UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
BIO-PLEXUS, INC.
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(Name of Issuer)
Common Stock, par value $0.001 per share
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(Title of Class of Securities)
09057C 106
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(CUSIP Number)
Stephen E. Newton
Heller Ehrman White & McAuliffe, LLP
601 South Figueroa Street, 40th Floor
Los Angeles, CA 90017-5758
(213) 689-0200
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(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
October 31, 2002
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box |_|.
NOTE: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
SCHEDULE 13D
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CUSIP NO. 09057C 106 PAGE 2 OF 7 PAGES
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
ICU Medical, Inc. I.D. No. 33-0022692
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |_|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e)|_|
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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7 SOLE VOTING POWER
NUMBER OF
SHARES 14,879,174
BENEFICIALLY -----------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING 0
PERSON -----------------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
BENEFICIALLY
OWNED BY 14,879,174
EACH -----------------------------------------------------------
REPORTING 10 SHARED DISPOSITIVE POWER
PERSON
WITH 0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
14,879,174
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*|_|
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
91%
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14 TYPE OF REPORTING PERSON*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
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CUSIP NO. 09057C 106 PAGE 3 OF 7 PAGES
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ITEM 1. SECURITY AND ISSUER.
(a) The name of the issuer is Bio-Plexus, Inc. (the "Issuer").
(b) The address of the Issuer's principal executive office is 129
Reservoir Road, Vernon, CT, 06066.
(c) The title of the class of securities to which this statement
relates is the common stock, par value $0.001 per share, of the Issuer (the
"Common Stock").
ITEM 2. IDENTITY AND BACKGROUND.
This Report on Schedule 13D is filed in connection with the acquisition
by ICU Medical, Inc. of 13,584,389 shares of Common Stock and warrants (the
"Warrants") to purchase an additional 1,294,788 shares of Common Stock, as
described in Items 4 and 5.
The Reporting Person is ICU Medical, Inc., a Delaware corporation (the
"Reporting Person"). The Reporting Person is primarily engaged in the
manufacture, sale and distribution of disposable medical connection products,
including safe intravenous ("I.V.") connection devices and custom and generic
I.V. systems. The Reporting Person's address is 951 Calle Amanecer, San
Clemente, CA 92673.
(a) The executive officers and directors of the Reporting Person are
George A. Lopez, M.D., Jack W. Brown, John J. Connors, Michael T. Kovlachik III,
M.D., Joseph R. Saucedo, Richard H. Sherman, M.D., Robert S. Swinney, M.D.,
Francis J. O'Brien, Richard A. Costello, Steven Riggs and Alison Brummett.
(b) The business address of each of George A. Lopez, Francis J.
O'Brien, Richard A. Costello, Steve Riggs and Alison Brummett is 951 Calle
Amanecer, San Clemente, CA 92673.
The residence address of Jack W. Brown is 11791 Las Palmas, Santa Ana,
CA 92705.
The business address of John J. Connors is 1600 Dove Street, Suite 220,
Newport Beach, CA 92660.
The business address of Michael T. Kovlachik is 780 Litchfield Street,
Litchfield, CT 06759.
The business address of Joseph R. Saucedo is P.O. Box 90813, Long
Beach, CA 90809.
The business address of Richard H. Sherman is 6109 Old Shawnee Road,
Milford, DE 19963.
The business address of Robert S. Swinney is 1760 North Pepper Drive,
Alta Dena, CA 91001.
(c) Dr. Lopez is currently the Chairman of the Board, President and
Chief Executive Officer of the Issuer.
Mr. Brown is the former Chairman of the Board and President of Gish
Biomedical, Inc., a manufacturer of disposable medical devices.
Mr. Connors is a patent attorney with Connors & Associates.
Dr. Kovalchik is currently a physician and director of the Joseph
Marcantonio Kidney Center of the Charlotte Hungerford Hospital, Torrington,
Connecticut.
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CUSIP NO. 09057C 106 PAGE 4 OF 7 PAGES
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Mr. Saucedo is the Chairman and President of Bolsa Resources, Inc., a
management consulting firm.
Dr. Sherman is a physician with Bay Health, a medical group.
Dr. Swinney is currently a physician and member of the faculty of the
Los Angeles County-University of Southern California Medical Center.
Mr. O'Brien is the Secretary, Treasurer and Chief Financial Officer of
the Issuer.
Mr. Costello is the Vice President of Sales of the Issuer.
Mr. Riggs is the Vice President of Operations of the Issuer.
Ms. Brummett is the Vice President of Marketing of the Issuer.
The address of each corporation or other organization that employs the
foregoing individuals is stated in Item 2(b).
(d) Neither the Reporting Person nor any of its executive officers or
directors has been convicted in any criminal proceeding (excluding traffic
violations or similar misdemeanors) during the last 5 years.
(e) Neither the Reporting Person nor any of its executive officers or
directors was a party to any civil proceeding during the last five years as a
result of which he, she or it has been subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violation with
respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS AND OTHER CONSIDERATION.
The Reporting Person used $6,470,292.60 of its working capital to
purchase 9,795,311 shares of Common Stock and the Warrants from stockholders of
the Issuer. The Reporting Person used an additional $2,499,999 of its working
capital to purchase $2,499,999 principal amount of 7% Senior Subordinated
Non-Convertible Promissory Notes of the Issuer (the "Notes") and subsequently
purchased 3,789,078 shares of newly issued Common Stock from the Issuer in
exchange for cancellation of the Notes.
ITEM 4. PURPOSE OF TRANSACTION.
The purpose of the acquisition of the Common Stock and Warrants is to
acquire 100% of the Common Stock of the Issuer. The Reporting Person plans to
effect a "short-form" reverse triangular merger (the "Merger") pursuant to
Section 253 of the Delaware General Corporation Law. Immediately prior to the
Merger, the Reporting Person will transfer all of the Common Stock to a
newly-formed, wholly owned subsidiary of the Reporting Person (the "Merger
Sub"). The Merger Sub will be merged into the Issuer, the Merger Sub will cease
to exist, and the Issuer will survive the Merger. As a result of the Merger, the
Common Stock, other than the Common Stock held by the Merger Sub, will be
cancelled and converted into $0.6606 per share. The Common Stock held by the
Merger Sub will be cancelled, and the shares of the Merger Sub held by the
Reporting Person will be converted into Common Stock. As a result of the Merger:
(a) the minority stockholders of the Issuer immediately before the Merger will
receive the same price per share of Common Stock, $0.660550041, that the
Reporting Person paid for the Common Stock that it now holds; and (b) the Issuer
will become a wholly-owned subsidiary of the Reporting Person.
The Reporting Person may purchase additional shares of Common Stock
before the Merger is completed. Any such purchases will be at a price of
$0.660550041 per share.
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CUSIP NO. 09057C 106 PAGE 5 OF 7 PAGES
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ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) The Reporting Person is the direct beneficial owner of 14,879,177
shares of Common Stock, or approximately 91% of the outstanding Common Stock.
There are included in the 14,879,177 shares 1,294,788 shares that the Reporting
Person has the right to acquire on exercise of the Warrants, which are
immediately exercisable. The percentage of the outstanding shares owned by the
Reporting Person is based on the total shares of Common Stock outstanding plus
the shares subject to purchase on the exercise of the Warrants.
(b) The Reporting Person has sole voting and dispositive power with
respect to all of its Common Stock and Warrants.
(c) On October 31, 2002, the Reporting Person purchased 9,695,961
shares of Common Stock from existing stockholders of the Issuer for a purchase
price of $0.660550041 per share and Warrants to purchase an additional 1,294,788
shares of Common Stock pursuant to a Securities Purchase Agreement dated as of
October 29, 2002 among the Reporting Person and the sellers named therein (the
"Securities Purchase Agreement"), a copy of which is attached hereto as Exhibit
A. The Reporting Person purchased 99,350 shares of Common Stock from existing
stockholders of the Issuer on November 4, 2002 for a purchase price of
$0.660550041 per share. The Reporting Person purchased 3,789,078 shares of
Common Stock from the Issuer on November 7, 2002 in consideration for the
cancellation of the Notes held by the Reporting Person at a price of
$0.660550041 per share.
(d) Not applicable.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
The Reporting Person purchased Common Stock and Warrants pursuant to
the Securities Purchase Agreement. The Reporting Person purchased the Notes on
October 31, 2002 pursuant to a Note Purchase Agreement dated as of October 29,
2002 among the Reporting Person and the sellers named therein (the "Note
Purchase Agreement"), a copy of which is attached hereto as Exhibit B. The
Warrants provide for the issuance of Common Stock upon exercise of the Warrants.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit A Securities Purchase Agreement
Exhibit B Note Purchase Agreement
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CUSIP NO. 09057C 106 PAGE 6 OF 7 PAGES
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SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
DATED: November 12, 2002
ICU Medical, Inc.
By: /s/ Francis J. O'Brien
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Name: Francis J. O'Brien
Title: Secretary, Treasurer and
Chief Financial Officer
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CUSIP NO. 09057C 106 PAGE 7 OF 7 PAGES
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EXHIBIT INDEX
Exhibit A Securities Purchase Agreement dated October 29, 2002 among the
Reporting person and the sellers named therein.
Exhibit B Note Purchase Agreement dated October 29, 2002 among the
Reporting person and the sellers named therein.
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CUSIP NO. 09057C 106 EXIHIBIT A
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SECURITIES PURCHASE AGREEMENT
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THIS SECURITIES PURCHASE AGREEMENT (this "Agreement") is made as of
October 29, 2002 by and among ICU Medical, Inc., a Delaware corporation
("Buyer") and the entities and individuals listed under "Sellers" on the
signature pages of this Agreement (collectively, "Sellers" and each
individually, a "Seller").
RECITALS
A. Bio-Plexus, Inc., a Delaware corporation (the "Company"), has issued
and outstanding 11,539,941 shares of common stock, $0.001 par value, (the
"Common Stock") and warrants to purchase 1,314,060 shares of Common Stock having
an initial exercise price (subject to adjustment) of $2.28 per share (the "$2.28
Warrants").
B. Each Seller owns the number of shares of Common Stock and $2.28
Warrants to purchase the number of shares of Common Stock listed on Schedule 2.1
opposite each Seller's name, and the Common Stock and $2.28 Warrants owned by
Sellers (together, the "Securities") constitute in the aggregate 9,695,961
shares, or approximately 84% of the outstanding Common Stock, and $2.28 Warrants
to purchase 1,294,788 shares of Common Stock.
C. Sellers desire to sell, and Buyer desires to purchase, all of the
Securities, subject to the terms and conditions set forth in this Agreement.
D. Under the terms of a Note Purchase Agreement of the same date as
this Agreement (the "Note Purchase Agreement") between Buyer and Persons listed
under "Note Sellers" on the signature pages of the Note Purchase Agreement
("Note Sellers"), Buyer has agreed to purchase, and Note Sellers have agreed to
sell, 7% Senior Subordinated Non-Convertible Promissory Notes of the Company in
the aggregate principal amount of $2,499,999 (the "Notes").
AGREEMENT
NOW, THEREFORE, in consideration of the mutual agreements contained in
this Agreement, the parties hereto agree as follows:
1. DEFINITIONS
For purposes of this Agreement, the following terms have the meanings
specified or referred to in this Section 1:
"$2.28 WARRANTS" -- as defined in Recital A.
"ACQUISITION AGREEMENTS" -- as defined in Section 3.5.
"BENEFICIAL OWNER" -- has the meaning ascribed to that term in Rule
13d-3 under the Securities Exchange Act of 1934, as amended.
"BEST EFFORTS" -- commercially reasonable best efforts (whether or not
capitalized in this Agreement).
"BUYER" -- as defined in the Preamble.
"CLOSING" -- as defined in Section 2.3.
"CLOSING DATE" -- the date and time that the Closing takes place.
"COMMON STOCK" -- as defined in Recital A.
"COMPANY" - as defined in Recital A.
"COMVEST" - ComVest Venture Partners, L.P., a Delaware limited
partnership.
"CONTRACTS" -- as defined in Section 3.4.
"DELEGATED ACTIONS" -- as defined in Section 5.7.
"NOTE PURCHASE AGREEMENT" -- as defined in Recital D.
"NOTE SELLERS" -- as defined in Recital D.
"NOTES" -- as defined in Recital D.
"ORDINARY COURSE OF BUSINESS" -- an action taken by the Company will be
deemed to have been taken in the "Ordinary Course of Business" only if:
(a) such action is consistent with the past practices of the
Company and is taken in the ordinary course of the normal day-to-day operations
of the Company;
(b) such action is not required to be authorized by the board
of directors of the Company (or by any person or group of persons exercising
similar authority); and
(c) such action is similar in nature and magnitude to actions
customarily taken, without any authorization by the board of directors (or by
any person or group of persons exercising similar authority), in the ordinary
course of the normal day-to-day operations of other entities that are in the
same line of business as the Company.
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"ORGANIZATIONAL DOCUMENTS" -- (a) the articles or certificate of
incorporation or association and the bylaws of a corporation; (b) the
partnership agreement and any statement of partnership of a general partnership;
(c) the limited partnership agreement and the certificate of limited partnership
of a limited partnership; (d) the articles of association or certificate of
formation and the bylaws or the limited liability company or operating agreement
of a limited liability company; (e) any charter or similar document adopted or
filed in connection with the creation, formation, or organization of any entity;
and (f) any amendment to any of the foregoing.
"PERSON" -- an individual, partnership, corporation, business trust,
limited liability company, limited liability partnership, joint stock company,
trust, unincorporated association, joint venture or other entity.
"SECURITIES" -- as defined in Recital B.
"SECURITIES ACT"-- the Securities Act of 1933, as amended.
"SELLERS" and "SELLER" -- as defined in the Preamble.
2. PURCHASE; CLOSING
2.1 PURCHASE OF SECURITIES. On the basis of the representations,
warranties and agreements set forth herein, and upon the terms and conditions
set forth in this Agreement, at the Closing, each Seller shall sell all the
Securities listed opposite Seller's name on Schedule 2.1 to Buyer, and Buyer
shall purchase all the Securities from Sellers, provided, however, that Buyer
shall not be obligated to purchase any Securities unless all of the Securities
are sold and delivered to Buyer.
2.2 PURCHASE PRICE AND PAYMENT.
(a) The aggregate purchase price to be paid at the Closing for
all the Securities shall equal $6,404,666.80, and the purchase price to be paid
at the Closing to each Seller for such Seller's Securities shall be the amount
set forth opposite such Seller's name on Schedule 2.1.
(b) At the Closing, Buyer shall pay all the amounts required
by Section 2.2(a) in United States Dollars by an individual wire transfer to the
account of each Seller as designated by such Seller.
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2.3 CLOSING. The purchase and sale of the Securities (the "Closing")
will take place at the offices of Commonwealth Associates, L.P., 830 Third
Avenue, New York, New York, at 10:00 a.m. local time on October 31, 2002 or such
later date as all of the conditions in Sections 7 and 8 are satisfied, or at
such other time and place as Buyer and Sellers may agree. Subject to Section 9,
the failure to complete the Closing on the date and at the time and place
determined pursuant to this Section 2.3 will not result in the termination of
this Agreement and will not relieve any party of any obligation under this
Agreement.
3. REPRESENTATIONS AND WARRANTIES OF SELLERS
Each Seller severally, but not jointly, represents and warrants to
Buyer that:
3.1 ORGANIZATION AND GOOD STANDING. Each Seller, other than an
individual, is, and at the Closing Date will be, duly organized, validly
existing and in good standing under the laws of its jurisdiction of organization
applicable to its particular type of business organization, with full power and
authority to carry on its business and to execute and deliver this Agreement, to
consummate the transactions contemplated hereby, and to sell, transfer and
deliver the Securities pursuant to Section 2 in the manner provided therein.
3.2 AUTHORIZATION; AUTHORITY.
(a) The execution and delivery by each Seller, other than an
individual, of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by such Seller's board
of directors or similar governing body. No other corporate or other proceedings
on the part of such Seller is necessary to authorize this Agreement and the
transactions contemplated hereby.
(b) Each Seller who is an individual has full power and
authority without the consent or approval of any other Person to execute and
deliver this Agreement, to consummate the transactions contemplated hereby and
to sell, transfer and deliver the Securities pursuant to Section 2 in the manner
provided therein.
3.3 DUE EXECUTION; VALID AND BINDING AGREEMENT. This Agreement has been
duly and validly executed and delivered by each Seller and, assuming the valid
execution by the Buyer, constitutes a legal, valid and binding agreement of each
Seller, enforceable against such Seller in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the rights of creditors generally or
by general equitable principles. Except as identified in Schedule 3.3, no filing
with, and no permit, authorization, consent or approval of any public body or
authority is necessary for the consummation by any Seller of the transactions
contemplated by this Agreement.
3.4 NO BREACH OR VIOLATION. None of the execution and delivery by any
Seller of this Agreement, or the consummation by any Seller of the transactions
contemplated hereby will: (i) conflict with, or result in a violation or breach
of, or constitute a default under, require any notice under or result in the
creation of any lien or encumbrance upon any of the Securities, or any of the
A-4
assets of the Company pursuant to the terms of, any provision of any Seller's
Organizational Documents or any contract, indenture, mortgage, lease, agreement,
instrument, commitment or other arrangement to which any Seller is a party or by
which any Seller or any of the Securities or any of the assets of any Seller is
bound, whether written or oral (collectively, "Contracts"); (ii) except as set
forth in Schedule 3.4, require the consent or approval of any third party, or in
the absence of the consent of any third party to the change of ownership and
control of the Company contemplated by this Agreement, result in the loss of any
rights or benefits under any Contract either automatically or at the election of
any third party; (iii) violate any judgment, order, permit, injunction, writ,
decree or award of any court or any regulatory or governmental authority against
or binding upon any Seller or any assets of any Seller or any of the Securities;
or (iv) assuming that all filings, permits, authorizations, consents, and
approvals have been duly made or obtained pursuant to the legal requirements
identified in Schedule 3.4, constitute a violation by any Seller of, or either
automatically or at the election of any third party result in the loss of any
rights or benefits under, any statute, law, rule, ordinance or regulation of any
regulatory or governmental authority.
3.5 ACQUISITIONS OF SECURITIES. Schedule 3.5 includes a list of all
stock purchase, note purchase, warrant and other similar agreements pursuant to
which any Seller since December 31, 1999 purchased or acquired the Securities or
other equity securities, debt securities or instruments or securities or
instruments convertible directly or indirectly into equity securities of the
Company (collectively, the "Acquisition Agreements"). No party to any
Acquisition Agreement has asserted any claims against any other party in
connection with any of the transactions completed by any Acquisition Agreement,
including any claims for breach or inaccuracy of any representations, warranties
or covenants or for indemnification, reimbursement or set-off. To the best
knowledge of each Seller, there is no event or circumstance that would
reasonably be expected to form the basis for any such claim for indemnification,
reimbursement or set-off assuming that (whether or not true) all representations
and warranties still survived and all relevant claims periods were still open.
3.6 FEES OR COMMISSIONS. Except as set forth on Schedule 3.6, no Seller
has incurred any obligation or liability for any investment banker fees,
brokerage fees, commissions, finders' fees or other similar payments in
connection with any of the transactions contemplated by this Agreement.
3.7 TITLE TO SECURITIES. Each Seller is the sole legal and Beneficial
Owner and holder of all of the Securities listed opposite such Seller's name on
Schedule 2.1, and Buyer will acquire good and marketable title to all the
Securities listed opposite such Seller's name on Schedule 2.1, free and clear of
any security, interest, claim, lien or encumbrance.
3.8 OTHER SECURITIES. Except as set forth in Schedule 3.8, no Seller
holds of record or is the Beneficial Owner of, or has any interest in, any
equity securities, debt securities or instruments or securities or instruments
convertible directly or indirectly into equity securities of the Company, other
than the Securities listed opposite such Seller's name in Schedule 2.1.
3.9 FULL DISCLOSURE. No representation or warranty of any Seller in
this Agreement and no statement in any Schedule omits to state a material fact
necessary to make any of the statements herein or therein, in light of the
circumstances in which they were made, not misleading.
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4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Sellers as follows:
4.1 ORGANIZATION AND GOOD STANDING. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, with full power and authority to carry on its business and to enter
into and carry out the terms of this Agreement.
4.2 AUTHORIZATION. Buyer has all requisite corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery by Buyer of this
Agreement and the consummation of the transactions contemplated hereby have been
duly and validly authorized by the Board of Directors of Buyer in accordance
with Delaware law and the Organizational Documents of Buyer. No other corporate
proceedings on the part of Buyer are necessary to authorize this Agreement and
the transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by Buyer and, assuming the valid execution by each of the
Sellers, constitutes a legal, valid and binding agreement, enforceable against
Buyer in accordance with its terms, except as such enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the rights of creditors generally or by general equitable principles.
No filing with, and no permit, authorization, consent or approval of any public
body or authority is necessary for the consummation by Buyer of the transactions
contemplated by this Agreement.
4.3 NO BREACH OR VIOLATION. Neither the execution and delivery by Buyer
of this Agreement nor the consummation of the transactions contemplated hereby
will: (i) conflict with, or result in a violation or breach of, constitute a
default under or require any notice under any provision of the Organizational
Documents of Buyer, or any material contract, indenture, mortgage, lease,
agreement, instrument, commitment or other arrangement to which it is a party or
by which it or any of its properties is bound; (ii) violate any judgment, order,
permit, license, injunction, writ, decree or award of any court or any
regulatory or governmental authority against, or binding upon, Buyer or any of
its assets; or (iii) constitute a violation by Buyer of any statute, law, rule,
ordinance or regulation of any regulatory or governmental authority.
4.4 INVESTMENT INTENT. Buyer is acquiring the Securities for its own
account and not with a view to their distribution within the meaning of Section
2(11) of the Securities Act.
4.5 FEES AND COMMISSIONS. Except for the transaction fee payable to
Cinnamon Associates described in Section 6.1, neither Buyer nor any of its
affiliates has incurred any liability for any investment banker fees, brokerage
fees, commissions, finders' fees or other similar payments in connection with
any of the transactions contemplated by this Agreement.
5. COVENANTS OF SELLERS
A-6
5.1 ASSIGNMENTS OF RIGHTS UNDER ACQUISITION AGREEMENTS. At the Closing,
each Seller shall assign to Buyer all of the rights in favor of such Seller
under the Acquisition Agreements and any agreements and instruments contemplated
by or issued or delivered in connection with the transactions contemplated by
the Acquisition Agreements ("related instruments"), including all rights to
indemnification, reimbursement or set-off, and use its best efforts to obtain
any consents required in connection with such assignments to avoid the loss of
any benefits under the Acquisition Agreements or related instruments either
automatically or at the election of a third party or parties.
5.2 CONSENTS. Before the Closing, Sellers shall use their best efforts
to obtain the consents of all Persons that are identified or required to be
identified in Schedule 3.4.
5.3 PUBLIC ANNOUNCEMENTS. After the Closing, Buyer intends to issue a
joint public announcement with the Company of the transactions contemplated by
this Agreement. Any other public announcement or similar publicity with respect
to this Agreement or any of the transactions contemplated hereby will be issued,
if at all, at such time and in such manner as Buyer and the Company mutually
determine; provided, however, that Sellers shall be entitled to pre-approve any
public announcement if Sellers are specifically identified therein. Unless
consented to by Buyer in advance, before the Closing, Sellers shall keep this
Agreement and the transactions it contemplates strictly confidential and shall
not make any disclosure of this Agreement or the transactions it contemplates to
any Person except for such disclosure as is required by law or regulation.
5.4 NO NEGOTIATIONS. Until such time, if any, as this Agreement is
terminated pursuant to Section 9, no Seller shall: (i) directly or indirectly
solicit, initiate, or encourage any inquiries or proposals from, discuss or
negotiate with, provide any non-public information to, or consider the merits of
any unsolicited inquiries or proposals from, any Person (other than Buyer or
Buyer's affiliates) relating to any transaction involving the sale of the
business or assets (other than in the Ordinary Course of Business) of the
Company, or any of the capital stock or other equity interest in the Company, or
any merger, consolidation, business combination or similar transaction involving
the Company; (ii) sell, transfer, convey or encumber or agree to sell, transfer,
convey or encumber any Securities, capital stock or other interest in the
Company to any person (other than Buyer or Buyer's affiliates); or (iii) vote
for, agree to vote for or grant any Person a proxy authorizing such Person to
vote for any merger, consolidation, business combination involving the Company
and any Person other than Buyer or Buyer's affiliates.
5.5 APPOINTMENT OF COMVEST.
(a) Each Seller acknowledges that this Agreement provides that
ComVest may act on behalf of the Sellers with respect to certain matters and
hereby irrevocably designates and appoints ComVest as the agent and
representative of such Seller with authority to act on such Seller's behalf with
respect to any matter as to which this Agreement provides that ComVest may act
on behalf of Sellers ("Delegated Actions") and hereby acknowledges that ComVest
shall be the only Person authorized to take any Delegated Action on behalf of
such Seller. Each Seller shall be bound by any and all actions taken by ComVest
on such Seller's behalf.
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(b) Buyer shall be entitled to rely upon any communication or
writings given or executed by ComVest with respect to Delegated Actions as
binding all Sellers and their successors, assigns, heirs and spouses and will
not be bound or put on notice by any communications from any Seller.
(c) Without limiting the foregoing, each Seller: (i) agrees
that (A) all notices to be sent to Sellers pursuant to this Agreement may be
addressed to ComVest, (B) any notice so sent shall be deemed notice to all
Sellers and (C) Sellers hereby consent and agree that ComVest is authorized to
accept notice on behalf of Sellers; and (ii) each Seller hereby irrevocably
appoints ComVest as the lawful agent of such Seller and its successor to receive
and forward on their behalf service of all necessary processes (including
service in the manner provided in Section 10.12) in any action, suit, or
proceeding arising under or in any way relating to this Agreement , any of the
transactions contemplated hereby or any of their subject matter and that may be
brought against any Seller or its successor in any court (including federal
courts), and such service of process or notice received thereof by ComVest will
have the same force and effect as if served upon such Seller or its successor.
5.6 BEST EFFORTS. Between the date of this Agreement and the Closing
Date, Sellers shall use their best efforts to cause the conditions in Section 7
to be satisfied.
5.7 EXPENSES. Whether or not the transactions contemplated by this
Agreement are consummated, Sellers shall be responsible for and shall pay, all
of their costs and expenses in connection with this Agreement or the
transactions contemplated hereby, including investment bankers', attorneys',
accountants' and consultants' fees and expenses and travel expenses. None of
such expenses shall be charged to or paid by the Company. Before the Closing,
Sellers shall reimburse the Company for any of their expenses that have been
charged to or paid by the Company.
6. COVENANTS OF THE BUYER
6.1 EXPENSES. Whether or not the transactions contemplated by this
Agreement are consummated, Buyer shall be responsible for and shall pay or cause
an affiliate to pay all costs and expenses incurred by Buyer or its affiliates
in connection with this Agreement and the transactions contemplated hereby,
including investment bankers', attorneys', accountants' and consultants' fees
and travel expenses. At and subject to the Closing, Buyer shall pay a
transaction fee in the amount of $290,829 to Commonwealth Associates, L.P.
6.2 BEST EFFORTS. Between the date of this Agreement and the Closing
Date, Buyer shall use its best efforts to cause the conditions in Section 8 to
be satisfied.
7. CONDITIONS TO OBLIGATION OF BUYER
The obligation of Buyer to purchase the Securities is subject to the
satisfaction on or before the Closing of each of the following conditions, any
of which may be waived by Buyer, in whole or in part in its sole discretion:
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7.1 REPRESENTATIONS AND WARRANTIES OF SELLERS. All representations and
warranties of Sellers contained in this Agreement and the information in the
Schedules shall be true and correct in all material respects on the Closing Date
with the same effect as though made at such date without giving effect to any
supplement to the Disclosure Schedule.
7.2 COVENANTS OF SELLERS. Sellers shall have performed in all material
respects all covenants required by this Agreement to be performed by them on or
before the Closing.
7.3 DELIVERY OF DOCUMENTS. Buyer shall have received the consents of
all Persons that are identified or required to be identified in Schedule 3.4.
7.4 RESIGNATIONS. Buyer shall have received written resignations,
effective as of the Closing, from such officers and directors of the Company as
Buyer shall have requested in writing at least three business days before the
Closing.
7.5 INJUNCTIONS. None of Buyer, Sellers, the Company or any of their
affiliates shall be subject to any order, decree or injunction of any court or
agency of competent jurisdiction which prevents or delays the consummation of
any of the transactions contemplated by this Agreement.
7.6 PURCHASE OF NOTES. Sellers shall have tendered the Notes pursuant
to the terms of the Note Purchase Agreement.
7.7 TERMINATION OF ADVISORY AGREEMENT. The Company and Commonwealth
Associates, L.P. shall have terminated the advisory agreement between them dated
May 10, 2002 and shall have no further obligations to each other thereunder,
provided that the Company shall continue to pay the monthly fee to Commonwealth
Associates, L.P. pursuant to Section 2(a) thereof until the Company terminates
payment of such fee at any time after November 30, 2002 on 30 days' written
notice.
7.8 ABSENCE OF CERTAIN CHANGES. Since June 30, 2002:
(a) There shall have been no change adverse to the Company in
its relationships with licensors, licensees, suppliers, customers, creditors,
landlords and others having business relations with the Company;
(b) Except as otherwise expressly provided in this Agreement,
without the prior written consent of Buyer, the Company shall not have:
(1) amended any of its Organizational Documents;
(2) issued, sold, granted or agreed to issue, sell or
grant any shares, capital stock or equity interests of any class or any options,
warrants, rights to purchase any shares, capital stock or equity interests of
any class or any securities convertible into shares, capital stock or equity
interests of any class;
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(3) assumed, guaranteed, endorsed or otherwise become
liable or responsible (whether directly, contingently or otherwise) for the
obligations of any other Person or created, incurred or assumed any short-term
debt or long-term debt;
(4) except as disclosed in Schedule 7.8, paid or
agreed to pay any bonuses or made or agreed to make any increase in the rate of
wages, salaries, or other remuneration of any of its directors, officers or
employees or paid or agreed to pay any pension, retirement allowance or other
employee benefit to any of its directors, officers or employees, whether past or
present;
(5) sold, transferred, mortgaged, or otherwise
disposed of, or encumbered, or agreed to sell, transfer, mortgage or otherwise
dispose of or encumber, any properties, tangible or intangible, real, personal
or mixed, except sales of inventory in the Ordinary Course of Business and
encumbrances of after acquired assets under the Company's existing credit
facilities;
(6) entered into or modified in any material respect
any Contract or any other material obligation, agreement, commitment or
contract, or made any material additions to its property or purchases of assets
(other than as provided for in contract commitments existing at the date of this
Agreement), except agreements, commitments or contracts for the purchase and
sale of goods and services in the Ordinary Course of Business and not in excess
of current requirements;
(7) acquired or agreed to acquire any interest in any
corporation, partnership, firm, limited liability company, association, business
organization, enterprise or other entity, whether by acquisition of stock or
other ownership interests, asset acquisition, merger, consolidation or other
business combination;
(8) made any payments of principal or interest on any
debt other than as required by the terms thereof or discharged or satisfied any
material lien or other encumbrance or paid any material liability or obligation
whether fixed or contingent (except in the Ordinary Course of Business);
(9) extended or deferred payment of the Company's
accounts payable in a manner inconsistent with the Company's past practices;
(10) declared or paid any dividends or made any
distributions, either in cash or in kind, or repurchased any of its equity
securities or other equity interests; or
(11) changed any method of accounting or made any new
tax election or any change in any tax election; and
(c) There shall not have been any change in the condition
(financial or other), net worth, assets, liabilities, prospects, business,
properties or results of operations of the Company (other than changes made or
incurred in the Ordinary Course of Business which are not material or adverse,
either individually or in the aggregate), and the Company shall not have:
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(1) incurred any obligation or liability (except for
obligations incurred in the Ordinary Course of Business which are not material
or adverse, either individually or in the aggregate);
(2) waived or released any material rights;
(3) made any single capital expenditure or
improvement in excess of $25,000, or $50,000 in the aggregate, or entered into
any commitment therefor; or
(4) suffered any damage, destruction or loss (whether
or not covered by insurance) adversely affecting the assets, business or
prospects of the Company.
7.9 CERTIFICATES. Buyer shall have received such certificates of
officers of the Company or others and such other documents to evidence
fulfillment of the conditions set forth in this Section 7 as Buyer may
reasonably request.
8. CONDITIONS TO OBLIGATIONS OF SELLERS
The obligations of Sellers to sell the Securities to Buyer are subject
to satisfaction on or before the Closing of the following conditions, any of
which may be waived by ComVest on behalf of all of the Sellers, in whole or in
part in the sole discretion of ComVest:
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8.1 REPRESENTATIONS AND WARRANTIES OF BUYER. All representations and
warranties of Buyer contained in this Agreement shall be true in all material
respects on the Closing Date with the same effect as though made at such date.
8.2 COVENANTS OF BUYER. Buyer shall have performed in all material
respects all of its covenants required by this Agreement to be performed by
Buyer on or before the Closing.
8.3 INJUNCTIONS. None of Buyer, Sellers, the Company or any of their
affiliates shall be subject to any order, decree or injunction of a court or
agency of competent jurisdiction which prevents or delays the consummation of
any of the transactions contemplated by this Agreement.
8.4 PURCHASE OF NOTES. Buyer shall have purchased the Notes pursuant to
the terms of the Note Purchase Agreement.
8.5 CERTIFICATES. Buyer shall have furnished Sellers with certificates
of its officers or others and such other documents to evidence fulfillment of
the conditions set forth in this Section 8 as ComVest may reasonably request.
9. TERMINATION
9.1 TERMINATION EVENTS. This Agreement may be terminated by written
notice given before the Closing:
(a) by Buyer, if a material breach of any provision of this
Agreement has been committed by any Seller and such breach has not been waived
or, if such breach is curable, cured within seven days of written notice of such
breach;
(b) by ComVest acting on behalf of each of the Sellers, if a
material breach of any provision of this Agreement has been committed by Buyer
and such breach has not been waived or, if such breach is curable, cured within
seven days of written notice of such breach;
(c) by mutual consent of Buyer and ComVest acting on behalf of
each of the Sellers;
(d) by Buyer, if the Closing has not occurred on or before
November 1, 2002; or
(e) by ComVest acting on behalf of each of the Sellers, if the
Closing has not occurred on or before November 1, 2002
9.2 EFFECT OF TERMINATION. Buyer's or ComVest's right of termination
under Section 9.1 is in addition to any other rights any party may have under
this Agreement or otherwise, and the exercise of a right of termination will not
be an election of remedies. If this Agreement is terminated pursuant to Section
9.1, all further obligations of the parties under this Agreement will terminate,
except that the obligations in Sections 5.3, 5.5, 5.7, 6.1, 9.2, and 10, will
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survive. However, if this Agreement is terminated by a party because of a breach
of the Agreement by another party or because one or more of the conditions to
the terminating party's obligations under this Agreement is not satisfied as a
result of another party's failure to comply with its obligations under this
Agreement, the terminating party's right to pursue all legal remedies will
survive such termination unimpaired.
10. MISCELLANEOUS
10.1 HEADINGS. Section and other headings contained in this Agreement
are included solely for convenience and reference and shall not affect in any
way the meaning or interpretation of this Agreement.
10.2 GOVERNING LAW. The validity, construction and interpretation of
this Agreement, all disputes among the parties arising out of this Agreement or
the transactions contemplated hereby, and all matters related to but not covered
by this Agreement shall be governed by the law of the State of New York.
10.3 ENTIRE AGREEMENT. This Agreement, including any exhibits,
schedules and the certificates delivered and to be delivered pursuant to this
Agreement (which are incorporated into this Agreement by this reference and are
made a part hereof) embody the entire agreement and understanding between and
among the parties pertaining to their subject matter, and supersede all prior
and contemporaneous agreements, understandings, negotiations, representations
and discussions, whether written or oral, pertaining to their subject matter.
10.4 ASSIGNMENT. Neither this Agreement nor any rights or obligations
under this Agreement may be assigned, hypothecated or otherwise transferred by
any party without the prior written consent of ComVest on behalf of all of the
Sellers, for an assignment by Buyer, or Buyer, for any assignment by Sellers,
provided that Buyer may assign this Agreement or any rights under this Agreement
to another entity that is controlled by, controls or is under common control
with Buyer if Buyer remains obligated after the date of such assignment to
guarantee all payment and performance obligations of the assignee hereunder. Any
assignment by a party of rights under this Agreement that does not conform
strictly with the provisions of this Section 10.4 shall be null and void and
shall not vest in any assignee any rights as against a non-assigning party.
10.5 BINDING EFFECT. The provisions of this Agreement shall bind and
inure to the benefit of the parties and their respective successors and
permitted assigns.
10.6 PARTIES IN INTEREST. Nothing in this Agreement, expressed or
implied, is intended to confer on any Person other than the parties to this
Agreement, any right or remedy under or by reason of this Agreement.
10.7 NOTICES. Any notice or communication required or permitted by this
Agreement shall be deemed sufficiently given if in writing and, if delivered
personally, when it is delivered or, if delivered in another manner, the earlier
of when it is actually received by the Person to which it is directed, or when
the period set forth below expires (whether or not it is actually received):
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(a) if transmitted by telecopier, telex or facsimile
transmission ("fax"), 24 hours after (i) transmission to the Person's fax number
set forth below, with the Person's name and address set forth below clearly
shown on the page first transmitted, and (ii) receipt by the transmitting Person
of written confirmation of successful transmission, which confirmation may be
produced by the transmitting Person's equipment;
(b) if deposited in the United States Mail, postage prepaid,
and addressed to the Person to receive it as set forth below 48 hours after such
deposit; or
(c) if sent by Federal Express, or a similar delivery service
in general usage for delivery to the address of the Person to receive it as set
forth below, 24 hours after the delivery time promised by the delivery service:
If to Buyer:
ICU Medical, Inc.
951 Calle Amanecer
San Clemente, California 92673
Attention: Francis J. O'Brien
Fax No. (949) 366-4264
With a copy to:
Heller Ehrman White & McAuliffe LLP
601 S. Figueroa Street
Los Angeles, California 90017
Attention: Stephen E. Newton, Esq.
Fax No. (213) 614-1868
If to the Sellers:
ComVest Venture Partners, L.P.
830 Third Avenue
New York, New York 10022
Attention: Anthony Giardina
Fax No. (212) 829-5968
With a copy to:
Carl Kleidman
830 Third Avenue
New York, New York 10022
Fax No. (212) 829-5928
or to such other address as a Person to whom notice is to be given has furnished
to the other Persons listed above in the manner provided above.
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10.8 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together will constitute a single agreement.
10.9 AMENDMENT AND WAIVER. This Agreement may not be amended except by
an instrument in writing signed on behalf of all parties. At any time before the
Closing: (i) Buyer may extend the time for the performance of any of the
obligations or other acts of Sellers or waive compliance with any of the
agreements of Sellers or with any conditions to its own obligations; (ii)
ComVest acting on behalf of the Sellers may extend the time for the performance
of any of the obligations or other acts of the Buyer or waive compliance with
any of the agreements of the Buyer or with any conditions to Sellers'
obligations. Any agreement on the part of a party to any such extension or
waiver shall be valid only if set forth in an instrument in writing signed on
behalf of such party. No waiver of any provision of this Agreement shall be
deemed or shall constitute a waiver of any other provisions (whether or not
similar), nor shall such waiver constitute a continuing waiver unless otherwise
expressly provided, nor shall any forbearance by a party to seek a remedy for
noncompliance or breach by another party be construed as a waiver of any right
or remedy with respect to such noncompliance or breach.
10.10 SEVERABLE PROVISIONS. If any provision of this Agreement is
determined to be illegal or otherwise unenforceable, in whole or in part, the
remaining provisions, and any partially enforceable provisions to the extent
enforceable, shall nevertheless be binding and enforceable.
10.11 RULES OF CONSTRUCTION. This Agreement has been negotiated by the
parties and is to be interpreted according to its fair meaning as if the parties
had prepared it together and not strictly for or against any party. References
in this Agreement to Sections and Schedules are to Sections and Schedules of
this Agreement unless expressly indicated otherwise. At each place in this
Agreement where the context so requires, the masculine, feminine or neuter
gender includes the others and the singular or plural number includes the other.
"Including" means "including without limitation."
10.12 NON-EXCLUSIVE CONSENT TO JURISDICTION. Each of the parties
hereto: (i) consents to submit itself to the personal jurisdiction of the United
States District Court for the Southern District of New York or the courts of the
State of New York located in the County of New York with respect to any and all
disputes arising out of: (A) this Agreement, including the validity construction
and interpretation hereof and thereof and the rights and remedies of the parties
hereunder and thereunder; (B) any of the transactions contemplated by this
Agreement; and (C) any matters related to but not covered hereby, in each case
to the extent such court would have subject matter jurisdiction with respect to
such dispute; (ii) agrees that it will not attempt to deny or defeat such
personal jurisdiction or venue by motion or other request for leave from any
such court; (iii) agrees that service of process in any such suit, action or
proceeding may be effected by notice by any of the means provided in Section
10.7 and, in the case of service of process on any Seller, by notice to ComVest;
and (iv) agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law.
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10.13 WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE
LAW THAT CANNOT BE WAIVED, EACH PARTY HEREBY WAIVES, AND COVENANTS THAT IT WILL
NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY
JURY IN ANY FORUM WITH RESPECT TO ANY ISSUE, CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF,
WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER SOUNDING IN TORT OR
CONTRACT OR OTHERWISE.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
BUYER: ICU Medical, Inc.
By
------------------------------
Title
----------------------------
SELLERS: ComVest Venture Partners, L.P.
By
------------------------------
Title
----------------------------
/S/ Robert Priddy
---------------------------------
Robert Priddy
RMC Capital Partners
By
------------------------------
Title
----------------------------
Noam and Geraldine Gottesman
/S/ Noam Gottesman
---------------------------------
Noam Gottesman
/S/ Geraldine Gottesman
---------------------------------
Geraldine Gottesman
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/S/ Aaron David Trust TTEE
---------------------------------
Aaron David Trust TTEE Carol Hill
Trust
Harvard Investments, Inc.
By
------------------------------
Title
----------------------------
/S/ Douglas Levine
---------------------------------
Douglas Levine
RFJM Partners, LLC
By
------------------------------
Title
----------------------------
/S/ Daniel Och
---------------------------------
Daniel Och
Chesed Congregation of America
By
------------------------------
Title
----------------------------
Shea Ventures, LLC
By
------------------------------
Title
----------------------------
Lay Ventures
By
------------------------------
Title
----------------------------
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------------------------------- ------------------------------
CUSIP NO. 09057C 106 EXIHIBIT B
------------------------------- ------------------------------
NOTE PURCHASE AGREEMENT
-----------------------
THIS NOTE PURCHASE AGREEMENT (this "Agreement") is made as of October
29, 2002 by and among ICU Medical, Inc., a Delaware corporation ("Buyer") and
the entities and individuals listed under "Note Sellers" on the signature pages
of this Agreement (collectively, "Sellers" and each individually, a "Seller").
RECITALS
A. Bio-Plexus, Inc., a Delaware corporation (the "Company"), has issued
and sold Senior Subordinated 7% Non-Convertible Promissory Notes of the Company
in the aggregate principal amount of $2,499,999.00 (the "Notes").
B. Each Seller holds the amount of principal of the Notes listed on
Schedule 2.1 opposite each Seller's name.
C. Sellers desire to sell, and Buyer desires to purchase, all of the
Notes, subject to the terms and conditions set forth in this Agreement.
D. Under the terms of a Securities Purchase Agreement of the same date
as this Agreement (the "Securities Purchase Agreement") between Buyer and
Persons listed under "Sellers" on the signature pages of the Securities Purchase
Agreement ("Securities Sellers"), Buyer has agreed to purchase, and Securities
Sellers have agreed to sell, 9,695,961 shares of common stock, $0.001 par value
(the "Common Stock"), of the Company and warrants to purchase 1,294,788 shares
of the Company's Common Stock having an initial exercise price (subject to
adjustment) of $2.28 per share, for an aggregate purchase price of $6,404,666.80
(the Common Stock and warrants being referred to as the "Securities").
AGREEMENT
NOW, THEREFORE, in consideration of the mutual agreements contained in
this Agreement, the parties hereto agree as follows:
1. DEFINITIONS
For purposes of this Agreement, the following terms have the meanings
specified or referred to in this Section 1:
"BENEFICIAL OWNER" -- has the meaning ascribed to that term in Rule
13d-3 under the Securities Exchange Act of 1934, as amended.
B-1
"BEST EFFORTS" -- commercially reasonable best efforts (whether or not
capitalized in this Agreement).
"BUYER" -- as defined in the Preamble.
"CLOSING" -- as defined in Section 2.3.
"CLOSING DATE" -- the date and time that the Closing takes place.
"COMMON STOCK" -- as defined in Recital D.
"COMPANY" - as defined in Recital A.
"COMVEST" - ComVest Venture Partners, L.P., a Delaware limited
partnership.
"CONTRACTS" -- as defined in Section 3.4.
"DELEGATED ACTIONS" -- as defined in Section 5.4.
"NOTES" -- as defined in Recital A.
"ORGANIZATIONAL DOCUMENTS" -- (a) the articles or certificate of
incorporation or association and the bylaws of a corporation; (b) the
partnership agreement and any statement of partnership of a general partnership;
(c) the limited partnership agreement and the certificate of limited partnership
of a limited partnership; (d) the articles of association or certificate of
formation and the bylaws or the limited liability company or operating agreement
of a limited liability company; (e) any charter or similar document adopted or
filed in connection with the creation, formation, or organization of any entity;
and (f) any amendment to any of the foregoing.
"PERSON" -- an individual, partnership, corporation, business trust,
limited liability company, limited liability partnership, joint stock company,
trust, unincorporated association, joint venture or other entity.
"SECURITIES" -- as defined in Recital D.
"SECURITIES ACT"-- the Securities Act of 1933, as amended.
"SECURITIES PURCHASE AGREEMENT" -- as defined in Recital D.
"SECURITIES SELLERS" -- as defined in Recital D.
"SELLERS" and "SELLER" -- as defined in the Preamble.
2. PURCHASE; CLOSING
2.1 PURCHASE OF NOTES. On the basis of the representations, warranties
and agreements set forth herein, and upon the terms and conditions set forth in
this Agreement, at the Closing, each Seller shall sell all the Notes listed
opposite Seller's name on Schedule 2.1 to Buyer, and Buyer shall purchase all
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the Notes from Sellers, provided, however, that Buyer shall not be obligated to
purchase any Notes unless all of the Notes are sold and delivered to Buyer.
2.2 PURCHASE PRICE AND PAYMENT.
(a) The aggregate purchase price to be paid at the Closing for
all the Notes shall equal $2,499,999.00, and the purchase price to be paid at
the Closing to each Seller for such Seller's Notes shall be the amount set forth
opposite such Seller's name on Schedule 2.1.
(b) At the Closing, Buyer shall pay all the amounts required
by Section 2.2(a) in United States Dollars by an individual wire transfer to the
account of each Seller as designated by such Seller.
2.3 CLOSING. The purchase and sale of the Notes (the "Closing") will
take place at the offices of Commonwealth Associates, L.P., 830 Third Avenue,
New York, New York, at 10:00 a.m. local time on October 31, 2002 or such later
date as all of the conditions in Sections 7 and 8 are satisfied, or at such
other time and place as Buyer and Sellers may agree. Subject to Section 9, the
failure to complete the Closing on the date and at the time and place determined
pursuant to this Section 2.3 will not result in the termination of this
Agreement and will not relieve any party of any obligation under this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF SELLERS
Each Seller severally, but not jointly, represents and warrants to
Buyer that:
3.1 ORGANIZATION AND GOOD STANDING. Each Seller, other than an
individual, is, and at the Closing Date will be, duly organized, validly
existing and in good standing under the laws of its jurisdiction of organization
applicable to its particular type of business organization, with full power and
authority to carry on its business and to execute and deliver this Agreement, to
consummate the transactions contemplated hereby, and to sell, transfer and
deliver the Notes pursuant to Section 2 in the manner provided therein.
3.2 AUTHORIZATION; AUTHORITY.
(a) The execution and delivery by each Seller, other than an
individual, of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by such Seller's board
of directors or similar governing body. No other corporate or other proceedings
on the part of such Seller is necessary to authorize this Agreement and the
transactions contemplated hereby.
(b) Each Seller who is an individual has full power and
authority without the consent or approval of any other Person to execute and
deliver this Agreement, to consummate the transactions contemplated hereby and
to sell, transfer and deliver the Notes pursuant to Section 2 in the manner
provided therein.
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3.3 DUE EXECUTION; VALID AND BINDING AGREEMENT. This Agreement has been
duly and validly executed and delivered by each Seller and, assuming the valid
execution by the Buyer, constitutes a legal, valid and binding agreement of each
Seller, enforceable against such Seller in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the rights of creditors generally or
by general equitable principles. Except as identified in Schedule 3.3, no filing
with, and no permit, authorization, consent or approval of any public body or
authority is necessary for the consummation by any Seller of the transactions
contemplated by this Agreement.
3.4 NO BREACH OR VIOLATION. Neither the execution and delivery by any
Seller of this Agreement, nor the consummation by any Seller of the transactions
contemplated hereby will: (i) conflict with, or result in a violation or breach
of, or constitute a default under, require any notice under or result in the
creation of any lien or encumbrance upon any of the Notes or any of the assets
of the Company pursuant to the terms of any provision of any Seller's
Organizational Documents or any contract, indenture, mortgage, lease, agreement,
instrument, commitment or other arrangement to which any Seller is a party or by
which any Seller or any of the Notes or any of the assets of any Seller is
bound, whether written or oral (collectively, "Contracts"); (ii) except as set
forth in Schedule 3.4, require the consent or approval of any third party, or in
the absence of the consent of any third party, result in the loss of any rights
or benefits under any Contract either automatically or at the election of any
third party; (iii) violate any judgment, order, permit, injunction, writ, decree
or award of any court or any regulatory or governmental authority against or
binding upon any Seller or any assets of any Seller or any of the Notes; or (iv)
assuming that all filings, permits, authorizations, consents, and approvals have
been duly made or obtained pursuant to the legal requirements identified in
Schedule 3.4, constitute a violation by any Seller of, or either automatically
or at the election of any third party result in the loss of any rights or
benefits under, any statute, law, rule, ordinance or regulation of any
regulatory or governmental authority.
3.5 FEES OR COMMISSIONS. Except as set forth on Schedule 3.6, no Seller
has incurred any obligation or liability for any investment banker fees,
brokerage fees, commissions, finders' fees or other similar payments in
connection with any of the transactions contemplated by this Agreement.
3.6 TITLE TO NOTES. Each Seller is the sole legal and Beneficial Owner
and holder of all of the Notes listed opposite such Seller's name on Schedule
2.1, and Buyer will acquire good and marketable title to all the Notes listed
opposite such Seller's name on Schedule 2.1, free and clear of any security,
interest, claim, lien or encumbrance.
3.7 FULL DISCLOSURE. No representation or warranty of any Seller in
this Agreement and no statement in any Schedule omits to state a material fact
necessary to make any of the statements herein or therein, in light of the
circumstances in which they were made, not misleading.
4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Sellers as follows:
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4.1 ORGANIZATION AND GOOD STANDING. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, with full power and authority to carry on its business and to enter
into and carry out the terms of this Agreement.
4.2 AUTHORIZATION. Buyer has all requisite corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery by Buyer of this
Agreement and the consummation of the transactions contemplated hereby have been
duly and validly authorized by the Board of Directors of Buyer in accordance
with Delaware law and the Organizational Documents of Buyer. No other corporate
proceedings on the part of Buyer are necessary to authorize this Agreement and
the transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by Buyer and, assuming the valid execution by each of the
Sellers, constitutes a legal, valid and binding agreement, enforceable against
Buyer in accordance with its terms, except as such enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the rights of creditors generally or by general equitable principles.
No filing with, and no permit, authorization, consent or approval of any public
body or authority is necessary for the consummation by Buyer of the transactions
contemplated by this Agreement.
4.3 NO BREACH OR VIOLATION. Neither the execution and delivery by Buyer
of this Agreement nor the consummation of the transactions contemplated hereby
will: (i) conflict with, or result in a violation or breach of, constitute a
default under or require any notice under any provision of the Organizational
Documents of Buyer, or any material contract, indenture, mortgage, lease,
agreement, instrument, commitment or other arrangement to which it is a party or
by which it or any of its properties is bound; (ii) violate any judgment, order,
permit, license, injunction, writ, decree or award of any court or any
regulatory or governmental authority against, or binding upon, Buyer or any of
its assets; or (iii) constitute a violation by Buyer of any statute, law, rule,
ordinance or regulation of any regulatory or governmental authority.
4.4 INVESTMENT INTENT. Buyer is acquiring the Notes for its own account
and not with a view to their distribution within the meaning of Section 2(11) of
the Securities Act.
4.5 FEES AND COMMISSIONS. Neither Buyer nor any of its affiliates has
incurred any liability for any investment banker fees, brokerage fees,
commissions, finders' fees or other similar payments in connection with any of
the transactions contemplated by this Agreement.
5. COVENANTS OF SELLERS
5.1 CONSENTS. Before the Closing, Sellers shall use their best efforts
to obtain the consents of all Persons that are identified or required to be
identified in Schedule 3.4 (if any).
5.2 PUBLIC ANNOUNCEMENTS. After the Closing, Buyer intends to issue a
joint public announcement with the Company of the transactions contemplated by
this Agreement. Any other public announcement or similar publicity with respect
to this Agreement or any of the transactions contemplated hereby will be issued,
if at all, at such time and in such manner as Buyer and the Company mutually
determine; provided, however, that Sellers shall be entitled to pre-approve any
public announcement if Sellers are specifically identified therein. Unless
consented to by Buyer in advance, before the Closing, Sellers shall keep this
Agreement and the transactions it contemplates strictly confidential and shall
not make any disclosure of this Agreement or the transactions it contemplates to
any Person except for such disclosure as is required by law or regulation.
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5.3 NO ENCUMBRANCES. Until such time, if any, as this Agreement is
terminated pursuant to Section 9, no Seller shall sell, transfer, convey or
encumber or agree to sell, transfer, convey or encumber any Notes to any person
(other than Buyer or Buyer's affiliates).
5.4 APPOINTMENT OF COMVEST.
(a) Each Seller acknowledges that this Agreement provides that
ComVest may act on behalf of Sellers with respect to certain matters and hereby
irrevocably designates and appoints ComVest as the agent and representative of
such Seller with authority to act on such Seller's behalf with respect to any
matter as to which this Agreement provides that ComVest may act on behalf of
Sellers ("Delegated Actions") and hereby acknowledges that ComVest shall be the
only Person authorized to take any Delegated Action on behalf of such Seller.
Each Seller shall be bound by any and all actions taken by ComVest on such
Seller's behalf.
(b) Buyer shall be entitled to rely upon any communication or
writings given or executed by ComVest with respect to Delegated Actions as
binding all Sellers and their successors, assigns, heirs and spouses and will
not be bound or put on notice by any communications from any Seller.
(c) Without limiting the foregoing, each Seller: (i) agrees
that (A) all notices to be sent to Sellers pursuant to this Agreement may be
addressed to ComVest, (B) any notice so sent shall be deemed notice to all
Sellers and (C) Sellers hereby consent and agree that ComVest is authorized to
accept notice on behalf of Sellers; and (ii) each Seller hereby irrevocably
appoints ComVest as the lawful agent of such Seller and its successor to receive
and forward on their behalf service of all necessary processes (including
service in the manner provided in Section 10.12) in any action, suit, or
proceeding arising under or in any way relating to this Agreement, any of the
transactions contemplated hereby or any of their subject matter and that may be
brought against any Seller or its successor in any court (including federal
courts), and such service of process or notice received thereof by ComVest will
have the same force and effect as if served upon such Seller or its successor.
5.5 BEST EFFORTS. Between the date of this Agreement and the Closing
Date, Sellers shall use their best efforts to cause the conditions in Section 7
to be satisfied.
5.6 EXPENSES. Whether or not the transactions contemplated by this
Agreement are consummated, Sellers shall be responsible for and shall pay all of
their costs and expenses in connection with this Agreement or the transactions
contemplated hereby, including investment bankers', attorneys', accountants' and
consultants' fees and expenses and travel expenses. None of such expenses shall
be charged to or paid by the Company. Before the Closing, Sellers shall
reimburse the Company for any their expenses that have been charged to or paid
by the Company.
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6. COVENANTS OF THE BUYER
6.1 EXPENSES. Whether or not the transactions contemplated by this
Agreement are consummated, Buyer shall be responsible for and shall pay or cause
an affiliate to pay all costs and expenses incurred by Buyer or its affiliates
in connection with this Agreement and the transactions contemplated hereby,
including investment bankers', attorneys', accountants' and consultants' fees
and travel expenses.
6.2 BEST EFFORTS. Between the date of this Agreement and the Closing
Date, Buyer shall use its best efforts to cause the conditions in Section 8 to
be satisfied.
7. CONDITIONS TO OBLIGATION OF BUYER
The obligation of Buyer to purchase the Notes is subject to the
satisfaction on or before the Closing of each of the following conditions, any
of which may be waived by Buyer, in whole or in part in its sole discretion:
7.1 REPRESENTATIONS AND WARRANTIES OF SELLERS. All representations and
warranties of Sellers contained in this Agreement and the information in the
Schedules shall be true and correct in all material respects on the Closing Date
with the same effect as though made at such date without giving effect to any
supplement to the Disclosure Schedule.
7.2 COVENANTS OF SELLERS. Sellers shall have performed in all material
respects all covenants required by this Agreement to be performed by them on or
before the Closing.
7.3 DELIVERY OF DOCUMENTS. Buyer shall have received the consents of
all Persons that are identified or required to be identified in Schedule 3.4 (if
any).
7.4 INJUNCTIONS. None of Buyer, Sellers, the Company or any of their
affiliates shall be subject to any order, decree or injunction of any court or
agency of competent jurisdiction which prevents or delays the consummation of
any of the transactions contemplated by this Agreement.
7.5 PURCHASE OF SECURITIES. Securities Sellers shall have sold the
Securities to Buyer pursuant to the Securities Purchase Agreement.
7.6 CERTIFICATES. Buyer shall have received such certificates of
officers of the Company or others and such other documents to evidence
fulfillment of the conditions set forth in this Section 7 as Buyer may
reasonably request.
8. CONDITIONS TO OBLIGATIONS OF SELLERS
The obligations of Sellers to sell the Notes to Buyer are subject to
satisfaction on or before the Closing of the following conditions, any of which
may be waived by ComVest on behalf of all of the Sellers, in whole or in part in
the sole discretion of ComVest:
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8.1 REPRESENTATIONS AND WARRANTIES OF BUYER. All representations and
warranties of Buyer contained in this Agreement shall be true in all material
respects on the Closing Date with the same effect as though made at such date.
8.2 COVENANTS OF BUYER. Buyer shall have performed in all material
respects all of its covenants required by this Agreement to be performed by
Buyer on or before the Closing.
8.3 INJUNCTIONS. None of Buyer, Sellers, the Company or any of their
affiliates shall be subject to any order, decree or injunction of a court or
agency of competent jurisdiction which prevents or delays the consummation of
any of the transactions contemplated by this Agreement.
8.4 CERTIFICATES. Buyer shall have furnished Sellers with certificates
of its officers or others and such other documents to evidence fulfillment of
the conditions set forth in this Section 8 as ComVest may reasonably request.
9. TERMINATION
9.1 TERMINATION EVENTS. This Agreement may be terminated by written
notice given before the Closing:
(a) by Buyer, if a material breach of any provision of this
Agreement has been committed by any Seller and such breach has not been waived
or, if such breach is curable, cured within seven days of written notice of such
breach;
(b) by ComVest acting on behalf of each of the Sellers, if a
material breach of any provision of this Agreement has been committed by Buyer
and such breach has not been waived or, if such breach is curable, cured within
seven days of written notice of such breach;
(c) by mutual consent of Buyer and ComVest, acting on behalf
of each of the Sellers;
(d) by Buyer, if the Closing has not occurred on or before
November 1, 2002; or
(e) by ComVest, acting on behalf of each of the Sellers, if
the Closing has not occurred on or before November 1, 2002
9.2 EFFECT OF TERMINATION. Buyer's or ComVest's right of termination
under Section 9.1 is in addition to any other rights any party may have under
this Agreement or otherwise, and the exercise of a right of termination will not
be an election of remedies. If this Agreement is terminated pursuant to Section
9.1, all further obligations of the parties under this Agreement will terminate,
except that the obligations in Sections 5.2, 5.4, 5.6, 6.1, 9.2, and 10, will
survive. However, if this Agreement is terminated by a party because of a breach
of the Agreement by another party or because one or more of the conditions to
the terminating party's obligations under this Agreement is not satisfied as a
result of another party's failure to comply with its obligations under this
Agreement, the terminating party's right to pursue all legal remedies will
survive such termination unimpaired.
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10. MISCELLANEOUS
10.1 HEADINGS. Section and other headings contained in this Agreement
are included solely for convenience and reference and shall not affect in any
way the meaning or interpretation of this Agreement.
10.2 GOVERNING LAW. The validity, construction and interpretation of
this Agreement, all disputes among the parties arising out of this Agreement or
the transactions contemplated hereby, and all matters related to but not covered
by this Agreement shall be governed by the law of the State of New York.
10.3 ENTIRE AGREEMENT. This Agreement, including any exhibits,
schedules and the certificates delivered and to be delivered pursuant to this
Agreement (which are incorporated into this Agreement by this reference and are
made a part hereof) embody the entire agreement and understanding between and
among the parties pertaining to their subject matter, and supersede all prior
and contemporaneous agreements, understandings, negotiations, representations
and discussions, whether written or oral, pertaining to their subject matter.
10.4 ASSIGNMENT. Neither this Agreement nor any rights or obligations
under this Agreement may be assigned, hypothecated or otherwise transferred by
any party without the prior written consent of ComVest on behalf of all of the
Sellers, for an assignment by Buyer, or Buyer, for any assignment by Sellers,
provided that Buyer may assign this Agreement or any rights under this Agreement
to another entity that is controlled by, controls or is under common control
with Buyer if Buyer remains obligated after the date of such assignment to
guarantee all payment and performance obligations of the assignee hereunder. Any
assignment by a party of rights under this Agreement that does not conform
strictly with the provisions of this Section 10.4 shall be null and void and
shall not vest in any assignee any rights as against a non-assigning party.
10.5 BINDING EFFECT. The provisions of this Agreement shall bind and
inure to the benefit of the parties and their respective successors and
permitted assigns.
10.6 PARTIES IN INTEREST. Nothing in this Agreement, expressed or
implied, is intended to confer on any Person other than the parties to this
Agreement, any right or remedy under or by reason of this Agreement.
10.7 NOTICES. Any notice or communication required or permitted by this
Agreement shall be deemed sufficiently given if in writing and, if delivered
personally, when it is delivered or, if delivered in another manner, the earlier
of when it is actually received by the Person to which it is directed, or when
the period set forth below expires (whether or not it is actually received):
(a) if transmitted by telecopier, telex or facsimile
transmission ("fax"), 24 hours after (i) transmission to the Person's fax number
set forth below, with the Person's name and address set forth below clearly
shown on the page first transmitted, and (ii) receipt by the transmitting Person
of written confirmation of successful transmission, which confirmation may be
produced by the transmitting Person's equipment;
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(b) if deposited in the United States Mail, postage prepaid,
and addressed to the Person to receive it as set forth below 48 hours after such
deposit; or
(c) if sent by Federal Express, or a similar delivery service
in general usage for delivery to the address of the Person to receive it as set
forth below, 24 hours after the delivery time promised by the delivery service:
If to Buyer:
ICU Medical, Inc.
951 Calle Amanacer
San Clemente, California 92673
Attention: Francis J. O'Brien
Fax No. (949) 366-4264
With a copy to:
Heller Ehrman White & McAuliffe LLP
601 S. Figueroa Street
Los Angeles, California 90017
Attention: Stephen E. Newton, Esq.
Fax No. (213) 614-1868
If to the Sellers:
ComVest Venture Partners, L.P.
830 Third Avenue
New York, New York 10022
Attention: Anthony Giardina
Fax No. (212) 829-5968
With a copy to:
Carl Kleidman
830 Third Avenue
New York, New York 10022
Fax No. (212) 829-5928
or to such other address as a Person to whom notice is to be given has furnished
to the other Persons listed above in the manner provided above.
10.8 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together will constitute a single agreement.
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10.9 AMENDMENT AND WAIVER. This Agreement may not be amended except by
an instrument in writing signed on behalf of all parties. At any time before the
Closing: (i) Buyer may extend the time for the performance of any of the
obligations or other acts of Sellers or waive compliance with any of the
agreements of Sellers or with any conditions to its own obligations; (ii)
ComVest, acting on behalf of Sellers, may extend the time for the performance of
any of the obligations or other acts of the Buyer or waive compliance with any
of the agreements of the Buyer or with any conditions to Sellers' obligations.
Any agreement on the part of a party to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of such
party. No waiver of any provision of this Agreement shall be deemed or shall
constitute a waiver of any other provisions (whether or not similar), nor shall
such waiver constitute a continuing waiver unless otherwise expressly provided,
nor shall any forbearance by a party to seek a remedy for noncompliance or
breach by another party be construed as a waiver of any right or remedy with
respect to such noncompliance or breach.
10.10 SEVERABLE PROVISIONS. If any provision of this Agreement is
determined to be illegal or otherwise unenforceable, in whole or in part, the
remaining provisions, and any partially enforceable provisions to the extent
enforceable, shall nevertheless be binding and enforceable.
10.11 RULES OF CONSTRUCTION. This Agreement has been negotiated by the
parties and is to be interpreted according to its fair meaning as if the parties
had prepared it together and not strictly for or against any party. References
in this Agreement to Sections and Schedules are to Sections and Schedules of
this Agreement unless expressly indicated otherwise. At each place in this
Agreement where the context so requires, the masculine, feminine or neuter
gender includes the others and the singular or plural number includes the other.
"Including" means "including without limitation."
10.12 NON-EXCLUSIVE CONSENT TO JURISDICTION. Each of the parties
hereto: (i) consents to submit itself to the personal jurisdiction of the United
States District Court for the Southern District of New York or the courts of the
State of New York located in the County of New York with respect to any and all
disputes arising out of: (A) this Agreement, including the validity construction
and interpretation hereof and thereof and the rights and remedies of the parties
hereunder; (B) any of the transactions contemplated by this Agreement; and (C)
any matters related to but not covered hereby, in each case to the extent such
court would have subject matter jurisdiction with respect to such dispute; (ii)
agrees that it will not attempt to deny or defeat such personal jurisdiction or
venue by motion or other request for leave from any such court; (iii) agrees
that service of process in any such suit, action or proceeding may be effected
by notice by any of the means provided in Section 10.7 and, in the case of
service of process on any Seller, by notice to ComVest; and (iv) agrees that
nothing herein shall affect the right to effect service of process in any other
manner permitted by law.
10.13 WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE
LAW THAT CANNOT BE WAIVED, EACH PARTY HEREBY WAIVES, AND COVENANTS THAT IT WILL
NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY
JURY IN ANY FORUM WITH RESPECT TO ANY ISSUE, CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF,
WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER SOUNDING IN TORT OR
CONTRACT OR OTHERWISE.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
BUYER: ICU Medical, Inc.
By
------------------------------
Title
----------------------------
NOTE SELLERS: ComVest Venture Partners, L.P.
By
------------------------------
Title
----------------------------
/S/ Robert Priddy
---------------------------------
Robert Priddy
RMC Capital Partners
By
------------------------------
Title
----------------------------
Noam and Geraldine Gottesman
/S/ Noam Gottesman
---------------------------------
Noam Gottesman
/S/ Geraldine Gottesman
---------------------------------
Geraldine Gottesman
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/S/ Aaron David Trust TTEE
---------------------------------
Aaron David Trust TTEE Carol Hill
Trust
Harvard Investments, Inc.
By
------------------------------
Title
----------------------------
/S/ Douglas Levine
---------------------------------
Douglas Levine
RFJM Partners, LLC
By
------------------------------
Title
----------------------------
/S/ Daniel Och
---------------------------------
Daniel Och
Chesed Congregation of America
By
------------------------------
Title
----------------------------
Shea Ventures, LLC
By
------------------------------
Title
----------------------------
Lay Ventures
By
------------------------------
Title
----------------------------
/S/ Scott Tepper
---------------------------------
Scott Tepper
/S/ Brian Herrman
---------------------------------
Brian Herrman
/S/ John Metz
---------------------------------
John Metz
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