EXHIBIT 10.2
AGREEMENT
This Agreement (the "Agreement") is as of the ___ day of
___________, 1998, by and among the parties listed below (each, a
"Party;" collectively, the "Parties"):
USB `93 Technology Associates Limited Partnership, a
Massachusetts limited partnership having a principal
address c/o USB `93 Technology, Inc. at 00 Xxx Xxxxxxx
Xxxx, Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxxx (the
"Partnership");
USB `93 Technology, Inc., a Massachusetts corporation
having a principal address at 00 Xxx Xxxxxxx Xxxx, Xxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxxxxxxx (the "General Partner");
the persons and/or entities listed on SCHEDULE A hereto
(collectively, the "Limited Partners;" together with the
General Partner, the "Partners") and
Selfcare, Inc., a Delaware corporation having a principal
place of business at 000 Xxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx ("Selfcare").
WHEREAS, the organization and affairs of the Partnership
are governed by a Certificate and Agreement of Limited
Partnership, dated as of November 16, 1993 (the "Partnership
Agreement"); and
WHEREAS, each of the Partners owns such interest in the
Partnership as is set forth opposite his or her name on SCHEDULE
B hereto, which interests (each, a "Partnership Interest;"
collectively, the "Partnership Interests") in the aggregate
represent all of the outstanding interests in the Partnership;
and
WHEREAS, Xxxxxxx X. Xxxxxxx (the "Trustee"), the Partners
and The USB `93 Partners Escrow Trust (the "Trust") have entered
into a Declaration of Trust dated this date (the "Trust
Agreement") in the form attached hereto as EXHIBIT I; and
WHEREAS, the Partnership and Selfcare entered into a
Technology Purchase and Sale Agreement dated as of November 16,
1993 (the "Purchase Agreement") whereby the Partnership acquired
from Selfcare certain assets set forth on SCHEDULE C hereto (the
"Technology"); and
WHEREAS, in connection with the Purchase Agreement,
Selfcare granted to the Partnership a warrant (the "Warrant") to
purchase up to 18,000 shares of Selfcare's common stock (now
234,000 shares after a 13 to 1 stock split); and
WHEREAS, Section 3 of the Warrant sets forth restrictions
as to the transfer of the Warrant, and Selfcare and the
Partnership desire to amend the Warrant for the limited purpose
of allowing the Partnership to transfer the Warrant to the Trust;
and
WHEREAS, subsequent to the transfer of the Warrant to the
Trust, each of the Partners desires to sell, transfer, convey and
assign to Selfcare and Selfcare desires to purchase from each of
the Partners 100% of their respective Partnership Interests in
exchange for cash and shares of Selfcare's common stock, such
cash and shares to be delivered into the Trust; and
WHEREAS, the Parties desire that the Trust, in accordance
with the terms and conditions of the Trust Agreement, hold the
Purchase Shares (as defined below) for the benefit of the
Partners pending a determination whether there is an Early
Premium (as defined below) or a Later Premium (as defined below),
returning the same to Selfcare if required by the terms of this
Agreement, and then distributing the remaining Purchase Shares to
the Partners; and
WHEREAS, subsequent to the transfer of the Partnership
Interests to Selfcare, the Parties desire that the Trust, in
accordance with the terms and conditions of the Trust Agreement,
exercise the Warrant in full for an aggregate exercise price of
$360,000 and distribute to the Partners the shares of Selfcare's
common stock acquired upon such exercise;
NOW THEREFORE, in consideration of the premises and mutual
covenants contained herein, the Parties hereto agree as follows:
1 AMENDMENT CERTAIN DOCUMENTS AND WAIVER OF CERTAIN
RESTRICTIONS
1.1 Selfcare and the Partnership hereby agree to amend the
Warrant, and the Warrant is hereby amended (without further
action being required), by adding the following sentence at the
end of Section 3 thereof:
"Notwithstanding the foregoing, nothing herein shall
prevent the transfer of this Warrant by LP to The USB
`93 Partners Escrow Trust subject to the terms and
conditions set forth in the Declaration of Trust dated
, 1998."
1.2 The signatories to this Agreement who are Partners of the
Partnership acknowledge that there are restrictions on the
transfer of their Partnership Interests contained in the
Partnership Agreement. Each of the Partners now agrees to, and
hereby does, waive any and all restrictions on the transfer of
the Partnership Interests ("Restrictions") by each of them to
Selfcare (but to no other transferee), whether such Restrictions
are imposed by the Partnership Agreement or otherwise. To the
extent necessary, the Partnership Agreement is hereby amended
(without further action being required) to permit transfer of the
Partnership Interests by the Partners to Selfcare pursuant to
this Agreement free of any and all Restrictions.
2 TRANSFER OF WARRANT
Subject to the terms and conditions set forth herein, in
the Warrant and in the Trust Agreement, on the Closing Date
(as defined below), the Partnership hereby agrees and
covenants to transfer, assign, convey and deliver into the
Trust all of its right, title and interest in the Warrant.
3 SALE AND PURCHASE OF PARTNERSHIP INTERESTS
3.1 Subject to the terms and conditions set forth in this
Agreement, on the Closing Date (as defined below), subsequent to
the transfer of the Warrant from the Partnership to the Trust,
each of the Partners severally agrees and covenants to sell,
convey, transfer, assign and deliver to Selfcare, and Selfcare
hereby agrees and covenants to purchase and shall acquire from
each Partner, all right, title and interest in and to each
Partner's respective Partnership Interest, for an aggregate
purchase price of $4,925,778 (the "Purchase Price"), payable in
(i) 487,017 shares of Selfcare common stock, $.001 par value (the
"Purchase Shares") and (ii) $360,000 in cash (the "Cash").
3.2 On the Closing Date (as defined below), Selfcare shall
deliver into the Trust the Cash and Purchase Shares, and the
delivery into the Trust of such Cash and Purchase Shares shall
represent payment in full of the Purchase Price. Subject to the
terms herein, the Trust shall use the Cash to exercise the
Warrant as set forth below, and the Trust shall hold the Purchase
Shares for the benefit of the Partners subject to the adjustments
set forth below.
4 EXERCISE OF WARRANT BY TRUST
4.1 Subject to the terms and conditions set forth in this
Agreement and the Warrant, on the Closing Date (as defined
below), the Trust shall exercise the Warrant by delivering to
Selfcare (1) a fully executed subscription to purchase 234,000
shares of Selfcare's common stock, $.001 par value, substantially
in the form attached to said Warrant (the "Subscription Form")
and (2) $360,000 (the "Exercise Price"), payable as set forth
below. In exchange, Selfcare will deliver into the Trust on the
Closing Date a certificate registered in the name of the Trust
for 234,000 shares of Selfcare's common stock, $.001 par value
(the "Warrant Shares").
4.2 Subsequent to the exercise of the Warrant as described
above, the Trust shall distribute the Warrant Shares to the
Partners in accordance with the Trust Agreement.
5 RIGHTS AND OBLIGATIONS OF HOLDERS OF WARRANT SHARES
The Parties hereby acknowledge that the Partners, as
holders of the Warrant Shares after the Trust's
distribution of such Warrant Shares to the Partners, shall
have all such rights and obligations with respect to the
Warrant Shares as are set forth in the Warrant, including,
without limitation, the registration rights described in
Section 5 the Warrant.
6 CLOSING
6.1 The closing hereunder (the "Closing") shall take place at
the offices of Selfcare, 000 Xxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx, at 10 A.M., Boston time, on April 30, 1998
(the "Closing Date"), or at such other time and place as
is mutually agreed upon by Selfcare and the General
Partner.
6.2 At the Closing:
(a) The Partnership shall deliver to the Trust the
Warrant, accompanied by such instruments of transfer
as are necessary to effect the transfer of all right,
title and interest in the Warrant to the Trust.
(b) The Partnership shall deliver to Selfcare any books,
papers, ledgers, documents and records relating to the
Technology.
(c) Each of the Partners shall deliver to Selfcare: (1)
any required instruments of transfer in form and
substance reasonably satisfactory to Selfcare, which
instruments shall vest in Selfcare good and marketable
title to such Partner's Partnership Interest free and
clear of all liens and encumbrances and (2) any
consents of third parties necessary to effectuate the
transfer of such Partner's Partnership Interest to
Selfcare.
(d) Selfcare shall deliver to the Trust: (1) a certificate
or certificates registered in the name of the Trust
for 487,017 shares of the common stock of Selfcare,
$.001 par value (representing the Purchase Shares) and
(2) $360,000 (representing the Cash) by wire transfer,
or in the form of a check made payable to the Trust.
(e) The Trust shall deliver to Selfcare: (1) an executed
Subscription Form to exercise the Warrant in full and
(2) $360,000 in cash, by wire transfer, or in the form
of a check made payable to Selfcare (representing the
Exercise Price of the Warrant).
(f) Selfcare shall deliver to the Trust a certificate or
certificates registered in the name of the Trust for
an aggregate of 234,000 shares of the common stock of
Selfcare, $.001 par value (representing the Warrant
Shares).
6.3 All other documents and papers to which the parties are
entitled under this Agreement and any required authorizations
shall also be delivered at the Closing, or at such other time as
is mutually agreed upon by the parties.
7 CERTAIN CONTRACTS
Upon consummation of the purchase and sale of the
Partnership Interests as described above:
(a) all contracts, agreements, understandings and other
arrangements between the Partnership and any of the
Partners, including without limitation any consulting
agreements, employment agreements and severance
arrangements, shall terminate, and shall not be
binding upon any of the Parties hereto and
(b) all contracts, agreements, understandings and other
arrangements between the Partnership and Selfcare,
with the exception of this Agreement, shall terminate,
and shall not be binding upon any of the Parties
hereto.
8 PARTNERSHIP ASSETS AND LIABILITIES
8.1 On or prior to the Closing Date, the Partnership shall
distribute, sell and/or transfer all of the assets owned by the
Partnership other than the Technology, so that on the Closing
Date the Partnership shall own no assets except the Technology.
8.2 Selfcare shall not, by virtue of this Agreement, or
otherwise, assume or agree to pay, perform, or discharge any, and
the Partners shall retain and pay and discharge, or cause the
Partnership to pay and discharge, all liabilities and obligations
of the Partners and the Partnership whatsoever, direct or
indirect, determined or contingent, and whether or not disclosed
herein, including without limitation the Partnership Liabilities
and all of the liabilities and obligations of the Partners for
federal and state income taxes relating to their respective
Partnership Interests accruing prior to the Closing Date or as a
result of the sale of such Partnership Interests to Selfcare.
8.3 Notwithstanding the foregoing, the Partners shall pay and
satisfy, or cause the Partnership to pay and satisfy, the
following at or before the Closing Date:
(a) All sales, use and transfer taxes, costs and expenses,
if any, payable in connection with the transfer and
delivery of the Partnership Interests.
(b) All personal property taxes, if any, attributable to
taxable periods beginning before the Closing Date,
even if not due until after the Closing Date, with
respect to the assets owned or held by the Partnership
on the Closing Date or any other assets owned or held
by the Partnership during such taxable periods. For
purposes of determining the portion of personal
property taxes attributable to periods before the
Closing Date, such taxes shall be prorated on a daily
basis.
(c) All outstanding security interests in the Technology
will be discharged.
9 ADJUSTMENT TO PURCHASE SHARES
The aggregate number of Purchase Shares transferred by
Selfcare to and held by the Trust pursuant to this
Agreement and the Trust Agreement shall be adjusted as
follows:
9.1 If by June 30, 1998 (and provided the closing of such
"Transaction" (as defined below) occurs no later than August 31,
1998) Selfcare enters into a definitive purchase and sale
agreement to sell all or a substantial portion of its assets
representing more than fifty-one percent (51%) of the value of
all assets of Selfcare as of the date of the Transaction, or to
sell the stock of Selfcare or a subsidiary or spin-off of
Selfcare where the sale of such subsidiary or spin-off represents
the sale of more than fifty-one percent (51%) of the assets of
Selfcare as of the date of the Transaction, in a transaction or
series of related transactions (a "Transaction") in which the
holders of the Purchase Shares (the "Holders") will retain or
receive with respect to the Purchase Shares (i) cash, (ii)
securities of Selfcare or a subsidiary or spin-off of Selfcare
and/or (iii) securities of the acquirer (together with (i) and
(ii), the "Early Consideration"), and the value of such Early
Consideration, determined upon the closing of such Transaction,
exceeds $5,935,520, then, upon the closing of such Transaction,
the Purchase Shares will be subject to adjustment described
below, which adjustment will be made, at Selfcare's election,
simultaneously with or immediately prior to the consummation of
the Transaction:
(a) For purposes of this Section, "Per Share Price" shall
mean the average of the closing prices of Selfcare
common stock for the five (5) trading days immediately
preceding the closing date of the Transaction that
triggers the adjustment described herein. "Early
Premium" shall mean the amount by which the Early
Consideration exceeds $5,935,520.
(b) The Trust shall deliver back to the Company on the
closing date of the Transaction a number of Purchase
Shares determined by dividing the Early Premium by the
Per Share Price.
9.2 If no Transaction occurred as provided in Subsection 9.1
above, and if by October 31, 1998 (and provided the closing of
such Transaction occurs no later than December 31, 1998) Selfcare
enters into a definitive purchase and sale agreement relating to
a Transaction in which the Holders would retain or receive with
respect to the Purchase Shares (i) cash, (ii) securities of
Selfcare or a subsidiary or spin-off of Selfcare and/or (iii)
securities of the acquirer (together with (i) and (ii), the "Late
Consideration"), and the value of such Late Consideration,
determined upon the closing of such Transaction, exceeds
$6,848,677, then, upon the closing of such Transaction, the
Purchase Shares will be subject to adjustment as described below,
which adjustment will be made, at Selfcare's election,
simultaneously with or immediately prior to the consummation of
the Transaction:
(a) For purposes of this Section, "Late Premium" shall
mean the amount by which the Late Consideration
exceeds $6,848,677.
(b) The Trust shall deliver back to the Company on the
closing date of the Transaction a number of Purchase
Shares determined by dividing the Late Premium by the
Per Share Price.
9.3 The intent of this Section is to limit the gain realized by
the Holders of the Purchase Shares to 30% if a Transaction
described in Subsection 9.1 occurs and to 50% if a Transaction
described in Subsection 9.3 occurs, so that in either such case
the Trustee shall return the amount of the Early or Late Premium
(in the form of Purchase Shares) to Selfcare as provided above.
9.4 The Trust shall not distribute or transfer any Purchase
Shares until the earlier of December 31, 1998 or the consummation
of a Transaction, unless Selfcare shall not have entered into a
definitive purchase and sale agreement by October 31, 1998 which
envisions a Transaction scheduled to close not later than
December 31, 1998, in which event the Trust may distribute or
transfer Purchase Shares, subject to the provisions of Section
15.5, on or after November 1, 1998 free of any restrictions
imposed by this Section 9.
10 REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF THE
PARTNERSHIP AND EACH OF THE PARTNERS
The Partnership and each of the Partners, severally and
jointly, represent, warrant, covenant and agree as to the
following, and acknowledge that such representations,
warranties, covenants and agreements shall survive the
Closing (in each instance the representation, warranty,
covenant and agreement is made by the Partnership and each
Partner unless otherwise indicated):
10.1 The Partnership is a limited partnership organized pursuant
to the Massachusetts Revised Uniform Limited Partnership Act with
powers adequate for executing and delivering, and performing its
obligations under this Agreement.
10.2 The Partnership is and has always been characterized as a
partnership for federal and state income tax purposes.
10.3 The General Partner is a corporation duly organized, validly
existing and in good standing under the laws of the Commonwealth
of Massachusetts with corporate powers adequate for executing and
delivering, and performing its obligations under, this Agreement,
and is duly empowered to act on behalf of the Partnership.
10.4 The execution, delivery and performance of this Agreement
have been duly authorized by all necessary corporate action on
the part of General Partner acting on behalf of the Partnership.
10.5 The only asset owned by the Partnership as of the Closing
Date shall be the Technology.
10.6 SCHEDULE C hereto accurately and completely lists of all of
the assets of the Partnership as of the Closing Date (the
"Partnership Assets") and all of the liabilities and obligations
of the Partnership with respect to third parties, including the
Partners (the "Partnership Liabilities"), as of the Closing Date.
The Partnership does not possess any asset, nor has the
Partnership incurred any liability or obligation with respect to
a third party, other than those assets, liabilities and
obligations set forth on SCHEDULE C.
10.7 Each Partner has the interest in the Partnership that is set
forth opposite such Partner's name on SCHEDULE B hereto (each
Partner is only representing that such Partner's interest in the
Partnership is as set forth opposite such Partner's name).
10.8 The Partnership, on the Closing Date, will have good and
clear record title to the Partnership Assets, which shall consist
solely of the Technology, and on the Closing Date such
Partnership Assets (the Technology) will be free and clear of all
liens, mortgages, encumbrances, security interests and claims of
any kind, other than the rights of Selfcare under the Technology
License and Development Agreement dated December 29, 1993.
10.9 On the Closing Date there will be no agreements, contracts
or understandings pursuant to which any party, other than
Selfcare, has any claim, right or interest whatsoever in and to
the Partnership Assets.
10.10 On the Closing Date there will be no pending or
threatened actions, suits, claims, arbitrations, proceedings,
investigations or any other proceedings under any contracts or
agreements or otherwise, by or against the Partnership.
10.11 With respect to the Partnership Assets, the Partnership
is not in default with respect to any order, injunction or decree
of any court, arbitrator or governmental body or agency or
instrumentality thereof.
10.12 The Partners, as of the Closing Date, will have paid
and discharged, or will have caused the Partnership to pay and
discharge, all liabilities and obligations of the Partnership
whatsoever, direct or indirect, determined or contingent, and
whether or not disclosed herein, including without limitation the
Partnership Liabilities. The Partners will retain and pay and
discharge any other liabilities and obligations of the Partners,
including without limitation liabilities and obligations for
federal and state income taxes relating to their respective
Partnership Interests accruing prior to the Closing or as a
result of the sale of such Partnership Interests to Selfcare.
10.13 This Agreement has been duly executed and delivered by
each Partner and by the General Partner acting on behalf of the
Partnership and is a legal, valid and binding obligation of each
Partner and the Partnership, enforceable against each Partner and
the Partnership in accordance with its terms. No further action
is necessary to make this Agreement valid, binding and
enforceable upon each Partner and the Partnership. Each Partner
is only representing, warranting, covenanting and agreeing as to
that Partner's execution and delivery of this Agreement as its
validity and enforceability against that Partner.
10.14 The execution, delivery and performance of this
Agreement, and the consummation of the transactions contemplated
hereby, do not and will not result in any breach or default
under, conflict with, or contravention of any provision of the
Partnership Agreement or the partnership agreement of any Partner
that is a partnership, any provision of the charter or by-laws of
any Partner that is a corporation, or any statute, mortgage,
option, lease, agreement, document, instrument or indenture to
which the Partnership or any Partner is a party or by which the
Partnership or any Partner is bound. Each Partner is only
representing, warranting, covenanting and agreeing as to whether
the execution, delivery and performance of this Agreement will
result in any breach or default under any agreement, charter, by-
law, statute, mortgage, option, lease, agreement, document,
instrument or indenture to which that Partner is a party or by
which that Partner is bound.
10.15 The Partnership and each Partner hereby agree and
covenant to promptly take all actions necessary and incidental to
the successful consummation of this Agreement, including the
execution of all necessary documents. The Partnership and each
Partner further agree and covenant not to enter into any
agreement, make any commitment, take any action or fail to take
any action that would contravene any material provision of this
Agreement.
11 ADDITIONAL REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS OF THE PARTNERS
Each of the Partners represents, warrants, covenants and
agrees as to such Partner's own Partnership Interest, such
Partner's ability to enter into this Agreement, and such
Partner's investment decision, and acknowledges that such
representations, warranties, covenants and agreements shall
survive the Closing:
11.1 Each of the Partners has good and marketable title to such
Partner's respective Partnership Interest, which is to be
transferred to Selfcare by such Partner pursuant to this
Agreement, free and clear of any and all covenants, conditions,
restrictions, liens, charges, encumbrances, options and adverse
claims or rights whatsoever. Upon consummation of the purchase
contemplated hereby, Selfcare will acquire from such Partner good
and marketable title to such Partner's Partnership Interest, free
and clear of all covenants, conditions, restrictions, liens,
charges, encumbrances, options and adverse claims or rights
whatsoever.
11.2 Each of the Partners has the full right, power, capacity and
authority to enter into this Agreement and to transfer, convey
and sell to Selfcare at the Closing such Partner's respective
Partnership Interest.
11.3 Each of the Partners which is a corporation is validly
subsisting under the laws of the jurisdiction of its
incorporation, has the corporate power and authority and is
qualified to own and dispose of its Partnership Interest and no
act or proceeding has been taken by or against any such Partner
in connection with the dissolution, liquidation, winding up,
bankruptcy or reorganization of such Partner. The execution and
delivery of this Agreement and such other agreements and
instruments and the completion of the transactions contemplated
by this Agreement and such other agreements and instruments have
been duly authorized by all necessary corporate action on the
part of each Partner which is a corporation and its shareholders.
11.4 No Partner is a party to, subject to or bound by any
agreement or any judgment, order, writ, prohibition, injunction,
decree or award of any governmental agencies that would prevent
the execution or delivery of this Agreement by any Partner or the
transfer, conveyance and sale of such Partner's Partnership
Interest pursuant to the terms hereof.
11.5 With respect to the acquisition of the Purchase Shares and
the Warrant Shares by the each of the Partners:
(a) Each of the Partners understands that the Purchase
Shares and Warrant Shares (collectively, the "Shares") have
not been and (in the case of the Purchase Shares) will not
be registered under the United States Securities Act of
1933, as amended (the "Securities Act"), or qualified under
the securities or "Blue Sky" laws of any jurisdiction.
Except as set forth in the Warrant, Selfcare is not nor
will it be under any obligation to register the Shares
under the securities Act or the "Blue Sky" laws of any
jurisdiction, and such Shares will constitute "restricted
securities" within the meaning of Rule 144 promulgated
under the Securities Act. As such the Shares must be held
indefinitely unless they are subsequently registered under
the Securities Act or unless an exemption from the
registration requirements thereof is available. The
limited registration rights with respect to the Warrant
Shares set forth in the Warrant shall survive the Closing.
(b) Each of the Partners represents that such Partner is
acquiring such Shares for such Partner's own accounts for
investment and not for, with a view to or in connection
with any resale or distribution thereof, other than to
another Partner.
(c) Each of the Partners represents that such Partner will
not sell or otherwise dispose of any Shares without
registration under the Securities Act and qualification
under the "Blue Sky" laws of the appropriate jurisdiction,
unless an exemption from registration and qualification
thereunder is available
(d) Each of the Partners further acknowledges (x) that
such Partner is aware (i) of the restrictions on resale of
such Shares under the Securities Act and the General Rules
and Regulations thereunder (including, without limitation,
Rule 144 thereunder) and (ii) that any routine sales of the
Shares made in reliance upon such Rule 144 can only be made
after complying with the one-year holding period described
in such Rule and then only in limited amounts (unless the
two-year holding period under Rule 144(k) shall have been
satisfied) in accordance with the terms and conditions of
such Rule and (y) that, in order to make sales of the
Shares under such Rule 144, it is necessary that there be
available adequate current public information about
Selfcare at the time of any such sale.
(e) Each of the Partners further represents that (i) such
Partner is an "accredited investor" within the meaning of
Rule 501 (or any successor thereto) promulgated under the
Securities Act and (ii) by reason of the business and
financial experience of such Partner, and the business and
financial experience of those persons retained by such
Partner to advise such Partner with respect to such
Partner's investment in the Shares to be received by such
Partner pursuant to this Agreement, each of the Partners,
together with such advisors, has such knowledge,
sophistication and experience in business and financial
matters as to be capable of evaluating the merits and risks
of the prospective investment, and is able to bear the
economic risk of such investment and is able to afford a
complete loss of such investment. Each of the Partners
acknowledges that such Partner has been granted the
opportunity to ask questions of, and receive answers from,
representatives of Selfcare concerning Selfcare and the
Shares and to obtain any additional information which such
Partner deems necessary to verify the accuracy of the
answers received from such representatives.
(f) Each certificate for the Shares to be delivered
pursuant to this Agreement will be imprinted with a
legend in substantially the following form:
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR THE
SECURITIES LAWS OF ANY STATE. SUCH SHARES MAY NOT BE
TRANSFERRED BY SALE, ASSIGNMENT, PLEDGE OR OTHERWISE
UNLESS (1) A REGISTRATION STATEMENT FOR THE SHARES
UNDER THE ACT IS IN EFFECT OR (2) THE CORPORATION HAS
RECEIVED AN OPINION OF COUNSEL, WHICH OPINION IS
REASONABLY SATISFACTORY TO THE CORPORATION, TO THE
EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED UNDER
THE ACT.
(g) In connection with the transfer prior to the
expiration of the two-year holding period set forth in
Rule 144(k) of any Shares, other than to a Partner, the
Partner wishing to make such transfer shall deliver written
notice to Selfcare describing in reasonable detail the
transfer or proposed transfer, together with an opinion, in
form and substance reasonably satisfactory to Selfcare and
its counsel, of counsel which (to Selfcare's reasonable
satisfaction) is knowledgeable in securities law matters,
to the effect that such transfer of Shares may be effected
without registration of such shares under the Securities
Act and under any applicable state securities laws.
12 REPRESENTATIONS AND WARRANTIES OF SELFCARE
Selfcare hereby represents and warrants the following,
acknowledges that such representations, warranties,
covenants and agreements shall survive the Closing:
12.1 Selfcare is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Delaware,
with full power and authority, corporate and otherwise, to own
its properties and to conduct its business as heretofore and
presently being conducted in the manner and in the places where
such properties are owned or such business has heretofore been
and presently is conducted by it, and has the power to execute
and perform this Agreement.
12.2 Selfcare has, and will continue to have through the Closing
Date, by appropriate vote of its Board of Directors, full power
to execute, deliver and perform this Agreement, including,
without limitation, full power to issue the Shares.
12.3 The execution of this Agreement, constitutes the valid,
binding, and enforceable agreement of Selfcare.
12.4 The execution, delivery and performance of this Agreement,
and the consummation of the transactions contemplated hereby, do
not and will not result in any breach or default under, conflict
with, or contravention of any provision of any mortgage, option,
lease, agreement, document, instrument or indenture to which
Selfcare is a party or by which Selfcare is bound.
12.5 Selfcare hereby agrees and covenants to promptly take all
actions necessary and incidental to the successful consummation
of this Agreement, including the execution of all necessary
documents. Selfcare further agrees and covenants not to enter
into any agreement, make any commitment, take any action or fail
to take any action that would contravene any material provision
of this Agreement.
13 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE PARTNERSHIP
AND THE PARTNERS
The obligations of the Partnership and each of the Partners
to close this transaction shall be subject to the following
conditions precedent:
13.1 All documents required to be delivered by Selfcare hereunder
shall have been delivered to the Partnership and the Partners and
shall be satisfactory to the Partnership and each of the
Partners.
13.2 The representations and warranties of Selfcare shall be true
and accurate as if made on the Closing Date and the Partnership
and the Partners shall not have discovered any material
misstatement or omission in the representations and warranties of
Selfcare.
13.3 No action or proceeding shall be pending or threatened
before any court or governmental body seeking to restrain or
prohibit or obtain damages in respect of this Agreement or the
consummation of the transaction contemplated hereby.
13.4 As of the Closing Date, the Partnership and each of the
Partners shall have received from Selfcare a certificate of the
Clerk of the Selfcare attesting to the adoption of votes by its
Board of Directors and if necessary, its stockholders,
authorizing the execution, delivery and consummation of this
Agreement.
14 CONDITIONS PRECEDENT TO SELFCARE'S OBLIGATIONS
The obligations of the Selfcare under this Agreement shall
be subject to the following conditions precedent:
14.1 All documents and papers required to be delivered by the
Partnership and each of the Partners hereunder shall have been
delivered to Selfcare and shall be satisfactory to Selfcare.
14.2 No action or proceeding shall be pending or threatened
before any court or governmental body seeking to restrain or
prohibit or obtain damages in respect of this Agreement or the
consummation of the transaction contemplated hereby.
14.3 The representations and warranties of the Partnership and
each of the Partners shall be true and correct as if made on the
Closing Date and Selfcare shall not have discovered any material
misstatement or omission in the stipulations, representations and
warranties of the Partnership and each of the Partners.
14.4 As of Closing Date, Selfcare shall have received from the
Partnership a certificate of the General Partner attesting to the
adoption of votes by its Board of Directors and, if necessary,
its stockholders, authorizing the execution, delivery and
consummation of this Agreement on behalf of the Partnership.
14.5 As of Closing Date, Selfcare shall have received from each
Limited Partner that is a corporation a certificate attesting to
the adoption of votes by its Board of Directors and, if
necessary, its stockholders, authorizing the execution, delivery
and consummation of this Agreement on behalf of such Limited
Partner.
15 CLAIMS AND INDEMNIFICATION
15.1 Selfcare hereby covenants and agrees to indemnify and hold
harmless the Partners and their heirs, successors and assigns
against any and all claims, losses, expenses (including
reasonable attorneys' fees), obligations, damages, costs and
liabilities suffered or incurred by the same which arise out of,
result from or are related to any breach or failure of the
Selfcare to perform or comply with any of its warranties,
representations, commitments or obligations hereunder.
15.2 Each Partner hereby covenants and agrees to indemnify and
hold harmless Selfcare and its heirs, successors and assigns
against any and all claims, losses, expenses (including
reasonable attorneys' fees), obligations, damages, costs and
liabilities suffered or incurred by the same which arise out of,
result from or are related to any breach or failure of the
Partnership or any Partner to perform or comply with any of their
warranties, representations, commitments or obligations
hereunder, but, with respect to each of the Limited Partners, in
no event for an amount more than that Limited Partner's
proportionate share of the Cash (as defined in Section 3.1) plus
the value of the Purchase Shares received by (or for the benefit
of) that Limited Partner less that Limited Partner's
proportionate share of any Early Premium or Late Premium
delivered to Selfcare pursuant to Section 9.
15.3 Each Partner further covenants and agrees to indemnify and
hold harmless Selfcare and its heirs, successors and assigns
against any and all liabilities of the Partnership of any nature,
including without limitations the Partnership Liabilities, and
any and all liabilities of the Partners that arose in connection
with the conduct and activities of the Partnership prior to the
Closing Date, and any and all costs, liabilities, claims, losses
or damages arising from any failure of the Partnership or the
Partners to discharge or pay any such liability or obligation of
the Partnership or the Partners, but, with respect to each of the
Limited Partners, in no event for an amount more than that
Limited Partner's proportionate share of the Cash (as defined in
Section 3.1) plus the value of the Purchase Shares received by
(or for the benefit of) that Limited Partner less that Limited
Partner's proportionate share of any Early Premium or Late
Premium delivered to Selfcare pursuant to Section 9.
15.4 The Parties and the Trust shall be notified promptly in
writing of any claims which may arise hereunder after the Closing
Date.
15.5 Any claims by Selfcare which may arise hereunder shall be
made first against the Purchase Shares transferred by Selfcare
and held by the Trust pursuant to this Agreement. If any such
claim has been made while the Trust is holding the Purchase
Shares, the Trust shall retain until such claim is resolved,
notwithstanding any other provisions in this Agreement, that
number of Purchase Shares or cash or other liquid assets having a
value equal to the amount of such claim, based on the average of
the Selfcare closing price for the five (5) trading days
immediately preceding the date of the relevant Claim Notice.
16 CONFIDENTIAL INFORMATION
The Partnership and the Partners shall maintain the
confidential and proprietary status of any Confidential
Information with regard to the Partnership Assets and keep
such Confidential Information within its possession or
under its control sufficient to prevent any activity with
respect to the Confidential Information that is not
specifically authorized by this Agreement; PROVIDED,
HOWEVER, that such restrictions shall not apply to any
Confidential Information which is (a) independently
developed by the receiving party outside the scope of this
Agreement, (b) in the public domain at the time receipt or
thereafter becomes part of the public domain through no
fault of the receiving party, (c) received without an
obligation of confidentiality from a third party having the
right to disclose such information, (d) released from the
restrictions of this Section by the express written consent
of Selfcare, or (e) required by law, statute, rule or court
order to be disclosed. The obligations set forth in this
Section shall survive for a period of five (5) years from
the termination or expiration of this Agreement. For
purposes of this Section, the Technology is deemed to be
Confidential Information.
17 MISCELLANEOUS
17.1 This Agreement shall be binding upon and inure to the
benefit of the Parties hereto, and their successors and assigns
provided, however, that this Agreement shall not be assignable or
transferable by any of the Parties hereto. This Agreement may be
amended only by the written agreement of all the Parties hereto.
This Agreement and any additional agreement between the Parties
delivered or concurrent herewith, or pursuant hereto, constitute
the entire agreement of the Parties with respect to the subject
matter hereof and thereof and supersede any and all written or
oral communications of the Parties.
17.2 Any notice or communication given pursuant hereto by one of
the Parties hereto to another Party hereto shall be in writing
and hand delivered or mailed by registered or certified mail,
postage prepaid (notices shall be deemed received three calendar
days after they have been so mailed), as follows:
If to the Partnership, as follows:
USB `93 Technology Associates Limited Partnership
00 Xxx Xxxxxxx Xxxx
Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
ATTN: USB `93 Technology, Inc.
with a copy to:
Van Xxxx & Xxxxxx
Xxx Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
ATTN: Xxxxxxx X. Xxx Xxxx, Esq.
If to any Limited Partner, to the address set forth
next to such Limited Partner's name on Schedule A
hereto.
If to Selfcare, as follows:
Selfcare, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
ATTN: PRESIDENT
with a copy to:
Xxxxx, Xxxx & Xxxxx
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
ATTN: Xxxx X. Xxxxxxxxx, Xx., Esq.
Any Party to this Agreement may change the address or
addressee to which notices are to be hand delivered or
mailed by giving notice thereof in accordance with the
provisions of this Section.
17.3 The Partnership and each of the Partners represent to
Selfcare, and Selfcare represents and warrants to the Partnership
and each of the Partners that each has done nothing to create any
liability for the payment of any commission or compensation in
the nature of a finder's fee or other similar payment to any
broker or other person on account of the transactions
contemplated by this Agreement, except as set forth in this
Section 17.3. Accordingly, the Partnership and each of the
Partners hereby indemnify Selfcare and agree to hold Selfcare
harmless and Selfcare hereby indemnifies the Partnership and each
of the Partners and agrees to hold the Partnership and each of
the Partners harmless of and from any such liabilities,
(including reasonable attorneys' fees, costs and expenses)
concerning which (i) the Partnership or any of the Partners or
(2) Selfcare, respectively, is held responsible, but only if such
liability arises from activity of the other party which is the
basis in part or whole for such liability. Selfcare has agreed
to pay to U.S. Boston Capital Corporation a solicitation fee of
$98,516 in connection with the transactions envisioned by this
Agreement.
17.4 All representations, warranties and agreements made herein
by the Parties shall survive the Closing and any investigations
made by or on behalf of the Parties.
17.5 No waiver of any breach hereunder shall be valid unless in
writing. No such waiver shall constitute a waiver of any other
breach, whether or not similar.
17.6 If any provision of this Agreement or portion thereof as
applied to any Party or circumstance shall be adjudged by a court
to be invalid or unenforceable, the same shall in no way affect
any other provision of this Agreement, the application of such
provision in any other circumstances, or the validity or
enforceability of this Agreement.
17.7 This Agreement shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts.
17.8 If at any time any Party shall consider or be advised that
any further assignments, conveyances, assurances or instruments
are necessary or desirable to carry out the provisions hereof and
the transactions contemplated hereby, the Parties and the proper
officers and directors of the parties shall execute and deliver
any and all proper deeds, assignments, assurances and instruments
and do all things necessary or proper to carry out fully the
provisions hereof.
17.9 The Schedules which are attached hereto are made a part
hereof as fully and effectually as if the terms contained therein
were set forth hereinabove.
[INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Parties have caused this Agreement
to be executed by their duly authorized representatives as an
instrument under seal as of the date first above written. This
Agreement may be executed in counterpart.
THE PARTNERSHIP:
US `93 TECHNOLOGY ASSOCIATES
LIMITED PARTNERSHIP
By: US `93 Technology, Inc.
By:__________________________
Its:
THE GENERAL PARTNER:
US `93 TECHNOLOGY, INC.
By:__________________________
Its:
THE LIMITED PARTNERS:
___________________________
Xxxxxxxx X. Xxxxxx
___________________________
Xxxxxxx X. Xxxxxx
___________________________
Xxxxxx X. Xxxxxx
___________________________
Xxxxxxx X. Xxxx
___________________________
Xxxxxx X. Xxxxx
___________________________
Xxxxxx X. Xxxxxxxx
___________________________
Xxxxxxxxx X. Xxxxxxxx
___________________________
Xxxxxxx X. Xxxxx
___________________________
Xxxxx X. Xxxxxxxx
___________________________
Xxxxx X. Xxxxxxxx
___________________________
Xxxxxx Xxxxxxx
___________________________
X. Xxxxxxx Xxxxxxxx
___________________________
Xxxxx X. Xxxxxxx
___________________________
T. Xxxxxxxx Xxxxx
___________________________
Xxxxxxx X. Xxxxxxx
___________________________
Xxxxxx X. Xxxxx
___________________________
Xxxx X. Hero
___________________________
Xxxxxxx X. Xxxxxxxxxx
___________________________
Xxxxxx X. Xxxxx
___________________________
Xxxxxx Xxxxxx
___________________________
Xxxxxxx X. Xxxxxxx
___________________________
Xxx X. Xxxx
___________________________
Xxxxx X. Xxxx
___________________________
Xxxxxx X. Xxxx
___________________________
Xxxx X. Xxxx
___________________________
Xxxxxx X. Xxxx
___________________________
Xxxxxx Xxxx
___________________________
Xxxxxxx Xxxxxx Xxxx Trust
By: Xxxxxx Xxxx, Trustee
___________________________
Joy Xxxxxxxxx Xxxx Trust
By: Xxxxxx Xxxx, Trustee
___________________________
Xxxxxxx Xxxxxxxxxxxx
___________________________
Xxx Xxxx Xxxxx
___________________________
Xxxxxx X. XxXxxx
___________________________
Xxxx X. Xxxxxx
___________________________
Xxxx Xxxx
___________________________
Xxxx X. Xxxxxxxxx
___________________________
Xxxxxx X. Xxxxxxxxx
___________________________
Xxxxxxx Xxxxxxx
___________________________
Xxxxxx Xxxxxxx
___________________________
Xxxx X. Xxxxx
___________________________
Xxxxxxxxx Xxxxxxxxxxx
___________________________
Xxxxxxx X. Xxxxxxx
___________________________
Xxxx X. Xxxxxxx
___________________________
Xxxxxxxx Xxxxxx
SELFCARE:
SELFCARE, INC.
By:___________________________
Its:
