EXHIBIT 3
NOTE PURCHASE AGREEMENT
THIS NOTE 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 "Note 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 sold Senior Subordinated 7% Non-Convertible Promissory Notes of the Company
in the aggregate principal amount of $2,499,999.00 (the "Notes").
B. Each Seller holds the amount of principal of the Notes listed on
Schedule 2.1 opposite each Seller's name.
X. Xxxxxxx desire to sell, and Buyer desires to purchase, all of the
Notes, subject to the terms and conditions set forth in this Agreement.
D. Under the terms of a Securities Purchase Agreement of the same date as
this Agreement (the "Securities Purchase Agreement") between Buyer and Persons
listed under "Sellers" on the signature pages of the Securities Purchase
Agreement ("Securities Sellers"), Buyer has agreed to purchase, and Securities
Sellers have agreed to sell, 9,695,961 shares of common stock, $0.001 par value
(the "Common Stock"), of the Company and warrants to purchase 1,294,788 shares
of the Company's Common Stock having an initial exercise price (subject to
adjustment) of $2.28 per share, for an aggregate purchase price of $6,404,666.80
(the Common Stock and warrants being referred to as the "Securities").
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:
"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 D.
"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 5.4.
"Notes" -- as defined in Recital A.
"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 D.
"Securities Act"-- the Securities Act of 1933, as amended.
"Securities Purchase Agreement" -- as defined in Recital D.
"Securities Sellers" -- as defined in Recital D.
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"Sellers" and "Seller" -- as defined in the Preamble.
2. PURCHASE; CLOSING
2.1 PURCHASE OF NOTES. 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 Notes listed opposite
Seller's name on Schedule 2.1 to Buyer, and Buyer shall purchase all the Notes
from Sellers, provided, however, that Buyer shall not be obligated to purchase
any Notes unless all of the Notes 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
Notes shall equal $2,499,999.00, and the purchase price to be paid at the
Closing to each Seller for such Seller's Notes 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.
2.3 CLOSING. The purchase and sale of the Notes (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
Notes pursuant to Section 2 in the manner provided therein.
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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 Notes 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 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. Neither the execution and delivery by any
Seller of this Agreement, nor 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 Notes 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 Notes 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, 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 Notes; 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.
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3.5 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.
3.6 TITLE TO NOTES. Each Seller is the sole legal and Beneficial Owner and
holder of all of the Notes listed opposite such Seller's name on Schedule 2.1,
and Buyer will acquire good and marketable title to all the Notes listed
opposite such Seller's name on Schedule 2.1, free and clear of any security,
interest, claim, lien or encumbrance.
3.7 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.
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
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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 Notes 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. 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 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 (if any).
5.2 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 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.
5.3 NO ENCUMBRANCES. Until such time, if any, as this Agreement is
terminated pursuant to Section 9, no Seller shall sell, transfer, convey or
encumber or agree to sell, transfer, convey or encumber any Notes to any person
(other than Buyer or Buyer's affiliates).
5.4 APPOINTMENT OF COMVEST.
(a) Each Seller acknowledges that this Agreement provides that ComVest
may act on behalf of Sellers with respect to certain matters and hereby
irrevocably
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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 (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.
5.5 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.
5.6 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 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.
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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 Notes 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:
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 (if
any).
7.4 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.
7.5 PURCHASE OF SECURITIES. Securities Sellers shall have sold the
Securities to Buyer pursuant to the Securities Purchase Agreement.
7.6 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 Notes 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:
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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 jurisdiction which prevents or delays the consummation of
any of the transactions contemplated by this Agreement.
8.4 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
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parties under this Agreement will terminate, except that the obligations in
Sections 5.2, 5.4, 5.6, 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, 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.
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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 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
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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
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 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
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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."
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; (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.
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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
----------------------------
NOTE 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
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/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
----------------------------
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Lay Ventures
By /s/ X. Xxxxx Lay
--------------------------------
Title General Partner
----------------------------
/s/ Xxxxx Xxxxxx
----------------------------------
Xxxxx Xxxxxx
/s/ Xxxxx Xxxxxxx
----------------------------------
Xxxxx Xxxxxxx
/s/ Xxxx Xxxx
----------------------------------
Xxxx Xxxx
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SCHEDULE 2.1 - NOTES OWNED
PRINCIPAL AMOUNT OF NOTES
SELLER'S NAME OWNED/PURCHASE PRICE
------------- ------------------------------
ComVest Venture Partners, L.P. $1,060,000
Xxxxxx Xxxxxx $ 333,333
RMC Capital LLC $ 333,333
Xxxx & Xxxxxxxxx Xxxxxxxxx $ 100,000
Xxxxx Xxxxx Trust TTEE Xxxxx
Xxxx Trust $ 100,000
Harvard Investments, Inc. $ 33,333
Xxxxxxx Xxxxxx $ 33,333
RFJM Partners, LLC $ 70,000
Xxxxxx Xxx $ 100,000
Chesed Congregation of America $ 100,000
Xxxx Ventures, LLC $ 183,333
Lay Ventures LP $ 16,667
Xxxxx Xxxxxx $ 16,667
Xxxxx Xxxxxxx $ 3,333
Xxxx Xxxx $ 16,667
----------
TOTAL $2,499,999
==========
SCHEDULE 3.3 - DUE EXECUTION, ETC.
None.
SCHEDULE 3.4 - NO BREACH OR VIOLATION; CONSENTS
None.
SCHEDULE 3.5 - FEES OR COMMISSIONS
None.
