EXHIBIT 2
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this "Agreement") is made as of October
29, 2002 by and among ICU Medical, Inc., a Delaware corporation ("Buyer") and
the entities and individuals listed under "Sellers" on the signature pages of
this Agreement (collectively, "Sellers" and each individually, a "Seller").
RECITALS
A. Bio-Plexus, Inc., a Delaware corporation (the "Company"), has issued and
outstanding 11,539,941 shares of common stock, $0.001 par value, (the "Common
Stock") and warrants to purchase 1,314,060 shares of Common Stock having an
initial exercise price (subject to adjustment) of $2.28 per share (the "$2.28
Warrants").
B. Each Seller owns the number of shares of Common Stock and $2.28 Warrants
to purchase the number of shares of Common Stock listed on Schedule 2.1 opposite
each Seller's name, and the Common Stock and $2.28 Warrants owned by Sellers
(together, the "Securities") constitute in the aggregate 9,695,961 shares, or
approximately 84% of the outstanding Common Stock, and $2.28 Warrants to
purchase 1,294,788 shares of Common Stock.
X. Xxxxxxx desire to sell, and Buyer desires to purchase, all of the
Securities, subject to the terms and conditions set forth in this Agreement.
D. Under the terms of a Note Purchase Agreement of the same date as this
Agreement (the "Note Purchase Agreement") between Buyer and Persons listed under
"Note Sellers" on the signature pages of the Note Purchase Agreement ("Note
Sellers"), Buyer has agreed to purchase, and Note Sellers have agreed to sell,
7% Senior Subordinated Non-Convertible Promissory Notes of the Company in the
aggregate principal amount of $2,499,999 (the "Notes").
AGREEMENT
NOW, THEREFORE, in consideration of the mutual agreements contained in this
Agreement, the parties hereto agree as follows:
1. DEFINITIONS
For purposes of this Agreement, the following terms have the meanings
specified or referred to in this Section 1:
"$2.28 Warrants" -- as defined in Recital A.
"Acquisition Agreements" -- as defined in Section 3.5.
"Beneficial Owner" -- has the meaning ascribed to that term in Rule 13d-3
under the Securities Exchange Act of 1934, as amended.
"Best Efforts" -- commercially reasonable best efforts (whether or not
capitalized in this Agreement).
"Buyer" -- as defined in the Preamble.
"Closing" -- as defined in Section 2.3.
"Closing Date" -- the date and time that the Closing takes place.
"Common Stock" -- as defined in Recital A.
"Company" - as defined in Recital A.
"ComVest" - ComVest Venture Partners, L.P., a Delaware limited partnership.
"Contracts" -- as defined in Section 3.4.
"Delegated Actions" -- as defined in Section 5.7.
"Note Purchase Agreement" -- as defined in Recital D.
"Note Sellers" -- as defined in Recital D.
"Notes" -- as defined in Recital D.
"Ordinary Course of Business" -- an action taken by the Company will be
deemed to have been taken in the "Ordinary Course of Business" only if:
(a) such action is consistent with the past practices of the Company
and is taken in the ordinary course of the normal day-to-day operations of the
Company;
(b) such action is not required to be authorized by the board of
directors of the Company (or by any person or group of persons exercising
similar authority); and
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(c) such action is similar in nature and magnitude to actions
customarily taken, without any authorization by the board of directors (or by
any person or group of persons exercising similar authority), in the ordinary
course of the normal day-to-day operations of other entities that are in the
same line of business as the Company.
"Organizational Documents" -- (a) the articles or certificate of
incorporation or association and the bylaws of a corporation; (b) the
partnership agreement and any statement of partnership of a general partnership;
(c) the limited partnership agreement and the certificate of limited partnership
of a limited partnership; (d) the articles of association or certificate of
formation and the bylaws or the limited liability company or operating agreement
of a limited liability company; (e) any charter or similar document adopted or
filed in connection with the creation, formation, or organization of any entity;
and (f) any amendment to any of the foregoing.
"Person" -- an individual, partnership, corporation, business trust,
limited liability company, limited liability partnership, joint stock company,
trust, unincorporated association, joint venture or other entity.
"Securities" -- as defined in Recital B.
"Securities Act"-- the Securities Act of 1933, as amended.
"Sellers" and "Seller" -- as defined in the Preamble.
2. PURCHASE; CLOSING
2.1 PURCHASE OF SECURITIES. On the basis of the representations,
warranties and agreements set forth herein, and upon the terms and conditions
set forth in this Agreement, at the Closing, each Seller shall sell all the
Securities listed opposite Seller's name on Schedule 2.1 to Buyer, and Buyer
shall purchase all the Securities from Sellers, provided, however, that Buyer
shall not be obligated to purchase any Securities unless all of the Securities
are sold and delivered to Buyer.
2.2 PURCHASE PRICE AND PAYMENT.
(a) The aggregate purchase price to be paid at the Closing for all the
Securities shall equal $6,404,666.80, and the purchase price to be paid at the
Closing to each Seller for such Seller's Securities shall be the amount set
forth opposite such Seller's name on Schedule 2.1.
(b) At the Closing, Buyer shall pay all the amounts required by
Section 2.2(a) in United States Dollars by an individual wire transfer to the
account of each Seller as designated by such Seller.
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2.3 CLOSING. The purchase and sale of the Securities (the "Closing") will
take place at the offices of Commonwealth Associates, L.P., 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, at 10:00 a.m. local time on October 31, 2002 or such later
date as all of the conditions in Sections 7 and 8 are satisfied, or at such
other time and place as Buyer and Sellers may agree. Subject to Section 9, the
failure to complete the Closing on the date and at the time and place determined
pursuant to this Section 2.3 will not result in the termination of this
Agreement and will not relieve any party of any obligation under this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF SELLERS
Each Seller severally, but not jointly, represents and warrants to Buyer
that:
3.1 ORGANIZATION AND GOOD STANDING. Each Seller, other than an individual,
is, and at the Closing Date will be, duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization applicable to
its particular type of business organization, with full power and authority to
carry on its business and to execute and deliver this Agreement, to consummate
the transactions contemplated hereby, and to sell, transfer and deliver the
Securities pursuant to Section 2 in the manner provided therein.
3.2 AUTHORIZATION; AUTHORITY.
(a) The execution and delivery by each Seller, other than an
individual, of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by such Seller's board
of directors or similar governing body. No other corporate or other proceedings
on the part of such Seller is necessary to authorize this Agreement and the
transactions contemplated hereby.
(b) Each Seller who is an individual has full power and authority
without the consent or approval of any other Person to execute and deliver this
Agreement, to consummate the transactions contemplated hereby and to sell,
transfer and deliver the Securities pursuant to Section 2 in the manner provided
therein.
3.3 DUE EXECUTION; VALID AND BINDING AGREEMENT. This Agreement has been
duly and validly executed and delivered by each Seller and, assuming the valid
execution by the Buyer, constitutes a legal, valid and binding agreement of each
Seller, enforceable against such Seller in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the rights of creditors generally or
by general equitable principles. Except as identified in Schedule 3.3, no filing
with, and no permit, authorization, consent or
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approval of any public body or authority is necessary for the consummation by
any Seller of the transactions contemplated by this Agreement.
3.4 NO BREACH OR VIOLATION. None of the execution and delivery by any
Seller of this Agreement, or the consummation by any Seller of the transactions
contemplated hereby will: (i) conflict with, or result in a violation or breach
of, or constitute a default under, require any notice under or result in the
creation of any lien or encumbrance upon any of the Securities, or any of the
assets of the Company pursuant to the terms of, any provision of any Seller's
Organizational Documents or any contract, indenture, mortgage, lease, agreement,
instrument, commitment or other arrangement to which any Seller is a party or by
which any Seller or any of the Securities or any of the assets of any Seller is
bound, whether written or oral (collectively, "Contracts"); (ii) except as set
forth in Schedule 3.4, require the consent or approval of any third party, or in
the absence of the consent of any third party to the change of ownership and
control of the Company contemplated by this Agreement, result in the loss of any
rights or benefits under any Contract either automatically or at the election of
any third party; (iii) violate any judgment, order, permit, injunction, writ,
decree or award of any court or any regulatory or governmental authority against
or binding upon any Seller or any assets of any Seller or any of the Securities;
or (iv) assuming that all filings, permits, authorizations, consents, and
approvals have been duly made or obtained pursuant to the legal requirements
identified in Schedule 3.4, constitute a violation by any Seller of, or either
automatically or at the election of any third party result in the loss of any
rights or benefits under, any statute, law, rule, ordinance or regulation of any
regulatory or governmental authority.
3.5 ACQUISITIONS OF SECURITIES. Schedule 3.5 includes a list of all stock
purchase, note purchase, warrant and other similar agreements pursuant to which
any Seller since December 31, 1999 purchased or acquired the Securities or other
equity securities, debt securities or instruments or securities or instruments
convertible directly or indirectly into equity securities of the Company
(collectively, the "Acquisition Agreements"). No party to any Acquisition
Agreement has asserted any claims against any other party in connection with any
of the transactions completed by any Acquisition Agreement, including any claims
for breach or inaccuracy of any representations, warranties or covenants or for
indemnification, reimbursement or set-off. To the best knowledge of each Seller,
there is no event or circumstance that would reasonably be expected to form the
basis for any such claim for indemnification, reimbursement or set-off assuming
that (whether or not true) all representations and warranties still survived and
all relevant claims periods were still open.
3.6 FEES OR COMMISSIONS. Except as set forth on Schedule 3.6, no Seller
has incurred any obligation or liability for any investment banker fees,
brokerage fees, commissions, finders' fees or other similar payments in
connection with any of the transactions contemplated by this Agreement.
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3.7 TITLE TO SECURITIES. Each Seller is the sole legal and Beneficial
Owner and holder of all of the Securities listed opposite such Seller's name on
Schedule 2.1, and Buyer will acquire good and marketable title to all the
Securities listed opposite such Seller's name on Schedule 2.1, free and clear of
any security, interest, claim, lien or encumbrance.
3.8 OTHER SECURITIES. Except as set forth in Schedule 3.8, no Seller holds
of record or is the Beneficial Owner of, or has any interest in, any equity
securities, debt securities or instruments or securities or instruments
convertible directly or indirectly into equity securities of the Company, other
than the Securities listed opposite such Seller's name in Schedule 2.1.
3.9 FULL DISCLOSURE. No representation or warranty of any Seller in this
Agreement and no statement in any Schedule omits to state a material fact
necessary to make any of the statements herein or therein, in light of the
circumstances in which they were made, not misleading.
4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Sellers as follows:
4.1 ORGANIZATION AND GOOD STANDING. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
with full power and authority to carry on its business and to enter into and
carry out the terms of this Agreement.
4.2 AUTHORIZATION. Buyer has all requisite corporate power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery by Buyer of this Agreement and
the consummation of the transactions contemplated hereby have been duly and
validly authorized by the Board of Directors of Buyer in accordance with
Delaware law and the Organizational Documents of Buyer. No other corporate
proceedings on the part of Buyer are necessary to authorize this Agreement and
the transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by Buyer and, assuming the valid execution by each of the
Sellers, constitutes a legal, valid and binding agreement, enforceable against
Buyer in accordance with its terms, except as such enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the rights of creditors generally or by general equitable principles.
No filing with, and no permit, authorization, consent or approval of any public
body or authority is necessary for the consummation by Buyer of the transactions
contemplated by this Agreement.
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4.3 NO BREACH OR VIOLATION. Neither the execution and delivery by Buyer of
this Agreement nor the consummation of the transactions contemplated hereby
will: (i) conflict with, or result in a violation or breach of, constitute a
default under or require any notice under any provision of the Organizational
Documents of Buyer, or any material contract, indenture, mortgage, lease,
agreement, instrument, commitment or other arrangement to which it is a party or
by which it or any of its properties is bound; (ii) violate any judgment, order,
permit, license, injunction, writ, decree or award of any court or any
regulatory or governmental authority against, or binding upon, Buyer or any of
its assets; or (iii) constitute a violation by Buyer of any statute, law, rule,
ordinance or regulation of any regulatory or governmental authority.
4.4 INVESTMENT INTENT. Buyer is acquiring the Securities for its own
account and not with a view to their distribution within the meaning of Section
2(11) of the Securities Act.
4.5 FEES AND COMMISSIONS. Except for the transaction fee payable to
Cinnamon Associates described in Section 6.1, neither Buyer nor any of its
affiliates has incurred any liability for any investment banker fees, brokerage
fees, commissions, finders' fees or other similar payments in connection with
any of the transactions contemplated by this Agreement.
5. COVENANTS OF SELLERS
5.1 ASSIGNMENTS OF RIGHTS UNDER ACQUISITION AGREEMENTS. At the Closing,
each Seller shall assign to Buyer all of the rights in favor of such Seller
under the Acquisition Agreements and any agreements and instruments contemplated
by or issued or delivered in connection with the transactions contemplated by
the Acquisition Agreements ("related instruments"), including all rights to
indemnification, reimbursement or set-off, and use its best efforts to obtain
any consents required in connection with such assignments to avoid the loss of
any benefits under the Acquisition Agreements or related instruments either
automatically or at the election of a third party or parties.
5.2 CONSENTS. Before the Closing, Sellers shall use their best efforts to
obtain the consents of all Persons that are identified or required to be
identified in Schedule 3.4.
5.3 PUBLIC ANNOUNCEMENTS. After the Closing, Buyer intends to issue a
joint public announcement with the Company of the transactions contemplated by
this Agreement. Any other public announcement or similar publicity with respect
to this Agreement or any of the transactions contemplated hereby will be issued,
if at all, at such time and in such manner as Buyer and the Company mutually
determine; provided, however, that Sellers shall be entitled to pre-approve any
public announcement if Sellers
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are specifically identified therein. Unless consented to by Buyer in advance,
before the Closing, Sellers shall keep this Agreement and the transactions it
contemplates strictly confidential and shall not make any disclosure of this
Agreement or the transactions it contemplates to any Person except for such
disclosure as is required by law or regulation.
5.4 NO NEGOTIATIONS. Until such time, if any, as this Agreement is
terminated pursuant to Section 9, no Seller shall: (i) directly or indirectly
solicit, initiate, or encourage any inquiries or proposals from, discuss or
negotiate with, provide any non-public information to, or consider the merits of
any unsolicited inquiries or proposals from, any Person (other than Buyer or
Buyer's affiliates) relating to any transaction involving the sale of the
business or assets (other than in the Ordinary Course of Business) of the
Company, or any of the capital stock or other equity interest in the Company, or
any merger, consolidation, business combination or similar transaction involving
the Company; (ii) sell, transfer, convey or encumber or agree to sell, transfer,
convey or encumber any Securities, capital stock or other interest in the
Company to any person (other than Buyer or Buyer's affiliates); or (iii) vote
for, agree to vote for or grant any Person a proxy authorizing such Person to
vote for any merger, consolidation, business combination involving the Company
and any Person other than Buyer or Buyer's affiliates.
5.5 APPOINTMENT OF COMVEST.
(a) Each Seller acknowledges that this Agreement provides that ComVest
may act on behalf of the Sellers with respect to certain matters and hereby
irrevocably designates and appoints ComVest as the agent and representative of
such Seller with authority to act on such Seller's behalf with respect to any
matter as to which this Agreement provides that ComVest may act on behalf of
Sellers ("Delegated Actions") and hereby acknowledges that ComVest shall be the
only Person authorized to take any Delegated Action on behalf of such Seller.
Each Seller shall be bound by any and all actions taken by ComVest on such
Seller's behalf.
(b) Buyer shall be entitled to rely upon any communication or writings
given or executed by ComVest with respect to Delegated Actions as binding all
Sellers and their successors, assigns, heirs and spouses and will not be bound
or put on notice by any communications from any Seller.
(c) Without limiting the foregoing, each Seller: (i) agrees that (A)
all notices to be sent to Sellers pursuant to this Agreement may be addressed to
ComVest, (B) any notice so sent shall be deemed notice to all Sellers and (C)
Sellers hereby consent and agree that ComVest is authorized to accept notice on
behalf of Sellers; and (ii) each Seller hereby irrevocably appoints ComVest as
the lawful agent of such Seller and its successor to receive and forward on
their behalf service of all necessary processes
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(including service in the manner provided in Section 10.12) in any action, suit,
or proceeding arising under or in any way relating to this Agreement , any of
the transactions contemplated hereby or any of their subject matter and that may
be brought against any Seller or its successor in any court (including federal
courts), and such service of process or notice received thereof by ComVest will
have the same force and effect as if served upon such Seller or its successor.
5.6 BEST EFFORTS. Between the date of this Agreement and the Closing Date,
Sellers shall use their best efforts to cause the conditions in Section 7 to be
satisfied.
5.7 EXPENSES. Whether or not the transactions contemplated by this
Agreement are consummated, Sellers shall be responsible for and shall pay, all
of their costs and expenses in connection with this Agreement or the
transactions contemplated hereby, including investment bankers', attorneys',
accountants' and consultants' fees and expenses and travel expenses. None of
such expenses shall be charged to or paid by the Company. Before the Closing,
Sellers shall reimburse the Company for any of their expenses that have been
charged to or paid by the Company.
6. COVENANTS OF THE BUYER
6.1 EXPENSES. Whether or not the transactions contemplated by this
Agreement are consummated, Buyer shall be responsible for and shall pay or cause
an affiliate to pay all costs and expenses incurred by Buyer or its affiliates
in connection with this Agreement and the transactions contemplated hereby,
including investment bankers', attorneys', accountants' and consultants' fees
and travel expenses. At and subject to the Closing, Buyer shall pay a
transaction fee in the amount of $290,829 to Commonwealth Associates, L.P.
6.2 BEST EFFORTS. Between the date of this Agreement and the Closing Date,
Buyer shall use its best efforts to cause the conditions in Section 8 to be
satisfied.
7. CONDITIONS TO OBLIGATION OF BUYER
The obligation of Buyer to purchase the Securities is subject to the
satisfaction on or before the Closing of each of the following conditions, any
of which may be waived by Buyer, in whole or in part in its sole discretion:
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7.1 REPRESENTATIONS AND WARRANTIES OF SELLERS. All representations and
warranties of Sellers contained in this Agreement and the information in the
Schedules shall be true and correct in all material respects on the Closing Date
with the same effect as though made at such date without giving effect to any
supplement to the Disclosure Schedule.
7.2 COVENANTS OF SELLERS. Sellers shall have performed in all material
respects all covenants required by this Agreement to be performed by them on or
before the Closing.
7.3 DELIVERY OF DOCUMENTS. Buyer shall have received the consents of all
Persons that are identified or required to be identified in Schedule 3.4.
7.4 RESIGNATIONS. Buyer shall have received written resignations,
effective as of the Closing, from such officers and directors of the Company as
Buyer shall have requested in writing at least three business days before the
Closing.
7.5 INJUNCTIONS. None of Buyer, Sellers, the Company or any of their
affiliates shall be subject to any order, decree or injunction of any court or
agency of competent jurisdiction which prevents or delays the consummation of
any of the transactions contemplated by this Agreement.
7.6 PURCHASE OF NOTES. Sellers shall have tendered the Notes pursuant to
the terms of the Note Purchase Agreement.
7.7 TERMINATION OF ADVISORY AGREEMENT. The Company and Commonwealth
Associates, L.P. shall have terminated the advisory agreement between them dated
May 10, 2002 and shall have no further obligations to each other thereunder,
provided that the Company shall continue to pay the monthly fee to Commonwealth
Associates, L.P. pursuant to Section 2(a) thereof until the Company terminates
payment of such fee at any time after November 30, 2002 on 30 days' written
notice.
7.8 ABSENCE OF CERTAIN CHANGES. Since June 30, 2002:
(a) There shall have been no change adverse to the Company in its
relationships with licensors, licensees, suppliers, customers, creditors,
landlords and others having business relations with the Company;
(b) Except as otherwise expressly provided in this Agreement, without
the prior written consent of Buyer, the Company shall not have:
(1) amended any of its Organizational Documents;
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(2) issued, sold, granted or agreed to issue, sell or grant any
shares, capital stock or equity interests of any class or any options, warrants,
rights to purchase any shares, capital stock or equity interests of any class or
any securities convertible into shares, capital stock or equity interests of any
class;
(3) assumed, guaranteed, endorsed or otherwise become liable or
responsible (whether directly, contingently or otherwise) for the obligations of
any other Person or created, incurred or assumed any short-term debt or
long-term debt;
(4) except as disclosed in Schedule 7.8, paid or agreed to pay any
bonuses or made or agreed to make any increase in the rate of wages, salaries,
or other remuneration of any of its directors, officers or employees or paid or
agreed to pay any pension, retirement allowance or other employee benefit to any
of its directors, officers or employees, whether past or present;
(5) sold, transferred, mortgaged, or otherwise disposed of, or
encumbered, or agreed to sell, transfer, mortgage or otherwise dispose of or
encumber, any properties, tangible or intangible, real, personal or mixed,
except sales of inventory in the Ordinary Course of Business and encumbrances of
after acquired assets under the Company's existing credit facilities;
(6) entered into or modified in any material respect any Contract
or any other material obligation, agreement, commitment or contract, or made any
material additions to its property or purchases of assets (other than as
provided for in contract commitments existing at the date of this Agreement),
except agreements, commitments or contracts for the purchase and sale of goods
and services in the Ordinary Course of Business and not in excess of current
requirements;
(7) acquired or agreed to acquire any interest in any corporation,
partnership, firm, limited liability company, association, business
organization, enterprise or other entity, whether by acquisition of stock or
other ownership interests, asset acquisition, merger, consolidation or other
business combination;
(8) made any payments of principal or interest on any debt other
than as required by the terms thereof or discharged or satisfied any material
lien or other encumbrance or paid any material liability or obligation whether
fixed or contingent (except in the Ordinary Course of Business);
(9) extended or deferred payment of the Company's accounts payable
in a manner inconsistent with the Company's past practices;
(10) declared or paid any dividends or made any distributions,
either in cash or in kind, or repurchased any of its equity securities or other
equity interests; or
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(11) changed any method of accounting or made any new tax election
or any change in any tax election; and
(c) There shall not have been any change in the condition (financial
or other), net worth, assets, liabilities, prospects, business, properties or
results of operations of the Company (other than changes made or incurred in the
Ordinary Course of Business which are not material or adverse, either
individually or in the aggregate), and the Company shall not have:
(1) incurred any obligation or liability (except for obligations
incurred in the Ordinary Course of Business which are not material or adverse,
either individually or in the aggregate);
(2) waived or released any material rights;
(3) made any single capital expenditure or improvement in excess
of $25,000, or $50,000 in the aggregate, or entered into any commitment
therefor; or
(4) suffered any damage, destruction or loss (whether or not
covered by insurance) adversely affecting the assets, business or prospects of
the Company.
7.9 CERTIFICATES. Buyer shall have received such certificates of officers
of the Company or others and such other documents to evidence fulfillment of the
conditions set forth in this Section 7 as Buyer may reasonably request.
8. CONDITIONS TO OBLIGATIONS OF SELLERS
The obligations of Sellers to sell the Securities to Buyer are subject to
satisfaction on or before the Closing of the following conditions, any of which
may be waived by ComVest on behalf of all of the Sellers, in whole or in part in
the sole discretion of ComVest:
8.1 REPRESENTATIONS AND WARRANTIES OF BUYER. All representations and
warranties of Buyer contained in this Agreement shall be true in all material
respects on the Closing Date with the same effect as though made at such date.
8.2 COVENANTS OF BUYER. Buyer shall have performed in all material
respects all of its covenants required by this Agreement to be performed by
Buyer on or before the Closing.
8.3 INJUNCTIONS. None of Buyer, Sellers, the Company or any of their
affiliates shall be subject to any order, decree or injunction of a court or
agency of competent
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jurisdiction which prevents or delays the consummation of any of the
transactions contemplated by this Agreement.
8.4 PURCHASE OF NOTES. Buyer shall have purchased the Notes pursuant to
the terms of the Note Purchase Agreement.
8.5 CERTIFICATES. Buyer shall have furnished Sellers with certificates of
its officers or others and such other documents to evidence fulfillment of the
conditions set forth in this Section 8 as ComVest may reasonably request.
9. TERMINATION
9.1 TERMINATION EVENTS. This Agreement may be terminated by written notice
given before the Closing:
(a) by Buyer, if a material breach of any provision of this Agreement
has been committed by any Seller and such breach has not been waived or, if such
breach is curable, cured within seven days of written notice of such breach;
(b) by ComVest acting on behalf of each of the Sellers, if a material
breach of any provision of this Agreement has been committed by Buyer and such
breach has not been waived or, if such breach is curable, cured within seven
days of written notice of such breach;
(c) by mutual consent of Buyer and ComVest acting on behalf of each of
the Sellers;
(d) by Buyer, if the Closing has not occurred on or before November 1,
2002; or
(e) by ComVest acting on behalf of each of the Sellers, if the Closing
has not occurred on or before November 1, 2002
9.2 EFFECT OF TERMINATION. Buyer's or ComVest's right of termination under
Section 9.1 is in addition to any other rights any party may have under this
Agreement or otherwise, and the exercise of a right of termination will not be
an election of remedies. If this Agreement is terminated pursuant to Section
9.1, all further obligations of the parties under this Agreement will terminate,
except that the obligations in Sections 5.3, 5.5, 5.7, 6.1, 9.2, and 10, will
survive. However, if this Agreement is terminated by a party because of a breach
of the Agreement by another party or because one or more of the conditions to
the terminating party's obligations under this Agreement is not satisfied as a
result of another party's failure to comply with its obligations under this
Agreement,
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the terminating party's right to pursue all legal remedies will survive such
termination unimpaired.
10. MISCELLANEOUS
10.1 HEADINGS. Section and other headings contained in this Agreement are
included solely for convenience and reference and shall not affect in any way
the meaning or interpretation of this Agreement.
10.2 GOVERNING LAW. The validity, construction and interpretation of this
Agreement, all disputes among the parties arising out of this Agreement or the
transactions contemplated hereby, and all matters related to but not covered by
this Agreement shall be governed by the law of the State of New York.
10.3 ENTIRE AGREEMENT. This Agreement, including any exhibits, schedules
and the certificates delivered and to be delivered pursuant to this Agreement
(which are incorporated into this Agreement by this reference and are made a
part hereof) embody the entire agreement and understanding between and among the
parties pertaining to their subject matter, and supersede all prior and
contemporaneous agreements, understandings, negotiations, representations and
discussions, whether written or oral, pertaining to their subject matter.
10.4 ASSIGNMENT. Neither this Agreement nor any rights or obligations under
this Agreement may be assigned, hypothecated or otherwise transferred by any
party without the prior written consent of ComVest on behalf of all of the
Sellers, for an assignment by Buyer, or Buyer, for any assignment by Sellers,
provided that Buyer may assign this Agreement or any rights under this Agreement
to another entity that is controlled by, controls or is under common control
with Buyer if Buyer remains obligated after the date of such assignment to
guarantee all payment and performance obligations of the assignee hereunder. Any
assignment by a party of rights under this Agreement that does not conform
strictly with the provisions of this Section 10.4 shall be null and void and
shall not vest in any assignee any rights as against a non-assigning party.
10.5 BINDING EFFECT. The provisions of this Agreement shall bind and inure
to the benefit of the parties and their respective successors and permitted
assigns.
10.6 PARTIES IN INTEREST. Nothing in this Agreement, expressed or implied,
is intended to confer on any Person other than the parties to this Agreement,
any right or remedy under or by reason of this Agreement.
10.7 NOTICES. Any notice or communication required or permitted by this
Agreement shall be deemed sufficiently given if in writing and, if delivered
personally, when it is delivered or, if delivered in another manner, the earlier
of when it is actually
14
received by the Person to which it is directed, or when the period set forth
below expires (whether or not it is actually received):
(a) if transmitted by telecopier, telex or facsimile transmission
("fax"), 24 hours after (i) transmission to the Person's fax number set forth
below, with the Person's name and address set forth below clearly shown on the
page first transmitted, and (ii) receipt by the transmitting Person of written
confirmation of successful transmission, which confirmation may be produced by
the transmitting Person's equipment;
(b) if deposited in the United States Mail, postage prepaid, and
addressed to the Person to receive it as set forth below 48 hours after such
deposit; or
(c) if sent by Federal Express, or a similar delivery service in
general usage for delivery to the address of the Person to receive it as set
forth below, 24 hours after the delivery time promised by the delivery service:
If to Buyer:
ICU Medical, Inc.
000 Xxxxx Xxxxxxxx
Xxx Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. X'Xxxxx
Fax No. (000) 000-0000
With a copy to:
Xxxxxx Xxxxxx White & XxXxxxxxx LLP
000 X. Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Fax No. (000) 000-0000
If to the Sellers:
ComVest Venture Partners, L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Fax No. (000) 000-0000
15
With a copy to:
Xxxx Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No. (000) 000-0000
or to such other address as a Person to whom notice is to be given has furnished
to the other Persons listed above in the manner provided above.
10.8 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together will constitute a single agreement.
10.9 AMENDMENT AND WAIVER. This Agreement may not be amended except by an
instrument in writing signed on behalf of all parties. At any time before the
Closing: (i) Buyer may extend the time for the performance of any of the
obligations or other acts of Sellers or waive compliance with any of the
agreements of Sellers or with any conditions to its own obligations; (ii)
ComVest acting on behalf of the Sellers may extend the time for the performance
of any of the obligations or other acts of the Buyer or waive compliance with
any of the agreements of the Buyer or with any conditions to Sellers'
obligations. Any agreement on the part of a party to any such extension or
waiver shall be valid only if set forth in an instrument in writing signed on
behalf of such party. No waiver of any provision of this Agreement shall be
deemed or shall constitute a waiver of any other provisions (whether or not
similar), nor shall such waiver constitute a continuing waiver unless otherwise
expressly provided, nor shall any forbearance by a party to seek a remedy for
noncompliance or breach by another party be construed as a waiver of any right
or remedy with respect to such noncompliance or breach.
10.10 SEVERABLE PROVISIONS. If any provision of this Agreement is
determined to be illegal or otherwise unenforceable, in whole or in part, the
remaining provisions, and any partially enforceable provisions to the extent
enforceable, shall nevertheless be binding and enforceable.
10.11 RULES OF CONSTRUCTION. This Agreement has been negotiated by the
parties and is to be interpreted according to its fair meaning as if the parties
had prepared it together and not strictly for or against any party. References
in this Agreement to Sections and Schedules are to Sections and Schedules of
this Agreement unless expressly indicated otherwise. At each place in this
Agreement where the context so requires, the masculine, feminine or neuter
gender includes the others and the singular or plural number includes the other.
"Including" means "including without limitation."
16
10.12 NON-EXCLUSIVE CONSENT TO JURISDICTION. Each of the parties hereto:
(i) consents to submit itself to the personal jurisdiction of the United States
District Court for the Southern District of New York or the courts of the State
of New York located in the County of New York with respect to any and all
disputes arising out of: (A) this Agreement, including the validity construction
and interpretation hereof and thereof and the rights and remedies of the parties
hereunder and thereunder; (B) any of the transactions contemplated by this
Agreement; and (C) any matters related to but not covered hereby, in each case
to the extent such court would have subject matter jurisdiction with respect to
such dispute; (ii) agrees that it will not attempt to deny or defeat such
personal jurisdiction or venue by motion or other request for leave from any
such court; (iii) agrees that service of process in any such suit, action or
proceeding may be effected by notice by any of the means provided in Section
10.7 and, in the case of service of process on any Seller, by notice to ComVest;
and (iv) agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law.
10.13 WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW
THAT CANNOT BE WAIVED, EACH PARTY HEREBY WAIVES, AND COVENANTS THAT IT WILL NOT
ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY
JURY IN ANY FORUM WITH RESPECT TO ANY ISSUE, CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF,
WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER SOUNDING IN TORT OR
CONTRACT OR OTHERWISE.
17
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
BUYER: ICU Medical, Inc.
By /s/Xxxxxx Xxxxx
--------------------------------
Title Chief Executive Officer
----------------------------
SELLERS: ComVest Venture Partners, L.P.
By /s/ Xxxxxx X. Xxxxx
--------------------------------
Title Chief Financial Officer
----------------------------
/s/ Xxxxxx Xxxxxx
----------------------------------
Xxxxxx Xxxxxx
RMC Capital Partners
By /s/ Xxxxxx Xxxxxx
--------------------------------
Title Chairman
----------------------------
Xxxx and Xxxxxxxxx Xxxxxxxxx
/s/ Xxxx Xxxxxxxxx
----------------------------------
Xxxx Xxxxxxxxx
/s/ Xxxxxxxxx Xxxxxxxxx
----------------------------------
Xxxxxxxxx Xxxxxxxxx
18
/s/ Xxxxx Xxxx, Trustee
----------------------------------
Xxxxx Xxxxx Trust TTEE Xxxxx Xxxx
Trust
Harvard Investments, Inc.
By /s/ Xxxxx Xxxxxxxxx
--------------------------------
Title President
----------------------------
/s/ Xxxxxxx Xxxxxx
----------------------------------
Xxxxxxx Xxxxxx
RFJM Partners, LLC
By /s/ Xxxx Xxxxxxxxx
--------------------------------
Title Managing Member
----------------------------
/s/ Xxxxxx Xxx
----------------------------------
Xxxxxx Xxx
Chesed Congregation of America
By /s/ Xxxxx Xxxxxx
--------------------------------
Title President
----------------------------
Xxxx Ventures, LLC
By /s/ Xxxxxx Xxxx
--------------------------------
Title Manager
----------------------------
19
Lay Ventures
By /s/ X. Xxxxx Lay
--------------------------------
Title General Partner
----------------------------
20
SCHEDULE 2.1 - SECURITIES OWNED
COMMON SHARES WARRANTS PURCHASE
SELLER'S NAME OWNED OWNED PRICE
------------- ----- ----- -----
ComVest Venture Partners, L.P. 4,172,282 557,164 $ 2,756,000.75
Xxxxxx Xxxxxx 1,312,038 175,208 $ 866,666.67
RMC Capital LLC 1,312,038 175,208 $ 866,666.67
Xxxx & Xxxxxxxxx Xxxxxxxxx 393,611 52,562 $ 259,999.74
Xxxxx Xxxxx Trust TTEE Xxxxx
Xxxx Trust 393,611 52,562 $ 259,999.74
Harvard Investments, Inc. 131,204 17,521 $ 86,666.80
Xxxxxx, Xxxxxxx 131,204 17,521 $ 86,666.80
RFJM Partners, LLC 275,528 36,794 $ 182,000.01
Xxxxxx Xxx 393,611 52,562 $ 259,999.74
Chesed Congregation of America 393,611 52,562 $ 259,999.74
Xxxx Ventures, LLC 721,621 96,364 $ 476,666.73
Lay Ventures LP 65,602 8,760 $ 43,333.40
------------------------------------------------
TOTAL 9,695,961 1,294,788 $ 6,404,666.79
================================================
SCHEDULE 3.3 - DUE EXECUTION; CONSENTS
None
SCHEDULE 3.4 - BREACHES OR VIOLATIONS
None
SCHEDULE 3.5 - OTHER SECURITIES AGREEMENTS
1. The Sellers purchased the Securities pursuant to a Stock Purchase Agreement
dated May 24, 2002, among Sellers, Appaloosa Investment Limited Partnership
I and Palomino Fund Ltd.
2. The Sellers purchased $2,500,000 principal amount of 7% Non-Convertible
Promissory Notes and warrants to purchase an aggregate of 1,250,000 shares
of Bio-Plexus common stock pursuant to a Securities Purchase Agreement
dated June 18, 2002, among Bio-Plexus and the Sellers. The Sellers were
issed notes and warrants representing such securities.
SCHEDULE 3.6 - FEES OR COMMISSIONS
None.
SCHEDULE 3.8 - OWNERSHIP OF OTHER SECURITIES
1. The Sellers own the notes and warrants referred to in Schedule 3.6.
2. Commonwealth Associates, L.P., which may be deemed an affiliate of ComVest
Venture Partners, L.P., owns warrants to purchase 1,000,000 shares of
Bio-Plexus common stock, having an exercise price of $1.00 per share.
SCHEDULE 7.8 - ABSENCE OF CERTAIN CHANGES
1. 7.8 (c)(3). Bio-Plexus has made certain capital expenditures in excess of
$25,000, which have been identified to Buyer in the company's capital
expenditure budget.
2. 7.8(c). Bio-Plexus suffered a loss for the quarter ended September 30,
2002, which quarterly results have been presented to Buyer.
3. 7.8(b)(6). Bio-Plexus entered into a licensing agreement with TFX in August
2002.
4. 7.8(b)(4). Bio-Plexus approved certain salary increases and paid a bonus to
Xxxxx Xxxxxxx, which information has been previously provided to Buyer.
