CORPORATE GUARANTEE
3689697 CANADA INC.
300, Leo Pariseau Street
Suite 2000
Montreal (Quebec)
H2X 4B3
RE: 3689697 CANADA INC. ("CREDITOR")
AND: TOTAL FIRST AID, INC. ("DEBTOR")
Dear Sirs:
PART I - GUARANTEE
1. DEFINITIONS
1.1 For purposes hereof the following terms have the following meanings:
(a) "CREDITOR" means the CREDITOR referred to above, and all its
successors, assigns and legal representatives;
(b) "DEBTOR" means the DEBTOR referred to above, and all its successors,
assigns and legal representatives;
(c) "GUARANTORS" means FSG Consultants Inc. and Progestic International
Inc. and their successors, assigns and legal representatives.
(d) "OBLIGATIONS" means any and all indebtedness, liabilities and
obligations of the DEBTOR to the CREDITOR pursuant to the PROMISSORY
NOTE
(e) "PROMISSORY NOTE" means the promissory note issued by the DEBTOR on
June 3rd, 2004 in favour of the CREDITOR for an amount of one hundred
and fifty thousand US dollars (US. $150,000) and bearing interest at a
fixed rate of ten percent (10%) until maturity and at an annual rate of
twenty percent (20%) after maturity until paid in full.
2. GUARANTEE
2.1 SOLIDARY AND INDIVISIBLE OBLIGATION
For valuable consideration, receipt and sufficiency of which is hereby
acknowledged, the GUARANTORS hereby, solidarily with the DEBTOR and with any and
all other GUARANTORS, guarantee and bind themselves in favour of the CREDITOR,
for the fulfillment and payment, when due, of all the OBLIGATIONS. As a result
of the foregoing, the GUARANTORS, the DEBTOR and any other present or future
solidary GUARANTORS of the OBLIGATIONS may be compelled separately to pay or
fulfil the OBLIGATIONS. The obligations of the GUARANTORS under this Guarantee
are indivisible.
2.2 UNLIMITED LIABILITY OF GUARANTORS
The liability of the GUARANTORS hereunder is unlimited and extends to
the full amount of the OBLIGATIONS.
2.3 WAIVER OF BENEFITS OF DIVISION AND DISCUSSION
The GUARANTORS hereby confirm that the CREDITOR will not be obliged,
before dealing with this Guarantee or any security given to the CREDITOR by the
GUARANTORS, to exercise or exhaust its recourses against the DEBTOR or against
any other party or against any security held by or for the benefit of the
CREDITOR as security for the OBLIGATIONS, the GUARANTORS hereby waiving the
benefits of division and discussion.
2.4 CONTINUING NATURE OF GUARANTEE
This Guarantee is a continuing guarantee and shall subsist
notwithstanding occasional repayment of the DEBTOR's obligations in whole or in
part. It shall guarantee all debts and obligations of the DEBTOR to the
CREDITOR, present and future, direct and indirect, of any nature whatsoever in
connection with the PROMISSORY NOTE including, without limitation, all costs and
disbursements incurred by the CREDITOR for the recovery of such debts and
obligations of the DEBTOR to the CREDITOR.
3. INFORMATION
3.1 At the request of the GUARANTORS, acting reasonably, the CREDITOR will
provide the GUARANTORS with any useful information respecting the content and
the terms and conditions of the OBLIGATIONS and the progress made in the
performance of the OBLIGATIONS. Any such request will be in writing and will be
as precise as possible.
4. GUARANTORS' LIABILITY UNAFFECTED
4.1 The liability of the GUARANTORS hereunder will not be extinguished,
lessened or affected in any way by reason of the occurrence of any of the
following:
(a) Any incapacity, inexistence, change of status, change of name,
amalgamation, merger or change in the structure, constitution or
membership of the DEBTOR,
2
the CREDITOR, or any of the GUARANTORS or if for any reason the entity
which is the CREDITOR of any of the OBLIGATIONS is or becomes someone
other than the CREDITOR or the CREDITOR is replaced by any other entity
as the lender in the PROMISSORY NOTE or any party other than the DEBTOR
becomes the debtor of any of the OBLIGATIONS;
(b) If the DEBTOR, or any of the GUARANTORS becomes insolvent or bankrupt
or becomes subject to or seeks the protection or exercise of any rights
under any law relating to bankruptcy or insolvency;
(c) The cessation of any special duties to the extent that the present
Guarantee may, in any manner, attach thereto or if any of the
GUARANTORS ceases to have business dealings with the DEBTOR or to hold
any position or fulfil any function whether as director, officer,
administrator, partner, employee or otherwise;
(d) If the DEBTOR sells or otherwise disposes of the whole or any portion
of its property, assets or enterprise or if any property, assets or
enterprise of the DEBTOR becomes subject to a sale or other disposition
giving rise to a distribution and the CREDITOR fails to make a claim or
makes only a partial claim or values its security in a manner which any
of the GUARANTORS considers inappropriate or refrains from valuing any
security held by it;
(e) Any irregularity, defect or informality in the creation of any of the
OBLIGATIONS or any increase or reduction of the OBLIGATIONS or
modification of the terms and conditions thereof;
(f) The failure of any other anticipated GUARANTORS of the OBLIGATIONS to
enter into a Guarantee in favour of the CREDITOR, or the release in
whole or in part, of any GUARANTORS or the termination of any Guarantee
of any GUARANTORS;
(g) If, whether or not with the GUARANTORS' knowledge, the CREDITOR grants
extensions of time, renewals, indulgences, waivers, releases,
discharges, makes any compromise or transaction or arrangement or
otherwise deals with any of the OBLIGATIONS, the DEBTOR or any other
party or with any security or guarantees held by it;
(h) The failure of the CREDITOR or any other party to take, protect,
perfect or preserve any rights, hypothecs or other security, from the
DEBTOR or any other party or the loss, diminution or unenforceability
or impossibility to realize or abstention from realization of any such
rights, hypothecs or other security, whether or not caused or resulting
from any act or omission of the CREDITOR or any person acting for or
for whom the CREDITOR may be responsible;
(i) The death of any other surety; or
3
(j) Any other act, omission or event whatsoever which might otherwise
lessen, affect or discharge a surety.
5. ACCOUNTS, IMPUTATION AND COMPENSATION
5.1 The GUARANTORS will be bound by any account settled between the CREDITOR and
the DEBTOR. Any statement by the CREDITOR of the amount owing by the DEBTOR will
constitute, in the absence of manifest error, prima facie evidence of such
indebtedness.
5.2 The CREDITOR may apply any monies received from the DEBTOR or others or from
any security or guarantees held by the CREDITOR as it deems fit, and from time
to time modify such application.
5.3 The CREDITOR may, at its discretion, and without necessity of notice to any
of the GUARANTORS, set off and compensate any monies held or amounts owing by
the CREDITOR to the GUARANTORS, against any amounts owing to the CREDITOR by the
GUARANTORS under this Guarantee.
6. TERMINATION
This Guarantee shall bind the GUARANTORS together with the GUARANTORS'
successors and assigns until payment in full of the OBLIGATIONS to the CREDITOR.
7. INVALID PAYMENTS AND EVICTION
7.1 If the CREDITOR receives any payment on account of the OBLIGATIONS which is
later set aside or required to be repaid by the CREDITOR in whole or in part,
then, to the extent of any sum not finally retained by the CREDITOR (regardless
of whether such sum is recovered from the CREDITOR by the DEBTOR, its trustee,
or any other party acting for, on behalf of or through the DEBTOR or its
representative), the amount of the payment so set aside or repaid by the
CREDITOR will form part of the OBLIGATIONS and the GUARANTORS will be liable to
the CREDITOR for repayment thereof, on demand, notwithstanding any termination
of this Guarantee.
7.2 Notwithstanding any provision of law to the contrary, in the event that the
CREDITOR voluntarily accepts property in payment of the OBLIGATIONS and is
subsequently evicted therefrom or if such property is recovered (but before the
TERMINATION DATE) from the CREDITOR by any party, the GUARANTORS will not be
discharged from their liability under this Guarantee.
8. GENERAL
8.1 Any word herein containing the singular number will include the plural and
any word importing any gender will include the masculine, feminine and neuter
genders and any word importing a person will include a legal person,
corporation, a partnership and any other entity.
4
8.2 The Guarantee of each GUARANTOR is separate and distinct from the Guarantee
of the other GUARANTORS in the same manner and to the same extent as if each
GUARANTOR had signed a separate document of Guarantee in form and content
identical to the present Guarantee. The release or termination of this Guarantee
with respect to any GUARANTOR will not affect the liability of the other
GUARANTOR.
8.3 The GUARANTORS acknowledge and confirm that no representations, warranties,
inducements or undertakings were made or given to it or to the DEBTOR by the
CREDITOR in connection with this Guarantee unless such representations,
warranties, inducements or undertakings were specifically made or given in a
written instrument signed by the CREDITOR or an authorized officer of the
CREDITOR. Moreover, any alteration or amendment to this Guarantee or any future
undertaking by the CREDITOR, in order to be binding upon the CREDITOR, must be
made or given by way of such a written instrument.
8.4 The present Guarantee is in addition to and not in substitution for nor to
be deemed substituted by any other undertakings, guarantees or security held or
which may hereafter be held by or for the benefit of the CREDITOR.
8.5 The present Guarantee will be governed and construed in accordance with the
laws of the Province of Quebec. The GUARANTORS expressly submit and consent to
the exclusive jurisdiction of the Superior Court, District of Montreal with
respect to any controversy arising out of or relating to this Guarantee or any
supplement hereto or to any transactions in connection therewith.
8.6 Any demand or notice to be given to any GUARANTORS pursuant hereto may be
delivered or sent by prepaid registered or certified mail addressed to such
GUARANTORS at the address provided herein or such other address which such
GUARANTORS may notify the CREDITOR in writing. However, if the CREDITOR is
unable to locate any of the GUARANTORS at such address, then any such notice or
demand may be served upon him/it at the Office of the Clerk of the Superior
Court, District of Montreal at which office in such event the GUARANTORS elect
domicile for the purposes of this Guarantee.
8.7 This Guarantee shall not be considered as an indivisible whole and every
provision of this Guarantee is and shall be independent of the other. In the
event that any part of this Guarantee is declared invalid, illegal or
unenforceable, then the remaining terms, clauses and provisions of this
Guarantee shall not be affected by such declaration and all of the remaining
clauses of this Guarantee shall remain valid, binding and enforceable.
8.8 The undersigned acknowledge having required that the present Guarantee and
all documentation and notices entered into or given pursuant hereto or relating
directly or indirectly hereto be drawn up in English.
5
Les soussignes reconnaissent avoir exige la redaction en anglais du
present cautionnement ainsi que de tous documents et avis qui pourront etre
executes ou donnes a la suite de ou ayant un rapport direct ou indirect avec le
present cautionnement.
SIGNED AT MONTREAL, QUEBEC, THIS DAY OF JUNE 2004.
--------
PROGESTIC INTERNATIONAL INC.
Per:
- -------------------- -------------------------
SIGNATURE OF WITNESS Name: Jacques R. Delorme
Title: Officer
FSG CONSULTANTS INC.
Per:
- -------------------- -------------------------
SIGNATURE OF WITNESS Name: Jacques R. Delorme
Title: Officer
The DEBTOR hereby acknowledges and accept this corporate guarantee and further
authorizes the CREDITOR to furnish the GUARANTORS any information relating to
the DEBTOR, the PROMISSORY NOTE, and the OBLIGATIONS as the CREDITOR, in its
sole discretion, deems appropriate.
SIGNED AT MONTREAL, QUEBEC, THIS DAY OF JUNE, 2004.
-------
TOTAL FIRST AID, INC.
PER:
-------------------------
Name: Jeffery Tabin
6
ACKNOWLEDGED AND ACCEPTED AT MONTREAL, QUEBEC, THIS DAY OF JUNE, 2004.
-------
3689697 CANADA INC.
PER:
-------------------------
Name: Garrie Matheson
7
CORPORATE GUARANTEE
373 FLORIDA CORP.
21218, St-Andrews Blvd
Boca Raton, Florida
U.S.A.
33433
RE: 373 FLORIDA CORP. ("CREDITOR")
AND: TOTAL FIRST AID, INC. ("DEBTOR")
Dear Sirs:
PART I - GUARANTEE
1. DEFINITIONS
1.1 For purposes hereof the following terms have the following meanings:
(a) "CREDITOR" means the CREDITOR referred to above, and all its
successors, assigns and legal representatives;
(b) "DEBTOR" means the DEBTOR referred to above, and all its successors,
assigns and legal representatives;
(c) "GUARANTORS" means FSG Consultants Inc. and Progestic International
Inc. and their successors, assigns and legal representatives.
(d) "OBLIGATIONS" means any and all indebtedness, liabilities and
obligations of the DEBTOR to the CREDITOR pursuant to the PROMISSORY
NOTE
(e) "PROMISSORY NOTE" means the promissory note issued by the DEBTOR on
June 3rd, 2004 in favour of the CREDITOR for an amount of one hundred
and fifty thousand US dollars (US. $150,000) and bearing interest at a
fixed rate of ten percent (10%) until maturity and at an annual rate of
twenty percent (20%) after maturity until paid in full.
2. GUARANTEE
2.1 SOLIDARY AND INDIVISIBLE OBLIGATION
For valuable consideration, receipt and sufficiency of which is hereby
acknowledged, the GUARANTORS hereby, solidarily with the DEBTOR and with any and
all other GUARANTORS, guarantee and bind themselves in favour of the CREDITOR,
for the fulfillment and payment, when due, of all the OBLIGATIONS. As a result
of the foregoing, the GUARANTORS, the DEBTOR and any other present or future
solidary GUARANTORS of the OBLIGATIONS may be compelled separately to pay or
fulfil the OBLIGATIONS. The obligations of the GUARANTORS under this Guarantee
are indivisible.
2.2 UNLIMITED LIABILITY OF GUARANTORS
The liability of the GUARANTORS hereunder is unlimited and extends to
the full amount of the OBLIGATIONS.
2.3 WAIVER OF BENEFITS OF DIVISION AND DISCUSSION
The GUARANTORS hereby confirm that the CREDITOR will not be obliged,
before dealing with this Guarantee or any security given to the CREDITOR by the
GUARANTORS, to exercise or exhaust its recourses against the DEBTOR or against
any other party or against any security held by or for the benefit of the
CREDITOR as security for the OBLIGATIONS, the GUARANTORS hereby waiving the
benefits of division and discussion.
2.4 CONTINUING NATURE OF GUARANTEE
This Guarantee is a continuing guarantee and shall subsist
notwithstanding occasional repayment of the DEBTOR's obligations in whole or in
part. It shall guarantee all debts and obligations of the DEBTOR to the
CREDITOR, present and future, direct and indirect, of any nature whatsoever in
connection with the PROMISSORY NOTE including, without limitation, all costs and
disbursements incurred by the CREDITOR for the recovery of such debts and
obligations of the DEBTOR to the CREDITOR.
3. INFORMATION
3.1 At the request of the GUARANTORS, acting reasonably, the CREDITOR will
provide the GUARANTORS with any useful information respecting the content and
the terms and conditions of the OBLIGATIONS and the progress made in the
performance of the OBLIGATIONS. Any such request will be in writing and will be
as precise as possible.
4. GUARANTORS' LIABILITY UNAFFECTED
4.1 The liability of the GUARANTORS hereunder will not be extinguished, lessened
or affected in any way by reason of the occurrence of any of the following:
2
(a) Any incapacity, inexistence, change of status, change of name,
amalgamation, merger or change in the structure, constitution or
membership of the DEBTOR, the CREDITOR, or any of the GUARANTORS or if
for any reason the entity which is the CREDITOR of any of the
OBLIGATIONS is or becomes someone other than the CREDITOR or the
CREDITOR is replaced by any other entity as the lender in the
PROMISSORY NOTE or any party other than the DEBTOR becomes the debtor
of any of the OBLIGATIONS;
(b) If the DEBTOR, or any of the GUARANTORS becomes insolvent or bankrupt
or becomes subject to or seeks the protection or exercise of any rights
under any law relating to bankruptcy or insolvency;
(c) The cessation of any special duties to the extent that the present
Guarantee may, in any manner, attach thereto or if any of the
GUARANTORS ceases to have business dealings with the DEBTOR or to hold
any position or fulfil any function whether as director, officer,
administrator, partner, employee or otherwise;
(d) If the DEBTOR sells or otherwise disposes of the whole or any portion
of its property, assets or enterprise or if any property, assets or
enterprise of the DEBTOR becomes subject to a sale or other disposition
giving rise to a distribution and the CREDITOR fails to make a claim or
makes only a partial claim or values its security in a manner which any
of the GUARANTORS considers inappropriate or refrains from valuing any
security held by it;
(e) Any irregularity, defect or informality in the creation of any of the
OBLIGATIONS or any increase or reduction of the OBLIGATIONS or
modification of the terms and conditions thereof;
(f) The failure of any other anticipated GUARANTORS of the OBLIGATIONS to
enter into a Guarantee in favour of the CREDITOR, or the release in
whole or in part, of any GUARANTORS or the termination of any Guarantee
of any GUARANTORS;
(g) If, whether or not with the GUARANTORS' knowledge, the CREDITOR grants
extensions of time, renewals, indulgences, waivers, releases,
discharges, makes any compromise or transaction or arrangement or
otherwise deals with any of the OBLIGATIONS, the DEBTOR or any other
party or with any security or guarantees held by it;
(h) The failure of the CREDITOR or any other party to take, protect,
perfect or preserve any rights, hypothecs or other security, from the
DEBTOR or any other party or the loss, diminution or unenforceability
or impossibility to realize or abstention from realization of any such
rights, hypothecs or other security, whether or not caused or resulting
from any act or omission of the CREDITOR or any person acting for or
for whom the CREDITOR may be responsible;
(i) The death of any other surety; or
(j) Any other act, omission or event whatsoever which might otherwise
lessen, affect or discharge a surety.
3
5. ACCOUNTS, IMPUTATION AND COMPENSATION
5.1 The GUARANTORS will be bound by any account settled between the CREDITOR and
the DEBTOR. Any statement by the CREDITOR of the amount owing by the DEBTOR will
constitute, in the absence of manifest error, prima facie evidence of such
indebtedness.
5.2 The CREDITOR may apply any monies received from the DEBTOR or others or from
any security or guarantees held by the CREDITOR as it deems fit, and from time
to time modify such application.
5.3 The CREDITOR may, at its discretion, and without necessity of notice to any
of the GUARANTORS, set off and compensate any monies held or amounts owing by
the CREDITOR to the GUARANTORS, against any amounts owing to the CREDITOR by the
GUARANTORS under this Guarantee.
6. TERMINATION
This Guarantee shall bind the GUARANTORS together with the GUARANTORS'
successors and assigns until payment in full of the OBLIGATIONS to the CREDITOR.
7. INVALID PAYMENTS AND EVICTION
7.1 If the CREDITOR receives any payment on account of the OBLIGATIONS which is
later set aside or required to be repaid by the CREDITOR in whole or in part,
then, to the extent of any sum not finally retained by the CREDITOR (regardless
of whether such sum is recovered from the CREDITOR by the DEBTOR, its trustee,
or any other party acting for, on behalf of or through the DEBTOR or its
representative), the amount of the payment so set aside or repaid by the
CREDITOR will form part of the OBLIGATIONS and the GUARANTORS will be liable to
the CREDITOR for repayment thereof, on demand, notwithstanding any termination
of this Guarantee.
7.2 Notwithstanding any provision of law to the contrary, in the event that the
CREDITOR voluntarily accepts property in payment of the OBLIGATIONS and is
subsequently evicted therefrom or if such property is recovered (but before the
TERMINATION DATE) from the CREDITOR by any party, the GUARANTORS will not be
discharged from their liability under this Guarantee.
8. GENERAL
8.1 Any word herein containing the singular number will include the plural and
any word importing any gender will include the masculine, feminine and neuter
genders and any word importing a person will include a legal person,
corporation, a partnership and any other entity.
4
8.2 The Guarantee of each GUARANTOR is separate and distinct from the Guarantee
of the other GUARANTORS in the same manner and to the same extent as if each
GUARANTOR had signed a separate document of Guarantee in form and content
identical to the present Guarantee. The release or termination of this Guarantee
with respect to any GUARANTOR will not affect the liability of the other
GUARANTOR.
8.3 The GUARANTORS acknowledge and confirm that no representations, warranties,
inducements or undertakings were made or given to it or to the DEBTOR by the
CREDITOR in connection with this Guarantee unless such representations,
warranties, inducements or undertakings were specifically made or given in a
written instrument signed by the CREDITOR or an authorized officer of the
CREDITOR. Moreover, any alteration or amendment to this Guarantee or any future
undertaking by the CREDITOR, in order to be binding upon the CREDITOR, must be
made or given by way of such a written instrument.
8.4 The present Guarantee is in addition to and not in substitution for nor to
be deemed substituted by any other undertakings, guarantees or security held or
which may hereafter be held by or for the benefit of the CREDITOR.
8.5 The present Guarantee will be governed and construed in accordance with the
laws of the Province of Quebec. The GUARANTORS expressly submit and consent to
the exclusive jurisdiction of the Superior Court, District of Montreal with
respect to any controversy arising out of or relating to this Guarantee or any
supplement hereto or to any transactions in connection therewith.
8.6 Any demand or notice to be given to any GUARANTORS pursuant hereto may be
delivered or sent by prepaid registered or certified mail addressed to such
GUARANTORS at the address provided herein or such other address which such
GUARANTORS may notify the CREDITOR in writing. However, if the CREDITOR is
unable to locate any of the GUARANTORS at such address, then any such notice or
demand may be served upon him/it at the Office of the Clerk of the Superior
Court, District of Montreal at which office in such event the GUARANTORS elect
domicile for the purposes of this Guarantee.
8.7 This Guarantee shall not be considered as an indivisible whole and every
provision of this Guarantee is and shall be independent of the other. In the
event that any part of this Guarantee is declared invalid, illegal or
unenforceable, then the remaining terms, clauses and provisions of this
Guarantee shall not be affected by such declaration and all of the remaining
clauses of this Guarantee shall remain valid, binding and enforceable.
8.8 The undersigned acknowledge having required that the present Guarantee and
all documentation and notices entered into or given pursuant hereto or relating
directly or indirectly hereto be drawn up in English.
5
Les soussignes reconnaissent avoir exige la redaction en anglais du
present cautionnement ainsi que de tous documents et avis qui pourront etre
executes ou donnes a la suite de ou ayant un rapport direct ou indirect avec le
present cautionnement.
SIGNED AT MONTREAL, QUEBEC, THIS DAY OF JUNE 2004.
---------
PROGESTIC INTERNATIONAL INC.
Per:
- ----------------------------- ---------------------------------
SIGNATURE OF WITNESS Name: Jacques R. Delorme
Title: Officer
FSG CONSULTANTS INC.
Per:
- ----------------------------- ---------------------------------
SIGNATURE OF WITNESS Name: Jacques R. Delorme
Title: Officer
The DEBTOR hereby acknowledges and accept this corporate guarantee and further
authorizes the CREDITOR to furnish the GUARANTORS any information relating to
the DEBTOR, the PROMISSORY NOTE, and the OBLIGATIONS as the CREDITOR, in its
sole discretion, deems appropriate.
SIGNED AT MONTREAL, QUEBEC, THIS DAY OF JUNE, 2004.
-------
TOTAL FIRST AID, INC.
PER:
-------------------------------
Name: Jeffery Tabin
6
ACKNOWLEDGED AND ACCEPTED AT MONTREAL, QUEBEC, THIS DAY OF JUNE, 2004.
--------
373 FLORIDA CORP.
PER:
-------------------------------
Name: Michel L. Marengere
7
CORPORATE GUARANTEE
3113019 CANADA INC.
1155, Rene-Levesque Blvd. West
40th floor
Montreal (Quebec)
H3B 3V2
RE: 3113019 CANADA INC. ("CREDITOR")
AND: TOTAL FIRST AID, INC. ("DEBTOR")
Dear Sirs:
PART I - GUARANTEE
1. DEFINITIONS
1.1 For purposes hereof the following terms have the following meanings:
(a) "CREDITOR" means the CREDITOR referred to above, and all its
successors, assigns and legal representatives;
(b) "DEBTOR" means the DEBTOR referred to above, and all its successors,
assigns and legal representatives;
(c) "GUARANTORS" means FSG Consultants Inc. and Progestic International
Inc. and their successors, assigns and legal representatives.
(d) "OBLIGATIONS" means any and all indebtedness, liabilities and
obligations of the DEBTOR to the CREDITOR pursuant to the PROMISSORY
NOTE
(e) "PROMISSORY NOTE" means the promissory note issued by the DEBTOR on
June 3, 2004 in favour of the CREDITOR for an amount of one hundred and
fifty thousand US dollars (US. $150,000) and bearing interest at a
fixed rate of ten percent (10%) until maturity and at an annual rate of
twenty percent (20%) after maturity until paid in full.
2. GUARANTEE
2.1 SOLIDARY AND INDIVISIBLE OBLIGATION
For valuable consideration, receipt and sufficiency of which is hereby
acknowledged, the GUARANTORS hereby, solidarily with the DEBTOR and with any and
all other GUARANTORS, guarantee and bind themselves in favour of the CREDITOR,
for the fulfillment and payment, when due, of all the OBLIGATIONS. As a result
of the foregoing, the GUARANTORS, the DEBTOR and any other present or future
solidary GUARANTORS of the OBLIGATIONS may be compelled separately to pay or
fulfil the OBLIGATIONS. The obligations of the GUARANTORS under this Guarantee
are indivisible.
2.2 UNLIMITED LIABILITY OF GUARANTORS
The liability of the GUARANTORS hereunder is unlimited and extends to
the full amount of the OBLIGATIONS.
2.3 WAIVER OF BENEFITS OF DIVISION AND DISCUSSION
The GUARANTORS hereby confirm that the CREDITOR will not be obliged,
before dealing with this Guarantee or any security given to the CREDITOR by the
GUARANTORS, to exercise or exhaust its recourses against the DEBTOR or against
any other party or against any security held by or for the benefit of the
CREDITOR as security for the OBLIGATIONS, the GUARANTORS hereby waiving the
benefits of division and discussion.
2.4 CONTINUING NATURE OF GUARANTEE
This Guarantee is a continuing guarantee and shall subsist
notwithstanding occasional repayment of the DEBTOR's obligations in whole or in
part. It shall guarantee all debts and obligations of the DEBTOR to the
CREDITOR, present and future, direct and indirect, of any nature whatsoever in
connection with the PROMISSORY NOTE including, without limitation, all costs and
disbursements incurred by the CREDITOR for the recovery of such debts and
obligations of the DEBTOR to the CREDITOR.
3. INFORMATION
3.1 At the request of the GUARANTORS, acting reasonably, the CREDITOR will
provide the GUARANTORS with any useful information respecting the content and
the terms and conditions of the OBLIGATIONS and the progress made in the
performance of the OBLIGATIONS. Any such request will be in writing and will be
as precise as possible.
4. GUARANTORS' LIABILITY UNAFFECTED
4.1 The liability of the GUARANTORS hereunder will not be extinguished, lessened
or affected in any way by reason of the occurrence of any of the following:
2
(a) Any incapacity, inexistence, change of status, change of name,
amalgamation, merger or change in the structure, constitution or
membership of the DEBTOR, the CREDITOR, or any of the GUARANTORS or if
for any reason the entity which is the CREDITOR of any of the
OBLIGATIONS is or becomes someone other than the CREDITOR or the
CREDITOR is replaced by any other entity as the lender in the
PROMISSORY NOTE or any party other than the DEBTOR becomes the debtor
of any of the OBLIGATIONS;
(b) If the DEBTOR, or any of the GUARANTORS becomes insolvent or bankrupt
or becomes subject to or seeks the protection or exercise of any rights
under any law relating to bankruptcy or insolvency;
(c) The cessation of any special duties to the extent that the present
Guarantee may, in any manner, attach thereto or if any of the
GUARANTORS ceases to have business dealings with the DEBTOR or to hold
any position or fulfil any function whether as director, officer,
administrator, partner, employee or otherwise;
(d) If the DEBTOR sells or otherwise disposes of the whole or any portion
of its property, assets or enterprise or if any property, assets or
enterprise of the DEBTOR becomes subject to a sale or other disposition
giving rise to a distribution and the CREDITOR fails to make a claim or
makes only a partial claim or values its security in a manner which any
of the GUARANTORS considers inappropriate or refrains from valuing any
security held by it;
(e) Any irregularity, defect or informality in the creation of any of the
OBLIGATIONS or any increase or reduction of the OBLIGATIONS or
modification of the terms and conditions thereof;
(f) The failure of any other anticipated GUARANTORS of the OBLIGATIONS to
enter into a Guarantee in favour of the CREDITOR, or the release in
whole or in part, of any GUARANTORS or the termination of any Guarantee
of any GUARANTORS;
(g) If, whether or not with the GUARANTORS' knowledge, the CREDITOR grants
extensions of time, renewals, indulgences, waivers, releases,
discharges, makes any compromise or transaction or arrangement or
otherwise deals with any of the OBLIGATIONS, the DEBTOR or any other
party or with any security or guarantees held by it;
(h) The failure of the CREDITOR or any other party to take, protect,
perfect or preserve any rights, hypothecs or other security, from the
DEBTOR or any other party or the loss, diminution or unenforceability
or impossibility to realize or abstention from realization of any such
rights, hypothecs or other security, whether or not caused or resulting
from any act or omission of the CREDITOR or any person acting for or
for whom the CREDITOR may be responsible;
(i) The death of any other surety; or
3
(j) Any other act, omission or event whatsoever which might otherwise
lessen, affect or discharge a surety.
5. ACCOUNTS, IMPUTATION AND COMPENSATION
5.1 The GUARANTORS will be bound by any account settled between the CREDITOR and
the DEBTOR. Any statement by the CREDITOR of the amount owing by the DEBTOR will
constitute, in the absence of manifest error, prima facie evidence of such
indebtedness.
5.2 The CREDITOR may apply any monies received from the DEBTOR or others or from
any security or guarantees held by the CREDITOR as it deems fit, and from time
to time modify such application.
5.3 The CREDITOR may, at its discretion, and without necessity of notice to any
of the GUARANTORS, set off and compensate any monies held or amounts owing by
the CREDITOR to the GUARANTORS, against any amounts owing to the CREDITOR by the
GUARANTORS under this Guarantee.
6. TERMINATION
This Guarantee shall bind the GUARANTORS together with the GUARANTORS'
successors and assigns until payment in full of the OBLIGATIONS to the CREDITOR.
7. INVALID PAYMENTS AND EVICTION
7.1 If the CREDITOR receives any payment on account of the OBLIGATIONS which is
later set aside or required to be repaid by the CREDITOR in whole or in part,
then, to the extent of any sum not finally retained by the CREDITOR (regardless
of whether such sum is recovered from the CREDITOR by the DEBTOR, its trustee,
or any other party acting for, on behalf of or through the DEBTOR or its
representative), the amount of the payment so set aside or repaid by the
CREDITOR will form part of the OBLIGATIONS and the GUARANTORS will be liable to
the CREDITOR for repayment thereof, on demand, notwithstanding any termination
of this Guarantee.
7.2 Notwithstanding any provision of law to the contrary, in the event that the
CREDITOR voluntarily accepts property in payment of the OBLIGATIONS and is
subsequently evicted therefrom or if such property is recovered (but before the
TERMINATION DATE) from the CREDITOR by any party, the GUARANTORS will not be
discharged from their liability under this Guarantee.
8. GENERAL
8.1 Any word herein containing the singular number will include the plural and
any word importing any gender will include the masculine, feminine and neuter
genders and any word importing a person will include a legal person,
corporation, a partnership and any other entity.
4
8.2 The Guarantee of each GUARANTOR is separate and distinct from the Guarantee
of the other GUARANTORS in the same manner and to the same extent as if each
GUARANTOR had signed a separate document of Guarantee in form and content
identical to the present Guarantee. The release or termination of this Guarantee
with respect to any GUARANTOR will not affect the liability of the other
GUARANTOR.
8.3 The GUARANTORS acknowledge and confirm that no representations, warranties,
inducements or undertakings were made or given to it or to the DEBTOR by the
CREDITOR in connection with this Guarantee unless such representations,
warranties, inducements or undertakings were specifically made or given in a
written instrument signed by the CREDITOR or an authorized officer of the
CREDITOR. Moreover, any alteration or amendment to this Guarantee or any future
undertaking by the CREDITOR, in order to be binding upon the CREDITOR, must be
made or given by way of such a written instrument.
8.4 The present Guarantee is in addition to and not in substitution for nor to
be deemed substituted by any other undertakings, guarantees or security held or
which may hereafter be held by or for the benefit of the CREDITOR.
8.5 The present Guarantee will be governed and construed in accordance with the
laws of the Province of Quebec. The GUARANTORS expressly submit and consent to
the exclusive jurisdiction of the Superior Court, District of Montreal with
respect to any controversy arising out of or relating to this Guarantee or any
supplement hereto or to any transactions in connection therewith.
8.6 Any demand or notice to be given to any GUARANTORS pursuant hereto may be
delivered or sent by prepaid registered or certified mail addressed to such
GUARANTORS at the address provided herein or such other address which such
GUARANTORS may notify the CREDITOR in writing. However, if the CREDITOR is
unable to locate any of the GUARANTORS at such address, then any such notice or
demand may be served upon him/it at the Office of the Clerk of the Superior
Court, District of Montreal at which office in such event the GUARANTORS elect
domicile for the purposes of this Guarantee.
8.7 This Guarantee shall not be considered as an indivisible whole and every
provision of this Guarantee is and shall be independent of the other. In the
event that any part of this Guarantee is declared invalid, illegal or
unenforceable, then the remaining terms, clauses and provisions of this
Guarantee shall not be affected by such declaration and all of the remaining
clauses of this Guarantee shall remain valid, binding and enforceable.
8.8 The undersigned acknowledge having required that the present Guarantee and
all documentation and notices entered into or given pursuant hereto or relating
directly or indirectly hereto be drawn up in English.
5
Les soussignes reconnaissent avoir exige la redaction en anglais du
present cautionnement ainsi que de tous documents et avis qui pourront etre
executes ou donnes a la suite de ou ayant un rapport direct ou indirect avec le
present cautionnement.
SIGNED AT MONTREAL, QUEBEC, THIS DAY OF JUNE 2004.
-----------
PROGESTIC INTERNATIONAL INC.
Per:
- ----------------------------- -------------------------------
SIGNATURE OF WITNESS Name: Jacques R. Delorme
Title: Officer
FSG CONSULTANTS INC.
Per:
- ----------------------------- -------------------------------
SIGNATURE OF WITNESS Name: Jacques R. Delorme
Title: Officer
The DEBTOR hereby acknowledges and accept this corporate guarantee and further
authorizes the CREDITOR to furnish the GUARANTORS any information relating to
the DEBTOR, the PROMISSORY NOTE, and the OBLIGATIONS as the CREDITOR, in its
sole discretion, deems appropriate.
SIGNED AT MONTREAL, QUEBEC, THIS DAY OF JUNE, 2004.
-------
TOTAL FIRST AID, INC.
PER:
--------------------------------
Name: Jeffery Tabin
6
ACKNOWLEDGED AND ACCEPTED AT MONTREAL, QUEBEC, THIS DAY OF JUNE, 2004.
--------
3113019 CANADA INC.
PER:
--------------------------------
Name: Luc Bousquet
7
INTER-CREDITOR AGREEMENT entered into as of June 3rd, 2004.
AMONG: 3113019 CANADA INC., a body corporate, duly incorporated
according to laws having its principal place of business at
1155, Rene-Levesque Blvd. West, 40th floor, in Montreal,
province of Quebec, H3B 3V2, herein represented by Mr. Luc
Bousquet;
(hereinafter referred to as "3113019")
AND: 3689697 CANADA INC., a body corporate, duly incorporated
according to laws having its principal place of business at
300, Leo Pariseau Street, suite 2000, in Montreal, province of
Quebec, H2X 4B3, herein represented by Ms. Garrie Matheson;
(hereinafter referred to as "3689697")
AND: 373 FLORIDA CORP, a body corporate, duly incorporated
according to law, having its principal place of business at
21218, St-Andrews Blvd, suite 502, in Boca Raton, in the state
of Florida, United States, 33433, herein represented by Mr.
Michel L. Marengere;
(hereinafter referred to as "373 FLORIDA")
(3113019, 3689697 and 373 Florida are hereinafter collectively
referred to as the "LENDERS" and individually as a "LENDER")
AND: TOTAL FIRST AID, INC., a body corporate, duly incorporated
according to law, having its principal place of business at
21218 St-Andrews Blvd, suite 509, in Boca Raton, Florida,
33433, herein acting and represented by Jeffery Tabin;
(hereinafter referred to as or the "BORROWER")
AND: PROGESTIC INTERNATIONAL INC., a body corporate, duly
incorporated according to law, having its principal place of
business at 222, Queen Street, suite 400, in Ottawa, province
of Ontario, K1P 5V9, herein acting and represented by Jacques
R. Delorme;
(hereinafter referred to as "PROGESTIC")
AND: FSG CONSULTANTS INC., a body corporate, duly incorporated
according to law, having its principal place of business at 196A,
Papineau Street, in Gatineau, province of Quebec, J8X 1W2, herein
acting and represented by Jacques R. Delorme;
(hereinafter referred to as "FSG")
WHEREAS on June 3rd, 2004, the Borrower has issued a promissory note
in favour of 3113019 for an amount of one hundred and fifty thousand dollars US
(US$150,000) (the "3113019 PROMISSORY NOTE");
WHEREAS on June 3rd, 2004, the Borrower has issued a promissory note
in favour of 3689697 for an amount of one hundred and fifty thousand dollars US
(US$150,000) (the "3689697 PROMISSORY NOTE");
WHEREAS on June 3rd, 2004, the Borrower has issued a promissory note
in favour of 373 Florida for an amount of five hundred and sixty thousand
dollars US (US$560,000) (the "373 FLORIDA PROMISSORY NOTE");
WHEREAS FSG and Progestic have signed a Corporate Guarantee in favor
of the Lenders to guarantee the repayment of the Promissory Notes;
WHEREAS the 3113019 Promissory Note is secured by the following
securities (the "3113019 SECURITIES"):
(a) a movable hypothec on accounts receivable and other
indebtedness granted by FSG in favour of 3113019, which
will be registered at the Register of Personal and Movable
Real Rights ("RPMRR");
(b) a movable hypothec on accounts receivable and other
indebtedness granted by Progestic in favour of 3113019,
which will be registered at the RPMRR;
(c) a security on accounts receivable and other indebtedness
granted by Progestic in favour of 3113019 which will be
registered at the Personal Property Security Registration
Systems (Ontario) ("PPSR"); and
(d) a security on accounts receivable and other indebtedness
granted by FSG in favour of 3113019 which will be
registered at the PPSR.
WHEREAS the 3689697 Promissory Note is secured by the following
securities (the "3689697 SECURITIES"):
(a) a movable hypothec on accounts receivable and other
indebtedness granted by FSG in favour of 3689697 on, which
will be registered at the RPMRR;
(b) a movable hypothec on accounts receivable and other
indebtedness granted by Progestic in favour of 3689697,
which will be registered at the RPMRR;
2
(c) a security on the accounts receivable and other
indebtedness granted by Progestic in favour of 3689697
which will be registered at the PPSR; and
(d) a security on the accounts receivable and other
indebtedness granted by FSG in favour of 3689697 which
will be registered at the PPSR.
WHEREAS the 373 Florida Promissory Note is secured by the following
securities (the "373 FLORIDA SECURITIES"):
(a) a movable hypothec on accounts receivable and other
indebtedness granted by FSG in favour of 373 Florida,
which will be registered at the RPMRR;
(b) a movable hypothec on accounts receivable and other
indebtedness granted by Progestic in favour of 373
Florida, which will be registered at the RPMRR;
(c) a security on the accounts receivable and other
indebtedness granted by Progestic in favour of 373 Florida
which will be registered at the PPSR; and
(d) a security on the accounts receivable and other
indebtedness granted by FSG in favour of 373 Florida which
will be registered at the PPSR.
WHEREAS the parties wish to enter into this agreement to establish
their respective rights and priorities in connection with the Securities and the
Promissory Notes.
NOW, THEREFORE, the parties hereto have agreed as follows:
1. DEFINITIONS
The following capitalised words and expressions, whenever used in
this agreement, including its preamble, shall have the meaning ascribed to them
herein below:
1.1 "CHARGED PROPERTY" means the accounts receivable and other indebtedness of
FSG and Progestic being subject to the Securities;
1.2 "PROMISSORY NOTES" means collectively the 3113019 Promissory Note, the
3689697 Promissory Note and the 373 Florida Promissory Note;
1.3 "SECURITIES" means collectively the 3113019 Securities, the 3689697
Securities and the 373 Florida Securities and, where the context requires, means
either the 3113019 Securities, the 3689697 Securities or the 373 Florida
Securities, as the case may be.
2. PRIORITIES
2.1 Each of the Securities shall be first ranking securities and the Securities
and the Promissory Notes shall rank pari passu with the other, with all the
Securities and the Promissory Notes being for the benefit and security of the
Lenders, without any preference or priority to any of the Lenders, subject to
the terms and conditions of this agreement.
3
2.2 To the extent necessary to give effect to the provisions of this
agreement each Lender hereby:
2.2.1 postpones and subordinates its Securities to the Securities of the
other Lenders;
2.2.2 confirms and agrees that it holds all its rights, titles and
interests in and to its Securities on behalf of and for the benefit
and security of the Lenders on a pari passu basis, subject to the
terms and conditions of this agreement;
2.2.3 agrees and acknowledges that each of the Securities shall be deemed,
concurrent and equal and shall be first ranking Securities and rank
pari passu towards on another and each of the Lenders undertakes to
take all necessary measures in order that in no time either of them
may be in priority as to repayment of its Promissory Note or the
interest accrued thereon with respect to the other, being understood
that the Promissory Notes and the interest accrued thereon shall be
paid on a pro rata basis;
2.2.4 if any of the Lenders receives any payment towards its Promissory
Notes at a time when there continues to be amounts outstanding under
the Promissory Notes, then such funds so received shall be held in
trust for the benefit of all Lenders and forthwith upon such receipt,
paid to the Lenders against all the Promissory Notes on a pro rata
basis of the principal amount outstanding on the Promissory Notes.
2.3 Subject to subsection 2.5 hereof, the covenants and agreements contained
herein shall apply in all events and circumstances regardless of:
2.3.1 the date of execution, attachment, registration or perfection of any
Securities held by the Lenders;
2.3.2 the date of any advance or advances made to the Borrower by the
Lenders;
2.3.3 the date of default by the Borrower, FSG or Progestic under any of
the Promissory Notes or Securities; or
2.3.4 any priority granted by any principle of law or any statute.
2.4 Any proceeds of insurance received by the Borrower, FSG, Progestic, or the
Lenders in respect of any of the Charged Property shall be dealt with as though
such proceeds of insurance was paid or payable as proceeds of realisation of the
assets for which they compensate.
2.5 If any of the Securities is found to be unenforceable, invalid, unregistered
or unperfected against any party other than the Lender herein by a court of
competent jurisdiction and all appeals from any such finding have been heard and
determined or the period for making any such appeal has expired without an
appeal being made, the foregoing provisions of this Section 2 shall not apply to
such Securities.
4
2.6 Each of the Lenders shall allow the others, and their agents, access at all
reasonable times to any of the Charged Property to view the same, and access to,
so as to make copies of or extracts from, any books or account and all records,
ledgers, reports, documents and other writings relating to such assets.
3. COVENANTS OF BORROWER, FSG AND PROGESTIC
3.1 Each of the Borrower, FSG and Progestic hereby confirms to and agrees with
the Lenders:
3.1.1 that default under the Securities of any of the Lenders shall
constitute default under the Securities of the other Lenders,
notwithstanding any provision to the contrary in any Securities; and
3.1.2 that any amendment or variation of the terms of this agreement by the
Lenders shall not require the consent or agreement of the Borrower
unless the interests of the Borrower are directly affected thereby.
4. REALISATION
4.1 Each of the Lenders shall, upon becoming aware of any default under the
terms of its Securities and prior to making any demand for payment or taking any
steps to enforce its Securities, notify the other Lenders in writing of such
default and the intention of such Lender to make demand and enforce its
Securities (the "Notice"). The Lenders shall meet promptly after the giving by a
Lender of a Notice and, in any event, no later than seven (7) days after the
giving by a Lender of a Notice to discuss and reach agreement as to the
procedure to be followed in the realisation of the Securities, including without
limitation, the appointment of a single receiver or receiver-manager to effect
such realisation.
4.2 If subsequent to the giving by a Lender of a Notice, one of the Lenders does
not wish to realise upon its Securities it shall, upon request by the other
Lenders, subordinate and postpone its Securities in favour of the other Lenders
and shall do all such further acts and things as may be necessary to give effect
to such subordination and postponement. In such event, the Lender wishing to
realise upon its Securities may appoint a receiver or receiver-manager to
realise upon its Securities, provided that it shall give written notice of such
appointment to the other Lenders concurrent with such appointment.
Notwithstanding the foregoing it is understood and agreed that any realisation
by a Lender shall be for the benefit of the Lenders in accordance with the
provisions of this agreement.
4.3 Any realisation upon the Securities by the Lenders or any of the Lenders
shall be made for an amount, after payment of all costs and expenses, at least
equal to the aggregate amount owing to the Lenders, unless otherwise agreed upon
in writing by the Lenders. A Lender who receives a bona fide offer to purchase
the Charged Property for an amount, after payment of all costs and expenses,
less than the aggregate amount outstanding to the Lenders, which offer it wishes
to accept, shall, prior to accepting such offer, give the other Lenders fifteen
(15) days to consent to the acceptance of such offer. If one of the other
Lenders fails to consent to the acceptance of the offer within the said fifteen
(15) day period, then such other Lender shall be deemed to have agreed to
purchase, within a further fifteen (15) day period, the Securities of the Lender
who received the said offer for an amount equal to the pro rata proceeds that
such Lender would have received on a successful completion of such offer, after
payment of costs and expenses, in accordance with the provisions of this
agreement.
5
4.4 All proceeds received by the receiver or receiver-manager or any of the
Lenders after the giving of a Notice by a Lender shall be applied as follows:
4.4.1 firstly, in payment of all costs, charges and expenses of and
incidental to the appointment of a receiver or receiver-manager and
the exercise by such receiver or receiver-manager of all or any of
its powers including the remuneration of the receiver or
receiver-manager and all amounts properly payable by him;
4.4.2 secondly, in payment of or in reimbursement to the Lenders of all
reasonable costs, charges and expenses incurred in connection with
the protection and realisation of the Securities including any
payments made upon claims having priority over the Securities;
4.4.3 thirdly, on account of the indebtedness due to each of the Lenders
under the Promissory Notes, rateably according to the proportion
that the principal amount and interests then outstanding to each of
the Lenders bears to the total principal amount and interests then
outstanding to all the Lenders under the Securities;
4.4.4 fourthly, any surplus remaining to FSG, Progestic or to the party
next entitled thereto, or if there are competing claims to the
knowledge of the Lenders, then payment may be made into Court by way
of interpleader.
5. PROMISSORY NOTES
5.1 The Borrower hereby represents and warrants that the only promissory notes
that are presently issued and outstanding in favour of the Lenders are the ones
attached to the Securities.
5.2 Each of the Lenders covenants and agrees that in order for a new promissory
note to be issued by the Borrower to a Lender, such Lender must obtain the prior
written consent of the other Lenders.
5.3 Each of the Lenders covenants and agrees that it will not amend any of the
terms or conditions of the Promissory Notes, without the prior written consent
of the other Lenders.
6. PREPAYMENTS
6.1 If, at any time, any of the Lenders receives notice from the Borrower of the
Borrower's intention to make any prepayment or accelerated payment permitted by
the Promissory Notes, then such Lender shall promptly notify the other Lenders.
No prepayment is to be accepted by the Lenders without the prior written consent
of the other Lenders.
7. ASSIGNMENT
7.1 Any of the Lenders shall sell or assign any of its Promissory Notes nor any
of its Securities without obtaining the prior written consent of the other
Lender and without obtaining from the purchaser or assignee an agreement to be
bound by the provisions of this agreement in form satisfactory to the other
Lenders.
6
8. NOTICE
8.1 Any notice required or permitted to be given pursuant to this agreement
shall be in writing and shall be addressed and delivered by the pre-paid
registered mail or sent by facsimile transmission to the parties hereto as
follows:
8.1.1 if to the Borrower: Total First Aid, Inc.
21218 St-Andrews Blvd
Suite 509
Boca Raton, Florida
33433
Attention: Mr. Jeffery Tabin
8.1.2 if to 3113019 Canada Inc.: 1155, Rene-Levesque Blvd. West
40th floor
Montreal (Quebec)
H3B 3V2
Attention: Mr. Luc Bousquet
8.1.3 if to 3689697 Canada Inc.: 300, Leo Pariseau Street
Suite 2000
Montreal (Quebec)
H2X 4B3
Attention: Ms. Garrie Matheson
8.1.4 if to 373 Florida Corp.: 21218, St-Andrews Blvd
Boca Raton, Florida
U.S.A.
33433
Attention : Mr. Michel L. Marengere
7
8.1.5 if to Progestic: 222, Queen Street
Suite 400
Ottawa (Ontario)
K1P 5V9
Attention: Mr. Jacques R. Delorme
8.1.6 if to FSG: 196A, Papineau Street
Gatineau (Quebec)
J8X 1W2
Attention: Mr. Jacques R. Delorme
or to such other address as the parties may from time to time by notice in
writing direct. Notice, if by facsimile shall be deemed to be received the next
business day following transmission thereof, and if by mail, shall be deemed to
be received three business days after the date of mailing, unless there exists
at the time of mailing or within three days of mailing a labour dispute which
would preclude the delivery of the mail, in which case notice shall only be
deemed to have been received if actually delivered.
9. GENERAL
9.1 From time to time upon request therefor, the Lenders shall advise each other
of the particulars of the indebtedness and liability of the Borrower, FSG and
Progestic to them.
9.2 The Lenders and the Borrower shall do, perform execute and deliver all acts,
deeds and documents as may be necessary from time to time to give full force and
effect to the intent of this agreement.
9.3 This agreement may be executed in several counterparts each of which when so
executed shall be deemed to be an original and such counterparts together shall
constitute one and the same instrument and shall be effective as of the date
hereof.
9.4 This agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective heirs, executors, successors and assigns, and shall
be governed in all respects by the laws of the Province of Quebec.
9.5 This agreement shall continue in full force and effect until the date on
which it is terminated by the mutual consent of the Lenders.
8
IN WITNESS WHEREOF the parties have executed this agreement as of the day and
year first above written.
3113019 CANADA INC. 3689697 CANADA INC.
Per : Per:
---------------------------- ------------------------------
Luc Bousquet Garrie Matheson
373 FLORIDA CORP.
Per :
----------------------------
Michel L. Marengere
TOTAL FIRST AID, INC. PROGESTIC INTERNATIONAL INC.
Per: Per:
---------------------------- -----------------------------
Jeffery Tabin Jacques R. Delorme
FSG CONSULTANTS INC.
Per:
----------------------------
Jacques R. Delorme
9
PROMISSORY NOTE
Montreal, Quebec JUNE 3RD, 2004
For value received, the undersigned (the "BORROWER") hereby promises
to pay to the order of 373 Florida Corp. (the "LENDER") the sum of FIVE HUNDRED
AND SIXTY THOUSAND US DOLLARS (US$560,000), on September 3rd, 2004 with interest
at a fixed rate of ten percent (10%) until maturity and at an annual rate of 20%
(the "INTEREST RATE") after maturity until paid in full, compounded monthly and
not in advance. Interest on overdue interest shall accrue and be payable at the
Interest Rate.
The Borrower further agrees to pay all costs and expenses (including
judicial and extra-judicial fees and expenses, and accounting and other
professional fees) paid or incurred by or on behalf of the Lender in collecting
any amount due hereunder. All payments of interest shall be net of any
applicable withholding taxes, such taxes to be paid by the Lender so that the
Borrower shall receive after tax the amount of interest provided above.
The Borrower shall be entitled to prepay any amount outstanding
under this Note at any time, without notice, penalty or bonus.
The Lender shall be under no duty to exercise any or all of the
rights and remedies given by this Note and the Borrower shall not be discharged
from its obligations or undertakings hereunder: (i) should the Lender release or
agree not to sue any person or entity against whom the Borrower has, to the
knowledge of the Lender, a right of recourse, or (ii) should the Lender agree to
suspend the right to enforce this Note against such person or entity or
otherwise discharge such person or entity, or (iii) should the Lender extend, in
whole or in part, the time for payment of this Note. No forbearance or
indulgence shall operate as a waiver of any right or remedy of Lender or
obligation of the Borrower, unless the Lender shall otherwise agree in writing.
The Lender shall be entitled to invoke any right or recourse available to the
Lender under this Note or at law and enforce any covenant or condition against
the Borrower despite said forbearance or indulgence.
The Borrower and each endorser or other party hereto does hereby
waive presentment for payment, protest and demand, and notice of protest, demand
and/or dishonor and non-payment of this Note, and all other notices or demands
otherwise required by law that the Borrower may lawfully waive. This Note shall
be paid without claim of set-off, counter-claim, deduction or defense of any
nature or for any cause whatsoever.
This Note shall be governed by and interpreted and enforced in
accordance with the laws of the Province of Quebec and the laws of Canada
applicable therein.
The undersigned has expressly required that this Note and all
documents and notices relating hereto be drafted in English. La soussignee est
expressement exigee que le present billet et tous les documents et avis qui y
sont afferents soient rediges en anglais.
TOTAL FIRST AID, INC.
Per:
-----------------------------------------------
Jeffery Tabin
PROMISSORY NOTE
Montreal, Quebec JUNE 3RD, 2004
For value received, the undersigned (the "BORROWER") hereby promises
to pay to the order of 3689697 Canada Inc. (the "LENDER") the sum of ONE HUNDRED
FIFTY THOUSAND US DOLLARS (US$150,000), on September 3rd, 2004 with interest at
a fixed rate of ten percent (10%) until maturity and at an annual rate of 20%
(the "INTEREST Rate") after maturity until paid in full, compounded monthly and
not in advance. Interest on overdue interest shall accrue and be payable at the
Interest Rate.
The Borrower further agrees to pay all costs and expenses (including
judicial and extra-judicial fees and expenses, and accounting and other
professional fees) paid or incurred by or on behalf of the Lender in collecting
any amount due hereunder. All payments of interest shall be net of any
applicable withholding taxes, such taxes to be paid by the Lender so that the
Borrower shall receive after tax the amount of interest provided above.
The Borrower shall be entitled to prepay any amount outstanding
under this Note at any time, without notice, penalty or bonus.
The Lender shall be under no duty to exercise any or all of the
rights and remedies given by this Note and the Borrower shall not be discharged
from its obligations or undertakings hereunder: (i) should the Lender release or
agree not to sue any person or entity against whom the Borrower has, to the
knowledge of the Lender, a right of recourse, or (ii) should the Lender agree to
suspend the right to enforce this Note against such person or entity or
otherwise discharge such person or entity, or (iii) should the Lender extend, in
whole or in part, the time for payment of this Note. No forbearance or
indulgence shall operate as a waiver of any right or remedy of Lender or
obligation of the Borrower, unless the Lender shall otherwise agree in writing.
The Lender shall be entitled to invoke any right or recourse available to the
Lender under this Note or at law and enforce any covenant or condition against
the Borrower despite said forbearance or indulgence.
The Borrower and each endorser or other party hereto does hereby
waive presentment for payment, protest and demand, and notice of protest, demand
and/or dishonor and non-payment of this Note, and all other notices or demands
otherwise required by law that the Borrower may lawfully waive. This Note shall
be paid without claim of set-off, counter-claim, deduction or defense of any
nature or for any cause whatsoever.
This Note shall be governed by and interpreted and enforced in
accordance with the laws of the Province of Quebec and the laws of Canada
applicable therein.
The undersigned has expressly required that this Note and all
documents and notices relating hereto be drafted in English. La soussignee est
expressement exigee que le present billet et tous les documents et avis qui y
sont afferents soient rediges en anglais.
TOTAL FIRST AID, INC.
Per:
-----------------------------------------------
Jeffery Tabin
PROMISSORY NOTE
Montreal, Quebec JUNE 3RD, 2004
For value received, the undersigned (the "BORROWER") hereby promises
to pay to the order of 3113019 Canada Inc. (the "LENDER") the sum of ONE HUNDRED
AND FIFTY THOUSAND US DOLLARS (US$150,000), on September 3rd, 2004 with interest
at a fixed rate of ten percent (10%) until maturity and at an annual rate of 20%
(the "INTEREST RATE") after maturity until paid in full, compounded monthly and
not in advance. Interest on overdue interest shall accrue and be payable at the
Interest Rate.
The Borrower further agrees to pay all costs and expenses (including
judicial and extra-judicial fees and expenses, and accounting and other
professional fees) paid or incurred by or on behalf of the Lender in collecting
any amount due hereunder. All payments of interest shall be net of any
applicable withholding taxes, such taxes to be paid by the Lender so that the
Borrower shall receive after tax the amount of interest provided above.
The Borrower shall be entitled to prepay any amount outstanding
under this Note at any time, without notice, penalty or bonus.
The Lender shall be under no duty to exercise any or all of the
rights and remedies given by this Note and the Borrower shall not be discharged
from its obligations or undertakings hereunder: (i) should the Lender release or
agree not to sue any person or entity against whom the Borrower has, to the
knowledge of the Lender, a right of recourse, or (ii) should the Lender agree to
suspend the right to enforce this Note against such person or entity or
otherwise discharge such person or entity, or (iii) should the Lender extend, in
whole or in part, the time for payment of this Note. No forbearance or
indulgence shall operate as a waiver of any right or remedy of Lender or
obligation of the Borrower, unless the Lender shall otherwise agree in writing.
The Lender shall be entitled to invoke any right or recourse available to the
Lender under this Note or at law and enforce any covenant or condition against
the Borrower despite said forbearance or indulgence.
The Borrower and each endorser or other party hereto does hereby
waive presentment for payment, protest and demand, and notice of protest, demand
and/or dishonor and non-payment of this Note, and all other notices or demands
otherwise required by law that the Borrower may lawfully waive. This Note shall
be paid without claim of set-off, counter-claim, deduction or defense of any
nature or for any cause whatsoever.
This Note shall be governed by and interpreted and enforced in
accordance with the laws of the Province of Quebec and the laws of Canada
applicable therein.
The undersigned has expressly required that this Note and all
documents and notices relating hereto be drafted in English. La soussignee est
expressement exigee que le present billet et tous les documents et avis qui y
sont afferents soient rediges en anglais.
TOTAL FIRST AID, INC.
Per:
-----------------------------------------------
Jeffery Tabin
NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS
SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER
LOAN SECURED BY SUCH SECURITIES
COMMON STOCK PURCHASE WARRANT
To Purchase 50,000 Shares of Common Stock of
TOTAL FIRST AID, INC.
THIS COMMON STOCK PURCHASE WARRANT CERTIFIES that, for value
received, 3689697 Canada Inc. (the "HOLDER"), is entitled, upon the terms and
subject to the limitations on exercise and the conditions hereinafter set forth,
at any time on or after June 3rd, 2004 (the "INITIAL EXERCISE DATE") and on or
prior to the close of business on June 2nd, 2007 (the "TERMINATION DATE") but
not thereafter, to subscribe for and purchase from Total First Aid, Inc., a
corporation incorporated in the State of Florida (the "COMPANY"), up to 50,000
shares (the "WARRANT SHARES") of Common Stock, par value $0.01 per share, of the
Company (the "COMMON STOCK"). The purchase price of one share of Common Stock
(the "EXERCISE PRICE") under this Warrant shall be $0.85, subject to adjustment
hereunder. The Exercise Price and the number of Warrant Shares for which the
Warrant is exercisable shall be subject to adjustment as provided herein.
1
1. Title to Warrant. Prior to the Termination Date and subject to
compliance with applicable laws and Section 7 of this Warrant, this Warrant and
all rights hereunder are transferable, in whole or in part, at the office or
agency of the Company by the Holder in person or by duly authorized attorney,
upon surrender of this Warrant together with the Assignment Form annexed hereto
properly endorsed. The transferee shall sign an investment letter in form and
substance reasonably satisfactory to the Company.
2. Authorization of Shares. The Company covenants that all Warrant
Shares which may be issued upon the exercise of the purchase rights represented
by this Warrant will, upon exercise of the purchase rights represented by this
Warrant, be duly authorized, validly issued, fully paid and nonassessable and
free from all taxes, liens and charges in respect of the issue thereof (other
than taxes in respect of any transfer occurring contemporaneously with such
issue).
3. Exercise of Warrant.
(a) Exercise of the purchase rights represented by this
Warrant may be made at any time or times on or after the Initial
Exercise Date and on or before the Termination Date by the surrender of
this Warrant and the Notice of Exercise Form annexed hereto duly
executed, at the office of the Company (or such other office or agency
of the Company as it may designate by notice in writing to the
registered Holder at the address of such Holder appearing on the books
of the Company) and upon payment of the Exercise Price of the shares
thereby purchased by wire transfer or cashier's check drawn on a United
States bank or by means of a cashless exercise pursuant to Section
3(d), the Holder shall be entitled to receive a certificate for the
number of Warrant Shares so purchased. Certificates for shares
purchased hereunder shall be delivered to the Holder within three (3)
Trading Days after the date on which this Warrant shall have been
exercised as aforesaid. This Warrant shall be deemed to have been
exercised and such certificate or certificates shall be deemed to have
been issued, and the Holder or any other person so designated to be
named therein shall be deemed to have become a holder of record of such
shares for all purposes, as of the date the Warrant has been exercised
by payment to the Company of the Exercise Price and all taxes required
to be paid by the Holder, if any, pursuant to Section 5 prior to the
issuance of such shares, have been paid.
(b) If this Warrant shall have been exercised in part, the
Company shall, at the time of delivery of the certificate or
certificates representing Warrant Shares, deliver to Holder a new
Warrant evidencing the rights of Holder to purchase the unpurchased
Warrant Shares called for by this Warrant, which new Warrant shall in
all other respects be identical with this Warrant.
2
4. No Fractional Shares or Scrip. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share which Holder would otherwise be entitled
to purchase upon such exercise, the Company shall pay a cash adjustment in
respect of such final fraction in an amount equal to such fraction multiplied by
the Exercise Price.
5. Charges, Taxes and Expenses. Issuance of certificates for Warrant
Shares shall be made without charge to the Holder for any issue or transfer tax
or other incidental expense in respect of the issuance of such certificate, all
of which taxes and expenses shall be paid by the Company, and such certificates
shall be issued in the name of the Holder or in such name or names as may be
directed by the Holder; provided, however, that in the event certificates for
Warrant Shares are to be issued in a name other than the name of the Holder,
this Warrant when surrendered for exercise shall be accompanied by the
Assignment Form attached hereto duly executed by the Holder; and the Company may
require, as a condition thereto, the payment of a sum sufficient to reimburse it
for any transfer tax incidental thereto.
6. Closing of Books. The Company will not close its stockholder books
or records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
7. Transfer, Division and Combination.
(a) Subject to compliance with any applicable securities laws
and the conditions set forth in Sections 1 and 7(e) hereof and to the
provisions of Section * of the Purchase Agreement, this Warrant and all
rights hereunder are transferable, in whole or in part, upon surrender
of this Warrant at the principal office of the Company, together with a
written assignment of this Warrant substantially in the form attached
hereto duly executed by the Holder or its agent or attorney and funds
sufficient to pay any transfer taxes payable upon the making of such
transfer. Upon such surrender and, if required, such payment, the
Company shall execute and deliver a new Warrant or Warrants in the name
of the assignee or assignees and in the denomination or denominations
specified in such instrument of assignment, and shall issue to the
assignor a new Warrant evidencing the portion of this Warrant not so
assigned, and this Warrant shall promptly be cancelled. A Warrant, if
properly assigned, may be exercised by a new holder for the purchase of
Warrant Shares without having a new Warrant issued.
(b) This Warrant may be divided or combined with other Warrants upon
presentation hereof at the aforesaid office of the Company, together
with a written notice specifying the names and denominations in which
new Warrants are to be issued, signed by the Holder or its agent or
attorney. Subject to compliance with Section 7(a), as to any transfer
which may be involved in such division or combination, the Company
shall execute and deliver a new Warrant or Warrants in exchange for the
Warrant or Warrants to be divided or combined in accordance with such
notice.
3
(c) The Company shall prepare, issue and deliver at its own
expense (other than transfer taxes) the new Warrant or Warrants under
this Section 7.
(d) The Company agrees to maintain, at its aforesaid office,
books for the registration and the registration of transfer of the
Warrants.
(e) If, at the time of the surrender of this Warrant in
connection with any transfer of this Warrant, the transfer of this
Warrant shall not be registered pursuant to an effective registration
statement under the Securities Act and under applicable state
securities or blue sky laws, the Company may require, as a condition of
allowing such transfer (i) that the Holder or transferee of this
Warrant, as the case may be, furnish to the Company a written opinion
of counsel (which opinion shall be in form, substance and scope
customary for opinions of counsel in comparable transactions) to the
effect that such transfer may be made without registration under the
Securities Act and under applicable state securities or blue sky laws,
(ii) that the holder or transferee execute and deliver to the Company
an investment letter in form and substance acceptable to the Company
and (iii) that the transferee be an "accredited investor" as defined in
Rule 501(a) promulgated under the Securities Act.
8. No Rights as Shareholder until Exercise. This Warrant does not
entitle the Holder to any voting rights or other rights as a shareholder of the
Company prior to the exercise hereof. Upon the surrender of this Warrant and the
payment of the aggregate Exercise Price (or by means of a cashless exercise),
the Warrant Shares so purchased shall be and be deemed to be issued to such
Holder as the record owner of such shares as of the close of business on the
later of the date of such surrender or payment.
9. Loss, Theft, Destruction or Mutilation of Warrant. The Company
covenants that upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Warrant or any stock
certificate relating to the Warrant Shares, and in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to it (which, in
the case of the Warrant, shall not include the posting of any bond), and upon
surrender and cancellation of such Warrant or stock certificate, if mutilated,
the Company will make and deliver a new Warrant or stock certificate of like
tenor and dated as of such cancellation, in lieu of such Warrant or stock
certificate.
10. Saturdays, Sundays, Holidays, etc. If the last or appointed day for
the taking of any action or the expiration of any right required or granted
herein shall be a Saturday, Sunday or a legal holiday, then such action may be
taken or such right may be exercised on the next succeeding day not a Saturday,
Sunday or legal holiday.
4
11. Adjustments of Exercise Price and Number of Warrant Shares.
(a) Stock Splits, etc. The number and kind of securities
purchasable upon the exercise of this Warrant and the Exercise Price
shall be subject to adjustment from time to time upon the happening of
any of the following. In case the Company shall (i) pay a dividend in
shares of Common Stock or make a distribution in shares of Common Stock
to holders of its outstanding Common Stock, (ii) subdivide its
outstanding shares of Common Stock into a greater number of shares,
(iii) combine its outstanding shares of Common Stock into a smaller
number of shares of Common Stock, or (iv) issue any shares of its
capital stock in a reclassification of the Common Stock, then the
number of Warrant Shares purchasable upon exercise of this Warrant
immediately prior thereto shall be adjusted so that the Holder shall be
entitled to receive the kind and number of Warrant Shares or other
securities of the Company which it would have owned or have been
entitled to receive had such Warrant been exercised in advance thereof.
Upon each such adjustment of the kind and number of Warrant Shares or
other securities of the Company which are purchasable hereunder, the
Holder shall thereafter be entitled to purchase the number of Warrant
Shares or other securities resulting from such adjustment at an
Exercise Price per Warrant Share or other security obtained by
multiplying the Exercise Price in effect immediately prior to such
adjustment by the number of Warrant Shares purchasable pursuant hereto
immediately prior to such adjustment and dividing by the number of
Warrant Shares or other securities of the Company resulting from such
adjustment. An adjustment made pursuant to this paragraph shall become
effective immediately after the effective date of such event
retroactive to the record date, if any, for such event.
12. Reorganization, Reclassification, Merger, Consolidation or
Disposition of Assets. In case the Company shall reorganize its capital,
reclassify its capital stock, consolidate or merge with or into another
corporation (where the Company is not the surviving corporation or where there
is a change in or distribution with respect to the Common Stock of the Company),
or sell, transfer or otherwise dispose of all or substantially all its property,
assets or business to another corporation and, pursuant to the terms of such
reorganization, reclassification, merger, consolidation or disposition of
assets, shares of common stock of the successor or acquiring corporation, or any
cash, shares of stock or other securities or property of any nature whatsoever
(including warrants or other subscription or purchase rights) in addition to or
in lieu of common stock of the successor or acquiring corporation ("OTHER
PROPERTY"), are to be received by or distributed to the holders of Common Stock
of the Company, then the Holder shall have the right thereafter to receive, upon
exercise of this Warrant, the number of shares of Common Stock of the successor
or acquiring corporation or of the Company, if it is the surviving corporation,
and Other Property receivable upon or as a result of such reorganization,
reclassification, merger, consolidation or disposition of assets by a Holder of
the number of shares of Common Stock for which this Warrant is exercisable
immediately prior to such event. In case of any such reorganization,
reclassification, merger, consolidation or disposition of assets, the successor
or acquiring corporation (if other than the Company) shall expressly assume the
5
due and punctual observance and performance of each and every covenant and
condition of this Warrant to be performed and observed by the Company and all
the obligations and liabilities hereunder, subject to such modifications as may
be deemed appropriate (as determined in good faith by resolution of the Board of
Directors of the Company) in order to provide for adjustments of Warrant Shares
for which this Warrant is exercisable which shall be as nearly equivalent as
practicable to the adjustments provided for in this Section 12. For purposes of
this Section 12, "common stock of the successor or acquiring corporation" shall
include stock of such corporation of any class which is not preferred as to
dividends or assets over any other class of stock of such corporation and which
is not subject to redemption and shall also include any evidences of
indebtedness, shares of stock or other securities which are convertible into or
exchangeable for any such stock, either immediately or upon the arrival of a
specified date or the happening of a specified event and any warrants or other
rights to subscribe for or purchase any such stock. The foregoing provisions of
this Section 12 shall similarly apply to successive reorganizations,
reclassifications, mergers, consolidations or disposition of assets.
13. Voluntary Adjustment by the Company. The Company may at any time
during the term of this Warrant reduce the then current Exercise Price to any
amount and for any period of time deemed appropriate by the Board of Directors
of the Company.
14. Notice of Adjustment. Whenever the number of Warrant Shares or
number or kind of securities or other property purchasable upon the exercise of
this Warrant or the Exercise Price is adjusted, as herein provided, the Company
shall give notice thereof to the Holder, which notice shall state the number of
Warrant Shares (and other securities or property) purchasable upon the exercise
of this Warrant and the Exercise Price of such Warrant Shares (and other
securities or property) after such adjustment, setting forth a brief statement
of the facts requiring such adjustment and setting forth the computation by
which such adjustment was made.
15. Notice of Corporate Action. If at any time:
(a) the Company shall take a record of the holders of its
Common Stock for the purpose of entitling them to receive a dividend or
other distribution, or any right to subscribe for or purchase any
evidences of its indebtedness, any shares of stock of any class or any
other securities or property, or to receive any other right, or
(b) there shall be any capital reorganization of the Company,
any reclassification or recapitalization of the capital stock of the
Company or any consolidation or merger of the Company with, or any
sale, transfer or other disposition of all or substantially all the
property, assets or business of the Company to, another corporation or,
(c) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in any one or more of such cases, the Company shall give to Holder (i) at
least 10 days' prior written notice of the date on which a record date shall be
selected for such dividend, distribution or right or for determining rights to
6
vote in respect of any such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, liquidation or winding up, and (ii)
in the case of any such reorganization, reclassification, merger, consolidation,
sale, transfer, disposition, dissolution, liquidation or winding up, at least 10
days' prior written notice of the date when the same shall take place. Such
notice in accordance with the foregoing clause also shall specify (i) the date
on which any such record is to be taken for the purpose of such dividend,
distribution or right, the date on which the holders of Common Stock shall be
entitled to any such dividend, distribution or right, and the amount and
character thereof, and (ii) the date on which any such reorganization,
reclassification, merger, consolidation, sale, transfer, disposition,
dissolution, liquidation or winding up is to take place and the time, if any
such time is to be fixed, as of which the holders of Common Stock shall be
entitled to exchange their Warrant Shares for securities or other property
deliverable upon such disposition, dissolution, liquidation or winding up. Each
such written notice shall be sufficiently given if addressed to Holder at the
last address of Holder appearing on the books of the Company and delivered in
accordance with Section 17(d).
16. Authorized Shares. The Company covenants that during the period the
Warrant is outstanding, it will reserve from its authorized and unissued Common
Stock a sufficient number of shares to provide for the issuance of the Warrant
Shares upon the exercise of any purchase rights under this Warrant. The Company
further covenants that its issuance of this Warrant shall constitute full
authority to its officers who are charged with the duty of executing stock
certificates to execute and issue the necessary certificates for the Warrant
Shares upon the exercise of the purchase rights under this Warrant. The Company
will take all such reasonable action as may be necessary to assure that such
Warrant Shares may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of the Principal Market
upon which the Common Stock may be listed.
Except and to the extent as waived or consented to by the
Holder, the Company shall not by any action, including, without limitation,
amending its certificate of incorporation or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms of this Warrant, but will at all times in
good faith assist in the carrying out of all such terms and in the taking of all
such actions as may be necessary or appropriate to protect the rights of Holder
as set forth in this Warrant against impairment. Without limiting the generality
of the foregoing, the Company will (a) not increase the par value of any Warrant
Shares above the amount payable therefor upon such exercise immediately prior to
such increase in par value, (b) take all such action as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid
and nonassessable Warrant Shares upon the exercise of this Warrant, and (c) use
commercially reasonable efforts to obtain all such authorizations, exemptions or
consents from any public regulatory body having jurisdiction thereof as may be
necessary to enable the Company to perform its obligations under this Warrant.
7
Before taking any action which would result in an adjustment
in the number of Warrant Shares for which this Warrant is exercisable or in the
Exercise Price, the Company shall obtain all such authorizations or exemptions
thereof, or consents thereto, as may be necessary from any public regulatory
body or bodies having jurisdiction thereof.
17. Miscellaneous.
(a) Jurisdiction. This Warrant shall constitute a contract
under the laws of Florida, without regard to its conflict of law,
principles or rules.
(b) Restrictions. The Holder acknowledges that the Warrant
Shares acquired upon the exercise of this Warrant, if not registered,
will have restrictions upon resale imposed by state and federal
securities laws.
(c) Nonwaiver and Expenses. No course of dealing or any delay
or failure to exercise any right hereunder on the part of Holder shall
operate as a waiver of such right or otherwise prejudice Holder's
rights, powers or remedies, notwithstanding all rights hereunder
terminate on the Termination Date. If the Company willfully and
knowingly fails to comply with any provision of this Warrant, which
results in any material damages to the Holder, the Company shall pay to
Holder such amounts as shall be sufficient to cover any costs and
expenses including, but not limited to, reasonable attorneys' fees,
including those of appellate proceedings, incurred by Holder in
collecting any amounts due pursuant hereto or in otherwise enforcing
any of its rights, powers or remedies hereunder.
(d) Notices. Any notice, request or other document required or
permitted to be given or delivered to the Holder by the Company shall
be delivered in accordance with the notice provisions of the Purchase
Agreement; provided upon any permitted assignment of this Warrant, the
assignee shall promptly provide the Company with its contact
information.
(e) Limitation of Liability. No provision hereof, in the
absence of any affirmative action by Holder to exercise this Warrant or
purchase Warrant Shares, and no enumeration herein of the rights or
privileges of Holder, shall give rise to any liability of Holder for
the purchase price of any Common Stock or as a stockholder of the
Company, whether such liability is asserted by the Company or by
creditors of the Company.
(f) Remedies. Holder, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will
be entitled to specific performance of its rights under this Warrant.
The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the
provisions of this Warrant and hereby agrees to waive the defense in
any action for specific performance that a remedy at law would be
adequate.
8
(g) Successors and Assigns. Subject to applicable securities
laws, this Warrant and the rights and obligations evidenced hereby
shall inure to the benefit of and be binding upon the successors of the
Company and the successors and permitted assigns of Holder. The
provisions of this Warrant are intended to be for the benefit of all
Holders from time to time of this Warrant and shall be enforceable by
any such Holder or holder of Warrant Shares.
(h) Amendment. This Warrant may be modified or amended or the
provisions hereof waived with the written consent of the Company and
the Holder.
(i) Severability. Wherever possible, each provision of this
Warrant shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Warrant shall
be prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
(j) Headings. The headings used in this Warrant are for the
convenience of reference only and shall not, for any purpose, be deemed
a part of this Warrant.
********************
IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed by its officer thereunto duly authorized.
Dated: June 3rd, 2004
TOTAL FIRST AID, INC.
By:_________________________________
Name: Jeffery Tabin
9
NOTICE OF EXERCISE
To: First Aid Direct, Inc.
(1) The undersigned hereby elects to purchase ________ Warrant Shares
of First Aid Direct, Inc. pursuant to the terms of the attached Warrant (only if
exercised in full), and tenders herewith payment of the exercise price in full,
together with all applicable transfer taxes, if any.
(2) Payment shall take the form of (check applicable box):
[ ] in lawful money of the United States; or
[ ] the cancellation of such number of Warrant Shares
as is necessary, in accordance with the formula set
forth in subsection 3(d), to exercise this Warrant
with respect to the maximum number of Warrant Shares
purchasable pursuant to the cashless exercise
procedure set forth in subsection 3(d).
(3) Please issue a certificate or certificates representing said
Warrant Shares in the name of the undersigned or in such other name as is
specified below:
----------------------------------------
The Warrant Shares shall be delivered to the following:
----------------------------------------
----------------------------------------
----------------------------------------
(4) Accredited Investor. The undersigned is an "accredited investor" as
defined in Regulation D promulgated under the Securities Act of 1933, as
amended.
[PURCHASER]
By: ______________________________
Name:
Title:
Dated: ________________________
ASSIGNMENT FORM
(To assign the foregoing warrant, execute
this form and supply required information.
Do not use this form to exercise the warrant.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced
thereby are hereby assigned to______________________________________________
whose address is ___________________________________________________________
____________________________________________________________________________
Dated: ______________, _______
Holder's Signature: __________________________
Holder's Address:_____________________________
_____________________________
Signature Guaranteed: ___________________________________________
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatsoever, and must be guaranteed by a bank or trust company. Officers
of corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing Warrant.
NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS
SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER
LOAN SECURED BY SUCH SECURITIES
COMMON STOCK PURCHASE WARRANT
To Purchase 186,667 Shares of Common Stock of
TOTAL FIRST AID, INC.
THIS COMMON STOCK PURCHASE WARRANT CERTIFIES that, for value
received, 373 Florida Corp. (the "HOLDER"), is entitled, upon the terms and
subject to the limitations on exercise and the conditions hereinafter set forth,
at any time on or after June 3rd, 2004 (the "INITIAL EXERCISE DATE") and on or
prior to the close of business on June 2nd, 2007 (the "TERMINATION DATE") but
not thereafter, to subscribe for and purchase from Total First Aid, Inc., a
corporation incorporated in the State of Florida (the "COMPANY"), up to 186,667
shares (the "WARRANT SHARES") of Common Stock, par value $0.01 per share, of the
Company (the "COMMON STOCK"). The purchase price of one share of Common Stock
(the "EXERCISE PRICE") under this Warrant shall be $0.85, subject to adjustment
hereunder. The Exercise Price and the number of Warrant Shares for which the
Warrant is exercisable shall be subject to adjustment as provided herein.
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1. Title to Warrant. Prior to the Termination Date and subject to
compliance with applicable laws and Section 7 of this Warrant, this Warrant and
all rights hereunder are transferable, in whole or in part, at the office or
agency of the Company by the Holder in person or by duly authorized attorney,
upon surrender of this Warrant together with the Assignment Form annexed hereto
properly endorsed. The transferee shall sign an investment letter in form and
substance reasonably satisfactory to the Company.
2. Authorization of Shares. The Company covenants that all Warrant
Shares which may be issued upon the exercise of the purchase rights represented
by this Warrant will, upon exercise of the purchase rights represented by this
Warrant, be duly authorized, validly issued, fully paid and nonassessable and
free from all taxes, liens and charges in respect of the issue thereof (other
than taxes in respect of any transfer occurring contemporaneously with such
issue).
3. Exercise of Warrant.
(a) Exercise of the purchase rights represented by this
Warrant may be made at any time or times on or after the Initial
Exercise Date and on or before the Termination Date by the surrender of
this Warrant and the Notice of Exercise Form annexed hereto duly
executed, at the office of the Company (or such other office or agency
of the Company as it may designate by notice in writing to the
registered Holder at the address of such Holder appearing on the books
of the Company) and upon payment of the Exercise Price of the shares
thereby purchased by wire transfer or cashier's check drawn on a United
States bank or by means of a cashless exercise pursuant to Section
3(d), the Holder shall be entitled to receive a certificate for the
number of Warrant Shares so purchased. Certificates for shares
purchased hereunder shall be delivered to the Holder within three (3)
Trading Days after the date on which this Warrant shall have been
exercised as aforesaid. This Warrant shall be deemed to have been
exercised and such certificate or certificates shall be deemed to have
been issued, and the Holder or any other person so designated to be
named therein shall be deemed to have become a holder of record of such
shares for all purposes, as of the date the Warrant has been exercised
by payment to the Company of the Exercise Price and all taxes required
to be paid by the Holder, if any, pursuant to Section 5 prior to the
issuance of such shares, have been paid.
(b) If this Warrant shall have been exercised in part, the
Company shall, at the time of delivery of the certificate or
certificates representing Warrant Shares, deliver to Holder a new
Warrant evidencing the rights of Holder to purchase the unpurchased
Warrant Shares called for by this Warrant, which new Warrant shall in
all other respects be identical with this Warrant.
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4. No Fractional Shares or Scrip. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share which Holder would otherwise be entitled
to purchase upon such exercise, the Company shall pay a cash adjustment in
respect of such final fraction in an amount equal to such fraction multiplied by
the Exercise Price.
5. Charges, Taxes and Expenses. Issuance of certificates for Warrant
Shares shall be made without charge to the Holder for any issue or transfer tax
or other incidental expense in respect of the issuance of such certificate, all
of which taxes and expenses shall be paid by the Company, and such certificates
shall be issued in the name of the Holder or in such name or names as may be
directed by the Holder; provided, however, that in the event certificates for
Warrant Shares are to be issued in a name other than the name of the Holder,
this Warrant when surrendered for exercise shall be accompanied by the
Assignment Form attached hereto duly executed by the Holder; and the Company may
require, as a condition thereto, the payment of a sum sufficient to reimburse it
for any transfer tax incidental thereto.
6. Closing of Books. The Company will not close its stockholder books
or records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
7. Transfer, Division and Combination.
(a) Subject to compliance with any applicable securities laws
and the conditions set forth in Sections 1 and 7(e) hereof and to the
provisions of Section * of the Purchase Agreement, this Warrant and all
rights hereunder are transferable, in whole or in part, upon surrender
of this Warrant at the principal office of the Company, together with a
written assignment of this Warrant substantially in the form attached
hereto duly executed by the Holder or its agent or attorney and funds
sufficient to pay any transfer taxes payable upon the making of such
transfer. Upon such surrender and, if required, such payment, the
Company shall execute and deliver a new Warrant or Warrants in the name
of the assignee or assignees and in the denomination or denominations
specified in such instrument of assignment, and shall issue to the
assignor a new Warrant evidencing the portion of this Warrant not so
assigned, and this Warrant shall promptly be cancelled. A Warrant, if
properly assigned, may be exercised by a new holder for the purchase of
Warrant Shares without having a new Warrant issued.
(b) This Warrant may be divided or combined with other
Warrants upon presentation hereof at the aforesaid office of the
Company, together with a written notice specifying the names and
denominations in which new Warrants are to be issued, signed by the
Holder or its agent or attorney. Subject to compliance with Section
7(a), as to any transfer which may be involved in such division or
combination, the Company shall execute and deliver a new Warrant or
Warrants in exchange for the Warrant or Warrants to be divided or
combined in accordance with such notice.
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(c) The Company shall prepare, issue and deliver at its own
expense (other than transfer taxes) the new Warrant or Warrants under
this Section 7.
(d) The Company agrees to maintain, at its aforesaid office,
books for the registration and the registration of transfer of the
Warrants.
(e) If, at the time of the surrender of this Warrant in
connection with any transfer of this Warrant, the transfer of this
Warrant shall not be registered pursuant to an effective registration
statement under the Securities Act and under applicable state
securities or blue sky laws, the Company may require, as a condition of
allowing such transfer (i) that the Holder or transferee of this
Warrant, as the case may be, furnish to the Company a written opinion
of counsel (which opinion shall be in form, substance and scope
customary for opinions of counsel in comparable transactions) to the
effect that such transfer may be made without registration under the
Securities Act and under applicable state securities or blue sky laws,
(ii) that the holder or transferee execute and deliver to the Company
an investment letter in form and substance acceptable to the Company
and (iii) that the transferee be an "accredited investor" as defined in
Rule 501(a) promulgated under the Securities Act.
8. No Rights as Shareholder until Exercise. This Warrant does
not entitle the Holder to any voting rights or other rights as a
shareholder of the Company prior to the exercise hereof. Upon the
surrender of this Warrant and the payment of the aggregate Exercise
Price (or by means of a cashless exercise), the Warrant Shares so
purchased shall be and be deemed to be issued to such Holder as the
record owner of such shares as of the close of business on the later of
the date of such surrender or payment.
9. Loss, Theft, Destruction or Mutilation of Warrant. The
Company covenants that upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft, destruction or
mutilation of this Warrant or any stock certificate relating to the
Warrant Shares, and in case of loss, theft or destruction, of indemnity
or security reasonably satisfactory to it (which, in the case of the
Warrant, shall not include the posting of any bond), and upon surrender
and cancellation of such Warrant or stock certificate, if mutilated,
the Company will make and deliver a new Warrant or stock certificate of
like tenor and dated as of such cancellation, in lieu of such Warrant
or stock certificate.
10. Saturdays, Sundays, Holidays, etc. If the last or
appointed day for the taking of any action or the expiration of any
right required or granted herein shall be a Saturday, Sunday or a legal
holiday, then such action may be taken or such right may be exercised
on the next succeeding day not a Saturday, Sunday or legal holiday.
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11. Adjustments of Exercise Price and Number of Warrant Shares.
(a) Stock Splits, etc. The number and kind of securities
purchasable upon the exercise of this Warrant and the Exercise Price
shall be subject to adjustment from time to time upon the happening of
any of the following. In case the Company shall (i) pay a dividend in
shares of Common Stock or make a distribution in shares of Common Stock
to holders of its outstanding Common Stock, (ii) subdivide its
outstanding shares of Common Stock into a greater number of shares,
(iii) combine its outstanding shares of Common Stock into a smaller
number of shares of Common Stock, or (iv) issue any shares of its
capital stock in a reclassification of the Common Stock, then the
number of Warrant Shares purchasable upon exercise of this Warrant
immediately prior thereto shall be adjusted so that the Holder shall be
entitled to receive the kind and number of Warrant Shares or other
securities of the Company which it would have owned or have been
entitled to receive had such Warrant been exercised in advance thereof.
Upon each such adjustment of the kind and number of Warrant Shares or
other securities of the Company which are purchasable hereunder, the
Holder shall thereafter be entitled to purchase the number of Warrant
Shares or other securities resulting from such adjustment at an
Exercise Price per Warrant Share or other security obtained by
multiplying the Exercise Price in effect immediately prior to such
adjustment by the number of Warrant Shares purchasable pursuant hereto
immediately prior to such adjustment and dividing by the number of
Warrant Shares or other securities of the Company resulting from such
adjustment. An adjustment made pursuant to this paragraph shall become
effective immediately after the effective date of such event
retroactive to the record date, if any, for such event.
12. Reorganization, Reclassification, Merger, Consolidation or
Disposition of Assets. In case the Company shall reorganize its capital,
reclassify its capital stock, consolidate or merge with or into another
corporation (where the Company is not the surviving corporation or where there
is a change in or distribution with respect to the Common Stock of the Company),
or sell, transfer or otherwise dispose of all or substantially all its property,
assets or business to another corporation and, pursuant to the terms of such
reorganization, reclassification, merger, consolidation or disposition of
assets, shares of common stock of the successor or acquiring corporation, or any
cash, shares of stock or other securities or property of any nature whatsoever
(including warrants or other subscription or purchase rights) in addition to or
in lieu of common stock of the successor or acquiring corporation ("OTHER
PROPERTY"), are to be received by or distributed to the holders of Common Stock
of the Company, then the Holder shall have the right thereafter to receive, upon
exercise of this Warrant, the number of shares of Common Stock of the successor
or acquiring corporation or of the Company, if it is the surviving corporation,
and Other Property receivable upon or as a result of such reorganization,
reclassification, merger, consolidation or disposition of assets by a Holder of
the number of shares of Common Stock for which this Warrant is exercisable
immediately prior to such event. In case of any such reorganization,
reclassification, merger, consolidation or disposition of assets, the successor
or acquiring corporation (if other than the Company) shall expressly assume the
due and punctual observance and performance of each and every covenant and
condition of this Warrant to be performed and observed by the Company and all
the obligations and liabilities hereunder, subject to such modifications as may
be deemed appropriate (as determined in good faith by resolution of the Board of
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Directors of the Company) in order to provide for adjustments of Warrant Shares
for which this Warrant is exercisable which shall be as nearly equivalent as
practicable to the adjustments provided for in this Section 12. For purposes of
this Section 12, "common stock of the successor or acquiring corporation" shall
include stock of such corporation of any class which is not preferred as to
dividends or assets over any other class of stock of such corporation and which
is not subject to redemption and shall also include any evidences of
indebtedness, shares of stock or other securities which are convertible into or
exchangeable for any such stock, either immediately or upon the arrival of a
specified date or the happening of a specified event and any warrants or other
rights to subscribe for or purchase any such stock. The foregoing provisions of
this Section 12 shall similarly apply to successive reorganizations,
reclassifications, mergers, consolidations or disposition of assets.
13. Voluntary Adjustment by the Company. The Company may at any time
during the term of this Warrant reduce the then current Exercise Price to any
amount and for any period of time deemed appropriate by the Board of Directors
of the Company.
14. Notice of Adjustment. Whenever the number of Warrant Shares or
number or kind of securities or other property purchasable upon the exercise of
this Warrant or the Exercise Price is adjusted, as herein provided, the Company
shall give notice thereof to the Holder, which notice shall state the number of
Warrant Shares (and other securities or property) purchasable upon the exercise
of this Warrant and the Exercise Price of such Warrant Shares (and other
securities or property) after such adjustment, setting forth a brief statement
of the facts requiring such adjustment and setting forth the computation by
which such adjustment was made.
15. Notice of Corporate Action. If at any time:
(a) the Company shall take a record of the holders of its
Common Stock for the purpose of entitling them to receive a dividend or
other distribution, or any right to subscribe for or purchase any
evidences of its indebtedness, any shares of stock of any class or any
other securities or property, or to receive any other right, or
(b) there shall be any capital reorganization of the Company,
any reclassification or recapitalization of the capital stock of the
Company or any consolidation or merger of the Company with, or any
sale, transfer or other disposition of all or substantially all the
property, assets or business of the Company to, another corporation or,
(c) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in any one or more of such cases, the Company shall give to Holder (i) at
least 10 days' prior written notice of the date on which a record date shall be
selected for such dividend, distribution or right or for determining rights to
vote in respect of any such reorganization, reclassification, merger,
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consolidation, sale, transfer, disposition, liquidation or winding up, and (ii)
in the case of any such reorganization, reclassification, merger, consolidation,
sale, transfer, disposition, dissolution, liquidation or winding up, at least 10
days' prior written notice of the date when the same shall take place. Such
notice in accordance with the foregoing clause also shall specify (i) the date
on which any such record is to be taken for the purpose of such dividend,
distribution or right, the date on which the holders of Common Stock shall be
entitled to any such dividend, distribution or right, and the amount and
character thereof, and (ii) the date on which any such reorganization,
reclassification, merger, consolidation, sale, transfer, disposition,
dissolution, liquidation or winding up is to take place and the time, if any
such time is to be fixed, as of which the holders of Common Stock shall be
entitled to exchange their Warrant Shares for securities or other property
deliverable upon such disposition, dissolution, liquidation or winding up. Each
such written notice shall be sufficiently given if addressed to Holder at the
last address of Holder appearing on the books of the Company and delivered in
accordance with Section 17(d).
16. Authorized Shares. The Company covenants that during the period the
Warrant is outstanding, it will reserve from its authorized and unissued Common
Stock a sufficient number of shares to provide for the issuance of the Warrant
Shares upon the exercise of any purchase rights under this Warrant. The Company
further covenants that its issuance of this Warrant shall constitute full
authority to its officers who are charged with the duty of executing stock
certificates to execute and issue the necessary certificates for the Warrant
Shares upon the exercise of the purchase rights under this Warrant. The Company
will take all such reasonable action as may be necessary to assure that such
Warrant Shares may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of the Principal Market
upon which the Common Stock may be listed.
Except and to the extent as waived or consented to by the
Holder, the Company shall not by any action, including, without limitation,
amending its certificate of incorporation or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms of this Warrant, but will at all times in
good faith assist in the carrying out of all such terms and in the taking of all
such actions as may be necessary or appropriate to protect the rights of Holder
as set forth in this Warrant against impairment. Without limiting the generality
of the foregoing, the Company will (a) not increase the par value of any Warrant
Shares above the amount payable therefor upon such exercise immediately prior to
such increase in par value, (b) take all such action as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid
and nonassessable Warrant Shares upon the exercise of this Warrant, and (c) use
commercially reasonable efforts to obtain all such authorizations, exemptions or
consents from any public regulatory body having jurisdiction thereof as may be
necessary to enable the Company to perform its obligations under this Warrant.
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Before taking any action which would result in an adjustment
in the number of Warrant Shares for which this Warrant is exercisable or in the
Exercise Price, the Company shall obtain all such authorizations or exemptions
thereof, or consents thereto, as may be necessary from any public regulatory
body or bodies having jurisdiction thereof.
17. Miscellaneous.
(a) Jurisdiction. This Warrant shall constitute a contract
under the laws of Florida, without regard to its conflict of law,
principles or rules.
(b) Restrictions. The Holder acknowledges that the Warrant
Shares acquired upon the exercise of this Warrant, if not registered,
will have restrictions upon resale imposed by state and federal
securities laws.
(c) Nonwaiver and Expenses. No course of dealing or any delay
or failure to exercise any right hereunder on the part of Holder shall
operate as a waiver of such right or otherwise prejudice Holder's
rights, powers or remedies, notwithstanding all rights hereunder
terminate on the Termination Date. If the Company willfully and
knowingly fails to comply with any provision of this Warrant, which
results in any material damages to the Holder, the Company shall pay to
Holder such amounts as shall be sufficient to cover any costs and
expenses including, but not limited to, reasonable attorneys' fees,
including those of appellate proceedings, incurred by Holder in
collecting any amounts due pursuant hereto or in otherwise enforcing
any of its rights, powers or remedies hereunder.
(d) Notices. Any notice, request or other document required or
permitted to be given or delivered to the Holder by the Company shall
be delivered in accordance with the notice provisions of the Purchase
Agreement; provided upon any permitted assignment of this Warrant, the
assignee shall promptly provide the Company with its contact
information.
(e) Limitation of Liability. No provision hereof, in the
absence of any affirmative action by Holder to exercise this Warrant or
purchase Warrant Shares, and no enumeration herein of the rights or
privileges of Holder, shall give rise to any liability of Holder for
the purchase price of any Common Stock or as a stockholder of the
Company, whether such liability is asserted by the Company or by
creditors of the Company.
(f) Remedies. Holder, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will
be entitled to specific performance of its rights under this Warrant.
The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the
provisions of this Warrant and hereby agrees to waive the defense in
any action for specific performance that a remedy at law would be
adequate.
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(g) Successors and Assigns. Subject to applicable securities
laws, this Warrant and the rights and obligations evidenced hereby
shall inure to the benefit of and be binding upon the successors of the
Company and the successors and permitted assigns of Holder. The
provisions of this Warrant are intended to be for the benefit of all
Holders from time to time of this Warrant and shall be enforceable by
any such Holder or holder of Warrant Shares.
(h) Amendment. This Warrant may be modified or amended or the
provisions hereof waived with the written consent of the Company and
the Holder.
(i) Severability. Wherever possible, each provision of this
Warrant shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Warrant shall
be prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
(j) Headings. The headings used in this Warrant are for the
convenience of reference only and shall not, for any purpose, be deemed
a part of this Warrant.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed by its officer thereunto duly authorized.
Dated: June 3rd, 2004
TOTAL FIRST AID, INC.
By:_________________________________
Name: Jeffery Tabin
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NOTICE OF EXERCISE
To: First Aid Direct, Inc.
(1) The undersigned hereby elects to purchase ________ Warrant Shares
of First Aid Direct, Inc. pursuant to the terms of the attached Warrant (only if
exercised in full), and tenders herewith payment of the exercise price in full,
together with all applicable transfer taxes, if any.
(2) Payment shall take the form of (check applicable box):
[ ] in lawful money of the United States; or
[ ] the cancellation of such number of Warrant Shares
as is necessary, in accordance with the formula set
forth in subsection 3(d), to exercise this Warrant
with respect to the maximum number of Warrant Shares
purchasable pursuant to the cashless exercise
procedure set forth in subsection 3(d).
(3) Please issue a certificate or certificates representing said
Warrant Shares in the name of the undersigned or in such other name as is
specified below:
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The Warrant Shares shall be delivered to the following:
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(4) Accredited Investor. The undersigned is an "accredited investor" as
defined in Regulation D promulgated under the Securities Act of 1933, as
amended.
[PURCHASER]
By: ______________________________
Name:
Title:
Dated: ________________________
ASSIGNMENT FORM
(To assign the foregoing warrant, execute
this form and supply required information.
Do not use this form to exercise the warrant.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced
thereby are hereby assigned to______________________________________________
whose address is ___________________________________________________________
____________________________________________________________________________
Dated: ______________, _______
Holder's Signature: __________________________
Holder's Address:_____________________________
_____________________________
Signature Guaranteed: ___________________________________________
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatsoever, and must be guaranteed by a bank or trust company. Officers
of corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing Warrant.
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NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS
SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER
LOAN SECURED BY SUCH SECURITIES
COMMON STOCK PURCHASE WARRANT
To Purchase 50,000 Shares of Common Stock of
TOTAL FIRST AID, INC.
THIS COMMON STOCK PURCHASE WARRANT CERTIFIES that, for value
received, 3113019 Canada Inc. (the "HOLDER"), is entitled, upon the terms and
subject to the limitations on exercise and the conditions hereinafter set forth,
at any time on or after June 3rd, 2004 (the "INITIAL EXERCISE DATE") and on or
prior to the close of business on June 2nd, 2007 (the "TERMINATION DATE") but
not thereafter, to subscribe for and purchase from Total First Aid, Inc., a
corporation incorporated in the State of Florida (the "COMPANY"), up to 50,000
shares (the "WARRANT SHARES") of Common Stock, par value $0.01 per share, of the
Company (the "COMMON STOCK"). The purchase price of one share of Common Stock
(the "EXERCISE PRICE") under this Warrant shall be $0.85, subject to adjustment
hereunder. The Exercise Price and the number of Warrant Shares for which the
Warrant is exercisable shall be subject to adjustment as provided herein.
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1. Title to Warrant. Prior to the Termination Date and subject to
compliance with applicable laws and Section 7 of this Warrant, this Warrant and
all rights hereunder are transferable, in whole or in part, at the office or
agency of the Company by the Holder in person or by duly authorized attorney,
upon surrender of this Warrant together with the Assignment Form annexed hereto
properly endorsed. The transferee shall sign an investment letter in form and
substance reasonably satisfactory to the Company.
2. Authorization of Shares. The Company covenants that all Warrant
Shares which may be issued upon the exercise of the purchase rights represented
by this Warrant will, upon exercise of the purchase rights represented by this
Warrant, be duly authorized, validly issued, fully paid and nonassessable and
free from all taxes, liens and charges in respect of the issue thereof (other
than taxes in respect of any transfer occurring contemporaneously with such
issue).
3. Exercise of Warrant.
(a) Exercise of the purchase rights represented by this
Warrant may be made at any time or times on or after the Initial
Exercise Date and on or before the Termination Date by the surrender of
this Warrant and the Notice of Exercise Form annexed hereto duly
executed, at the office of the Company (or such other office or agency
of the Company as it may designate by notice in writing to the
registered Holder at the address of such Holder appearing on the books
of the Company) and upon payment of the Exercise Price of the shares
thereby purchased by wire transfer or cashier's check drawn on a United
States bank or by means of a cashless exercise pursuant to Section
3(d), the Holder shall be entitled to receive a certificate for the
number of Warrant Shares so purchased. Certificates for shares
purchased hereunder shall be delivered to the Holder within three (3)
Trading Days after the date on which this Warrant shall have been
exercised as aforesaid. This Warrant shall be deemed to have been
exercised and such certificate or certificates shall be deemed to have
been issued, and the Holder or any other person so designated to be
named therein shall be deemed to have become a holder of record of such
shares for all purposes, as of the date the Warrant has been exercised
by payment to the Company of the Exercise Price and all taxes required
to be paid by the Holder, if any, pursuant to Section 5 prior to the
issuance of such shares, have been paid.
(b) If this Warrant shall have been exercised in part, the
Company shall, at the time of delivery of the certificate or
certificates representing Warrant Shares, deliver to Holder a new
Warrant evidencing the rights of Holder to purchase the unpurchased
Warrant Shares called for by this Warrant, which new Warrant shall in
all other respects be identical with this Warrant.
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4. No Fractional Shares or Scrip. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share which Holder would otherwise be entitled
to purchase upon such exercise, the Company shall pay a cash adjustment in
respect of such final fraction in an amount equal to such fraction multiplied by
the Exercise Price.
5. Charges, Taxes and Expenses. Issuance of certificates for Warrant
Shares shall be made without charge to the Holder for any issue or transfer tax
or other incidental expense in respect of the issuance of such certificate, all
of which taxes and expenses shall be paid by the Company, and such certificates
shall be issued in the name of the Holder or in such name or names as may be
directed by the Holder; provided, however, that in the event certificates for
Warrant Shares are to be issued in a name other than the name of the Holder,
this Warrant when surrendered for exercise shall be accompanied by the
Assignment Form attached hereto duly executed by the Holder; and the Company may
require, as a condition thereto, the payment of a sum sufficient to reimburse it
for any transfer tax incidental thereto.
6. Closing of Books. The Company will not close its stockholder books
or records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
7. Transfer, Division and Combination.
(a) Subject to compliance with any applicable securities laws
and the conditions set forth in Sections 1 and 7(e) hereof and to the
provisions of Section * of the Purchase Agreement, this Warrant and all
rights hereunder are transferable, in whole or in part, upon surrender
of this Warrant at the principal office of the Company, together with a
written assignment of this Warrant substantially in the form attached
hereto duly executed by the Holder or its agent or attorney and funds
sufficient to pay any transfer taxes payable upon the making of such
transfer. Upon such surrender and, if required, such payment, the
Company shall execute and deliver a new Warrant or Warrants in the name
of the assignee or assignees and in the denomination or denominations
specified in such instrument of assignment, and shall issue to the
assignor a new Warrant evidencing the portion of this Warrant not so
assigned, and this Warrant shall promptly be cancelled. A Warrant, if
properly assigned, may be exercised by a new holder for the purchase of
Warrant Shares without having a new Warrant issued.
(b) This Warrant may be divided or combined with other
Warrants upon presentation hereof at the aforesaid office of the
Company, together with a written notice specifying the names and
denominations in which new Warrants are to be issued, signed by the
Holder or its agent or attorney. Subject to compliance with Section
7(a), as to any transfer which may be involved in such division or
combination, the Company shall execute and deliver a new Warrant or
Warrants in exchange for the Warrant or Warrants to be divided or
combined in accordance with such notice.
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(c) The Company shall prepare, issue and deliver at its own
expense (other than transfer taxes) the new Warrant or Warrants under
this Section 7.
(d) The Company agrees to maintain, at its aforesaid office,
books for the registration and the registration of transfer of the
Warrants.
(e) If, at the time of the surrender of this Warrant in
connection with any transfer of this Warrant, the transfer of this
Warrant shall not be registered pursuant to an effective registration
statement under the Securities Act and under applicable state
securities or blue sky laws, the Company may require, as a condition of
allowing such transfer (i) that the Holder or transferee of this
Warrant, as the case may be, furnish to the Company a written opinion
of counsel (which opinion shall be in form, substance and scope
customary for opinions of counsel in comparable transactions) to the
effect that such transfer may be made without registration under the
Securities Act and under applicable state securities or blue sky laws,
(ii) that the holder or transferee execute and deliver to the Company
an investment letter in form and substance acceptable to the Company
and (iii) that the transferee be an "accredited investor" as defined in
Rule 501(a) promulgated under the Securities Act.
8. No Rights as Shareholder until Exercise. This Warrant does not
entitle the Holder to any voting rights or other rights as a shareholder of the
Company prior to the exercise hereof. Upon the surrender of this Warrant and the
payment of the aggregate Exercise Price (or by means of a cashless exercise),
the Warrant Shares so purchased shall be and be deemed to be issued to such
Holder as the record owner of such shares as of the close of business on the
later of the date of such surrender or payment.
9. Loss, Theft, Destruction or Mutilation of Warrant. The Company
covenants that upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Warrant or any stock
certificate relating to the Warrant Shares, and in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to it (which, in
the case of the Warrant, shall not include the posting of any bond), and upon
surrender and cancellation of such Warrant or stock certificate, if mutilated,
the Company will make and deliver a new Warrant or stock certificate of like
tenor and dated as of such cancellation, in lieu of such Warrant or stock
certificate.
10. Saturdays, Sundays, Holidays, etc. If the last or appointed day for
the taking of any action or the expiration of any right required or granted
herein shall be a Saturday, Sunday or a legal holiday, then such action may be
taken or such right may be exercised on the next succeeding day not a Saturday,
Sunday or legal holiday.
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11. Adjustments of Exercise Price and Number of Warrant Shares.
(a) Stock Splits, etc. The number and kind of securities
purchasable upon the exercise of this Warrant and the Exercise Price
shall be subject to adjustment from time to time upon the happening of
any of the following. In case the Company shall (i) pay a dividend in
shares of Common Stock or make a distribution in shares of Common Stock
to holders of its outstanding Common Stock, (ii) subdivide its
outstanding shares of Common Stock into a greater number of shares,
(iii) combine its outstanding shares of Common Stock into a smaller
number of shares of Common Stock, or (iv) issue any shares of its
capital stock in a reclassification of the Common Stock, then the
number of Warrant Shares purchasable upon exercise of this Warrant
immediately prior thereto shall be adjusted so that the Holder shall be
entitled to receive the kind and number of Warrant Shares or other
securities of the Company which it would have owned or have been
entitled to receive had such Warrant been exercised in advance thereof.
Upon each such adjustment of the kind and number of Warrant Shares or
other securities of the Company which are purchasable hereunder, the
Holder shall thereafter be entitled to purchase the number of Warrant
Shares or other securities resulting from such adjustment at an
Exercise Price per Warrant Share or other security obtained by
multiplying the Exercise Price in effect immediately prior to such
adjustment by the number of Warrant Shares purchasable pursuant hereto
immediately prior to such adjustment and dividing by the number of
Warrant Shares or other securities of the Company resulting from such
adjustment. An adjustment made pursuant to this paragraph shall become
effective immediately after the effective date of such event
retroactive to the record date, if any, for such event.
12. Reorganization, Reclassification, Merger, Consolidation or
Disposition of Assets. In case the Company shall reorganize its capital,
reclassify its capital stock, consolidate or merge with or into another
corporation (where the Company is not the surviving corporation or where there
is a change in or distribution with respect to the Common Stock of the Company),
or sell, transfer or otherwise dispose of all or substantially all its property,
assets or business to another corporation and, pursuant to the terms of such
reorganization, reclassification, merger, consolidation or disposition of
assets, shares of common stock of the successor or acquiring corporation, or any
cash, shares of stock or other securities or property of any nature whatsoever
(including warrants or other subscription or purchase rights) in addition to or
in lieu of common stock of the successor or acquiring corporation ("OTHER
PROPERTY"), are to be received by or distributed to the holders of Common Stock
of the Company, then the Holder shall have the right thereafter to receive, upon
exercise of this Warrant, the number of shares of Common Stock of the successor
or acquiring corporation or of the Company, if it is the surviving corporation,
and Other Property receivable upon or as a result of such reorganization,
reclassification, merger, consolidation or disposition of assets by a Holder of
the number of shares of Common Stock for which this Warrant is exercisable
immediately prior to such event. In case of any such reorganization,
reclassification, merger, consolidation or disposition of assets, the successor
or acquiring corporation (if other than the Company) shall expressly assume the
due and punctual observance and performance of each and every covenant and
condition of this Warrant to be performed and observed by the Company and all
the obligations and liabilities hereunder, subject to such modifications as may
be deemed appropriate (as determined in good faith by resolution of the Board of
Directors of the Company) in order to provide for adjustments of Warrant Shares
for which this Warrant is exercisable which shall be as nearly equivalent as
5
practicable to the adjustments provided for in this Section 12. For purposes of
this Section 12, "common stock of the successor or acquiring corporation" shall
include stock of such corporation of any class which is not preferred as to
dividends or assets over any other class of stock of such corporation and which
is not subject to redemption and shall also include any evidences of
indebtedness, shares of stock or other securities which are convertible into or
exchangeable for any such stock, either immediately or upon the arrival of a
specified date or the happening of a specified event and any warrants or other
rights to subscribe for or purchase any such stock. The foregoing provisions of
this Section 12 shall similarly apply to successive reorganizations,
reclassifications, mergers, consolidations or disposition of assets.
13. Voluntary Adjustment by the Company. The Company may at any time
during the term of this Warrant reduce the then current Exercise Price to any
amount and for any period of time deemed appropriate by the Board of Directors
of the Company.
14. Notice of Adjustment. Whenever the number of Warrant Shares or
number or kind of securities or other property purchasable upon the exercise of
this Warrant or the Exercise Price is adjusted, as herein provided, the Company
shall give notice thereof to the Holder, which notice shall state the number of
Warrant Shares (and other securities or property) purchasable upon the exercise
of this Warrant and the Exercise Price of such Warrant Shares (and other
securities or property) after such adjustment, setting forth a brief statement
of the facts requiring such adjustment and setting forth the computation by
which such adjustment was made.
15. Notice of Corporate Action. If at any time:
(a) the Company shall take a record of the holders of its
Common Stock for the purpose of entitling them to receive a dividend or
other distribution, or any right to subscribe for or purchase any
evidences of its indebtedness, any shares of stock of any class or any
other securities or property, or to receive any other right, or
(b) there shall be any capital reorganization of the Company,
any reclassification or recapitalization of the capital stock of the
Company or any consolidation or merger of the Company with, or any
sale, transfer or other disposition of all or substantially all the
property, assets or business of the Company to, another corporation or,
(c) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in any one or more of such cases, the Company shall give to Holder (i) at
least 10 days' prior written notice of the date on which a record date shall be
selected for such dividend, distribution or right or for determining rights to
vote in respect of any such reorganization, reclassification, merger,
6
consolidation, sale, transfer, disposition, liquidation or winding up, and (ii)
in the case of any such reorganization, reclassification, merger, consolidation,
sale, transfer, disposition, dissolution, liquidation or winding up, at least 10
days' prior written notice of the date when the same shall take place. Such
notice in accordance with the foregoing clause also shall specify (i) the date
on which any such record is to be taken for the purpose of such dividend,
distribution or right, the date on which the holders of Common Stock shall be
entitled to any such dividend, distribution or right, and the amount and
character thereof, and (ii) the date on which any such reorganization,
reclassification, merger, consolidation, sale, transfer, disposition,
dissolution, liquidation or winding up is to take place and the time, if any
such time is to be fixed, as of which the holders of Common Stock shall be
entitled to exchange their Warrant Shares for securities or other property
deliverable upon such disposition, dissolution, liquidation or winding up. Each
such written notice shall be sufficiently given if addressed to Holder at the
last address of Holder appearing on the books of the Company and delivered in
accordance with Section 17(d).
16. Authorized Shares. The Company covenants that during the period the
Warrant is outstanding, it will reserve from its authorized and unissued Common
Stock a sufficient number of shares to provide for the issuance of the Warrant
Shares upon the exercise of any purchase rights under this Warrant. The Company
further covenants that its issuance of this Warrant shall constitute full
authority to its officers who are charged with the duty of executing stock
certificates to execute and issue the necessary certificates for the Warrant
Shares upon the exercise of the purchase rights under this Warrant. The Company
will take all such reasonable action as may be necessary to assure that such
Warrant Shares may be issued as provided herein without violation of any
applicable law or regulation, or of any requirements of the Principal Market
upon which the Common Stock may be listed.
Except and to the extent as waived or consented to by the
Holder, the Company shall not by any action, including, without limitation,
amending its certificate of incorporation or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms of this Warrant, but will at all times in
good faith assist in the carrying out of all such terms and in the taking of all
such actions as may be necessary or appropriate to protect the rights of Holder
as set forth in this Warrant against impairment. Without limiting the generality
of the foregoing, the Company will (a) not increase the par value of any Warrant
Shares above the amount payable therefor upon such exercise immediately prior to
such increase in par value, (b) take all such action as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid
and nonassessable Warrant Shares upon the exercise of this Warrant, and (c) use
commercially reasonable efforts to obtain all such authorizations, exemptions or
consents from any public regulatory body having jurisdiction thereof as may be
necessary to enable the Company to perform its obligations under this Warrant.
7
Before taking any action which would result in an adjustment
in the number of Warrant Shares for which this Warrant is exercisable or in the
Exercise Price, the Company shall obtain all such authorizations or exemptions
thereof, or consents thereto, as may be necessary from any public regulatory
body or bodies having jurisdiction thereof.
17. Miscellaneous.
(a) Jurisdiction. This Warrant shall constitute a contract
under the laws of Florida, without regard to its conflict of law,
principles or rules.
(b) Restrictions. The Holder acknowledges that the Warrant
Shares acquired upon the exercise of this Warrant, if not registered,
will have restrictions upon resale imposed by state and federal
securities laws.
(c) Nonwaiver and Expenses. No course of dealing or any delay
or failure to exercise any right hereunder on the part of Holder shall
operate as a waiver of such right or otherwise prejudice Holder's
rights, powers or remedies, notwithstanding all rights hereunder
terminate on the Termination Date. If the Company willfully and
knowingly fails to comply with any provision of this Warrant, which
results in any material damages to the Holder, the Company shall pay to
Holder such amounts as shall be sufficient to cover any costs and
expenses including, but not limited to, reasonable attorneys' fees,
including those of appellate proceedings, incurred by Holder in
collecting any amounts due pursuant hereto or in otherwise enforcing
any of its rights, powers or remedies hereunder.
(d) Notices. Any notice, request or other document required or
permitted to be given or delivered to the Holder by the Company shall
be delivered in accordance with the notice provisions of the Purchase
Agreement; provided upon any permitted assignment of this Warrant, the
assignee shall promptly provide the Company with its contact
information.
(e) Limitation of Liability. No provision hereof, in the
absence of any affirmative action by Holder to exercise this Warrant or
purchase Warrant Shares, and no enumeration herein of the rights or
privileges of Holder, shall give rise to any liability of Holder for
the purchase price of any Common Stock or as a stockholder of the
Company, whether such liability is asserted by the Company or by
creditors of the Company.
(f) Remedies. Holder, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will
be entitled to specific performance of its rights under this Warrant.
The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the
provisions of this Warrant and hereby agrees to waive the defense in
any action for specific performance that a remedy at law would be
adequate.
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(g) Successors and Assigns. Subject to applicable securities
laws, this Warrant and the rights and obligations evidenced hereby
shall inure to the benefit of and be binding upon the successors of the
Company and the successors and permitted assigns of Holder. The
provisions of this Warrant are intended to be for the benefit of all
Holders from time to time of this Warrant and shall be enforceable by
any such Holder or holder of Warrant Shares.
(h) Amendment. This Warrant may be modified or amended or the
provisions hereof waived with the written consent of the Company and
the Holder.
(i) Severability. Wherever possible, each provision of this
Warrant shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Warrant shall
be prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
(j) Headings. The headings used in this Warrant are for the
convenience of reference only and shall not, for any purpose, be deemed
a part of this Warrant.
********************
IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed by its officer thereunto duly authorized.
Dated: June 3rd, 2004
TOTAL FIRST AID, INC.
By:_________________________________
Name: Jeffery Tabin
NOTICE OF EXERCISE
To: First Aid Direct, Inc.
(1) The undersigned hereby elects to purchase ________ Warrant Shares
of First Aid Direct, Inc. pursuant to the terms of the attached Warrant (only if
exercised in full), and tenders herewith payment of the exercise price in full,
together with all applicable transfer taxes, if any.
(2) Payment shall take the form of (check applicable box):
[ ] in lawful money of the United States; or
[ ] the cancellation of such number of Warrant Shares
as is necessary, in accordance with the formula set
forth in subsection 3(d), to exercise this Warrant
with respect to the maximum number of Warrant Shares
purchasable pursuant to the cashless exercise
procedure set forth in subsection 3(d).
(3) Please issue a certificate or certificates representing said
Warrant Shares in the name of the undersigned or in such other name as is
specified below:
----------------------------------------
The Warrant Shares shall be delivered to the following:
----------------------------------------
----------------------------------------
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(4) Accredited Investor. The undersigned is an "accredited investor" as
defined in Regulation D promulgated under the Securities Act of 1933, as
amended.
[PURCHASER]
By: ______________________________
Name:
Title:
Dated: ________________________
ASSIGNMENT FORM
(To assign the foregoing warrant, execute
this form and supply required information.
Do not use this form to exercise the warrant.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced
thereby are hereby assigned to______________________________________________
whose address is ___________________________________________________________
____________________________________________________________________________
Dated: ______________, _______
Holder's Signature: __________________________
Holder's Address:_____________________________
_____________________________
Signature Guaranteed: ___________________________________________
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatsoever, and must be guaranteed by a bank or trust company. Officers
of corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing Warrant.