Exhibit 10.9
DISCLOSURE SCHEDULE
-------------------
This Disclosure Schedule, dated as of August 31, 2005 ( the
"Schedule"), is made and given pursuant to Article III and Article IV of the
Securities Purchase Agreement dated as of August 31, 2005 by and among Intraop
Medical Corporation and the purchasers named therein (the "Agreement"). Any
terms defined in the Agreement shall have the same meaning when used in this
Disclosure Schedule as when used in the Agreement unless the context otherwise
requires.
Notwithstanding anything to the contrary contained in this Schedule or
in the Agreement, the information and disclosures contained in each section of
this Schedule (including any schedules attached to this Schedule) shall be
deemed to be disclosed and incorporated by reference in each of the sections of
this Schedule as though fully set forth in such other sections (whether or not
specific cross-references are made) where it is reasonably apparent on the face
of the disclosure (without regard to the contents of any document referred to in
such disclosure and the contents of which are not expressly described or facts
and circumstances not expressly described or implied in such disclosure) that it
is applicable to such other sections, and shall be deemed to qualify and limit
all representations, warranties and covenants of the Company contained in the
Agreement.
Section 3.1(a)(b)
The Company's subsidiaries are:
1. Intraop Medical Services, Inc., a Delaware corporation, a wholly owned
subsidiary. The company is in good standing in Delaware, but is not in
good standing in California due to failure to pay California franchise
taxes. The Company is the sole stockholder.
2. IMS Louisville, LLC a Delaware limited liability corporation, of which
the Company is the sole member and manager. IMS Louisville is inactive
in Delaware, pending dissolution.
Section 3.1(d)(ii)
Unless certain waivers or consents are given on or prior to the Closing Date,
the execution, delivery, and performance of the Transaction Documents would
conflict with or constitute a default under:
1. Loan Agreement and/or related agreements of March 22, 2004 between the
Company, as successor to Intraop Medical, Inc., and Samir Financial, L.L.C., a
Illinois limited liability company for $3,000,000.00 of outstanding principal
(the "Samir Debt"). Interest on this note, at 21.00% per annum, has been prepaid
through September 22, 2005.
1
2. Section 5(d) of the Note Purchase Agreement and/or related agreements dated
March 1, 2002 between the Company, as successor to Intraop Medical, Inc., and
various note holders totaling approximately $480,000.00 of outstanding principal
plus accrued interest at 9.00% per annum accruing from April 1, 2005 (the "PN
Debt").
Section 3.1(g)
1. The capitalization of the Company consists of 100,000,000 shares of
authorized common stock, $0.001 par value, of which 17,733,028 shares are
outstanding. Included in the outstanding shares are 2,400,000 shares related to
the Samir Debt which will be cancelled upon repayment of that debt. No other
class of stock is authorized or outstanding.
2. Holders of the PN Debt have the right to convert their notes to shares of the
Company's common stock at any time and at their sole discretion at a conversion
price of $1.25 per share. However, subject to the close, note holders of PN Debt
shown on Exhibit 4.9(b) have agreed to convert their outstanding principal to
Company common stock at $0.70 per share and their outstanding interest and the
principal and interest of the remaining note holders shown on Schedule 4.9(f)
will be repaid.
3. Holders of the certain promissory notes executed pursuant to its Convertible
Promissory Note Program in the original principal amount of $1,370,192.04 plus
accrued interest, at 8.00% per annum, of $105,433 as of July 31, 2005 (the
"Bridge Debt"), which were due in full at March 31, 2005, but remain outstanding
have the right to convert their notes to shares of the Company's common stock at
any time and at their sole discretion at a conversion price of $1.50 per share.
However, subject to the close, Bridge Debt note holders shown on Exhibit 4.9(d)
have agreed to convert their outstanding principal and interest to shares of
Company common stock at $0.70 per share while the notes of the remaining note
holders shown on Exhibit 4.9(g) will be repaid.
4. The Company has outstanding options exercisable 1,127,500 for shares of the
Company's common stock at prices ranging from $0.10 per share to $1.375 per
share.
5. The Company has outstanding warrants exercisable for 1,448,174 shares of the
Company's common stock at exercise prices ranging from $0.52 per share to $2.50
per share.
6. The Company received notices from shareholders representing all 97,000 shares
of common stock who had previously voted against the Merger that they wished to
redeem their shares in accordance with certain dissenter's rights provisions.
The estimated redemption value is $121,250.
7. The Company is obligated to issue certain warrants Stonegate Securities,
Inc., a Texas corporation ("Stonegate"), as described in Section 3.1(s) below.
2
Section 3.1(i)(ii)
On August 22, 2005 and August 26, 2005, the Company became obligated under notes
in the principal amount of $187,500 from ▇▇▇▇▇▇ ▇. ▇▇▇▇, its CEO and Chairman.
The notes are unsecured and bear interest at 9% per annum and are to be repaid
when the finances of the Company permit and have not been disclosed in filings
with the SEC.
Section 3.1(j)
At June 30, 2005, the Company owed Siemens Medical Solutions, Oncology Care
Systems Division, a division of Siemens Medical Solutions USA, Inc.
(collectively "Siemens") $152,258 (after including interest) (the "Siemens
Debt") due to the termination of the Company's Manufacturing and Distribution
agreement with Siemens in October 2002. In December 2004, the Company and
Siemens reached a settlement agreement whereby the Company signed an unsecured
note in the amount of $171,185 in full satisfaction of all outstanding amounts
due Siemens. The note was due in full on December 31, 2004. The Company did not
make the payment due on December 31, 2004, but did, however, pay all accrued
interest plus principal in the amount of $21,185 in May 2005.
On June 10, 2005, Siemens served the Company with a summons and complaint for
$144,702.51 outstanding and due under such note plus costs incurred in
connection with enforcing such note.
On July 5, 2005, the Company made principal payments aggregating $47,742, plus
accrued interest. On July 14, 2005, Siemens and the Company reached a settlement
with respect to the balance of approximately $102,258 owed by the Company to
Siemens under the note. The parties agreed that the Company will repay such note
in two installments, $50,000 by July 30, 2005 and the balance of the outstanding
principal and accrued interest by August 31, 2005. In addition, the Company
entered into a stipulation of entry of judgment for such amount plus costs and
Siemens agreed to forbear enforcing such judgment so long as the Company makes
the agreed payments. The Company did not make the required payment on July 31,
2005.
Section 3.1(l)
The Company is in payment default under (i) the Siemens Debt, (ii) the PN Debt
and (iii) the Bridge Debt.
Section 3.1(n)
1. All of the assets of the Company are subject to a lien and security interest
which secures the Samir Debt.
3
2. Pursuant to a Factoring Agreement dated February 24, 2005 ("Factoring
Agreement") in the principal amount of $1,060,000, the Company has pledged its
right, title and interest in its Mobetron S/N 13 and all contracts or proceeds
related to the unit, including its contemplated contract for sale of the unit to
the University of Heidleburg, to E.U. Capital Venture, Inc., a Nevada
corporation ("EU Venture").
3. In October 2004, the Company entered into an inventory repurchase agreement
with a EU Venture (the "First EU Repurchase Agreement"). Under the terms of the
agreement, EU Venture placed an order for Mobetron S/N 15 (the "Financed
Mobetron") with CDS Engineering LLC ("CDS") and gave a deposit to CDS of
$525,000 towards the purchase of that Mobetron. In January 2005, the Company
entered into an inventory repurchase agreement with EU Venture (the "Second EU
Repurchase Agreement"). Under the terms of the agreement, the EU Venture placed
an order for Mobetron S/N 14 (the "Second Financed Mobetron") with CDS and gave
a deposit to CDS of $540,000 towards the purchase of that Mobetron. In April
2005, the Company entered into an inventory repurchase agreement with EU Venture
(the "Third EU Repurchase Agreement"). Under the terms of the agreement, the EU
Venture placed an order for a Mobetron S/N 15 (the "Third Financed Mobetron")
with the Company and gave a deposit to the Company of $562,000 towards the
purchase of that Mobetron. The Financed Mobetron, the Second Financed Mobetron
and the Third Financed Mobetron are subject to a lien by EU Venture.
4. On August 16, 2005, the Company entered in to an Inventory/Factoring
Agreement with E.U.C. Holding and EU Venture (the "EU Line"). The Company
anticipates that inventory and contracts currently financed under the Factoring
Agreement, the First EU Repurchase Agreement, the Second EU Repurchase Agreement
and the Third EU Repurchase Agreement will be refinanced under the EU Line and
be subject to liens under EU Line.
Section 3.1(p)
The Company's directors and officer's insurance coverage in the amount of
$3,000,000 is less than the anticipated Subscription Amount.
Section 3.1(q)
The Company has entered into certain loan agreements with its officers and
directors as described in Section 3.1(i)(ii) above.
Section 3.1(r)
The Company is in material compliance with the disclosure controls and
procedures provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002. The internal accounting
controls provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 are not yet applicable to
the Company and the Company may not be in material with all of such provisions.
However, the Company is working to insure that it is in compliance with such
provisions when they become applicable to the Company.
4
Section 3.1(s)
The Company has entered into Placement Agency Agreement dated May 17, 2005
("Agency Agreement") with Stonegate under which the consummation of the
transactions contemplated by the Transaction Documents are subject to certain
fees and other compensation being paid to Stonegate.
Specifically, Stonegate is entitled under the agreement to receive, at closing
of the contemplated transactions:(i) proceeds equal 7% of the Subscription
Amount (the "Fee Amount"), (ii) a number of warrants equal to the Fee Amount
divided by initial Conversion Price and which warrant shall be substantially
similar in the form of Exhibit 3.1(s) and (iii) reimbursement of reasonable
out-of-pocket expenses of Stonegate up to an aggregate maximum of $20,000.
Section 3.1(v)
The Company has not granted registration rights to any parties other than those
to be included on the Company's first registration as set forth on Schedule 6(b)
to the Registration Rights Agreement.
Section 3.1(y)
The Company has disclosed to Stonegate, Bushido Capital Master Fund, L.P,
Regenmacher Holdings, Ltd. and [Gamma] information that constitutes or might
constitute material, nonpublic information pursuant to nondisclosure agreements
executed by such Purchasers, including but not limited to, detailed sales and
manufacturing projections and forecasts, detailed financial projections, lists
of holders and their holdings of the Company's stock, warrants, options, and
debt and accounts payable, and agreements pursuant to those holdings. Any such
information that is or might constitute material nonpublic information about the
Company will not be material or will be publicly available on or prior to such
date that the Company files its Form 10-KSB for its fiscal year ending September
30, 2005.
Section 3.1(aa)
Except as disclosed in Section 3.1(h) above, the SEC Reports set forth all
outstanding secured and unsecured Indebtedness of the Company or any Subsidiary,
or for which the Company or any Subsidiary has commitments.
Section 3.1(ee)
The Company's certified public accountants at the time of the issuance of the
10-KSB for the year ended December 31, 2004 were ▇▇▇▇▇▇ and Associates CPA's,
Inc. Subsequent to the Merger, the Company retained Stonefield ▇▇▇▇▇▇▇▇▇, Inc.,
as its accountants.
5
Section 3.1(ff)
The Regenmacher Debenture and certain inventory financing will be senior to the
Debentures upon liquidation or dissolution.
Section 3.1(gg)
As of June 30, 2005 the Company has outstanding invoice from DLA ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ US LLP ("▇▇▇▇ ▇▇▇▇") totaling approximately $446,781 for legal
services. The Company has asked ▇▇▇▇ ▇▇▇▇ to adjust its ▇▇▇▇▇▇▇▇ to the Company
due to certain disagreements over the invoiced amounts.
Schedule 4.9
A. The following Indebtedness will remain outstanding following the close:
1. The Convertible Debenture.
2. The Senior Secured Debenture.
3. To the extent not refinanced under the EU Line: the Factoring
Agreement, the First EU Repurchase Agreement, the Second EU Repurchase
Agreement and the Third EU Repurchase Agreement.
4. The EU Line.
5. Promissory notes shown on Exhibit 4.9(a) and Exhibit 4.9(j).
B. The following Indebtedness will convert to Company common stock at $0.70 per
share contemporaneous with the close:
1. PN Debt principal shown on Exhibit 4.9(b).
2. Bridge Debt principal and approximate interest shown on Exhibits
4.9(c) and 4.9(d).
3. Shareholders advances from ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ From totaling
$438,000.
4. Promissory note principal and approximate interest shown on Exhibit
4.9(e).
C. The following Indebtedness will be repaid contemporaneous with or immediately
following the close:
1. Samir Debt principal of $2,500,000 including accrued interest and
fees.
2. PN Debt shown on Exhibit 4.9(f) and PN Debt approximate interest shown
on Exhibit 4.9(b).
3. Bridge Debt principal and approximate interest shown on Exhibit
4.9(g).
4. Promissory note principal and approximate interest shown on Exhibit
4.9(h). ▇. ▇▇▇▇▇ ▇▇▇▇ principal in the amount of $500,000 will be
converted to Convertible Debentures contemporaneous with the close.
E. Indebtedness on Exhibit 4.9(i) and (j) will be repaid from the close of any
subsequent funding.
G. The remainder of any proceeds may be used for any legitimate corporate
purpose including the satisfaction of outstanding trade payables.
6
Exhibit 4.9(a) -- Remain Outstanding Following Close
Individual Related Party Promissory Notes
Interest Calculation Dates
Calc Date 8/31/05
Last Paid 12/31/01
Int. Owed
Name Amount Int. Rate Note Date Deposit Date From Int Due
------------------------------------ ---------------- -------------- ------------- ------------- -------------- ---------------
▇▇▇▇▇▇ ▇. ▇▇▇▇ 642,754.60 9.00% 9/30/04 9/30/04 9/30/04 55,127.23
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ 164,670.75 9.00% 9/30/04 9/30/04 9/30/04 14,123.34
▇▇▇▇▇▇ ▇. ▇▇▇▇ 25,000.00 9.00% 6/9/05 6/9/05 6/9/05 513.05
▇▇▇▇▇▇ ▇. Goer 25,000.00 9.00% 7/22/05 7/22/05 7/22/05 246.58
▇▇▇▇▇▇ ▇. ▇▇▇▇ 60,000.00 9.00% 8/1/05 8/1/05 8/1/05 443.84
------------------------------------ ---------------- -------------- ------------- ------------- -------------- ---------------
Total 917,425.35 70,454.04
==================================== ================ ============== ============= ============= ============== ===============
7
Exhibit 4.9(b) -- Principal Converting to Common Stock
PN Debt -- 3rd Parties
Interest From 4/1/05
Interest Thru 8/31/05
Note/Repay Interest
Investor Amount Rate Date Through Days Interest Due
--------------------------- --------------- ----------- ---------------- --------------- --------------- ----------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ 15,000.00 9.00% 3/1/02 8/31/05 153 565.89
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 50,000.00 9.00% 3/6/02 8/31/05 153 1,886.30
▇▇▇▇▇ ▇▇▇▇▇▇ 70,000.00 9.00% 3/28/02 8/31/05 153 2,640.82
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 50,000.00 9.00% 5/30/02 8/31/05 153 1,886.30
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 50,000.00 9.00% 9/11/02 8/31/05 153 1,886.30
▇▇▇▇▇▇ ▇▇▇▇▇ 50,000.00 9.00% 12/19/02 8/31/05 153 1,886.30
▇. ▇▇▇ ▇▇▇▇ 50,000.00 9.00% 9/1/03 8/31/05 153 1,886.30
--------------------------- --------------- ----------- ---------------- --------------- --------------- ----------------
Total 335,000.00 12,638.22
=========================== =============== =========== ================ =============== =============== ================
8
Exhibit 4.9(c) -- Principal and Interest Converting to Common Stock
Bridge Notes -- Related Party
From 1/1/03
Through 8/31/05
Invest/Repay
Investor Amount Rate Note Date Date Days Interest Due
--------------------------------- ---------- ----------------- ----------------------- --------------- ----------------------
▇▇▇▇▇▇ ▇▇▇▇ 25,000.00 8.00% 1/12/04 1/12/04 598 3,276.71
▇▇▇▇▇▇ ▇▇▇▇ 75,000.00 8.00% 1/19/05 1/19/05 225 3,698.63
--------------------------------- ---------- ----------------- ----------------------- --------------- ----------------------
Total 100,000.00 6,975.34
================================= ========== ================= ======================= =============== ======================
9
Exhibit 4.9(d) -- Principal and Interest Converting to Common Stock
Bridge Notes -- 3rd Party
From 1/1/03
Through 8/31/05
Invest/Repay
Investor Amount Rate Note Date Date Days Interest Due
---------------------------------- ----------------- ---------- ------------- ------------------ ------------ -----------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 251,250.00 8.00% 10/21/03 10/21/03 681 37,501.64
▇▇▇▇ ▇. ▇▇▇▇ TR 5,000.00 8.00% 1/21/04 1/22/04 588 644.38
▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 25,000.00 8.00% 2/10/04 2/10/04 569 3,117.81
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 25,000.00 8.00% 2/12/04 2/12/04 567 3,106.85
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 10,000.00 8.00% 3/5/04 3/5/04 545 1,194.52
Chiyoda Technol 91,530.00 8.00% 4/15/04 4/15/04 504 10,110.93
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ 20,000.00 8.00% 4/20/04 4/20/04 499 2,187.40
Schonberg Research Corporation 63,918.33 8.00% 5/31/04 5/31/04 458 6,416.35
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 99,156.21 8.00% 6/9/04 6/9/04 449 9,758.06
KAS Associates 15,000.00 8.00% 10/1/04 10/1/04 335 1,101.37
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 282,500.00 8.00% 12/28/04 12/28/04 247 15,293.70
Freidrichs 1,837.50 8.00% 1/22/05 1/22/05 222 89.41
▇▇▇▇▇▇ ▇▇▇ 25,000.00 8.00% 2/10/05 2/10/05 203 1,112.33
Schonberg Research Corporation 90,000.00 8.00% 2/10/05 2/10/05 203 4,004.38
Schonberg Family Trust 25,000.00 8.00% 2/22/05 2/22/05 191 1,046.58
▇▇▇▇▇▇▇ ▇▇▇▇▇ IRA 25,000.00 8.00% 3/8/05 3/8/05 177 969.86
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 100,000.00 8.00% 3/10/05 3/10/05 175 3,835.62
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 30,000.00 8.00% 3/10/05 3/10/05 175 1,150.68
▇▇▇ ▇▇▇▇▇ Trust 25,000.00 8.00% 3/24/05 3/24/05 161 882.19
---------------------------------- ----------------- ---------- ------------- ------------------ ------------ -----------------
Total 1,210,192.04 103,524.06
================================== ================= ========== ============= ================== ============ =================
10
Exhibit 4.9(e) -- Principal and Interest Converting to Common Stock
Individual Third Party Promissory Notes
Interest Calculation Dates
Calc Date 8/31/05
Last Paid 12/31/01
Int. Owed
Name Amount Int. Rate Note Date Deposit Date From Int Due
------------------------------------ ---------------- -------------- ------------- ------------- -------------- ---------------
Schonberg Family Trust 41,270.25 9.00% 8/16/05 8/16/05 8/16/05 152.64
------------------------------------ ---------------- -------------- ------------- ------------- -------------- ---------------
Total 41,270.25 152.64
==================================== ================ ============== ============= ============= ============== ===============
11
Exhibit 4.9(f) -- Repay from Proceeds
PN Debt -- 3rd Parties
Interest From 4/1/05
Interest Thru 8/31/05
Note/Repay Interest
Investor Amount Rate Date Through Days Interest Due
----------------- --------------- --------- ------------------- -------------- --------------- ----------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ 15,000.00 9.00% 3/1/02 8/31/05 153 565.89
▇▇▇▇▇ ▇▇▇▇▇ 50,000.00 9.00% 3/28/02 8/31/05 153 1,886.30
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 80,000.00 9.00% 5/23/03 8/31/05 153 3,018.08
----------------- --------------- --------- ------------------- -------------- --------------- ----------------
Total 145,000.00 5,470.27
================= =============== ========= =================== ============== =============== ================
12
Exhibit 4.9(g) -- Repay from Proceeds
Bridge Notes -- 3rd Party
From 1/1/03
Through 8/31/05
Invest/Repay
Investor Amount Rate Note Date Date Days Interest Due
---------------------------- --------------- --------- ---------------- -------------------- -------------- -------------------
C&C Nuclear Systems 10,000.00 8.00% 4/28//04 4/28/04 491 1,076.16
▇▇▇▇ ▇▇▇ 50,000.00 8.00% 11/16/04 11/16/04 289 3,167.12
---------------------------- --------------- --------- ---------------- -------------------- -------------- -------------------
Total 60,000.00 4,243.29
============================ =============== ========= ================ ==================== ============== ===================
13
Exhibit 4.9(h) -- Repay from Proceeds
Individual Related Party Promissory Notes
Interest Calculation Dates
Calc Date 8/31/05
Last Paid 12/31/01
Int. Owed
Name Amount Int. Rate Note Date Deposit Date From Int Due
--------------------------- ---------------- -------------- ------------- ------------- -------------- ---------------
▇▇▇▇▇▇ ▇. ▇▇▇▇ 160,000.00 9.00% 8/22/05 8/22/05 8/22/05 355.07
▇▇▇▇▇▇ ▇. ▇▇▇▇ 27,500.00 9.00% 8/26/05 8/26/05 8/26/05 33.90
--------------------------- ---------------- -------------- ------------- ------------- -------------- ---------------
Total 187,500.00 388.97
=========================== ================ ============== ============= ============= ============== ===============
14
Exhibit 4.9(i) -- Repay from Subsequent Close
Individual Third Party Promissory Notes
Interest Calculation Dates
Calc Date 8/31/05
Last Paid 12/31/01
Int. Owed
Name Amount Int. Rate Note Date Deposit Date From Int Due
----------------------------- ---------------- -------------- ------------- ------------- -------------- ---------------
▇▇▇▇▇▇ ▇▇▇▇▇ 50,000.00 9.00% 9/30/95 9/30/95 12/31/01 19,471.04
----------------------------- ---------------- -------------- ------------- ------------- -------------- ---------------
Total 50,000.00 19,471.04
============================= ================ ============== ============= ============= ============== ===============
15
Exhibit 4.9(j) -- Repay from Subsequent Close
Individual Related Party Promissory Notes
Interest Calculation Dates
Calc Date 8/31/05
Last Paid 12/31/01
Int. Owed
Name Amount Int. Rate Note Date Deposit Date From Int Due
-------------------------- ---------------- -------------- ------------- ------------- -------------- ---------------
▇▇▇▇▇▇ ▇. ▇▇▇▇ 70,000.00 9.00% 5/31/05 5/31/05 5/31/05 1,599.79
▇▇▇▇▇▇ ▇. ▇▇▇▇ 30,000.00 9.00% 6/30/05 6/30/05 6/30/05 460.32
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ 10,000.00 9.00% 7/21/05 7/21/05 7/21/05 101.10
▇▇▇▇ ▇▇▇▇▇▇ 5,000.00 9.00% 7/28/05 7/28/05 7/28/05 41.92
▇▇▇ ▇▇▇▇▇▇▇▇ 5,000.00 9.00% 8/1/05 8/1/05 8/1/05 36.99
-------------------------- ---------------- -------------- ------------- ------------- -------------- ---------------
Total 120,000.00 2,240.10
========================== ================ ============== ============= ============= ============== ===============
16
SCHEDULE 6(b) to REGISTRATION RIGHTS AGREEMENT
This Schedule 6(b), dated as of August 31, 2005 ( the "Schedule"), is
made and given pursuant to Article 6(b) of the Registration Rights Agreement
dated as of August 31, 2005 by and among Intraop Medical Corporation and the
purchasers named therein (the "Agreement"). Any terms defined in the Agreement
shall have the same meaning when used in this Disclosure Schedule as when used
in the Agreement unless the context otherwise requires.
The Company Initial Registration will include:
1. All of the Company's outstanding common stock except 445,000 shares issued to
Summit Financial Partners, L.L.C or its employees or affiliates pursuant to the
close of the Company's merger on March 9, 2005.
2. Shares of ▇▇. ▇▇▇▇ From to the extent of his conversion of a prior investment
of $416,000 into the Company's common stock at $0.70 per share.
3. Shares of Mr. ▇▇▇▇▇▇ ▇▇▇▇▇ to the extent of his conversion of a prior
investment of $22,000 into the Company's common stock at $0.70 per share.
4. PN Debt holders shown on Exhibit 4.9(b) to the Purchase Agreement to the
extent of their conversion into common stock.
5. Bridge Debt holders shown on Exhibit 4.9(c) and 4.9(d) to the Purchase
Agreement to the extent of their conversion into common stock.
6. Promissory note holders shown on Exhibit 4.9(e) to the Purchase Agreement to
the extent of their conversion into common stock.
7. Holders of outstanding warrants exercisable for 1,448,174 shares of the
Company's common stock.
8. Holders of outstanding options exercisable 1,127,500 for shares of the
Company's common stock.
9. Samir Financial, L.L.C., a Illinois limited liability company, for up to
2,400,000 shares of the Company's common stock to the extent these shares are
not cancelled as part of the close.
10. Stonegate Securities, Inc., a Texas corporation ("Stonegate") as the holder
of warrants for shares of the Company's common stock granted in relation to a
Placement Agreement between Stonegate and the Company dated May 17, 2005.
11. The Company has received lock-up agreements pursuant to Section 2.3(b)(v) of
the Securities Purchase Agreement from the parties shown on Exhibit A.
EXHIBIT A TO SCHEDULE 6(b)
▇▇ ▇▇▇▇▇▇▇▇▇ + Company
▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ (due prior to second close)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Research Corporation
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▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
Cinnabar Investments
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ From
▇▇▇▇▇▇▇ ▇▇▇▇
DISCLOSURE SCHEDULE
-------------------
This Disclosure Schedule, dated as of August 31, 2005 ( the
"Schedule"), is made and given pursuant to Article III of the Subsidiary
Guarantee dated as of August 31, 2005 by and among the Guarantors and the
Purchasers named therein (the "Agreement"). Any terms defined in the Agreement
shall have the same meaning when used in this Disclosure Schedule as when used
in the Agreement unless the context otherwise requires.
Notwithstanding anything to the contrary contained in this Schedule or
in the Agreement, the information and disclosures contained in each section of
this Schedule (including any schedules attached to this Schedule) shall be
deemed to be disclosed and incorporated by reference in each of the sections of
this Schedule as though fully set forth in such other sections (whether or not
specific cross-references are made) where it is reasonably apparent on the face
of the disclosure (without regard to the contents of any document referred to in
such disclosure and the contents of which are not expressly described or facts
and circumstances not expressly described or implied in such disclosure) that it
is applicable to such other sections, and shall be deemed to qualify and limit
all representations, warranties and covenants of the Company contained in the
Agreement.
Section 3(a)
1. Intraop Medical Services, Inc., a Delaware corporation, is in good standing
in Delaware, but is not in good standing in California due to failure to pay
California franchise taxes. The Company is the sole stockholder.
2. IMS Louisville, LLC a Delaware limited liability corporation, is inactive in
Delaware, pending dissolution.
Section 3(c)
Unless certain waivers or consents are given on or prior to the Closing Date,
the execution, delivery, and performance of the Transaction Documents would
conflict with or constitute a default under certain agreements described in the
Section 3.1(d)(ii) of the Disclosure Schedule to the Securities Purchase
Agreement.
Section 3(d)
The Company is in payment default under certain agreements described in the
Section 3.1(l) of the Disclosure Schedule to the Securities Purchase Agreement.
DISCLOSURE SCHEDULE
This Schedule, dated as of August 31, 2005 ( the "Schedule"), is made
and given pursuant to Article 3 of the Security Agreement dated as of August 31,
2005 by and among Intraop Medical Corporation and all of the Subsidiaries of the
Company and the Secured Parties named therein (the "Agreement"). Any terms
defined in the Agreement shall have the same meaning when used in this
Disclosure Schedule as when used in the Agreement unless the context otherwise
requires.
Notwithstanding anything to the contrary contained in this Schedule or
in the Agreement, the information and disclosures contained in each section of
this Schedule (including any schedules attached to this Schedule) shall be
deemed to be disclosed and incorporated by reference in each of the sections of
this Schedule as though fully set forth in such other sections (whether or not
specific cross-references are made) where it is reasonably apparent on the face
of the disclosure (without regard to the contents of any document referred to in
such disclosure and the contents of which are not expressly described or facts
and circumstances not expressly described or implied in such disclosure) that it
is applicable to such other sections, and shall be deemed to qualify and limit
all representations, warranties and covenants of the Company contained in the
Agreement.
Section 4(h)(ii)
Unless certain waivers or consents are given on or prior to the Closing Date,
the execution, delivery, and performance of the Transaction Documents would
conflict with or constitute a default under certain agreements described in the
Section 3.1(d)(ii) of the Disclosure Schedule to the Securities Purchase
Agreement.
Section 4(u)
3. Intraop Medical Services, Inc., a Delaware corporation, is in good standing
in Delaware, but is not in good standing in California due to failure to pay
California franchise taxes. The Company is the sole stockholder.
4. IMS Louisville, LLC a Delaware limited liability corporation, is inactive in
Delaware, pending dissolution.
Section 4(x)
The Company is negotiating a lease for relocation of its chief executive
offices, expected to occur within the next 30 day to: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
SCHEDULE A
The books of account and records of the Company are or may be kept at the
following locations:
Intraop Medical Corporation
▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇ 95054
Intraop Medical Corporation
▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Corovan
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
Collateral is or may be stored at the following locations:
Primary Locations Sales or Service Offices
Intraop Medical Corporation ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇. Suite 108 Intraop Medical Corporation.
Santa Clara CA 95054 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Intraop Medical Corporation
▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Intraop Medical Corporation.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ Mar
Intraop Medical Corporation San Diego CA 92103
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Intraop Medical Corporation.
CDS Engineering LLC ▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Accuray Incorporated
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▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
Corovan
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
SCHEDULE B
The assets of the Company are subject to a liens and security interests which
are further described in Section 3.1(n) to the Disclosure Schedule to the
Securities Purchase Agreement.
SCHEDULE E
Intraop Medical Corporation was organized under the laws of the State of Nevada
on November 5, 1999 under the name ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. On January 21, 2004, the
Company filed a Certificate of Amendment with the Secretary of State of Nevada
to change the name of the Company from ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. to Intraop
Medical Corporation.
On February 24, 2004, the Company signed a definitive agreement and plan of
reorganization (the "Merger Agreement") with Intraop Medical, Inc., a
privately-held Delaware corporation (the "Target") under which the Target would
be merged with and into the Company in a tax-free exchange of stock. Under the
Merger Agreement, the Company would issue one share of its common stock in
exchange for each share of the Target outstanding shares of common and preferred
stock on the closing date of the proposed merger. All of the Target's
obligations under its outstanding options, warrants, and convertible securities
were to be assumed by the Company.
The Board of Director's of the Company approved the merger on February 24, 2004,
the Target's Board of Directors approved the merger on February 12, 2004. In
addition, the merger was approved by the Company's majority stockholder on
September 3, 2004, and by the Target's stockholders on July 13, 2004. The merger
was consummated on March 9, 2005 as considerations for the merger were
exchanged.
SCHEDULE G
Intentionally left blank.
SCHEDULE F
The Company has the following registered the following trademarks with the
United States Patent and Trademark Office:
Trademark Registration Date U.S. Reg. Number
------------------------------------------------------------------------------
Mobetron Feb. 27, 2001 2,432,157
Intraop Medical Jan. 1, 2002 2,526,210
The Company is the registered owner of the domain name "▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇".
Schedule continued on next page.
SCHEDULE F (CONTINUED)
The Company maintains the following patent portfolio:
Docket No. Country Patent No. Serial No.
---------------- ------------------- ------------- ---------------------------
OP 105 U.S. 5,321,271 08/040115
PCT filed
nationals PCT/US94/02144
Europe 700578 94911427.6
Grt Brit 700578 same
France 700578 same
Germany 700578 same
Italy 700578 same
Russia 2142827 PCT/US94/02144
Japan 2,588,480 Heisei 6 (1994)-522065
---------------- ------------------- ------------- ---------------------------
OP 124 (cont. U.S. 5,418,372 08/258,569
of Op 105)
---------------- ------------------- ------------- ---------------------------
OP 135 U.S. 5,661,377 08/390,122
Europe 811307 96906476.5
Grt Britain 811307 same
France 811307 same
Germany 811307 same
Japan Heisei8(1996)-525153
Russia 2163060 9711557
---------------- ------------------- ------------- ---------------------------
OP 146 U.S. 6,078,036 08/942334
PCT PCT/US99/09364
EU 999201676
Japan 2000-546663
Russia 2230492 2000/27708
================ =================== ============= ===========================
Issue Date Title of the Patent or Application Inventor
------------- ------------------------------------------------------- ----------
6/14/94 Intraoperative Electron Beam Therapy System & Facility Schonberg
10/17/01 same same
same same same
same same same
same same same
same same same
1999 same same
7/25/97 same same
------------- ------------------------------------------------------- ----------
5/23/95 Intraoperative Electron Beam Therapy System & Facility Schonberg
------------- ------------------------------------------------------- ----------
8/26/97 Microwave Power Control Apparatus For Linear Mishlin
2005 same same
same same same
same same same
same same same
same same
2/10/05 same same
------------- ------------------------------------------------------- ----------
6/20/00 Laser Soft Docking System for Medical Treatment System Cook
same same
same same
6/20/04 same same
============= ======================================================= ==========