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SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (this "AGREEMENT"), dated as of August
26, 1997, by and among SELFCARE, INC., a corporation organized under the laws of
the State of Delaware (the "COMPANY"), with headquarters located at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ and each of the purchasers (the
"PURCHASERS") set forth on the execution pages hereof (the "EXECUTION PAGES").
WHEREAS:
A. The Company and each Purchaser are executing and delivering this
Agreement in reliance upon the exemption from securities registration afforded
by the provisions of Regulation D ("REGULATION D"), as promulgated by the United
States Securities and Exchange Commission (the "SEC") under the Securities Act
of 1933, as amended (the "SECURITIES ACT");
B. Each Purchaser desires to purchase, upon the terms and conditions
stated in this Agreement, Units ("UNITS") consisting of (i) one (1) share of the
Company's Series B Convertible Preferred Stock, par value $.001 per share (the
"PREFERRED SHARES"), convertible into the Company's common stock, par value
$.001 per share (the "COMMON STOCK") and (ii) warrants (the "WARRANTS"), in the
form attached hereto as EXHIBIT B, to acquire such number of shares of Common
Stock as is equal to two hundred (200) divided by the Fixed Conversion Price set
forth in the Certificate of Designation (as defined below) . The rights,
preferences and privileges of the Preferred Shares, including the terms upon
which such Preferred Shares are convertible into shares of Common Stock are set
forth in the form of Certificate of Designations, Preferences and Rights
attached hereto as EXHIBIT A (the "CERTIFICATE OF DESIGNATION"). The shares of
Common Stock issuable upon conversion of the Preferred Shares or otherwise
pursuant to the Certificate of Designation are referred to herein as the
"CONVERSION SHARES" and the shares of Common Stock issuable upon exercise or
otherwise pursuant to the Warrants are referred to as the "WARRANT SHARES." The
Units, the Preferred Shares, the Conversion Shares and the Warrant Shares are
collectively referred to herein as the "SECURITIES."
C. Contemporaneous with the execution and delivery of this Agreement,
the parties hereto are executing and delivering a Registration Rights Agreement,
in the form attached hereto as EXHIBIT C (the "REGISTRATION RIGHTS AGREEMENT"),
pursuant to which the Company has agreed to provide certain registration rights
under the Securities Act and the rules and regulations promulgated thereunder,
and applicable state securities laws;
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NOW, THEREFORE, the Company and the Purchasers hereby agree as follows:
1. PURCHASE AND SALE OF PREFERRED SHARES.
a. PURCHASE OF PREFERRED SHARES. On the Closing Date (as defined
below), subject to the satisfaction (or waiver) of the conditions set forth in
Section 6 and Section 7 below, the Company shall issue and sell to each
Purchaser and each Purchaser severally agrees to purchase from the Company, such
number of Units as is set forth on such Purchaser's Execution Page hereto. The
purchase price (the "PURCHASE PRICE") per Unit shall be equal to One Thousand
Dollars ($1,000.00). Each Purchaser's obligation to purchase Units hereunder is
distinct and separate from each other Purchaser's obligation to purchase Units
and no Purchaser shall be required to purchase hereunder more than the number of
Units set forth on such Purchaser's Execution Page hereto notwithstanding any
failure by any other Purchaser to purchase Units hereunder.
b. FORM OF PAYMENT. On the Closing Date, each Purchaser shall pay the
aggregate Purchase Price for the Units being purchased by such Purchaser on the
Closing Date by wire transfer to the Company, in accordance with the Company's
written wiring instructions, against delivery of duly executed certificates
representing the Preferred Shares and Warrants being purchased by such Purchaser
and the Company shall deliver such certificates against delivery of such
aggregate Purchase Price.
c. CLOSING DATE. Subject to the satisfaction (or waiver) of the
conditions thereto set forth in Section 6 and Section 7 below, the date and time
of the issuance and sale of the Units pursuant to this Agreement (the "CLOSING")
shall be 12:00 noon Eastern Daylight Savings Time on August 26, 1997, or such
other time as may be mutually agreed upon by the Company and the Purchasers (the
"CLOSING DATE"). The closing shall occur at the offices of Klehr, Harrison,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇.
2. PURCHASERS' REPRESENTATIONS AND WARRANTIES
Each Purchaser severally represents and warrants to the Company as set
forth in this Section 2. No Purchaser makes any other representations or
warranties, express or implied, to the Company in connection with the
transactions contemplated hereby and any and all prior representations and
warranties, if any, which may have been made by any Purchaser to the Company in
connection with the transactions contemplated hereby shall be deemed to have
been merged in this Agreement and any such prior representations and warranties,
if any, shall not survive the execution and delivery of this Agreement.
a. INVESTMENT PURPOSE. Purchaser is purchasing the Units for
Purchaser's own account for investment purposes and not with a present view
towards the public sale or distribution thereof, except pursuant to sales that
are exempt from the registration requirements of the Securities Act and/or sales
registered under the Securities Act. Purchaser understands that Purchaser must
bear the economic risk of this investment indefinitely, unless the Securities
are registered pursuant to the
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Securities Act and any applicable state securities or blue sky laws or an
exemption from such registration is available, and that the Company has no
present intention of registering any such Securities other than as contemplated
by the Registration Rights Agreement. Notwithstanding anything in this Section
2(a) to the contrary, by making the representations herein, the Purchaser does
not agree to hold the Securities for any minimum or other specific term and
reserves the right to dispose of the Securities at any time in accordance with
or pursuant to a registration statement or an exemption under the Securities
Act.
b. ACCREDITED INVESTOR STATUS. Purchaser is an "ACCREDITED INVESTOR" as
that term is defined in Rule 501(a) of Regulation D.
c. RELIANCE ON EXEMPTIONS. Purchaser understands that the Units are
being offered and sold to Purchaser in reliance upon specific exemptions from
the registration requirements of United States federal and state securities laws
and that the Company is relying upon the truth and accuracy of, and Purchaser's
compliance with, the representations, warranties, agreements, acknowledgments
and understandings of Purchaser set forth herein in order to determine the
availability of such exemptions and the eligibility of Purchaser to acquire the
Units.
d. INFORMATION. Purchaser and its counsel have been furnished all
materials relating to the business, finances and operations of the Company and
materials relating to the offer and sale of the Units which have been
specifically requested by Purchaser or its counsel. Purchaser and its counsel
have been afforded the opportunity to ask questions of the Company and have
received what Purchaser believes to be satisfactory answers to any such
inquiries. Neither such inquiries nor any other due diligence investigation
conducted by Purchaser or its counsel or any of its representatives shall
modify, amend or affect Purchaser's right to rely on the Company's
representations and warranties contained in Section 3 below. Purchaser
understands that Purchaser's investment in the Securities involves a high degree
of risk.
e. GOVERNMENTAL REVIEW. Purchaser understands that no United States
federal or state agency or any other government or governmental agency has
passed upon or made any recommendation or endorsement of the Securities.
f. TRANSFER OR RESALE. Purchaser understands that (i) except as
provided in the Registration Rights Agreement, the Securities have not been and
are not being registered under the Securities Act or any state securities laws,
and may not be transferred unless (a) subsequently registered thereunder, or (b)
if required by the Company, Purchaser shall have delivered to the Company an
opinion from counsel reasonably acceptable to the Company (which opinion shall
be in form, substance and scope customary for opinions of counsel in comparable
circumstances) to the effect that the Securities to be sold or transferred may
be sold or transferred pursuant to an exemption from such registration or (c)
sold pursuant to Rule 144 promulgated under the Securities Act (or a successor
rule) ("RULE 144"); and (ii) neither the Company nor any other person is under
any obligation to register such Securities under the Securities Act or any state
securities laws or to
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comply with the terms and conditions of any exemption thereunder (in each case,
other than pursuant to the Registration Rights Agreement).
g. LEGENDS. Purchaser understands that the Preferred Shares and
Warrants and, until such time as the Conversion Shares and Warrant Shares have
been registered under the Securities Act (including registration pursuant to
Rule 416 thereunder) as contemplated by the Registration Rights Agreement or
otherwise may be sold by Purchaser pursuant to Rule 144, the certificates for
the Conversion Shares and Warrant Shares may bear a restrictive legend in
substantially the following form:
The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended or the securities laws of
any state of the United States. The securities represented hereby may
not be offered or sold in the absence of an effective registration
statement for the securities under applicable securities laws unless
offered, sold or transferred pursuant to an available exemption from
the registration requirements of those laws.
The legend set forth above shall be removed and the Company shall issue
a certificate without such legend to the holder of any Conversion Shares or
Warrant Shares upon which it is stamped, if, unless otherwise required by state
securities laws, (a) the sale of such Security is registered under the
Securities Act (including registration pursuant to Rule 416 thereunder), or (b)
such holder provides the Company with an opinion from counsel reasonably
acceptable to the Company, in form, substance and scope customary for opinions
of counsel in comparable circumstances, to the effect that a contemplated public
sale or transfer of such Security may be made without registration under the
Securities Act or (c) such holder provides the Company with reasonable
assurances that such Security can be sold pursuant to Rule 144. Purchaser agrees
to sell all Securities, including those represented by a certificate(s) from
which the legend has been removed, pursuant to an effective registration
statement or in compliance with an exemption from the registration requirements
of the Securities Act. In the event the above legend is removed from any
Security and thereafter the effectiveness of a registration statement covering
such Security is suspended or the Company determines that a supplement or
amendment thereto is required by applicable securities laws, then upon advance
notice to Purchaser the Company may require that the above legend be placed on
any such Security that cannot then be sold pursuant to an existing effective
registration statement or Rule 144 (and the Company may provide appropriate stop
transfer instructions to its transfer agent with respect to such Security during
the period such registration statement cannot be utilized) and Purchaser shall
cooperate in the prompt replacement of such legend. Such legend shall be removed
when such Security may be sold pursuant to an effective registration statement
or Rule 144.
h. AUTHORIZATION; ENFORCEMENT. This Agreement and the Registration
Rights Agreement have been duly and validly authorized, executed and delivered
on behalf of Purchaser and are valid and binding agreements of Purchaser
enforceable in accordance with their terms.
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i. RESIDENCY. Purchaser is a resident of the jurisdiction set forth
under such Purchaser's name on the Execution Page hereto executed by such
Purchaser which jurisdiction does not require any consent, approval,
authorization or order of, or any filing or registration with, any governmental
or regulatory agency or court in such jurisdictions in connection with the
transaction contemplated hereby and the securities laws of any other
jurisdiction or applicable to the offer or sale or any of the Securities to such
Purchaser.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each Purchaser as set forth in
this Section 3. The Company does not make any other representations or
warranties, express or implied, to the Purchasers in connection with the
transactions contemplated hereby and any and all prior representations and
warranties, if any, which may have been made by the Company to the Purchasers in
connection with the transactions contemplated hereby shall be deemed to have
been merged in this Agreement and any such prior representations and warranties,
if any, shall not survive the execution and delivery of this Agreement.
a. ORGANIZATION AND QUALIFICATION. The Company and each of its
subsidiaries is a corporation duly organized and existing in good standing under
the laws of the jurisdiction in which it is incorporated, and has the requisite
corporate power to own its properties and to carry on its business as now being
conducted. The Company and each of its subsidiaries is duly qualified as a
foreign corporation to do business and is in good standing in every jurisdiction
in which the nature of the business conducted by it makes such qualification
necessary and where the failure so to qualify would have a Material Adverse
Effect. "MATERIAL ADVERSE EFFECT" means any material adverse effect on (i) the
Securities, (ii) the ability of the Company to perform its obligations
hereunder, the Certificate of Designation, the Warrants or the Registration
Rights Agreement or (iii) the business, operations, properties or financial
condition of the Company and its subsidiaries, taken as a whole.
b. AUTHORIZATION; ENFORCEMENT. (i) The Company has the requisite
corporate power and authority to enter into and perform this Agreement, the
Warrants and the Registration Rights Agreement, to issue and sell the Preferred
Shares and Warrants in accordance with the terms hereof, and to issue the
Conversion Shares upon conversion of the Preferred Shares in accordance with the
terms of the Certificate of Designation and the Warrant Shares upon exercise of
the Warrants in accordance with the terms of the Warrants; (ii) the execution,
delivery and performance of this Agreement, the Warrants and the Registration
Rights Agreement by the Company and the consummation by it of the transactions
contemplated hereby and thereby (including without limitation the issuance of
the Preferred Shares and the Warrant Shares and the issuance and reservation for
issuance of the Conversion Shares and the Warrant Shares) have been duly
authorized by the Company's Board of Directors or an authorized subcommittee
thereof and no further consent or authorization of the Company, its Board of
Directors, or its stockholders is required (under Section 713 of the Rules of
The American Stock Exchange ("AMEX") or otherwise); (iii) this Agreement has
been duly executed and delivered by the Company; and (iv) this Agreement
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constitutes, and, upon execution and delivery by the Company of the Registration
Rights Agreement and the Warrants, such agreements will constitute, valid and
binding obligations of the Company enforceable against the Company in accordance
with their terms.
c. CAPITALIZATION. The capitalization of the Company as of the date
hereof, including the authorized capital stock, the number of shares issued and
outstanding, the number of shares issuable and reserved for issuance pursuant to
the Company's stock option plans, the number of shares issuable and reserved for
issuance pursuant to securities (other than the Preferred Shares and the
Warrants) exercisable for, or convertible into or exchangeable for any shares of
Common Stock and the number of shares to be reserved for issuance upon
conversion of the Preferred Shares and exercise of the Warrants is set forth on
SCHEDULE 3(c). All of such outstanding shares of capital stock have been, or
upon issuance will be, validly issued, fully paid and nonassessable. No shares
of capital stock of the Company (including the Preferred Shares, the Conversion
Shares and the Warrant Shares) are subject to preemptive rights or any other
similar rights of the stockholders of the Company or any liens or encumbrances
created by the Company. Except for the Securities and as set forth on
SCHEDULE 3(c), as of the date of this Agreement, (i) there are no outstanding
options, warrants, scrip, rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities or rights convertible into or
exercisable or exchangeable for, any shares of capital stock of the Company or
any of its subsidiaries, or arrangements by which the Company or any of its
subsidiaries is or may become bound to issue additional shares of capital stock
of the Company or any of its subsidiaries, and (ii) there are no agreements or
arrangements under which the Company or any of its subsidiaries is obligated to
register the sale of any of its or their securities under the Securities Act
(except the Registration Rights Agreement). Except as set forth on SCHEDULE
3(c), there are no securities or instruments containing antidilution or similar
provisions that will be triggered by the issuance of the Securities in
accordance with the terms of this Agreement, the Certificate of Designation or
the Warrants. The Company has furnished to each Purchaser true and correct
copies of the Company's Certificate of Incorporation as in effect on the date
hereof ("CERTIFICATE OF INCORPORATION"), the Company's By-laws as in effect on
the date hereof (the "BYLAWS"), and all other instruments and agreements
governing securities convertible into or exercisable or exchangeable for Common
Stock of the Company. The Certificate of Designation, in the form attached
hereto, has been duly filed with the Secretary of State of the State of Delaware
and, upon the issuance of the Preferred Shares in accordance with the terms
hereof, each Purchaser shall be entitled to the rights set forth therein.
d. ISSUANCE OF SHARES. The Preferred Shares are duly authorized and,
upon issuance in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and free from all taxes, liens, claims
and encumbrances with respect to the issuance thereof and will not be subject to
preemptive rights or other similar rights of stockholders of the Company and
will not impose personal liability on the holders thereof. The Conversion Shares
and the Warrant Shares are duly authorized and reserved for issuance, and, upon
conversion of the Preferred Shares and exercise of the Warrants in accordance
with the terms thereof, will be validly issued, fully paid and non-assessable,
and free from all taxes, liens, claims and encumbrances with respect to the
issuance
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thereof and will not be subject to preemptive rights or other similar rights of
stockholders of the Company and will not impose personal liability upon the
holder thereof.
e. NO CONFLICTS. The execution, delivery and performance of this
Agreement, the Warrants and the Registration Rights Agreement by the Company,
the performance by the Company of its obligations under the Certificate of
Designation, and the consummation by the Company of the transactions
contemplated hereby and thereby (including, without limitation, the issuance and
reservation for issuance, as applicable, of the Preferred Shares, the Conversion
Shares and the Warrant Shares) will not (i) result in a violation of the
Certificate of Incorporation or By-laws or (ii) conflict with, or constitute a
default (or an event which with notice or lapse of time or both would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, any agreement, indenture or instrument to which
the Company or any of its subsidiaries is a party (each a "CONTRACT"), or result
in a violation of any law, rule, regulation, order, judgment or decree
(including U.S. federal and state securities laws and regulations) applicable to
the Company or any of its subsidiaries or by which any property or asset of the
Company or any of its subsidiaries is bound or affected (except, with respect to
clause (ii), for such conflicts, defaults, terminations, amendments,
accelerations, cancellations and violations as would not, individually or in the
aggregate, have a Material Adverse Effect or that are related to any
inaccuracies or omission in any representation or warranty of any Purchaser set
forth herein). Neither the Company nor any of its subsidiaries is in violation
of its Certificate of Incorporation, By-laws or other organizational documents
and neither the Company nor any of its subsidiaries is in default (and no event
has occurred which, with notice or lapse of time or both, would put the Company
or any of its subsidiaries in default) under, nor has there occurred any event
giving others (with notice or lapse of time or both) any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or
instrument to which the Company or any of its subsidiaries is a party, except
for actual or possible violations, defaults or rights as would not, individually
or in the aggregate, have a Material Adverse Effect. The businesses of the
Company and its subsidiaries are not being conducted, and shall not be conducted
so long as a Purchaser owns any of the Securities, in violation of any law,
ordinance or regulation of any governmental entity, except for possible or
actual violations, if any, the sanctions for which either singly or in the
aggregate would not have a Material Adverse Effect. Except as specifically
contemplated by Section 4(b) hereof and the Registration Rights Agreement, the
Company is not required to obtain any consent, approval, authorization or order
of, or make any filing or registration with, any court or governmental agency or
any regulatory or self regulatory agency or other party in order for it to
execute, deliver or perform any of its obligations under this Agreement, the
Warrants or the Registration Rights Agreement or to perform its obligations
under the Certificate of Designation, in each case in accordance with the terms
hereof or thereof. The Company is not in violation of the listing requirements
of the AMEX, has not received notification that it is in violation of such
listing requirements and does not reasonably anticipate that the Common Stock
will be delisted by AMEX for the foreseeable future.
f. SEC DOCUMENTS, FINANCIAL STATEMENTS. Since August 1, 1996, the
Company has timely filed all reports, schedules, forms, statements and other
documents required to be filed by it with the SEC pursuant to the reporting
requirements of the Securities Exchange Act of 1934, as
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amended (the "EXCHANGE ACT") (all of the foregoing, filed prior to the date
hereof and after August 1, 1996, and all exhibits included therein and financial
statements and schedules thereto and documents incorporated by reference
therein, being hereinafter referred to herein as the "SEC DOCUMENTS"). The
Company has delivered to each Purchaser true and complete copies of the SEC
Documents, except for the exhibits and schedules thereto and the documents
incorporated therein. As of their respective dates, the SEC Documents complied
in all material respects with the requirements of the Exchange Act or the
Securities Act, as the case may be, and the rules and regulations of the SEC
promulgated thereunder applicable to the SEC Documents, and none of the SEC
Documents, at the time they were filed with the SEC, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. None of the
statements made in any such SEC Documents is, or has been, required to be
updated or amended under applicable law. As of their respective dates, the
financial statements of the Company included in the SEC Documents complied as to
form in all material respects with applicable accounting requirements and the
published rules and regulations of the SEC applicable with respect thereto. Such
financial statements have been prepared in accordance with U.S. generally
accepted accounting principles, consistently applied, during the periods
involved (except (i) as may be otherwise indicated in such financial statements
or the notes thereto, or (ii) in the case of unaudited interim statements, to
the extent they may not include footnotes or may be condensed or summary
statements) and fairly present in all material respects the consolidated
financial position of the Company and its consolidated subsidiaries as of the
dates thereof and the consolidated results of their operations and cash flows
for the periods then ended (subject, in the case of unaudited statements, to
immaterial year-end audit adjustments). Except as set forth in the financial
statements of the Company included in the SEC Documents filed prior to the date
hereof or as otherwise set forth on SCHEDULE 3(f), the Company has no
liabilities, contingent or otherwise, other than (i) liabilities incurred in the
ordinary course of business, (ii) obligations under contracts and commitments
incurred in the ordinary course of business and (iii) liabilities not required
under generally accepted accounting principles to be reflected in such financial
statements, which liabilities and obligations referred to in clauses (i), (ii)
and (iii) individually or in the aggregate are not material to the financial
condition or operating results of the Company. None of the Company, its
subsidiaries or, to the best knowledge of the Company, any of the other parties
thereto, is in breach or violation of any Contract, which breach or violation
would have a Material Adverse Effect. No event, occurrence or condition exists
which, with the lapse of time, the giving of notice, or both, would become a
default by the Company or its subsidiaries thereunder which would have a
Material Adverse Effect.
g. ABSENCE OF CERTAIN CHANGES. Since December 31, 1996, there has been
no material adverse change and no material adverse development in the business,
properties, operations, financial condition or results of operations of the
Company except as disclosed in SCHEDULE 3(g) or in the SEC Documents filed prior
to the date hereof.
h. ABSENCE OF LITIGATION. Except for matters disclosed in the SEC
Documents filed prior to the date hereof, there is no action, suit, proceeding,
inquiry or investigation before or by any court,
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public board, government agency, self-regulatory organization or body pending
or, to the knowledge of the Company or any of its subsidiaries, threatened
against the Company, any of its subsidiaries, or any of their respective
directors or officers in their capacities as such which will have a Material
Adverse Effect. There are no facts which, if known by a potential claimant or
governmental authority, could give rise to a claim or proceeding which, if
asserted against the Company or any of its subsidiaries, is likely to have a
Material Adverse Effect.
i. INTELLECTUAL PROPERTY. Except as disclosed in the SEC Documents,
each of the Company and its subsidiaries owns or is licensed to use all patents,
patent applications, trademarks, trademark applications, trade names, service
marks, copyrights, copyright applications, licenses, permits, know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) and other similar rights and
proprietary knowledge (collectively, "INTANGIBLES") necessary for the conduct of
its business as now being conducted and as described in the Company's Annual
Report on Form 10-KSB for the fiscal year ended December 31, 1996 the absence of
which would have a Material Adverse Effect. To the best knowledge of the
Company, except as disclosed in the SEC Documents, neither the Company nor any
subsidiary of the Company infringes or is in conflict with any right of any
other person with respect to any Intangibles which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
have a Material Adverse Effect and except as disclosed in the SEC Documents,
neither the Company nor any of its subsidiaries has received written notice of
any pending conflict with or infringement upon such third party Intangibles. The
Intangibles are valid and enforceable and no registration relating thereto has
lapsed, expired or been abandoned or canceled or is the subject of cancellation
or other adversarial proceedings, except for such cancellations and adversarial
proceedings which, individually or in the aggregate, are not likely to have a
Material Adverse Effect and all applications for any material Intangibles are
pending and are in good standing. The Company and its subsidiaries have
complied, in all material respects, with their respective contractual
obligations relating to the protection of the Intangibles used pursuant to
licenses, except where the failures to so comply would not, individually or in
the aggregate, have a Material Adverse Effect.
j. FOREIGN CORRUPT PRACTICES. Neither the Company, nor any of its
subsidiaries, nor any director, officer, agent, employee or other person acting
on behalf of the Company or any subsidiary has, in the course of his actions
for, or on behalf of, the Company, used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expenses relating to
political activity; made any direct or indirect unlawful payment to any foreign
or domestic government official or employee from corporate funds; violated or is
in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977;
or made any bribe, rebate, payoff, influence payment, kickback or other unlawful
payment to any foreign or domestic government official or employee.
k. DISCLOSURE. All information which is set forth in this Agreement or
included in the documents set forth on Schedule 3(k) hereof was true and correct
in all material respects on the date such information was prepared and the
Company has not omitted to state any material fact necessary
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in order to make the statements made herein or therein, in light of the
circumstances under which they were made, and at the time they were made, not
misleading.
l. ACKNOWLEDGMENT REGARDING PURCHASERS' PURCHASE OF THE UNITS. The
Company acknowledges and agrees that none of the Purchasers is acting as a
financial advisor or fiduciary of the Company (or in any similar capacity) with
respect to this Agreement or the transactions contemplated hereby, and the
relationship between the Company and each of the Purchasers is "arms length" and
that any statement made by any Purchaser or any of their representatives or
agents in connection with this Agreement and the transactions contemplated
hereby is not advice or a recommendation and is merely incidental to each
Purchaser's purchase of Units and has not been relied upon by the Company, its
officers or directors in any way. The Company further represents to each
Purchaser that the Company's decision to enter into this Agreement has been
based solely on an independent evaluation by the Company and its
representatives.
m. FORM S-3 ELIGIBILITY. The Company is currently eligible to register
the resale of its Common Stock on a registration statement on Form S-3 under the
Securities Act. Except with respect to matters set forth in the SEC Documents,
there exist no facts or circumstances that would prohibit or delay the
preparation and filing of a registration statement on Form S-3 with respect to
the Registrable Securities (as defined in the Registration Rights Agreement)
beyond the scheduled deadlines set forth in the Registration Rights Agreement.
n. NO GENERAL SOLICITATION. Neither the Company nor any distributor
participating on the Company's behalf in the transactions contemplated hereby
(if any) nor any person acting for the Company, or any such distributor, has
conducted any "GENERAL SOLICITATION," as such term is defined in Regulation D,
with respect to any of the Securities being offered hereby.
o. NO INTEGRATED OFFERING. Neither the Company, nor any of its
affiliates, nor any person acting on its or their behalf, has directly or
indirectly made any offers or sales of any security or solicited any offerers to
buy any security under circumstances that would require registration of the
Securities being offered hereby under the Securities Act or cause this offering
of Securities to be integrated with any prior offering of securities of the
Company for purposes of the Securities Act or any applicable stockholder
approval provisions.
p. NO BROKERS. The Company has taken no action which would give rise to
any claim by any person for brokerage commissions, finder's fees or similar
payments by any Purchaser relating to this Agreement or the transactions
contemplated hereby, except for dealings with The Shemano Group, whose
commissions and fees will be paid for by the Company.
q. ACKNOWLEDGMENT OF DILUTION. The number of Conversion Shares issuable
upon conversion of the Preferred Shares and Warrant Shares issuable upon
exercise of the Warrants may increase substantially in certain circumstances,
including, in the case of the Preferred Shares, the circumstance wherein the
trading price of the Common Stock declines. The Company's executive
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officers have studied and fully understand the nature of the securities being
sold hereunder. The Company acknowledges that its obligation to issue Conversion
Shares upon conversion of the Preferred Shares in accordance with the terms of
the Certificate of Designation and Warrant Shares in accordance with the terms
of the Warrants is, subject to the terms applicable thereto, absolute and
unconditional, regardless of the dilution that such issuance may have on the
ownership interests of other stockholders. Taking the foregoing into account,
the Company has determined that the issuance of the Units hereunder and the
consummation of the other transactions contemplated hereby are in the best
interests of the Company and its stockholders.
r. TITLE. The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title to all
personal property owned by them which is material to the business of the Company
and its subsidiaries, in each case free and clear of all liens, encumbrances and
defects except such as are described in SCHEDULE 3(r) or such as do not
materially affect the value of such property and do not materially interfere
with the use made and proposed to be made of such property by the Company and
its subsidiaries. Any real property and facilities held under lease by the
Company and its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
materially interfere with the use made and proposed to be made of such property
and buildings by the Company and its subsidiaries.
s. TAX STATUS. Except as set forth on SCHEDULE 3(s), the Company and
each of its subsidiaries has made or filed all foreign, federal and state income
and all other tax returns, reports and declarations required by any jurisdiction
to which it is subject (unless and only to the extent that the Company and each
of its subsidiaries has set aside on its books provisions reasonably adequate
for the payment of all unpaid and unreported taxes) and has paid all taxes and
other governmental assessments and charges that are material in amount, shown or
determined to be due on such returns, reports and declarations, except those
being contested in good faith and has set aside on its books a reserve
reasonably adequate for the payment of all taxes for periods subsequent to the
periods to which such returns, reports or declarations apply. There are no
unpaid taxes in any material amount claimed to be due by the taxing authority of
any jurisdiction, and the officers of the Company know of no basis for any such
claim. The Company has not executed a waiver with respect to any statute of
limitations relating to the assessment or collection of any federal, state or
local tax. None of the Company's tax returns has been or is being audited by any
taxing authority.
t. KEY EMPLOYEES. Each of the Company's executive officers and
significant employees (collectively, the "KEY EMPLOYEES") set forth in the
Company's prospectus dated March 7, 1997 with respect to the offer of 1,800,000
shares of Common Stock (the "PROSPECTUS") is currently serving the Company in
the capacity disclosed in the Prospectus. No Key Employee, to the best of the
knowledge of the Company and its subsidiaries, is, or is now expected to be, in
violation of any material term of any employment contract, confidentiality,
disclosure or proprietary information agreement, non-competition agreement, or
any other contract or agreement or any restrictive covenant , and the continued
employment of each Key Employee does not subject the Company or any of its
subsidiaries to any material liability with respect to any of the foregoing
matters. Except
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as set forth on SCHEDULE 3(t), no Key Employee has, to the best of the knowledge
of the Company and its subsidiaries, any intention to terminate his employment
with, or services to, the Company or any of its subsidiaries.
4. COVENANTS.
a. BEST EFFORTS. The parties shall use all commercially reasonable
efforts timely to satisfy each of the conditions described in Section 6 and 7 of
this Agreement.
b. FORM D: BLUE SKY LAWS. The Company agrees to file a Form D with
respect to the Securities as required under Regulation D and to provide a copy
thereof to each Purchaser promptly after such filing. The Company shall on or
before the Closing Date take such action, if any, as the Company shall
reasonably determine are necessary to qualify the Securities for sale to the
Purchasers pursuant to this Agreement under applicable securities or "blue sky"
laws of the states of the United States or obtain exemption therefrom, and shall
provide evidence of any such action so taken to the Purchasers on or prior to
the Closing Date.
c. REPORTING STATUS. So long as any Purchaser beneficially owns any of
the Securities and except following the merger by the Company into, or the
acquisition of the Company by, another corporation, the Company shall use all
commercially reasonable efforts to timely file all reports required to be filed
with the SEC pursuant to the Exchange Act, and the Company shall not terminate
its status as an issuer required to file reports under the Exchange Act even if
the Exchange Act or the rules and regulations thereunder would permit such
termination.
d. USE OF PROCEEDS. The Company shall use the proceeds from the sale of
the Preferred Shares as set forth in SCHEDULE 4(d).
e. Intentionally Omitted.
f. EXPENSES. The Company shall pay to the Purchasers, or at their
direction, at the Closing reimbursement for the expenses reasonably incurred by
them and their affiliates and advisors in connection with the negotiation,
preparation, execution, and delivery of this Agreement and the other agreements
to be executed in connection herewith, including, without limitation, such
Purchasers' and their affiliates' and advisors' reasonable due diligence and
attorneys' fees and expenses (the "EXPENSES"). In addition, from time to time
thereafter, upon any Purchaser's written request, the Company shall pay to such
Purchaser such additional Expenses, if any, incurred at or prior to Closing not
covered by such payment, in each case to the extent reasonably incurred by the
Purchaser. Notwithstanding the foregoing, the Company shall not be obligated to
reimburse the Purchasers for more than $25,000 pursuant to this Section 4(f).
g. FINANCIAL INFORMATION. The Company agrees to send the following
reports to each Purchaser until such Purchaser transfers, assigns or sells all
of its Securities: (i) within ten (10) days after the filing with the SEC, a
copy of its Annual Report on Form 10-KSB, its Quarterly Reports
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on Form 10-QSB, its proxy statements and any Current Reports on Form 8-K; and
(ii) within two (2) business days after release, copies of all press releases
issued by the Company or any of its subsidiaries.
h. RESERVATION OF SHARES. The Company shall at all times have
authorized and reserved for the purpose of issuance a sufficient number of
shares of Common Stock to provide for the full conversion of the outstanding
Preferred Shares and issuance of the Conversion Shares in connection therewith
and the full exercise of the Warrants and issuance of the Warrant Shares in
connection therewith and as otherwise required by the Certificate of Designation
and the Warrants. The Company shall not reduce the number of shares reserved for
issuance upon conversion of the Preferred Shares and exercise of the Warrants
(except as a result of any such conversion or exercise) without the consent of
Purchasers holding a majority of the Preferred Shares then held by all
Purchasers.
i. LISTING. The Company shall promptly secure the listing of the
Conversion Shares and the Warrant Shares upon AMEX and each other national
securities exchange or automated quotation system, if any, upon which shares of
Common Stock are then listed (subject to official notice of issuance) and shall
maintain, so long as any other shares of Common Stock shall be so listed, such
listing of all Conversion Shares and the Warrant Shares from time to time
issuable upon conversion of the Preferred Shares and exercise of the Warrants.
The Company will use all commercially reasonable efforts to continue the listing
and trading of its Common Stock on the New York Stock Exchange ("NYSE"), AMEX or
the Nasdaq National Market. In the event the Common Stock is not eligible to be
traded on any of the NYSE, the AMEX or the Nasdaq National Market and the Common
Stock is not eligible for listing on any such exchange or system, the Company
shall use all commercially reasonable efforts to cause the Common Stock to be
eligible for trading on the over-the-counter bulletin board at the earliest
practicable date and remain eligible for trading while any Preferred Shares or
Warrants are outstanding.
j. CORPORATE EXISTENCE. So long as a Purchaser beneficially owns any
Preferred Shares, the Company shall maintain its corporate existence; provided,
however, that the Company may engage in a merger, consolidation or sale of all
or substantially all of the Company's assets with a publicly traded corporation
(or a subsidiary of a publicly traded corporation), if the Company ensures that
(i) such publicly traded Corporation assumes the Company's obligations hereunder
and under the Certificate of Designation and the Warrants and the agreements and
instruments entered into in connection herewith regardless of whether or not the
Company would have had a sufficient number of shares of Common Stock authorized
and available for issuance in order to effect the conversion of all Preferred
Shares and the exercise of all Warrants outstanding as of the date of such
transaction and (ii) such publicly traded corporation's common stock is then
listed for trading on the Nasdaq National Market, NYSE or AMEX. For the
avoidance of doubt, if the Company effects a redemption of Preferred Shares
pursuant to and in accordance with the provisions of Article VIII.D of the
Certificate of Designation, immediately thereafter, no Purchaser will
beneficially own any Preferred Shares and the conditions of this Section 4(j)
need not be satisfied with respect to such immediately ensuing merger,
consolidation or sale of all or substantially all of the Company's assets.
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k. NO INTEGRATED OFFERINGS. The Company shall not make any offers or
sales of any security (other than the Securities) under circumstances that would
require registration of the Securities being offered or sold hereunder under the
Securities Act or cause this offering of Securities to be integrated with any
other offering of securities by the Company for purposes of AMEX Rule 713.
l. [Intentionally Omitted]
m. COOPERATION BY PURCHASERS. Each Purchaser (or subsequent holder) of
Preferred Shares or Warrants agrees to provide the Company promptly with such
information with respect to the Purchaser and the Securities held by such
Purchaser as the Company may reasonably request in connection with the Company's
fulfillment of its obligations hereunder or any of the documents executed in
connection herewith.
n. Each Purchaser shall promptly notify the Company upon the transfer
by it of any Warrants or Preferred Shares or of such date that the Purchaser no
longer owns any Securities.
5. TRANSFER AGENT INSTRUCTIONS.
a. The Company shall instruct its transfer agent to issue certificates,
registered in the name of each Purchaser or its nominee, for the Conversion
Shares and the Warrant Shares in such amounts as specified in accordance with
law from time to time by such Purchaser to the Company upon conversion of the
Preferred Shares or exercise of the Warrants, as applicable. To the extent and
during the periods provided in Section 2(f) and 2(g) of this Agreement, all such
certificates shall bear the restrictive legend specified in Section 2(g) of this
Agreement.
b. The Company warrants that no instruction other than such
instructions referred to in this Section 5, and stop transfer instructions to
give effect to Section 2(f) and 2(g) hereof in the case of the transfer of the
Conversion Shares and the Warrant Shares at a time when a registration statement
of the Conversion Shares and the Warrant Shares under the Securities Act is not
available or without an exemption therefrom, will be given by the Company to its
transfer agent except as required by law or as expressly permitted by this
Agreement and that the Securities shall otherwise be freely transferable on the
books and records of the Company as and to the extent provided in this Agreement
and the Registration Rights Agreement. Nothing in this Section shall affect in
any way each Purchaser's obligations and agreement set forth in Section 2(g)
hereof to resell the Securities pursuant to an effective registration statement
or in compliance with an exemption from the registration requirements of
applicable securities law.
c. If a Purchaser provides the Company with an opinion from counsel
reasonably satisfactory to the Company, which opinion of counsel shall be in
form, substance and scope customary for opinions of counsel in comparable
transactions, to the effect that the Securities to be sold or transferred may be
sold or transferred pursuant to an exemption from registration applicable to
such proposed sale or transfer, or a Purchaser provides the Company with
reasonable assurances
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that the Securities are to be sold pursuant to Rule 144 or may be sold pursuant
to Rule 144(k), the Company shall permit the transfer, and, in the case of the
Conversion Shares and the Warrant Shares promptly instruct its transfer agent to
issue one or more certificates in such name and in such denominations as
specified by a Purchaser.
6. CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
The obligation of the Company hereunder to issue and sell the Units to
a Purchaser hereunder is subject to the satisfaction, at or before the Closing
Date, of each of the following conditions thereto, provided that these
conditions are for the Company's sole benefit and may be waived by the Company
at any time in its sole discretion.
a. The aggregate number of Units being purchased hereunder by all
Purchasers shall be 8,000 Units.
b. The applicable Purchaser shall have delivered the Purchase Price for
the Units being purchased by it in accordance with Section 1(b) above.
c. The representations and warranties of the applicable Purchaser shall
be true and correct as of the date when made and as of the Closing Date as
though made at that time (except for representations and warranties that speak
as of a specific date, which representations and warranties shall be true and
correct as of such date), and the applicable Purchaser shall have performed,
satisfied and complied in all material respects with the covenants, agreements
and conditions required by this Agreement to be performed, satisfied or complied
with by the applicable Purchaser at or prior to the Closing Date.
d. No statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or endorsed by any
court or governmental authority of competent jurisdiction or any self-regulatory
organization having authority over the matters contemplated hereby which
prohibits the consummation of any of the transactions contemplated by this
Agreement.
7. CONDITIONS TO EACH PURCHASER'S OBLIGATION TO PURCHASE.
The obligation of each Purchaser hereunder to purchase the Units to be
purchased by it hereunder is subject to the satisfaction, at or before the
Closing Date, of each of the following conditions, provided that these
conditions are for such Purchaser's sole benefit and may be waived by such
Purchaser at any time in the Purchaser's sole discretion:
a. The Company shall have executed the signature page to this Agreement
and the Registration Rights Agreement, and delivered the same to such Purchaser.
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b. The Certificate of Designation shall have been accepted for filing
with the Secretary of State of the State of Delaware and a copy thereof
certified by the Secretary of State of Delaware shall have been delivered to
such Purchaser.
c. The Company shall have delivered to such Purchaser duly executed
certificates and Warrant agreements (in such denominations as such Purchaser
shall request) representing the Preferred Shares and Warrants being so purchased
by such Purchaser in accordance with Section 1(b) above.
d. The Common Stock shall be authorized for listing on AMEX and trading
in the Common Stock (or AMEX generally) shall not have been suspended by the SEC
or AMEX.
e. The representations and warranties of the Company shall be true and
correct as of the date when made and as of the Closing Date as though made at
that time (except for representations and warranties that speak as of a specific
date, which representations and warranties shall be true and correct as of such
date) and the Company shall have performed, satisfied and complied in all
material respects with the covenants, agreements and conditions required by this
Agreement to be performed, satisfied or complied with by the Company at or prior
to the Closing Date. Such Purchaser shall have received a certificate, executed
by the Chief Executive Officer of the Company, dated as of the Closing Date to
the foregoing effect and as to such other matters as may be reasonably requested
by such Purchaser.
f. No statute, rule, regulation, executive order, decree, ruling,
injunction, action or proceeding shall have been enacted, entered, promulgated
or endorsed by any court or governmental authority of competent jurisdiction or
any self-regulatory organization having authority over the matters contemplated
hereby which questions the validity of, or challenges or prohibits the
consummation of, any of the transactions contemplated by this Agreement.
g. Such Purchaser shall have received an opinion of the Company's
counsel, dated as of the Closing Date, in form, scope and substance reasonably
satisfactory to the Purchaser and in substantially the form of EXHIBIT D
attached hereto.
h. The Company shall have delivered evidence reasonably satisfactory to
the Purchasers that the Company's transfer agent has agreed to act in accordance
with irrevocable instructions in the form attached hereto as EXHIBIT E.
i. The aggregate number of Units being purchased by all Purchasers
hereunder shall be 8,000.
j. The Company shall have delivered to the Purchasers Lock-Up Letters
in the form attached hereto as EXHIBIT F from each of ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇.
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8. GOVERNING LAW; MISCELLANEOUS.
a. GOVERNING LAW; JURISDICTION. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed in the State of Delaware. The Company and the
Purchasers irrevocably consent to the jurisdiction of the state and federal
courts located in the State of Delaware in any suit or proceeding based on or
arising under this Agreement and irrevocably agrees that all claims in respect
of such suit or proceeding may be determined in such courts. The Company and the
Purchasers irrevocably waive the defense of an inconvenient forum to the
maintenance of such suit or proceeding. Service of process on the Company and
the Purchasers mailed by first class mail shall be deemed in every respect
effective service of process upon the Company and the Purchasers in any such
suit or proceeding. Nothing herein shall affect the right of the Company or any
Purchaser, as the case may be, to serve process in any other manner permitted by
law. The Company and the Purchasers agree that a final non-appealable judgment
in any such suit or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on such judgment or in any other lawful manner.
b. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party. This Agreement, once executed by a party, may be
delivered to the other parties hereto by facsimile transmission of a copy of
this Agreement bearing the signature of the party so delivering this Agreement.
In the event any signature is delivered by facsimile transmission, the party
using such means of delivery shall cause the manually executed Executive Page(s)
to be physically delivered to the other party within five (5) days of the
execution hereof.
c. HEADINGS. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
d. SEVERABILITY. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement or the
validity or enforceability of this Agreement in any other jurisdiction.
e. ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the instruments
referenced herein contain the entire understanding of the parties with respect
to the matters covered herein and therein and, except as specifically set forth
herein or therein, neither the Company nor the Purchasers make any
representation, warranty, covenant or undertaking with respect to such matters.
No provision of this Agreement may be waived other than by an instrument in
writing signed by the party to be charged with enforcement and no provision of
this Agreement may be amended other than by an instrument in writing signed by
the Company and each Purchaser.
f. NOTICES. Any notices required or permitted to be given under the
terms of this Agreement shall be sent by certified or registered mail (return
receipt requested) or delivered
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personally or by courier or by confirmed telecopy, and shall be effective five
days after being placed in the mail, if mailed, or upon receipt or refusal of
receipt, if delivered personally or by courier or confirmed telecopy, in each
case addressed to a party. The addresses for such communications shall be:
If to the Company:
Selfcare, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Chief Executive Officer
with a copy to:
▇▇▇▇▇▇▇, Procter & ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, P.C.
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, III, P.C.
If to any Purchaser, to such address set forth under such Purchaser's
name on the Execution Page hereto executed by such Purchaser.
Each party shall provide notice to the other parties of any change in
address.
g. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties and their successors and assigns. Except as
provided herein, neither the Company nor any Purchaser shall assign this
Agreement or any rights or obligations hereunder. Notwithstanding the foregoing,
any Purchaser may assign its rights hereunder to any of its "AFFILIATES," as
that term is defined under the Exchange Act, without the consent of the Company
or to any other person or entity with the consent of the Company. This provision
shall not limit a Purchaser's right to transfer the Securities pursuant to the
terms of the Certificate of Designation and this Agreement or to assign such
Purchaser's rights hereunder to any such transferee.
h. THIRD PARTY BENEFICIARIES. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns, and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
i. SURVIVAL. The representations and warranties of the Company and the
agreements and covenants set forth in Sections 3, 4, 5 and 8 shall survive the
closing hereunder notwithstanding any due diligence investigation conducted by
or on behalf of any Purchasers. Moreover, none of the
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representations and warranties made by the Company herein shall act as a waiver
of any rights or remedies a Purchaser may have under applicable federal or state
securities laws. Each of the Company and the Purchasers agree to indemnify and
hold harmless the other parties to this Agreement and each of such party's
officers, directors, employees, partners, members, agents and affiliates for
loss or damage arising as a result of or related to any breach or alleged breach
by it of any of its representations or covenants set forth herein, including
advancement of expenses as they are incurred.
j. PUBLICITY. The Company and each Purchaser shall have the right to
approve before issuance any press releases, filings, or any other public
statements with respect to the issuance of the Units hereunder; provided,
however, that the Company shall be entitled, without the prior approval of the
Purchasers, to make any press release as is required by applicable law and
regulations and stock exchange rules (although the Purchasers, if practicable,
shall be consulted by the Company in connection with any such press release
prior to its release and shall be provided with a copy thereof).
k. FURTHER ASSURANCES. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
l. TERMINATION. In the event that the Closing shall not have occurred
on or before August 26, 1997, unless the parties agree otherwise, this Agreement
shall terminate at the close of business on such date. Notwithstanding any
termination of this Agreement, any party not in breach of this Agreement shall
preserve all rights and remedies it may have against another party hereto for a
breach of this Agreement prior to or relating to the termination hereof.
m. JOINT PARTICIPATION IN DRAFTING. Each party to this Agreement has
participated in the negotiation and drafting of this Agreement. As such, the
language used herein shall be deemed to be the language chosen by the parties
hereto to express their mutual intent, and no rule of strict construction will
be applied against any party to this Agreement.
n. EQUITABLE RELIEF. The Company and each Purchaser acknowledge that a
breach by it of its obligations hereunder will cause irreparable harm to, in the
case of the Company, the Purchasers, and in the case of a Purchaser, the Company
by vitiating the intent and purpose of the transactions contemplated hereby.
Accordingly, the Company and each Purchaser acknowledge that the remedy at law
for a breach of its obligations hereunder (including, but not limited to, in the
case of the Company, its obligations pursuant to Section 5 hereof) will be
inadequate and agrees, in the event of a breach or threatened breach by the
Company or a Purchaser of the provisions of this Agreement (including, but not
limited to, in the case of the Company, its obligations pursuant to Section 5
hereof), that the Company or a Purchaser, as the case may be, shall be entitled,
in addition to all other available remedies, to an injunction restraining any
breach without any bond or other security being required.
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IN WITNESS WHEREOF, the undersigned Purchasers and the Company have
caused this Agreement to be duly executed as of the date first above written.
SELFCARE, INC.
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
PURCHASER:
CAPITAL VENTURES INTERNATIONAL
By: Heights Capital Management, its authorized agent
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
RESIDENCE: Cayman Islands
PRINCIPAL BUSINESS ADDRESS:
c/o Heights Capital Management
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
with copies of all notices to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Susquehanna Financial Group
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
AGGREGATE SUBSCRIPTION AMOUNT
Number of Units to be Purchased: 2,500
----------
Purchase Price ($1,000 per Units): $2,500,000
----------
21
IN WITNESS WHEREOF, the undersigned Purchasers and the Company have
caused this Agreement to be duly executed as of the date first above written.
SELFCARE, INC.
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
PURCHASER:
PROPRIETARY CONVERTIBLE INVESTMENT GROUP, INC.
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
RESIDENCE: New York
PRINCIPAL BUSINESS ADDRESS:
c/o Credit Suisse First Boston Corporation
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇
AGGREGATE SUBSCRIPTION AMOUNT
Number of Units to be Purchased: 3,000
----------
Purchase Price ($1,000 per Unit): $3,000,000
----------
22
IN WITNESS WHEREOF, the undersigned Purchaser and the Company have
caused this Agreement to be duly executed as of the date first above written.
SELFCARE, INC.
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
PURCHASER:
C.C. INVESTMENTS LDC
By: CSS Corporation Ltd., Corporate Secretary
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
RESIDENCE: CAYMAN ISLANDS
PRINCIPAL BUSINESS ADDRESS:
C.C. Investments LDC
c/o Citco Fund Services (Cayman Islands) Ltd.
Corporate Center
West Bay Road
P.O. Box 31106
SMB Grand Cayman, Cayman Islands
with copies of all notices to:
c/o Castle Creek Investments
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Portfolio Manager
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AGGREGATE SUBSCRIPTION AMOUNT
Number of Units to be Purchased: 2,500
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Purchase Price ($1,000 per Unit): $2,500,000
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