EXHIBIT 4(a)
PREFERRED STOCK PURCHASE AGREEMENT
BETWEEN
SIRROM CAPITAL CORPORATION
(d/b/a Tandem Capital)
AND
CLINICOR, INC.
NOVEMBER 7, 1997
PREFERRED STOCK PURCHASE AGREEMENT
This PREFERRED STOCK PURCHASE AGREEMENT (the "Agreement") entered into the
7th day of November, 1997, is by and between CLINICOR, INC., a Nevada
corporation (the "Company") and SIRROM CAPITAL CORPORATION, a Tennessee
corporation d/b/a Tandem Capital (the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Company desires to obtain additional capital for use in
connection with its business through the issue and sale of shares of Class B
Preferred Stock (as defined herein) of the Company, and Purchaser is willing to
purchase such shares of Class B Preferred Stock from the Company, on the terms
and conditions set forth herein.
NOW, THEREFORE, in mutual consideration of the premises and the respective
representations, warranties, covenants and agreements contained herein, the
parties agree as follows:
ARTICLE I
SALE AND PURCHASE OF STOCK
Section 1.1 Description of Class B Preferred Stock. The Board of
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Directors of the Company has authorized the issue and sale of 50,000 shares of
its Class B Convertible Preferred Stock, without par value (the "Class B
Preferred Stock") having the rights and preferences set forth in the Company's
proposed Articles of Incorporation, as amended, in the form attached as Exhibit
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A (the "Amended Articles") hereto, for a purchase price of $100 per share, or an
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aggregate purchase price of $5,000,000. Subject to the approval and adoption
thereof by the requisite vote of the holders of the Common Stock (as defined in
Section 2.2(a)) of the Company, the Amended Articles shall be filed with the
Secretary of State of Nevada on or before the Closing Date (as defined below).
The terms which are capitalized herein shall have the meanings set forth in
Section 8 hereof unless the context shall otherwise require.
Section 1.2 Commitment; Closing. Subject to the terms and conditions
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hereof and on the basis of the representations and warranties hereinafter set
forth, the Company agrees to issue and sell to Purchaser, and Purchaser agrees
to purchase from the Company, 50,000 shares of Class B Preferred Stock for an
aggregate purchase price of $5,000,000.
Delivery of a single certificate representing the Class B Preferred Stock
will be made at the offices of Sherrard & Roe, PLC, 424 Church Street, Suite
2000, Nashville, Tennessee 37219, against payment therefor by federal funds wire
transfer in immediately available funds and to the accounts and in the amounts
in accordance with the Company's wire instructions set forth on Exhibit B
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hereto, at 10:00 A.M., Nashville time, on November 26, 1997, or such other date
as the Company and Purchaser shall agree but no later than December 5, 1997
(the "Closing Date"). The stock certificate to be delivered to Purchaser on the
Closing Date will be registered in Purchaser's name or in the name of such
nominee as Purchaser may specify at least 24 hours prior to the date fixed for
delivery.
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Section 1.3 Processing Fee. The Company agrees to pay to Purchaser on or
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before the Closing Date a processing fee in an aggregate amount equal to two
percent of the purchase price of the Class B Preferred Stock, or $100,000, of
which $25,000 previously has been paid.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Purchaser as follows:
Section 2.1 Corporate Status.
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(a) The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Nevada and has the corporate power
to own and operate its properties, to carry on its business as now conducted and
to enter into and to perform its obligations under this Agreement, the
Registration Rights Agreement, to be dated as of the Closing Date, by and
between the Company and Purchaser in the form of Exhibit C hereto (the
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"Registration Rights Agreement"), and any other document executed and delivered
by the Company in connection herewith or therewith and listed on Schedule 2.1(a)
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(collectively, the "Operative Documents"). The Company is qualified to do
business and is in good standing in each state or other jurisdiction in which
such qualification is necessary under applicable provisions of law, except where
the failure to so qualify would not have a Materially Adverse Effect. The
states or other jurisdictions in which the Company is so qualified are set forth
on Schedule 2.1(a) hereto.
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(b) The Company neither owns nor has an interest in, directly or
indirectly, any other corporation, partnership, joint venture, limited liability
company or other business organization ("Subsidiaries"), in which case
references in this Agreement to the Company and/or its Subsidiaries shall mean
the Company only.
Section 2.2 Capitalization.
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(a) The authorized capital stock of the Company consists of (i) 75,000,000
shares of common stock, par value $.001 per share (the "Common Stock"), of which
4,086,400 shares are issued and outstanding, and (ii) 5,181 shares of
Convertible Preferred Stock, without par value (the "Convertible Preferred
Stock"), with rights and preferences as set forth in the Articles of
Incorporation, as amended, of the Company, of which 3,776 are issued and
outstanding. As of the Closing Date, the authorized capital stock of the
Company shall consist of (i) 75,000,000 shares of Common Stock, of which
4,086,400 shares shall be issued and outstanding prior to the Closing Date, (ii)
5,181 shares of Class A Convertible Preferred Stock, without par value (the
"Class A Preferred Stock"), with rights and preferences as set forth in the
Amended Articles, of which 3,776 shall be issued and outstanding, and (iii)
50,000 shares of the Class B Preferred Stock, with rights and preferences as
set forth in the Amended Articles, none of which shall be issued and
outstanding. All shares of Common Stock and Class A Preferred Stock outstanding
have been validly issued and are fully paid and nonassessable. Except as set
forth on Schedule 2.2(a), there are no statutory or contractual pre-emptive
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rights, rights of first refusal, antidilution rights or any similar rights held
by any party with respect to the issuance of the Class B Preferred Stock as
provided for herein. The holders of the requisite percentage of outstanding
shares of the Convertible Preferred Stock have adopted and approved the Amended
Articles.
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(b) The Company has not granted, or agreed to grant or issue, any options,
warrants or rights to purchase or acquire from the Company any shares of capital
stock of the Company, there are no securities outstanding or committed to be
issued by the Company or any Subsidiary which are convertible into or
exchangeable for any shares of capital stock or other securities of the Company,
and there are no contracts, commitments, agreements, understandings,
arrangements or restrictions as to which the Company is a party, or by which it
is bound, relating to any shares of capital stock or other securities of the
Company, whether or not outstanding except for (i) the shares of Class B
Preferred Stock to be issued pursuant to this Agreement, (ii) shares of the
Class A Preferred Stock to be issued in payment of the dividends on such Class A
Preferred Stock, (iii) the conversion privileges of the holders of (A) the Class
A Preferred Stock, with respect to which an aggregate of 2,517,333 shares of
Common Stock have been reserved for issuance upon such conversion and (B) the
Class B Preferred Stock to be issued pursuant to this Agreement, with respect to
which an aggregate of 1,666,667 shares of Common Stock have been reserved for
issuance upon such conversion, and (iv) such options, warrants and other rights
with respect to capital stock of the Company set forth on Schedule 2.2(b).
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Except as set forth on Schedule 2.2(b), all such shares have been duly reserved
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for issuance, have been duly and validly authorized and upon issuance in
accordance with the terms of the respective instruments, will be validly issued,
fully paid and nonassessable.
(c) The Class B Preferred Stock that is being purchased by the Purchaser,
when issued, sold, and delivered in accordance with the terms of this Agreement
for the consideration expressed herein, will be duly and validly issued, fully
paid, and nonassessable, and will be free of restrictions on transfer other than
restrictions on transfer under this Agreement and under applicable state and
federal securities laws. As of the Closing Date, the Common Stock issuable upon
conversion of the Class B Preferred Stock being purchased under this Agreement
shall have been duly and validly reserved for issuance and, upon issuance in
accordance with the terms of the Amended Articles, will be duly and validly
issued, fully paid, and nonassessable and will be free of restrictions on
transfer other than restrictions on transfer under applicable state and federal
securities laws.
Section 2.3 Authorization; Absence of Conflicts. The Company has full
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legal right, power and authority to enter into and perform its obligations under
this Agreement and any of the other Operative Documents without the consent or
approval of any other person, firm, governmental agency or other legal entity
except for such consents, including the consents set forth on Schedule 2.3(a),
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as have been obtained in writing and except as set forth on Schedule 2.3(b).
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The execution and delivery of this Agreement, the issuance of the shares of
Class B Preferred Stock hereunder, the execution and delivery of each other
document in connection herewith or therewith to which the Company is a party,
and the performance by the Company of its obligations hereunder and/or
thereunder are within the corporate powers of the Company and have been duly
authorized by all necessary corporate action properly taken, have received all
necessary governmental approvals, if any were required, and do not and will not
contravene or conflict with (a) the Amended Articles or Bylaws, as amended, of
the Company, (b) any material agreement to which the Company or any of its
Subsidiaries is a party or by which any of them or their properties is bound, or
constitute a default thereunder, or result in the creation or imposition of any
lien, charge, security interest, or encumbrance of any nature upon any of the
property or assets of the Company or any of its Subsidiaries pursuant to the
terms of any such
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agreement or instrument, or (c) violate any provision of law or any applicable
judgment, ordinance, regulation or order of any court or governmental agency.
The officer(s) executing this Agreement, the Operative Documents and any other
document executed and delivered by Purchaser in connection herewith or
therewith, is duly authorized to act on behalf of the Company.
Section 2.4 Validity and Binding Effect. Each of the Operative Documents
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is the legal, valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, subject to bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting creditors' rights
generally and equitable principles.
Section 2.5 Financial Statements. The financial statements of the
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Company for the fiscal years ended December 31, 1994, December 31, 1995, and
December 31, 1996, and the unaudited financial statements as of and for the six
(6) months ended June 30, 1997, and the related notes, copies of which the
Company previously has delivered to Purchaser, fairly present the financial
position, results of operations, cash flows and changes in stockholders' equity
of the Company, at the respective dates of and for the periods to which they
apply in such financial statements and have been prepared in accordance with
generally accepted accounting principles ("GAAP") consistently applied
throughout the periods indicated, subject, in the case of interim financial
statements, to normal recurring year-end adjustments (the effect of which will
not, individually or in the aggregate, have a Materially Adverse Effect) and the
absence of notes (that, if presented, would not differ materially from those
included in the most recent audited financial statements). No financial
statements of any other person(s) are required by GAAP to be included in the
financial statements of the Company.
Section 2.6 SEC Reports. The Company's Common Stock is listed on the
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Over-the-Counter Bulletin Board and has been duly registered with the Securities
and Exchange Commission ("SEC") under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"). Since January 13, 1997, the Company has timely
filed all reports, registrations, proxy or information statements and all other
documents, together with any amendments required to be made thereto, required to
be filed with the SEC under the Securities Act of 1933 as amended (the
"Securities Act") and the Exchange Act (collectively, the "SEC Reports"). The
Company previously has furnished to Purchaser true copies of all the SEC
Reports, together with all exhibits thereto that Purchaser has requested, and
the Company's annual report to stockholders for the year ended December 31,
1996, which annual report meets the requirements of Rule 14a-3 or 14e-3 under
the Exchange Act (the "Annual Report"). The financial statements contained in
the SEC Reports fairly presented (or will fairly present, as the case may be)
the financial position of the Company as of the dates mentioned and the results
of operations, changes in stockholders' equity and changes in financial position
or cash flows for the periods then ended in conformity with GAAP applied on a
consistent basis throughout the periods involved. As of their respective dates,
the SEC Reports complied (or will comply, as the case may be) in all material
respects with all rules and regulations promulgated by the SEC and did not (or
will not, as the case may be) contain any untrue statement of a material fact or
omit 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.
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Section 2.7 Absence of Changes. Except as set forth in Schedule 2.7,
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since June 30, 1997, (i) neither the Company nor any of its Subsidiaries has
incurred any liabilities or obligations, direct or contingent, or entered into
any transactions, not in the ordinary course of business, that are material to
the Company or any of its Subsidiaries, (ii) neither the Company nor any of its
Subsidiaries has purchased any of its outstanding capital stock or declared, or
paid any dividend or other distribution or payment in respect of its capital
stock, (iii) there has not been any change in the authorized or issued capital
stock, long-term debt or short-term debt of the Company, and (iv) there has not
been any material adverse change in or affecting the business, operations,
properties, prospects, assets, or condition (financial or otherwise) of the
Company or any Subsidiary, and no event has occurred or circumstance exists that
could reasonably be expected to result in such a material adverse change.
Section 2.8 No Defaults. Except as set forth on Schedule 2.8 and except
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where a default or event of default does not and would not constitute a
Materially Adverse Effect, no default or event of default by the Company or any
Subsidiary exists under this Agreement or any of the other Operative Documents,
or under any instrument or agreement to which the Company or any Subsidiary is a
party or by which the Company or any Subsidiary or its respective properties may
be bound or, to the knowledge of the Company, affected, and no such event has
occurred and is continuing that with notice or the passage of time or both would
constitute a default or event of default thereunder.
Section 2.9 Compliance With Law. The Company and its Subsidiaries are in
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compliance with all federal, state or local laws, regulations, decrees and
orders applicable to them to the extent that noncompliance, in the aggregate,
cannot reasonably be expected to cause a Materially Adverse Effect.
Section 2.10 Litigation. Except as set forth on Schedule 2.10, there is
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no litigation, arbitration, claim, proceeding or investigation pending or
threatened in writing to which the Company or any Subsidiary is a party or to
which any of its respective properties or assets is the subject which, if
determined adversely to the Company or such Subsidiary, would individually or in
the aggregate have a Materially Adverse Effect.
Section 2.11 Taxes. Except as set forth on Schedule 2.11, the Company and
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its Subsidiaries have filed or caused to be filed all federal, state and local
income, excise and franchise tax returns required to be filed (except for
returns that have been appropriately extended), and have paid, or provided for
the payment of, all taxes shown to be due and payable on said returns and all
other taxes, impositions, assessments, fees or other charges imposed on it by
any governmental authority, agency or instrumentality, prior to any delinquency
with respect thereto (other than taxes, impositions, assessments, fees and
charges currently being contested in good faith by appropriate proceedings, for
which appropriate amounts have been reserved), and the Company does not know of
any proposed assessment for additional taxes or any basis therefor. No tax
liens have been filed against the Company or its Subsidiaries or any of their
properties, and none of the federal tax returns of the Company or any Subsidiary
have been audited. There have been no final determinations by the Internal
Revenue Service of the Company's federal income tax liability for any taxable
years, and the applicable statute of limitations has not run for any such
taxable year.
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Section 2.12 Certain Transactions. Except as set forth on Schedule
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2.12(i), neither the Company nor any Subsidiary is indebted, directly or
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indirectly, to any of its officers or directors, or to their respective spouses
or children, in excess of an aggregate amount of $60,000, and none of the
officers or directors or any members of their immediate families are indebted to
the Company or any Subsidiary in excess of an aggregate amount of $60,000 or
have any direct or indirect ownership interest in any firm or corporation with
which the Company or any Subsidiary is affiliated or with which the Company or
any Subsidiary has a business relationship or receives services, or any firm or
corporation which competes with the Company or any Subsidiary. Except as set
forth on Schedule 2.12(ii), no officer or director of the Company or any
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Subsidiary or any member of their immediate families is, directly or indirectly,
interested in any material contract with the Company or any Subsidiary. Except
as set forth on Schedule 2.12(iii), neither the Company nor any Subsidiary is a
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guarantor or indemnitor of any indebtedness of any other person, firm or
corporation.
Section 2.13 Title to Property. The Company and each Subsidiary has
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good and marketable title to all of real and personal property owned by it, free
and clear of all liens, security interests, pledges, encumbrances, equities
claims and restrictions of every kind and nature whatsoever, except as disclosed
on Schedule 2.13 and except for such liens, security interests, pledges,
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encumbrances, equities claims and restrictions which are not in the aggregate
material to the business, operations or financial condition of the Company and
its Subsidiaries taken as a whole. Any real property and buildings held under
lease by the Company or any Subsidiary are held under valid existing and
enforceable leases, and no default has occurred or is continuing thereunder
which might result in any material adverse change in the business, prospects,
financial conditions or results of operations of the Company, and the Company
enjoys peaceful and undisturbed possession under all such leases, except as
disclosed on Schedule 2.13 or which are not material and do not interfere with
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the use to be made of such buildings or property by the Company.
Section 2.14 Patents, Trademarks, etc. Except as set forth in Schedule
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2.14, the Company is the lawful owner or has a valid right to use the
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proprietary information used in its business free and clear of any claim, right,
trademark, patent or copyright protection of any third party. As used herein,
"proprietary information" includes without limitation (i) any computer software
and related documentation, inventions, technical and nontechnical data related
thereto, and (ii) other documentation, inventions and data related to patterns,
plans, methods, techniques, drawings, finances, customer lists, suppliers,
products, special pricing and cost information, designs, processes, procedures,
formulas, research data owned or used by the Company or any Subsidiary or
marketing studies conducted by the Company, which in each case the Company
considers to be commercially important and competitively sensitive and which
generally has not been disclosed to third parties other than customers in the
ordinary course of business. Except as set forth in Schedule 2.14, the Company
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has good and marketable title to or has a valid right to use all patents,
trademarks, trade names, service marks, copyrights or other intangible property
rights, and registrations or applications for registration thereof, owned by the
Company or any Subsidiary or used or required by the Company or any Subsidiary
in the operation of its business as presently being conducted. The Company has
no knowledge of any infringements or conflict with asserted rights of others
with respect to copyrights, patents, trademarks, service marks, trade names,
trade secrets or other intangible property rights or know-how which could result
in a Material Adverse Effect. To the Company's knowledge, no products or
processes of the Company infringe or conflict with any rights of patent or
copyright, or any discovery, invention product or process, that is the subject
of a patent or copyright application or
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registration known to the Company. The Company has adopted and follows such
procedures as the Company deems necessary or appropriate to provide reasonable
protection of the Company's trade secrets and proprietary rights in intellectual
property of all kinds. To the knowledge of the Company, no person employed by
or affiliated with the Company has employed or proposes to employ any trade
secret or any information or documentation proprietary to any former employer,
and to the knowledge of the Company, no person employed by or affiliated with
the Company has violated any confidential relationship that such person may have
had with any third person, in connection with the development, manufacture or
sale of any product or proposed product or the development or sale of any
service or proposed service of the Company.
Section 2.15 Debt. Schedule 2.15 sets forth (i) a complete and correct
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list of all loans, credit agreements, indentures, purchase agreements,
promissory notes and other evidences of indebtedness, Guaranties, capital leases
and other instruments, agreements and arrangements presently in effect providing
for or relating to extensions of credit (including agreements and arrangements
for the issuance of letters of credit or for acceptance financing) in respect of
which the Company, any Subsidiary or any of their properties is in any manner
directly or contingently obligated; (ii) the maximum principal or face amounts
of the credit in question that are outstanding and that can be outstanding are
correctly stated; and (iii) all liens, pledges or security interests of any
nature given or agreed to be given as security therefor or in connection
therewith correctly described or indicated in such Schedule. Consummation of
the transactions hereby contemplated and the performance of the obligations of
the Company under and by virtue of the Operative Documents will not result in
any breach of, or constitute a default under, or require the consent of any
person under, any loan, credit agreement, indenture, purchase agreement,
promissory note or other evidences of indebtedness, Guaranty, capital lease or
other instrument, agreement or arrangement set forth on Schedule 2.15 and for
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which the Company has not obtained an effective waiver.
Section 2.16 Material Contracts. Schedule 2.16 sets forth a complete and
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correct list of (a) all contracts, agreements and other documents pursuant to
which the Company or any Subsidiary either (i) receives revenues or (ii) makes
payment to any third Person(s), in excess of $25,000 per fiscal year, and (b)
contracts or other agreements required to be filed by the Company with the SEC
as an exhibit pursuant to Item 601(b)(10) of Regulation S-B under the Securities
Act. Each such contract, agreement, amendment or other document is in full
force and effect as of the date hereof, and the Company knows of no reason why
any such contract, agreement, amendment or other document would not remain in
full force and effect pursuant to the terms thereof. Consummation of the
transactions hereby contemplated and the performance of the obligations of the
Company under and by virtue of the Operative Documents will not result in any
breach of, or constitute a default under, or require the consent of any person
under, any contract, agreement, amendment or other document set forth on
Schedule 2.16 and for which the Company has not obtained an effective waiver.
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Section 2.17 Environmental Matters. The Company and each of its
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Subsidiaries have duly complied in all material respects with, and the business,
operations, assets, equipment, property, leaseholds or other facilities of each
are in compliance in all material respects with, the provisions of all material
federal, state and local environmental, health, and safety laws, codes and
ordinances, and all material rules and regulations promulgated thereunder. The
Company and each of its Subsidiaries has been issued and will maintain all
required material federal, state and local permits, licenses, certificates and
approvals relating to (i) air emissions; (ii) discharges to surface water or
groundwater; (iii) noise
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emissions; (iv) solid or liquid waste disposal; (v) the use, generation,
storage, transportation or disposal of toxic or hazardous substances or wastes
(which shall include any and all such materials listed in any federal, state or
local law, code or ordinance and all rules and regulations promulgated
thereunder as hazardous or potentially hazardous); or (vi) other environmental,
health or safety matters. Neither the Company nor any Subsidiary has received
notice of, or knows of, or suspects facts which might constitute any violations
of any federal, state or local environmental, health or safety laws, codes or
ordinances, and any rules or regulations promulgated thereunder with respect to
its businesses, operations, assets, equipment, property, leaseholds, or other
facilities. Except in accordance with a valid governmental permit, license,
certificate or approval, there has been no emission, spill, release or discharge
into or upon (a) the air; (b) soils, or any improvements located thereon; (c)
surface water or groundwater; or (d) the sewer, septic system or waste
treatment, storage or disposal system servicing the premises, of any toxic or
hazardous substances or wastes at or from the premises owned or occupied by the
Company or any of its Subsidiaries. There has been no complaint, order,
directive, claim, citation or notice by any governmental authority or, to the
Company's knowledge, any person or entity with respect to (I) air emissions;
(II) spills, releases or discharges to soils or improvements located thereon,
surface water, groundwater or the sewer, septic system or waste treatment,
storage or disposal systems servicing the premises; (III) noise emissions; (IV)
solid or liquid waste disposal; (V) the use, generation, storage, transportation
or disposal of toxic or hazardous substances or waste; or (VI) other
environmental, health or safety matters affecting the Company or any of its
Subsidiaries or their respective businesses, operations, assets, equipment,
property, leaseholds or other facilities. Neither the Company nor any of its
Subsidiaries has any indebtedness, obligation or liability (absolute or
contingent, matured or not matured), with respect to the storage, treatment,
cleanup or disposal of any solid wastes, hazardous wastes or other toxic or
hazardous substances (including without limitation any such indebtedness,
obligation, or liability with respect to any current regulation, law or statute
regarding such storage, treatment, cleanup or disposal).
Section 2.18 Accounting Matters. The books of account, minute books,
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stock record books and other records of the Company and its Subsidiaries are
complete and correct in all material respects, have been maintained in
accordance with sound business practices and fairly reflect the transactions and
dispositions of the assets of the Company. The Company and each of its
Subsidiaries maintain a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in accordance
with management's general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain accountability for the assets of the
Company and each of its Subsidiaries; (iii) access to the assets of the Company
and each of its Subsidiaries is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability for
assets of the Company and each of its Subsidiaries are compared with the
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
Section 2.19 Distributions to Company. No Subsidiary of the Company is
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currently prohibited, directly or indirectly, from paying any dividends to the
Company, from making any other distributions on such Subsidiary's capital stock,
from repaying to the Company any loans or advances to such Subsidiary or from
transferring any of such Subsidiary's property or assets to the Company or any
other Subsidiary of the Company.
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Section 2.20 Prior Sales. All offers and sales of the Company's capital
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stock prior to the date hereof were at all relevant times (i) exempt from the
registration requirements of the Securities Act or were duly registered under
the Securities Act, and (ii) were duly registered or were the subject of an
available exemption from the registration requirements of all applicable state
securities or Blue Sky laws.
Section 2.21 Regulatory Compliance. Except as set forth on Schedule
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2.21, the conduct of the business and the ownership of the assets of the Company
does not require any material license, permit approved, waiver or other
authorization of any federal, state or local governmental or regulatory body,
and except as set forth on Schedule 2.21, such business is not subject to the
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regulation of any federal, state or local government or regulatory body by
reason of the specific nature of the business being conducted (as distinct from
regulation common to commercial enterprises in general). All licenses, permits
and authorizations set forth on Schedule 2.21 are in full force and effect.
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Section 2.22 Margin Regulations. The Company is not engaged in the
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business of extending credit for the purpose of purchasing or carrying margin
stock. No proceeds received pursuant to this Agreement will be used to purchase
or carry any equity security of a class which is registered pursuant to Section
12 of the Exchange Act.
Section 2.23 1940 Act Compliance. The Company is an "eligible portfolio
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company" as such term is defined in Section 2(a)(46) of the Investment Company
Act of 1940, as amended (the "Investment Company Act"), and the issuance and
sale by the Company of the Class B Preferred Stock does not constitute a "public
offering" as such term is used in Section 55(a)(1) thereof.
Section 2.24 Limited Offering. Subject in part to the truth and accuracy
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of Purchaser's representations set forth in this Agreement, the offer, sale and
issuance of the Class B Preferred Stock are exempt from the registration
requirements of the Securities Act, and neither the Company nor any authorized
agent acting on its behalf has taken or will take any action hereafter that
would cause the loss of such exemption.
Section 2.25 Registration Rights. Except as described in Schedule 2.25,
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the Company is not under any obligation to register under the Securities Act any
of its presently outstanding securities or any of its securities that may
subsequently be issued.
Section 2.26 Insurance. The Company has maintained, and has caused each
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Subsidiary to maintain, insurance coverage by financially sound and reputable
insurers with respect to their respective properties and business in such forms
and amounts and against such risks, casualties and contingencies as are
customary for corporations of comparable size and condition (financial and
otherwise) engaged in the same or a similar business and owning and operating
similar properties.
Section 2.27 Governmental Consents. Except as set forth in Schedule
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2.27, no consent, approval, qualification, order or authorization of, or filing
with, any state or federal governmental authority is required on the part of the
Company in connection with the Company's execution, delivery, or performance of
this Agreement or the offer, sale or issuance of the shares of Class B Preferred
Stock by the Company.
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Section 2.28 Employees. Schedule 2.28 sets forth the number of full-time
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employees and full-time equivalent employees of the Company and each Subsidiary
as of the most recent payroll date, which date is set forth therein. To the
best of the Company's knowledge, there is no strike, labor dispute or union
organization activities pending or threatened between it and its employees.
None of the Company's employees belongs to any union or collective bargaining
unit. To the best of its knowledge, the Company has complied in all material
respects with all applicable state and federal equal opportunity and other laws
related to employment. To the best of the Company's knowledge, no employee of
the Company is or will be in violation of any judgment, decree, or order, or any
term of any employment contract, patent disclosure agreement, or other contract
or agreement relating to the relationship of any such employee with the Company,
or any other party, because of the nature of the business conducted or presently
proposed to be conducted by the Company or to the use by the employee of his or
her best efforts with respect to such business. Except as disclosed in Schedule
--------
2.28, the Company is not a party to or bound by any employment contract,
- ----
deferred compensation agreement, bonus plan, incentive plan, profit sharing
plan, retirement agreement, or other employee compensation agreement. The
Company is not aware that any officer or key employee, or that any group of key
employees, intends to terminate their employment with the Company, nor does the
Company have a present intention to terminate the employment of any of the
foregoing. Except as disclosed on Schedule 2.28 and subject to general
-------------
principles related to wrongful termination of employees, the employment of each
officer and employee of the Company is terminable at the will of the Company.
Section 2.29 ERISA. Except as disclosed in Schedule 2.29, the Company is
----- -------------
in compliance in all material respects with all applicable provisions of Title
IV of the Employee Retirement Income Security Act of 1974, Pub. L. No. 93-406,
September 2, 1974, 88 Stat. 829, 29 U.S.C.A. (S) 1001 et seq. (1975), as amended
from time to time ("ERISA"). Except as disclosed in Schedule 2.29, neither a
-------------
reportable event nor a prohibited transaction (as defined in ERISA) has occurred
and is continuing with respect to any "pension plan" (as such term is defined in
ERISA, a "Plan"); no notice of intent to terminate a Plan has been filed nor has
any Plan been terminated; no circumstances exist which constitute grounds
entitling the Pension Benefit Guaranty Corporation (together with any entity
succeeding to or all of its functions, the "PBGC") to institute proceedings to
terminate, or appoint a trustee to administer, a Plan, nor has the PBGC
instituted any such proceedings; neither the Company nor any commonly controlled
entity (as defined in ERISA) has completely or partially withdrawn from a
multiemployer plan (as defined in ERISA); the Company and each commonly
controlled entity has met its minimum funding requirements under ERISA with
respect to all of its Plans and the present fair market value of all Plan
property exceeds the present value of all vested benefits under each Plan, as
determined on the most recent valuation date of the Plan and in accordance with
the provisions of ERISA and the regulations thereunder for calculating the
potential liability of the Company or any commonly controlled entity to the PBGC
or the Plan under Title IV or ERISA; and neither the Company nor any commonly
controlled entity has incurred any liability to the PBGC under ERISA.
Section 2.30 Fees/Commissions. The Company has not agreed to pay any
----------------
finder's fee, commission, origination fee or other fee or charge to any person
or entity with respect to or as a result of the consummation of the transactions
contemplated hereunder, except for the processing fee due to Purchaser pursuant
to Section 1.3 hereof and except as set forth on Schedule 2.30.
-------------
10
Section 2.31 Backlog. The Company's backlog as of the date hereof is not
-------
less than $10 million. "Backlog" for purposes hereof means anticipated service
revenue from clinical trials and other services that have not been completed.
"Backlog" includes anticipated service revenue from projects represented by
contracts or letters of intent or projects as to which the Company has commenced
significant effort based upon the client's approval of a written budget. There
can be no assurance that the Company will be able to realize all of its backlog
as service revenue.
Section 2.32 Restrictions on Business Activities. There is no
-----------------------------------
agreement, judgment, injunction, order or decree binding upon the Company which
has or could reasonably be expected to have the effect of prohibition or
materially impairing any business practice of the Company, any acquisition of
property by the Company or the conduct of business by the Company as currently
conducted or as currently proposed to be conducted by the Company.
Section 2.33 Absence of Certain Business Practices. Neither the Company,
-------------------------------------
nor any affiliate of the Company, any agent of the Company, any other person
acting on behalf of or associated with the Company, or any individual related to
any of the foregoing persons, acting alone or together, has: (a) received,
directly or indirectly, any rebates, payments, commissions, promotional
allowances or any other economic benefits, regardless of their nature or type,
from any customer, supplier, trading company, shipping company, governmental
employee or other person with whom the Company has done business directly or
indirectly; or (b) directly or indirectly given or agreed to give any gift or
similar benefit to any customer, supplier, trading company, shipping company,
governmental employee or other person who is or may be in a position to help or
hinder the business of the Company (or assist the Company in connection with any
actual or proposed transaction) which (i) may subject the Company to any damage
or penalty in any civil, criminal or governmental litigation or proceeding, (ii)
if not given in the past, may have had an adverse effect on Company or (iii) if
not continued in the future, may adversely affect the assets, business,
operations or prospects of the Company or subject the Company to suit or penalty
in any private or governmental litigation or proceeding.
Section 2.34 Services.
--------
(a) To the Company's best knowledge, there exists no set of facts (i) which
could reasonably be expected to furnish a basis for the withdrawal, suspension
or cancellation of any registration, license, permit or other governmental
approval or consent of any governmental or regulatory agency with respect to any
service developed or provided by the Company (a "Service"), (ii) which could
reasonably be expected to furnish a basis for the withdrawal, suspension or
cancellation by order of any state, federal or foreign court of law of any
Service, or (iii) which could reasonably be expected to have a Materially
Adverse Effect on the continued operation of any facility of the Company or
which could reasonably be expected to otherwise cause the Company to withdraw,
suspend or cancel any such Service from the market or to change the marketing
classification of any such Service.
(b) Each Service provided by Company has been provided in all material
respects in accordance with the specifications under which such Service normally
is and has been provided and the provisions of all applicable laws or
regulations including, without limitation, those of the United States Food and
Drug Administration.
11
(c) Copies of all material correspondence received or sent by or on behalf
of Company from or to the Food and Drug Administration or any other governmental
regulatory agency, including, without limitation, any inspection reports or
notices, have been previously delivered to the Purchaser.
Section 2.35 Disclosure. No representation or warranty given as of the
----------
date hereof by the Company contained in this Agreement or any Schedule attached
hereto or any statement in any document, certificate or other instrument
furnished or to be furnished to the Purchaser pursuant hereto, taken as a whole,
contains or will (as of the time so furnished) contain any untrue statement of a
material fact, or omits or will (as of the time so furnished) omit to state any
material fact which is necessary in order to make the statements contained
herein or therein not misleading.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
The Purchaser hereby represents to the Company as follows:
Section 3.1 Corporate Status. Purchaser is a corporation duly organized,
----------------
validly existing and in good standing under the laws of the State of Tennessee
and has the corporate power to own and operate its properties, to carry on its
business as now conducted and to enter into and to perform its obligations under
this Agreement and any other document executed or delivered by Purchaser in
connection herewith.
Section 3.2 Authorization. Purchaser has full legal right, power and
-------------
authority to enter into and perform its obligations under this Agreement and any
other document executed and delivered by Purchaser in connection herewith,
without the consent or approval of any other person, firm, governmental agency
or other legal entity. The execution and delivery of this Agreement and any
other document executed and delivered by Purchaser in connection herewith, and
the performance by Purchaser of its obligations hereunder and/or thereunder are
within the corporate powers of Purchaser, have received all necessary
governmental approvals, if any were required, and do not and will not contravene
or conflict with (a) the Charter or Bylaws of Purchaser, (b) any material
agreement to which Purchaser is a party or by which it or any of its properties
is bound, or constitute a default thereunder, or result in the creation or
imposition of any lien, charge, security interest or encumbrance of any nature
upon any of the property or assets of Purchaser pursuant to the terms of any
such agreement or instrument, or (c) violate any provision of law or any
applicable judgment, ordinance, regulation or order of any court or governmental
agency. The officer(s) executing this Agreement and any other document executed
and delivered by Purchaser in connection herewith, is duly authorized to act on
behalf of Purchaser.
Section 3.3 Validity and Binding Effect. This Agreement and any other
---------------------------
document executed and delivered by Purchaser in connection herewith are the
legal, valid and binding obligations of the Purchaser, enforceable against it in
accordance with their respective terms.
Section 3.4 Accredited Investor Status; Purchase for Investment.
---------------------------------------------------
Purchaser is a registered investment company under the Investment Company Act
and as such is an "accredited investor" under Rule 501(a) under the Securities
Act. Purchaser is acquiring the Class B Preferred Stock for its own account,
for investment, and not with a view to the distribution or resale thereof, in
whole or in part, in
12
violation of the Securities Act or any applicable state securities law, and
Purchaser has no present intention of selling, negotiating or otherwise
disposing of the Class B Preferred Stock; it being understood that Purchaser
intends to transfer and assign, without consideration, the Class B Preferred
Stock and all Purchaser's rights and obligations under this Agreement and the
Operative Documents to one or more wholly-owned subsidiaries of Purchaser, which
wholly-owned subsidiaries are also "accredited investors" under Rule 501(a).
Purchaser is an "institutional investor" as defined under Section 48-2-102 of
the Tennessee Securities Act of 1980 for purposes of the exemption set forth
under Section 48-2-103(b)(3) of such act.
ARTICLE IV
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF PURCHASER
The obligation of Purchaser to purchase and pay for the Class B Preferred
Stock on the Closing Date shall be subject to the fulfillment on or before the
Closing Date of each of the following conditions:
Section 4.1 Representations and Warranties. The representations and
------------------------------
warranties of the Company contained in this Agreement and in any Schedule hereto
or any document or instrument delivered to Purchaser or its representatives
hereunder, shall have been true and correct when made and shall be true and
correct as of the Closing Date as if made on such date, except to the extent
such representations and warranties expressly relate to a specific date. The
Company shall have duly performed all of the covenants and agreements to be
performed by it hereunder on or prior to the Closing Date.
Section 4.2 Officer's Certificate. The Company shall have delivered to
---------------------
Purchaser a certificate, dated the Closing Date, signed by the President of the
Company substantially in the form attached hereto as Exhibit D.
---------
Section 4.3 Satisfactory Proceedings. All proceedings taken in
------------------------
connection with the transactions contemplated by this Agreement, and all
documents necessary to the consummation thereof, shall be reasonably
satisfactory in form and substance to Purchaser and Purchaser's counsel, and the
Company shall have delivered to Purchaser a certificate, dated the Closing Date,
signed by the Secretary of the Company substantially in the form attached hereto
as Exhibit E.
---------
Section 4.4 Amended Articles. The Amended Articles shall have been
----------------
approved by the requisite vote of the holders of Common Stock of the Company and
shall have been filed with the Office of the Secretary of State of the State of
Nevada.
Section 4.5 Authorization Agreement. The Company shall have delivered to
-----------------------
Purchaser an Authorization Agreement for Pre-Authorized Payments (Debit), dated
the Closing Date, executed by a duly authorized officer(s) of the Company, in
the form attached hereto as Exhibit F.
---------
Section 4.6 Registration Rights Agreement. The Company shall have
-----------------------------
executed and delivered to the Purchaser the Registration Rights Agreement.
13
Section 4.7 Legal Opinion. Purchaser shall have received the opinions of
-------------
(a) Graves, Dougherty, Hearon & Moody, counsel for the Company and (b) special
Nevada counsel for the Company, each dated the Closing Date, addressed to
Purchaser, in form and substance satisfactory to Purchaser, and covering the
matters set forth in Exhibit G-1 and Exhibit G-2 hereto.
----------- -----------
Section 4.8 The Company's Existence and Authority. The Company shall
-------------------------------------
have delivered to Purchaser the following certificates of public officials, in
each case as of a date within ten (10) days of the Closing Date:
(a) the Amended Articles of the Company, and the Articles of
Incorporation of each of the Subsidiaries, certified by the Secretary of State
or other appropriate official in the jurisdiction each such entity is
incorporated;
(b) a certificate as to the legal existence and good standing of the
Company and each of the Subsidiaries issued by the Secretary of State or other
appropriate official in the jurisdiction each such entity is incorporated; and
(c) a certificate as to the qualification to do business as a foreign
corporation and good standing of the Company and each of the Subsidiaries, as
appropriate, issued by the Secretary of State or other appropriate official in
each jurisdiction listed in Schedule 2.1(a).
---------------
Section 4.9 Required Consents. Any consents, waivers or approvals
-----------------
required to be obtained from any third party and any amendments of agreements
which shall be necessary to permit the consummation of the transactions
contemplated hereby on the Closing Date, shall have been obtained and all such
consents or amendments shall be satisfactory in form and substance to Purchaser
and Purchaser's counsel.
Section 4.10 Other Agreements. The Company shall have delivered to the
----------------
Purchaser
(a) a copy of a duly executed Amended and Restated Registration Rights
Agreement, dated as of the Closing Date, among the Company, Oracle Partners,
L.P. ("Oracle") and certain affiliates of Oracle, in the form attached hereto as
Exhibit H; and
- ---------
(b) the Lock-up Agreement, dated as of the Closing Date, among the Company,
The O'Donnell family Limited Partnership, Robert S. Sammis, Thomas P. O'Donnell,
Oracle and the Purchaser, in the form attached hereto as Exhibit I.
---------
Section 4.11 No Material Adverse Change. No change shall have occurred
--------------------------
since the date of this Agreement in the condition, financial or otherwise, or
prospects of the Company or any Subsidiary which, either individually or in the
aggregate, would have a Materially Adverse Effect.
Section 4.12 Waiver of Conditions. If on the Closing Date the Company
--------------------
fails to tender to Purchaser the Class B Preferred Stock to be issued to
Purchaser on such date or if the conditions specified in this Article IV have
not been fulfilled, Purchaser may thereupon elect to be relieved of all further
obligations under this Agreement. Without limiting the foregoing, if the
conditions specified in this Article IV have not been fulfilled, Purchaser may
waive compliance by the Company with any such
14
condition to such extent as Purchaser, in Purchaser's sole discretion, may
determine. Nothing in this Section 4.12 shall operate to relieve the Company of
any of its obligations hereunder or to waive any of Purchaser's rights against
the Company.
ARTICLE V
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE COMPANY
Section 5.1 Representations and Warranties. The representations and
------------------------------
warranties of the Purchaser contained in Article III shall be true on and as of
the Closing Date with the same effect as though such representations and
warranties had been made on and as of the date of the Closing Date.
ARTICLE VI - COVENANTS OF COMPANY
From and after the Closing Date and continuing so long as Purchaser holds
any shares of the Class B Preferred Stock (unless otherwise provided herein):
Section 6.1 Use of Proceeds. The Company shall use the proceeds of the
---------------
sale of the Class B Preferred Stock only for the purposes set forth on Schedule
--------
6.1 attached hereto.
- ---
Section 6.2 Repurchase of Class B Preferred Stock. Neither the Company
-------------------------------------
nor any Subsidiary or Affiliate (other than Oracle Partners, L.P. or any of its
Affiliates), directly or indirectly, may repurchase or make any offer to
repurchase any Class B Preferred Stock and the Class B Preferred Stock may only
be redeemed in accordance with its terms.
Section 6.3 Corporate Existence, Etc. The Company will preserve and keep
------------------------
in force and effect, and will cause each Subsidiary to preserve and keep in
force and effect, its corporate existence and good standing in the state of
incorporation thereof, its qualification and good standing as a foreign
corporation in each jurisdiction where such qualification is required by
applicable law except where the failure to so qualify would not have a material
adverse effect on the financial condition or results of operations of the
Company and all licenses and permits necessary to the proper conduct of its
business.
Section 6.4 Maintenance, Etc. The Company will maintain, preserve and
----------------
keep, and will cause each Subsidiary to maintain, preserve and keep, its
properties and assets which are used or useful in the conduct of its business
(whether owned in fee or pursuant to a leasehold interest) in good repair and
working order and from time to time will make all necessary repairs,
replacements, renewals and additions so that at all times the efficiency thereof
shall be maintained.
Section 6.5 Nature of Business. Neither the Company nor any Subsidiary
------------------
will engage in any business if, as a result, the general nature of the business,
taken on a consolidated basis, which would then be engaged in by the Company and
its Subsidiaries would be substantially changed from the general nature of the
business engaged in by the Company and its Subsidiaries on the date of this
Agreement.
Section 6.6 Insurance. The Company will maintain, and will cause each
---------
Subsidiary to maintain, insurance coverage by financially sound and reputable
insurers with respect to their respective properties and business in such forms
and amounts and against such risks, casualties and
15
contingencies as are customary for corporations of established reputation
engaged in the same or a similar business and owning and operating similar
properties.
Section 6.7 Taxes, Claims for Labor and Materials. The Company will
-------------------------------------
promptly pay and discharge, and will cause each Subsidiary promptly to pay and
discharge, (i) all lawful taxes, assessments and governmental charges or levies
imposed upon the property or business of the Company or such Subsidiary,
respectively, (ii) all trade accounts payable in accordance with usual and
customary business terms, and (iii) all claims for work, labor or materials,
which if unpaid might become a lien or charge upon any property of the Company
or such Subsidiary; provided the Company or such Subsidiary shall not be
required to pay any such tax, assessment, charge, levy, account payable or claim
if (i) the validity, applicability or amount thereof is being contested in good
faith by appropriate actions or proceedings which will prevent the forfeiture or
sale of any property of the Company or such Subsidiary or any material
interference with the use thereof by the Company or such Subsidiary, and (ii)
the Company or such Subsidiary shall set aside on its books, reserves deemed by
it to be adequate with respect thereto.
Section 6.8 Compliance with Laws. Except where failure to do so does not
--------------------
and would not result in a Material Adverse Effect, the Company shall maintain
its business operations and property owned or used in connection therewith in
compliance with (i) all applicable federal, state and local laws, regulations
and ordinances, and such laws, regulations and ordinances of foreign
jurisdictions, governing such business operations and the use and ownership of
such property, and (ii) all agreements, licenses, franchises, indentures and
mortgages to which Company is a party or by which Company or any of its
properties is bound. Without limiting the foregoing, Company shall pay all of
its indebtedness promptly and substantially in accordance with the terms
thereof.
Section 6.9 ERISA Matters. If the Company has in effect, or hereafter
-------------
institutes, a pension plan that is subject to the requirements of ERISA, then
the following covenants shall be applicable during such period as any Plan shall
be in effect: (i) the Company hereby covenants that throughout the existence of
the Plan, the Company's contributions under the Plan will meet the minimum
funding standards required by ERISA and Borrower will not institute a distress
termination of the Plan; and (ii) the Company covenants that it will send to
Purchaser a copy of any notice of any "reportable event" (as defined in ERISA)
required by ERISA to be filed with the Labor Department or the Pension Benefit
Guaranty Corporation, at the time that such notice is so filed.
Section 6.10 Books and Records; Rights of Inspection. The Company will
---------------------------------------
keep, and will cause each Subsidiary to keep, proper books of record and account
in which full and correct entries will be made of all dealings or transactions
of or in relation to the business and affairs of the Company or such Subsidiary,
in accordance with generally accepted accounting principles consistently
maintained. The Company shall permit a representative of Purchaser to visit any
of its properties and inspect its corporate books and financial records, and
will discuss its accountants, affairs and finances with a representative of
Purchaser, during reasonable business hours, at all such times as Purchaser may
reasonably request.
Section 6.11 Reports. The Company will furnish to Purchaser the
-------
following:
16
(a) Monthly statements. Within forty-five (45) days of the end of each
month, beginning for the month of October, 1997, monthly financial reports, as
routinely prepared with respect to the Company and the Subsidiaries for internal
use consistent with past practices, which at a minimum shall consist of a
balance sheet of the Company as of the close of such month and related
statements of income and cash flows for the one-month period then ended, as well
as any additional financial reports for such period routinely prepared with
respect to the Company and the Subsidiaries;
(b) Quarterly Statements. As soon as available and in any event within 45
days after the end of each quarterly fiscal period (except the last) of each
fiscal year, copies of:
(i) consolidated and consolidating balance sheets of the Company and
Subsidiaries as of the close of the three-month period then ended, setting
forth in comparative form the consolidated figures for the corresponding
period of the preceding fiscal year,
(ii) consolidated and consolidating statements of income and retained
earnings of the Company and Subsidiaries for the three-month period then
ended, setting forth in comparative form the consolidated figures for the
corresponding period of the preceding fiscal year, and
(iii) consolidated and consolidating statements of cash flows of the
Company and Subsidiaries for the portion of the fiscal year ending with
such three-month period, setting forth in comparative form the consolidated
figures for the corresponding period of the preceding fiscal year,
all in reasonable detail and accompanied by a certificate of an authorized
financial officer of Company that such financial statements fairly present the
financial condition and results of operations and cash flows of the Company and
for the periods presented subject to normal year end adjustment;
(c) Annual Statements. As soon as available and in any event within 90
days after the close of each fiscal year of the Company, copies of:
(i) consolidated and consolidating balance sheets of the Company and
Subsidiaries as of the close of such fiscal year, and
(ii) consolidated and consolidating statements of income and retained
earnings and cash flows of the Company and Subsidiaries for such fiscal
year,
in each case setting forth in comparative form the consolidated figures for
the preceding fiscal year, all in reasonable detail and accompanied by an
unqualified report thereon of a firm of independent public accountants of
recognized national standing or a firm reasonably acceptable to Purchaser;
(d) Audit Reports. Promptly upon receipt thereof, one copy of each interim
or special audit made by independent accountants of the books of the Company or
any Subsidiary;
(e) SEC and Other Reports. Promptly upon their becoming available, one
copy of each financial statement, report, notice or proxy statement sent by the
Company to stockholders generally
17
and of each periodic or current report, and any registration statement or
prospectus filed by the Company or any Subsidiary with any securities exchange
or the SEC or any successor agency, and copies of any orders in any proceedings
to which the Company or any of its Subsidiaries is a party, issued by any
governmental agency, federal or state, having jurisdiction over the Company or
any of its Subsidiaries. The Company specifically covenants to timely file each
such item required to be filed with the SEC and each state requiring securities
laws filings; and
(f) Requested Information. With reasonable promptness, such other data and
information as Purchaser may reasonably request.
Section 6.12 Board of Directors Observer Rights. For so long as Purchaser
----------------------------------
or any Affiliate owns shares of Class B Preferred Stock representing at least
25% of the aggregate number of such shares originally issued to Purchaser,
provided that there is no Class B Director (as defined in the Amended Articles)
then in office, the Company shall invite one (1) representative of Purchaser to
attend, at the Company's expense, all meetings of the Company's Board of
Directors and all committees of the Company's Board of Directors in a nonvoting
capacity and, in this respect, shall give such representative copies of all
notices and meeting agenda in advance of such meetings and shall permit such
representative to review all documents and other materials provided to directors
at such meetings. The Company shall also provide Purchaser, in advance, with
copies of all actions proposed to be taken by the Board of Directors in lieu of
meeting.
Section 6.13 Annual Plan. The Board of Directors shall adopt and the
-----------
Company will furnish to Purchaser, in such manner and form as approved by the
Board of Directors of the Company, no later than the first day of each fiscal
year, a financial plan for the Company, which shall include at least a
projection of income and expenses (including capital expenditures) and a
projected cash flows statement for each month in such fiscal year, and a
projected balance sheet as of the end of each month in such fiscal year (the
"Annual Plan"). The Annual Plan may only be amended or revised, in any material
manner, with the approval of the Board of Directors. The Company shall furnish
to Purchaser each amendment or revision to the Annual Plan promptly upon
approval by the Board of Directors.
Section 6.14 Special Meeting of Shareholders. The Company shall
-------------------------------
recommend to the holders of Common Stock of the Company, and cause a special
meeting of such holders of Common Stock of the Company to be held on November
24, 1997 for the purpose of obtaining, the approval and adoption by such
shareholders of the Amended Articles.
ARTICLE VII
AMENDMENTS, WAIVERS AND CONSENTS
Section 7.1 Consent Required. Any term, covenant, agreement or condition
----------------
of this Agreement may, with the consent of the Company, be amended or compliance
therewith may be waived (either generally or in a particular instance and either
retroactively or prospectively), if the Company shall have obtained the consent
in writing of the holders of at least 50% of the outstanding Class B Preferred
Stock.
18
Section 7.2 Effect of Amendment or Waiver. Any such amendment or waiver
-----------------------------
shall apply equally to all of the holders of the Class B Preferred Stock and
shall be binding upon them, upon each future holder of any Class B Preferred
Stock and upon the Company. No such amendment or waiver shall extend to or
affect any obligation not expressly amended or waived or impair any right
consequent thereon.
ARTICLE VIII
INTERPRETATION OF AGREEMENT; DEFINITIONS
Section 8.1 Definitions. Unless the context otherwise requires, the
-----------
terms hereinafter set forth when sued herein shall have the following meanings
and the following definitions shall be equally applicable to both the singular
and plural forms of any of the terms herein defined:
"Affiliate" shall mean any Person (a) which directly or indirectly through
one or more intermediaries controls, or is controlled by, or is under common
control with, the Company, (b) which beneficially owns or holds 5% or more of
any class of the voting stock of the Company or (c) 5% or more of the voting
stock (or in the case of a Person which is not a corporation, 5% or more of the
equity interest) of which is beneficially owned or held by the Company or a
Subsidiary. The term "control" means possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting stock, by contract or otherwise.
"Guaranties" by any Person shall mean all obligations (other than
endorsements in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing, or in effect guaranteeing,
any indebtedness, dividend or other obligation of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including, without
limitation, all obligations incurred through an agreement, contingent or
otherwise, by such Person: (a) to purchase such indebtedness or obligation or
any property or assets constituting security therefor, (b) to advance or supply
funds (i) for the purchase or payment of such indebtedness or obligation, (ii)
to maintain working capital or other balance sheet condition or (iii) otherwise
to advance or make available funds for the purchase or payment of such
indebtedness or obligation, or (c) to lease property or to purchase securities
or other property or services primarily for the purpose of assuring the owner of
such indebtedness or obligation of the ability of the primary obligor to make
payment of the indebtedness or obligation, or (d) otherwise to assure the owner
of the indebtedness or obligation of the primary obligor against loss in respect
thereof. For the purposes of all computations made under this Agreement, a
Guaranty in respect of any indebtedness for borrowed money shall be deemed to be
indebtedness equal to the principal amount of such indebtedness for borrowed
money which has been guaranteed, and a Guaranty in respect of any other
obligation or liability or any dividend shall be deemed to be indebtedness equal
to the maximum aggregate amount of such obligation, liability or dividend.
"Materially Adverse Effect" shall mean a materially adverse effect upon the
business, assets, liabilities, financial condition, results of operations or
business prospects, in each case of the Company and its Subsidiaries taken as a
whole, or upon the ability of the Company to perform its obligations under this
Agreement or the other Operative Documents.
19
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, and a government or agency or political subdivision
thereof.
Section 8.2 Accounting Principles. Where the character or amount of any
---------------------
asset or liability or item of income or expense is required to be determined or
any consolidation or other accounting computation is required to be made for the
purposes of this Agreement, the same shall be done in accordance with GAAP, to
the extent applicable, except where such principles are inconsistent with the
requirements of this Agreement.
Section 8.3 Directly or Indirectly. Where any provision in this
----------------------
Agreement refers to action to be taken by any Person, or which such Person is
prohibited from taking such provision shall be applicable whether the action in
question is taken directly or indirectly by such Person.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Expenses, Stamp Tax Indemnity. Whether or not the
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transactions herein contemplated shall be consummated, the Company agrees to pay
directly all of Purchaser's out-of-pocket expenses in connection with the
entering into of this Agreement and the consummation of the transactions
contemplated hereby, including but not limited to the reasonable fees, expenses
and disbursements of Sherrard & Roe, PLC, Purchaser's counsel, the entering into
of this Agreement and the consummation of duplicating and printing cost, and so
long as Purchaser holds any of the Class B Preferred Stock, all such expenses
relating to any amendments, waivers or consents pursuant to the provisions
hereof (whether or not the same are actually executed and delivered), including,
without limitation, any amendments, waivers or consents resulting from any work-
out, restructuring or similar proceedings relating to the performance by the
Company of its obligations under this Agreement. The Company also agrees that
it will pay and save Purchaser harmless against any and all liability with
respect to stamp and other taxes, if any, which may be payable in connection
with the execution and delivery of this Agreement or the issuance of the Class B
Preferred Stock, whether or not any shares of Class B Preferred Stock are then
outstanding. The Company agrees to protect and indemnify Purchaser against any
liability for any and all brokerage fees and commissions payable or claimed to
be payable to any Person in connection with the transactions contemplated by
this Agreement.
Section 9.2 Powers and Rights Not Waived; Remedies Cumulative. No delay
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or failure on the part of the holder of any Class B Preferred Stock in the
exercise of any power or right shall operate as a waiver thereof; nor shall any
single or partial exercise of the same preclude any other of further exercise
thereof, or the exercise of any other power or right, and the rights and
remedies of the holder of any Class B Preferred Stock are cumulative to and are
not exclusive of any rights or remedies any such holder would otherwise have,
and no waiver or consent, given or extended pursuant to Article XI hereof, shall
extend to or affect any obligation or right not expressly waived or consented
to.
Section 9.3 Notices. All communications provided for hereunder shall be
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in writing and shall be delivered personally, or mailed by registered mail, or
by prepaid overnight air courier, or by facsimile communication, in each case
addressed:
20
If to Purchaser: Tandem Capital, Inc.
500 Church Street, Suite 200
Nashville, Tennessee 37219
Fax: (615) 726-1208
Attention: Craig Macnab
with a copy to: Sherrard & Roe, PLC
424 Church Street, Suite 2000
Nashville, Tennessee 37219
Fax: (615) 742-4539
Attention: Donald I.N. McKenzie, Esq.
If to the Company: Clinicor, Inc.
1717 West Sixth Street, Suite 400
Austin, TX 78703
Fax: (512) 477-0027
Attention: Robert S. Sammis
with a copy to: Graves, Dougherty, Hearon & Moody
515 Congress Avenue
Suite 2300
Austin, TX 78701
Fax: (512) 478-1976
Attention: Karen Bartoletti, Esq.
or such other address as Purchaser or the subsequent holder of any Class B
Preferred Stock initially issued to Purchaser may designate to the Company in
writing, or such other address as the Company may in writing designate to
Purchaser or to a subsequent holder of the Class B Preferred Stock initially
issued to Purchaser, provided, however, that a notice sent by overnight air
courier shall only be effective if delivered at a street address designated for
such purpose by such person and a notice sent by facsimile communication shall
only be effective if made by confirmed transmission at a telephone number
designated for such purpose by such person or, in either case, as Purchaser or a
subsequent holder of any Class B Preferred Stock initially issued to Purchaser
may designate to the Company in writing or at a telephone number herein set
forth in the case of the Company.
21
Section 9.4 Successors and Assigns. This Agreement and the other
----------------------
Operative Documents may be endorsed, assigned and/or transferred in whole or in
part by Purchaser, and any such holder and/or assignee of the same shall succeed
to and be possessed of the rights and powers of Purchaser under all of the same
to the extent transferred and assigned. The Company shall not assign any of its
rights nor delegate any of its duties under this Agreement or any of the other
Operative Documents by operation of law or otherwise without the prior express
written consent of Purchaser, and in the event the Company obtains such consent,
this Agreement and the other Operative Documents shall be binding upon such
assignee.
Section 9.5 Survival of Covenants and Representations. All
-----------------------------------------
representations and warranties made by the Company herein and in any
certificates delivered pursuant hereto, whether or not in connection with the
Closing Date, shall survive the closing and the delivery of this Agreement and
the Closing Date for a period of three (3) years after the Closing Date. Unless
otherwise provided, the covenants made by the Company shall survive for so long
as any shares of Class B Preferred Stock remain outstanding.
Section 9.6 Severability. Should any part of this Agreement for any
------------
reason be declared invalid or unenforceable, such decision shall not affect the
validity of any remaining portion, which remaining portion shall remain in force
and effect as if this Agreement had been executed with the invalid or
unenforceable portion thereof eliminated and it is hereby declared the intention
of the parties hereto that they would have executed the remaining portion of
this Agreement without including therein any such part, parts or portion which
may for any reason, be hereafter declared invalid or unenforceable.
Section 9.7 Governing Law. This Agreement shall be governed by and
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construed in accordance with Tennessee law, without regard to its conflict of
law rules.
Section 9.8 Captions; Counterparts. The descriptive headings of the
----------------------
various Sections or parts of this Agreement are for convenience only and shall
not affect the meaning or construction of any of the provisions hereof. This
Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
Section 9.9 Entire Agreement. This Agreement constitutes the entire
----------------
agreement of the parties with regard to the sale of the Class B Preferred Stock.
22
* * *
IN WITNESS WHEREOF, the parties hereto have caused this Class B Preferred
Stock Purchase Agreement to be executed and delivered by their duly authorized
officers as of the date first written above.
COMPANY: CLINICOR, INC.
By: /s/ ROBERT SAMMIS
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Name: Robert Sammis
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Title: President
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PURCHASER: SIRROM CAPITAL CORPORATION
d/b/a Tandem Capital, Inc.
By: /s/ CRAIG MACNAB
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Craig Macnab
Vice President
EXHIBITS AND SCHEDULES OMITTED