EXHIBIT 10.36
DEBENTURE CONVERSION AND PURCHASE AND WARRANT CANCELLATION AGREEMENT
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THIS DEBENTURE CONVERSION AND PURCHASE AND WARRANT CANCELLATION
AGREEMENT ("Agreement") is made as of the 17th day of August, 2007 by and among
INTRAOP MEDICAL CORPORATION, a Nevada corporation (the "Company"), the persons
listed on Exhibit A attached hereto (each a "Holder" and collectively the
"Holders") and the persons listed on Exhibit B attached hereto (each an
"Investor" and collectively the "Investors").
Recitals
A. The Holders hold 7% convertible debentures in an aggregate principal
amount of $6,400,000.
B. The Holders desire to convert such debentures into an aggregate of
20,178,571 shares of the Company's Common Stock.
C. The Investors wish to purchase from the Holders, and the Holders
wish to sell to the Investors, an aggregate of 10,178,571 shares of the
Company's Common Stock issued upon conversion of such debentures immediately
following the First Closing (as defined below) for an aggregate purchase price
of $1,280,000.
D. In addition, the Company shall issue to the Holders warrants to
purchase an aggregate of 21,656,663 shares of the Company's Common Stock in
consideration for the cancellation of warrants to purchase the Company's Common
Stock currently held by them.
E. This Agreement shall be binding upon the Company, the Holders and
the Investors only upon delivery of the signatures pages hereto by the Company,
the Holders and the Investors.
Agreement
In consideration of the mutual promises made herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Definitions. In addition to those terms defined above and elsewhere
in this Agreement, for the purposes of this Agreement, the following terms shall
have the meanings set forth below:
"Company Warrants" mean the warrants to purchase the Company's
Common Stock listed on Exhibit C attached hereto.
"First Closing" shall have the meaning set forth in the
Purchase Agreement.
"Debentures" means the 7% convertible debentures dated August
31, 2005, October 25, 2005, October 31, 2005 and November 4, 2005 listed on
Exhibit A attached hereto in the aggregate outstanding principal amount of
$6,400,000.
"Debenture Warrants" means warrants to purchase an aggregate
of 21,130,689 shares of the Company's Common Stock in substantially the form
attached hereto as Exhibit D.
"Debenture Shares" means an aggregate of 20,178,571 shares of
the Company's Common Stock issuable upon conversion of the Debentures.
"Debenture Warrant Shares" means the shares of the Company's
Common Stock issuable upon exercise of the Debenture Warrants.
"Purchase Agreement" means the Common Stock and Warrant
Purchase Agreement dated as of August 17, 2007 by and among the Company and the
other persons set forth on the schedule of purchasers attached thereto.
"Second Closing" shall have the meaning set forth in the
Purchase Agreement.
"Securities" means the Debenture Shares, the Debenture
Warrants and the Debenture Warrant Shares.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Securities Purchase Agreement" means the Securities Purchase
Agreement dated as of August 31, 2005 by and among the Company and the Holders
named therein and the Securities Purchase Agreement dated as of October 25, 2005
by and among the Company and the Holders named therein, as applicable.
2. Conversion of Debentures; Purchase of Debenture Shares; Cancellation
of Company Warrants and Issuance of Debenture Warrants.
2.1 Conversion of Debentures. Upon the terms and subject to
the conditions set forth in this Agreement, immediately following the First
Closing, each Holder hereby agrees to convert the Debenture held by such Holder
in accordance with the terms thereof and the Company agrees to deliver to such
Holder the number of Debenture Shares required to be delivered to such Holder
pursuant to the terms of such Debenture and as specified in the Conversion
Notice(s) delivered to the Company, which number, for convenience purposes, is
also set forth across from such Holder's name on Exhibit A attached hereto. Upon
such conversion, the portion of the Debentures so converted shall cease to
represent indebtedness of the Company as stated therein, the sole right of the
Holder thereof with respect thereto shall be to receive the Debenture Shares to
which such Holder has become entitled pursuant to the terms thereof and the
Holder shall have no other rights thereunder with respect thereto (including,
without limitation, the right to receive accrued and unpaid interest thereunder
with respect thereto). To the extent that a Holder is unable to convert all of
its Debenture by virtue of application of the "blocker" provision set forth
therein, such Holder shall convert the remaining portion of its Debenture on the
first business day on which such conversion may be effected in full in
compliance with the terms of such "blocker" provision. Upon such conversion, the
portion of such Debenture so converted shall cease to represent indebtedness of
the Company as stated therein, the sole right of such Holder thereof with
respect thereto shall be to receive the Debenture Shares to which such Holder
has become entitled pursuant to the terms thereof and such Holder shall have no
other rights thereunder with respect thereto (including, without limitation, the
right to receive accrued and unpaid interest thereunder with respect thereto).
The Company agrees that the initial conversion of the Debenture held by Magnetar
Capital Master Fund Ltd shall not occur until 83,737,299 shares of Common Stock
of the Company are issued and outstanding.
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2.2 Purchase of Debenture Shares. Simultaneously with the
conversion contemplated by Section 2.1 above, the Investors shall purchase,
severally and not jointly, for an aggregate purchase price of $1,280,000 in the
respective amounts set forth on Exhibit B attached hereto from the Holders ten
million one hundred seventy eight thousand five hundred seventy one (10,178,571)
Debenture Shares in the respective number of shares and amounts set forth on
Exhibit A attached hereto. The closing for the sale and purchase of the
Debenture Shares shall occur simultaneously with the conversion contemplated by
Section 2.1 above. At the closing, the Holders shall deliver certificates for
the Debenture Shares, duly endorsed for transfer, in consideration for payment
in immediately available funds by the Investors, and the Investors shall deliver
such funds to the Holders against such delivery of the Debenture Shares.
2.3 Cancellation of Company Warrants and Issuance of Debenture
Warrants. At the closing, each of the Holders shall deliver to the Company the
Company Warrants held by such Holder in exchange for a Debenture Warrant to
purchase that number of Debenture Warrant Shares equal to the number of shares
of Common Stock issuable upon exercise of such Company Warrant multiplied by
2.261431. At the closing, the Company shall deliver such Debenture Warrants to
such Holder against such Holder's delivery of the Company Warrants.
2.4 Exercise of Debenture Warrants. Subject to the terms of
the Debenture Warrants, no later than ten (10) days after the Second Closing,
each Holder of a Debenture Warrant shall exercise such warrant in full.
2.5 Release of Liabilities. Except with respect to the
obligations set forth in this Agreement, upon the closing each Holder shall, for
itself and its legal successors and assigns release and forever discharge the
Company and its stockholders, partners, directors, officers, employees, agents,
attorneys, legal successors and assigns of and from any and all claims, demands,
damages, debts, liabilities, accounts, reckonings, obligations, costs, expenses,
liens, actions and causes of action of every kind and nature whether now known
or unknown, suspected or unsuspected which it either now has, owns or holds or
at any time before ever owned or held or could, shall or may in the future have,
own or hold against the Company or such stockholders, partners, directors,
officers, employees, agents, attorneys, legal successors and assigns based upon
or arising out of any matter, cause, fact, thing, act, or omission related to
the Debentures occurring or existing at any time up to and including the
effective date of this Agreement (collectively the "Released Matters"), provided
that Released Matters expressly exclude all matters arising out of or related to
gross negligence, willful misconduct, fraud or material violations of securities
laws. It is the intention of each Holder in executing this Agreement and in
receiving a Debenture Warrant that this Agreement shall be effective as a full
and final accord and satisfaction and general release of and from all Released
Matters. In furtherance of the intentions set forth in this Agreement, each
Holder acknowledges that it is familiar with California Civil Code Section 1542
which provides as follows:
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GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER
MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR.
Each Holder waives and relinquishes any rights or benefits which it has
or may have under Section 1542 or any similar provision of the law of any other
jurisdiction to the full extent that it may lawfully waive its rights and
benefits pertaining to the Released Matters. Nothing contained in this Section
2.5 shall release the Company from any obligations under any portion of a
Debenture that has not been converted in full by a Holder at the closing by
virtue of application of the blocker provision contained therein, and the
release contained here shall be effective with respect thereto on the date on
which such Debenture is so converted in full as contemplated by Section 2.1
above.
3. Waiver of Default under the Debentures. Each Holder hereby waives
any Event of Default arising under Section 8(a)(viii) of such Holder's Debenture
to the extent the transactions contemplated by the Purchase Agreement are deemed
to be a "Change of Control Transaction" as defined in the applicable Securities
Purchase Agreement. This waiver shall not be deemed to be a continuing waiver in
the future or a waiver of any other provision, condition or requirement of the
Debentures
4. Waiver of Participation Right. Each of the Holders hereby waive the
provisions of Section 4.13 (Participation in Future Financing) of the Securities
Purchase Agreement dated as of August 31, 2005 and Section 4.14 (Participation
in Future Financing) of the Securities Purchase Agreement dated as of October
25, 2005 (as applicable) with respect to the transactions contemplated by the
Purchase Agreement. This waiver shall not be deemed to be a continuing waiver in
the future or a waiver of any other provision, condition or requirement of the
applicable Securities Purchase Agreement.
5. Representations and Warranties of the Company. The Company hereby
represents and warrants to the Holders and the Investors that:
5.1 Organization and Good Standing. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Nevada and has all requisite corporate power and authority to
carry on its business as now conducted and to own its properties.
5.2 Authorization. The Company has full corporate power and
authority and has taken all requisite action on the part of the Company, its
officers, directors and stockholders necessary for (i) the authorization,
execution and delivery of this Agreement, (ii) the authorization of the
performance of all obligations of the Company hereunder and (iii) the
authorization, issuance, and delivery of the Securities, subject in the case of
the Debenture Warrant Shares to stockholder approval and filing of an amendment
to the Company's Amended and Restated Articles of Incorporation authorizing an
increase in the number of shares of Common Stock issuable by the Company to
500,000,000 (as adjusted for stock splits, combinations or other similar
transactions). This Agreement constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights generally.
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5.3 Valid Issuance. The Securities have been duly and validly
authorized. The Debenture Shares, when issued pursuant to the terms of the
Debentures, will be validly issued, fully paid and nonassessable, and will be
free of encumbrances and restrictions (other than those created by the Holders),
except for restrictions on transfer imposed by applicable securities laws. The
Debenture Warrant Shares have been reserved for issuance, subject to stockholder
approval and filing of an amendment to the Company's Amended and Restated
Articles of Incorporation authorizing an increase in the number of shares of
Common Stock issuable by the Company to 500,000,000 (as adjusted for stock
splits, combinations or other similar transactions), and, upon issuance pursuant
to the Debenture Warrants, will be duly and validly issued and fully paid and
nonassessable.
5.4 Consents. The execution, delivery and performance by the
Company of this Agreement and the offer, issuance and sale of the Securities
requires no consent of, action by or in respect of, or filing with, any person,
governmental body, agency, or official other than filings that have been made
pursuant to applicable state securities laws and post-sale filings pursuant to
applicable state and federal securities laws which the Company undertakes to
file within the applicable time periods.
5.5 Private Placement. Subject to the accuracy of each
Holder's representations in Section 6 hereof, the offer, exchange and issuance
of the Securities to the Holders as contemplated hereby is exempt from the
registration requirements of the Securities Act.
5.6 Resale Registration. The resale of the Debenture Shares by
the Holders is as of the date hereof, and shall be as of the closing, covered by
an effective Registration Statement on Form SB-2 filed with the Securities and
Exchange Commission.
6. Representations and Warranties of the Holders and the Investors.
Each of the Holders and the Investors hereby, severally and not jointly,
represents and warrants to the Company (as applicable) that:
6.1 Organization and Existence. Such Holder is a validly
existing corporation, limited partnership or limited liability company and has
all requisite corporate, partnership or limited liability company power and
authority to perform its obligations hereunder. Such Investor is a validly
existing corporation, limited partnership or limited liability company and has
all requisite corporate, partnership or limited liability company power and
authority to perform its obligations hereunder and to invest in the Debenture
Shares pursuant to this Agreement.
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6.2 Authorization. The execution, delivery and performance by
such Holder or Investor (as the case may be) of this Agreement have been duly
authorized, and this Agreement constitutes the valid and legally binding
obligations of such Holder or Investor (as the case may be), enforceable against
such Holder or Investor (as the case may be) in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability, relating to or affecting
creditors' rights generally.
6.3 Purchase Entirely for Own Account. The Debenture Warrants
and the Debenture Warrant Shares to be received by such Holder hereunder will be
acquired for such Holder's own account, not as nominee or agent, and not with a
view to the resale or distribution of any part thereof in violation of the
Securities Act, and such Holder has no present intention of selling, granting
any participation in, or otherwise distributing the same in violation of the
Securities Act.
6.4 Investment Experience. Such Holder or Investor (as the
case may be) acknowledges that it can bear the economic risk and complete loss
of its acquisition of the Securities and has such knowledge and experience in
financial or business matters that it is capable of evaluating the merits and
risks of the acquisition of the Securities contemplated hereby. Such Investor
has conducted its own due diligence with respect to the Company and its purchase
of the Debentures Shares, each to such Investor's satisfaction.
6.5 Disclosure of Information. Such Holder or Investor (as the
case may be) has had an opportunity to receive all information related to the
Company requested by it and to ask questions of and receive answers from the
Company regarding the Company, its business and the terms and conditions of the
Securities.
6.6 Restricted Securities. Such Holder understands that the
Debenture Warrants and the Debenture Warrant Shares (if at the time of issuance
are not covered by an effective registration statement or are not then eligible
for sale pursuant to Rule 144(k) under the Securities Act) are characterized as
"restricted securities" under the U.S. federal securities laws inasmuch as they
are being acquired from the Company in a transaction not involving a public
offering and that under such laws and applicable regulations such securities may
be resold without registration under the Securities Act only in certain limited
circumstances.
6.7 Legends. Such Holder understands that, except as provided
below, certificates evidencing the Debenture Warrants and the Debenture Warrant
Shares may bear the following or any similar legend:
6.7.1 "THE SECURITIES REPRESENTED HEREBY HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAWS. THE SECURITIES REPRESENTED HEREBY MAY NOT
BE TRANSFERRED UNLESS (I) SUCH SECURITIES HAVE BEEN REGISTERED FOR SALE PURSUANT
TO THE SECURITIES ACT, (II) SUCH SECURITIES MAY BE SOLD PURSUANT TO RULE 144(K),
OR (III) THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY
TO IT THAT SUCH TRANSFER MAY LAWFULLY BE MADE WITHOUT REGISTRATION UNDER THE
SECURITIES ACT OR QUALIFICATION UNDER APPLICABLE STATE SECURITIES LAWS."
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6.7.2 If required by the authorities of any state
in connection with the issuance or sale of the Debenture Warrants or the
Debenture Warrant Shares, the legend required by such state authority.
6.8 Accredited Investor. Such Holder or Investor is an
"accredited investor" as defined in Rule 501(a) of Regulation D under the
Securities Act.
6.9 No General Solicitation. Such Holder or Investor did not
learn of the transaction contemplated hereby as a result of any public
advertising or general solicitation by the Company.
7. Representations and Warranties of the Holders. Each Holder
represents and warrants to the Investors that, as of the closing, it will have
good and valid title to the Debenture Shares to be purchased by the Investors at
the closing, free and clear of all liens, encumbrances, equities or claims
(other than restrictions on transfer imposed hereunder or under applicable
securities laws).
8. Miscellaneous.
8.1 Successors and Assigns. This Agreement may not be assigned
by a party hereto without the prior written consent of (i) the Company, (ii) the
Holders holding a majority of the Securities held by all Holders and (iii) the
Investors holding a majority of the Securities held by all Investors, as
applicable. The provisions of this Agreement shall inure to the benefit of and
be binding upon the respective permitted successors and assigns of the parties.
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
8.2 Counterparts; Faxes. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This Agreement may
also be executed via facsimile or PDF, which shall be deemed an original.
8.3 Titles and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
8.4 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given as hereinafter described (i) if given by personal delivery,
then such notice shall be deemed given upon such delivery, (ii) if given by
facsimile or electronic mail, then such notice shall be deemed given upon
receipt of confirmation of complete transmittal, (iii) if given by mail, then
such notice shall be deemed given upon the earlier of (A) receipt of such notice
by the recipient or (B) three (3) days after such notice is deposited in first
class mail, postage prepaid, and (iv) if given by an internationally recognized
overnight air courier, then such notice shall be deemed given one (1) Business
Day after delivery to such carrier. All notices shall be addressed to the party
to be notified at the address as follows, or at such other address as such party
may designate by ten (10) days' advance written notice to the other party:
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If to the Company:
Intraop Medical Corporation
000 Xxx Xxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx, Xxxxxxxx, Xxxxxx, Xxxxxx & Xxxx, LLC
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxx
Facsimile: (000) 000-0000
If to the Holders or to the Investors, to the
addresses on file with the Company.
8.5 Expenses. The parties hereto shall pay their own costs and
expenses in connection herewith.
8.6 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or prospectively)
only with the written consent of (i) the Company, (ii) the Holders holding a
majority of the Securities held by all Holders and (iii) the Investors holding a
majority of the Securities held by all Investors. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon each holder of
any Securities purchased under this Agreement at the time outstanding, each
future holder of all such Securities and the Company.
8.7 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof but shall be interpreted as if it
were written so as to be enforceable to the maximum extent permitted by
applicable law, and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereby
waive any provision of law which renders any provision hereof prohibited or
unenforceable in any respect.
8.8 Entire Agreement. This Agreement, including the exhibits,
constitute the entire agreement among the parties hereof with respect to the
subject matter hereof and thereof and supersede all prior agreements and
understandings, both oral and written, between the parties with respect to the
subject matter hereof and thereof.
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8.9 Further Assurances. The parties shall execute and deliver
all such further instruments and documents and take all such other actions as
may reasonably be required to carry out the transactions contemplated hereby and
to evidence the fulfillment of the agreements herein contained.
8.10 Governing Law; Consent to Jurisdiction; Waiver of Jury
Trial. This Agreement shall be governed by, and construed in accordance with,
the internal laws of the State of Delaware without regard to the choice of law
principles thereof. Each of the parties hereto irrevocably submits to the
exclusive jurisdiction of the courts of the State of California located in Santa
Xxxxx County and the United States District Court for the Northern District of
California for the purpose of any suit, action, proceeding or judgment relating
to or arising out of this Agreement and the transactions contemplated hereby.
Service of process in connection with any such suit, action or proceeding may be
served on each party hereto anywhere in the world by the same methods as are
specified for the giving of notices under this Agreement. Each of the parties
hereto irrevocably consents to the jurisdiction of any such court in any such
suit, action or proceeding and to the laying of venue in such court. Each party
hereto irrevocably waives any objection to the laying of venue of any such suit,
action or proceeding brought in such courts and irrevocably waives any claim
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO
REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND
REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.
8.11 Independent Nature of Each Holder's Obligations. The
obligations of each Holder under this Agreement are several and not joint with
the obligations of any other Holder or any other party hereto, and no Holder
shall be responsible in any way for the performance of the obligations of any
other Holder or any other party hereto under this Agreement. Nothing contained
herein, and no action taken by any Holder pursuant hereto, shall be deemed to
constitute the Holders as a partnership, an association, a joint venture or any
other kind of group or entity, or create a presumption that the Holders are in
any way acting in concert or as a group or entity with respect to such
obligations or any matters, and the Company acknowledges that the Holders are
not acting in concert or as a group with respect to such obligations or the
transactions contemplated by this Agreement. Each Holder shall be entitled to
independently protect and enforce its rights, including, without limitation, the
rights arising out of this Agreement, and it shall not be necessary for any
other Holder to be joined as an additional party in any proceeding for such
purpose. The use of a single agreement with respect to the obligations contained
herein was solely in the control of the Company, not the action or decision of
any Holder or any Investor, and was done solely for the convenience of the
Company and not because it was required or requested to do so by any Holder or
any Investor. It is expressly understood and agreed that each provision
contained in this Agreement (i) between the Company and a Holder is between the
Company and a Holder, solely, and not between the Company and the Holders
collectively and not between and among Holders and (ii) between an Investor and
a Holder is between such Investor and a Holder, solely, and not between the
Investors and the Holders collectively and not between and among Holders.
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(Signature page follows)
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IN WITNESS WHEREOF, the parties have executed this Debenture
Conversion and Purchase and Warrant Cancellation Agreement as of the date first
above written.
The Company: INTRAOP MEDICAL CORPORATION
By: /s/ Xxxxxx X. Goer
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Name: Xxxxxx X. Goer
Title: President and CEO
IN WITNESS WHEREOF, the parties have executed this Debenture Conversion
and Purchase and Warrant Cancellation Agreement.
Holders: Name of Holder: Bushido Capital Master Fund L.P.
Signature of Authorized Signer: /s/ Xxxxxx X. Xxxxx
---------------------------------
Print Name of Authorized Signer: Xxxxxx X. Xxxxx
---------------------------------
Print Title of Authorized Signer
(if applicable): Director
---------------------------------
Name of Holder: Gamma Opportunity Capital
Partners LP Class A
Signature of Authorized Signer: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------
Print Name of Authorized Signer: Xxxxxxxx X. Xxxxxx
---------------------------------
Print Title of Authorized Signer
(if applicable): As Agent
---------------------------------
Name of Holder: Gamma Opportunity Capital
Partners LP Class C
Signature of Authorized Signer: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------
Print Name of Authorized Signer: Xxxxxxxx X. Xxxxxx
---------------------------------
Print Title of Authorized Signer
(if applicable): As Agent
---------------------------------
Name of Holder: Crestview Capital Master, LLC
Signature of Authorized Signer: /s/ Xxxxxx Xxxx
---------------------------------
Print Name of Authorized Signer: Xxxxxx Xxxx
---------------------------------
Print Title of Authorized Signer
(if applicable): Manager
---------------------------------
Name of Holder: Dolphin Offshore Partners, L.P.
Signature of Authorized Signer: /s/ Xxxxx X. Xxxxx
---------------------------------
Print Name of Authorized Signer: Xxxxx Xxxxx
---------------------------------
Print Title of Authorized Signer
(if applicable): General Partner
---------------------------------
Name of Holder: Alpha Capital Anstaht
Signature of Authorized Signer: /s/ Xxxxxx Xxxxxxxx
---------------------------------
Print Name of Authorized Signer: Xxxxxx Xxxxxxxx
---------------------------------
Print Title of Authorized Signer
(if applicable): Director
---------------------------------
Name of Holder: Samir Financial, L.L.C..
Signature of Authorized Signer: /s/ Xxxxxxxx X. Xxxxx
---------------------------------
Print Name of Authorized Signer: Xxxxxxxx X. Xxxxx
---------------------------------
Print Title of Authorized Signer
(if applicable): Manager
---------------------------------
Name of Holder: Magnetar Capital Master Fund,
Ltd.
Signature of Authorized Signer: /s/ Xxxx Xxxxxxxx
---------------------------------
Print Name of Authorized Signer: Xxxx Xxxxxxxx
---------------------------------
Print Title of Authorized Signer
(if applicable): Counsel
---------------------------------
IN WITNESS WHEREOF, the parties have executed this Debenture Conversion
and Purchase and Warrant Cancellation Agreement.
Investors: LACUNA VENTURE FUND LLLP
By: Lacuna Ventures GP LLLP
Its General Partner
By: Lacuna, LLC
Its General Partner
By: /s/ XX Xxxxxxx
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XX Xxxxxxx, Managing Director
LACUNA HEDGE FUND LLLP
By: Lacuna Hedge GP LLLP
Its General Partner
By: Lacuna, LLC
Its General Partner
By: /s/ XX Xxxxxxx
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XX Xxxxxxx, Managing Director
[OTHER SIGNATURE PAGES TO FOLLOW]
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxxx Xxxxxxx
-----------------------------------------
Xxxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxxx Xxxxx
-----------------------------------------
Xxxxxx Xxxxxxx Xxxxx
/s/ Xxxxxx Xxxxx
-----------------------------------------
Xxxxxx Xxxxx
Xx. Xxxx and Xxx. Xxxxxx Xxxxxxxxx,
JTWROS
By: /s/ Xxxx Xxxxxxxxx
-------------------------------------
Xxxx Xxxxxxxxx
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------------
Xxxxxx Xxxxxxxxx
/s/ Xxxxxx XxXxxxxx
-----------------------------------------
Xxxxxx XxXxxxxx
PRECEPT CAPITAL MASTER FUND, G.P.
By: /s/ D. Xxxxx Xxxxx
-------------------------------------
Name: D. Xxxxx Xxxxx
-----------------------------------
Its: Managing Member
------------------------------------
ELLERPHUND VENTURES II, LP
By: /s/ Xxxx Ever
-------------------------------------
Name: Xxxx Ever
-----------------------------------
Its: Managing Member
------------------------------------
SANDOR CAPITAL MASTER FUND, L.P.
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
-----------------------------------
Its: Manager
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VMG HOLDINGS II, LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
-----------------------------------
Its: Principal
------------------------------------
THE XXX AND XXXXXX XXX XXXXX
2000 LIVING TRUST
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Xxxx Xxxxxxx, Trustee
E.U. CAPITAL VENTURE, INC.
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
-----------------------------------
Its: Managing Director
------------------------------------
EXHIBIT A
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Principal Debenture Cash Received
--------- --------- -------------
Amount of Shares Received Upon Sale of
--------- --------------- ------------
Outstanding Upon Debenture Debenture
----------- ---- --------- ---------
Holder Debenture Conversion Shares Sold Shares
------ --------- ---------- ----------- ------
Bushido Capital 850,000 3,035,714 1,707,589 $170,000
Master Fund L.P.
Gamma 425,000 1,517,857 853,795 85,000
Opportunity
Capital
Partners LP
Class A
Gamma 425,000 1,517,857 853,795 85,000
Opportunity
Capital
Partners LP
Class C
Samir 500,000 1,250,000 468,750 100,000
Financial,
L.L.C.
Crestview 1,000,000 3,571,429 2,008,928 200,000
Capital Master,
LLC
Dolphin 750,000 2,678,571 1,506,696 150,000
Offshore
Partners, L.P.
Alpha Capital 450,000 1,607,143 904,018 90,000
Anstaht
Magnetar 2,000,000 4,376,722(1) 1,875,000 400,000
Capital Master
Fund, Ltd.
--------------------------------------------------------------------------------
Total: 6,400,000 19,555,293 10,178,571 $1,280,000
----------------------------------
(1) In order to give proper effect to the "blocker" provision of the Debenture
and permit the greatest conversion possible in accordance with such "blocker"
provision, the conversions contemplated shall occur as follows: $961,298.40 will
be converted at closing in accordance with the terms of such Debenture as
contemplated by Section 2.1 for 2,403,246 Debenture Shares. Immediately
following the sale of the 1,875,000 Debenture Shares contemplated by this
Agreement, $789,390.40 will be converted in accordance with the terms of such
Debenture as contemplated by for 1,973,476 Debenture Shares. $249,311.20 of such
Debenture will remain outstanding after the conversions contemplated by this
footnote until such Debenture is converted in accordance with the terms thereof
as contemplated by the last sentence of Section 2.1.
EXHIBIT B
---------
Investors Purchasing Debenture Shares
-------------------------------------
Number of Debenture
-------------------
Name Shares Purchase Price
---- ------ --------------
Lacuna Venture Fund LLLP
c/o Lacuna LLC
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000 3,047,477 $383,233.53
Lacuna Hedge Fund LLLP
c/o Lacuna LLC
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000 2,407,506 $302,754.49
Ellerphund Ventures II, LP
c/o Ellerphund Capital LP
0000 Xxxxxxxx
Xxxxxx, XX 00000 1,066,617 134,131.74
Sandor Capital Master Fund, L.P.
c/o Sandor Advisors LLC
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000 761,869 95,808.38
Precept Capital Master Fund, G.P.
c/o Precept Capital Management
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000 761,869 95,808.38
VMG Holdings II, LLC
c/o VMG Health
Three Galleria Tower
00000 Xxxx Xxxx, Xxxxx 0000
Xxxxxx, XX 00000 853,293 107,305.39
Xxxxxx Xxxxxxx 304,748 38,323.35
The Xxx and Xxxxxx Xxx Xxxxx 2000 Living Trust
c/o Xxxx Xxxxxxx
0000 Xxxxx Xxx Xxx
Xxxxx Xxxxxx Xxxxxxx, XX 00000 228,561 28,742.51
Xxxxxx X Xxxxxxx 190,467 23,952.10
Xxxxxx Xxxxxxx Xxxxx
00000 Xxxxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000 152,374 19,161.68
Xxxxxx Xxxxx
c/o Naples Center for Dermatology
0000 Xxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000 152,374 19,161.68
Xx. Xxxx and Xxx. Xxxxxx Xxxxxxxxx, JTWROS
0000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000 38,093 4,790.42
E.U. Capital Venture, Inc.
[ADDRESS] 198,086 24,910.18
Xxxxxx XxXxxxxx
c/o Radiation Oncology Dept.
The Xxxxxxxx Hospital
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 15,237 1,916.17
TOTAL: 10,178,571 $1,280,000.00
EXHIBIT C
---------
Company Warrants
----------------
8% January 7% Convertible
---------- --------------
Debenture Debenture
--------- ---------
Investor Warrants Warrants
-------- -------- --------
Magnetar Capital Master Fund, Ltd. 0 2,500,000
Crestview Capital Master LLC 229,593 1,562,500
Bushido Capital Master Fund L.P. 186,673 1,250,000
Dolphin Offshore Partners, L.P. 137,754 937,500
Alpha Capital AG 91,836 625,000
Gamma Opportunity Capital Partners, Class A 91,836 625,000
Gamma Opportunity Capital Partners, Class C 91,836 625,000
Samir Financial, LLC 0 625,000
Totals 829,528 8,750,000
EXHIBIT D
---------
Form of Debenture Warrant
-------------------------
