THIS ASSET PURCHASE AGREEMENT
(this “ Agreement
”) is entered into as of July 31, 2008, by and among
BLUERIDGE SOLUTIONS, L.C. , a Virginia limited liability
company d/b/a/ eDonor (“ Seller ”), and
GLOBAL MED TECHNOLOGIES, INC. , a Colorado corporation
(“ Buyer ”). Seller and Buyer are collectively
referred to herein as the “ Parties ” and
individually as a “ Party .”
A. Seller is engaged in providing a
blood donor management platform to blood banks and other blood
collection services (the “ Business ”);
and
B. Buyer desires to purchase
substantially all of the assets used by Seller in the Business and
Seller desires to sell such assets of the Business to Buyer on the
terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual representations, warranties, covenants and agreements
set forth below and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
Parties hereto agree as follows.
ARTICLE I
TRANSFER OF ASSETS
Section 1.01 Defined Terms
. Capitalized terms
used without definition have the meanings set forth in Article
IX .
Section 1.02 Transfer of Assets; Excluded
Assets .
(a) Upon the terms and subject to the conditions of this
Agreement and in reliance upon the representations, warranties and
agreements herein set forth, the Parties agree that the Buyer shall
purchase from Seller and Seller shall sell to Buyer, at the closing
of the transactions contemplated by this Agreement (the
“ Closing
”), all of the Transferred
Assets free and clear of all Liens except for the Permitted
Liens.
(b) Notwithstanding any other
provision of this Agreement, Seller shall retain and shall not
transfer to Buyer the assets listed on Schedule 1.02(b)
(collectively, the “ Excluded Assets
”).
Section 1.03 Assumption of
Liabilities . Upon
the terms and subject to the conditions of this Agreement and in
reliance upon the representations, warranties and agreements herein
set forth, the Parties agree that the Buyer shall assume, effective
as of the Closing Date, and in due course timely perform, pay and
discharge each of the liabilities set forth on Schedule 1.03
(collectively, the “ Assumed Liabilities
”).
Section 1.04 Excluded
Liabilities . Buyer
does not hereby assume, and shall not at any time hereafter
(including on or after the Closing Date (as defined below)) become
liable for, any of the Liabilities of Seller or any of its
Affiliates other than the Assumed Liabilities (collectively, the
“ Excluded Liabilities ”). The Excluded
Liabilities shall include, without limitation, the following
Liabilities:
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(a)
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any Liability
whether presently in existence or arising after the Closing Date
relating to an Excluded Asset;
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(b)
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subject to
Section 5.04 , any Liability whether presently in existence
or arising after the Closing Date relating to fees, commissions or
expenses owed to any broker, finder, investment banker, attorney,
accountant or other intermediary or advisor employed by Seller in
connection with the transactions contemplated hereby;
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(c)
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any Liability the existence of which
constitutes a breach of any representation or warranty of Seller
hereunder;
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(d)
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any Liability
for accounts payable of the Seller in existence as of the Closing
Date;
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(e)
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except for the
Assumed Liabilities, any contingent Liabilities of Seller related
toa ny transactions by Seller prior to the Closing Date;
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(f)
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except as
otherwise provided herein, any Liability for Taxes of Seller
(including, without limitation, any transfer and/or sales taxes and
any other Taxes relating to Seller’s operations prior to the
Closing Date that may be imposed upon Buyer after the Closing
Date);
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(g)
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any Liability
arising under any of Seller’s Benefit Plans or any benefit
plans of employees leased to Seller; and
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(h)
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any Liability
of Seller arising under this Agreement.
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Section
1.05
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Payment
of Purchase Price; Closing .
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(a)
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In
consideration for the Transferred Assets, in addition to
Buyer’s assumption of the Assumed Liabilities, Buyer shall
pay to Seller Five Million Dollars ($5,000,000) (the “
Purchase
Price ”), which
Purchase Price shall consist of:
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(i)
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Three Million
Five Hundred Thousand Dollars ($3,500,000), payable upon Closing;
and
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(ii)
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Shares of
restricted common stock of Global Med with an aggregate value of
One Million Five Hundred Thousand Dollars ($1,500,000) (the “
Shares ”), which Shares shall be subject to the
restrictions set forth in Section 1.07 below and issued at
the price as determined in Section 1.08
below.
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(b)
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At the Closing,
Buyer shall:
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(i)
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make a cash
payment to Seller in the amount of Three Million Five Hundred
Thousand Dollars ($3,500,000) (the “ Cash Closing
Payment ”);
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(ii)
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deliver to the
Seller, free and clear of all Liens, the stock certificates
representing the Shares, in such denominations as the Seller may
request, dated the Closing Date, in the name of the Seller;
and
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(iii)
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deliver to
Michael Pandelakis and Andrew Pandelakis fully executed employment
agreements in the forms attached hereto as Exhibits A
and B (together, the “
Employment Agreements
”).
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(c) At the Closing, each Party shall deliver or cause to be
delivered to the other Party such bills of sale, certificates of
title, endorsements, agreements, consents, assignments and other
good and sufficient instruments of conveyance and assignment of
such rights as the Parties and their respective counsel shall deem
reasonably necessary or appropriate to vest in Buyer all of
Seller’s right, title and interest in, to and under the
Transferred Assets and to consummate the transactions contemplated
by this Agreement.
(d) At the Closing, each of Buyer and Seller shall provide
the other with a fully signed resolution authorizing its actions
hereunder.
(e) The Closing shall be held, unless otherwise agreed by the
Parties hereto, within two (2) Business Days of the satisfaction of the
terms of Article VII hereof (the “ Closing
Date ”).
Section
1.06 Purchase Price Allocation .
(a) The Parties hereto
agree that the Purchase Price shall be allocated among the
Transferred Assets for purposes of complying with Section 1060 of
the Code and making any required filings under state or local law
as follows:
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Cash
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$
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191,000
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Fixed
Assets
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$
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209,000
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Goodwill
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$
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4,600,000
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Total
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$
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5,000,000
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(b) Buyer and Seller shall report the tax consequences
of the transactions in a manner consistent with the allocations
made pursuant to this Section 1.06 and shall not take any
position inconsistent therewith.
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Section
1.07
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Restrictions on Shares
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(a) For a period of one (1) year from the Closing
Date, Seller shall not be permitted to trade, sell, or
otherwise transfer any or all of the Shares.
(b) After the one (1) year anniversary of the Closing Date,
Seller shall be permitted to trade, sell, or otherwise transfer the
Shares, subject to the following restrictions:
(i) The maximum number of Shares that may be sold per day on the
public market shall not exceed twenty percent (20%) of the daily
average trading volume for the previous ten (10) trading days;
and
(ii) The maximum number of Shares that may be sold per day in
private transactions shall not exceed two hundred thousand
(200,000) Shares.
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(c) If and when Seller decides to sell the Shares on the
public market, Seller shall, in its sole discretion, consider using
Noble International Investments, Inc. (“ Noble
”) to execute such sell orders; provided, that Seller shall
have no obligation to consult with Noble prior to selling Shares on
the public market or engage Noble to execute the trade orders for
such public market sales.
(d) The restrictions in this Section 1.07 shall not apply to
(i) any transfer of the Shares by operation of law, such as
bankruptcy, or (ii) any transfer of Shares to Buyer pursuant
to Article VII
.
Section 1.08 Determination
of Share Price . The
number of Shares (rounded to the nearest whole Share) to be issued
to Seller pursuant to Section 1.05 hereof shall be equal to
(a) One Million Five Hundred Thousand Dollars ($1,500,000) divided
by (b) the average closing market price of Global Med common stock
(symbol GLOB.OB) for the previous ten (10) trading days prior to
the Closing Date.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
SELLER
As
an inducement to Buyer to enter into this Agreement and to
consummate the transactions contemplated herein, Seller represents
and warrants to Buyer that, as of the date of this
Agreement:
Section 2.01 Existence,
Good Standing and Power . Seller is a limited liability company duly
organized, validly existing and in good standing under the laws of
the State of Virginia, and has all organizational power and all
governmental licenses, authorizations, consents, approvals and
qualifications required to carry on its business as now conducted
and to own and operate its assets as now owned and operated, except
where, in the aggregate, the failure to have such licenses,
authorizations, consents, approvals and qualifications would not
have a Seller Material Adverse Effect.
Section 2.02 Authorization
and Enforceability . Seller has the full right, power and authority
to enter into this Agreement and all other Transaction Documents to
which it is a party and to consummate the transactions contemplated
hereby and thereby, including the transfer, conveyance and sale of
the Transferred Assets to Buyer. This Agreement has been duly and
validly executed and delivered by Seller and constitutes the legal,
valid and binding agreement of Seller, enforceable against Seller
in accordance with the terms of this Agreement, except as may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors’ rights
generally and subject to general principles of equity.
Section 2.03
Non-Contravention . The execution, delivery and performance by
Seller of this Agreement and all other Transaction Documents to
which it is a party does not and will not (a) contravene or
conflict with the articles of organization or operating agreement
of Seller, (b) contravene or conflict with or constitute a
violation of any provision of any Applicable Law binding upon or
applicable to Seller, the Business or the Transferred Assets, (c)
assuming the receipt of all of the Contract consents set forth in
Schedule 2.04 , constitute a default under or give rise to
any right of termination, cancellation or acceleration of, any
material Contract or any permit or similar authorization relating
to Seller or the Transferred Assets by which Seller or the
Transferred Assets may be bound, or (d) result in the creation or
imposition of any Lien on any Transferred Assets. This Agreement,
the other Transaction Documents, and the transactions contemplated
hereby and thereby have been approved by the Members of the
Seller.
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Section 2.04
Required Approvals and Consents . Schedule 2.04 lists each Contract to be
assigned to Buyer and denotes those contracts for which the consent
of the other party or parties thereto must be obtained by Seller by
virtue of the execution and delivery of this Agreement or the other
Transaction Documents or the consummation of the transactions
contemplated hereby and thereby to avoid the invalidity of such
Contract, the termination thereof, a breach or default thereunder
or any other change or modification to the terms thereof including
the assignment thereof to Buyer.
Section 2.05 Undisclosed Liabilities
. There are no
Liabilities relating to the Transferred Assets except for those
Liabilities set forth on Schedules 1.03 and 2.15
.
Section 2.06
Absence of
Certain Changes . Since January 31, 2008, the Business has been
conducted in the ordinary course and there has not been, except as
set forth on Schedule 2.06 :
(a) any event, occurrence, development or state of circumstances or
facts or change in Seller affecting Seller or the Business that has
had or that may be reasonably expected to have, either alone or
together with all such events, occurrences, developments, states of
circumstances or facts or changes, a Seller Material Adverse
Effect;
(b) any creation, assumption or sufferance of the existence
of any Lien on any of the Transferred Assets; or
(c) any material transaction or commitment made, or any
material Contract entered into, by Seller, or any waiver,
amendment, termination or cancellation of any material Contract by
Seller, or any relinquishment of any rights thereunder by Seller,
or of any other material right or debt owed to Seller, other than
in each such case actions taken in the ordinary course of business
consistent with past practice.
Section
2.07 Tangible Assets .
(a) Seller does not own any real property. Schedule 2.07(a)
sets forth a true and complete list of all personal property leases
(i) to which Seller is a party or by which Seller is bound and (ii)
are to be assumed by Buyer pursuant to the terms hereof or
otherwise renegotiated by Buyer (the “ Personal Property
Leases ”).
(b) With respect to the Personal Property Leases, there exist no
defaults by Seller or any default or, to the Knowledge of Seller,
threatened default by any lessor or third party thereunder, that
has materially affected or could reasonably be expected to
materially affect the rights and privileges thereunder of Seller.
The consummation of the transactions contemplated hereby will not
result in a breach of, or give any Person the right to terminate,
any Personal Property Lease or result in any material adverse
change in the terms of any Personal Property Lease.
(c) Seller has a good and valid leasehold interest in the personal
property subject to the Personal Property Leases, and good and
valid title to its Transferred Assets. Seller holds title to each
Transferred Asset free and clear of all Liens, except for (i) Liens
set forth on Schedule 2.07(c) , (ii) Liens for current taxes
not yet due and payable, and (iii) such imperfections of title,
easements, pledges, charges and encumbrances, if any, that do not,
in the aggregate, have a Seller Material Adverse Effect
(collectively, the “ Permitted Liens ”);
provided, that this sentence shall not apply to any intellectual
property used by Seller in connection with the Business.
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(d) Seller has not received written notice of, and, to the
Knowledge of Seller, is not aware of, any pending zoning or other
land-use regulation proceedings or any proposed change in any
Applicable Laws that could reasonably be expected to detrimentally
affect the use or operation of the Business.
(e) The Transferred Assets shall be in operating condition on
the Closing Date, subject to normal wear and tear.
(f) The Transferred Assets constitute all of the assets
Seller required to operate the Business as conducted by it prior to
the date hereof.
Section 2.08 Affiliates
. Except as set forth on
Schedule 2.08 , neither Seller nor any officers or directors
of Seller (or any immediate family member of any such officer or
director) now has or at any time had, either directly or
indirectly, an equity or debt interest in any Person (other than
shares in a public company) that furnishes or sells or during such
period furnished or sold services or products to Seller or
purchases or during such period purchased from Seller any goods or
services, or otherwise does or during such period did business with
Seller.
Section 2.09 Litigation
. There are no actions,
suits, hearings, arbitrations, proceedings (public or private) or
governmental investigations that have been brought by or against
any Governmental Authority or any other Person (collectively,
“ Proceedings ”) pending or, to the Knowledge of
Seller, threatened against or affecting Seller, the Business or the
Transferred Assets or which seek to enjoin or rescind the
transactions contemplated by this Agreement or otherwise prevent
Seller from complying with the terms and provisions of this
Agreement. There are no existing orders, judgments or decrees of
any Governmental Authority affecting any of Seller, the Business or
the Transferred Assets.
Section 2.10 Compliance with Applicable Laws
. The operation of the
Business has not violatedor infringed, and does not violate or
infringe, any material Applicable Law.
Section 2.11
Intellectual
Property .
(a) Schedule 2.11 sets forth a complete and
correct list of each patent, pending patent application, trademark,
trade name, or registrations or pending applications thereof,
copyright or copyright registration or application for copyright
registration, and each license or licensing agreement for any of
the foregoing of the Seller (collectively, the “
Intellectual Property
Rights ”).
(b) Seller has not been a party to any Proceeding nor is
any Proceeding threatened in writing that involved or may involve a
claim of infringement by any Person (including any Governmental
Authority) of any Intellectual Property Right. No Intellectual
Property Right is subject to any outstanding order, judgment,
decree, stipulation or agreement restricting the use thereof by
Seller, or restricting the licensing thereof by Seller to any
Person. The use of the Intellectual Property Rights and the conduct
of the Business do not conflict with, infringe upon or violate any
patent, patent license, patent application, trademark, tradename,
trademark or tradename registration, copyright, copyright
registration, service mark, brand mark or brand name or any pending
application relating thereto, or any trade secret or any other
intellectual property, of any Person conducting business in the
United States.
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(c) Seller either owns the entire right, title and interest in, to
and under, or has acquired in connection with the acquisition of
Equipment or Inventory an implied or express license to use, any
and all inventions, processes, computer programs, know-how,
formulae, trade secrets, patents, chip designs, mask works,
trademarks, tradenames, brand names and copyrights that are
necessary for the conduct of the Business in the manner that the
Business has heretofore been conducted. No other inventions,
processes, computer programs, know-how, formulae, trade secrets,
patents, chip designs, mask works, trademarks, tradenames, brand
names, copyrights, licenses or applications for any of the
foregoing are necessary for the unimpaired continued operation of
the Business in the manner that the Business has heretofore been
conducted.
Section
2.12 Insurance .
(a) Schedule 2.12 sets forth a complete and
correct list of all material insurance policies of any kind
currently in force with respect to Seller or the Transferred Assets
(collectively, the “ Insurance Policies ”). Schedule 2.12 sets forth for
each Insurance Policy the type of coverage, the name of the
insureds, the insurer, the premium, the expiration date, the period
to which it relates, the deductibles and loss retention amounts and
the amounts of coverage. No cancellation or material amendment or
increase of premiums is pending or, to the Knowledge of Seller,
threatened with respect to any of the Insurance
Policies.
(b) No insurance company that issued any Insurance Policy, Board of
Fire Underwriters or similar body, or Governmental Authority has
issued a written recommendation or requirement for any material
changes in the conduct of the Business or any repairs or other work
to be done on or with respect to any material amount of Transferred
Assets.
Section
2.13 Tax Matters .
(a) Except as has been disclosed in Schedule 2.13 , all Tax
Returns related to the Transferred Assets required to be filed by
Seller have been timely filed and all such returns are true and
correct in all material respects;
(b) There are no Taxes of Seller or deficiencies in Taxes or claims
for Taxes against Seller, related to the Transferred Assets, for
any taxable period prior to the Closing that could become a
liability of, or which could be assessed against or collected from,
Buyer after the Closing Date (including any Taxes relating to
Buyer’s purchase of the Transferred Assets); and
(c) There are no Liens against any of the Transferred Assets for
Taxes other than Liens for Taxes not yet due and
payable.
Section 2.14 Advisory Fees
. There is no investment
banker, broker, finder or other intermediary or advisor that has
been retained by or is authorized to act on behalf of Seller, who
might be entitled to any fee, commission or reimbursement of
expenses from Buyer upon consummation of the transactions
contemplated by this Agreement.
Section 2.15 Material
Disclosures . Except
as set forth on Schedule 2.15
, no statement, representation or
warranty made by Seller in this Agreement or in any certificate,
statement, list, schedule or other document furnished or to be
furnished to Buyer hereunder contains, or when so furnished will
contain, any untrue statement of a material fact, or fails to
state, or when so furnished will fail to state, a material fact
necessary to make the statements contained herein or therein, in
light of the circumstances in which they are made, not
misleading.
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Section 2.16 Seller’s
Advisors . TO THE
EXTENT THAT SELLER HAS DEEMED IT APPROPRIATE TO DO SO, SELLER HAS
RETAINED, AND RELIED UPON, APPROPRIATE PROFESSIONAL ADVICE
REGARDING THE TAX, ACCOUNTING, LEGAL, INVESTMENT AND FINANCIAL
MERITS AND CONSEQUENCES OF AN INVESTMENT IN THE SHARES. SELLER
ACKNOWLEDGES THAT THE LAW FIRM OF KIRKPATRICK & LOCKHART
PRESTON GATES ELLIS LLP HAS SOLELY REPRESENTED BUYER IN CONNECTION
WITH THIS TRANSACTION AND ACCORDINGLY SELLER HAS RELIED SOLELY ON
THE PROFESSIONAL ADVICE OF ITS OWN COUNSEL WITH RESPECT TO THE
TRANSACTION SET FORTH HEREIN.
Section 2.17 Seller’s Access to Global
Med’s Documents and Independent Review and Decision
. IN PURCHASING THE
SHARES, SELLER HAS RELIED UPON THE RESULTS OF ITS OWN INDEPENDENT
REVIEW OF THE INFORMATION PROVIDED BY BUYER UPON THE REQUEST OF
SELLER AND THE INFORMATION FILED BY BUYER WITH THE SECURITIES AND
EXCHANGE COMMISSION. SELLER HAS BEEN PROVIDED ACCESS TO ANY AND ALL
DOCUMENTS AND/OR OTHER INFORMATION DEEMED NECESSARY BY SELLER AND
ITS ADVISORS, INCLUDING TAX AND LEGAL ADVISORS, TO THE EXTENT SUCH
DOCUMENTS OR INFORMATION WERE RELEVANT TO THIS TRANSACTION AND WERE
POSSESSED OR OBTAINABLE BY GLOBAL MED WITHOUT UNREASONABLE EFFORT
OR EXPENSE, IN ORDER TO MAKE AN INDEPENDENT, WELL-INFORMED
INVESTMENT DECISION REGARDING GLOBAL MED AND THE SHARES. SELLER AND
ITS ADVISORS, INCLUDING TAX AND LEGAL ADVISORS, HAVE HAD AN
OPPORTUNITY TO ASK QUESTIONS OF AND RECEIVE ANSWERS FROM A PERSON,
OR PERSONS ACTING ON GLOBAL MED’S BEHALF, CONCERNING THE
TERMS AND CONDITIONS OF THE INVESTMENT CONTEMPLATED HEREBY. ALL
SUCH QUESTIONS HAVE BEEN ANSWERED TO THE SELLER’S FULL
SATISFACTION.
Section 2.18 Seller’s Purpose
. Seller (a) is acquiring
the Shares for its own account, for investment only, and not with a
view toward the resale or distribution thereof; (b) has, alone or
together with Seller’s advisors, substantial knowledge and
experience in business and financial matters, including the
business operated by Global Med, which enables Seller to evaluate
the merits and risks of making investment decisions of the type
contemplated hereby; (c) has the ability to bear the economic risk
of this investment and the ability, at the present time, to afford
a complete loss of such investment; and (d) has adequate means of
providing for its current needs and possible business
contingencies, without a need for liquidity of this
investment.
Section 2.19 Seller’s Risk of
Investment . Seller
is aware that the Shares are a speculative investment with no
assurance that Global Med will be successful or, if successful,
that such success will result in payments to Seller or realization
of gain by the Seller’s disposition, if any. Seller
understands that an investment in Global Med represents a high
degree of risk and is suitable only for those persons having a
substantial net worth, and who can afford to bear such risk. Seller
has carefully considered the risk factors and tax consequences
attendant to the purchase of Shares and has consulted with its own
legal, tax and financial advisors with respect thereto. Seller has
read and understood all of the information provided to Seller at
its request by the Buyer and accepts the same knowingly and
willingly.
Section 2.20 Legend
. All
certificates representing the Shares shall bear
legends stating in substance:
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THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDERTHE SECURITIES ACT OF
1933, AS AMENDED. THEY MAY NOT
BE SOLD, OFFERED FOR SALE, PLEDGED
OR HYPOTHECATEDIN THE ABSENCE OF A REGISTRATION STATEMENT IN
EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN
OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION
THAT SUCH REGISTRATION IS NOT
REQUIRED, OR UNLESS OLD PURSUANT TO AN AVAILABLE
EXEMPTION FROM REGISTRATION
UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
BUYER
As
an inducement to Seller to enter into this Agreement and to
consummate the transactions contemplated herein, Buyer represents
and warrants to Seller that, as of the date of this
Agreement:
Section 3.01 Organization and
Existence . Buyer is
a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Colorado and has all power
and all governmental licenses, authorizations, consents, approvals
and qualifications required to carry on its business as now
conducted and to own and operate its assets as now owned and
operated except where, in the aggregate, the failure to have such
licenses, authorizations, consents, approvals and qualifications
would not have a Buyer Material Adverse Effect.
Section 3.02 Authorization and
Enforceability . Buyer has full right, power and authority to
enter into this Agreement and all other Transaction Documents to
which it is a party, and to consummate the transactions
contemplated hereby and thereby. This Agreement and all other
Transaction Documents to which Buyer is a party have been duly and
validly executed and delivered by Buyer and constitute the legal,
valid and binding agreement of Buyer enforceable against it in
accordance with the terms of this Agreement, except as may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors’ rights
generally and subject to general principles of equity.
Section 3.03 Required Approvals and
Consents . There are
no governmental or other registrations, filings, applications,
notices, transfers, consents, approvals, orders, qualifications or
waivers required to be obtained or made by Buyer by virtue of its
execution and delivery of this Agreement or the other Transaction
Documents or its consummation of the transactions contemplated
hereby or thereby.
Section 3.04
Non-Contravention . The execution, delivery and performance by
Buyer of this Agreement and the other Transaction Documents to
which it is a party does not and will not (a) contravene or
conflict with the Articles of Incorporation or Bylaws of Buyer, (b)
contravene or conflict with or constitute a violation of any
provision of any Applicable Law binding upon or applicable to
Buyer, its businesses or its assets, (c) constitute a default under
or give rise to any right of termination, cancellation or
acceleration of, any material Contract or any permit or similar
authorization relating to Buyer or its assets by which Buyer or its
assets may be bound, or (d) result in the creation or imposition of
any Lien on any of Buyer’s assets. This Agreement and the
other Transaction Documents and the transactions contemplated
hereby and thereby have been approved by the Board of Directors of
Buyer.
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Section 3.05
Advisory Fees . There is no investment banker, broker, finder or
other intermediary or advisor that has been retained by or is
authorized to act on behalf of Buyer who might be entitled to any
fee, commission or reimbursement of expenses from Seller or the
Members upon consummation of the transactions contemplated by this
Agreement.
Section
3.06 No Liabilities . Documents, Buyer has no Liabilities.
Other than the Liabilities
contemplated by the Transaction
Section 3.07 Litigation . There are no
Proceedings pending or threatened in writing against Buyer, or its
businesses or its assets or which seek to enjoin or rescind the
transactions contemplated by this Agreement or otherwise prevent
Buyer from complying with the terms and provisions of this
Agreement. There are no existing orders, judgments or decrees of
any Governmental Authority affecting any of Buyer or its respective
businesses or its assets.
Section 3.08 Capitalization . The authorized
capital of Buyer is set forth in the Buyer’s Form 10-K as
filed with the Securities and Exchange Commission (“
SEC
”). Except as set forth in
Buyer’s filings with the SEC, there are no options, rights,
warrants, calls or other outstanding securities convertible into or
exercisable or