Unassociated Document
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
13D
Under
the Securities Exchange Act of 1934
(Amendment
No. 2)
(Name of
Issuer)
Common
Stock, $0.01 par value
|
(Title of
Class of Securities)
(CUSIP
Number)
Albert
S. Waxman
Psilos
Group Managers, LLC
140
Broadway, 51st
Floor
New
York, NY 10005
|
212-242-8844
|
(Name,
Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
(Date of
Event which Requires Filing of this Statement)
If the
filing person has previously filed a statement on Schedule 13G to report the
acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box.
¨
Note:
Schedules filed in paper format shall include a signed original and five copies
of the schedule, including all exhibits. See Rule 13d-7 for other
parties to whom copies are to be sent.
*The
remainder of this cover page shall be filled out for a reporting person’s
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The
information required on the remainder of this cover page shall not be deemed to
be ‘‘filed’’ for the purpose of Section 18 of the Securities Exchange Act of
1934 (‘‘Act’’) or otherwise subject to the liabilities of that section of the
Act but shall be subject to all other provisions of the Act (however, see the
Notes).
SEC 1746
(12-91)
CUSIP No. 702915109 |
SCHEDULE
13D
|
1
|
NAMES
OF REPORTING PERSONS
Psilos
Group Partners II, L.P.
|
2
|
CHECK THE APPROPRIATE BOX IF A
MEMBER OF A GROUP*
(a)
(b) x
Joint
Filing
|
3
|
SEC
USE ONLY
|
4
|
SOURCE
OF FUNDS*
00
|
5
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO
ITEM 2(d) or 2(e) ¨
|
6
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
Delaware
|
NUMBER
OF
|
7
|
SOLE
VOTING POWER
13,265,742
|
|
SHARES
BENEFICIALLY
OWNED
BY
|
8
|
SHARED
VOTING POWER
0
|
|
EACH
REPORTING
PERSON
|
9
|
SOLE
DISPOSITIVE POWER
13,265,742
|
|
WITH
|
10
|
SHARED
DISPOSITIVE POWER
0
|
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
13,265,742
|
|
12
|
CHECK BOX IF THE AGGREGATE
AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* ¨
|
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.1%
|
|
14
|
TYPE
OF REPORTING PERSON
PN
|
|
CUSIP No. 702915109 |
SCHEDULE
13D
|
1
|
NAMES
OF REPORTING PERSONS
Psilos
Group Investors II, L.L.C.
|
2
|
CHECK THE APPROPRIATE BOX IF A
MEMBER OF A GROUP*
(a)
(b) x
Joint
Filing
|
3
|
SEC
USE ONLY
|
4
|
SOURCE
OF FUNDS*
00
|
5
|
CHECK BOX IF DISCLOSURE OF
LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or
2(e) ¨
|
6
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
Delaware
|
NUMBER
OF
|
7
|
SOLE
VOTING POWER
13,265,742
|
|
SHARES
BENEFICIALLY
OWNED
BY
|
8
|
SHARED
VOTING POWER
0
|
|
EACH
REPORTING
PERSON
|
9
|
SOLE
DISPOSITIVE POWER
13,265,742
|
|
WITH
|
10
|
SHARED
DISPOSITIVE POWER
0
|
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
13,265,742
|
|
12
|
CHECK BOX IF THE AGGREGATE
AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* ¨
|
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.1%
|
|
14
|
TYPE
OF REPORTING PERSON
00
|
|
CUSIP No. 702915109 |
SCHEDULE
13D
|
1
|
NAMES
OF REPORTING PERSONS
Psilos
Group Partners, L.P.
|
2
|
CHECK THE APPROPRIATE BOX IF A
MEMBER OF A GROUP*
(a)
(b) x
Joint
Filing
|
3
|
SEC
USE ONLY
|
4
|
SOURCE
OF FUNDS*
00
|
5
|
CHECK BOX IF DISCLOSURE OF
LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or
2(e) ¨
|
6
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
Delaware
|
NUMBER
OF
|
7
|
SOLE
VOTING POWER
3,602,910
|
|
SHARES
BENEFICIALLY
OWNED
BY
|
8
|
SHARED
VOTING POWER
0
|
|
EACH
REPORTING
PERSON
|
9
|
SOLE
DISPOSITIVE POWER
3,602,910
|
|
WITH
|
10
|
SHARED
DISPOSITIVE POWER
0
|
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,602,910
|
|
12
|
CHECK BOX IF THE AGGREGATE
AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* ¨
|
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.6%
|
|
14
|
TYPE
OF REPORTING PERSON
PN
|
|
CUSIP No. 702915109 |
SCHEDULE
13D
|
1
|
NAMES
OF REPORTING PERSONS
Psilos
Group Investors, L.L.C.
|
2
|
CHECK THE APPROPRIATE BOX IF A
MEMBER OF A GROUP*
(a)
(b) x
Joint
Filing
|
3
|
SEC
USE ONLY
|
4
|
SOURCE
OF FUNDS*
00
|
5
|
CHECK BOX IF DISCLOSURE OF
LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or
2(e) ¨
|
6
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
Delaware
|
NUMBER
OF
|
7
|
SOLE
VOTING POWER
3,602,910
|
|
SHARES
BENEFICIALLY
OWNED
BY
|
8
|
SHARED
VOTING POWER
0
|
|
EACH
REPORTING
PERSON
|
9
|
SOLE
DISPOSITIVE POWER
3,602,910
|
|
WITH
|
10
|
SHARED
DISPOSITIVE POWER
0
|
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,602,910
|
|
12
|
CHECK BOX IF THE AGGREGATE
AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* ¨
|
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.6
%
|
|
14
|
TYPE
OF REPORTING PERSON
00
|
|
CUSIP No. 702915109 |
SCHEDULE
13D
|
|
|
1
|
NAMES
OF REPORTING PERSONS.
Essex
Woodlands Health Ventures Fund IV, L.P.
|
2
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b) x Joint
Filing
|
3
|
SEC
USE ONLY
|
4
|
SOURCE
OF FUNDS*
00
|
5
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT
TO ITEM 2(d) or 2(e) ¨
|
6
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
Delaware
|
NUMBER
OF
|
7
|
SOLE
VOTING POWER
6,259,042
|
SHARES
BENEFICIALLY
OWNED
BY
|
8
|
SHARED
VOTING POWER
0
|
EACH
REPORTING
PERSON
|
9
|
SOLE
DISPOSITIVE POWER
6,259,042
|
WITH
|
10
|
SHARED
DISPOSITIVE POWER
0
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,259,042
|
12
|
CHECK BOX IF THE AGGREGATE
AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* ¨
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.6%
|
14
|
TYPE
OF REPORTING PERSON
PN
|
CUSIP No. 702915109 |
SCHEDULE
13D
|
|
|
1
|
NAMES
OF REPORTING PERSONS.
Essex
Woodlands Health Ventures Fund V, L.P.
|
2
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b) x Joint
Filing
|
3
|
SEC
USE ONLY
|
4
|
SOURCE
OF FUNDS*
00
|
5
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT
TO ITEM 2(d) or 2(e) ¨
|
6
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
Delaware
|
NUMBER
OF
|
7
|
SOLE
VOTING POWER
20,759,671
|
SHARES
BENEFICIALLY
OWNED
BY
|
8
|
SHARED
VOTING POWER
0
|
EACH
REPORTING
PERSON
|
9
|
SOLE
DISPOSITIVE POWER
20,759,671
|
WITH
|
10
|
SHARED
DISPOSITIVE POWER
0
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
20,759,671
|
12
|
CHECK BOX IF THE AGGREGATE
AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* ¨
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
32.2%
|
14
|
TYPE
OF REPORTING PERSON
PN
|
CUSIP No. 702915109 |
SCHEDULE
13D
|
|
|
1
|
NAMES
OF REPORTING PERSONS.
Essex
Woodlands Health Ventures Fund IV, L.L.C.
|
2
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b) x
Joint
Filing
|
3
|
SEC
USE ONLY
|
4
|
SOURCE
OF FUNDS*
00
|
5
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT
TO ITEM 2(d) or 2(e) ¨
|
6
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
Delaware
|
NUMBER
OF
|
7
|
SOLE
VOTING POWER
6,259,042
|
SHARES
BENEFICIALLY
OWNED
BY
|
8
|
SHARED
VOTING POWER
0
|
EACH
REPORTING
PERSON
|
9
|
SOLE
DISPOSITIVE POWER
6,259,042
|
WITH
|
10
|
SHARED
DISPOSITIVE POWER
0
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,259,042
|
12
|
CHECK BOX IF THE AGGREGATE
AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* ¨
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.6%
|
14
|
TYPE
OF REPORTING PERSON
OO
|
CUSIP No. 702915109 |
SCHEDULE
13D
|
|
|
1
|
NAMES
OF REPORTING PERSONS.
Essex
Woodlands Health Ventures Fund V, L.L.C.
|
2
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b) x Joint
Filing
|
3
|
SEC
USE ONLY
|
4
|
SOURCE
OF FUNDS*
00
|
5
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT
TO ITEM 2(d) or 2(e) ¨
|
6
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
Delaware
|
NUMBER
OF
|
7
|
SOLE
VOTING POWER
20,759,671
|
SHARES
BENEFICIALLY
OWNED
BY
|
8
|
SHARED
VOTING POWER
0
|
EACH
REPORTING
PERSON
|
9
|
SOLE
DISPOSITIVE POWER
20,759,671
|
WITH
|
10
|
SHARED
DISPOSITIVE POWER
0
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
20,759,671
|
12
|
CHECK BOX IF THE AGGREGATE
AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* ¨
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
32.2%
|
14
|
TYPE
OF REPORTING PERSON
OO
|
CUSIP No. 702915109 |
SCHEDULE
13D
|
|
|
1
|
NAMES
OF REPORTING PERSONS.
James
L. Currie
|
2
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b) x
Joint Filing
|
3
|
SEC
USE ONLY
|
4
|
SOURCE
OF FUNDS*
00
|
5
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT
TO ITEM 2(d) or 2(e) ¨
|
6
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
United
States of America
|
NUMBER
OF
|
7
|
SOLE
VOTING POWER
0
|
SHARES
BENEFICIALLY
OWNED
BY
|
8
|
SHARED
VOTING POWER
27,018,713
|
EACH
REPORTING
PERSON
|
9
|
SOLE
DISPOSITIVE POWER
0
|
WITH
|
10
|
SHARED
DISPOSITIVE POWER
27,018,713
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
27,018,713
|
12
|
CHECK BOX IF THE AGGREGATE
AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* ¨
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
40.2%
|
14
|
TYPE
OF REPORTING PERSON
IN
|
CUSIP No. 702915109 |
SCHEDULE
13D
|
|
|
1
|
NAMES
OF REPORTING PERSONS.
Martin
P. Sutter
|
2
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b) x Joint
Filing
|
3
|
SEC
USE ONLY
|
4
|
SOURCE
OF FUNDS*
00
|
5
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT
TO ITEM 2(d) or 2(e) ¨
|
6
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
United
States of America
|
NUMBER
OF
|
7
|
SOLE
VOTING POWER
0
|
SHARES
BENEFICIALLY
OWNED
BY
|
8
|
SHARED
VOTING POWER
27,018,713
|
EACH
REPORTING
PERSON
|
9
|
SOLE
DISPOSITIVE POWER
0
|
WITH
|
10
|
SHARED
DISPOSITIVE POWER
27,018,713
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
27,018,713
|
12
|
CHECK BOX IF THE AGGREGATE
AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* ¨
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
40.2%
|
14
|
TYPE
OF REPORTING PERSON
IN
|
CUSIP No. 702915109 |
SCHEDULE
13D
|
|
|
1
|
NAMES
OF REPORTING PERSONS.
Immanuel
Thangaraj
|
2
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b) x Joint
Filing
|
3
|
SEC
USE ONLY
|
4
|
SOURCE
OF FUNDS*
00
|
5
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT
TO ITEM 2(d) or 2(e) ¨
|
6
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
United
States of America
|
NUMBER
OF
|
7
|
SOLE
VOTING POWER
0
|
SHARES
BENEFICIALLY
OWNED
BY
|
8
|
SHARED
VOTING POWER
27,018,713
|
EACH
REPORTING
PERSON
|
9
|
SOLE
DISPOSITIVE POWER
0
|
WITH
|
10
|
SHARED
DISPOSITIVE POWER
27,018,713
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
27,018,713
|
12
|
CHECK BOX IF THE AGGREGATE
AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* ¨
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
40.2%
|
14
|
TYPE
OF REPORTING PERSON
IN
|
CUSIP No. 702915109 |
SCHEDULE
13D
|
|
|
1
|
NAMES
OF REPORTING PERSONS.
Mark
L. Pacala
|
2
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b) x
Joint Filing
|
3
|
SEC
USE ONLY
|
4
|
SOURCE
OF FUNDS*
00
|
5
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT
TO ITEM 2(d) or 2(e) ¨
|
6
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
United
States of America
|
NUMBER
OF
|
7
|
SOLE
VOTING POWER
0
|
SHARES
BENEFICIALLY
OWNED
BY
|
8
|
SHARED
VOTING POWER
27,018,713
|
EACH
REPORTING
PERSON
|
9
|
SOLE
DISPOSITIVE POWER
0
|
WITH
|
10
|
SHARED
DISPOSITIVE POWER
27,018,713
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
27,018,713
|
12
|
CHECK BOX IF THE AGGREGATE
AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* ¨
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
40.2%
|
14
|
TYPE
OF REPORTING PERSON
IN
|
CUSIP No. 702915109 |
SCHEDULE
13D
|
|
|
1
|
NAMES
OF REPORTING PERSONS.
John
Pappajohn
|
2
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b) x Joint
Filing
|
3
|
SEC
USE ONLY
|
4
|
SOURCE
OF FUNDS*
00
|
5
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT
TO ITEM 2(d) or 2(e) ¨
|
6
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
United
States of America
|
NUMBER
OF
|
7
|
SOLE
VOTING POWER
19,338,600
|
SHARES
BENEFICIALLY
OWNED
BY
|
8
|
SHARED
VOTING POWER
0
|
EACH
REPORTING
PERSON
|
9
|
SOLE
DISPOSITIVE POWER
19,338,600
|
WITH
|
10
|
SHARED
DISPOSITIVE POWER
0
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
19,338,600
|
12
|
CHECK BOX IF THE AGGREGATE
AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* ¨
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.9%
|
14
|
TYPE
OF REPORTING PERSON
IN
|
CUSIP No. 702915109 |
SCHEDULE
13D
|
|
|
1
|
NAMES
OF REPORTING PERSONS.
Derace
Schaffer
|
2
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b) x
Joint Filing
|
3
|
SEC
USE ONLY
|
4
|
SOURCE
OF FUNDS*
00
|
5
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT
TO ITEM 2(d) or 2(e) ¨
|
6
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
United
States of America
|
NUMBER
OF
|
7
|
SOLE
VOTING POWER
10,096,239
|
SHARES
BENEFICIALLY
OWNED
BY
|
8
|
SHARED
VOTING POWER
0
|
EACH
REPORTING
PERSON
|
9
|
SOLE
DISPOSITIVE POWER
10,096,239
|
WITH
|
10
|
SHARED
DISPOSITIVE POWER
0
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
10,096,239
|
12
|
CHECK BOX IF THE AGGREGATE
AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* ¨
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.6%
|
14
|
TYPE
OF REPORTING PERSON
IN
|
CUSIP No. 702915109 |
SCHEDULE
13D
|
|
|
1
|
NAMES
OF REPORTING PERSONS.
Hickory
Venture Capital Corporation
|
2
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a)
(b) x Joint
Filing
|
3
|
SEC
USE ONLY
|
4
|
SOURCE
OF FUNDS*
00
|
5
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT
TO ITEM 2(d) or 2(e) ¨
|
6
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
Alabama
|
NUMBER
OF
|
7
|
SOLE
VOTING POWER
16,962,017
|
SHARES
BENEFICIALLY
OWNED
BY
|
8
|
SHARED
VOTING POWER
0
|
EACH
REPORTING
PERSON
|
9
|
SOLE
DISPOSITIVE POWER
16,962,017
|
WITH
|
10
|
SHARED
DISPOSITIVE POWER
0
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
16,962,017
|
12
|
CHECK BOX IF THE AGGREGATE
AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* ¨
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
26.6%
|
14
|
TYPE
OF REPORTING PERSON
CO
|
CUSIP No. 702915109 |
SCHEDULE
13D
|
1
|
NAMES
OF REPORTING PERSONS
Psilos/CareGuide
Investment, L.P.
|
2
|
CHECK THE APPROPRIATE BOX IF A
MEMBER OF A GROUP*
(a)
(b) x
Joint
Filing
|
3
|
SEC
USE ONLY
|
4
|
SOURCE
OF FUNDS*
00
|
5
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT
TO ITEM 2(d) or 2(e) ¨
|
6
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
Delaware
|
NUMBER
OF
|
7
|
SOLE
VOTING POWER
12,833,333
|
|
SHARES
BENEFICIALLY
OWNED
BY
|
8
|
SHARED
VOTING POWER
0
|
|
EACH
REPORTING
PERSON
|
9
|
SOLE
DISPOSITIVE POWER
12,833,333
|
|
WITH
|
10
|
SHARED
DISPOSITIVE POWER
0
|
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
12,833,333
|
|
12
|
CHECK BOX IF THE AGGREGATE
AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* ¨
|
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
18.6%
|
|
14
|
TYPE
OF REPORTING PERSON
PN
|
|
CUSIP No. 702915109 |
SCHEDULE
13D
|
1
|
NAMES
OF REPORTING PERSONS
Psilos
Group Investors III, LLC
|
2
|
CHECK THE APPROPRIATE BOX IF A
MEMBER OF A GROUP*
(a)
(b) x
Joint
Filing
|
3
|
SEC
USE ONLY
|
4
|
SOURCE
OF FUNDS*
00
|
5
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT
TO ITEM 2(d) or 2(e) ¨
|
6
|
CITIZENSHIP
OR PLACE OF ORGANIZATION
Delaware
|
NUMBER
OF
|
7
|
SOLE
VOTING POWER
12,833,333
|
|
SHARES
BENEFICIALLY
OWNED
BY
|
8
|
SHARED
VOTING POWER
0
|
|
EACH
REPORTING
PERSON
|
9
|
SOLE
DISPOSITIVE POWER
12,833,333
|
|
WITH
|
10
|
SHARED
DISPOSITIVE POWER
0
|
|
11
|
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
12,833,333
|
|
12
|
CHECK BOX IF THE AGGREGATE
AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* ¨
|
|
13
|
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
18.6%
|
|
14
|
TYPE
OF REPORTING PERSON
OO
|
|
Item 1. Security and
Issuer
The Schedule 13D filed with the
Securities and Exchange Commission on February 6, 2006, as previously amended on
April 18, 2008 (as amended prior to the date hereof, the “Initial
Statement”) by the Reporting Persons with respect to the shares of the
Common Stock, par value $0.01 per share (the “Common
Stock”), of CareGuide, Inc., a Delaware corporation (the “Issuer”)
is hereby further amended to furnish the additional information set forth
herein. All capitalized terms contained herein but not otherwise defined shall
have the meanings ascribed to such terms in the Initial
Statement.
Item 2. Identity and
Background
ITEM 2 OF
THE INITIAL STATEMENT IS HEREBY AMENDED AS FOLLOWS:
(a)–(c)
This item is amended to include among the Reporting Persons Psilos/CareGuide
Investment, L.P., a Delaware limited partnership (“Psilos/CareGuide”),
and Psilos Group Investors III, L.L.C., a Delaware limited liability company
(“Psilos
Group Investors,” and, together with Psilos/CareGuide, the Psilos General
Partners and the Psilos Funds, “Psilos”).
The names
of the directors/managers and executive officers of Psilos/CareGuide and Psilos
Group Investors, their business addresses, their present principal occupations
or employment, and the name, principal business and address of any corporation
or other organization in which such employment is conducted other than Psilos
are incorporated by reference from Exhibit 1 hereto.
The
principal business of Psilos/CareGuide is venture capital investments. The
principal business of Psilos Group Investors is to serve as the general partner
of Psilos/CareGuide. Mr. Waxman is the senior managing member of Psilos Group
Investors. The principal place of business of Psilos/CareGuide
and Psilos Group Investors is 140 Broadway, 51st Floor, New York, NY
10005.
During the past five years, none of
Psilos/CareGuide, Psilos Group Investors, nor any of the persons listed in
Exhibit 1 has been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or has been a party to a civil proceeding of
a judicial or administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to, federal
or state securities laws or finding any violation with respect to such
laws.
Item
3. Source and Amount
of Funds or other Consideration
ITEM 3 OF
THE INITIAL STATEMENT IS HEREBY AMENDED TO ADD THE FOLLOWING:
On
January 28, 2009, the Issuer and the Series A Investors completed the
transactions contemplated by a Series A Preferred Stock Purchase Agreement,
dated as of July 17, 2008, as amended (the “Purchase
Agreement”), pursuant to which the Issuer sold to the Series A Investors
an aggregate of 5,033,333 shares (the “Shares”)
of its previously designated Series A Preferred Stock at a price of $0.60 per
share, for aggregate gross proceeds, before offering expenses, of approximately
$3.02 million, subject to the terms and conditions of the Purchase
Agreement. In addition, further pursuant to the Purchase Agreement,
the Company intends to sell to Psilos/CareGuide an additional 1,633,334 Shares
at a price of $0.60 per share.
On
January 27, 2009, the Issuer filed an Amended Certificate of Designations,
Powers, Preferences and Relative, Participating, Optional or Other Special
Rights, and the Qualifications, Limitations or Restrictions Thereof of the
Series A Preferred Stock (the “Certificate of
Designations”) to increase the authorized number of shares of Series A
Preferred Stock from 6,250,000 shares to 12,916,667 shares.
The
Shares were issued in a private placement pursuant to Rule 506 of the Securities
Act of 1933, as amended (the “Securities
Act”), and have not been and are not being registered under the
Securities Act. The Shares may not be offered or sold in the United
States absent registration or an applicable exemption from the registration
requirements of the Securities Act.
The net
proceeds from the issuance of the Shares will be used to finance the purchase of
fractional shares of Common Stock following the reverse split of the Common
Stock on the terms described below, to pay costs and expenses related thereto
and for working capital.
As of
January 28, 2009, the number of shares of Series A Preferred Stock purchased by
the Series A Investors and the number of shares of Common Stock issuable upon
conversion of the outstanding shares of Series A Preferred Stock are as
follows:
INVESTOR
|
|
NUMBER
OF SHARES OF
SERIES
A
PREFERRED
PURCHASED
|
|
NUMBER
OF
SHARES
OF
COMMON
STOCK
ISSUABLE
UPON
CONVERSION
|
Essex
|
|
|
1,916,667
|
|
9,583,335
|
Psilos
|
|
|
4,283,334
|
|
21,416,670
|
Hickory
|
|
|
1,333,332
|
|
6,666,660
|
Derace
Schaffer, M.D.
|
|
|
1,666,665
|
|
8,333,325
|
John
Pappajohn
|
|
|
2,083,335
|
|
10,416,675
|
Item
4. Purpose of
Transaction
ITEM 4 OF
THE INITIAL STATEMENT IS HEREBY AMENDED TO ADD THE FOLLOWING:
The
information contained in Item 3 is hereby incorporated by reference into this
Item 4.
The net
proceeds from the issuance of the Shares will be used to finance the reverse
stock split (the “Reverse Stock
Split”), which occurred on January 21, 2009. Under the terms
of the Reverse Stock Split, each 50,000 shares of Common Stock was converted
into one share of Common Stock and holders of less than 50,000 shares of Common
Stock prior to the Reverse Stock Split will receive cash in the amount of $0.14
per pre-split share.
Immediately
following the Reverse Stock Split, the Issuer effected a 50,000-for-one forward
split (the “Forward Stock
Split,” and together with the Reverse Stock Split, the “Reverse/Forward
Stock Split”) so that the number of shares held by each holder of at
least one share of common stock following the Reverse Stock Split ultimately was
unchanged after the Reverse/Forward Stock Split.
As a
result of the Reverse/Forward Stock Split and the purchase of the Shares,
including the additional 1,633,334 shares the Company intends to sell to
Psilos/CareGuide, the number of the Issuer’s stockholders of record is fewer
than 300 and the Reporting Persons beneficially own approximately 87% of the
Issuer’s outstanding common stock, determined on an as-converted to common stock
basis. The Issuer filed a Form 15 with the Commission on January 21, 2009 to
cease filing periodic reports with the Commission in accordance with the
Commission’s rules and regulations and its shares of Common Stock ceased to be
quoted on the OTC Bulletin Board.
Item
5. Interest in
Securities of the Issuer.
ITEM 5 OF
THE INITIAL STATEMENT IS HEREBY AMENDED AND RESTATED AS FOLLOWS:
The
aggregate number and percentage of common stock beneficially owned by each of
the Reporting Persons is set forth on the cover page of this Schedule 13D/A and
is incorporated by reference herein. Percentages are based on
56,041,918 shares of common stock outstanding as of January 28, 2009, which
represents 67,538,976 shares of common stock outstanding prior to the Reverse
Stock Split, less an estimated 11,497,058 shares cashed out in the Reverse Stock
Split.
Item
6. Contracts,
Arrangements, Understandings or Relationships with Respect to Securities of the
Issuer.
The
information contained in Items 3 and 4 is hereby incorporated by reference into
this Item 6.
Item
7. Material
to be filed as Exhibits.
ITEM 7 OF
THE INITIAL STATEMENT IS HEREBY AMENDED TO INCLUDE THE FOLLOWING:
|
1.
|
List
of Executive Officers and Directors/Managers of Psilos/CareGuide and
Psilos Group Investors.
|
|
2.
|
Joinder
to Joint Filing Agreement.
|
|
3.
|
Series
A Preferred Stock Purchase Agreement, dated as of July 17, 2008, as
amended.
|
Signature
After
reasonable inquiry and to the best of its knowledge and belief, the undersigned
each certifies that the information set forth in this statement is true,
complete and correct.
March 4,
2009
PSILOS
GROUP PARTNERS II, L.P.
|
|
|
|
By:
Psilos Group Investors, II, L.L.C.
|
|
|
|
|
By:
|
/s/
|
|
Name:
|
Albert
S. Waxman
|
|
Title:
|
Senior
Managing Member
|
|
PSILOS
GROUP PARTNERS, L.P.
|
|
|
|
By:
Psilos Group Investors, L.L.C.
|
|
|
|
|
By:
|
/s/
|
|
Name:
|
Albert
S. Waxman
|
|
Title:
|
Senior
Managing Member
|
|
PSILOS/CAREGUIDE
INVESTMENT, L.P.
|
|
|
|
By:
Psilos Group Investors III, LLC
|
|
|
|
|
By:
|
/s/
|
|
Name:
|
Albert
S. Waxman
|
|
Title:
|
Senior
Managing Member
|
|
PSILOS
GROUP INVESTORS, II, L.L.C.
|
|
|
|
|
By:
|
/s/
|
|
Name:
|
Albert
S. Waxman
|
|
Title:
|
Senior
Managing Member
|
|
PSILOS
GROUP INVESTORS, L.L.C.
|
|
|
|
|
By:
|
/s/
|
|
Name:
|
Albert
S. Waxman
|
|
Title:
|
Senior
Managing Member
|
|
PSILOS
GROUP INVESTORS III, LLC
|
|
|
|
|
By:
|
/s/
|
|
Name:
|
Albert
S. Waxman
|
|
Title:
|
Senior
Managing Member
|
|
ESSEX
WOODLANDS HEALTH VENTURES IV, L.P.
|
|
|
|
|
By:
|
/s/
|
|
Name:
|
|
|
Title:
|
|
|
ESSEX
WOODLANDS HEALTH VENTURES V, L.P.
|
|
|
|
|
By:
|
/s/
|
|
Name:
|
|
|
Title:
|
|
|
ESSEX
WOODLANDS HEALTH VENTURES FUND IV,
L.L.C.
|
|
|
|
|
By:
|
/s/
|
|
Name:
|
|
|
Title:
|
|
|
ESSEX
WOODLANDS HEALTH VENTURES FUND V,
L.L.C.
|
|
|
|
|
By:
|
/s/
|
|
Name:
|
|
|
Title:
|
|
|
HICKORY
VENTURE CAPITAL CORPORATION
|
|
|
|
|
By:
|
/s/
|
|
Name:
|
|
|
Title:
|
|
|
____________________/s/____
Albert S.
Waxman
____________________/s/____
Derace
Schaffer
____________________/s/____
John
Pappajohn
____________________/s/____
James L.
Currie
____________________/s/____
Martin P.
Sutter
____________________/s/____
Immanuel
Thangaraj
____________________/s/____
Mark L.
Pacala
Exhibit
1
LIST
OF EXECUTIVE OFFICERS AND DIRECTORS/MANAGERS
OF
PSILOS/CAREGUIDE AND PSILOS GROUP INVESTORS
DIRECTORS/MANAGERS
|
BUSINESS
ADDRESS
|
PRINCIPAL
OCCUPATION
|
Albert
S. Waxman
|
140
Broadway, 51st
Floor
New
York, NY 10005
|
Investment
professional
|
Jeffrey
M. Krauss
|
140
Broadway, 51st
Floor
New
York, NY 10005
|
Investment
professional
|
Stephen
M. Krupa
|
140
Broadway, 51st
Floor
New
York, NY 10005
|
Investment
professional
|
Exhibit
2
JOINDER
AGREEMENT TO JOINT FILING AGREEMENT
THIS
JOINDER AGREEMENT dated as of February 28, 2009 (this “Joinder Agreement”),
is made and entered into by and among undersigned and each of the parties
(together with the undersigned, the “Reporting Persons”)
to that certain joint filing agreement dated as of April 17, 2008 with respect
to the filing of Amendment No. 1 to the statement on Schedule 13D relating to
the Common Stock of CareGuide, Inc. (the “Agreement”).
Capitalized terms used herein without definition shall have the meaning ascribed
thereto in the Agreement.
The undersigned agrees that
(i) the Schedule 13D has been adopted and filed on its behalf,
(ii) all future amendments to such statement on Schedule 13D will,
unless written notice to the contrary is delivered as described below, be
jointly filed on its behalf, and (iii) the provisions of
Rule 13d-1(k)(1) under the Securities Exchange Act of 1934 apply to each
it. This agreement may be terminated with respect to the obligations to jointly
file future amendments to such statement on Schedule 13D as to any of the
Reporting Persons upon such person giving written notice thereof to each of the
other Reporting Persons at the principal office thereof.
This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
IN
WITNESS WHEREOF, the undersigned has executed this Joinder Agreement as of the
date first above written.
|
PSILOS/CAREGUIDE
INVESTMENT, L.P.
|
|
|
|
By:
Psilos Group Investors III, LLC
|
|
|
|
|
By:
|
/s/
|
|
Name:
|
Albert
S. Waxman
|
|
Title:
|
Senior
Managing Member
|
|
PSILOS
GROUP INVESTORS III, LLC
|
|
|
|
|
By:
|
/s/
|
|
Name:
|
Albert
S. Waxman
|
|
Title:
|
Senior
Managing Member
|
Exhibit
3
CAREGUIDE, INC.
SERIES
A PREFERRED STOCK PURCHASE AGREEMENT
July
17, 2008
1.
|
Agreement
To Sell And Purchase
|
1
|
|
1.1
Authorization of Shares
|
1
|
|
|
2
|
|
|
|
2.
|
Closing,
Delivery And Use of Proceeds
|
2
|
|
|
2
|
|
|
2
|
|
|
2
|
|
|
|
3.
|
Representations
And Warranties Of The Company
|
2
|
|
3.1
Organization and Good Standing
|
2
|
|
3.2
Capitalization; Voting Rights
|
2
|
|
3.3
Authorization; Binding Obligations
|
3
|
|
|
4
|
|
3.5
SEC Reports; Financial Statements
|
4
|
|
|
|
4.
|
Representations
And Warranties Of Purchasers
|
4
|
|
4.1
Requisite Power and Authority
|
4
|
|
4.2
Investment Representations
|
5
|
|
4.3
Transfer Restrictions
|
6
|
|
|
|
5.
|
Conditions
To Closing
|
6
|
|
5.1
Conditions to Purchasers’ Obligations at the Closing
|
6
|
|
5.2
Conditions to Obligations of the Company
|
8
|
|
|
|
6.
|
Restrictions
on Transfer; Purchaser Representative
|
9
|
|
6.1
Restrictions on Transfer
|
9
|
|
6.2
Purchaser Representative
|
10
|
|
|
|
7.
|
Miscellaneous
|
11
|
|
|
11
|
|
|
11
|
|
|
11
|
|
7.4
Successors and Assigns
|
11
|
|
|
12
|
|
|
12
|
|
|
12
|
|
|
12
|
|
|
12
|
|
|
13
|
|
|
13
|
|
7.12
Titles and Subtitles
|
13
|
|
|
13
|
|
|
13
|
|
7.15
Exculpation Among Purchasers
|
13
|
|
|
13
|
LIST
OF EXHIBITS
|
Schedule
of Purchasers
Certificate of Designations
Stockholders Agreement
Securities Restriction
Agreement
|
Exhibit A
Exhibit B
Exhibit
C
Exhibit
D
|
CAREGUIDE,
INC.
SERIES
A PREFERRED STOCK PURCHASE AGREEMENT
This
Series A Preferred Stock Purchase Agreement (the “Agreement”)
is made and entered into as of July 17, 2008, by and among CareGuide,
Inc., a Delaware corporation (the “Company”),
and each of those persons and entities, severally and not jointly, whose names
are set forth on the Schedule of Purchasers attached hereto as Exhibit A (which persons
and entities are hereinafter collectively referred to as “Purchasers”
and each individually as a “Purchaser”).
Recitals
Whereas,
the Company has authorized the sale and issuance of an aggregate of up to
6,666,667 shares of its Series A Preferred Stock (the “Shares”);
Whereas,
Purchasers desire to purchase the Shares on the terms and conditions set forth
herein;
Whereas,
the Company intends to use the proceeds from the sale of the Shares to
repurchase fractional shares of the Company’s common stock, par value
$0.01 per share (the “Common
Stock”), following a 1-for-100,000 reverse stock split and a
100,000-for-1 forward stock split (the “Stock
Split”), and for the other uses described in Section 2.3;
and
Whereas,
the Company desires to issue and sell the Shares to Purchasers on the terms and
conditions set forth herein.
Agreement
Now,
Therefore, in consideration of the foregoing recitals and the mutual
promises, representations, warranties, and covenants hereinafter set forth and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
|
1.
|
Agreement
To Sell And Purchase.
|
1.1 Authorization of
Shares. The Company has authorized (a) the sale and
issuance to Purchasers of the Shares and (b) the issuance of such shares of
Common Stock to be issued upon conversion of the Shares (the “Conversion
Shares”). The Shares and the Conversion Shares have the
rights, preferences, privileges and restrictions set forth in the Certificate of
Incorporation, as amended to date (the “Amended
Charter”), and the Second Amended Certificate of Designations, Powers,
Preferences and Relative, Participating, Optional or Other Special
Rights, and the Qualifications, Limitations or Restrictions thereof of the
Series A Preferred Stock, in the form attached hereto as Exhibit B (the “Certificate of
Designations”).
1.2 Sale and
Purchase.
(a) No
later than three (3) business days prior to the Closing (as hereinafter
defined), the Company will provide the Purchasers with a written notice setting
forth its best estimate of the number of Shares (the “Minimum Share
Amount”) (such amount not to exceed 6,666,667 Shares) reasonably
necessary, in its sole discretion, to provide the Company with net proceeds
sufficient to satisfy the use of proceeds set forth in clauses (a) and (b) of
Section 2.3 hereof. This notice shall include a reasonably detailed
explanation of how the Company calculated the Minimum Share Amount.
(b) If
the Minimum Share Amount is less than 6,666,667 Shares, the Company and the
Purchasers may agree in writing that additional Shares (the “Additional Share
Amount”) will be issued and sold by the Company and purchased by the
Purchasers at the Closing; provided, however that in no
event shall the Total Share Amount (as hereinafter defined) exceed 6,666,667
Shares. The Minimum Share Amount plus the Additional Share Amount, if
any, is referred to herein as the “Total Share
Amount.”
(c) Subject
to the terms and conditions hereof, at the Closing, the Company hereby agrees to
issue and sell to the Purchasers, and each Purchaser hereby agrees to purchase
from the Company, severally and not jointly, such Purchaser’s pro rata portion
of the Total Share Amount, in accordance with such Purchaser’s respective
percentage interest, as set forth opposite such Purchaser’s name in column four
(entitled “Percentage of
Shares”) of Exhibit A, at a purchase
price of sixty cents ($0.60) per share.
|
2.
|
Closing,
Delivery And Use of Proceeds.
|
2.1 Closing. The
closing of the sale and purchase of Shares under this Agreement (the “Closing”)
shall take place at 1:00 p.m. on the third business day following the date that
all conditions to Closing (other than those which by their nature are to be
satisfied at the Closing) have been satisfied, at the offices of the Company, or
at such other time or place as the Company and Purchasers may mutually agree
(such date is hereinafter referred to as the “Closing
Date”).
2.2 Delivery. At the
Closing, subject to the terms and conditions hereof, the Company will deliver to
each Purchaser a certificate representing the number of Shares to be purchased
at the Closing by such Purchaser, against payment of the purchase price therefor
by check or wire transfer made payable to the order of the Company.
2.3 Use of
Proceeds. The Company shall use the proceeds from the sale of
the Shares to (a) repurchase fractional shares of the Company’s common stock
following the Stock Split and (b) pay costs and expenses related to the Stock
Split, the sale of the Shares and the other transactions contemplated by this
Agreement. The Company shall use any proceeds from the sale of the
Shares remaining after the payment of the expenditures described in clauses (a)
and (b) for working capital and other general corporate
purposes.
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3.
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Representations
And Warranties Of The Company.
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The
Company hereby represents and warrants to each Purchaser as set forth
below.
3.1 Organization and Good
Standing. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware. The Company has all requisite corporate power and authority
to own and operate its properties and assets, to execute and deliver this
Agreement, to issue and sell the Shares and the Conversion Shares, and to carry
out the provisions of this Agreement and the Certificate of Designations and to
carry on its business as presently conducted.
3.2 Capitalization;
Voting Rights.
(a) The
authorized capital stock of the Company, immediately prior to the Closing,
consists of (i) 200,000,000 shares of Common Stock, 67,538,976 shares of
which are issued and outstanding (without giving effect to the Stock Split or
the exercise of any option, warrant or other conversion right described in
Section 3.2(c)), and (ii) 20,000,000 shares of preferred stock, par value
$0.01 per share (the Preferred
Stock”), 12,916,667 of which are designated Series A Preferred
Stock, 6,250,000 of which are issued and outstanding.
(b) Under
the Company’s equity incentive plans (the “Plans”),
options to purchase 12,959,970 shares have been granted and are currently
outstanding and 3,365,612 shares of Common Stock remain available for future
issuance.
(c) Other
than (i) the outstanding Preferred Stock, (ii) the Plans, (iii) warrants
outstanding as of the date hereof for the issuance of 4,372,965 shares of Common
Stock, (iv) warrants issuable after the date hereof pursuant to the terms of the
compensatory arrangements described in the Company’s Current Report on Form 8-K
filed with the U.S. Securities and Exchange Commission (the “SEC”) on
July 1, 2008) and (v) $6.5 million in aggregate principal amount of convertible
promissory notes issued in December 2006, to the former security holders of
Haelan Corporation, and except as may be granted pursuant to this Agreement,
there are no outstanding options, warrants, rights (including conversion or
preemptive rights and rights of first refusal), proxy or stockholder agreements,
or agreements of any kind for the purchase or acquisition from the Company of
any of its securities.
(d) All
issued and outstanding shares of the Company’s Common Stock (i) have been
duly authorized and validly issued and are fully paid and nonassessable and
(ii) were issued in compliance with all applicable state and federal laws
concerning the issuance of securities.
(e) The
rights, preferences, privileges and restrictions of the Shares are as stated in
the Amended Charter and the Certificate of Designations. When issued
in compliance with the provisions of this Agreement, the Amended Charter and/or
the Certificate of Designations, the Shares and the Conversion Shares will be
validly issued, fully paid and nonassessable, and will be free of any liens or
encumbrances other than liens and encumbrances created by or imposed upon the
Purchasers; provided,
however, that the Shares and the Conversion Shares may be subject to
restrictions on transfer under state and/or federal securities laws as set forth
herein or as otherwise required by such laws at the time a transfer is
proposed. The sale of the Shares and the subsequent conversion of the
Shares into Conversion Shares are not and will not be subject to any preemptive
rights or rights of first refusal that have not been properly waived or complied
with.
3.3 Authorization; Binding
Obligations. All corporate action on the part of the Company,
its officers, directors and stockholders necessary for the authorization of this
Agreement, the performance of all obligations of the Company hereunder at the
Closing and the authorization, sale, issuance and delivery of the Shares
pursuant hereto and the Conversion Shares pursuant to the Amended Charter and
Certificate of Designations has been taken. The Agreement, when
executed and delivered, will be a valid and binding obligation of the Company
enforceable in accordance with its terms, except as limited by (a) applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general
application affecting enforcement of creditors’ rights and (b) general
principles of equity that restrict the availability of equitable
remedies.
3.4 Offering
Valid. Assuming the accuracy of the representations and
warranties of Purchasers contained in Section 4.2 hereof, the offer, sale
and issuance of the Shares and the Conversion Shares will be exempt from the
registration requirements of the Securities Act of 1933, as amended (the “Securities
Act”), and will have been registered or qualified (or are exempt from
registration and qualification) under the registration, permit or qualification
requirements of all applicable state securities laws. Neither the
Company nor any agent on its behalf has solicited or will solicit any offers to
sell or has offered to sell or will offer to sell all or any part of the Shares
to any person or persons so as to bring the sale of such Shares by the Company
within the registration provisions of the Securities Act or any state securities
laws.
3.5 SEC Reports; Financial
Statements. Except for the Company’s Annual Report on Form
10-K for the year ended December 31, 2007 (the “2007 Form
10-K”), which was filed late, the Company has filed all reports,
schedules, forms, statements and other documents required to be filed by the
Company under the Securities Act and the Securities Exchange Act of 1934, as
amended (the “Exchange
Act”), including pursuant to Section 13(a) or 15(d) thereof, since
January 1, 2007 (the foregoing materials, including the exhibits thereto and
documents incorporated by reference therein, being collectively referred to
herein as the “SEC
Reports”) on a timely basis or has received a valid extension of such
time of filing and has filed any such SEC Reports prior to the expiration of any
such extension. As of their respective dates, the SEC Reports
complied in all material respects with the requirements of the Securities Act
and the Exchange Act, as applicable, except for the filing date of the 2007 Form
10-K, and none of the SEC Reports, when filed, contained any untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The
financial statements of the Company included in the SEC Reports comply in all
material respects with applicable accounting requirements and the rules and
regulations of the Commission with respect thereto as in effect at the time of
filing. Such financial statements have been prepared in accordance
with United States generally accepted accounting principles applied on a
consistent basis during the periods involved (“GAAP”),
except as may be otherwise specified in such financial statements or the notes
thereto and except that unaudited financial statements may not contain all
footnotes required by GAAP, and fairly present in all material respects the
financial position of the Company and its consolidated subsidiaries as of and
for the dates thereof and the results of operations and cash flows for the
periods then ended, subject, in the case of unaudited statements, to normal,
immaterial, year-end audit adjustments.
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4.
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Representations
And Warranties Of Purchasers.
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Each
Purchaser hereby represents and warrants to the Company, severally and not
jointly, as follows (provided that such representations and warranties do not
lessen or obviate the representations and warranties of the Company set forth in
this Agreement):
4.1 Requisite Power and
Authority. Purchaser has all necessary power and authority to
execute and deliver this Agreement and to carry out its
provisions. All action on Purchaser’s part required for the lawful
execution and delivery of this Agreement has been taken. Upon its
execution and delivery, this Agreement will be a valid and binding obligation of
Purchaser, enforceable in accordance with their terms, except as limited by (a)
applicable bankruptcy, insolvency, reorganization, moratorium or other laws of
general application affecting enforcement of creditors’ rights and (b) general
principles of equity that restrict the availability of equitable
remedies.
4.2 Investment
Representations. Purchaser understands that neither the Shares
nor the Conversion Shares have been registered under the Securities
Act. Purchaser also understands that the Shares are being offered and
sold pursuant to an exemption from registration contained in the Securities Act
based in part upon Purchaser’s representations contained in the
Agreement. Purchaser hereby represents and warrants as
follows:
(a) Purchaser Bears Economic
Risk. Purchaser has substantial experience in evaluating and
investing in private placement transactions of securities in companies similar
to the Company so that it is capable of evaluating the merits and risks of its
investment in the Company and has the capacity to protect its own
interests. Purchaser must bear the economic risk of this investment
indefinitely unless the Shares (or the Conversion Shares) are registered
pursuant to the Securities Act, or an exemption from registration is
available. Purchaser understands that the Company has no present
intention of registering the Shares, the Conversion Shares or any shares of its
Common Stock. Purchaser also understands that there is no assurance
that any exemption from registration under the Securities Act will be available
and that, even if available, such exemption may not allow Purchaser to transfer
all or any portion of the Shares or the Conversion Shares under the
circumstances, in the amounts or at the times Purchaser might
propose.
(b) Acquisition for Own
Account.
Purchaser is acquiring the Shares and the Conversion Shares for Purchaser’s own
account for investment only, and not with a view towards their
distribution.
(c) Purchaser Can Protect Its
Interest. Purchaser represents that by reason of its, or of
its management’s, business or financial experience, Purchaser has the capacity
to protect its own interests in connection with the transactions contemplated in
this Agreement. Further, Purchaser is aware of no publication of any
advertisement in connection with the transactions contemplated in the
Agreement.
(d) Accredited Investor. Purchaser represents
that it is an accredited investor within the meaning of Regulation D under the
Securities Act.
(e) Company
Information. Purchaser has received and read the Company’s
current, quarterly and annual reports, proxy statements, registration statements
and other information as filed with the SEC and has had an opportunity to
discuss the Company’s business, management and financial affairs with directors,
officers and management of the Company and has had the opportunity to review the
Company’s operations and facilities. Purchaser has also had the
opportunity to ask questions of and receive answers from, the Company and its
management regarding the terms and conditions of this investment.
(f) Rule 144. Purchaser acknowledges
and agrees that the Shares, and, if issued, the Conversion Shares are
“restricted securities” as defined in Rule 144 promulgated under the Securities
Act as in effect from time to time and must be held indefinitely unless they are
subsequently registered under the Securities Act or an exemption from such
registration is available. Purchaser has been advised or is aware of
the provisions of Rule 144, which permits limited resale of shares purchased in
a private placement subject to the satisfaction of certain conditions,
including, among other things: the availability of certain current
public information about the Company, the resale occurring following the
required holding period under Rule 144 and the number of shares being sold
during any three-month period not exceeding specified
limitations. Purchaser understands that one use of the proceeds of
the transactions contemplated hereby is to effect the repurchase of fractional
shares upon the effectiveness of a reverse stock split, which will result in the
Company ceasing to report under the Exchange Act and that current public
information is not expected to be available at the time that the holding period
of the of the Shares has been met.
(g) Residence. If Purchaser is an
individual, then Purchaser resides in the state or province identified in the
address of Purchaser set forth on Exhibit A; if Purchaser
is a partnership, corporation, limited liability company or other entity, then
the office or offices of Purchaser in which its investment decision was made is
located at the address or addresses of Purchaser set forth on Exhibit A.
(h) Foreign Investors. If Purchaser is not a
United States person (as defined by Section 7701(a)(30) of the Internal Revenue
Code of 1986, as amended), Purchaser hereby represents that it has satisfied
itself as to the full observance of the laws of its jurisdiction in connection
with any invitation to subscribe for the Shares or any use of this Agreement,
including (i) the legal requirements within its jurisdiction for the purchase of
the Shares, (ii) any foreign exchange restrictions applicable to such purchase,
(iii) any government or other consents that may need to be obtained, and (iv)
the income tax and other tax consequences, if any, that may be relevant to the
purchase, holding, redemption, sale or transfer of the Shares. The
Company’s offer and sale and such Purchaser’s subscription and payment for and
continued beneficial ownership of the Shares will not violate any applicable
securities or other laws of such Purchaser’s
jurisdiction.
4.3 Transfer
Restrictions. Each Purchaser acknowledges and agrees that the
Shares and, if issued, the Conversion Shares are subject to restrictions on
transfer as set forth herein and in the Stockholders Agreement to be executed at
the Closing in substantially the form attached as Exhibit C (the “Stockholders
Agreement”).
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5.
|
Conditions
To Closing.
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5.1 Conditions to Purchasers’ Obligations
at the Closing. Purchasers’ obligations to purchase the Shares
at the Closing are subject to the satisfaction, at or prior to the Closing Date,
of the following conditions:
(a) Representations and Warranties True;
Performance of Obligations. The representations and warranties
made by the Company in Section 3 hereof shall be true and correct in all
material respects as of the Closing Date with the same force and effect as if
they had been made as of the Closing Date, the Company shall have performed all
obligations and conditions herein required to be performed or observed by it on
or prior to the Closing.
(b) Legal Investment. On the Closing Date, the
sale and issuance of the Shares and the proposed issuance of the Conversion
Shares shall be legally permitted by all laws and regulations to which
Purchasers and the Company are subject.
(c) Consents, Permits, and
Waivers. The Company shall have obtained any and all consents,
permits and waivers necessary or appropriate for consummation of the
transactions contemplated by the Agreement except for such as may be properly
obtained subsequent to the Closing.
(d) Filing of Certificate of
Designations. The Certificate of Designations shall have been
filed with the Secretary of State of the State of Delaware and shall continue to
be in full force and effect as of the Closing Date.
(e) Corporate
Documents. The Company shall have delivered to Purchasers or
their counsel copies of all corporate documents of the Company as Purchasers
shall reasonably request.
(f) Fairness
Opinion. The Board of Directors of the Company (the “Board”)
shall have received a fairness opinion (the “Fairness
Opinion”) from Navigant Capital Advisors, to the effect that the
consideration to be paid to the holders of the Company’s Common Stock to
repurchase fractional shares pursuant to the Stock Split is fair to such
stockholders from a financial point of view. The Fairness Opinion
shall be in full force and effect as of the date of Closing and shall not have
been revoked or retracted.
(g) Stock Split; Use of
Proceeds. All of the conditions (other than payment of any
amounts to be paid with the proceeds of the Purchasers’ investment) to the Stock
Split, as described in the information statement delivered to the Company’s
stockholders (which shall be in form and substance reasonably satisfactory to
the Purchasers), shall have been satisfied (or waived by the
Purchasers). The purchase price per share for the repurchase
fractional shares of the Company’s Common Stock following the Stock Split shall
be equal to the price approved by the Board as of the date hereof.
(h) Public Company
Obligations. The Company shall have taken all necessary
actions such that it has terminated the registration of its Common Stock under
Section 12(g) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) and has suspended its reporting obligations under Section 15(d) of
the Exchange Act.
(i) Stockholders
Agreement. Holders of an aggregate of at least 85% of the
capital stock of the Company (after giving effect to the Stock Split and the
Closing) shall have executed the Stockholders Agreement, as shall any officer or
director of the Company who holds any capital stock of the Company or any
security convertible into capital stock of the Company.
(j) Termination of Existing Stockholders
Agreement. The Company and the parties to that certain
stockholders agreement dated January 25, 2006 (the “Existing
Stockholders Agreement”) shall have taken all necessary actions to
terminate the Existing Stockholders Agreement.
(k) No Material Adverse
Effect. There shall not have occurred since the date of this
Agreement any event or circumstance that has had or would reasonable be expected
to have a Material Adverse Effect. For purposes of this Agreement,
“Material
Adverse Effect” means any
change, circumstance, development, state of facts, or event that has or could
reasonably be expected to have a material adverse change or effect (taken alone
or in the aggregate with any other adverse change or effect) (i) on or with
respect to the business, assets, condition (financial or otherwise) or results
of operations of the Company, or (ii) that could reasonably be expected to
prevent or materially impede, interfere with, hinder or delay the consummation
by Company of the Closing, provided, however, that in no
event shall any of the following be deemed, either alone or in combination, to
constitute a Material Adverse Effect, or be considered in determining whether a
Material Adverse Effect has occurred: any adverse effect, (including
any claim, litigation, cancellation of or delay in customer orders, reduction in
revenues or income disruption of business relationships or loss of employees) to
the extent arising from or attributable to (A) the announcement or pendency of
the Stock Split, (B) the payment of any amounts due to, or the provision of any
other benefits to, any officers or employees of Company to the extent and when
required by employment contracts, non-competition agreements, employee benefit
plans, severance arrangements or other arrangements in existence as of the date
of this Agreement, (C) any breach by one or more parties of this Agreement and
(D) any item described in any document provided to the Purchasers on or prior to
the date hereof, provided that such document is clearly marked as Company
disclosure pursuant to this Section 5.1(k).
(l) Officer’s
Certificate. The Purchasers shall have received a certificate
of an executive officer of the Company confirming satisfaction of the conditions
described in Sections 5.1(a) and 5.1(k) hereof.
(m) Proceedings and
Documents. All corporate and other
proceedings in connection with the transactions contemplated at the Closing
hereby and all documents and instruments incident to such transactions shall be
reasonably satisfactory in substance and form to Purchasers and their special
counsel, and Purchasers and their special counsel shall have received all such
counterpart originals or certified or other copies of such documents as they may
reasonably request.
5.2 Conditions to Obligations of the
Company. The Company’s obligation to issue and sell the Shares
at the Closing is subject to the satisfaction, on or prior to the Closing Date,
of the following conditions:
(a) Representations and Warranties
True. The representations and warranties in Section 4
made by those Purchasers acquiring Shares hereof shall be true and correct in
all material respects at the date of the Closing, with the same force and effect
as if they had been made on and as of said date.
(b) Performance of
Obligations. Such Purchasers shall have performed and complied
with all agreements and conditions herein required to be performed or complied
with by such Purchasers on or before the Closing.
(c) Filing of Certificate of
Designations. The Certificate of Designations shall have been
filed with the Secretary of State of the State of Delaware.
(d) Consents, Permits, and
Waivers. The Company shall have obtained any and all consents,
permits and waivers necessary or appropriate for consummation of the
transactions contemplated by the Agreement (except for such as may be properly
obtained subsequent to the Closing).
(e) Fairness
Opinion. The Board shall have received the Fairness Opinion
from Navigant Capital Advisors, to the effect that the consideration to be paid
to the holders of the Company’s Common Stock to repurchase fractional shares
pursuant to the Stock Split is fair to such stockholders from a financial point
of view. The Fairness Opinion shall be in full force and effect as of
the date of Closing and shall not have been revoked or retracted.
5.3 Securities Restriction
Agreement. The Company shall make every commercially reasonable effort to
cause each current employee of the Company who holds any capital stock of the
Company or any security convertible into or exercisable for capital stock of the
Company, and who is not a party to the Stockholders Agreement, to execute the
Securities Restriction Agreement in substantially the form attached as Exhibit D (the “Securities
Restriction Agreement”).
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6.
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Restrictions
on Transfer; Purchaser
Representative.
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6.1 Restrictions
on Transfer.
(a) Each
Purchaser agrees not to make any disposition of all or any portion of the Shares
or Conversion Shares unless and until:
(i) there
is then in effect a registration statement under the Securities Act covering
such proposed disposition and such disposition is made in accordance with such
registration statement; or
(ii) as
otherwise permitted pursuant to the terms of the Stockholders
Agreement.
(b) Each
certificate representing Shares shall be stamped or otherwise imprinted with
legends substantially similar to the following (in addition to any legend
required under applicable state securities laws or required by the Stockholders
Agreement):
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 (THE “ACT”) AND
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR
HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR UNLESS THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT
SUCH REGISTRATION IS NOT REQUIRED.
(c) The
Company shall be obligated to reissue promptly unlegended certificates at the
request of any Purchaser thereof if the Purchaser shall have obtained an opinion
of counsel (which counsel may be counsel to the Company) reasonably acceptable
to the Company to the effect that the securities proposed to be disposed of may
lawfully be so disposed of without registration, qualification and legend, provided that any legend
required by the Stockholders Agreement shall be removed only in accordance with
the provisions of the Stockholders Agreement.
(d) Any
legend endorsed on an instrument pursuant to applicable state securities laws
and the stop-transfer instructions with respect to such securities shall be
removed upon receipt by the Company of an order of the appropriate blue sky
authority authorizing such removal.
6.2 Purchaser
Representative.
(a) Each
Purchaser hereby irrevocably appoints each of Psilos Group Partners, L.P. and
Psilos Group Partners II, L.P. (each, a “Purchaser
Representative”) as such Purchaser’s representative, attorney-in-fact and
agent, with full power of substitution to act in the name, place and stead of
such Purchaser and to act on behalf of such Purchaser in any amendment of or
litigation or arbitration involving this Agreement and to do or refrain from
doing all such further acts and things, and to execute all such documents, as
any Purchaser Representative shall deem necessary or appropriate in conjunction
with any of the transactions contemplated by this Agreement, including, without
limitation, the power:
(i) to
take all action necessary or desirable in connection with the waiver of any
condition to the obligations of such Purchaser to consummate the transactions
contemplated by this Agreement;
(ii) to
negotiate, execute and deliver all ancillary agreements, statements,
certificates, statements, notices, approvals, extensions, waivers, undertakings,
amendments and other documents required or permitted to given in connection with
the consummation of the transactions contemplated by this Agreement (it being
understood that such Purchaser shall execute and deliver any such documents
which the Purchaser Representative agrees to execute);
(iii) to
terminate this Agreement if such Purchaser is entitled to do so;
(iv) to
give and receive all notices and communications to be given or received under
this Agreement and to receive service of process in connection with any claims
under this Agreement, including service of process in connection with
arbitration; and
(v) to
take all actions which under this Agreement may be taken by such Purchaser and
to do or refrain from doing any further act or deed on behalf of such Purchaser
which any Purchaser Representative deems necessary or appropriate in his sole
discretion relating to the subject matter of this Agreement as fully and
completely as such Purchaser could do if personally present.
(b) No
Purchaser Representative will be liable for any act taken or omitted by it as
permitted under this Agreement, except if such act is taken or omitted in bad
faith or by willful misconduct. Each Purchaser Representative will
also be fully protected in relying upon any written notice, demand, certificate
or document that it in good faith believes to be genuine (including facsimiles
thereof).
(c) Each
Purchaser agrees, severally but not jointly, to indemnify each Purchaser
Representative for, and to hold the Purchaser Representative harmless against,
any loss, liability or expense arising out of or in connection with the
Purchaser Representative’s carrying out it duties under this Agreement,
including costs and expenses of successfully defending the Purchaser
Representative against any claim of liability with respect thereto, except to
the extent caused by willful misconduct or bad faith on the part of such
Purchaser Representative. The Purchaser Representative may consult
with counsel of its own choice and will have full and complete authorization and
protection for any action taken and suffered by it in good faith and in
accordance with the opinion of such counsel.
7.1 Termination.
(a) The
Company may terminate this Agreement at any time prior to the Closing upon
receiving an offer from a third party (the “Offeror”)
to engage in a transaction that the Board concludes in good faith is (i) on
terms and conditions materially more favorable from a financial point of view to
the Company’s stockholders than those contemplated hereby, (ii) the conditions
to the consummation of which are all reasonably capable of being satisfied
without undue delay and (iii) for which financing, to the extent required, is
committed (a “Superior
Offer”), if the Board concludes in good faith that such action is
required in order for the Board to comply with its fiduciary obligations to the
Company’s stockholders under applicable law.
(b) If
this Agreement is terminated by the Company pursuant to Section 7.1(a), the
Company shall pay to the Purchasers (pro rata based on the maximum number of
Shares to be purchased, as reflected on Exhibit A hereto) by wire
transfer of immediately available funds an amount equal to one-hundred and sixty
thousand dollars ($160,000) and, in addition, shall promptly reimburse the
Purchasers for all out-of-pocket costs and expenses (including reasonable legal
fees and expenses) incurred in connection with this Agreement and the
transactions contemplated hereby.
7.2 Governing Law. This
Agreement shall be governed by and construed under the laws of the State of
Delaware in all respects as such laws are applied to agreements among Delaware
residents entered into and performed entirely within Delaware, without giving
effect to conflict of law principles thereof.
7.3 Survival. The
representations, warranties, covenants and agreements made herein shall survive
the closing of the transactions contemplated hereby. All statements
as to factual matters contained in any certificate or other instrument delivered
by or on behalf of the Company pursuant hereto in connection with the
transactions contemplated hereby shall be deemed to be representations and
warranties by the Company hereunder solely as of the date of such certificate or
instrument. The representations, warranties, covenants and
obligations of the Company, and the rights and remedies that may be exercised by
the Purchasers, shall not be limited or otherwise affected by or as a result of
any information furnished to, or any investigation made by or knowledge of, any
of the Purchasers or any of their representatives.
7.4 Successors and
Assigns. Except as otherwise expressly provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon the parties
hereto and their respective successors, assigns, heirs, executors and
administrators and shall inure to the benefit of and be enforceable by each
person who shall be a holder of the Shares from time to time; provided, however, that prior
to the receipt by the Company of adequate written notice of the transfer of any
Shares specifying the full name and address of the transferee, the Company may
deem and treat the person listed as the holder of such Shares in its records as
the absolute owner and holder of such Shares for all purposes.
7.5 Entire
Agreement. This Agreement, the exhibits and schedules hereto,
the Related Agreements and the other documents delivered pursuant hereto
constitute the full and entire understanding and agreement between the parties
with regard to the subjects hereof.
7.6 Severability. In
the event one or more of the provisions of this Agreement should, for any
reason, be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions
of this Agreement, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
7.7 Amendment and
Waiver. This Agreement may be amended or modified, and the
obligations of the Company and the rights of the holders of the Shares and the
Conversion Shares under the Agreement may be waived, only upon the written
consent of the Company and holders of at least a majority of the Shares
purchased or agreed to be purchased pursuant to this Agreement (treated as if
converted and including any Conversion Shares into which the then outstanding
Shares have been converted that have not been sold to the public).
7.8 Delays or
Omissions. It is agreed that no delay or omission to exercise
any right, power or remedy accruing to any party, upon any breach, default or
noncompliance by another party under this Agreement or the Amended
Charter or Certificate of Designations, shall impair any such right, power or
remedy, nor shall it be construed to be a waiver of any such breach, default or
noncompliance, or any acquiescence therein, or of or in any similar breach,
default or noncompliance thereafter occurring. It is further agreed
that any waiver, permit, consent or approval of any kind or character on any
party’s part of any breach, default or noncompliance under this Agreement or the
Amended Charter or Certificate of Designations or any waiver on such party’s
part of any provisions or conditions of the Agreement or the Amended Charter or
Certificate of Designations must be in writing and shall be effective only to
the extent specifically set forth in such writing. All remedies,
either under this Agreement or the Amended Charter or Certificate of
Designations, by law, or otherwise afforded to any party, shall be cumulative
and not alternative.
7.9
Notices. All
notices required or permitted hereunder shall be in writing and shall be deemed
effectively given: (a) upon personal delivery to the party to be notified,
(b) when sent by confirmed electronic mail, telex or facsimile if sent
during normal business hours of the recipient, if not, then on the next business
day, (c) five (5) days after having been sent by registered or certified
mail, return receipt requested, postage prepaid, or (d) one (1) day after
deposit with a nationally recognized overnight courier, specifying next day
delivery, with written verification of receipt. All communications
shall be sent to the Company at the address as set forth on the signature page
hereof and to a Purchaser at the address set forth on Exhibit A attached hereto
or at such other address as the Company or such Purchaser may designate by ten
(10) days advance written notice to the other parties hereto.
7.10 Expenses. Each
party shall pay all costs and expenses that it incurs with respect to the
negotiation, execution, delivery and performance of the Agreement; provided, however, that the Company
shall, at the Closing, reimburse the reasonable invoiced fees and expenses of
one or more counsels for the Purchasers incurred in connection with the
negotiation and execution of this Agreement and the Stockholders Agreement and
the consummation of the transactions contemplated hereby.
7.11 Attorneys’ Fees. In
the event that any suit or action is instituted under or in relation to this
Agreement, including without limitation to enforce any provision in this
Agreement, the prevailing party in such dispute shall be entitled to recover
from the losing party all fees, costs and expenses of enforcing any right of
such prevailing party under or with respect to this Agreement, including without
limitation, such reasonable fees and expenses of attorneys and accountants,
which shall include, without limitation, all fees, costs and expenses of
appeals.
7.12 Titles and
Subtitles. The titles of the sections and subsections of the
Agreement are for convenience of reference only and are not to be considered in
construing this Agreement.
7.13 Counterparts. This
Agreement may be executed in any number of counterparts (which may be delivered
by facsimile or other electronic means), each of which shall be an original, but
all of which together shall constitute one instrument.
7.14 Broker’s Fees. Each
party hereto represents and warrants that no agent, broker, investment banker,
person or firm acting on behalf of or under the authority of such party hereto
is or will be entitled to any broker’s or finder’s fee or any other commission
directly or indirectly in connection with the transactions contemplated
herein. Each party hereto further agrees to indemnify each other
party for any claims, losses or expenses incurred by such other party as a
result of the representation in this Section 7.14 being
untrue.
7.15 Exculpation Among
Purchasers. Each Purchaser acknowledges that it is not relying
upon any person, firm, or corporation, other than the Company and its officers
and directors, in making its investment or decision to invest in the
Company. Each Purchaser agrees that no Purchaser nor the respective
controlling persons, officers, directors, partners, agents, or employees of any
Purchaser shall be liable to any other Purchaser for any action heretofore or
hereafter taken or omitted to be taken by any of them in connection with the
purchase of the Shares and Conversion Shares.
7.16 Pronouns. All
pronouns contained herein, and any variations thereof, shall be deemed to refer
to the masculine, feminine or neutral, singular or plural, as to the identity of
the parties hereto may require.
* * * * *
In
Witness Whereof,
the parties hereto have executed the Series
A Preferred Stock Purchase Agreement as of the date set forth in the
first paragraph hereof.
|
COMPANY:
CareGuide,
Inc.
Signature: /s/
Chris E. Paterson
Print
Name: Chris E. Paterson
Title: CEO
Address:
4401 NW 124th
Avenue
Parkland,
FL 33076
|
|
|
In
Witness Whereof,
the parties hereto have executed the Series
A Preferred Stock Purchase Agreement as of the date set forth in the
first paragraph hereof.
|
PURCHASERS:
Essex
Woodlands Health Ventures Fund IV, L.P.
By: Essex
Woodlands Health Ventures IV, L.L.C.
Its
General Partner
By: /s/
Mark L. Pacala
Name: Mark
Pacala
Title: Authorized
Signatory
Essex
Woodlands Health Ventures Fund V, L.P.
By: Essex
Woodlands Health Ventures V, L.L.C.
Its
General Partner
By: /s/
Mark L. Pacala
Name: Mark
Pacala
Title: Authorized
Signatory
|
In
Witness Whereof,
the parties hereto have executed the Series
A Preferred Stock Purchase Agreement as of the date set forth in the
first paragraph hereof.
|
PURCHASERS:
Psilos
Group Partners II, L.P.
By: Psilos
Group Investors II, LLC
Its
General Partner
By: /s/
Albert S. Waxman
Name: Albert
S. Waxman
Title: Senior
Managing Member
|
|
Psilos
Group Partners, L.P.
By: Psilos
Group Investors, LLC
Its
General Partner
By: /s/
Albert S. Waxman
Name: Albert
S. Waxman
Title: Senior
Managing Member
|
In
Witness Whereof,
the parties hereto have executed the Series
A Preferred Stock Purchase Agreement as of the date set forth in the
first paragraph hereof.
|
PURCHASERS:
Hickory
Venture Capital Corporation
By: /s/
J. Thomas Noojin
Name: J.
Thomas Noojin
Title: President
|
|
|
In
Witness Whereof,
the parties hereto have executed the Series
A Preferred Stock Purchase Agreement as of the date set forth in the
first paragraph hereof.
|
PURCHASERS:
/s/
John Pappajohn
John
Pappajohn
|
|
|
In
Witness Whereof,
the parties hereto have executed the Series
A Preferred Stock Purchase Agreement as of the date set forth in the
first paragraph hereof.
|
PURCHASERS:
/s/
Derace L. Schaffer
Derace
L. Schaffer, M.D.
|
|
|
EXHIBIT
A
schedule
of purchasers
|
|
|
|
Essex
Woodlands Health Ventures Fund IV, L.P.
717
Fifth Avenue
14th
Floor, Suite B
New
York, NY 10022
Attn: Mark
L. Pacala
|
166,667
|
$100,000
|
2.50%
|
Essex
Woodlands Health Ventures Fund V, L.P.
717
Fifth Avenue
14th
Floor, Suite B
New
York, NY 10022
Attn: Mark
L. Pacala
|
500,000
|
$300,000
|
7.49%
|
Psilos
Group Partners, L.P. and any designee thereof
140
Broadway, 51st
Floor
New
York, NY 10005
Attn: Joseph
R. Riley
|
|
[$2,550,000]
|
%
|
Psilos
Group Partners II, L.P. and any designee thereof
140
Broadway, 51st
Floor
New
York, NY 10005
Attn: Joseph
R. Riley
|
[provide
allocation]
|
[provide
allocation]
|
%
|
Hickory
Venture Capital Corporation
301
Washington Street, NW, Suite 301
Huntsville,
AL 35801
Attn: J.
Thomas Noojin
|
500,000
|
$300,000
|
7.49%
|
Derace
L. Schaffer, M.D.
3611
Cole Avenue, Apt. 188
Dallas,
TX 75204
|
833,333
|
$500,000
|
12.49%
|
John
Pappajohn
c/o
Equity Dynamics
2116
Financial Center
Des
Moines, IA 50309
|
416,667
|
$250,000
|
6.25%
|
Total:
|
6,666,667
|
$4,000,000.00
|
100.00%
|
CAREGUIDE,
INC.
AMENDMENT
TO
SERIES
A PREFERRED STOCK PURCHASE AGREEMENT
This amendment (the “Amendment”) to that certain Series A Preferred
Stock Purchase Agreement dated as of July 17, 2008 (the “Agreement”) is made and entered into as of December 5,
2008, by and among CAREGUIDE, INC. a Delaware corporation (the
“Company”), and each of those persons and
entities, severally and not jointly, whose names are set forth on the Schedule
of Purchasers attached to the Agreement as Exhibit A (which persons and entities are
hereinafter collectively referred to as “Purchasers” and each individually as a
“Purchaser”).
Recitals
Whereas
capitalized terms that are not defined herein have the meaning set forth
in the Agreement;
Whereas
Section 7.7 of the Agreement provides that it may be amended upon the
written consent of the Company and holders of at least a majority of the Shares
agreed to be purchased pursuant to the Agreement;
Whereas
the Company and the Purchasers consent and agree to amend the Agreement in the
manner set forth herein.
Now
Therefore the
parties hereto consent and agree as follows:
Amendments
to Agreement
1. |
The third recital of
the Agreement shall be amended and restated to read in its entirety as
follows: |
|
|
|
WHEREAS, the Company
intends to use the proceeds from the sale of the Shares to repurchase
fractional shares of the Company’s common stock, par value $0.01 per share
(the “Common
Stock”), following a 1-for-50,000 reverse stock split and a
50,000-for-1 forward stock split (the “Stock
Split”), and for the other uses described in Section
2.3; |
|
|
2. |
Section 5.1(f) of
the Agreement shall be amended and restated to read in its
entirety as follows: |
|
|
|
Fairness Opinion. The
fairness opinion received by the Board of Directors of the Company (the
“Board”)
from Navigant Capital Advisors on June 18, 2008 (the “Fairness
Opinion”) shall be in full force and effect as of the date of
Closing and shall not have been revoked or retracted. |
|
|
3. |
Section 5.2(e) of
the Agreement shall be amended and restated to read in its entirety as
follows: |
|
|
|
Fairness Opinion. The
Fairness Opinion shall be in full force and effect as of the date of
Closing and shall not have been revoked or retracted. |
|
|
4. |
The Schedule of
Purchasers of the Agreement shall be amended and restated to read in its
entirety as follows: |
SCHEDULE OF
PURCHASERS
NAME AND ADDRESS
|
MAXIMUM
NUMBER OF
SHARES
|
MAXIMUM
PURCHASE
PRICE
|
PERCENTAGE
OF SHARES
|
Essex
Woodlands Health Ventures Fund IV, L.P.
717
Fifth Avenue
14th
Floor, Suite B
New
York, NY 10022
Attn:
Mark L. Pacala
|
166,667
|
$100,000
|
2.50%
|
Essex
Woodlands Health Ventures Fund V, L.P.
717
Fifth Avenue
14th
Floor, Suite B
New
York, NY 10022
Attn:
Mark L. Pacala
|
500,000
|
$300,000
|
7.50%
|
Psilos/CareGuide
Investment, L.P. and any designee thereof
140
Broadway, 51st
Floor
New
York, NY 10005
Attn:
Joseph R. Riley
|
4,250,000
|
$2,550,000
|
63.75%
|
Hickory
Venture Capital Corporation
301
Washington Street, NW, Suite 301
Huntsville,
AL 35801
Attn:
J. Thomas Noojin
|
500,000
|
$300,000
|
7.50%
|
Derace
L. Schaffer, M.D.
3611
Cole Avenue, Apt. 188
Dallas,
TX 75204
|
833,333
|
$500,000
|
12.50%
|
John
Pappajohn
c/o
Equity Dynamics
2116
Financial Center
Des
Moines, IA 50309
|
416,667
|
$250,000
|
6.25%
|
TOTAL:
|
6,666,667
|
$4,000,000.00
|
100.00%
|
6. Except
as set forth herein, the Agreement shall remain in full force and effect in
accordance with its terms.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be signed as
of December 5, 2008.
|
COMPANY:
|
|
CareGuide,
Inc.
|
|
|
|
|
By:
|
|
/s/
Chris E. Paterson
|
|
|
|
Name:
|
|
Chris
E. Paterson
|
|
|
|
Title:
|
|
Chief
Executive Officer
|
|
PURCHASERS:
|
|
Essex
Woodlands Health Ventures Fund IV, L.P.
|
|
|
|
|
By:
|
|
/s/
Mark L. Pacala
|
|
|
|
Name:
|
|
Mark
L. Pacala
|
|
|
|
Title:
|
|
Managing
Director
|
|
Essex
Woodlands Health Ventures Fund V, L.P.
|
|
|
|
|
By:
|
|
/s/
Mark L. Pacala
|
|
|
|
Name:
|
|
Mark
L. Pacala
|
|
|
|
Title:
|
|
Managing
Director
|
|
Psilos/CareGuide
Investment, L.P.
|
|
By:
Psilos Group Investors III, LLC
|
|
Its
General Partner
|
|
|
|
|
By:
|
|
/s/
Albert S. Waxman
|
|
|
|
Name:
|
|
Albert
S. Waxman
|
|
|
|
Title:
|
|
Senior
Managing Member
|
|
Hickory
Venture Capital Corporation
|
|
|
|
|
By:
|
|
/s/
J. Thomas Noojin
|
|
|
|
Name:
|
|
J.
Thomas Noojin
|
|
|
|
Title:
|
|
President
|
|
Derace
L. Schaffer, M.D.
|
|
|
|
|
By:
|
|
/s/
Derace L. Schaffer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
John
Pappajohn
|
|
|
|
|
By:
|
|
/s/
John Pappajohn
|
|
|
|
|
|
|
|
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