversely to the Company or such Subsidiary, could reasonably be expected to have a Material Adverse Effect, individually or in the aggregate.
(1) “Intellectual Property” means all of the following: (i) patents, patent applications, patent disclosures and inventions (whether or not patentable and whether or not reduced to practice); (ii) trademarks, service marks, trade dress, trade names, corporate names, logos, slogans and Internet domain names, together with all goodwill associated with each of the foregoing; (iii) copyrights and copyrightable works; (iv) registrations, applications and renewals for any of the foregoing; (v) trade secrets, confidential information and know-how (including but not limited to ideas, formulae, compositions, manufacturing and production processes and techniques, research and development information, drawings, specifications, scientific, technical, and engineering data object and source codes, designs, business and marketing plans, and customer and supplier lists and related information); and (vi) proprietary computer software (including but not limited to data, data bases and documentation). Schedule 2(o) sets forth a list of all material registered Intellectual Property of the Company and its Subsidiaries and such list contains a description of the owner, title (in the case of patents and copyrights), or xxxx (in the case of trademarks or servicemarks), registration or application number, if in existence, and country of registration or application of each listed item.
(2) All of the licenses and sublicenses and consent, royalty or other agreements concerning Intellectual Property which are necessary for the conduct of Company’s and each of its Subsidiaries’ respective businesses as currently conducted or as currently proposed to be conducted to which the Company or any Subsidiary is a party or by which any of their assets are bound (other than generally commercially available, non-custom, off-the-shelf software application programs having a retail acquisition price of less than $10,000 per license) (collectively, “License Agreements”) are valid and binding obligations of the Company or its Subsidiaries that are parties thereto and, to the Company’s knowledge, the other parties thereto, enforceable in accordance with their terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights generally, and neither the Company nor any of its Subsidiaries nor, to the Company’s knowledge, any other party thereto, is in material violation or breach of any such License Agreement, and no action or failure to act by the Company or any of its Subsidiaries constitutes (with or without due notice or lapse of time or both) a material default by the Company or any of its Subsidiaries thereunder.
(3) The Company and its Subsidiaries own or have the valid right to use all of the Intellectual Property necessary for the conduct of the Company’s and each of its Subsidiaries’ businesses substantially as currently conducted or as currently proposed to be
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conducted and for the ownership, maintenance and operation of the Company’s and its Subsidiaries’ properties and assets.
(4) Except as set forth on Schedule 2(o), all Intellectual Property owned by the Company and its Subsidiaries that is necessary for the conduct of the Company’s and each of its Subsidiaries’ respective businesses as currently conducted or as currently proposed to be conducted is valid and enforceable and owned by them free and clear of all liens, encumbrances, adverse claims or obligations to license all such owned Intellectual Property, other than licenses entered into in the ordinary course of the Company’s and its Subsidiaries’ businesses. The Company and its Subsidiaries have a valid and enforceable right to use all other Intellectual Property that is necessary for the conduct of the Company’s and each of its Subsidiaries’ respective businesses as currently conducted or as currently proposed to be conducted. The Company and its Subsidiaries have the right to use all of the owned and licensed Intellectual Property which is necessary for the conduct of Company’s and each of its Subsidiaries’ respective businesses as currently conducted or as currently proposed to be conducted in all jurisdictions in which they conduct their businesses.
(5) The Company and each of its Subsidiaries have taken reasonable steps to maintain, police and protect the Intellectual Property which it owns and which is necessary for the conduct of Company’s and each of its Subsidiaries’ respective businesses as currently conducted or as currently proposed to be conducted, including the execution of appropriate confidentiality agreements and intellectual property and work product assignments and releases. The conduct of the Company’s and its Subsidiaries’ businesses as currently conducted does not infringe or otherwise impair or conflict with (collectively, “Infringe” or “Infringement”) any Intellectual Property rights of any third party, and, to the Company’s knowledge, the Intellectual Property rights of the Company and its Subsidiaries that are necessary for the conduct of Company’s and each of its Subsidiaries’ respective businesses as currently conducted or as currently proposed to be conducted are not being infringed by any third party, except to the extent such Infringements do not have a Material Adverse Effect. Except as disclosed in the SEC Filings, there is no litigation or order pending or outstanding or, to the Company’s knowledge, threatened or imminent, that seeks to limit or challenge or that concerns the ownership, use, validity or enforceability of any Intellectual Property of the Company and its Subsidiaries and the Company’s and its Subsidiaries’ use of any Intellectual Property owned by a third party. Except as Disclosed in the SEC Filings, neither the Company nor any of the Subsidiaries has entered into any consent agreement, indemnification agreement, forbearance to xxx or settlement agreement with respect to the validity of the Company’s or its Subsidiaries’ ownership or right to use its Intellectual Property and, to the best knowledge of the Company, there is no reasonable basis for any such claim to be successful.
(6) The consummation of the transactions contemplated hereby will not result in the alteration, loss, impairment of or restriction on the Company’s or any of its Subsidiaries’ ownership or right to use any of the Intellectual Property (including, without limitation, property used pursuant to License Agreements) which is necessary for the conduct of Company’s and each of its Subsidiaries’ respective businesses as currently conducted or as currently proposed to be conducted.
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(7) Except in compliance with applicable confidentiality obligations, there has been no material disclosure of any of the Company’s or its Subsidiaries’ confidential information or trade secrets to any third party.
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business being conducted and properties owned or leased by the Company and each Subsidiary. No default or event has occurred that could give rise to a default under any such policy.
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Subsidiary or to a presently contemplated transaction (other than for services as employees, officers and directors) that would be required to be disclosed pursuant to Item 404 of Regulation S-K promulgated under the Securities Act, without regard to the dollar thresholds contained in such Item.
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with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability, relating to or affecting creditors’ rights generally.
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“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAW AND MAY NOT BE TRANSFERRED UNLESS (I) THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAW WITH RESPECT THERETO, (II) PURSUANT TO RULE 144 OF THE SECURITIES ACT OR (III) UPON THE ADVICE OF COUNSEL REASONABLY ACCEPTABLE TO THE ISSUER, REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAW IS NOT REQUIRED IN CONNECTION WITH SUCH TRANSFER”
The Company agrees that the legend set forth above shall be removed and the Company shall issue a certificate without such legend to the holder of any Securities upon which it is stamped if (a) such Security may be transferred pursuant to an effective registration statement under the Securities Act; (b) such holder provides the Company with reasonable assurances that such Security can be transferred pursuant to Rule 144; or (c) such holder provides the Company with an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the effect that a sale or transfer of such Security may be made without registration under the Securities Act. In the event the above legend is removed from any Security and thereafter the effectiveness of a registration statement covering such Security is suspended or the Company determines that a supplement or amendment thereto is required by applicable securities laws, then upon reasonable advance written notice to the Holders, the Company may require that the above legend be placed on any such Security that cannot then be sold pursuant to an effective registration statement or pursuant to Rule 144 and the Holders shall cooperate in the replacement of such legend. Such legend shall thereafter be removed when such Security may again be transferred pursuant to an effective registration statement or pursuant to Rule 144.
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Subsidiary or the Holder for any commission, fee or other compensation pursuant to any agreement, arrangement or understanding entered into by or on behalf of the Holder.
(1) The Issuers and the Holders agree that the amount of original issue discount with respect to the Notes and the applicable yield to maturity of the Notes is as set forth on Schedule 4(a) hereto and shall report the Notes consistent with such agreed upon tax treatment in all Tax Returns supplied to any Tax authority.
(2) Any sales, transfer and other similar Taxes and any recording and filing fees that may be imposed by reason of the issuance, sale, transfer and/or delivery of any Securities by the Issuers to the Holders shall be borne and paid by the Issuers.
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of Form S-3 of the Securities Act or any successor form thereto, to continue to be eligible to register the resale of its Common stock on a registration statement on Form S-3 of the Securities Act.
(h) Listing. The Company will use its best efforts to continue the listing and trading of its Common Stock on the OTC Electronic Bulletin Board (the “Bulletin Board”) or on the NASDAQ National Market (“NNM”), the Nasdaq SmallCap Market (the “SmallCap Market”) the New York Stock Exchange (“NYSE”) or the American Stock Exchange (“AMEX”) and will comply in all respects with the reporting, filing and other obligations under the bylaws or rules of the National Association of Securities Dealers, Inc. (the “NASD”), such exchanges, or such electronic system, as applicable. The Company shall promptly provide to the Holders copies of any notices it receives regarding the continued eligibility of the Common Stock (or any securities exercisable for or convertible into the Common Stock) for trading in a market over the counter or, if applicable, any securities exchange or automated quotation system on which securities of the same class or series issued by the Company are then listed or quoted, if any.
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Securities to be integrated with any other offering of securities by the Company for purposes of any stockholder approval provision applicable to the Company or its securities.
5. Transfer Agent Instructions.
(a) The Company shall instruct its transfer agent to issue certificates, registered in the name of each Holder or its nominee, for the Conversion Shares in such amounts as specified from time to time by the Holders to the Company upon conversion of the Notes.
(b) The Company warrants that no instruction other than such instructions referred to in this Section 5, and stop transfer instructions to give effect to 3(g) hereof in the case of the transfer of the Notes, or the Common Shares, the Redemption Warrants or the Conversion Shares prior to registration of the Common Shares, the Redemption Warrants or the Conversion Shares under the Securities Act or without an exemption therefrom, will be given by the Company to its transfer agent and that the Securities shall otherwise be freely transferable on the books and records of the Company as and to the extent provided in this Agreement and the Transaction Documents.
(c) Upon the written opinion of counsel reasonably acceptable to the Company to the effect that the Securities to be sold or transferred may be sold or transferred pursuant to an exemption from registration, or if the Holders provide the Company with reasonable assurances that such Securities may be sold under Rule 144, the Company shall permit the transfer and, in the case of the Notes and Common Shares purchased hereunder and the Redemption Warrants and Conversion Shares, promptly instruct its transfer agent to issue one or more certificates in such name and in such denominations as specified by the Holders.
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responsibilities except for those expressly set forth in this Agreement and the Notes. The duties of the Collateral Agent shall be mechanical and administrative in nature and the Collateral Agent shall not have, or be deemed to have, by reason of this Agreement, any other Transaction Document or otherwise a fiduciary relationship in respect of any Holder. Except as expressly set forth in this Agreement and the Notes, the Collateral Agent shall not have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any of the Issuers or any of their respective Subsidiaries that is communicated to or obtained by MHR or any of its Affiliates in any capacity. Neither the Collateral Agent nor any of its Affiliates nor any of their respective officers, directors, employees, agents or representatives shall be liable to any Holder for any action taken or omitted to be taken by it hereunder or under any other Transaction Document, or in connection herewith or therewith, except for damages caused by its or their own gross negligence or willful misconduct.
If the Collateral Agent shall request instructions from the Holders holding a majority of the outstanding principal amount of the Notes (the “Required Holders”) or all affected Holders with respect to any act or action (including failure to act) in connection with this Agreement or the Notes, then the Collateral Agent shall be entitled to refrain from such act or taking such action unless and until such Collateral Agent shall have received instructions from the Required Holders or all affected Holders, as the case may be, and the Collateral Agent shall not incur liability to any person by reason of so refraining. The Collateral Agent shall be fully justified in failing or refusing to take any action hereunder or under the Notes (a) if such action would, in the opinion of the Collateral Agent, be contrary to law or the terms of this Agreement or the Notes, (b) if such action would, in the opinion of such Agent, expose the Collateral Agent to any liabilities under any environmental laws, rules or ordinances or (c) if the Collateral Agent shall not first be indemnified to its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Holder shall have any right of action whatsoever against the Collateral Agent as a result of the Collateral Agent acting or refraining from acting hereunder or under the Notes in accordance with the instructions of Required Holders or all affected Holders, as applicable.
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any Holder for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or the Notes or any other instrument or document furnished pursuant hereto or thereto; and (f) shall incur no liability under or in respect of this Agreement or the Notes by acting upon any notice, consent, certificate or other instrument or writing (which may be by telecopy, telegram, cable or telex) believed by it to be genuine and signed or sent by the proper party or parties.
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appointment. If no successor Collateral Agent has been appointed pursuant to the foregoing, within thirty (30) days or five (5) after the date of notice of resignation or removal was given, as applicable, such resignation or removal shall become effective and the Required Holders shall thereafter perform all the duties of such Collateral Agent hereunder until such time, if any, as the Required Holders appoint a successor Collateral Agent as provided above. Any successor Collateral Agent appointed by Required Holders hereunder shall be subject to the approval of the Issuers, such approval not to be unreasonably withheld or delayed; provided, that such approval shall not be required if a Default or an Event of Default has occurred and is continuing. Upon the acceptance of any appointment as Collateral Agent, as applicable, hereunder by a successor Collateral Agent, such successor Collateral Agent shall succeed to and become vested with all the rights, powers, privileges and duties of the resigning Collateral Agent. Upon the earlier of the acceptance of any appointment as Collateral Agent, hereunder by a successor Collateral Agent or the effective date of such Collateral Agent’s resignation or removal, such Collateral Agent shall be discharged from its duties and obligations under this Agreement and the Notes, except that any indemnity rights or other rights in favor of such Collateral Agent shall continue. After any Collateral Agent’s resignation or removal hereunder, the provisions of this Section 7 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was acting as such Collateral Agent under this Agreement and the Notes.
(a) Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the domestic substantive laws of the State of New York, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction. The parties hereto irrevocably consent to the jurisdiction of the United States federal courts and the state courts located in the County of New York, State of New York located in the Southern District of the State of New York solely in respect of any suit or proceeding based on or arising under this Agreement and irrevocably agree that all claims in respect of such suit or proceeding may be determined in such courts. The parties hereto irrevocably waive the defense of an inconvenient forum to the maintenance of such suit or proceeding. The parties hereto further agree that mailing of process or other papers in connection with any such action or proceeding in the manner provided in the Section on notices below or in such other manner as may be permitted by law shall be valid and sufficient service thereof. The parties hereto agree that a final non-appealable judgment in any such suit or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on such judgment or in any other lawful manner.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES,AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
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OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
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(2) Each Indemnified Party entitled to indemnification hereunder will (a) give prompt written notice to the Indemnifying Party of any claim with respect to which it seeks indemnification or contribution pursuant to this Agreement and (b) permit such Indemnifying Party to assume the defense of such claim with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided, however, that any Indemnified Party entitled to indemnification hereunder shall have the right to employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (x) the Indemnifying Party has agreed in writing to pay such fees and expenses, (y) the Indemnifying Party shall have failed to assume the defense of such claim within 20 days of delivery of the written notice of the Indemnified Party with respect to such claim or failed to
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employ counsel selected by such Indemnifying party and reasonably satisfactory to such Indemnified Party or (z) in the reasonable judgment of such Indemnified Party, based upon advice of its counsel, a conflict of interest may exist between such Indemnified Party and the Indemnifying Party with respect to such claims (in which case, if the Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense of such claim on behalf of such Indemnified Party); provided, further, that an Indemnifying Party who is not entitled to, or elects not to, assume the defense of a claim on behalf of all Indemnified Parties shall not be obligated to pay the fees and expenses of more than one counsel (in addition to local counsel) for all Indemnified Parties. If the Indemnifying Party assumes the defense of the claim, it shall not be subject to any liability for any settlement or compromise made by the Indemnified Party without its consent (but such consent shall not be unreasonably withheld). In connection with any settlement negotiated by an Indemnifying Party, no Indemnifying Party shall, and no Indemnified Party shall be required by an Indemnifying Party to, (i) enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to the Indemnified Party of a release from all liability in respect to such claim or litigation (ii) enter into any settlement that attributes by its terms liability to the Indemnified Party, or (iii) consent to the entry of any judgment that does not include as a term thereof a full dismissal of the litigation or proceeding with prejudice. In addition, without the consent of the Indemnified Party (which consent will not be unreasonably withheld), no Indemnifying Party will be permitted to consent to entry of any judgment or enter into any settlement which provides for any action on the part of the Indemnified Party other than the payment of money damages which are to be paid in full by the Indemnifying Party. If an Indemnifying Party fails or elects not to assume the defense of a claim pursuant to clause (y) above, or is not entitled to assume or continue the defense of such claim pursuant to clause (z) above, the Indemnified Party shall have the right without prejudice to its right of indemnification hereunder to, in its discretion exercised in good faith and upon advice of counsel, to contest, defend and litigate such claim and may settle such claim, either before or after the initiation of litigation, at such time and upon such terms as the Indemnified Party deems fair and reasonable, provided that at least 10 days prior to any settlement, written notice of its intention to settle is given to the Indemnifying Party. If requested by the Indemnifying Party, the Indemnified Party agrees (at no expense to the Indemnified Party) to cooperate with the Indemnifying Party and its counsel in contesting any claim that the Indemnifying Party elects to contest.
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| COMPANY: | NATIONSHEALTH, INC. | |||||
| By: | /s/ Xxxxx Xxxxxx | |||||
| Name: | ||||||
| Title: | ||||||
| SUBSIDIARIES: | NATIONSHEALTH HOLDINGS, L.L.C. | |||||
| By: | /s/ Xxxxx Xxxxxx | |||||
| Name: | ||||||
| Title: | ||||||
| UNITED STATES PHARMACEUTICAL | ||||||
| GROUP, L.L.C. | ||||||
| By: | /s/ Xxxxx Xxxxxx | |||||
| Name: | ||||||
| Title: | ||||||
[Signature Page to Investment Unit Purchase Agreement]
| HOLDERS and | MHR CAPITAL PARTNERS LP, Individually and as | |||||
COLLATERAL AGENT:
|
Collateral Agent | |||||
| By: | MHR Advisors LLC, its general partner | |||||
| By: | /s/ Xxx Xxxxxxxxx | |||||
| Name: Xxx Xxxxxxxxx | ||||||
| Title: Authorized Signatory | ||||||
| Number of Units: 7,551 | ||||||
| Purchase Price: $7,551,403 | ||||||
| OTQ LLC | ||||||
| By: | /s/ Xxx Xxxxxxxxx | |||||
| Name: Xxx Xxxxxxxxx | ||||||
| Title: Authorized Signatory | ||||||
| Number of Units: 6,440 | ||||||
| Purchase Price: $6,440,000 | ||||||
| MHR CAPITAL PARTNERS (100) LP | ||||||
| By: | MHR Advisors LLC, its general partner | |||||
| By: | /s/ Xxx Xxxxxxxxx | |||||
| Name: Xxx Xxxxxxxxx | ||||||
| Title: Authorized Signatory | ||||||
| Number of Units: 1,009 | ||||||
| Purchase Price: $1,008,597 | ||||||
[Signature Page to Unit Purchase Agreement]
Schedule 4(a)
Original Issue Discount and Applicable Yield to Maturity
Original Issue Discount: |
$ | 5,803,571 | ||
Issue Price: |
$ | 9,196,430 | ||
Yield to Maturity: |
19.667 | % |
EXHIBIT A
Form of Note
EXHIBIT B
Form of Senior Subordination Agreement
(referred to as the Intercreditor Agreement)
EXHIBIT C
Form of Existing Senior Lender Amendment, Waiver and Consent
EXHIBIT D
Form of Registration Rights Agreement
EXHIBIT E
Form of Stockholders Agreement