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EXHIBIT 4.6
SERIES D PREFERRED STOCK PURCHASE AGREEMENT dated its of May 27 ,1998,
among GENOMIC SOLUTIONS INC., a Delaware corporation (the "Corporation"), and
each of the investors identified on SCHEDULE I (each, an "Investor", and,
collectively, the "Investors").
The Corporation desires to sell to the Investors and the Investors desire
to purchase from the Corporation an aggregate of up to 1, 100,000 shares of the
Corporation's Series D Convertible Preferred Stock, $.001 par value (the "Series
D Preferred Stock"), with the voting powers, designations, preferences,
limitations, and relative participating, optional or other rights set forth in
the Amended and Restated Certificate of Incorporation of the Corporation, as
amended (the "Certificate of Incorporation") attached as EXHIBIT A, on the
terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
ISSUANCE AND SALE OF THE PREFERRED SHARES
1.1 AUTHORIZATION OF ISSUANCE OF PREFERRED STOCK; RESERVATION OF COMMON STOCK.
(a) Subject to the terms and conditions hereof, the Corporation has
authorized the issuance of an aggregate of up to 1,100,000 shares of Series D
Preferred Stock (the "Securities") at a per share price of $6.00.
(b) The Corporation shall reserve 1,100,000 shares of Common Stock,
$.001 par value ("Common Stock"), for issuance upon conversion of the
Securities.
1.2 SALE OF SECURITIES.
Simultaneously with the execution and delivery of this Agreement, the
Corporation is issuing and selling that number of Securities to the Investors,
as set forth on SCHEDULE I attached hereto at a per share price of $6.00.
ARTICLE II
DELIVERY; ADDITIONAL CLOSINGS
2.1 DELIVERY.
Concurrent with execution and delivery of this Agreement by an Investor
hereunder, the Corporation is delivering to such Investor a certificate
representing the Securities registered in such Investor's name equal to the
number of Securities set forth opposite the name of Such Investor on Schedule I
attached hereto, against payment of the purchase price for such Securities by
(at the option of the Corporation) either cashier's check payable in immediately
available funds to the order of the Corporation or by a wire transfer of funds
to the order of the Corporation.
2.2 ADDITIONAL CLOSINGS.
The Corporation may sell up to the balance of the authorized shares of
Series D Preferred Stock not sold on the date hereof, as it shall elect, at a
price not less than $6.00 per share. Upon execution of a signature page
counterpart and without need for an amendment hereto except to
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add such investor's name to Schedule I attached hereto, any such investor shall
become a party to this Agreement, shall be deemed an "Investor" for purposes of
this Agreement and shall have the rights and obligations of an Investor
hereunder. At each additional closing hereunder, at the request of the Investor,
the Corporation shall deliver to the Investor acquiring Securities at such
closing an officer's certificate certifying to such Investor that there has been
no material adverse change in the business, operations or conditions of the
Corporation since the date hereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE CORPORATION
Except as otherwise expressly indicated in the Schedules attached hereto,
the Corporation hereby represents and warrants to the Investors as follows:
3.1 ORGANIZATION AND STANDING; CHARTER AND BYLAWS.
The Corporation is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, and the Corporation is
authorized to exercise all of its corporate powers, rights and privileges. The
Corporation has all required corporate power and authority to own its property
and to carry on its business as presently conducted or contemplated. True and
accurate copies of the Certificate of Incorporation and the Bylaws of the
Corporation, each as in effect on the date hereof, have been delivered to the
Investors.
3.2 CAPITALIZATION.
The authorized capital stock of the Corporation on the date hereof consists
of 40,000,000 shares of Common Stock, par value $.001 per share ("Common Stock")
and 10,000,000 shares of Preferred Stock, par value $.001 per share (the
"Preferred Stock"). On the date hereof, 2,840,448 shares of Common Stock will be
outstanding. Of the authorized Preferred Stock, 1,100,000 shares have been
designated Series D Preferred Stock, 4,070,339 shares have been designated
Series C Preferred Stock, 1,680,880 shares have been designated Series B
Preferred Stock and 50,000 have been designated Series M Preferred Stock. On the
date hereof, giving effect to the issuance of the Securities hereunder,
1,100,000 shares of Series D Preferred Stock are outstanding, 4,070,339 shares
of Series C Preferred Stock are outstanding, 1,680,880 shares of Series B
Preferred stock are outstanding and 50,000 shares of Series M Preferred Stock
are outstanding. The Securities have the rights, preferences and privileges set
forth in the Certificate of Incorporation. The Corporation has reserved
1,100,000 shares of Common Stock for issuance upon conversion of the Series D
Preferred Stock, 4,070,339 shares of Common Stock for issuance upon conversion
of the Series C Preferred Stock, 5,093,576 shares of Common Stock for issuance
upon conversion of the Series B Preferred Stock, and 270,027 shares of Common
Stock for issuance upon conversion of the Series M Preferred Stock. As a result
of the Corporation's merger with B.I. Systems Corporation, a Delaware
corporation ("BISC"), the Corporation assumed the 1994 Omnibus Equity Incentive
Plan of BISC (the "BISC Plan"). The BISC Plan was adopted by the Board of
Directors and shareholders of BISC in July 1994 and amended in April 1997. On
January 15, 1998, the Corporation's Board of Directors adopted the Genomic
Solutions Inc. Non-Employee Stock Option Plan (the "Non-Employee Plan") and the
1998 Genomic Solutions Inc. Stock Option Plan (the "Employee Plan"). On the date
of the Closing, options to acquire 907,100 shares of Common Stock are
outstanding pursuant to the BISC Plan, options to acquire 1,081,750 shares of
Common Stock are outstanding pursuant to the Employee Plan and options to
acquire 170,000 shares of Common Stock are outstanding Pursuant to the
Non-Employee Plan. The Corporation has reserved 2,158,850 shares of Common Stock
for issuance upon exercise of these options. Except as set forth and in Schedule
3.2 herein, there are no outstanding rights, options, warrants, preemptive
rights, conversion rights or agreements for the purchase, acquisition or receipt
from the Corporation of any shares of capital
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stock or any other securities of the Corporation. The Corporation is not a party
to any existing agreement with any person or entity which requires the
Corporation to purchase from such person or entity any of its capital stock, any
securities convertible into or exchangeable or exercisable for any of its
capital stock, or any right, options or warrants for its capital stock. All
outstanding securities of the Corporation, including the Securities, have been
issued in accordance with all applicable state and Federal securities laws.
3.3 CORPORATE POWER: AUTHORIZATION.
The Corporation has all requisite legal and corporate power to enter into
this Agreement, to issue and sell the Securities as provided hereunder, and to
carry out and perform its obligations under the terms of this Agreement. All
corporate action on the part of the Corporation and its officers, directors and
shareholders that is necessary for the authorization, execution and delivery of
this Agreement by the Corporation, for the performance of the Corporation's
obligations hereunder and for the issuance and delivery of the Securities has
been taken; and this Agreement constitutes a legal and binding obligation of the
Corporation, enforceable against the Corporation in accordance with its terms
subject to: (i) judicial principles respecting or limiting the availability of
specific performance, injunctive relief and other equitable remedies; and (ii)
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect generally relating to or affecting creditors' rights. The
Corporation is not in violation of any term of its Certificate of Incorporation
or Bylaws, or in violation of any term of any judgment, decree, order, statute,
rule or government regulation applicable to the Corporation or to which the
Corporation is a party. The Corporation is not in violation of any term of any
agreement or instrument applicable to the Corporation or to which the
Corporation is a party where such violation is likely to be materially adverse
to the Corporation's financial condition, business or operations.
3.4 VALIDITY OF SECURITIES.
The Securities, when issued, sold and delivered in accordance with the
terms of this Agreement, will be duly and validly issued, fully paid and
non-assessable and will be free and clear of any liens, encumbrances or
restrictions of any kind; provided, however, that the Securities may be subject
to restrictions on transfer under state and federal securities laws and the
Shareholders Agreement dated as of December 24, 1997 (the "Shareholders
Agreement"), among the Corporation and the Shareholders (as defined therein).
The Common Stock issuable upon conversion of the Securities has been duly and
validly reserved and, upon issuance in accordance with the terms of the
Certificate of Incorporation, will be duly and validly issued, fully paid and
non-assessable and will be free and clear of any liens, encumbrances or
restrictions of any kind; provided, however, that the Common Stock may be
Subject to restrictions on transfer under state and federal securities laws and
the Shareholders Agreement.
3.5 CONSENTS AND WAIVERS.
The Corporation has obtained any and all consents, permits and waivers and
made all filings necessary or appropriate for consummation of the transactions
contemplated by this Agreement.
3.6 LITIGATION.
There is no action, suit or proceeding pending or, to the knowledge of the
Corporation, threatened against the Corporation or related to the business
conducted by the Corporation. The Corporation is not a party or subject to the
provisions of any order, writ, injunction, judgment or decree of any court or
government agency or instrumentality. There is no action, suit, proceeding
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or investigation by the Corporation currently pending or which the Corporation
intends to initiate.
3.7 SHAREHOLDER LISTS AND AGREEMENTS.
Set forth on Schedule 3.7 is a true and complete list of all shareholders
of the Corporation and persons holding options or warrants to acquire shares of
the Corporation, showing the number of shares of capital stock held, or
acquirable upon exercise of the option or warrant, by each such person in each
case as of the date of this Agreement.
3.8 SUBSIDIARIES.
Except as set forth on Schedule 3.8, the Corporation hits no subsidiaries
and does not own, directly or indirectly, any interest in any corporation,
association or business entity.
3.9 FINANCIAL STATEMENTS.
(a) Schedule 3.9 attached hereto contains true, correct and
complete copies of:
(i) the balance sheet of the Corporation, as of December 31,
1997, and the related statements of operations, stockholders' equity
(deficit) and cash flows of the Corporation for the period covered thereby,
including the footnotes thereto (all of foregoing being hereinafter
collectively called the "Annual Financial Statements"); and
(ii) the interim balance sheet of the Company (the "Interim
Balance Sheet") as of March 31, 1998 (the "Interim Balance Sheet Date"),
and the interim statements of operations of the Corporation for the three
(3) month period then ended (all of the foregoing, including the Interim
Balance Sheet, being hereinafter collectively referred to as the "Interim
Financial Statements" and together with the Annual Financial Statements
collectively, the "Financial Statements").
(b) The Financial Statements taken as a whole (A) fairly present
in all material respects (subject, in the case of the Interim Financial
Statements, to normal, recurring year-end adjustments which are not material
individually or in the aggregate) the financial position of the Corporation as
of the dates indicated and the results of operations of the Corporation for the
periods indicated, (B) (x) have been prepared in accordance with Generally
Accepted Accounting Principles ("GAAP") consistently applied throughout the
periods covered thereby (subject, in the case of the Interim Financial
Statements, to normal, recurring year-end adjustments which are not material
individually or in the aggregate) or (y) to the extent not prepared in
accordance with GAAP, then footnotes to the Financial Statements will be
provided describing in reasonable detail the differences, if any, between the
generally accepted accounting principles pursuant to which such Financial
Statements were in fact prepared and GAAP and (C) are in accordance with the
books and records of the Corporation which have been maintained in a manner
consistent with historical practice. All reserves established and set forth in
the Interim Sheet are reasonable and adequate.
3.10 ABSENCE OF UNDISCLOSED LIABILITIES.
The Corporation has no liabilities or obligations of any nature, whether
matured or unmatured, known or unknown, or fixed or contingent, except (a) to
the extent expressly reflected or reserved against on the Interim Balance Sheet
or expressly disclosed in the notes thereto; and (b) liabilities and obligations
arising since the Interim Balance Sheet Date in the ordinary Course of business
consistent with past practice (other than any Such liability or
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obligation arising from breach of contract, breach of warranty, tort,
infringement, or violation of any legal requirement).
3.11 ABSENCE OF CERTAIN DEVELOPMENTS.
Except as reflected in the Financial Statements or in Schedule 3.11, since
the Interim Balance Sheet Date, there has been (i) no material adverse change in
the condition (financial or otherwise) of the Corporation or in the assets,
liabilities, or properties of the Corporation; (ii) no declaration, setting
aside or payment of any dividend or other distribution with respect to, or any
direct or indirect redemption or acquisition of, any of the capital stock of the
Corporation; (iii) no waiver of any valuable right of the Corporation or
cancellation of any debt or claim held by the Corporation; (iv) no loan by the
Corporation to any officer, director, employee or shareholder of the
Corporation, or any agreement or commitment therefor; (v) no increase, direct or
indirect, in the compensation paid or payable to any officer, director, employee
or agent of the Corporation; (vi) no material loss, destruction or damage to any
property of the Corporation, whether or not, insured; (vii) no labor disputes
involving the Corporation and no material change in the personnel of the
Corporation or the terms and conditions of their employment; and (viii) no
acquisition or disposition of any assets (or any contract or arrangement
therefor), nor any other transaction by the Corporation otherwise than for fair
value in the ordinary course of business.
3.12 TITLE TO ASSETS.
The Corporation has good and marketable title to all of the assets
reflected as being owned by the Corporation on the Interim Balance Sheet or
acquired subsequent thereto (except for inventory sold or otherwise disposed of
in the ordinary course of business for fair value and accounts and notes
receivable paid in full since the date of the Interim Balance Sheet), free and
clear of all encumbrances, except for those encumbrances set forth on Schedule
3.12 and Permitted Liens. Such assets are in good operating condition and repair
(normal wear and tear excepted), are adequate and suitable for the uses for
which they are used in the Corporation's business, are not subject to any
condition which interferes with the economic value or use thereof, and
constitute all assets necessary to permit the Corporation to carry on its
business after the consummation of the transactions contemplated by this
Agreement as generally conducted by the Corporation prior thereto. The term
"Permitted Liens" means (i) liens arising by operation of law in the ordinary
course of business that, individually and in the aggregate, do not in any
material respect interfere with the use of any of the assets subject thereto;
(ii) minor imperfections of title which do not materially detract from the value
of the property affected or materially impair the operations of either
Corporation; (iii) liens for taxes not yet due and payable; and (iv) landlords
liens, if any, relating to leases.
3.13 REAL PROPERTY.
The Corporation does not own directly or indirectly any real property.
3.14 TAX MATTERS.
The Corporation has filed all federal, state and local income, excise or
franchise tax returns, real estate and personal property tax returns, sales and
use tax returns and other tax returns required to be filed by it and has paid
all taxes owed by it, except taxes which have not yet accrued or otherwise
become due or for which adequate provision has been made in the pertinent
Financial Statements. The provision for taxes on the Interim Balance Sheet is
sufficient as of its date for the payment of all accrued and unpaid federal,
state, county and local taxes of any nature of the corporation whether or not
assessed or disputed. All taxes and other assessments and levies which the
Corporation is required to withhold or collect have been withheld and collected
and have been paid over when due to the proper governmental authorities.
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With regard to the income tax returns of the Corporation, the Corporation has
not received notice of any audit or of any proposed deficiencies from any taxing
authority and no controversy with respect to taxes of any type is pending or, to
the knowledge of the Corporation, threatened. There are in effect no waivers of
applicable statutes of limitations with respect to any taxes owed by the
Corporation for any year. The Corporation does not conduct any foreign or
international operations that would ordinarily Subject it to taxation in any
jurisdiction outside of the United States.
3.15 CONTRACTS AND COMMITMENTS.
Except as set forth in Schedule 3.15, the Corporation (i) is not a party to
any contract, obligation or commitment which involves a potential commitment in
excess of $100,000 or which is otherwise material and not entered into in the
ordinary course of business; and (ii) does not have any employment contracts;
stock redemption or purchase agreements; financing agreements; licenses;
distributor or sales representative agreements; agreements with officers,
directors, employees or shareholders of the Corporation or persons or
organizations related to or affiliated with any such persons; leases; agreements
relating to product development; or pension, profit-sharing, retirement or stock
option plans. Each agreement or understanding set forth on Schedule 3.15 is in
full force and effect and constitutes a valid and binding obligation of the
Corporation and to the best knowledge of the Corporation, the other party
thereto. The Corporation has in all material respects performed the obligations
required to be performed by it except for obligations not yet due to be
performed and the Corporation is and has not in default received notices that it
is in default in any material respect under any such agreement or understanding.
There exists no known event or condition which, after notice or lapse of time,
or both, would constitute such a default. There are no material defaults by any
other party to any such agreement or understanding as to which any notice of
default has been given. The Corporation has made available to the Investors
correct and complete copies of all documents Set forth on such Schedule.
3.16 PROPRIETARY RIGHTS; EMPLOYEE RESTRICTION.
The Corporation has disclosed on Schedule 3.16, all copyright
registrations, trademark registrations and applications for registration,
patents and patent applications, trademarks, trade secrets or other proprietary
rights (collectively, "Intellectual Property Rights") used or, to the best of
the Corporation's knowledge, to be used in the Corporation's business as
presently conducted or contemplated and all licenses, assignments and leases
relating to Intellectual Property Rights of others embodied in products of the
Corporation. The Corporation has exclusive ownership of or license to use, all
Intellectual Property Rights identified in Schedule 3.16 and, to the best
knowledge of the Corporation, it has obtained any licenses, releases or
assignments to use all third parties' Intellectual Property Rights embodied in
products of the Corporation. To the best knowledge of the Corporation, neither
the present nor contemplated business activities or products of the Corporation
infringe any Intellectual Property Rights of others. The Corporation has not
received any notice or other claim from any person asserting that any of the
Corporation's present or contemplated activities infringe or may infringe any
Intellectual Property Rights of such person. The Corporation has the right to
use, free and clear of claims or rights of others, all trade secrets, customer
lists, manufacturing processes, hardware designs, programming processes,
software and other information required for or incident to its products or its
business as presently conducted or contemplated. The Corporation has taken all
commercially reasonable steps to establish and preserve its ownership of all
copyright, trade secret and other proprietary rights with respect to its
products and technology, except such rights as the Corporation has reasonably
determined are not material to the Corporation's continuing business operations.
The Corporation is not aware of any infringement by others of its copyrights or
other Intellectual Property Rights to which it has exclusive use in any of its
products, technology or services, or any violation of the confidentiality of any
of its proprietary information. The Corporation is not
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making unlawful use of any confidential information or trade secrets of any past
or present employees of the Corporation. Except as set forth in Schedule 3.16,
neither the Corporation nor, to the Corporation's knowledge, any of the key
employees of the Corporation have any agreements or arrangements with former
employers of such employees relating to confidential information or trade
secrets of such employers. The activities of the Corporation's employees on
behalf of the Corporation do not violate any agreements or arrangements known to
the Corporation which any such employees have with former employers.
3.17 EFFECT OF TRANSACTIONS.
The execution, delivery and performance by the Corporation of this
Agreement and the documents executed and delivered in connection therewith will
not conflict with or result in any default under any material contract,
obligation or commitment of the Corporation, or any charter provision, bylaw or
corporate restriction of the Corporation, or the creation of any lien, charge or
encumbrance of any nature upon any of the properties or assets of the
Corporation, except pursuant to this Agreement. The Corporation's execution and
delivery of this Agreement and the documents executed and delivered in
connection therewith and its performance of the transactions contemplated
thereby will not violate any instrument, agreement, judgment, decree, order,
statute, rule or regulation of any federal, state or local government or agency
applicable to the Corporation.
3.18 INSURANCE.
The Corporation maintains valid and effective insurance policies, issued by
financially sound and reputable insurers, to insure it against all risks usually
insured against by persons or entities conducting businesses similar to that of
the Corporation in the locality in which such businesses are conducted. The
Corporation has paid all due premiums with respect to all policies of insurance
currently maintained by the Corporation.
3.19 SECURITIES ACT REGISTRATION.
Assuming that the representations and warranties of the Investor contained
herein are true, the offer, sale and delivery of the Securities in the manner
contemplated by this Agreement are each exempt from registration under the
Securities Act and are exempt or will be exempt under applicable state
securities or Blue Sky laws regulating the issuance or sale of securities upon
the timely filing of notices with the appropriate states.
3.20 BUSINESS; COMPLIANCE WITH LAWS.
The Corporation (i) is in compliance with, in all respects all legal
requirements applicable to it and its business and (ii) has all material
federal, state, local and foreign governmental licenses and permits
(collectively, "Permits") used or necessary in the conduct of its business. Such
Permits are in full force and effect, no violations with respect to any thereof
are recorded, no legal proceeding is pending or, to the best knowledge of the
Corporation, threatened to revoke or limit any thereof.
3.21 BOOKS AND RECORDS.
The minute books of the Corporation contain complete and accurate records
of all meetings and other corporate actions of its shareholders and its board of
directors (the "Board of Directors") and committees thereof. The stock ledger of
the Corporation is complete and reflects all issuances, transfers, repurchases
and cancellations of shares of capital stock of the Corporation.
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3.22 EMPLOYEE BENEFIT PLANS.
Each employee benefit plan, program, arrangement, practice or contract,
whether formal or informal, maintained or contributed to by the Corporation
providing current or retirement benefits or compensation to or on behalf of
employees or former employees of the Corporation (the "Benefits Plans"), are in
compliance in all material respects with the presently applicable laws.
3.23 SMALL BUSINESS MATTERS.
The Corporation is a "small business concern" within the meaning of the
Small Business Investment Act of 1958 and the regulations thereunder (the "SBIC
Act"), including Title 13, Code of Federal Regulations, Section 121.301. The
information set forth in the Small Business Administration Forms 480, 652 and
Sections A and B of Form 1031, which have been delivered on or prior to the
date hereof to the Investor regarding the Corporation is accurate and complete.
The Corporation does not presently engage in, and it shall not hereafter engage
in, any activities, nor shall the Corporation use directly or indirectly the
proceeds from the sale of the Securities for any purpose for which a Small
Business Investment Corporation is prohibited from providing funds by the SBIC
Act, including Title 13, Code of Federal Regulations, Section 107.720. The
Corporation acknowledges that it has been declared by Chase Capital Partners
("Chase") that Chase is a federal licensee under the SBIC Act.
3.24 INFORMATION SUPPLIED TO THE INVESTOR.
(a) Neither this Agreement, or the Schedules and Exhibits attached
hereto, nor any written document (including the Business Plan, as defined),
certificate, projection or statement furnished to the Investor by or on behalf
of the Corporation pursuant to this Agreement contains any untrue statement of a
material fact, and none of this Agreement, the Schedules and Exhibits attached
hereto or such other written documents, projections, certificates and statements
omits to state a material fact necessary in order to make the statements
contained herein or therein not misleading. There is no material fact relating
to the business, prospects, operations, affairs or conditions of the Corporation
which adversely affects or in the future may, in the reasonable business
judgment of the Corporation, adversely affect the same which has not been set
forth in this Agreement or in the Schedules or Exhibits attached hereto or other
materials delivered pursuant to this Agreement.
(b) The projections contained in the Business Plan are based upon
assumptions believed by the Corporation to be reasonable as of the date hereof,
however the Corporation gives no assurance that the actual operations of the
Company will conform to such projections.
(c) Any disclosure contained in any of the Schedules delivered
hereunder, which on its face is clearly and unequivocally applicable to another
Schedule to this Agreement, shall be deemed made with respect to such other
Schedule.
3.25 BROKERAGE.
No person or entity acting on behalf or under the authority of the
Corporation is or will be entitled to any broker's, finder's, or similar fee or
commission in connection with the sale of the Securities.
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3.26 Employees.
The Corporation has no collective bargaining agreement with any of its
employees. There is no labor union organizing activity pending nor, to the best
knowledge of the Corporation, threatened with respect to the Corporation. The
Corporation is not aware that any officer or key employee intends to terminate
his or her relationship with the Corporation, nor does the Corporation have any
present intention of terminating the employment of any officer or key employee.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE INVESTORS
4.1 REPRESENTATIONS AND WARRANTIES
Each Investor hereby represents and warrants to the Corporation,
severally and not jointly, and only as to itself, as follows:
(a) All action on the part of such Investor necessary for the execution,
delivery and performance of this Agreement, and the consummation of the
transactions contemplated hereby has been taken and, assuming due execution and
delivery by the Corporation, this Agreement constitutes a legal, valid, binding
and enforceable obligation of such Investor, subject to: (i) judicial principles
respecting or limiting the availability of specific performance, injunctive
relief and other equitable remedies; and (ii) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
generally relating to or affecting creditors' rights.
(b) If the Investor is an entity, trust, pension fund or XXX account
(the "Entity"), the Entity represents and warrants that: (i) such Entity is an
existing entity, and has not been organized or reorganized for the purpose of
making this investment (or if not true, such fact shall be disclosed to the
Corporation in writing along with information concerning the beneficial owners
of the Entity), (ii) the undersigned has the authority to execute this Agreement
and the Confidential Statement of Investor Suitability attached as Exhibit B
hereto and any other documents in connection with an investment in the
Securities on the Entity's behalf, and (iii) the Entity has the power, right and
authority to invest in the Securities and enter into the transactions
contemplated hereby, and the investment is suitable and appropriate for the
Entity and its beneficiaries (given the risks and illiquid nature of the
investment).
4.2 INVESTMENT.
(a) Such Investor has been advised that the Securities have not been
registered under the Securities Act of 1933, as amended (the "Act"), or
registered or qualified under any applicable state securities laws on the
ground that no distribution or public offering of the Securities is to be
effected, and that in this connection the Corporation is relying in part on the
representations of such Investor set forth in this Article IV;
(b) Such Investor has been further advised that no public market now
exists for any of the securities issued by the Corporation and that a public
market may never exist for the Securities;
(c) Such Investor is purchasing the Securities for its own account and
not for any other person;
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(d) By reason of its business or financial experience, such Investor has
the capacity to protect its own interest in connection with the transactions
contemplated hereunder, is able to bear the risks of an investment in the
Corporation, and can afford a complete loss Of such investment;
(e) Such Investor is aware of the Corporation's business affairs and
financial condition and has acquired sufficient information about the
Corporation to reach an informed and knowledgeable decision to acquire the
Securities; and
(f) Such Investor has had the opportunity to ask questions regarding the
Corporation and the Corporation has provided information in response to the
questions.
4.3 FEDERAL SECURITIES LAWS.
In order to enable the Corporation to determine whether the sale of the
Securities is exempt from registration under the Act, each Investor represents
that it is an Accredited Investor (as defined in Schedule 4.3 hereof), has
completed truthfully the appropriate items in the Confidential Statement of
Investor Suitability attached as Exhibit B hereto, and is acquiring the
Securities for its own account, for investment, and not with a view to, or for
sale in connection with, any distribution thereof.
4.4 STATE SECURITIES LAWS.
The address of such Investor set forth on Schedule I attached hereto is the
Investor's true and correct residence or place of business.
ARTICLE V
PRIOR OR SIMULTANEOUS ACTIONS
Before or at the closing of the issuance of the Securities hereunder, the
following actions have been or are being taken:
(a) Certificate of Incorporation. The certificate of designation setting
forth the rights and preferences of the Securities and amending the Certificate
of Incorporation is being filed with and accepted by the Secretary of State of
the State of Delaware.
(b) Shareholders Agreement. Each Investor that is not currently a party
to the Shareholders Agreement is executing and delivering a Joinder Agreement in
a form acceptable to the Corporation pursuant to which such Investor shall agree
to be bound by the terms of the Shareholders Agreement.
(c) Authorizing Actions of the Corporation. The Investors are receiving
certified copies of all requisite corporate actions taken by the Corporation to
authorize its adoption of the amendment to the Certificate of Incorporation, its
execution and delivery of the Documents, its performance of its obligations
thereunder, and its consummation of the transactions contemplated thereby.
(d) Shareholder Consent. Holders of 66 2/3's of Series B Preferred and
Series C Preferred Stock, as if fully converted, voting as a single class, have
consented to the issuance of the Securities.
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ARTICLE VI
COVENANTS OF THE CORPORATION
6.1 OPERATING PLAN; OTHER REPORTING.
The Corporation shall prepare and deliver to each Investor holding,
together with its affiliate or affiliates, Securities with an aggregate purchase
price exceeding $1,000,000 (each a "Qualified Investor") within 30 days after
the start of each fiscal year, an operating plan prepared on an annual basis
and, promptly after preparation, any material revisions to such operating plan;
provided, however that with respect to fiscal year 1998, the operating plan
shall be delivered to the Qualified Investor when such plan has been made
available to the Board of Directors. In addition, the Corporation shall promptly
provide to Qualified Investors other customary information and materials,
including, without limitation, reports of material adverse developments,
management letters, communications with shareholders or directors, press
releases and registration statements.
6.2 AFFILIATED TRANSACTION.
All transactions by and between the Corporation and any officer, employee
or shareholder of the Corporation or persons controlled by or affiliated with
such officer, employee or shareholder, shall be conducted on an arms-length
basis, shall be on terms and conditions no less favorable to the Corporation
than could be obtained from unrelated persons and shall be approved by the Board
after full disclosure of the terms thereof, for which purpose the interested
party, if a director, and any affiliate of the interested party who is a
director, shall not be entitled to vote.
6.3 INSPECTION.
The Corporation shall, upon reasonable prior notice, permit authorized
representatives of each Qualified Investor to visit and inspect any of the
properties of the Corporation including its books of account (and to make copies
thereof and take extracts therefrom), and to discuss the affairs, finances and
accounts of the Corporation with its officers, administrative employees and
independent auditors, all at the expense of the Investors and at such reasonable
times and as often as may be reasonably requested.
6.4 MATERIAL CHANGES AND LITIGATION.
The Corporation shall promptly (and, in any event, not later than the date
of release of such information to the public generally) notify the Investors or
its transferees of any material adverse change in the business, properties,
assets, or condition (financial or otherwise) of the Corporation and of any
litigation or governmental proceeding or investigation pending (or, to the best
knowledge of the Corporation, threatened) against the Corporation or against
any officer, director, key employee, or principal shareholder of the
Corporation, that materially adversely affects (or if adversely determined,
could materially adversely affect) its present or proposed business, properties,
assets, or condition (financial or otherwise) taken as a whole.
6.5 EMPLOYEE SHARES.
The officers and employees of the Corporation to whom, and the times at
which, stock options shall be granted by the Corporation, the type of options
to be granted, the duration of each option, the price and method of payment for
each option, and the vesting schedule of each option shall be determined by the
compensation committee of the Board.
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6.6 INTEGRATION.
The Corporation shall not offer, sell or solicit offers to buy or otherwise
negotiate with respect to any security (as defined in the Securities Act) that
will be integrated with the sale of the Common Stock in a manner that would
require the registration of any of the Common Stock under the Securities Act,
except in connection with an initial public offering by the Corporation under
the Securities Act.
6.7 USE OF PROCEEDS.
The Corporation shall use the proceeds from the sale of the Securities to
support the working capital needs resulting from three recent and/or pending
transactions and other general corporate purposes consistent with the strategic
business plan of the Corporation (the "Business Plan"). In addition, the
Corporation may use a portion of the proceeds to fund additional acquisitions.
6.8 NEGATIVE COVENANTS.
Without the prior consent of the holders of no less than 66 2/3% of the then
outstanding Securities, the Corporation shall not:
(a) amend the Corporation's Certificate of Incorporation or Bylaws in a
manner which adversely affects the rights of the holders of the Securities;
(b) pay dividends on or make other distributions with respect to any
capital stock of the Corporation;
(c) engage in any business other than the business engaged in by the
Corporation as of the date hereof or as contemplated by the Business Plan; or
(d) increase the number of directors constituting the Board of Directors
of the Corporation to more than nine members.
6.9 SHAREHOLDERS AGREEMENT.
(a) The Corporation hereby agrees to use its best efforts to cause the
shareholders of the Corporation that are currently party to the Shareholders
Agreement to execute and deliver an amendment to the Shareholders Agreement,
pursuant to which the Shareholders Agreement will be amended to include
drag-along rights.
(b) The Corporation hereby agrees to use its best efforts to cause any
employee of the Corporation or a subsidiary thereof that is a shareholder of the
Corporation that is not currently a party to the Shareholders Agreement to
execute and deliver a joinder agreement pursuant to which such employee agrees
to be bound by the terms of the Shareholders Agreement.
(c) The Corporation hereby agrees that any future issuance of shares of
capital stock, or options to acquire shares of capital stock, of the
Corporation, to any employee of the Corporation or an subsidiary thereof shall
be conditioned upon such employee executing and delivering a joinder agreement
pursuant to which such employee agrees to be bound by the terms of the
Shareholders Agreement, as amended from time to time.
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6.10 TERMINATION.
The covenants set forth in Article VI hereof shall terminate upon the
consummation of a public offering pursuant to an effective registration
statement under the Securities Act of 1933, as amended, covering the offer and
sale of the Corporation's Common Stock where the aggregate offering price to the
public is no less than $20,000,000.00, and the public offering price is not less
than $5.00 per share (adjusted to reflect any stock splits, combinations or
similar events after the date hereof).
ARTICLE VII
REGULATORY MATTERS
7.1 REGULATORY COMPLIANCE COOPERATION.
(a) If a Regulated Holder determines that it has a Regulatory Problem,
the Corporation agrees to take all such actions as are reasonably requested by
such Regulated Holder (x) to effectuate and facilitate any transfer by such
Regulated Holder of any securities of the Corporation then held by such
Regulated Holder to any person designated by such Regulated Holder, (y) to
permit such Regulated Holder (or any Affiliate of such Regulated Holder) to
exchange all or any portion of the voting securities of the Corporation then
held by such person on a share-for-share basis for shares of a class of
nonvoting securities of the Corporation, which nonvoting securities of the
Corporation shall be identical in all respect to such voting securities, except
that such new securities shall be nonvoting and shall be convertible into voting
securities on such terms as are requested by such Regulated Holder in light of
regulatory considerations then prevailing, and (z) to continue and preserve the
respective allocation of the voting interests with respect to the Corporation
provided for in the Certificate of Incorporation of the Corporation and this
Agreement and with respect to such Regulated Holder's ownership of the
Corporation's voting securities. Such actions may include, without limitation,
(x) entering into such additional agreements as are reasonably requested by
such Regulated Holder to permit any persons designated by such Regulated Holder
to exercise any voting power which is relinquished by such Regulated Holder upon
any exchange of voting securities for nonvoting securities of the Corporation;
and (y) entering into such additional agreements, adopting such amendments to
this Agreement, the Certificate of Incorporation and the By-laws of the
Corporation and taking such additional actions as are reasonably requested by
such Regulated Holder in order to effectuate the intent of the foregoing. As
used herein, "Regulated Holder" means any Investor that is (i) a "small business
investment corporation" licensed by the United States Small Business
Administration under the Small Business Investment Act of 1958, as amended, (ii)
a Regulation Y Holder (as defined below), and/or (iii) subject to any similar,
related or successor laws and regulations regulating banks, bank holding
companies, small business investment companies and their respective
subsidiaries.
(b) If a Regulated Holder elects to transfer securities of the
Corporation to an Affiliate who is, or upon such transfer would become, a
Regulation Y Holder (as defined below) in order to avoid or cure a Regulatory
Problem, the Corporation shall enter into such agreements with such Regulated
Holder and its Affiliates as it may reasonably request in order to assist such
Regulated Holder and its Affiliates in complying with all applicable laws. Such
agreements may include restrictions on the conversion, redemption, repurchase or
retirement of securities of the Corporation that would result or be reasonably
expected to result in such Regulated Holder or its Affiliates holding more
voting securities or total equity than it is permitted to hold under such
applicable laws. As used herein, "Regulation Y Holder" means any Investor that
is (or that is a subsidiary of a bank holding corporation that is) subject to
the various provisions of Regulation
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Y of the Board of Governors of the Federal Reserve Systems, 12 C.F.R., Part 225
(or any successor to Regulation Y), so long as such Regulation Y Holder shall
hold such securities.
(c) If a Regulated Holder has the right or opportunity to acquire any of
the Corporation's securities from the Corporation, any other Regulated Holder or
any other person or entity (as the result of a preemptive offer, pro rata offer
or otherwise), at such Regulated Holder's request the Corporation shall offer to
sell (or if the Corporation is not the seller, to cooperate with the seller and
such Regulated Holder to permit such seller to sell) such non-voting securities
on the same terms as would have existed had such Regulated Holder acquired the
securities so offered and immediately requested their exchange for non-voting
securities pursuant to Section 7.1 (a) above.
(d) Before the Corporation redeems, purchases or otherwise acquires,
directly or indirectly, or converts or takes any action with respect to the
voting rights of, any securities, the Corporation shall give written notice of
such pending action to each Regulated Holder. Upon the written request of any
Regulated Holder made within 10 days after its receipt of such notice stating
that after giving effect to such action such Regulated Holder would have a
Voting Regulatory Problem, the Corporation shall defer taking such action for
such period (not to extend beyond 45 days after such Regulated Holder's receipt
of the Corporation's original notice) as such Regulated Holder requests to
permit it and its Affiliates to reduce the quantity of the Corporation's
securities they own or take other appropriate action in order to avoid the
Voting Regulatory Problem. In addition, the Corporation shall not be a party to
any merger, consolidation, recapitalization or other transaction pursuant to
which any Regulated Holder would be required to take any voting securities, or
any securities convertible into, or exchangeable or exercisable for, voting
securities, which might reasonably be expected to cause such Regulated Holder to
have a Voting Regulatory Problem. In no event shall the Corporation be required
to cause securities to be registered under the Securities Act or the Securities
Exchange Act of 1934, as amended, pursuant to this Section 7.1.
7.2 COVENANT NOT TO AMEND.
The Corporation agrees not to amend or waive the voting or other provisions
of this Agreement or the Certificate of Incorporation or Bylaws of the
Corporation if such amendment or waiver would cause any Investor to have a
Regulatory Problem, provided that any such Investor notifies the Corporation
that it would have a Regulatory Problem promptly after it has notice of such
amendment or waiver.
7.3 CERTAIN INFORMATION RIGHTS AND RELATED COVENANTS.
(a) Upon the request of any Regulated Holder, the Corporation shall
promptly:
(i) provide to such person and the U.S. Small Business Administration
(the "SBA") access to its books and records for the purpose of confirming
the use of the proceeds of such person's financing and for all other
purposes required by the SBA;
(ii) provide to such person and the SBA a certificate of its chief
financial officer (1) verifying the use of such proceeds and (2) certifying
compliance by the Corporation with the provisions of this Agreement
(provided that such certificate may be truthfully given);
(iii) provide to such person an assessment, in form and substance
satisfactory to such person, of the economic impact of such person's
financing, specifying the full-time equivalent jobs created or retained,
the impact of the financing on the Corporation's business in terms of
expanded revenue and taxes and other appropriate
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economic benefits, including, but not limited to, technology development or
commercialization minority business development, urban or rural business
development, expansion of exports and assistance to manufacturing firms;
(iv) provide to such person such financial statements and other
information as such Person may from time to time reasonably request for the
purpose of assessing the Corporation's financial condition; and
(v) furnish to such person all information requested by it in order
for it to prepare and file SBA Form 468 or to prepare an assessment of the
economic impact of such Person's financing, and any other information
requested or required by any governmental agency asserting jurisdiction
over such Person.
(b) For a period of one year following the date hereof, neither the
Corporation nor any of its subsidiaries shall change its business activity if
such change would render the Corporation ineligible as a "Small Concern" under
the Small Business Investment Act and the regulations thereunder.
(c) The Corporation shall at all times comply with the
non-discrimination requirements of 13 C.F.R., Parts 112, 113 and 117.
7.4 CERTAIN DEFINITIONS
"Affiliate" means any other person or entity that directly or indirectly
through one or more intermediaries controls, is controlled by or is under common
control with such person or entity.
"securities" means, with respect to any person, Such Person's "securities"
as defined in Section 2(1) of the Securities Act of 1933, as amended, and
includes such person's capital stock or other equity interests or any options,
warrants or other securities or rights that are directly or indirectly
convertible into, or exercisable or exchangeable for, such person's capital
stock or other equity interests.
"Regulatory Problem" means, with respect to any Investor, (i) any set of
facts or circumstance wherein it has been asserted by any governmental
regulatory agency (or a Investor believes that there is a substantial risk of
such assertion) that such Investor is not entitled to hold, or exercise any
significant right with respect to, the capital stock of the Corporation which it
holds or (ii) a Voting Regulatory Problem.
"Voting Regulatory Problem" shall exist when a person and such person's
affiliates would own, control or have the power (including voting rights) over a
greater quantity of securities of any kind issued by the Corporation or any
other person than are permitted under any applicable law.
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
8.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
The representations, warranties, covenants, promises and agreements
contained in this Agreement shall survive the Closings and shall remain in full
force and effect until the second anniversary of the date of this Agreement.
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8.2 INDEMNIFICATION.
In addition to all other rights and remedies available to the Investors,
the Corporation shall indemnify, defend and hold harmless the Investors and its
affiliates and their respective partners, officers, directors, employees, agents
and representatives against any loss, liability, demand, claim, action, cause of
action, cost, damage, deficiency, tax, penalty, fine or expense (including legal
and accounting fees and expenses related thereto or incurred in enforcing this
Article VIII, but excluding punitive damages) arising from the untruth,
inaccuracy or breach of any of the representations, warranties, covenants or
agreements of the Corporation contained in any Document or any facts or
circumstances constituting any such untruth, inaccuracy or breach.
ARTICLE IX
RESTRICTIONS ON TRANSFER
9.1 NONTRANSFERABLE SECURITIES.
The Securities shall not be transferable except in accordance with the
conditions set forth in the Shareholders Agreement.
9.2 RESTRICTIVE LEGEND.
(a) Each certificate representing, Securities issued hereunder shall
(unless otherwise permitted by the provisions of paragraph (b) and (c) below) be
stamped or otherwise imprinted with a legend in substantially the following
form:
"THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"). THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER THE
ACT AND APPLICABLE STATE SECURITIES LAWS OR UNLESS AN OPINION OF
COUNSEL ACCEPTABLE TO THE CORPORATION HAS BEEN OBTAINED TO THE
EFFECT THAT REGISTRATION UNDER THE ACT AND APPLICABLE STATE
SECURITIES LAWS IS NOT REQUIRED."
(b) The holder of any Securities by acceptance thereof agrees, prior
to any transfer of any Securities, to give, written notice to the Corporation of
such holder's intention to effect such transfer and to comply in all other
respects with the provisions of this Section. Each such notice shall describe
the manner and circumstances of the proposed transfer. Upon request by the
Corporation, the holder delivering such notice shall deliver a written opinion,
addressed to the Corporation, of counsel for the holder of such Securities,
stating that in the opinion of such counsel (which opinion and counsel shall be
reasonable satisfactory to the Corporation) such proposed transfer does not
involve a transaction requiring registration or qualification of such Securities
under the Securities Act or the securities or "blue sky" laws of any state of
the United States. Such holder of Securities shall be entitled to transfer such
Securities in accordance with the terms of the notice delivered to the
Corporation, if the Corporation does not reasonably object to such transfer on
the basis that such proposed transfer involves a transaction requiring
registration or qualification of such securities under the Securities Act or the
securities or "blue
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sky" laws of any state of the United States and requests an opinion with respect
to such issue within five days after delivery of such notice, or, if it requests
such opinion, does not reasonably object to such transfer within five days after
delivery of such opinion. Each certificate or other instrument evidencing the
securities issued upon the transfer of any Securities (and each certificate or
other instrument evidencing any untransferred balance of such Securities) shall
bear the legend set forth in paragraph (a) above unless (i) in such opinion of
counsel registration of any future transfer is not required by the applicable
provisions of the Securities Act; or (ii) the Corporation shall have waived the
requirement of such legends.
(c) Notwithstanding the foregoing provisions of this Section, the
restrictions imposed by this Section upon the transferability of any Securities
shall cease and terminate when (i) any such Securities are sold or otherwise
disposed of (A) pursuant to an effective registration statement under the
Securities Act or (B) in a transaction contemplated by paragraph (b) above which
does not require that the Securities so transferred bear the legend set forth in
paragraph (a) hereof; or (ii) the holder of such Securities has met the
requirements for transfer of such Securities under Rule 144(k) or any successor
statute. Whenever the restrictions imposed by this Section shall terminate, the
holder of any Securities as to which such restrictions have terminated shall be
entitled to receive from the Corporation without expense, a new certificate not
bearing the restrictive legend set forth in paragraph (a) above and not
containing any other reference to the restrictions imposed by this Section.
ARTICLE X
MISCELLANEOUS
10.1 EXPENSES
The Corporation shall pay the legal fees Of X'Xxxxxxxx, Graev & Karabell,
LLP, counsel to Chase and all other reasonable out-of-pocket expenses incurred
by Chase in connection with this transaction, its due diligence investigation of
the Corporation, the negotiation of the Documents and the closing of the
transactions contemplated by the Documents; provided however; that the amount of
such payment or reimbursement by the Corporation shall not exceed $5,000. In
addition, the Corporation shall reimburse the Investors for all reasonable costs
and expenses (including reasonable attorney's fees) incurred in connection with
any modifications or amendments to or any waiver or consent under any of the
Documents; provided, however, that the amount of such payment or reimbursement
by the Corporation shall not exceed $5,000.
10.2 ENTIRE AGREEMENT.
This Agreement and the other writings and agreements referred to herein or
delivered pursuant hereto contain the entire understanding of the parties with
respect to the subject matter hereof and supersede all prior agreements and
understandings among the parties with respect thereto.
10.3 NOTICES ETC.
All notices and other communications required or permitted hereunder shall
be in writing and shall be deemed effectively given upon personal delivery or
upon the seventh day following mailing by registered air mail, postage prepaid,
addressed (a) if to the Investor, as indicated on Schedule I attached hereto, or
at such other address as it shall have furnished to the Corporation, (b) if to
the Corporation, to Genomic Solutions Inc., 0000 Xxxxxxx Xxxxx, Xxx Xxxxx,
Xxxxxxxx, 00000, and addressed to the attention of the corporate secretary, or
at such other address as the Corporation shall have furnished to the Investors,
or (c) if to any other holder of the Securities or of Common Stock issued upon
conversion of the Securities at such address as such holder shall
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have furnished to the Corporation in writing, or, until such holder so furnishes
an address to the Corporation, then to and at the address of the last holder of
such Securities or shares of Common Stock issued upon conversion of the
Securities, who so furnished an address to the Corporation. In addition, any
notice delivered to an address outside the United States shall be duplicated by
counterpart telex, internet e-mail or facsimile notice (if available).
10.4 DELAYS OR OMISSIONS.
No delay or omission to exercise any right, power or remedy accruing to any
holder of any securities issued or sold or to be issued or sold hereunder, upon
any breach or default of the Corporation under this Agreement shall impair any
such right, power or remedy of such holder nor shall it be construed to be a
waiver of any such breach or default, or an acquiescence therein, or in any
similar breach or default thereafter occurring, nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring Any waiver, permit, consent or approval of
any kind or character on the part of any holder of any breach or default under
this Agreement, or any waiver on the part of any holder of any provisions or
conditions of this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in such writing. All remedies, either under
this Agreement or by law or otherwise afforded to any holder, shall be
cumulative and not alternative.
10.5 ASSIGNMENTS; SUCCESSORS AND ASSIGNS.
Except in connection with any transfer of Securities in accordance with
this Agreement, the rights of each party under this Agreement may not be
assigned. The provisions of this Agreement shall bind and inure to the benefit
of the respective successors, assigns, heirs, executors, and administrators of
the parties hereto.
10.6 AMENDMENTS.
The terms and provisions of this Agreement may not be modified or amended,
except pursuant to an instrument signed by the Corporation and the Investors
holding 66 2/3% of the Securities.
10.7 COUNTERPARTS.
This Agreement may be executed in any number Of Counterparts, and each such
counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
10.8 HEADINGS.
The section and paragraph headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
10.9 GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware (without giving effect to principles of conflicts
of laws).
*****
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
themselves or by their respective representatives thereunto duly authorized as
of the date first above written.
GENOMIC SOLUTIONS INC.
By: Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President and Chief Executive
Officer
THE INVESTORS SIGNATURES ARE
ON THE ATTACHED INVESTOR SIGNATURE PAGES
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SIGNATURE PAGE TO SERIES D PREFERRED
STOCK PURCHASE AGREEMENT
INVESTOR SIGNATURE PAGE
-----------------------
Please indicate the number of Securities which you would like to purchase.
987,488
INVESTOR: Chase Venture Capital Associates, L.P.
By: Chase Capital Partners, its general
partner
/s/ Xxxxxx X. Xxxxxx
------------------------
SIGNATURE
Name: Xxxxxx X. Xxxxxx, MD
---------------------
(Please Print)
Title, if any: general partner
----------------
(Please Print)
21
SIGNATURE PAGE TO SERIES D PREFERRED
STOCK PURCHASE AGREEMENT
INVESTOR SIGNATURE PAGE
-----------------------
Please indicate the number of Securities which you would like to purchase.
4,241
INVESTOR:
/s/Xxxxxxx Styles
--------------------------
SIGNATURE
Name: Xxxxxxx Styles
-------------------
(Please Print)
Title, if any:
-------------------
(Please Print)
22
SIGNATURE PAGE TO SERIES D PREFERRED
STOCK PURCHASE AGREEMENT
INVESTOR SIGNATURE PAGE
-----------------------
Please indicate the number of Securities which you would like to purchase.
16,870
INVESTOR:
/s/ Xxxxx X. Xxxxxx
---------------------------------
SIGNATURE
Name: Xxxxx X. Xxxxxx
----------------------------
(Please Print)
Title, if any:
-------------------
(Please Print)
23
SIGNATURE PAGE TO SERIES D PREFERRED
STOCK PURCHASE AGREEMENT
INVESTOR SIGNATURE PAGE
-----------------------
Please indicate the number of Securities which you would like to purchase.
7,069
INVESTOR:
/s/ Xxxx X. Styles
---------------------------------
SIGNATURE
Name: Xxxx Xxxxxx
----------------------------
(Please Print)
Title, if any:
-------------------
(Please Print)
24
SIGNATURE PAGE TO SERIES D PREFERRED
STOCK PURCHASE AGREEMENT
INVESTOR SIGNATURE PAGE
-----------------------
Please indicate the number of Securities which you would like to purchase.
75,000
INVESTOR: American Healthcare Fund II
by Capital Health Venture Partners,
its General Partner
/s/ Xxx Xxxxxxxx
---------------------------------
SIGNATURE
Name: Xxx Xxxxxxxx
----------------------------
(Please Print)
Title, if any: General Partner
-------------------
(Please Print)
25
SIGNATURE PAGE TO SERIES D PREFERRED
STOCK PURCHASE AGREEMENT
INVESTOR SIGNATURE PAGE
-----------------------
Please indicate the number of Securities which you would like to purchase.
10,286
INVESTOR:
/s/ X. X. Xxxxxx
--------------------------------------
SIGNATURE
Name: X. X. Xxxxxx
---------------------------------
(Please Print)
Title, if any:
------------------------
(Please Print)
26
SIGNATURE PAGE TO SERIES D PREFERRED
STOCK PURCHASE AGREEMENT
INVESTOR SIGNATURE PAGE
-----------------------
Please indicate the number of Securities which you would like to purchase.
SEE ATTACHED 16,667
INVESTOR: Grove Investment Partners
/s/ Xxxx X. Xxxx
------------------------------
SIGNATURE
Name: Xxxx X. Xxxx
-------------------------
(Please Print)
Title, if any: General Partner
----------------
(Please Print)
27
SIGNATURE PAGE TO SERIES D PREFERRED
STOCK PURCHASE AGREEMENT
INVESTOR SIGNATURE PAGE
-----------------------
Please indicate the number of Securities which you would like to purchase.
18,379
INVESTOR:
/s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
SIGNATURE
Name: Liberty Bidco Investor Corporation
------------------------------------
(Please Print)
Title, if any: President
---------------------------
(Please Print)
28
SIGNATURE PAGE TO SERIES D PREFERRED
STOCK PURCHASE AGREEMENT
INVESTOR SIGNATURE PAGE
-----------------------
Please indicate the number of Securities which you would like to purchase.
10,000 shares for $60,000.
INVESTOR:
/s/ J. Xxxxxxx Xxxxxxxxx
--------------------------------------
SIGNATURE
Name: J. Xxxxxxx Xxxxxxxxx
---------------------------------
(Please Print)
Title, if any:
------------------------
(Please Print)
29
SIGNATURE PAGE TO SERIES D PREFERRED
STOCK PURCHASE AGREEMENT
INVESTOR SIGNATURE PAGE
-----------------------
Please indicate the number of Securities which you would like to purchase.
6,000
INVESTOR:
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------
SIGNATURE
Name: Xxxxxx X. Xxxxxxx
---------------------------------
(Please Print)
Title, if any:
------------------------
(Please Print)
