Attached files
file | filename |
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8-K - FORM 8-K - UNITED AMERICAN HEALTHCARE CORP | k49372e8vk.htm |
EX-4.1 - EX-4.1 - UNITED AMERICAN HEALTHCARE CORP | k49372exv4w1.htm |
EX-4.2 - EX-4.2 - UNITED AMERICAN HEALTHCARE CORP | k49372exv4w2.htm |
EX-2.3 - EX-2.3 - UNITED AMERICAN HEALTHCARE CORP | k49372exv2w3.htm |
EX-2.1 - EX-2.1 - UNITED AMERICAN HEALTHCARE CORP | k49372exv2w1.htm |
EX-10.3 - EX-10.3 - UNITED AMERICAN HEALTHCARE CORP | k49372exv10w3.htm |
EX-10.2 - EX-10.2 - UNITED AMERICAN HEALTHCARE CORP | k49372exv10w2.htm |
EX-10.1 - EX-10.1 - UNITED AMERICAN HEALTHCARE CORP | k49372exv10w1.htm |
EX-99.1 - EX-99.1 - UNITED AMERICAN HEALTHCARE CORP | k49372exv99w1.htm |
EX-10.4 - EX-10.4 - UNITED AMERICAN HEALTHCARE CORP | k49372exv10w4.htm |
Exhibit 2.2
WARRANT PURCHASE AGREEMENT
THIS WARRANT PURCHASE AGREEMENT (this Agreement), entered into and dated effective as of
June 18, 2010 (the Closing Date), is by and between United American Healthcare
Corporation, a Michigan corporation (the Buyer), and Convergent Capital Partners I,
L.P., a Delaware limited partnership (Convergent), Main Street Equity Interests,
Inc., a Delaware corporation (Main Street), Medallion Capital, Inc., a Minnesota
corporation (Medallion) and Pacific Mezzanine Fund, L.P., a California limited
partnership (PMF, and collectively with Convergent, Main Street and Medallion, each individually
a Holder, and collectively the Holders).
W I T N E S S E T H :
WHEREAS, the Holders are owners of those certain Warrant Nos. 4, 5, 6, 7, 9, 10 and 11 to
purchase common units in Pulse Systems, LLC, a Delaware limited liability company (the
Company) as listed in the Companys company books and records and as included in the attached
Exhibit A to this Agreement, and which represent the right to purchase 1,503,097 common
units of the Company (each individually a Warrant, and collectively the Warrants);
WHEREAS, Main Street previously acquired Warrant Nos. 5 and 11 from its affiliate, Main Street
Mezzanine Fund, L.P., a Delaware limited partnership, on September 28, 2009;
WHEREAS, concurrently with the execution and delivery of this Agreement, the Buyer and the
Companys other equity owners are entering into that certain Securities Purchase Agreement (the
Purchase Agreement) under which the Buyer is acquiring 100% of the common units and warrants to
purchase common units of the Company, other than the Warrants, from the holders thereof;
WHEREAS, the Company and its members desire to have this Agreement and the Purchase Agreement
executed and therefore the Company, on behalf of itself and its members, desires to (a) waive any
and all notifications, rights of first refusal, preemptive rights or other restrictions on each
Holders right to execute this Agreement and sell and transfer the Warrants to the Buyer and (b)
consent to, approve and ratify the Buyers purchase of the Warrants from the Holders;
WHEREAS, the Holders and the Buyer have obtained a consent and waiver from the Company in
substantially the form attached hereto as Exhibit C whereby the Company has (a) waived any
and all notifications, rights of first refusal, preemptive rights or other restrictions on each
Holders right to execute this Agreement and sell and transfer the Warrants to the Buyer, (b)
consented to, approved and ratified the Buyers purchase of the Warrants from the Holders and (c)
agreed to and accepted the assignment, conveyance, sale and delivery from each Holder of the
Warrants to the Buyer and all of each Holders rights thereunder and acknowledges and agreed to the
transfer of all of each Holders rights and the Companys obligations to each Holder under the
Warrants from each Holder to the Buyer;
WHEREAS, as part of the Purchase Agreement (specifically, Section 9.21 of the Purchase
Agreement) each of the Companys members, with respect to the common units of the Company and the
preferred units of the Company held by each such member, has waived its or his respective right of
first refusal, co-sale rights, notice requirements, and any other rights of such member set forth
in the certain Investors Rights Agreement dated June 1, 2004 entered into by and among the Company
and each of its members, as amended through the Closing Date, (the Investor Rights Agreement) and
applicable to the sale and transfer of the Warrants contemplated by this Agreement; and
NOW, THEREFORE, for and in consideration of the foregoing premises and the mutual covenants,
promises, agreements, representations and warranties set forth in this Agreement, and other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Buyer
and the Holders hereby agree as follows:
1. Purchase; Payment of Purchase Price.
(a) The Buyer hereby purchases from each Holder the Warrants held by such Holder as set
forth on Exhibit A (collectively, the Purchase).
(b) The aggregate purchase price for the Warrants shall be equal to Eight Hundred
Thirty-One Thousand Two Hundred and Three Dollars and Forty-One Cents ($831,203.41) (the
Purchase Price), payable by the Buyer to each Holder in cash at the Closing as follows:
(i) | Convergent $127,606.65; | ||
(ii) | Main Street $281,486.04; | ||
(iii) | Medallion $140,624.68; and | ||
(iv) | PMF $281,486.04. |
2. Closing; Closing Deliveries.
(a) The execution of this Agreement, and the closing of the Purchase (the Closing),
shall occur simultaneously on the Closing Date.
(b) At the Closing, each Holder shall deliver to the Buyer:
(i) this Agreement, duly executed by such Holder;
(ii) an Irrevocable Warrant Power in the form attached hereto as Exhibit
B (each, a Warrant Power) with respect to each Warrant held by such Holder,
transferring the Warrant from such Holder to the Buyer, duly executed by such
Holder;
(iii) each original Warrant held by such Holder;
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(iv) a duly executed consent and waiver from the Company in the form of the
consent and waiver attached hereto as Exhibit C whereby the Company has (A)
waived any and all notifications, rights of first refusal, preemptive rights or
other restrictions on each Holders right to execute this Agreement and sell and
transfer the Warrants to the Buyer, (B) consented to, approved and ratified the
Buyers purchase of the Warrants from the Holders and (C) agreed to and accepted the
assignment, conveyance, sale and delivery from each Holder of the Warrants to the
Buyer and all of each Holders rights thereunder and acknowledges and agreed to the
transfer of all of each Holders rights and the Companys obligations to each Holder
under the Warrants from each Holder to the Buyer (the Company Consent);
(v) such other certificates, documents and agreements as the Buyer may
reasonably request.
(c) At the Closing, the Buyer shall deliver to the Holders:
(i) this Agreement, duly executed by the Buyer;
(ii) a fully executed copy of the Purchase Agreement, which has been duly
executed by the Buyer and the sellers that are party thereto;
(iii) the Purchase Price to each Holder via wire transfer in immediately
available and accessible funds to the accounts and wire transfer instructions
provided by each Holder in Exhibit D attached hereto; and
(iv) such other certificates, documents and agreements as the Holders may
reasonably request.
3. Representations of each Holder As a material inducement to the Buyer to enter into
this Agreement, each Holder represents and warrants to the Buyer, as of the Closing, as follows:
(a) Organization of the Holder.
(i) If such Holder is a limited partnership, such Holder is duly organized,
validly existing and in good standing (or having comparable active status) under the
laws of the jurisdiction of its formation.
(ii) If such Holder is a corporation, such Holder is duly incorporated, validly
existing and in good standing (or having comparable active status) under the laws of
the jurisdiction of its formation.
(b) Authority for Agreement. Such Holder (i) if a limited partnership, has the
requisite limited partnership power and authority to execute and deliver this Agreement and
each Warrant Power applicable to such Holder (collectively the Transaction Documents) and
to perform its obligations hereunder and thereunder, and (ii) if a corporation, has the full corporate power and authority to execute and deliver the
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Transaction Documents and to perform its obligations hereunder and thereunder. Such Holder
has approved the Transaction Documents and the transactions contemplated hereby and has
authorized the execution, delivery and performance of the Transaction Documents and the
consummation of the transactions contemplated hereby. No other proceedings on the part of
such Holder, whether by the members, partners, shareholders, managers or otherwise, are
necessary to approve and authorize the execution, delivery and performance of the
Transaction Documents and the consummation of the transactions contemplated hereby. The
Transaction Documents to which such Holder is a party have been duly executed and delivered
by such Holder and are legal, valid and binding obligations of such Holder, enforceable
against such Holder in accordance with their respective terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors rights in general.
(c) Consents and Approvals; No Violation. Except as set forth on Schedule
3(c), the execution, delivery and performance by such Holder of the Transaction
Documents and the consummation by such Holder of the transactions contemplated hereby, do
not and will not, directly or indirectly (with or without notice or lapse of time): (i)
violate, breach, conflict with, constitute a default under, accelerate or permit the
acceleration of the performance required by (x) any of the terms of the Governing Documents
of such Holder or any resolution adopted by the managers, partners, shareholders or
directors of such Holder, if applicable, or (y) any note, debt instrument, security
agreement, mortgage or any other contract to which such Holder is a party or by which it is
bound or any material Law, judgment, decree, order, rule, regulation, permit, license or
other legal requirement of any Government Authority applicable to such Holder; (ii) give any
Government Authority or other Person the right to challenge any of the transactions
contemplated by this Agreement; or (iii) result in the creation or imposition of any Lien,
possibility of Lien, or restriction in favor of any Person upon any of the Securities or any
of the properties or assets of the Company.
(d) Holder Ownership of Company Interests. Immediately prior to the
consummation of the transactions contemplated hereby, such Holder holds of record and
beneficially the Warrants as are set forth across from such Holders name on Exhibit
A, free and clear of any Lien other than restrictions imposed by the LLC Agreement, the
Rights Agreement and federal and state securities laws. Other than the Warrants set forth
across from such Holders name on Exhibit A, the Holder has no right, title or
interest in or to (i) any Equity Interests of the Company, or (ii) any subscription,
warrant, option, convertible security, or other right (contingent or otherwise) to purchase
or otherwise acquire Equity Interests of the Company. Except as set forth on Schedule
3(d), there are no proxies, voting rights, equityholders agreements or other agreements
or understandings, to which such Holder is a party or by which such Holder is bound, with
respect to the voting or transfer of the Warrants or other ownership of Equity Interests of
the Company.
(e) Brokers. No Person has or will have, as a result of the transactions
contemplated by this Agreement, any right, interest or claim against or upon such Holder
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for any commission, fee or other compensation payable as a finder or broker because of
any act or omission by such Holder.
(f) Allocation of Purchase Price. All Holders acknowledge that they have reviewed the
allocation of the Purchase Price as set forth in Section 1(b) and have agreed to it.
(g) Disclosure. Solely with respect to such Holder, to such Holders
knowledge, no representation or warranty by such Holder contained in this Agreement contains
any untrue statement of a material fact or omits to state any material fact necessary to
make any statement herein or therein not misleading.
4. Representations of the Buyer. The Buyer represents and warrants to the Holders as
follows:
(a) Organization. The Buyer is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Michigan, and is qualified to do
business and in good standing in each jurisdiction where the character or location of its
assets or properties owned, leased or operated by it or the nature of its activities makes
such qualification necessary. The Buyer has full corporate power and authority and all
material licenses, permits and authorizations necessary to own and operate its properties
and to conduct its business as conducted.
(b) Authority for Agreement. The Buyer has full power, authority and legal
right to enter into and perform its obligations under this Agreement and to consummate the
transactions contemplated hereby. The board of directors of the Buyer has duly approved
this Agreement and the transactions contemplated hereby and have authorized the execution,
delivery and performance of this Agreement and the consummation of the transactions
contemplated hereby. No other proceedings on the part of the Buyer are necessary to approve
and authorize the execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Buyer and is a legal, valid and binding obligation of the Buyer,
enforceable against the Buyer in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors rights in general.
(c) No Violation to Result. The execution, delivery and performance by the
Buyer of this Agreement and the consummation by the Buyer of the transactions contemplated
hereby, do not and will not, directly or indirectly (with or without notice or lapse of
time): (i) violate, breach, conflict with, constitute a default under, accelerate or permit
the acceleration of the performance required by, (x) any of the terms of the Governing
Documents of the Buyer or any resolution adopted by the directors or shareholders of the
Buyer, or (y) any note, debt instrument, security agreement, mortgage or any other contract
to which the Buyer is a party or by which it is bound; or (z) any law, judgment, decree,
order, rule, regulation, permit, license or other legal requirement of any
Government Authority applicable to the Buyer except to the extent the same would have
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a material adverse effect on the Buyer; (ii) give any Government Authority or other Person the
right to challenge any of the transactions contemplated by this Agreement; or (iii) result
in the creation or imposition of any Lien, possibility of Lien, or restriction in favor of
any Person upon any of the properties or assets of the Buyer. No notice to, filing with, or
consent of, any Person is necessary in connection with the execution, delivery or
performance by the Buyer of this Agreement nor the consummation by the Buyer of the
transactions contemplated hereby.
(d) Brokers. No Person has or will have, as a result of the transactions
contemplated by this Agreement, any right, interest or claim against or upon any of the
Holders or the Buyer for any commission, fee or other compensation payable as a finder or
broker because of any act or omission by the Buyer.
(e) Accredited Investor; Investment. The Buyer is an accredited investor
within the meaning of Regulation D under the Securities Act of 1933, as amended (the
Securities Act). The Buyer acknowledges that the Warrants have not been, nor are they
contemplated to be, registered under any federal, state or local securities laws, and may
not be resold unless permitted under applicable exemptions contained in such securities laws
or upon satisfaction of the registration or qualification requirements of such securities
laws. The Buyer acknowledges and agrees that it must bear the economic risk of its
investment in the Warrants for an indefinite period of time, since such investment has not
been registered or qualified under such securities laws. The Buyer is not acquiring the
Warrants with a view to, or for sale in connection with, any distribution thereof within the
meaning of the Securities Act. Subject to its reliance on the express representations and
warranties made by the Holders in this Agreement, the Buyer, together with its shareholders,
directors and officers, is familiar with investments of the nature of the investment
contemplated under this Agreement, understands that this investment involves substantial
risks, has adequately investigated the Company and its business and has substantial
knowledge and experience in financial and business matters, such that it is capable of
evaluating, and has evaluated, the merits and risks inherent in purchasing the Warrants, and
is able to bear the economic risks of such investment. Further, the Buyer agrees that it
will truthfully and completely answer all questions, and make all covenants, that the
Company may, contemporaneously or hereafter, reasonably ask or demand for the purpose of
establishing compliance with the Securities Act and applicable state securities laws with
respect to the Buyers purchase of the Warrants.
(f) Acknowledgement Regarding Transaction. The Buyer represents that in making
the decision to enter into this Agreement and consummate the transactions contemplated
hereby, it has relied solely on its own independent investigation, the fairness opinion it
caused to be prepared, the express representations, warranties, and covenants set forth in
this Agreement and the Purchase Agreement, and the Buyers own assessment of the past,
current, and future business, federal and state regulatory requirements, and operational
requirements of the Company and its business. Accordingly, the Buyer acknowledges,
represents and warrants that, except as expressly set forth in this Agreement and the
Purchase Agreement, neither the Holders nor any officer, manager or employee of the Company has made, and the Buyer has not relied
upon, any representations and warranties of any nature whatsoever.
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(g) Access to Data. The Buyer has had an opportunity to ask questions of, and
receive answers from, the officers of the Company concerning the Companys business,
management and financial affairs, this Agreement, the Purchase Agreement, including the
Schedules and Exhibits attached hereto and thereto, and the transactions contemplated hereby
and thereby, which questions were answered to its satisfaction. The Buyer believes that it
has received all the information the Buyer considers necessary or appropriate for deciding
whether to purchase the Warrants.
(h) Disclosure. Solely with respect to the Buyer, to the Buyers knowledge, no
representation or warranty by the Buyer contained in this Agreement contains any untrue statement
of a material fact or omits to state any material fact necessary to make any statement herein or
therein not misleading.
5. Survival of Representations. All representations and warranties
of the Holders and the Buyer contained in this Agreement shall survive the execution of this
Agreement and the closing and consummation of the Purchase contemplated by the terms of this
Agreement.
6. Indemnification by each Holder (a) Each of the Holders, severally and not
jointly, covenants and agrees to save and hold the Buyer and each of its owners,
shareholders, members, managers, directors, officers, employees, agents, representatives,
successors and permitted assigns, and Affiliates (the Buyer Indemnified Parties) harmless
and indemnify the Buyer Indemnified Parties from and against any and all Losses (as defined
below) suffered, sustained, incurred or required to be paid by any of the Buyer Indemnified
Parties by reason of any breach of a representation, warranty or covenant of such Holder
made to Buyer under the terms of this Agreement or the Warrant Powers..
(b) It is understood and agreed that each Holders obligations as set forth in this
Section 6 shall survive (i) the Closing Date of this Agreement and the Purchase, and (ii)
any mutual termination of this Agreement unless this Section 6 is specifically referenced
therein. Notwithstanding any terms to the contrary in this Agreement: (a) each Holder is
only responsible for Losses resulting from such Holders breach of a representation,
warranty or covenant made by such Holder to Buyer under the terms of this Agreement or the
Warrant Power(s) delivered by such Holder, but not for any breach by any other Holders of
such other Holders representation, warranty or covenant made to Buyer under the terms of
this Agreement or the Warrant Powers delivered by such other Holders; (b) the aggregate
liability of the Holders to indemnify the Buyer pursuant to this Section 6 shall not exceed
the Purchase Price; and (c) the aggregate liability of each Holder to indemnify the Buyer
pursuant to this Section 6 shall not exceed such Holders respective pro rata portion of the
Purchase Price as set forth in Section 1(b).
(c) For purposes of this Agreement, the term Losses means all damages (including,
without limitation, amounts paid in settlement with the indemnified partys consent, which
consent may not be unreasonably withheld), losses, obligations, liabilities, claims,
deficiencies, costs and expenses (including, without limitation, reasonable attorneys
fees), penalties, fines, interest and monetary sanctions, including, without limitation,
reasonable attorneys fees and costs incurred to comply with injunctions and other court or
governmental agency orders, and other costs and expenses incident to any
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suit, action, investigation, claim or proceeding or to establish or to enforce the rights of indemnified
party to indemnification hereunder.
7. Indemnification by the Buyer
(a) The Buyer covenants and agrees to save and hold each Holder and each Holders
partners, members, managers, officers, employees, agents, representatives, successors and
permitted assigns, and Affiliates (the Holder Indemnified Parties) harmless and indemnify
the Holder Indemnified Parties from and against any and all Losses suffered, sustained,
incurred or required to be paid by any of Holder Indemnified Parties as a result of, in
connection with, relating or incidental to or by virtue of: (i) any breach of a
representation, warranty or covenant of the Buyer made to the Holders under the terms of
this Agreement.
(b) It is understood and agreed that Buyers obligations as set forth in this Section 7
shall survive (i) the Closing Date of this Agreement and the Purchase, and (ii) any mutual
termination of this Agreement unless this Section 7 is specifically referenced therein.
Notwithstanding any terms to the contrary in this Agreement, the aggregate liability of the
Buyer to indemnify the Holders pursuant to this Section 7 shall not exceed the Purchase
Price.
8. Indemnification
General. (a) In the event of the assertion or
commencement by any Person of any claim or legal proceeding with respect to which any Party
may be entitled to indemnification pursuant to Section 6 or Section 7 (the Indemnified
Party), the Indemnified Party shall have the right, at its election, to proceed with the
defense (including settlement or compromise) of such claim or legal proceeding on its own;
provided, however, that the Indemnified Party shall not settle or compromise any such claim
or legal proceeding without the prior written consent of the Party from whom indemnification
will be sought (the Indemnifying Party), which consent may not be unreasonably withheld or
delayed. The Indemnified Party shall give the Indemnifying Party prompt notice after the
Indemnified Party becomes aware of the commencement of any such claim or legal proceeding
against the Indemnified Party; provided, however, any failure on the part of the Indemnified
Party to so notify the Indemnifying Party shall not limit any of the obligations of the
Indemnifying Party, or any of the rights of any Indemnified Party, under Section 6, Section
7 or this Section 8 (except to the extent such failure materially adversely prejudices the
defense of such claim or legal proceeding). If the Indemnified Party does not elect to
proceed with the defense (including settlement or compromise) of any such claim or legal
proceeding, the Indemnifying Party may proceed with the defense of such claim or legal proceeding with counsel of its choice;
provided, however, that the Indemnifying Party may not settle or compromise
any such claim or legal proceeding without the prior written consent of the Indemnified
Party (which consent may not be unreasonably withheld or delayed). Nothing herein shall be
deemed to prevent the Indemnified Party from making a claim, and an Indemnified Party may
make a claim hereunder, for potential or contingent claims or demands; provided, the notice
of such claim sets forth the basis for any such potential or contingent claim or demand to
the extent then feasible and the Indemnified Party has reasonable grounds to believe that
such a claim or demand may be made.
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(b) Any indemnification owing to an Indemnified Party pursuant to Section 6, Section 7
or this Section 8 shall be effected by wire transfer of immediately available funds from the
Indemnifying Party to an account designated in writing by the Indemnified Party within
fifteen (15) days after the determination thereof.
(c) Except with respect to claims alleging fraud or willful misconduct, any claim or
cause of action (whether such claim sounds in tort, contract or otherwise and including
statutory rights and remedies) based upon, relating to or arising out of this Agreement or
the transactions contemplated hereby or otherwise in respect of the status, operations,
condition or ownership of any Party, or its respective businesses or properties on or prior
to the Closing Date must be brought by the claimant Party in accordance with the provisions
and applicable limitations of Section 6, Section 7 and this Section 8, which shall
constitute the sole and exclusive remedy of the claimant Party, its Affiliates, successors
and assigns and all Persons who may claim any rights through such Party, for any such claim
or cause of action.
(d) The Holders shall not be entitled to make any claim for indemnity or contribution
or any similar claim against the Company or any of its Affiliates, with respect to any
Losses for which the Holders are liable under Section 6 or this Section 8. To the extent
that the Holders may now or in the future have the right to assert any such claim against
the Company, the Holders hereby waive any such right and hereby release and forever
discharge the Company from any such claim. Notwithstanding the foregoing, it is understood
and agreed that (i) the Company will pay the Holders costs, expenses and reasonable
attorneys and other fees incurred in connection with this Agreement in the amount of $7,500
promptly following the Closing, and (ii) the Holders shall be able to make a claim for
indemnity or contribution or any similar claim against the Company with respect to any
Losses for which Holders are liable under Section 6 or this Section 8 by reason of any
breach of a representation or warranty made by the Company in the Companys consent and
waiver attached hereto as Exhibit C.
9. Definitions For purposes of this Agreement, the following terms shall have the
meanings set forth below:
Affiliate means as to any Party, any Person which directly or indirectly, is in
control of, is controlled by, or is under common control with, such Party, including any officer or
director of such Party. As to a Party who is a natural person, Affiliate means such persons spouse,
parents, siblings and lineal descendants.
Equity Interests means issued and outstanding capital stock, partnership interests,
limited liability company interests or other indicia of equity ownership (including any profits
interest).
Governing Documents means the legal document(s) by which any Person (other than an
individual) establishes its legal existence or which govern its internal affairs. For example, the
Governing Documents of a corporation would be its certificate of incorporation and bylaws, the
Governing Documents of a limited partnership would be its certificate of
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formation and limited partnership agreement and the Governing Documents of a limited liability company would be its
certificate of formation and operating agreement.
Government Authority means any government, agency, governmental department,
commission, board, bureau, court, arbitration panel or instrumentality of the United States of
America or any foreign government or any state, municipality or other political subdivision in or
of any of the foregoing (whether now or hereafter constituted and/or existing) and any court,
agency, instrumentality, regulatory commission (including the FDA) or other entity exercising
executive, legislative, judicial, regulatory or administrative functions of or pertaining to
government.
Laws means all laws, statutes, ordinances, rules and regulations of any Government
Authority, including all orders, judgments, injunctions, awards, decisions or decrees of any court
having effect of law.
Lien means any claim, lien (statutory or otherwise), pledge, hypothecation,
assignment, charge, easement, security interest, right-of-way, encumbrance, mortgage or other right
(including, with respect to the Warrants, any preemptive right, right of first refusal, option,
put, call or other restriction on transfer).
LLC Agreement means that certain Second Amended and Restated Limited Liability
Company Agreement of the Company dated effective March 31, 2009.
Person means any person, limited liability company, partnership, trust,
unincorporated organization, corporation, association, joint stock company, business, group,
Government Authority or other entity.
Rights Agreement means that certain Investors Rights Agreement dated June 1, 2004
entered into by and among the Company and each of its members.
10. Assignment. This Agreement shall not be assigned by Holders or the Buyer without
the express written consent of the other parties.
11. Entire Agreement. This Agreement constitutes the entire agreement between the
Holders and the Buyer for only this transaction and supersedes any prior understandings,
agreements, or representations, written or oral, to the extent they relate to the Purchase.
12. Severability. Any term or provision of this Agreement which shall prove to be
invalid, void or illegal shall in no way affect, impair or invalidate any other term or provision
of this Agreement and all such other terms and provisions shall remain in full force and effect.
13. Attorneys Fees. In the event any party to this Agreement is required to bring an
action at law or in equity against any other party to enforce any of the terms of this Agreement,
the losing party hereby agrees to pay to the prevailing party all of its reasonable attorneys
fees.
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14. Preamble (WHEREAS) Clauses. The preamble (WHEREAS) clauses set forth above are
incorporated and made a part of this Agreement as though restated fully herein.
15. Section Headings. The Section headings used in this Agreement are for convenience
only, are not otherwise a part of this Agreement, and shall not be used in construing or
interpreting this Agreement.
16. Heirs, Successors and Assigns. This Agreement shall bind and inure to the benefit
of the parties hereto and their respective heirs, successors and permitted assigns.
17. No Third-Party Beneficiaries. This Agreement shall not confer any rights or
remedies upon any person or entity other than the Holders and the Buyer and their respective heirs,
successors and permitted assigns.
18. Multiple Counterparts. This Agreement may be executed in any number of
counterparts with the same effect as if all signatories had signed the same document. All
counterparts must be construed together to constitute one and the same instrument. This Agreement
may be transmitted and signed by facsimile. The effectiveness of any such documents and signatures
shall, subject to applicable law, have the same force and effect as manually-signed originals and
shall be binding on all parties hereto. Any party hereto may also require that any such documents
and signatures be confirmed by a manually-signed original; provided, that, the failure to request or deliver the
same shall not limit the effectiveness of any facsimile document or signature.
19. Further Actions. The Holders and the Buyer shall each execute such documents and
take such additional action as may be reasonably requested by the other to carry out the terms,
provisions and purposes of this Agreement.
20. Notices. All notices, requests, consents, waivers, and other communications
required or permitted to be given hereunder shall be in writing and shall be deemed to have been
duly given (a) if personally delivered, upon delivery or refusal of delivery; (b) if mailed by
registered or certified United States mail, return receipt requested, postage prepaid, upon
delivery or refusal of delivery; (c) if sent via facsimile or email, upon confirmation of transfer
or delivery, as applicable, or (d) if sent by a nationally recognized overnight delivery service,
upon delivery or refusal of delivery. All notices, consents, waivers, or other communications
required or permitted to be given hereunder shall be addressed as follows:
If to the Holders (or any individual Holder):
If to Convergent Capital Partners I, L.P.:
Convergent Capital Partners
505 N HWY 169, Suite 245
Minneapolis, MN 55441
Attention: Keith Bares
Facsimile: (763) 432-4085
Email: KBares@cvcap.com
505 N HWY 169, Suite 245
Minneapolis, MN 55441
Attention: Keith Bares
Facsimile: (763) 432-4085
Email: KBares@cvcap.com
11
and
If to Main Street Equity Interests, Inc.:
Main Street Equity Interests, Inc.
1300 Post Oak Blvd, Suite 800
Houston, TX 77056
Attention: Dwayne L. Hyzak
Facsimile: (713) 350-6042
Email: dhyzak@mainstcapital.com
1300 Post Oak Blvd, Suite 800
Houston, TX 77056
Attention: Dwayne L. Hyzak
Facsimile: (713) 350-6042
Email: dhyzak@mainstcapital.com
and
If to Medallion Capital, Inc.:
Medallion Capital, Inc.
3000 County Road 42 West, Suite 301
Burnsville, MN 55337-4827
Attention: Paul Meyering
Facsimile: (952) 831-2945
Email: pmeyering@medallioncapital.com
3000 County Road 42 West, Suite 301
Burnsville, MN 55337-4827
Attention: Paul Meyering
Facsimile: (952) 831-2945
Email: pmeyering@medallioncapital.com
and
If to Pacific Mezzanine Fund, L.P.:
Pacific Mezzanine Fund, L.P.
2 Theatre Square, Suite #210
Orinda, CA 94563
Attention: W. Brad Winegar
Facsimile: (925) 253-2901
Email: wbw@pacmezz.com
2 Theatre Square, Suite #210
Orinda, CA 94563
Attention: W. Brad Winegar
Facsimile: (925) 253-2901
Email: wbw@pacmezz.com
If to the Buyer:
United American Healthcare Corporation
300 River Place, Suite 4950
Detroit, Michigan 48207-4291
Attention: William C. Brooks
Facsimile: 313-393-3394
Email: wbrooks@uahc.com
300 River Place, Suite 4950
Detroit, Michigan 48207-4291
Attention: William C. Brooks
Facsimile: 313-393-3394
Email: wbrooks@uahc.com
with a copy to (which shall not constitute notice):
Honigman Miller Schwartz and Cohn LLP
660 Woodward Ave
2290 First National Building
660 Woodward Ave
2290 First National Building
Attention: Alex L. Parrish
Facsimile: 313.465.7513
Email: aparrish@honigman.com
Facsimile: 313.465.7513
Email: aparrish@honigman.com
12
21. Governing Law. All issues and questions concerning the construction, validity,
enforcement and interpretation of this Agreement and the Schedules and Exhibits hereto shall be
governed by, and construed in accordance with, the Laws of the State of Michigan without giving
effect to any choice of law or conflict of law rules or provisions (whether of the State of
Michigan or any other jurisdiction) that would cause the application of the Laws of any
jurisdiction other than the State of Michigan. In furtherance of the foregoing, the internal Law
of the State of Michigan shall control the interpretation and construction of this Agreement (and
all Schedules and Exhibits hereto), even though under that jurisdictions choice of law or conflict
of law analysis, the substantive Law of some other jurisdiction would ordinarily apply.
22. Jurisdiction Each of the Holders and the Buyer submits to the jurisdiction of any
state or federal court sitting in the State of Michigan in any proceeding arising out of or
relating to this Agreement and agrees that all claims in respect of the proceeding may be heard and
determined in any such court and hereby expressly submits to the personal jurisdiction and venue of
such court for the purposes hereof and expressly waives any claim of improper venue and any claim
that such courts are an inconvenient forum. Each of the Holders and the Buyer hereby irrevocably
consent to the service of process of any of the aforementioned courts in any such proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to its address set
forth in Section 20, such service to become effective ten (10) days after such mailing.
23. Amendment and Modification. This Agreement may not be amended, modified or
terminated orally. No amendment, modification or termination shall be valid unless signed, in
writing, by the party against whom the same is sought to be enforced.
[Signatures appear on the following page]
13
IN WITNESS WHEREOF, the Holders and the Buyer have caused this Warrant Purchase Agreement to
be duly executed on the date first set forth above.
THE BUYER: United American Healthcare Corporation a Michigan corporation |
||||
By: | /s/ William Brooks | |||
Name: William Brooks | ||||
Title: President & Chief Executive Officer | ||||
THE HOLDERS: Pacific Mezzanine Fund, L.P. |
||||
By: | Pacific Private Capital, LLC | |||
Its: | General Partner | |||
By: | /s/ W. Brad Winegar | |||
Name: W. Brad Winegar | ||||
Title: Managing Director | ||||
Main Street Equity Interests, Inc. |
||||
By: | /s/ Dwayne Hyzak | |||
Name: Dwayne Hyzak | ||||
Title: Vice President | ||||
Medallion Capital, Inc. |
||||
By: | /s/ Paul Meyering | |||
Name: Paul Meyering | ||||
Title: President | ||||
Convergent Capital Partners I, L.P. |
||||
By: | Convergent Capital, LLC | |||
Its: | General Partner | |||
By: | /s/ Keith S. Bares | |||
Name: Keith S. Bares | ||||
Title: Manager | ||||
[Signature Page to Pulse Warrant Purchase Agreement]
EXHIBIT A
Warrant No. | Effective Date | Holder | Units | |||||
No. 4 | June 1, 2004 | Convergent Capital Partners I, L.P. |
205,859 | |||||
No. 5 | June 1, 2004 | Main Street Equity Interests, Inc.
(previously assigned from Main
Street Mezzanine Fund, L.P.) (a) |
454,102 | |||||
No. 6 | June 1, 2004 | Medallion Capital, Inc. |
254,297 | |||||
No. 7 | June 1, 2004 | Pacific Mezzanine Fund, L.P. |
454,102 | |||||
No. 9 | June 1, 2008 | Pacific Mezzanine Fund, L.P. |
54,920 | |||||
No. 10 | June 1, 2008 | Convergent Capital Partners I, L.P. |
24,897 | |||||
No. 11 | June 1, 2008 | Main Street Equity Interests, Inc.
(previously assigned from Main
Street Mezzanine Fund, L.P.) (a) |
54,920 | |||||
TOTAL | 1,503,097 | |||||||
Notes:
(a) | As noted in the Warrant Purchase Agreement to which this Exhibit A is attached, Main Street Equity Interests, Inc. previously acquired Warrant Nos. 5 and 11 from its affiliate, Main Street Mezzanine Fund, L.P., on September 28, 2009. |